BAIL SLIP The accused was directed to be released on bail by the order of this Court dt.12.6.2006 made in Crl.M.P.No.3109/2006 in Crl.A.No.437/06. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.06.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE K.N.BASHA Criminal Appeal No.437 of 2006 Elugundan ... Appellant vs. State, by Inspector of Police, Rayakottai Police Station, Dharmapuri District. (Cr.No.44/2002). ... Respondent Appeal against the judgment of the learned Additional Sessions Judge, Dharmapuri dated 14.3.2006 made in S.C.No.190 of 2004. For Appellant : Mr.V.K.Muthusamy, S.C. For M/s.D.Selvaraju For Respondent : Mr.N.R.Elango Additional Public Prosecutor J U D G M E N T (Delivered by P.D.DINAKARAN,J.) The sole accused in Sessions Case No.190 of 2004 appeals against the judgment dated 14.3.2006 passed by the learned Additional Sessions Judge, Dharmapuri, convicting and sentencing him to imprisonment for life for the offence of murder. 2. The prosecution laid a final report against the appellant alleging that on 11.2.2002 at about 5.30 p.m., due to prior enmity and with an intention to cause death, he stabbed one Ramesh on his neck with a broken soda bottle and the said Ramesh succumbed to https://hcservices.ecourts.gov.in/hcservices/ the injuries sustained on the way to the hospital and thereby, committed an offence punishable under Section 302 I.P.C. 3. The accused was questioned about the alleged offence charged against him and he denied his complicity. Hence, the case was committed to Court of Sessions and a charge was framed, and in order to prove the said charge, the prosecution examined 14 witnesses, marked 19 exhibits and produced 6 material objects. 4. The prosecution case, as unfolded by the oral and documentary evidence, is stated thus: (a) P.W.1 - Ramalingam, P.W.5 - Mangammal and P.W.6 - Srikanth are the father, wife and cousin of the deceased respectively. All the witnesses and the accused were residents of Pudupettai. At the relevant point of time, the deceased was working as a secretary in a co-operative milk society. It is the evidence of P.W.1 that two years prior to the occurrence, P.W.6 Srikanth fell in love with one Revathy, who is the daughter of brother-in-law of the accused and P.W.6 and Revathy eloped and got themselves married. But, the villagers got them back and separated them. The accused suspected that the deceased had a role to play in P.W.6 getting married with Revathy and hence, he developed a grudge against the deceased, due to which there were frequent quarrels between them. This is said to be the motive for the occurrence as spoken to by P.W.1. (b) On 11.2.2002 at about 5.30 p.m., P.W.1 was informed by one Elukundan that when the deceased was attending to his work near Ezhuguntur bus stop, the accused came there and picked up a quarrel, during which, the accused took a soda bottle from the nearby shop; broke it and with the broken bottle, stabbed on the neck of the deceased and the deceased fell down with bleeding injuries. On hearing the incident, P.W.1 and P.W.5, wife of the deceased, went to the scene of crime and found the deceased lying with injuries on the neck. Immediately, P.Ws.1 and 5, with the help of P.Ws.2 to 4, who were also present there, placed the injured in a tempo van of P.W.7 and took him to the hospital. But, before reaching the hospital, the injured breathed his last and hence, the body was brought back to the house. P.W.1, thereafter, proceeded to Rayakottai police station and lodged a complaint. The said complaint is marked as Ex.P.1. (c) The prosecution examined P.Ws.2 to 4 as eye witnesses, but since they did not support the case of the prosecution, they were treated hostile. It is their evidence that they heard the death of the deceased, but did not know how the deceased died. P.W.2 admitted his signature in the complaint, Ex.P.1. (d) P.W.5, wife of the deceased, deposed that she was married to the deceased sixty days prior to his death and that the deceased has never informed about the enmity between him and the accused and that https://hcservices.ecourts.gov.in/hcservices/ on hearing the incident from one Elukundan, she rushed to the scene and found her husband with injuries on the neck. She further corroborates with the evidence of P.W.1. (e) P.W.6 is the cousin of the deceased. He deposed that he fell in love with Revathy and that he eloped and married her. But, the parents of said Revathy lodged a complaint alleging that he abducted the said Revathy. He further deposed that a case was registered against him and also against the deceased alleging that the deceased abetted him to kidnap the said Revathy. Both were arrested and later released as the villagers decided to compromise the issue by convening a panchayat. According to him, he and Revathy later got married to different persons and that the deceased and accused were in cordial terms thereafter. He stated that he did not know whether there was a quarrel between the accused and the deceased thereafter. He further deposed that after two years of the said incident, on hearing that the deceased was done to death by the accused, he came to the scene and saw the deceased lying with injuries on the neck. (f) One Rajagopal, Head Constable (since dead), on receipt of Ex.P.1, registered a case in Crime No.44/2002 against the accused for the offence under Sec.302 I.P.C. He prepared printed F.I.R., Ex.P.12 and sent the same to Court and copies to superior officers. (g) P.W.14, Inspector of Police, on receipt of copy of F.I.R. at about 8.30 p.m., proceeded to the scene of occurrence, observed the same and prepared observation mahazar, Ex.P.2 and rough sketch, Ex.P.13. Inquest was conducted over the cadaver of the deceased Ramesh in the presence of witnesses