Bail Slip That the Appellant/Accused 3 Namely Azhagar, S/o.Chokklingam was directed to be released on bail as per Order of this Court dated 18.7.2008 and made in M.P.No.2 of 2008 in Crl.A.No.171/2008 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.3.2009 CORAM THE HONOURABLE MR. JUSTICE C.NAGAPPAN and THE HONOURABLE MR. JUSTICE T.SUDANTHIRAM Criminal Appeal Nos.293 and 171 of 2008 Criminal Appeal No.293/2008 1. Sivagami 2. Devanathan 3. Ratchagan 4. Rajendran .. Appellants/Accused Nos.1, 2, 4 and 5. Vs. State, represented by Inspector of Police, Villupuram Taluk Police Station, Villupuram. (Crime No.253/2005) .. Respondent/Complainant Criminal Appeal No.171/2008 Azhagar .. Appellant/Accused No.3 Vs. State, represented by https://hcservices.ecourts.gov.in/hcservices/ Inspector of Police, Villupuram Taluk Police Station, Villupuram. (Crime No.253/2005) .. Respondent/Complainant Prayer: Appeals against the judgment of conviction and sentence imposed on the accused in S.C.No.116 of 2005, dated 18.2.2008, on the file of the Principal Sessions Judge, Villupuram. For Appellants :: Mr.V.Gopinath in Crl.A.No.293/2008 Senior Counsel M/s.L.Mahendran, S.Suresh. For Appellant :: Mr.A.Shiv Kumar in Crl.A.No.171/2008 For Respondent :: Mr. V.R.Balasubramanian Additional Public Prosecutor COMMON JUDGMENT (Judgment of the Court was delivered by C. NAGAPPAN, J.) The appellants, four in number, in Criminal Appeal No.293/2008, were Accused Nos.1, 2, 4 and 5 in Sessions Case No.116 of 2005 on the file of Principal Sessions Judge, Villupuram. The appellant in Criminal Appeal No.171/2008, was Accused No.3 in the above Sessions Case and hereinafter, in this Judgment, they will be referred to Accused Nos.1 to 5 respectively for the sake of convenience. 2. Accused Nos.2 to 4 were convicted by the learned Principal Sessions Judge under Section 302 and 148 IPC and sentenced to undergo imprisonment for life each and to pay a fine of Rs.2,000/- each in default, to undergo simple imprisonment for three months for offence under Section 302 IPC and to undergo rigorous imprisonment for one year each for offence under Section 148 IPC; Accused Nos.1 and 5 were convicted under Section 302 IPC read with 149 IPC and 147 IPC and sentenced to undergo imprisonment for life each and to pay a fine of Rs.2,000/- each, in default, to undergo simple imprisonment for three months for the offence under Section 302 IPC read with 149 IPC and to undergo Rigorous Imprisonment for six months each for offence under Section 147 IPC; https://hcservices.ecourts.gov.in/hcservices/ Accused Nos.1 to 5 were convicted under Section 341 IPC and sentenced to pay a fine of Rs.500/- each, in default, to undergo Rigorous Imprisonment for three months and the learned Principal Sessions Judge ordered the sentences to run concurrently. 3. To prove its case, the prosecution examined P.Ws.1 to 14 and marked Exs.P1 to P17 and M.Os.1 to 10. 4. The case of the prosecution, as could be discerned from oral and documentary evidence, can be briefly summarised as follows. Accused No.2-Devanathan and Accused No.4-Ratchakan are the brothers of Accused No.1-Sivagami. Accused No.3-Azhagar is the paramour of Accused No.1-Sivagami. P.W.1-Dhanabakkiyam is the wife of deceased-Murugan. P.W.5-Kadirvel Kounder is the father of Murugan. P.W.5-Kadirvel Kounder has two wives and through the first wife, he got a son by name Thangaraj and through his second wife, he got two sons by name Murugan and Ramakrishnan and three daughters by name Shanthi, Lakshmi and Mallika. Ramakrishnan eloped Accused No.1-Sivagami and married her and they were living for about two years in Thayumanavar street, Villupuram. The marriage was not accepted by P.W.5-Kadirvel Kounder and he settled four acres of land in favour of children of P.W.1-Dhanabakkiyam by name Thilagan and Tamilkumaran