IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.03.2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRIMINAL APPEAL No.811 of 2009 1.Subramani 2.Palani @ Palanisamy .. Appellants/Accused 1 & 2 Vs. State Inspector of Police, Kolathur Police Station, Salem Cr.No.172/2007 .. Respondent / Complainant The criminal appeal has been preferred under Section 374(2) of Cr.P.C. against the judgment of the learned Additional District and Sessions Judge, Fast Track Court No.II, Salem in S.C.No.252 of 2007 dated 5.11.2009. For Appellants : Mr.M.G.Sankaran For Respondent : Mr.N.Balasubramanian, A.P.P. J U D G M E N T (The judgment of the Court was made by M.CHOCKALINGAM, J.) This appeal challenges the judgment of the Additional Sessions Division, Fast Track Court-II, Salem made in S.C.No.252 of 2007 whereby A1 and A2 who are the appellants herein stood charged along with four other accused and on trial, A1 and A2 were found guilty of murder and awarded life imprisonment along with a fine of Rs.5000/- each, in default, to undergo 5 months rigorous imprisonment each. While the other accused/A3 to A6 were acquitted of the charges levelled against them. 2. The short facts necessary for the disposal of this appeal can be stated as follows. (i) P.W.1 is the father and P.W.2 is the mother of the deceased Selvaraj. P.W.3 is the wife of the deceased. They were doing agricultural work. A1 and A2 are the sons of Mariappan who borrowed Rs.20,000/- from P.W.1. Due to non-payment of loan, P.W.1 filed a civil suit and got a decree and brought the agricultural property https://hcservices.ecourts.gov.in/hcservices/ measuring 4.32 acres of land for sale and also purchased the same. Pursuant to the court sale, he took delivery of the property and they were carrying agricultural operation. A1 and A2, often interfered with their possession and used to pluck the coconuts, hence, there was a quarrel. On the date of occurrence, that was, on 7.6.2007 at about 4.30 a.m., as usual, the deceased took milk for deliver. Within a short span of time, while P.W.1 was sleeping, he heard the distress cry of his son. He came out of the house and found the accused persons just running from the place of occurrence with deadly weapons. On hearing the noise, P.Ws.2 and 3 went near his son and found him dead in pool of blood. (ii) P.W.1 proceeded to P.W.8 Village Administrative Officer to whom he gave Ex.P1, report at 8.30 a.m. P.W.8 also prepared a report, Ex.P2. He took P.W.1 to the respondent police and also produced P.W.1 along his report, Ex.P2 to the police where P.W.17 Inspector of Police was present. On the strength of Ex.P1 and Ex.P2, a case came to be registered at 10.30 a.m. in Crime No.172/2007 under sections 147, 148 and 302 I.P.C. The express F.I.R. Ex.P27 was despatched to Court. (iii) P.W.17, on receipt of the copy of the F.I.R., went to the spot, made an inspection and prepared the observation mahazar Ex.P.5 and also drew a rough sketch Ex.P.28 in the presence of witnesses and panchayatdars. He conducted inquest on the dead body of the deceased Selvaraj in the presence of witnesses and panchayatdars and prepared the inquest report, Ex.P29. The dead body was subjected to post mortem. Following the requisition made, P.W.16 doctor conducted autopsy and found the following injuries. " An incised would 6 c.m x 1 c.m near right eye. (2) An incised wound 3 c.m x 5 c.m. X 2 c.m. Above right eye. (3) An incised wound 5 c.m. x 1 c.m. bone deep on centre of forehead (4) An incised wound 8 c.m. x 2 c.m. x 2 c.m. oblique on right occipital region (5) An incised wound 5 c.m. x 2 c.m. x bone deep below injury No.4 (6) An incised wound 5 c.m. x 2 c.m. x 1 . 5 c.m. below injury No.5 (&)n incised wound 4 c.m. x 2 c.m. x 2 c.m. below injury No.6 (8) A cut injury 6 c.m. x 2 c.m. x 2 c.m. on right hand ring finger bones and muscles collapsed (9) A cut injury 3 c.m. x 1 c.m. x ½ c.m. on right hand wrist (10) a cut injury 10 x 6 x 2 ½ c.m. above left knee (11) A cut injury 10 x 5 x 2 c.m right lower abdomen (12) A lacerated injury 2 x 2 c.m. on left thigh." The doctor gave opinion that the deceased would appear to have died out of shock and haemorrhage due to the injuries sustained by him. He issued the post mortem certificate Ex.P25. (iv) On 8.6.2007, one Dr.Dharmendhra gave treatment to A2 at Mohan Kumaramangalam Hospital, Salem. A2 was treated as inpatient. Ex.P.21 is the accident register copy issued by Dr.Dharmendhra. P.W.15 doctor has given evidence to that effect. https://hcservices.ecourts.gov.in/hcservices/ (v) Pending investigation, the investigating officer arrested A2 and he gave confessional statement and also produced the blood stained cloths. Thereafter, A1 was also arrested. He gave confessional statement and the admissible part of the same was marked as