(Prayer: Appeal is filed under Section 374(2) of the Code of Criminal Procedure against the judgment passed by the Additional Sessions Judge, Fast Track Court No.II, Pattukottai, in S.C.No.249 of 2007 dated 30.01.2008.)
S. Nagamuthu, J.
1. The appellant is the sole accused in S.C.No.249 of 2007 on the file of the learned Additional District and Sessions Judge, Fast Track Court, No.II, Pattukottai. He stood charged for offences under Sections 302 and 341 IPC. By judgment dated 30.01.2008, the trial Court convicted him under both the charges and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for one year for the offence under Section 302 IPC and to pay a fine of Rs.500/-, in default, to undergo simple imprisonment for one week for the offence under Section 341 IPC. Challenging the said conviction and sentence, the appellant is before this Court with this appeal.
2. The case of the prosecution, in brief, is as follows:
The deceased in this case was one Mr.Vairavan. He was a resident of Udaiyakottai Village. There was a rumor that the accused had illicit intimacy with the wife of one Meiyappan of the same village. The deceased intervened in the matter and tried to compromise between the parties and settled the issue. That was not to the liking of the accused. This developed into an enmity for the occurrence. It is alleged that on 20.04.2004, in the evening, the deceased, P.W.1 and few others played volley ball in the ground belonging to the local school. The game was over at 6.30 p.m. Then, all the participants went to the nearby borewell and had a bath. After that, the deceased proceeded in his motorcycle, bearing Registration No.TN 55 B 9684, to his house. He was followed by P.W.1 and others in their respective motorcycles. When the deceased was going ahead on the school road and negotiating a turning, around 7.30 p.m., suddenly, the accused emerged there. He was armed with an aruval. He restrained the deceased and mounted attack on him with aruval indiscriminately. P.Ws.1,2,3 and others raised alarm. On seeing them, the accused ran away from the scene of occurrence. According to the prosecution, there was enough light available at the place of occurrence. Then, P.W.1 and others took the deceased to the Government Hospital at Peravoorani. The Doctor available in the hospital, after giving first aid treatment, advised him to be taken to the Thanjavur Medical College Hospital. Accordingly, the deceased was immediately rushed to Thanjavur Medical College Hospital and admitted there as an inpatient. But, the Doctor, who attended on him, declared him dead and send the body to the mortuary. P.W.1 went to Sethubavachathiram Police Station and made a complaint at 5 a.m. on 21.04.2004. Ex.P1 is the complaint and Ex.P11 is the FIR.
2.1. P.W.21 took up the case for investigation. He proceeded to the place of occurrence at 7.00 a.m. and prepared an observation mahazar and a rough sketch in the presence of P.W.6 and another witness. He recovered bloodstained earth and sample earth from the place of occurrence. Then, he went to the hospital, where he conducted inquest on the body of the deceased, during which, he examined few witnesses and recorded their statements. Then, he forwarded the body for postmortem.
2.2. P.W.18 Dr.Vijayalakshmi conducted autopsy on the body of the deceased. She found the following injuries:
1. A Transversely oblique cut wound over the whole of middle of left cheek found situated from 2 cm below the front of left ear and measuring 13 cm x 1 cm x muscle deep and found extending upto the left side angle of mouth.
2. A transversely oblique cut wound noted over the right side tempero parietal regions of scalp measuring 12 cm x 2 cm x bone deep with corresponding cut fracture of the underlying bones.
3. Contusion over the whole of right side of neck, front of neck, back of right side of neck, in front of right ear and below the right ear regions with multiple linear oblique scratch abrasions in these regions of various sizes. The colour of the contusion was bluish black and abrasion was reddish brown in colour. On dissection contusion of the underlying muscles of these regions noted.
4. A Transversely oblique cut wound over the upper part of back of neck measuring 9 cm x 1 cm x bone deep. On dissection cut fracture of body of C3 vertebra and injury to the underlying spinal cord.
5. A transversely placed cut wound over the middle of occipital region of scalp measuring 5 cm x 1 cm x bone deep.
6. A curved cut wound over the right side supra scapular area measuring 12 cm x 1 cm x muscle deep.
7. A curved cut wound 4 cm below the above wound No.6 measuring 22 cm x 3 cm x bone deep with cut fracture of the body of right scapular bone noted.