and he also gave one acre of land to Ramakrishnan. Ramakrishnan was electrician by profession and Accused No.3-Azhagar was his friend and there was illicit intimacy between Accused No.3- Azhagar and Accused No.1-Sivagami and Ramakrishnan died of electric shock. Accused No.1-Sivagami used to bring Accused No.3-Azhagar to one acre of land for cultivation and that was objected by Murugan and there was quarrel between them and Murugan issued Advocate notice. On 6.3.2005, at about 9.30 pm, Murugan drove the Suzuki motorcycle and P.W.1-Dhanabakkiyam was in the pillion and they were returning from Villupuram to their native village and when they were proceeding near Mandakulam, Accused Nos.1 to 5, armed with billhooks, restrained them and Accused No.1 instigated the other accused to attack and murder Murugan and Accused No.5 caught hold Murugan and Accused No.2-Devanathan cut Murugan with billhook on the left side forehead and Accused No.4-Ratchakan cut Murugan on the eyebrow with billhook and Accused No.3-Azhagar cut Murugan on the right knee. The occurrence was witnessed by P.W.3-Sundaram and the injured- Murugan ran to nearby Ramaraj Reddiar's house and P.W.1-Dhanabakkiyam followed him and swooned there. P.W.2-Narayanan took injured-Murugan to Government Hospital, Villupuram in a car. On 6.3.2005, at 10.20 pm, Dr.Amudha examined Murugan and declared him dead and Ex.P6 is the Accident Register extract issued by her. P.W.13- https://hcservices.ecourts.gov.in/hcservices/ Sub Inspector Mohan, Villupuram Taluk Police Station, on 7.3.2005 at 9 am, received Ex.P1-complaint from P.W.1-Dhanabakkiyam and registered a case in Crime No.253/2005 under Sections 147, 148, 341 and 302 IPC and prepared Ex.P11- printed FIR and despatched the copies to higher officers and Court by Express report. P.W.14-Inspector Mathiyarasu received the Express report and took up the investigation and went to the occurrence place and prepared Ex.P2-Observation mahazar in the presence of Kumaran and another and Ex.P12 is the Rough sketch prepared by him. He also seized M.O.4-Blood stained earth, M.O.5-Ordinary earth and M.O.6-Hand grip of motorcycle under Ex.P3-mahazar in the presence of the same witnesses. He went to Villupuram Government Hospital and conducted inquest at 12 noon on the body of Murugan and examined witnesses and prepared Ex.P13-Inquest report. He gave Ex.P14- requisition to conduct post-mortem on the body of the deceased Murugan. P.W.8-Dr.Thangaraj conducted post-mortem on the body of Murugan on 7.3.2005 at about 4 pm and found the following. " R.M present in all the four limbs. Eyes partially opened. Mouth partially opened, tongue inside the mouth. EXTERNALLY: 1. A cut injury center of the forehead 6x2xbone depth black. 2. A cut injury left temple area 4x2x bone depth blackish red. 3. A cut injury right side of the forehead 5x2x bone depth. 4. A cut injury on the vertex 2 x 1/2 cm x bone depth. 5. A lacerated injury 2.5 cm above the right eyebrow 3x1x bone depth blackish red. 6. Signs of bleeding from both nostrils and ear. 7. A cut injury right elbow 1 x 1 cm x bone depth. 8. A cut injury right forearm 1x1 cm x bone depth. 9. A contusion right wrist 5x4 cm. 10. A cut injury left upper arm 1x1x1 cm blackish red. 11. A cut injury left leg lower aspect 1x1 cm x bone depth. https://hcservices.ecourts.gov.in/hcservices/ 12. A lacerated injury medial aspect of right leg 6x2 cm x bone depth. 13. A cut injury below the right knee 3x1 cm x bone depth. 14. Abdomen left side of scapular area 5x1 cm x blackish red. Internally: Fracture of frontal bone corresponding to the injury No.1. 1. 6 x 1/2 cm. 2. Fracture of frontal bone corresponding to injury No.3. 6 x 1/2 cm. 3. Blood clots 20 ml. in the surface of frontal lobe of brain. 4. Hyoid Bone intact. 5. Ribs intact. 6. Heart : Pale chambers empty. 