Ex.P9. Pursuant to the confessional statement, he produced M.O.12 aruval which was recovered under a cover of mahazar. Thereafter, the accused were sent for judicial remand. All the material objects recovered from the place of occurrence, from the dead body and from the accused pursuant to the confessional statement were all subjected to chemical analysis by the Forensic Department which brought forth Exs.P15, 16 & 17 biology reports, Ex.P18, viscera report and Exs.P.19 and 20 Serology reports. On completion of the investigation, the investigating officer filed a final report. (vi) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the prosecution examined 17 witnesses and relied on 20 exhibits and 17 material objects. On completion of evidence on the side of the prosecution, the accused were question under section 313 Cr.P.C. and they denied them as false. No defence witness was examined. The Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt insofar A1 and A2 are concerned and found them guilty under section 302 I.P.C. and found not guilty in respect of other charges and awarded the punishments as referred to above. The other accused viz., A3 to A6 were acquitted of the charges levelled against them. Hence, this appeal at this instance of the appellants/A1 and A2. 2. Advancing the arguments on behalf of the appellants, Mr.M.G.Sankaran,the learned counsel would submit in the instant case, the prosecution miserably failed to prove its case. According to the prosecution, P.W.1 is the father, P.W.2 is the mother and P.W.3 is the wife of the deceased Selvaraj. They were living together during the relevant time. On 7.6.2007 at 5.00 a.m., when P.W.1 and others were sleeping in the house, P.W.1 heard the distress cry of his son. Hence, he rushed out of the house. At that time, he saw all the accused persons/ A1 to A6, armed with aruval, were just moving from the place of occurrence. He raised alarm and all the family members went to the spot and found the deceased in pool of blood. Thus, the prosecution merely relied on the evidence of P.W.1. According to P.W.1, he has not seen the occurrence but has seen all the accused persons moving from the place of occurrence. The trial Court was not ready to believe the version of P.W.1 insofar as A3 to A6 are concerned and they were ordered to be acquitted. 3. The learned counsel would further submit that the evidence of P.W.1 was not useful to the prosecution from any angle. According to P.W.1, he was sleeping in the house and after hearing the distress cry of his son, he immediately rushed to the spot. According to P.W.2, while she was sleeping in the house, she heard the noise and woke up and she was informed that her son was https://hcservices.ecourts.gov.in/hcservices/ murdered by somebody. From the evidence of P.W.2, it is clear that P.W.1 could not have seen the occurrence at all. P.Ws. 4 and 5, who were examined as occurrence witnesses, have turned hostile. According to P.W.4, while he was going in a motor bike, he was intercepted by P.W.1 at about 6.00 a.m. and they were talking with each other. Pointing this part of the evidence, the learned counsel would add that P.W.1 could not have seen such an occurrence as spoken to by him before the court that at about 4.30 to 5.00 a.m., he saw the accused moving from the place of occurrence. Hence, the evidence of P.W.1 has got to be rejected. Insofar as P.Ws. 4 and 5 are concerned, they have turned hostile. So far as the recovery of the material objects from the accused were concerned, the chemical test was inconclusive. So far as the injuries sustained by A2 which was relied on by the prosecution before the trial court is concerned, he has categorically explained how he sustained injury at the time of occurrence. P.W.15, who was examined before the Court, has stated that A2 could have sustained injuries in the manner spoken to by him. Therefore, the injuries sustained by A2 cannot be a reason to go against him and find him guilty. Under such circumstances, the prosecution miserably failed to prove its case. Hence, the accused are entitled for acquittal, but the trial court has taken an erroneous view and convicted the accused/appellants. 4. The Court heard the Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 5. It is not in controversy that the dead body of the deceased Selvaraj, following the inquest made by the investigating officer, was subjected to post mortem. P.W.16,doctor conducted autopsy and has given her categoric opinion through the contents of the post mortem certificate and also as a witness before the trial Court that the deceased died out of homicidal violence. The fact that Selvaraj died out of homicidal violence was never disputed by the appellant at any stage of the proceedings. Hence, the trial Court is perfectly correct in recording that the deceased Selvaraj, died out of homicidal violence. 