8. A curved cut wound just below the above wound No.7 measuring 6 cm x cm x cm.
9. A wide abrasion measuring 10 x 4 cm over the middle of right supra scapular area with peeling of epidermis.
10. Multiple fresh abrasion noted over:
1. Below the left ear 3 x 2 cm.
2. Middle of front of left side of neck 4 x 4 cm
3. Below the middle of left clavicle 3 x 2 cm
4. Top of left shoulder 8 x 4 cm.
5. Multiple of various sizes over left side forehead, lateral to left eye, left mandibular area, front of right side of neck, right shoulder region, front of right upper arm, back of right thumb, dorsum of right hand, fingers, back of both of elbows, forearms, both knees and front of both legs.
11. Contusion (Bluish black in colour) noted over the whole of right upper arm. On dissection contusion of the underlying muscles noted.
12.On reflecting the scalp skin sub scalp contusion noted over the whole of occipital region, both sides parietal and temporal regions. A curved linear cut fracture of right side temporal parietal and occipital bones corresponding to the above mentioned Ward No.2, with fracture separation of lamdoid sutural line, and lower half of saggital sutural line. On opening the vault of skull thick subdural and sub arachnoid haemorrhage noted over both sides cerebral hemispheres with bilateral subdural basal blood clots. Contusion of whole of both sides cerebellum. Intra cerebral and intracerebellar hemorrhage in both sides. Fracture of right side whole of middle of middle cranial fossa noted. Hemorrhage in the regions of pons and mid brain areas. All the above mentioned injuries were of antemortem in nature. Death wold have occurred 12 0 24 hours prior to postmortem examination.
Extremities : Cyanosed
Heart : Normal in size. All the chambers contained fluid blood.
Valves : Normal. Coronary vessels petent. Great vessels normal.
Lungs: C/s both congested and oedematous.
Larynx and hyoid bone : Intact.
Stomach : Contained 400 gms of partially digested cooked
rice diet with no specific smell mucosa normal.
Liver : Spleen, kidneys: c/s congested.
Small intestine : empty, mucosa normal . No specific smell made out.
Bladder : Empty, Pelvis intact.
The deceased would appear to have died due to multiple cut wounds involving the vital organs namely the brain and cervical vertebral column.
Ex.P13 is the postmortem certificate, issued by P.W.18. She gave opinion that the injuries found on the deceased could have been caused by a weapon like M.O.1 - Aruval. She further opined that the death of the deceased was due to shock and hemorrhage due to the injuries found on the body of the deceased. She noticed 400 gms of semi digested food in the stomach.
2.3. P.W.21, during the course of investigation, on the same day, arrested the accused at Pattukottai, in the presence of P.W.7 and another witness. On such arrest, the accused made a voluntary confession, in which he disclosed the place where he had hidden an aruval. In pursuance of the same, he took the witnesses and the police to the place of hide out and produced M.O.1 - aruval. P.W.21 recovered the same under a mahazar. Then, he forwarded the accused to judicial remand and forwarded the material objects for chemical examination. Bloodstained cloth recovered from the body of the deceased was also sent to the Court with a request to send the material objects for chemical analysis. Accordingly, they were sent. The report revealed that there were bloodstains on the said material objects including M.O.1 aruval. P.W.21 collected the medical records and examined the Doctors. Finally, on completing the investigation, he laid charge sheet against the accused under Sections 341 and 302 IPC.
3. Based on the above materials, the trial Court framed charges as detailed in the first paragraph of the judgment. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as 21 witnesses were examined, 20 documents and 5 material objects were marked. On the side of the accused, one document was marked as Ex.D1.
4. Out of the said witnesses, P.W.1 claims to have witnessed the said occurrence. According to him, he played volley ball along with the deceased in the school ground and after taking bath, when the deceased proceeded towards his house in a motorcycle, he followed him in his motorcycle and at that time, according to him, he witnessed the entire occurrence. He has vividly spoken about the entire occurrence and asserted that it was this accused, who cut the deceased, indiscriminately.
5. P.W.2 is yet another eye witness to the occurrence. He has also stated that he played volley ball along with the deceased, followed him in his motorcycle and witnessed the entire occurrence. P.W.3 is also an eye witness. He has stated that he went along with P.W.2 in the motorcycle from the playground and he also witnessed the entire occurrence.
