(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., to call for the records in S.C.No.65 of 2011 on the file of the District and Sessions Judge, Kanyakumari at Nagercoil, to set aside the conviction and sentence imposed on the appellant by the trial Court by the Judgment dated 19.01.2013.)
M.V. Muralidaran, J.
1. The appellant is the sole accused in S.C.No. 65/2011, on the file of the District and Sessions Judge, Kanyakumari Division at Nagercoil. The trial court framed charges under Section 302 of I.P.C against this Appellant/Accused.
2. The Trial Court by Judgment dated 19.01.2013 convicted the appellant under Section 302 of I.P.C to undergo Life Imprisonment and to pay a fine of Rs.2,000/- in default to undergo simple imprisonment for 4 years. Challenging the said conviction and sentence passed against him, the present appeal has been filed by the appellant/accused.
3. The case of the prosecution is that the deceased Anandakumar and the accused are nearby residents in adjacent houses. The PW-1 Valarmathi is the mother of the deceased Sivagurunathan, the accused and his are came together and they were using thefted articles in various places. On 01.09.2010 at the time of the thefted articles in Eathamozhy village, peoples have caught hold the deceased Sivagurunathan his brother Sivakumar, accused Lawrence @ Arananch and Manoj. Therefore, the FIR came to be registred in crime No.888/2010 under section 379, of IPC. Because of the same a quarrel arose between Sivagurunathan and the accused on 02.09.2010 and then in furtherance on 03.09.2010, at about 08.03 hours the accused and his companions was found intoxicated. At that time the deceased Sivagurunathan, called upon one Manoj, to have illegal activities, for which Manoj created noise. Therefore, Sivagurunathan was questioned by the accused and in turn the accused attacked the deceased Sivagurunathan, with a stone over the right hand, ear, left shoulder. The deceased was also attacked with a Cement Slab. Due to the above said attack the deceased Sivagurunathan died on the very same spot. Hence, the accused has murdered the deceased Sivagurunathan and thereby committed the offence punishable 302 of IPC.
4. In this case, PW-1 Kodimalar, the mother of the deceased deposed that on 04.09.2010, her son s i.e the deceased body was found laid on the mound of the ditch, which is situated near by Sivam Service station. On receipt of the information, the PW-1, rushed to the place of the occurrence and saw her son bleeding out in ear, mouth and nose. Thereafter, Ex-P-1 Complaint was lodged by P.W.1. P.W.1. identified M.O.1 to M.O.3, the chappal, pant and the shirt worn by the deceased.
5. PW-2 Murugan, a nearby shop keeper deposed that on 4.9.2010 at about 6 o clock, when he went backside of the Sivam service station to attend a nature call, he found the death body of the deceased Sivagurunathan.
6. PW-3 Manoj, deposed that he was a friend of the deceased Sivagurunathan and his brothers and they are having the habit of taking alcohol. On the alleged occurrence day, he went to the deceased house and there after the deceased Sivagurunathan and his brother went out to some other places. Later he heard that the deceased was caught by the police and on their interrogation the deceased Sivagurunathan has implicated PW-3. Therefore he was called upon by the police for interrogation. On same day at about 4 O clock accused and other persons went to Vellamadam for purchase of Kanja. At that time some quarrel was happened between the accused and deceased. The above said aspect was heard by him through one Kartheesan. On that day at about 8 O clock he went to the occurrence place along with accused and deceased. Then they have consumed alcohol. At that time the deceased has trying to caught hold his inner part. Hence he was crying. After hearing the noise, the accused came there and advised to the deceased Sivagurunathan not to do any illegal act. At that time the deceased has throw the stone against the accused. After assaulted by the deceased, the accused was assaulted the deceased with Cement mixed bricks stone. Due to such act of the accused, the deceased was receiving injuries on his head and saw that blood was professing from head. The deceased was died on the spot itself. Then he went to his house from the occurrence place. He has identified the Cement mixed bricks which was marked as M.O.4.
7. P.W.4 is Murugan who deposed that he witnessed the observation mahazar and rough sketch prepared by the investigation officer. He signed in the observation mahazar which was marked as Ext.P.2. One Brahmanayagam also attested as a witness in that document. Then the police has seized one pair black colour chappals through seizeure mahazar and seized a knife. The knife was marked as M.O.5. Then the police have collected blood stained and non blood stained cement mortar from the occurrence place through seizure mahazar. The two blood stained cement mortar is marked as M.O.6 and non blood stained cement mortar is marked as M.O.7. Then the Investigation Officer has seized 10 milligrams quantity of kanja from the occurrence place which was marked as M.O.8.
