Madras High Court
Dillibabu vs State Rep. By Inspector Of Police on 22 October, 2024
Author: M.S. Ramesh
Bench: M.S. Ramesh
2024:MHC:3607
Crl.A.No.285 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 25.09.2024
Pronounced on 22.10.2024
CORAM :
THE HONOURABLE Mr. JUSTICE M.S. RAMESH
AND
THE HONOURABLE Mr. JUSTICE C.KUMARAPPAN
Crl.A.No.285 of 2019
Dillibabu ... Appellant/Accused No. 1
Vs.
State rep. by Inspector of Police,
C2, Periya Palayam Police Station,
Tiruvallur District.
Crime No. 685 of 2012 ... Respondent/Complainant
PRAYER: Criminal Appeal filed under Section 374(2) of the Criminal
Procedure Code to call for the entire records connection with S.C. No. 81 of
2015 on the file of I Additional Sessions and District Judge, Tiruvallur and
set aside the conviction and sentence imposed by the I Additional Sessions
and District Judge, Tiruvallur in S.C. No. 81 of 2015 dated 28.03.2019.
For Appellant : Mr. T.S.N.Prabhakaran
For Respondent : Mr.A.Gokulakrishnan,
Additional Public Prosecutor
JUDGMENT
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C.KUMARAPPAN, J.
The instant Criminal Appeal has been filed by the first accused
against the order of conviction passed in S.C. No. 81 of 2015.
2. Originally, there were two accused, but the trial Court acquitted
the second accused. Hence, the instant criminal appeal has been filed by the
first accused.
3. The brief facts which give rise to the instant Criminal Appeal are
that the deceased, Venkatesan, is the husband of the second accused. The
second accused is a Nurse by avocation. While so, the first and second
accused developed an illicit intimacy. After knowing the illicit intimacy, the
deceased Venkatesan questioned the first accused and quarrelled with the
second accused. Since both of them felt that the deceased is the obstacle for
their illicit intimacy, they planned to do away him and hatched a
conspiracy. In furtherance thereof, on knowing the movement of deceased
in his two wheeler, on 20.12.2012 at about 7:15 p.m., the first accused
waylaid him, and assaulted him on his head with a wooden log. As a result,
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the deceased died on the spot.
4. After the occurrence, PW1, the brother of the deceased, gave a
police complaint to PW16, the Inspector of Police. On receipt of the police
complaint, he registered an FIR on 21.12.2012 at about 3:00 a.m. in Crime
No. 685 of 2012, and also made arrangements to forward the same to the
concerned jurisdictional Magistrate. After that, he proceeded to the scene of
occurrence and prepared an Observation Mahazar in the presence of
Manikandan (PW7) and Raju (PW8) and recorded their statements. He also
collected blood-stained soil, as well as sample soil, and recovered one
blood-stained wooden log, and two other plain wooden logs, and prepared a
Recovery Mahazar in the presence of the very same witnesses.
5. Thereafter, he conducted an inquest on the body of the deceased at
the Government Hospital, Tiruvallur, and made arrangements for the post-
mortem examination. He also collected the dress materials of the deceased
and made arrangements to forward them to the concerned jurisdictional
Magistrate. He then recorded statements from Velu (PW1), Selvam (PW2),
Murugan (PW3), Saravanan (PW4), Karthick (PW5), Muthu (PW6),
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Karunanithi (PW9), Prasath (PW11), Meenakshi (PW14), and other
witnesses. On 22.12.2012, he arrested both the accused between 9:00 a.m.
and 11:30 a.m. after the arrest, they voluntarily gave confession statements.
In pursuance of the confession statements, the vehicle used by the first
accused was recovered and he also identified the place of occurrence.
Thereafter, he sent an alteration report and recorded statements from the
forensic experts, and doctor who conducted the post-mortem. Eventually,
after concluding the investigation, he laid the charge sheet against both the
accused under Sections 302 read with 109 of the IPC.
6. Before the Trial Court, the prosecution examined as many as 16
witnesses as PW1 to PW16, marked 17 documents as Exs.P1 to P21, and 11
Material Objects.
7. The Trial Court, after considering the oral and documentary
evidences, found the first accused guilty of the offence under Section 302
IPC. However, acquitted the second accused from all charges.
8. Assailing the said order of conviction, the learned counsel
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appearing for the appellant/first accused, vehemently contended that the
entire case rests upon the evidence of PW9 and PW10, and that the other
witnesses have not supported the prosecution's case. It was further
contended that there was no recovery or discovery of fact through the
accused, and even the recovery of the alleged blood-stained wooden log at
the scene of occurrence does not scientifically establish the existence of
bloodstains. It is further contended by the learned counsel for the
appellant/first accused that the deceased would have sustained head injuries
due to a road accident. Moreover, there is no ocular evidence except PW9
and PW10, namely Karunanithi and Murugan, whose statements recorded
under Section 161 Cr.P.C. reached the court after a period of one year.
Therefore, the learned counsel for the appellant/first accused contends that
the conviction of the first accused is based on doubtful testimony. It was
further contended by the learned counsel for the appellant/first accused that
the trial court, without appreciating the evidence of PW9 and PW10 in it's
right perspective, believed their statements as such, and laid the conviction.
Furthermore, it is contended that as found by the trial Court the alleged
motive has not been proved. Thus prayed to allow this Criminal Appeal.