6. Thus, according to the prosecution, P.Ws.1 to 3 are eye witnesses to the occurrence. P.W.1 has spoken about the complaint made by him and also about FIR. P.W.4 is the brother of the deceased. He has stated that he heard about the occurrence. Then, he went to the place of occurrence and took the deceased to the hospital. P.W.5 has spoken about preparation of observation mahazar and rough sketch and also the recovery of sample earth and bloodstained earth in the place of occurrence, by the police. P.W.6 has also spoken about the same facts as spoken by P.W.5. P.W.7 has spoken about the arrest of the accused, the confession made by him and the consequential recovery of M.O.1 - aruval from the hide out, on being produced by him. P.W.8 is a resident of Udaiyakadu Village. He has stated that on 20.04.2004, at 9 p.m., when he was proceeding along the place of occurrence, he found a red colour motorcycle bearing registration No.TN55B9684 lying near the bridge. There were bloodstains also on the said motorcycle. According to him, he removed the motorcycle from the said place, washed the same and kept it at his house. Thereafter, according to him, police came and recovered the same. P.W.9 has spoken about the recovery of the motorcycle from the possession of P.W.8 by the police. P.W.10 is a Head Constable. He has stated that he gave intimation to the police station about the death of the deceased in the hospital. P.W.11 is the Constable, attached to Peravoorani Police Station. She has stated that she handed over the material objects at Forensic Lab for examination.
6.1. P.W.12 Dr. Panchatcharam has stated that on 20.04.2004, when he was on duty at the Government Hospital, Peravoorani, at 8.00 p.m., the deceased was brought to him for treatment. When he examined him, he found number of cut injuries. He made entries in Ex.P7 Accident Register and then referred him to Thanjavur Medical College Hospital. P.W.13 is the Head Clerk of the Magistrate's Court. She has stated that she forwarded the material objects for chemical examination. P.W.14 is the Forensic Expert, who has stated that she examined the material objects and found that there were human bloodstains on the material objects, including the Aruval. P.W. 15 - Dr.Ravi has stated that he examined the deceased at 10 p.m. on 20.04.2004. But he found him dead. Therefore, he made entry in Ex.P10 Accident Register and forwarded the body to mortuary. He gave intimation also in this regard to the police. P.W.17 is the Sub Inspector of Police attached to Sethubavachathiram Police Station, who has spoken about the registration of the case on the complaint made by P.W.1. He has further stated that he forwarded the FIR and the complaint to the Court and handed over the case diary to the Inspector of Police for investigation. P.W.18 has spoken about the postmortem conducted by her on the body of the deceased and her final opinion regarding the cause of death. P.W.19 is the Head Clerk of the Court. He has stated that there are certain corrections in Form 95, which was submitted to the Court, when M.O.1 Aruval was produced. He has stated that these corrections were made by the police in the same after verifying the measurement of the weapon. P.W.20 is the Head Constable attached to Sethubavachathiram Police Station. She has stated that she handed over the FIR and the complaint to the learned Judicial Magistrate on the same day. P.W.21 has spoken about the investigation done and filing of final report.
7. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false. On his side, the endorsement found in Ex.P1 Complaint has been marked as Ex.D1. His defence was a total denial. Having considered all the above, the trial Court has convicted him under Sections 302 and 341 IPC and accordingly, punished him. That is how, he is now before this Court with this appeal.
8. We have heard the learned senior counsel for the appellant, the learned Additional Public Prosecutor for the respondent and we have also perused the records carefully.
9. The learned senior counsel for the appellant would submit that the FIR in this case would not have come into being at 5 a.m., on 21.04.2004, as alleged. The learned senior counsel would further submit that there was enormous delay in preferring the complaint and also is handing over the same to the Court. The learned senior counsel would further submit that there is evidence that the police arrived at the scene of occurrence just 20 minutes after the occurrence. Thus, according to the learned senior counsel, the earliest information regarding the occurrence has been suppressed. The learned senior counsel would next contend that P.Ws.1 to 3 would not have witnessed the occurrence at all. It is his contention that P.Ws.1 to 3 have been planted as witnesses later on by the police, by utilizing the delay in making the complaint. He would point out that, according to the positive case of the prosecution, the deceased was proceeding in the motorcycle bearing registration No.TN55 B 9684, but under Ex.P12, the vehicle used by the deceased has been mentioned as TN49 9684. The learned senior counsel would submit that absolutely there is no explanation for the said material contradiction. He would further submit that the registration certificate of the said vehicle has also not been recovered. The learned senior counsel would further submit that though it is claimed by P.Ws.1 to 3 that a single cut was made by the accused, according to postmortem, there were number of injuries found on the body of the deceased. He would further submit that the presence of semi digested food in the stomach of the deceased would go a long way to prove that the occurrence would not have taken place at the time projected by the prosecution. P.Ws.1 to 3 and the deceased would not have played volley ball for about 2 hours in the playground. Thus, the presence of P.Ws.1 to 3 is highly doubtful. The learned senior counsel has also pointed out certain other contradictions, which, according to him, would go to prove that the prosecution has not come forward with clean hands.