and their statements were recorded. Thereafter, the body was sent to the hospital for post- mortem. (h) P.W.13 is the doctor who conducted post-mortem on the dead body of the deceased. He issued Ex.P.11, post-mortem certificate observing that the external injury noticed on the right side of neck runs down the right side of chest severing the right sub clavicle vein and it collapsed the right side lung. He opined that the deceased died of shock and haemorrhage due to injury to major vessel - right sub clavicle vein and injury to vital organ (lung) about 12 to 18 hours prior to autopsy. He has stated in his evidence that the said injury could have been caused by a broken bottle. (i) P.W.14, in continuation of investigation, examined the witnesses and recorded their statements. On coming to know about the surrender of the accused before the Magistrate's Court on 13.2.2002, he took him into police custody and examined him on 19.2.2002 in the presence of witnesses and the accused gave a confession statement voluntarily. Pursuant to the admissible portion, Ex.P.4, of the said statement, M.O.4 - broken bottle, was recovered under Ex.P.4 mahazar. He, thereafter, sent the accused to Court for judicial remand and https://hcservices.ecourts.gov.in/hcservices/ issued a requisition to send the material objects for chemical examination. He examined the official witnesses and recorded their statements. He obtained Ex.P.11, post-mortem certificate and Exs.P.17 to P.19, chemical analyst report and serologist report and examined the doctor, who conducted autopsy. After completing investigation, he laid the final report against the accused on 30.3.2002. (j) The accused was questioned under Section 313 Cr.P.C. on the incriminating evidence found against him, which he denied as false. Neither any witness was examined nor any document was marked on his side. The trial Court, on careful scrutiny of materials available and on hearing the arguments advanced on both sides, found the appellant/ accused guilty of offence of murder and accordingly, convicted and sentenced him as referred to earlier. 5. The learned counsel appearing for the appellant/accused assailing the impugned judgment made the following submissions:- (i) the alleged eye witnesses, viz. P.Ws.2 to 4 turned hostile and hence, there is no evidence as regards the occurrence proper; (ii) the evidence of P.W.1 as regards the occurrence cannot be accepted as it is hear-say in nature; (iii)the person by name Elukundan, who had actually seen the occurrence and who had informed the same to P.W.1 was not examined in Court; (iv) the motive exhibited by the prosecution is tooflimsy and improbable to believe, inasmuch as the previous incident took place two years prior to the present occurrence; (v) the implication of the accused by P.W.4 in cross- examination cannot be believed in view of his self-contradictory statements; (vi) in view of the above discrepancies, the prosecution has not proved the case against the accused beyond all reasonable doubts and hence,the appellant/accused is entitled for acquittal. 6. Per contra, learned Additional Public Prosecutor submitted that though the eye witnesses have turned hostile, the prosecution has established the motive for the accused to attack the deceased, more particularly, the malignancy shown by the accused against the deceased and hence, there is every possibility for the accused to commit the murder of the deceased and thus, the prosecution has proved the case beyond reasonable doubt. 7. We have given our anxious consideration to the submissions of both sides and perused the entire records placed before us. 8. It is an undisputed fact that the death of the deceased was homicide. The evidence of the doctor, P.W.13, who conducted autopsy and the post-mortem certificate, Ex.P.11, issued by him, depict to the fact that due to injury to right sub clavicle vein and to vital https://hcservices.ecourts.gov.in/hcservices/ organ, viz. lung, the death would have occurred and the evidence of the doctor would further prove that the said injury could have been caused by M.O.4. Therefore, it is not difficult for us to hold that the deceased Ramesh met his end by homicide. 9. The question now to be decided by us is whether the prosecution has proved its case against the appellant/ accused beyond reasonable doubt. 10. The prosecution produced eye witnesses to the occurrence by examining P.Ws.2 to 4, but, unfortunately, they did not support the prosecution and hence, they were treated hostile. Thus, the prosecution had to rely upon the the evidence of P.W.1, P.W.5 and P.W.6 as well as the motive part of the occurrence and also some portion of the admission of P.W.4 in cross, even though he was treated hostile. 11. As there is no direct evidence with regard to the occurrence, let us first analyse whether the prosecution has established the motive part of the occurrence. P.Ws.1 and 6 speak about the motive. They are relatives to the deceased, in that P.W.1 is the father and P.W.6 is the cousin. According to their evidence, two years prior to the date of occurrence, P.W.6 eloped with one Revathy, a relative of the accused and married her, which was objected to by the accused party. On the intervention of police, they were brought back to the village and in a panchayat, they were separated. It is the evidence of P.W.1 that the accused suspected that the deceased would have abetted P.W.6 to kidnap the said Revathy and hence, the accused had a grudge against the deceased. Per contra, P.W.6 has stated in his evidence that though the accused party was initially piqued at the act of P.W.6 in eloping with Revathy, in the panchayat, they were compromised and thereafter, there was no animosity between them and even P.W.6 and Revathy got married with different persons. He also pleaded ignorance of the fact that there was a quarrel between the accused and the deceased later to the said incident. The above evidence of P.Ws.1 and 6 would only go to show that though there was animosity between the accused and the deceased in the matter of P.W.6 eloping with Revathy, it ended in a compromise later. Moreover, the said incident had taken place two years prior to the date of occurrence and there is no proximity for the same to draw an inference that the accused had a grudge against the deceased. Therefore, we are of the confirmed opinion that the motive as projected by the prosecution languishes for want of proximity. 