M.V. Muralidaran, J.
1. The appellant is the sole accused in S.C.No.87 of 2012, on the file of the III Additional Sessions Court, Pattukkottai, Thanjavur District. He stood charged for the offence punishable under Section 302 of the Indian Penal Code.
2. By judgment dated 17.12.2014, the trial Court has convicted and sentenced the accused as detailed below:-
|Accused||Conviction under Sections||Sentence imposed||Fine amount|
|Sole Accused||302 IPC||Life Imprisonment||Rs.10,000/- in default to undergo six months rigorous imprisonment|
3. The case of the prosecution in brief is as follows:-
The deceased in this case is one Mr.Panneerselvam, who is the younger brother of the accused Kannaiyan. There was dispute between them on dividing their family property. Under the circumstances, on 15.02.2011 by 5.30 p.m. this accused took some R.S.Pathy woods which were lying in front of the house belonging to Mr.Panneerselvam. Mr.Panneerselvam prevented this accused from taking those woods. This accused said it is my property, why you are preventing me and further with a motive of killing Mr.Panneerselvam, took a RS.Pathy wood log and hit heavily on the head of Mr.Panneerselvam, created an injury, that injury caused the death of Mr.Panneerselvam. For this offence, the prosecution registered a case, investigated and filed a charge sheet under Section 302 IPC on this accused before the Judicial Magistrate, Orathanadu.
4. On perusing the charge sheet, the Judicial Magistrate, Orathanadu, took it on file vide C.C.No.5/2012, when the accused was produced, served the copy of the charge sheet at free of cost under Section 207 of Cr.P.C. On further perusal of the records, found that the charges leveled against the accused is exclusively triable by the Sessions Court, transferred the case under Section 209(a) of Cr.P.C. to the Principal and District Sessions Court, Tanjore for further enquiry.
5. The Principal and District Sessions Court, Tanjore took cognizance of the case vide S.C.No.87 of 2012 and remitted to the III Additional Sessions Court, Pattukottai for trial.
6. The case of the prosecution in detail, as follows:-
As per the PW1, who is the wife of the deceased Mr.Panneerselvam, her husband had 4 brothers and 1 sister, accused is one among the brother. Accused was demanding the deceased for the partition of the family properties, the deceased was saying to wait till the marriage of Mr.Kumar their brother. On 15.02.2011, during a quarrel, the accused had attacked on the head of the deceased with a wooden log, the deceased was taken to the hospital, wherein it was stated that her husband died.
7. Prosecution had examined PW1 to PW16, through them Ex.P1 to Ex.P12 and M.O.1 to M.O.4 were marked.
8. PW2 and PW3 who are the eyewitnesses, had endorsed the statement given by the PW1, PW4 and PW5 are the witnesses, had stated that they reached the spot and saw the deceased lying on the ground with shedding blood. PW6, PW7, PW8 and PW9 are the witnesses signed in the Mahazar prepared by the Police.
9. Out of these prosecution witnesses, PW9 had stated that the Sub-Inspector of Police had obtained his signature, in the confession statement Ex.P11 dated 23.02.2011 of the accused, when he was in his home town. Whereas the Prosecution had stated that the signature of the PW9 was obtained as witness, when the accused gave the confession statement during enquiry conducted by the police, when the accused was in the police custody. Whereas the prosecution had claimed that the MO3 and MO4 were seized in front of the PW9. But, this PW9 had denied the prosecution statement. So, this witness was declared as hostile witness and the prosecution had cross examined this witness.
10. PW10 is Scientific Officer, states that she had examined:-
(1) Blood stained sand
(2) Sand without blood
(3) Half hand shirt
(5) Wood log
(6) Full hand shirt worn by the Accused during the incident.
11. The PW10 clearly states that there is a blood stain in the objects 1, 3, 4 only and there is no blood stain in the objects 2, 5 and 6. The forensic report is marked as Ex.P5.
12. Whereas the PW15, who is the Inspector of Police, who investigated the case initially, had stated that he recovered the wood log from the accused which contains blood drops, in the middle of the wooden log.
13. PW16 is the investigation officer, who filed the charge sheet, had clearly stated that he had not enquired the witnesses other than the scientific experts. He also confirmed that he had filed this charge sheet based on the statements and evidences collected by the PW15.
14. The prosecution had marked only the following four material objects, where as six material objects were sent for the forensic test:-
(1) Blood stained sand;
(2) Sand without blood;
(3) Wood log;
(4) Full hand shirt worn by the Accused during the incident.
15. PW11 is a doctor who conducted the postmortem and her report is marked as Ex.P6. Her report confirms that the deceased died just because of a head injury, but, had stated that the skull was not damaged. She had not anywhere stated that the deceased would have been died because of an attack by a wooden log or any other similar weapon.