7. Lungs greyish red in colour. 8. Stomach : Empty 9. Intestine pale and empty 10. Liver, Spleen, Kidneys Pale. 11. Bladder Empty 12.Spinal Column intact." He gave opinion that the deceased would appear to have died of Head injury and other injuries sustained 16-20 hours prior to post-mortem and issued Ex.P7-Post-mortem Certificate. P.W.11-Head Constable Sivaramakrishnan seized M.Os.7 to 10-clothes from the dead body and handed over the same to P.W.14- Inspector Mathiyarasu under Ex.P10-Special Report. P.W.14- Inspector Mathiyarasu, on 8.3.2005 at 4 pm, arrested Accused No.1- Sivagami and Accused No.3-Azhagar near Serndhanur Railway Station and enquired them in the presence of witnesses and recorded the confession statement given by Accused No.1-Sivagami. Accused No.1 took them to her house and took and produced M.Os.1 to 3- Billhooks from the backyard of her house and P.W.14-Inspector Mathiyarasu recovered the same in the presence of witnesses P.W.7- Selvaraj and P.W.9-Rasu and he gave Ex.P15-requisition to send the properties for chemical analysis and they were sent through https://hcservices.ecourts.gov.in/hcservices/ Ex.P16-letter of the Judicial Magistrate. Ex.P17 is the Chemical Analyst's report received in the Court. P.W.14-Inspector Mathiyarasu examined some more witnesses and completed the investigation and filed final report against the accused. 5. The accused were questioned under Section 313 Cr.P.C and they denied complicity. They did not adduce any evidence on their side. 6. The learned Principal Sessions Judge convicted the accused under the charges and sentenced them as stated earlier. Challenging the same, the accused have preferred the present appeals. 7. Murugan died of homicidal violence is established by the testimony of P.W.7-Dr.A.Thangaraju, who conducted post- mortem and according to him, 14 external injuries were found and among them, 10 are cut injuries, 2 are lacerated injuries and the others are contusions. On internal examination, he found fracture of frontal bone and blood clots in the surface of brain. He has further testified that the head injuries are sufficient to cause death and he has also opined that the deceased would appear to have died of head injuries in his Ex.P7-Post-mortem Certificate. Hence the medical evidence would amply show that it is a homicidal death. 8. The prosecution case is that on account of enmity, at the time of occurrence, all the accused assembled together and some of them armed with billhooks, wrongfully restrained Murugan, who was proceeding in the motorcycle and at the instigation of Accused No.1-Sivagami, Accused No.5-Rajendran caught hold of Murugan and Accused Nos.2 to 4 cut Murugan indiscriminately with billhooks, resulting in his death. P.Ws.1 to 4 and P.W.12 were examined as having witnessed the occurrence. P.Ws.2, 4 and 12 did not support the case of prosecution and they were declared as hostile. Thus we are left with the ocular testimonies of P.Ws.1 and 3 alone with regard to the occurrence. 9. Mr.V.Gopinath, learned Senior Counsel appearing for the appellants in Crl.A.No.293 of 2008/Accused Nos.1, 2, 4 and 5, submitted that P.W.1-Dhanabakkiyam could not have witnessed the occurrence and her testimony is self-contradictory and contradictory to the averments in the complaint and she is not the author of Ex.P1-complaint and there was delay in lodging the complaint and the complaint is fabricated and P.W.3-Sundaram, in the cross-examination, has given a go-by to his testimony in chief-examination and has stated that he got information about the assault made on Murugan through the phone message given by Ramaraj Reddiar to P.W.2-Narayanan and he along with P.Ws.1 to 3 went and saw injured Murugan in the house of Ramaraj Reddiar and hence no reliance can be placed on his https://hcservices.ecourts.gov.in/hcservices/ testimony and the investigation is perfunctory and tainted one and the conviction and sentence imposed on the appellants by the Trial Court are unsustainable. 