12. The next piece of evidence put forth by the prosecution is the quarrel between the accused and the deceased just prior to the occurrence, which has been brought out through the evidence of P.W.4 in cross. We have gone through the entire evidence of P.W.4. True, it is, that P.W.4 in the cross-examination, has stated that on the date of occurrence there was a quarrel between the accused and the https://hcservices.ecourts.gov.in/hcservices/ deceased with regard to the non-payment of money when demanded by the accused for the milk supplied. But, he specifically denied the suggestion that he saw the accused stabbing the deceased with a broken bottle. We are aware that even if a witness turns hostile, his entire evidence needs no rejection and a portion of the evidence of a hostile witness can be relied upon either in favour of the prosecution or in favour of the defence, of course, subject to careful scrutiny. In the case on hand, as we already observed, the motive projected by the prosecution gives a go-by to the prosecution case for want of proximity. Further, it is the specific evidence of all the witnesses that on the date of occurrence there was a demand from several persons who supplied milk to the society and even as per the evidence of P.W.4 in cross, the accused was also one among them, which ultimately ended in a brawl. Hence, we are of the view that the possibility of the deceased being stabbed by some other person for want of money cannot be ruled out and merely because the accused demanded money on the date of occurrence, it cannot be said that the deceased met his end at the hands of the accused. 13.1. The other strong circumstance that goes against the prosecution is the non-examination of a material witness, viz., Elukundan, who had actually seen the occurrence and informed the same to P.W.1 and P.W.5, on the basis of which, the complaint was lodged by P.W.1. It is trite law that if a material witness, which would unfold the genesis of the incident or an essential part of the prosecution case, is not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness which though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the Court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the Court ought to scrutinise the worth of the evidence adduced. The Court of facts must ask itself -- whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. 13.2. In the instant case, it is the specific evidence of P.W.1 and P.W.5, father and wife of the deceased, that on being informed by the said Elukundan, they rushed to the scene and saw the deceased lying with bleeding injuries on the neck and while the deceased breathed his last on the way to the hospital, they brought back the body to the house and thereafter, the complaint was lodged. The said https://hcservices.ecourts.gov.in/hcservices/ Elukundan, being an eye witness and a first informant of the occurrence, absolutely becomes a material witness and the failure on the part of the prosecution to produce him before the Court throws a serious doubt even on the veracity of the complaint lodged by P.W.1. Of course, it is not necessary for the prosecution to examine all such persons who were present at the scene of occurrence, if it thinks unnecessary in view of other overwhelming materials available. But, in the case on hand, the examination of Elukundan becomes necessary, since it is only on the basis of whose information, P.W.1 left for the scene of occurrence and after the deceased succumbed to the injuries sustained , proceeded to the police station and lodged a complaint. Therefore, we are of the confirmed view that the prosecution ought to have examined the said Elukundan in order to corroborate the averments made in the complaint lodged by P.W.1. The non-examination of the said material witness, in our considered opinion, is fatal to the prosecution case. 14. In view of the discussion made above, we cannot but hold that the prosecution has miserably failed to prove the case beyond reasonable doubt and it would be unsafe to convict the appellant/accused based on the available evidence. Therefore, we are of the opinion that the appellant is to be acquitted and accordingly, he is acquitted of the charge levelled against him. The appeal is, accordingly, allowed. The bail bonds, if any executed by him, shall stand cancelled. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. sra To 1. The Additional Sessions Judge, Dharmapuri. 2. -do- Thro' The Principal Sessions Judge, Dharmapuri. 3. The Judicial Magistrate, Palacode 4. -Do-Thro The Chief Judicial Magistrate, Dharmapuri at Krishnagiri. 5. The Chief Judicial Magistrate, Pudukkottai. https://hcservices.ecourts.gov.in/hcservices/ 6. The District Collector, Dharmapuri. 7. The Director General of Police, Chennai. 8. The Inspector of Police, Rayakottai Police Station, Dharmapuri District. 9. The Superintendent, Central Prison, Vellore. 10. The Public Prosecutor, High Court, Madras. + 1 CC To Mr.D.Selvaraju, Advocate SR NO.29525 Crl.A.No.437 of 2006 SSK(CO) SRA(08/07) https://hcservices.ecourts.gov.in/hcservices/