6. In order to substantiate the charges levelled against the appellants/accused, the prosecution relied on the evidence of P.Ws. 1 to 5 as eye witnesses. P.W.1 has seen the accused just moving from the place of occurrence with deadly weapon. Insofar as P.Ws.4 and 5 are concerned, they have turned hostile. Therefore, the prosecution could not use their evidence. As far as P.W.1 is concerned, the Court is of the considered opinion that his evidence was natural. According to him, his house is situate nearby the place of occurrence. He heard the distress cry of his son and rushed to the spot. At that time, he found all the accused running from the place of occurrence. It is pertinent to point out that his evidence actually corroborates with the other evidence. The occurrence has taken place within a short distance from the house of the accused. A2 actually sustained injuries which was rather grievous in nature. He was examined by P.W.15 doctor. A2 has stated to the doctor that he sustained injury at 5.00 a.m. on 7.6.2007 near his house. https://hcservices.ecourts.gov.in/hcservices/ Hence, one would except explanation from him as to how he sustained injuries, but he came with a false explanation stating that there was wordy altercation between him and two of his relatives. At that time, he fell down on a sharp edged blade and sustained such severe injuries. This explanation tendered by him has to be rejected. 7. It is quite clear that even according to the prosecution, the occurrence has taken place nearby the house of the accused and it is also seen from the sketch prepared by the investigator. When A2 was arrested, he came forward to give confessional statement voluntarily and the same was recorded, following which, he produced blood stained cloth and the same was sent for analysis and the blood group what was actually found in the clothes of the deceased and the clothes which were produced by the accused contains same blood group. Thus, the scientific evidence is in favour of the prosecution. The injuries sustained by the accused at the time of occurrence and the false explanation given by him coupled with the scientific evidence which was in favour of the prosecution, would go to show the involvement of the second accused with the crime in question. The evidence of P.W.1 was available to the prosecution to the extent that he has seen A2 among others. So far as other accused are concerned, the prosecution could not place evidence connection them with the crime. Under such circumstances, the Court is of the considered opinion that the prosecution has brought home the guilt of A2 in respect of the crime of murder. The contention putforth by the learned counsel for the appellant do not carry any merit in view of the available materials placed and recorded by the trial court pointing to the guilt of A2 in the crime. Therefore, A2 is found guilty of murder. 8. As far as A1 is concerned, what was recovered from him is the material object, aruval and the chemical test was also found to be inconclusive. The Court is of the opinion that insofar as A1 is concerned, the evidence of P.W.1 does not form any basis for conviction. A2 alone is found guilty of murder. So far as A1 is concerned, this Court is unable to see any reason to find A1 guilty of murder. 9. Inso far as the second appellant/second accused is concerned, the judgment of conviction and sentence imposed on him by the trial Court, is confirmed. Insofar as the first appellant/first accused is concerned, the judgement of conviction and sentence imposed on him by the learned Additional District and Sessions Judge, FTC-II, Salem, in S.C.No.172/2007 is set aside and the first appellant/A1 is acquitted of the charges levelled against him. The first appellant/A1 is directed to be released forthwith unless his presence is required in connection with any other case. The fine amount, if any paid by A1, is ordered to be refunded to him. https://hcservices.ecourts.gov.in/hcservices/ 10. Accordingly, the criminal appeal is partly allowed. vsi Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Additional District and Sessions Judge, Fast Track Court No.II, Salem. 2. Do Through The Principal Sessions Judge, Salem. 3. The District Collector, Salem. 4. The Director General of Police, Santhome, Madras 4. 5. The Superintendent, Central Prison, Coimbatore. (In duplicate for communication to petitioner) 6. The Inspector of Police, Kolathur Police Station, Salem 7. The Public Prosecutor, High Court, Chennai. 8. The Section Officer, Criminal Section, High Court, Madras. + 1 cc to Mr.M.G.Sankaran, Advocate SR No.15684 CRL.A.No.811 of 2009 BV(CO) SR/17.3.2010 https://hcservices.ecourts.gov.in/hcservices/