10. Mr.A.Shiv Kumar, learned counsel for the appellant in Crl.A.No.171 of 2008/Accused No.3, adopted the contentions of the learned Senior Counsel and reiterated that P.Ws.1 and 3 could not have witnessed the occurrence and their testimonies do not deserve any credence and the Trial Court has failed to appreciate the evidence in proper perspective and the conclusion is erroneous. 11. Per contra, Mr.V.R.Balasubramanian, learned Additional Public Prosecutor, submitted that P.W.1-Dhanabakkiyam was travelling as a pillion rider in the motorcycle driven by her husband Murugan and she had witnessed the occurrence and P.W.3-Sundaram happened to witness the occurrence while returning from his land and his testimony corroborates the testimony of P.W.1-Dhanabakkiyam and the Trial Court has properly appreciated the evidence and the delay in lodging the complaint has been explained by the prosecution and the conviction and sentence passed by the Trial Court are sustainable. 12. P.Ws.1 and 3, in their chief-examination, have stated that at the time of occurrence, the accused armed with billhooks, wrongfully restrained Murugan who was coming on his motorcycle and Accused No.1 instigated the other accused to attack and murder Murugan and Accused No.5 caught hold Murugan and Accused No.2- Devanathan cut Murugan with billhook on the left side forehead and Accused No.4-Ratchakan cut Murugan on the eyebrow with billhook and Accused No.3-Azhagar cut Murugan on the right knee and the accused ran away and the injured-Murugan went to nearby Ramaraj Reddiar's house and P.W.2-Narayanan took the injured-Murugan to Villupuram Government Hospital in a car. Having said so in the chief-examination, P.W.3-Sundaram, in his cross-examination, has stated that Accused No.4-Ratchakan and Accused No.5-Rajendran came to the place in a two-wheeler and other three accused were found sitting near Mandaivai pond and he returned to his home and thereafter Ramaraj Reddiar telephoned to P.W.2-Narayanan's house and informed him that Murugan was attacked by unknown persons and on hearing the same, he along with P.W.1-Dhanabakkiyam and P.W.2-Narayanan went and saw injured-Murugan in the house of Ramaraj Reddiar and the injured Murugan was taken to Villupuram Government Hospital in a car. 13. P.W.3-Sundaram is a chance witness and no doubt, he was not treated as hostile, but still, his testimony has no probative value. As already seen, in the chief-examination, P.W.3-Sundaram claimed to have witnessed the entire occurrence, but in the cross-examination, he has denied the same and has stated that he only heard about the occurrence. In short, the testimony of P.W.3-Sundaram is liable https://hcservices.ecourts.gov.in/hcservices/ to be rejected as not trustworthy. 14. The remaining is the sole testimony of P.W.1-Dhanabakkiyam, wife of deceased Murugan. She claimed to have returned to the native village along with her husband Murugan in the motorcycle when the accused waylaid them and witnessed the attack made on Murugan by the accused. In her oral testimony as P.W.1, she has testified that her husband Murugan, who got injured in the attack made by the accused, ran to nearby Ramaraj Reddiar's house and she followed him and she swooned in the house of Ramaraj Reddiar and P.W.2-Narayanan took the injured Murugan to Villupuram Government Hospital and she was taken to her house and after regaining consciousness, the next day morning she lodged Ex.P1-complaint with her signature in Villupuram Police Station. In the averments in Ex.P1-complaint, she has stated that after the attack made by the accused on her husband Murugan, the injured Murugan ran to nearby Ramaraj Reddiar's