(Prayer: Appeal is filed under Section 374(2) of the Code of Criminal Procedure against the judgment passed by the Principal Sessions Judge, Tirunelveli, in S.C.No.389 of 2007 dated 26.03.2014.)
S. Nagamuthu, J
1. The appellant is the sole accused in S.C.No.389/2007 on the file of the Principal Sessions Judge, Tirunelveli. He stood charged for the alleged offences punishable under Sections 449 and 302 IPC. By judgment dated 26.03.2014. The trial Court convicted him under both 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 sentenced him to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.2,500/-, in default, to undergo rigorous imprisonment for six months for the offence under Section 449 IPC. Challenging the said conviction and sentence, the appellant is before this Court with this appeal.
2. The case of the prosecution is as follows:
The deceased in this case was one Mr.Muthukutti Narayanan. The accused is the son of the deceased. The deceased was residing at Kottaivilaipatti Village in the North Street. The mother of the accused was one Mrs.Amirthakani. 12 years before the occurrence, the deceased and his wife Mrs.Amirthakani got separated. The deceased was spending lavishly by selling the joint family properties. The accused enraged over the same. On several occasions, he warned the deceased not to sell the joint family property and spend so. The deceased did not, however, mend his ways. This is stated to be the motive for the occurrence.
2.1. On 02.04.2007, at 10.30 a.m., when the deceased was at his house at north Street, Kottaivilaipatti, the accused went to the house of the deceased. He told the deceased that he would stay in the said house, where the deceased was residing and he would go for work in a local mill. The deceased objected to the same. He told the accused that there was no said relationship between the accused and him and therefore, he would not allow the accused to reside with him at his house. This resulted in a quarrel. In the said quarrel, it is stated that the accused took out an aruval and cut the deceased repeatedly on various parts of his body. The deceased died instantaneously. The accused ran away from the scene of occurrence in a pool of blood. The occurrence was witnessed by P.W.1, who is the uncle of the accused. He went to Vikramasingapuram Police Station and made a complaint at 11.45 a.m. on 02.04.2007. Ex.P1 is the complaint and Ex.P12 is the FIR.
2.2. The case was taken up for investigation by P.W.15. He went to the place of occurrence and prepared an observation mahazar and a rough sketch in the prese nce of P.W.6 and another witness. He recovered bloodstained earth and sample earth from the place of occurrence. He arranged a photographer to take photograph at various angles. Then, he conducted inquest on the body of the deceased between 1 and 3 p.m. on the same day. Ex.P20 is the inquest report. Then he forwarded the body for postmortem.
2.3. P.W.10 Dr.Kanagapriya Muthian conducted autopsy on the body of the deceased on 02.04.2007 at 12.45 p.m. she found the following injuries:
(1) an abrasion of 4 x cm over the right shoulder
(2) An oblique cut injury of 7 x 4 x 5 cm extending from the front of the neck to the right side of the neck. Underlying jugular carotid vessels, nerves and tendons were cut.
(3) An obliquely cut injury of 11 x 4 x 1 cm below the sub occipital region extending to right side of the neck.
(4) An obliquely cut injury of 8 x 2 x 1 cm just 1 cm above the injury No.3 extending from right side of the nape of the neck to the centre.
(5) An oblique cut injury of 14 x 6 x 2 cm just 2 cm above injury No.4 extending from right sub occipital region to left side (upto 5 cm below left ear)
(6) An oblique cut injury of 10 x 4 x 2 cm some 1.5 cm above the injury No.5 extending from below the right ear to the centre of left ear.
(7) An oblique cut injury of 7 x 5 x 1 cm on the left arm some 2 cm above the wrist.
(8) A vertical cut injury over the anterior aspect of left elbow some 8 cm below the left elbow with 5 x 3 cm diversion.
Ex.P.10 is the Postmortem Certificate and Ex.P11 is her final opinion. According to her, the injuries found on the deceased could have caused by a weapon like Aruval and the deceased would have died due to shock and hemorrhage due to the multiple injuries found on him.
2.4. P.W.15, during the course of investigation, recovered bloodstained cloth on the body of the deceased and forwarded the same for chemical examination. When the investigation was in progress, it is stated that the accused appeared before P.W.7, the then Village Administrative Officer on 02.04.2007 at 3.00 p.m. On such appearance, he wanted to make a voluntary confession. Having ascertained that the accused was in a mood to voluntary confess, he allowed him to confess. Accordingly, the accused confessed orally, which was reduced into writing by P.W.7. Ex.P4 is the extra judicial confession given by the accused. He prepared a report under Ex.P5. Then, he took the accused along with the extra judicial confession and produced before P.W.15 the Inspector of Police. P.W.15 arrested the accused. While in custody, the accused made a voluntary confession, in which, he disclosed the place, where he had hidden the bloodstained half hand shirt and the aruval. In pursuance of the said statement, he took the police and witnesses to the place of hide out and produced M.Os.7 and 8. P.W.15 recovered the same under a mahazar. On returning to the police station, he forwarded the accused to the Court and handed over the material objects to the Court. At his request, the material objects were sent for chemical examination. On completing the investigation, he laid charge sheet against the accused on 20.06.2007.