10. The learned Additional Public Prosecutor would, vehemently, oppose this appeal. According to him, all the eye witnesses have tacitly stated that the deceased came in the motorcycle bearing Registration No.TN55 B 9684. He would further submit that the ownership of the vehicle is not very material for this case. In respect of the arrival of the police to the scene of occurrence, immediately after the occurrence, he would submit that it is of no significance. He would further add that there can be no doubt regarding the origin of the FIR. So far as the injuries found on the deceased are concerned, the learned Additional Public Prosecutor would submit that he eye witnesses cannot be expected to speak about each injury caused on the deceased. Thus, according to the learned Additional Public Prosecutor, from the eye witness account of P.Ws.1 to 3, which is duly corroborated by the medical evidence, the prosecution has proved the case beyond reasonable doubts and therefore, the appeal is liable to be dismissed.
11. We have considered the above submissions.
12. According to the positive case of the prosecution, the alleged occurrence was at 7.30 p.m., on 20.04.2004. The FIR, according to the case of the prosecution, was registered at 5 a.m. on 21.04.2004. But the FIR has reached the hands of the Magistrate only at 10.30 a.m. on 21.04.2004, which is evident from the endorsement made by the learned Magistrate. The distance between the place of occurrence and the police station is hardly 5 kms., which is also evident from the FIR. We are informed that the distance between the Police Station and the Court is hardly 10 kms. But, absolutely, there is no explanation as to why it took so much time for the FIR to reach the hands of the learned Magistrate, for the occurrence, which had taken place at 7.30 p.m. on 20.04.2004. Even the police Constable P.W.20, who took the FIR and handed over the same to the learned Magistrate, has not given any explanation as to why there was so much delay in handing over the FIR to the Court. According to the Doctor P.W.15, he declared the deceased dead at 10.25 p.m. on 20.04.2004. Death intimation was also sent to the police. But, still, the complaint was registered at the police station only at 5.00 a.m. on 21.04.2004. The distance between Pattukottai and Thanjavur is hardly 45 kms. This delay also has not been explained at all. This unexplained delay in making the complaint and also in the FIR reaching the hands of the learned Magistrate create initial doubt in the minds of this Court about the case of the prosecution.
13. Then, comes the evidence of P.W.1 to 3, who claimed to have witnessed the occurrence. According to all the witnesses, along with the deceased, they were playing volleyball in the school ground for about 2 hours. All these witnesses have admitted the same. After the game was over at 6.30 p.m., they went to the nearby borewell, where, according to them, they had bath and then, all of them proceeded in their motorcycle. The deceased went in one motorcycle; P.W.1 in another motorcycle, followed by P.Ws.2 and 3 in another motorcycle. When the deceased was negotiating the curve near the school, on the main road, according to them, the occurrence had taken place. The learned senior counsel, as we have already pointed out, would contend that the medical evidence that there was undigested food in the stomach would falsify the presence of P.Ws.1 to 3, as the alleged occurrence had taken place not anywhere near the house of the witnesses or that of the deceased and it had taken place at a far off place. The presence of P.Ws.1 to 3, even according to them was by chance. It is a settled law that if the witnesses claimed to have been present at the scene of occurrence by chance, the occasion for their presence at the place of occurrence should be explained to the satisfaction of the Court. In this case, an attempt has been made by P.Ws.1 to 3 to explain their presence at the place of occurrence by stating that they played volleyball with the deceased at the school playground and thereafter they followed him. Had it been true that there was a volleyball match, which went on for more than 2 hours; had it been true that thereafter they they had a bath, had it been true that thereafter they were proceeding in their respective motorcycle; had it been true that thereafter the deceased was cut, absolutely, there would have been no occasion for the presence of undigested food particles in the stomach of the deceased. It is a common knowledge that for such a long span of time, the food, which the deceased had consumed before he came to the playground, would not have remained undigested. But, during the during autopsy, it was found that there was semi digested food in the stomach. The scientific evidence spoken by the Doctor, who conducted autopsy, would clearly falsify the case of P.Ws.1 to 3, that they played volleyball along with the deceased and when all of them were returning, the occurrence had taken place. Thus, the explanation offered by P.Ws.1 to 3 for their presence at the place of occurrence has been totally falsified by the medical evidence.