house and she followed him and she and P.W.2- Narayanan took Murugan to Villupuram Government Hospital at 10.20 pm on the same night and the doctor declared him dead and out of shock, she returned to her house and fell unconscious and on the next day morning, she lodged the complaint. There is a vital contradiction as to whether P.W.1-Dhanabakkiyam accompanied injured-Murugan to the hospital after the occurrence. According to P.W.1-Dhanabakkiyam, the clothes owned by her at the time of occurrence were stained with blood of her injured husband and with the same clothes, she went to the hospital and Police Station and she handed over the clothes also. P.W.13-Sub Inspector Mohan, who received the Ex.P1- complaint, has stated in the cross-examination that the clothes of P.W.1-Dhanabakkiyam were not stained with blood when she handed over the complaint and the Investigation Officer P.W.14-Inspector Mathiyarasu has stated that P.W.1-Dhanabakkiyam did not hand over any blood-stained clothes of her during investigation. The blood-stained clothes of P.W.1-Dhanabakkiyam, if any, may probablise her presence along with her husband at the time of occurrence and that is absent. Moreover the testimony of P.W.3- Sundaram that they got information about the attack made on Murugan through telephone message and he along with P.Ws.1 and 2 went to Ramaraj Reddiar's house and saw injured Murugan there, destroys the testimony of P.W.1-Dhanabakkiyam of having witnessed the occurrence. 15. The occurrence took place at about 9.30 pm on 6.3.2005 and Ex.P1-complaint was lodged by P.W.1-Dhanabakkiyam at about 9 am on 7.3.2005 and there is a delay of about 11 hours. Though First Information Report was registered at about 9 am, it reached the Court only at about 3 pm. The only reason given for the delay in lodging Ex.P1-complaint is that after the occurrence, P.W.1-Dhanabakkiyam returned home and fell unconscious and after recovery from the same, she lodged the complaint on the next day https://hcservices.ecourts.gov.in/hcservices/ morning. The explanation cannot be accepted on the face of it. If really, P.W.1-Dhanabakkiyam, the wife of injured Murugan, had witnessed the occurrence and taken her injured husband to the hospital, she would not have ventured to return home and wait till the next day to lodge the complaint. Her conduct is unnatural and belies her version. 16. In this context, it is relevant to note that P.W.2- Narayanan took injured-Murugan to Villupuram Government Hospital and informed Dr.Amudha that Murugan was attacked by unknown persons and the same was recorded in Ex.P6-Accident Register. If really, P.W.1-Dhanabakkiyam accompanied injured Murugan and P.W.2-Narayanan to the hospital, she would have informed the doctor about the attack made by the accused on her husband during the occurrence and would have lodged the complaint immediately in the Police out- post attached to the hospital. 17. Though Ex.P1-complaint contained the signature of P.W.1- Dhanabakkiyam, she does not appear to be the author of the same. In the earlier portion of the cross-examination, P.W.1-Dhanabakkiyam has stated that the complaint was written by the villagers and they asked her to put the signature and she had signed the same without knowing the contents. In the later part of the cross- examination, P.W.1-Dhanabakkiyam has further stated that even before her lodging the complaint, the Police on suspicion, kept Jayalakshmi, the wife of Accused No.2-Devanathan and Sasikala, the wife of Accused No.4-Ratchakan and Accused No.1-Sivagami and Accused No.3-Azhagar were also kept in Villupuram Police Station and in their presence, at the instructions of the Police, Ex.P1-complaint was prepared. This shows that Ex.P1-complaint has been created after deliberation, roping in all the accused and it is a fabricated one. The law is well settled that the entire fabric of the prosecution case would collapse if the First Information Report is held to be fabricated or brought into existence long after the occurrence. (MARUDANAL AUGUSTI v. STATE OF KERALA, 1980 Supreme Court Cases (Cri) 985). 