3. Based on the above materials, the trial Court framed charges under Sections 449 and 302 IPC against the accused. He denied the same. In order to prove the case, on the side of the prosecution, as many as 15 witnesses were examined, 25 documents were exhibited and 9 material objectes were marked.
4. Out of the said witnesses, P.W.1 is the brother of the deceased, who has stated that he witnessed the occurrence. He has further stated that in the quarrel that ensued between the accused and the deceased, the accused took out an aruval and cut the deceased indiscriminately. He further stated that the deceased died on the spot. He has also spoken about the complaint made by him to the police. P.W.2 is the brother's wife of P.W.1. She has also stated that she witnessed the entire occurrence. P.Ws.3, 4 and 5 have turned hostile and they have not supported the case of the prosecution in any manner. P.W.6 has spoken about the preparation of observation mahazar and rough sketch and recovery of material objects from the place of occurrence. P.W.7 has spoken about the extra judicial confession made by the accused on 02.04.2007 at 3.00 p.m. He has further stated about the disclosure statement made by the accused to the police and the consequential recovery of the bloodstained shirt and aruval (M.O.1). P.W.8 has spoken about the photographs taken in the place of occurrence. P.W.9 is the Doctor, who treated the accused. He has stated that the accused came to the hospital on 02.04.2007 for treatment with a police memo. He found a lacerated injury measuring 2 x 4 x 1 cm on the left hand between the index and middle fingers. P.W.10 has spoken about the postmortem conducted on the body of the deceased and her final opinion regarding the cause of death. P.W.11 has spoken about the registration of the case on the complaint of P.W.1. P.W.12 has stated that he handed over the FIR to the learned Magistrate at 4.30 p.m. on 02.04.2007. P.W.13 has stated that he took the dead body and handed over the same to Dr.Kanagapriya Muthian. P.W.14 - the Head Clerk of the Court of the Judicial Magistrate has spoken about the fact that he forwarded the material objects to forensic lab for chemical examination. P.W.15 has spoken about the investigation done and the final report filed.
5. When the above incriminating materials were put to the accused, he denied the same as false. However, he did not choose to examine any witnesses nor marked any documents on his side. His defence was a total denial. Having considered all the above, the trial Court convicted him under both the charges. That is how, he is before this Court with this appeal.
6. We have heard the learned counsel for the appellant and the learned Additional Public Prosecutor for the respondents and we have also perused the records.
7. In this case, the prosecution mainly relies on the evidence of P.W.1, who claims to have witnessed the entire occurrence. P.W.2 has stated that she saw the accused went into the house of the deceased. P.W.2 has not seen the occurrence. Thus, the prosecution relies only on t he evidence of P.W.1. P.W.1 has stated that he saw the accused cutting the deceased indiscriminately. But, he has not stated anything about the injuries found on the accused. P.W.9 Dr.Subha Ganesh has stated that on 02.04.2007, at about 8.15 p.m., the accused was brought by the police with a police memo for injuries said to have been sustained by him in the same occurrence. He told the Doctor that he was attacked by two known persons with aruval on the same day at 10.45 a.m. at his house at Kottaivilaipatti. The Doctor noticed a clear cut, a lacerated injury measuring 4 x 2 x 1 cm on the palmer aspect of left hand. Ex.P7 is the Accident Register. These injuries, according to the Doctor, could have been caused by a cut with an aruval. P.W.1, though claims to have witnessed the entire occurrence, has not stated anything about the injury sustained by the accused. Thus, the sole eye witness, namely, P.W.1 has not stated about the entire occurrence and he has suppressed the material part of the occurrence.
8. P.W.1 is the brother of the deceased and he is interested in the deceased. His presence in the place of occurrence is by chance. There is no corroboration to the evidence of P.W.1. It is the settled law that if the evidence of the solitary witness is by chance, undoubtedly, as a rule of prudence, the Court should look for corroboration from independent sources on material particulars. But, in this case, though the evidence of P.W.1 is doubtful, there is no other independent evidence to corroborate his evidence. He has failed to explain the injuries sustained by the accused. In this regard, we may refer to the decision of the Hon'ble Supreme Court in Lakshmi Singh and others vs. State of Bihar reported in AIR 1796 SC 226, wherein in identical situation, the Hon'ble Supreme Court has held that if the prosecution witnesses have witnessed the occurrence, failed to explain the injury sustained by the accused, naturally, inference could be drawn that the said witnesses are not telling the truth before the Court. Applying the said yardstick to the facts of the present case, we find it difficult to believe the evidence of P.W.1. As we have already pointed out that there is no other corroboration from independent sources. In these circumstances, we find it difficult to sustain the conviction, solely, based on the uncorroborated doubtful testimony of P.W.1 alone. Thus, we hold that the conviction and sentence imposed on the appellant by the trial Court is liable to the set aside.
9. In the result, the Criminal Appeal is allowed; the conviction and sentence imposed on the appellant are set aside and the appellant is acquitted of all charges. Fine amount, if any paid, shall be refunded to him. Bail bond shall stand terminated.
10. The Legal Aid Services Authority is directed to pay remuneration to the Legal Aid Counsel, viz., Mr. M.Karunanithi.