8. P.W.4 is Manikandan, who deposed in his evidence that on 11.02.2011, at about evening 3 O clock he return back to his house along with one Sivakumar. He was standing in the bus stand which was situated near by APPTA market. At the time the accused is also standing in the bus stand. The Inspector of Police came there and enquired about the occurrence, the accused has given the voluntary confession statement and the same was recorded by the Inspector of Police. The admitted portion of the confession statement is marked as Ex.P-4, based on the admitted portion of the confession statement the accused was brought to the occurrence place and he handed over the brick which was marked as Ex.P-5.
9. P.W.6 is Dr Rajesh, who deposed in his evidence that now he is working at Kanyakumari Government Medical College Hospital. On 04.09.2010 at about 1.15 hours when he was on duty in that hospital, the Investigation Officer, Vedasery Police Station handed over the deceased dead body along with one requisition letter related to crime No. 920/2010 for the offence U/s 302 of IPC. After receipt of the requisition letter, he has conducted the Postmortem and found external and internal ante mortem injuries. The Postmortem certificate is Ex-P-7. He was given the final opinion about the cause of the death is due to head injury. The final opinion is marked as Ex- P-9.
10. PW-7, Jeyachandran deposed that on 04.09.2010, while he was on duty in Vadaseri Police station at 07.30 hours he received the FIR in Crime No.920/2010 for the offence under section 302 of IPC. He went to the occurrence place along with the Inspector of the Police. After conducting the Postmortem PW-7, handed over the Banian and Jutty to the Inspector of Police, which are marked as M.O-9 and M.O.10.
11. PW-10, Sonamuthu deposed that, while he was on duty in Vadasery Police station as S.I of Police, on 04.09.2010 at 7.30 A.M, P.W.1, Kodimalar came to the Police Station and give complaint about the death of his son. On receipt of the same, he has register a case in crime No. 920/2010 under section 174 of Cr.P.C. The FIR is marked as Ex.P11.
12. PW.11 Charless deposed that on 04.09.2010, he was holding on additional charge of the Inspector of Police, Vadasery Police Station. On that day, at about 10.AM. He received the case papers relating to crime No. 920/2010. Thereafter, he went to the occurrence place and prepared observation Mahazar in the presence of the witness. He also prepared the inquest report and rough sketch which were marked as Ex-P-12 and Ex-P-13. After sending the deceased dead body to Asaripallam Government Hospital for Post mortem, He has seized Chappals under Ex-P-3 Seizure Mahazar. On 11.02.2007 at about 12.p.m, P.W.11, arrested the accused in Ozhuginasery APPTA Market bus stop. In the presence of the P.W-5 and Selvaraj. Thereafter, the accused has given confession statement which was marked as Ex-P-4. Then the accused was sent to the Judicial Custody. P.W.11, has handed over the case papers relating to the above case to the regular Inspector of Police Mr. Rajendran.
13. P.W-12, Mr. Rajendran, Inspector of Police deposed that after assuming charges, he received the case bundle relating to crime No. 320/2010. After the investigation he has altered the FIR into section 174 of Cr.P.C to Section 302 of IPC. The alteration report is marked as Ex-P-14.
14. P.W-13, Mr. Sudalaimani, Inspector of Police deposed that after assuming charge, he received the case bundle relating to crime No. 320/2010. On 04.03.2011, he has examined witness Rajesh and recorded his statement. On 25.10.2010 he has given the requisition letter to sent to the case properties to the expert opinion. the requisition letter is marked as Ex.P.15. ON 28.10.2010 he has received the chemical examination report from Forensic Science department, Tirunelveli and the Chemical Examination report was marked as Ex.P.17, and the Serology report is marked as Ex.p.18. Then he has examined the Sniffer dog controller Paranthamalingam and recorded his statement. On 06.05.2011 he has examined the witness Abathukathapillai and recorded his statement. He has completed his investigation and filed final report against the accused on 17.05.2011 for the punishable offence U/s 302 of IPC.