18. According to P.W.14-Inspector Mathiyarasu, Accused No.1- Sivagami was arrested at 4 pm on 8.3.2005 in Sernathur Railway Station and she gave a confession in the presence of P.W.7-Selvaraj and P.W.9-Rasu and she took them to her house and she took M.Os.1 to 3-Billhooks from the backyard of her house and produced the same and he recovered the same under Ex.P4-mahazar in the presence of witnesses. The witnesses viz., P.W.7-Selvaraj and P.W.9-Rasu did not support the case of the prosecution and they were declared as hostile. In fact, the admissible portion of the confession was not marked and it is not proved that Accused No.1-Sivagami gave the information. Moreover, P.W.1-Dhanabakkiyam, in her https://hcservices.ecourts.gov.in/hcservices/ cross-examination, has stated that she saw Accused No.1-Sivagami in the Police Station even before her lodging the complaint. If that be so, there is no question of any arrest of Accused No.1-Sivagami being made during investigation and the prosecution case is liable to be rejected. 19. The contention of the learned Senior Counsel appearing for the appellants that the investigation is perfunctory and tainted one, cannot be brushed aside. The prosecution case is that Murugan was brutally attacked by the accused during the occurrence and he ran to nearby Ramaraj Reddiar's house and after some time, he was taken to Villupuram Government Hospital by P.W.2-Narayanan. P.W.3- Sundaram has stated that Ramaraj Reddiar telephoned to P.W.2- Narayanan's house and informed him that Murugan was attacked by unknown persons and on hearing the same, he along with P.Ws.1 and 2 met the injured Murugan in the house of Ramaraj Reddiar and took him to hospital. Immediately after the occurrence, the injured Murugan met Ramaraj Reddiar and if he has been examined, he would have thrown much light upon the occurrence and that has not been done. During investigation, Ramaraj Reddiar was not examined and no steps appeared to have been taken to examine him in the case. The failure to examine him affects the prosecution case. 20. We are of the considered opinion that the prosecution has not proved the guilt of the Accused Nos.1 to 5 beyond reasonable doubt and they are entitled for the benefit of doubt. 21. In the result, both the Criminal Appeals are allowed and the conviction and sentence imposed on the appellants/Accused Nos.1 to 5 are set aside and the appellants/Accused Nos.1 to 5 are acquitted of all the charges and the fine amount paid, is to be refunded to them. The Bail bonds executed by Accused No.3-Azhagar shall stand cancelled. The appellants/Accused Nos.1, 2, 4 and 5 are directed to be released forthwith if their custody is not required in any other case. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vks To https://hcservices.ecourts.gov.in/hcservices/ 1. The Principal Sessions Judge, Villupuram. 2. The Inspector of Police, Villupuram Taluk Police Station, Villupuram (Cr.No.253/2005). 3.The Judicial Magistrate No.I, Villupuram. 4.-do- through the Chief Judicial Magistrate, Villupuram. 5.The Superintendent, Central Prison, Cuddalore. 6. The Public Prosecutor, High Court, Madras. 7.The District Collector, Villupuram 8.The Director General of Police, Chennai. 9. The Superintendent Special Prison for Women at Vellore. Copy to The Section Officer, Criminal Section, High Court, Madras 104. 1 CC To Mr.A.Shivkumar, Advocate, SR NO.9949 1 CC To Mr.L.Mahendran, Advocate, SR NO.10260 Common Judgment in Crl.A.Nos.293 and 171 of 2008. nm(co) pmk/8.4.2009. https://hcservices.ecourts.gov.in/hcservices/