14. According to the prosecution case, the deceased had come in a motorcycle bearing Registration No.TN55 B 9684. It is their further case that the said motorcycle was abandoned in the said place and the deceased alone was shifted to the hospital, immediately. It is in evidence that the police arrived at the scene of occurrence within 20 minutes after the occurrence. But the motorcycle was not noticed by the police. It is the evidence of P.W.8 that he had removed the motorcycle from the said place and kept it at his house. P.W.8 is not a stranger. He hails from the same Village. According to him, he found the motorcycle with bloodstains lying at the place of occurrence. Therefore, he removed the same, washed it and then, kept it at his house. This conduct of P.W.8, creates enormous doubt in the case of the prosecution. Having noticed that there were bloodstains on the motorcycle, it would not have been his natural conduct to remove the same in a casual manner, to wash the same and to keep it in his house without informing anyone. It is not as though he had any right over the motorcycle. This conduct of P.W.8 creates doubt about his evidence. Therefore, it is inferable that in order to probabalise the case of the prosecution, the theory that the deceased had come in a motorcycle has been introduced. In our considered view, the deceased would not have gone to the place of occurrence in the motorcycle and that is the reason why, the motorcycle was not seen at the place of occurrence. P.W.8 has been, later on, planted to explain the presence of the motorcycle in the place of occurrence. Therefore, the case of the prosecution that the deceased came in a motorcycle and at that time, the occurrence had taken place is highly unbelievable.
15. The learned senior counsel would next point out that it is in evidence that the police arrived at the scene of occurrence just 20 minutes after the occurrence. As we have already pointed out the distance between the police station and the place of occurrence is hardly 5 kms. If that be so, what was the earliest information, which was in the hands of the police that made them to visit the place of occurrence, is not known. According to the further evidence of the witnesses, when the police came, they noticed the bloodstained earth at the place of occurrence, but not the motorcycle.
16. There is yet another anomaly in the case of the prosecution. As we have already pointed out, in Ex.P12, which is the letter by the Inspector of Police, dated 21.04.2004, when he handed over the dead body to the Doctor for postmortem, he has stated that the deceased came in a TVS Suzuki motorcycle bearing registration No.TN 49 9684. In Ex.P1, registration number of the said motorcycle has not been mentioned. Thus, at the earliest point of time, in Ex.P12, the number of the motorcycle has been mentioned as TN 49 9684, but later on, a new story has been developed as though M.O. 1 Motorcycle TN55B9684 was used by the deceased. This anomaly also has not been explained by the prosecution. This again creates doubt as to whether the deceased would have gone in the motorcycle bearing registration No.TN55 B9684 at the time of occurrence.
17. Above all, the said motorcycle TN 55 B9684 is stated to have been 18 recovered from P.W.8. But, it is not known as to whether it belonged to the deceased as the registration certificate and the other records articulars have not been seized and produced before the Court. Thus, absolutely, there is no evidence as to whether the said motorcycle belonged to the deceased. This also creates doubt in the case of the prosecution.
18. Next, coming to the injuries on the deceased, according to P.Ws.1 to 3, the deceased was cut once by aruval, but there were a number of injuries found on the deceased. These injuries have not been accounted for by the prosecution. Had it been true that P.Ws.1 to 3 had witnessed the entire occurrence, as claimed by them, they would have stated that more injuries were caused by the accused. This also creates more doubt in the case of the prosecution. The evidence of P.Ws.1 to 3 are parrot like. P.Ws.1 to 3 are interested witnesses and their presence at the place of occurrence is highly doubtful. The anomalies, which we have dealt with herein above, have not been explained away by the prosecution, which create doubt in the case of the prosecution. Therefore, the doubts created in the case of the prosecution, which are very reasonable, should go to the benefit of the accused. Thus, we hold that the prosecution has failed to prove the case beyond reasonable doubts and therefore, the appellant is entitled for acquittal.
19. In the result, the criminal appeal is allowed and the judgment of the trial court in S.C.No.249 of 2007, dated 30.01.2008, convicting the appellant under Section 341 and 302 IPC and sentencing him thereunder is set aside and he is acquitted of all the charges levelled against him. Fine amount, if any, paid by the appellant shall be refunded to him. Bail bond shall stand terminated.