15. After filing the charge sheet before the Learned Judicial Magistrate No:2, Nagercoil in P.R.C.No. 15 of 2011, the case was committed to the District and Sessions Judge, Kanniyakumari Division at Nagercoil and came to be numbered as S.C.No.65/2011. In this case, 13 witnesses were examined as prosecution side witnesses and 18 Exhibits were marked on the side of prosecution and 10 material objects were produced before the Trial court. There was no witness examined and no exhibits marked on the side of the accused.
16. On the evidence taken by the trial court namely the District and Sessions Judge, Kanniyakumari Division at Nagercoil came to the conclusion that the charges laid against the accused were proved by the prosecution.
17. In the above circumstance relying upon the version of P.W.3, PW-6 and P.W.11, the learned Trial Judge convicted the accused for the offences under sections 302 of I.P.C holding that the prosecution case was proved. Against the said conviction, the present appeal has been filed.
18. We have heard Mr.V.Kathirvelu, learned senior counsel for Mr.Mahendravarman, learned counsel appearing for the appellant and the Mr.C.Ramesh, learned Assistant Public Prosecutor, appearing for the respondent and we have also perused the records carefully.
19. In this case, on going through the evidences and documents produced by the prosecution, we have to see that whether the prosecution has proved the case beyond reasonable doubt. In this case, the Learned Counsel for the appellant vehemently contended that the trail court failed to consider the fact that there was no light in the occurrence the place and it is full of dark and hence no one could see the alleged occurrence. Therefore the PW-3 could not be the eye witness and he was created witness by the prosecution to prove their case. No such occurrence could have taken place as alleged by the prosecution. The Learned Counsel therefore contended that the evidence of PW-3 cannot be the basis for conviction of the accused.
20. Per contra, the Learned Additional Public Prosecutor has argued that the prosecution has proved the case beyond reasonable doubt by examining PW-3 and the evidence of PW-3 is corroborated with the evidence of PW-6 post mortem doctor. Therefore the conviction and sentence imposed on the accused by the trial court not warranted interference by this Hon ble Court.
21. The Learned Counsel for the appellant further submitted that the theory of PW-3 that prior to occurrence, he, PW-4, the accused and the deceased had consumed the alcohol and food, but the same was not supported by the post mortem report Ex-P-7. The PW-6 doctor who conducted post mortem on the death body of the deceased deposed that no alcohol is found on the death body.
22. We have also closely perused the evidence of the PW-3 and PW-6 and also Ex.P-7 post mortem report. From the above materials and also from the Ex-P13 rough sketch, we have no hesitation to hold that the version of PW-3 is doubtful and he may not be the eye witness to the crime.
23. That apart, while considering the evidence of PW-1, the mother of the deceased and PW-11 the Investigation Officer, we could come to the conclusion that the antecedent and the conduct of accused is very bad. The mother of the deceased as well as the Investigation Officer has clearly deposed that there are many theft cases pending against the deceased. Further, a day prior to the date of occurrence the deceased and his brother were involved in crime of theft and in that crime, the brother of the deceased was arrested which was also admitted by PW-11. Therefore, this Court can infer that there is possibility of attack by the villagers on the deceased or the deceased would have sustained injury while involving in the crime of theft.
24. Further, PW-11 stated that the place of occurrence is not ditch and according to him the place occurrence is cement block situated nearby the ditch. Whereas, the PW-3 who is the eye witness to the crime deposed that the place of occurrence is ditch. Therefore, the prosecution failed to prove the place of occurrence beyond the reasonable doubt. As per the evidence of PW-3, at the time of occurrence the deceased only attacked the accused first by stone and the same was also corroborated by the Investigation Officer PW-11. But the PW-11 Investigation Officer has not brought the injury of the accused during his investigation, which is fatal to the case of the prosecution. Except PW-3, the prosecution has not chosen to examine any other independent witness to prove the crime.
25. In view of the above narration and discussion, that there is discrepancy as to the place of occurrence and there are contradictions in the evidence of P.W.3, PW-10 and P.W-11. Besides, the non-explanation for the injury sustained by the accused by the prosecution, this court feels hard to believe the version of prosecution. Since the prosecution has not proved the case beyond all reasonable doubts. Therefore the accused is acquitted from all the charges by giving benefit of doubt.
26. In the result, the criminal appeal is allowed and conviction and sentence imposed on the appellant is hereby set aside and the appellant is acquitted and he is directed to be set at liberty forthwith unless his presence is required in connection with any other case. Fine amount paid if any by the appellant shall be refunded to him.