16. PW12 is forensic expert, states that she had examined blood stained sand and stated that she is unable to confirm that the blood is of the same group of the deceased, just because it is disintegrated. This report is marked as Ex.P7.
17. DW1, a third party witness, who lives in a neighbouring village, had stated that he came to the spot, and witnessed the fight between the accused and the deceased. He states that both of them were initially quarreling which ended with fight. During the fight both of them rolled down in the floor. During that fight, the deceased head hit on the floor wherein small stones were laid, as a result the deceased was injured and then he fainted. Latter the deceased was taken to the hospital in a Maruthi Van.
18. The accused had surrendered before the Court on 18.02.2011 before the II Judicial Magistrate, Kumbakonam. PW15 took him into police custody. It is the version of the prosecution that while in custody, the accused gave a voluntary confession, in which, he disclosed the place, where he had hidden the R.S.Pathy wooden log and blood stained shirt, in pursuance of the same, he took the police and the witnesses to the place of hide out and produced the said material objects.
19. The police report says and the PW16 in his cross examination had stated that there were bloodstains on the wooden log MO3. This was denied by the forensic expert PW10. PW10 clearly states that there is no blood in the MO3. So, the prosecution had failed to prove that this wooden log was used by the accused to hit the deceased.
20. The Ex.P11 is a confession statement stated to have obtained by the PW16 from the accused, which was witnessed by the PW9. But, the PW9 denies that he had not witnessed the so called confession statement of the accused. PW9 clearly says that he had not witnessed the recovery of the MO3 and MO4. So, the prosecution had failed to prove that the MO3 and MO4 were seized from the accused.
21. There is no material placed before the Court that MO3, the wooden log was sent for forensic lab to compare the finger prints of the accused and the finger prints of the MO3. So, the prosecution had failed to prove that the MO3 was used by the accused only.
22. When the above incriminating materials were put to the accused, he denied the same as false. He chose to examine one witness. No document is marked on the defence side. Having considered all the above, the trial Court convicted this appellant. Aggrieved over the same, the appellant is before this Court with this appeal.
23. We have heard Mr.M.Suresh Babu, leanred counsel appearing for the appellant and Mr.K.S.Duraipandian, Additional Public Prosecutor, appearing for the respondent and we have also perused the records.
24. The learned counsel for the appellant would submit that there was a quarrel which ended with a fight. But, the deceased got injured only because of accidentally knocking the floor and got a head injury just because of the small stones lying there, which caused the death.
25. The learned counsel for the appellant would vehemently deny the prosecution theory that the deceased was attacked by the accused by using a wooden log, because this was disproved by the PW10. The PW9 clearly says that he had not witnessed the confession statement of the accused and also adds that he had not witnessed the recovery of the wooden log or any other material object.
26. The prosecution had miserably failed in not recording the confession statement of the accused before the Magistrate.
27. The learned counsel for the appellant would submit that the DW1 is a third party witness who clearly states that the accused had not used the wooden log and no finger prints report were produced by the prosecution to strengthen their case.
28. Now, the question is whether the prosecution had proved by means of the evidence of the witnesses and exhibits. The occurrence was at 5.30 p.m. on 15.02.2011. The F.I.R., in this case was registered at 1.00 p.m. 16.02.2011, i.e. after about 19.00 hours of the occurrence. The Police Station is situated 6 kilometers away to the place of occurrence.
29. Subsequently, during the course of investigation, there was no Test Identification Parade conducted. In the absence of the Test Identification Parade and in the light of the fact that the occurrence had taken place for a short time, in our considered view, the identification of the accused for the 1st time in Court by the eyewitnesses cannot be believed. Thus acting on those evidences, we cannot safely hold that the accused committed the offence.
30. Now, turning to the confession given by the accused, in our considered view, it is highly unbelievable. PW9, who signed the confession statement had denied that he had not witnessed as stated. Thus, the said confession, in our considered view, is highly suspicious. If once the said confession is also rejected, we find absolutely there is no evidence against the accused, upon which, we can safely conclude that the accused had committed the offence.
31. But, the learned Additional Public Prosecutor submitted that the recovery of wooden log and the shirt from the possession of the accused, in pursuance of the confession statement made by him, would lend assurance to the case of the prosecution that the accused had committed the offence. In our considered view, since we have disbelieved the confession said to have been made by the accused to the Police Officer, PW15, as a corollary, we have to reject the recovery of the material objects also from his possession.
32. Therefore, we hold that the prosecution has failed to prove the case beyond reasonable doubts. Therefore, the accused ought to be acquitted.
33. In the result, the appeal is allowed in the following terms:-
(a) the conviction and sentence imposed on the appellant is set aside and he is acquitted of all charges;
(b) the appellant is directed to be set at liberty forthwith unless he is required to be detained in any other case;
(c) Fine amount, if any paid by the appellant shall be refunded to him;
(d) Bail bonds executed by the appellant and the sureties if any shall stand terminated.