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9. Per contra, the learned Additional Public Prosecutor contended
that PW9 and PW10 had categorically spoken about the occurrence, and no
grounds were elicited to disbelieve their statements. Further, the alleged
theory of a road accident is falsified by the post-mortem report, as there
were no other injuries except the head injury. According to the prosecution,
had this been a road accident, there would have been other injuries on the
body of the deceased, which is not the case here. Therefore, he prayed for
dismissal of the instant criminal appeal.
10. We have given our anxious consideration to the submissions
made on either side.
11. Admittedly, the law was set in motion by PW1, brother of the
deceased. However, he was not an ocular witness. According to his
statement, on coming to know of the death of his brother qua Venkatesan,
he rushed to the scene of occurrence at about 11:00 p.m. Similarly,
PW2/Selvam, PW3/Murugan, PW4/Saravanan, PW5/Karthick, and
PW6/Muthu, who were projected as ocular witnesses, had not implicated
the accused, but had only stated that, they came to the scene of occurrence
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after knowing the information about the death of the deceased.
12. Though PW6 spoke about the alleged theory of illicit intimacy,
the trial Court rightly found that possibility of false implication of the
second accused could not not be ruled out, as he was constrained to
safeguard the interest of his brother Ramamurthy, who was also one of the
suspect in this case. Therefore, unless there is some evidence,
corroborating the PW6's evidence, it is highly unsafe to rely upon the sole
testimony of PW6, in the given peculiar circumstances. This is precisely
what the trial court did, by disbelieving PW6's evidence. Therefore, we
concur with the trial Court that, the alleged motive has not manifested and
established in the case in hand.
13. It is pertinent to mention here that, in a case based on ocular
evidence, the motive would take back seat, and not an essential factor for
the ultimate conclusion. However, in a case resting upon the circumstantial
evidence, the motive is also an integral and important link to the chain of
circumstances. Though this case rests upon the ocular evidences, the
absence of proof regarding motive, is a point in favor of the accused.
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14. As rightly contended by the learned counsel for the appellant/first
accused, except PW9 and PW10, no witnesses spoke about the occurrence,
though other witnesses qua PW2 to PW5 were examined as ocular
witnesses. It is an admitted fact that even PW9 and PW10, who were
alleged to be occurrence witnesses, they were not natural witnesses, but
only a chance witnesses. Both PW9 and PW10 belong to the same Village,
and were known to the deceased. But inspite of such assertion, they did not
think it fit to give a police complaint. However, the trial Court found that
the mere failure to give a police complaint cannot be a ground to disbelieve
their evidence.
15. It is true that the conduct and reaction would vary from person to
person. Though such finding of the trial Court cannot be faulted, yet their
conduct would become relevant to test their standard of reliability. To put it
differently the conduct of non giving Police complaint, would bring down
their standard of testimonies, to neither wholly reliable nor wholly
unreliable. Besides, they being chance witnesses, their evidence require
corroboration. In such peculiar circumstances, as rightly contended by the
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learned counsel for the appellant/first accused, the delay of one year in
sending the PW9 and PW10 statement recorded under Section 161 Cr.P.C.
to the Court assumes much significance.
16. If we read the judgment of the trial court, the trial court has
believed PW9 and PW10's statements as if they are wholly reliable. On
close reading of the trial court judgment, the trial court did not go into the
other attending factors, as discussed herein above, before basing reliance
upon the evidence of PW9 and PW10. Therefore, a duty is cast upon this
Court to examine whether these witnesses are of sterling quality. But we
have already arrived at a conclusion that these witnesses are “neither
wholly reliable nor wholly unreliable”. It is the specific case of the
prosecution that PW9 and PW10, while travelling in a two-wheeler, had
witnessed the occurrence by chance. While speaking about the occurrence,
PW9 would state as follows:-
“////XU Mis nghl;L moj;Jf; bfhz;oUe;jhu;/ ehd; nl nl
vd;w rj;jk; nghl;Lf; bfhz;L nghFk;nghJ. ghu;j;j clndna
cUl;Lf;fl;il Vup fiu gf;fk; nghl;Ltpl;L. ,U rf;fu thfdk;
vLj;Jf; bfhz;L Muzp gf;fk; ngha;tpl;lhu;/////”
17. But PW10/Murugan, who drove the two-wheeler, wherein PW9
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was the pillion rider, had simply stated that he witnessed a person having a
wooden log. His evidence is as follows:-
“////vd;Dila tpsf;F btspr;rj;jpy; ghu;f;Fk;nghJ xUtu;
fl;ilia itj;Jf; bfhz;LoUe;jhu;/ tpsf;F btspr;rj;jpy; ahu;
ahu; vd;W XlnghJ (sic) fl;il itj;jpUe;j egu; Xotpl;lhu;/
mt;thW ahu; vd;W ghu;ffnghJ oy;ypghg[ vd;gJ tpsf;F
btsprr; j;jpy; bjupa[k;/////”
18. Therefore, apparently, these witnesses had seen the person only
through the light emanated from their two-wheeler headlight. But, more
strangely, during cross-examination, PW10/Murugan had stated that though
a person accused travelled against their direction, he could not see him with
the aid of the light. The relevant admission is as follows:-
“////eh';fs; bry;Yk;nghJ v';fSf;F vjpuhf te;j egiu
tpsf;F btspr;rj;jpy; ghu;f;ftpy;iy/ v';fis ntfkhf fle;J
me;j egu; brd;whu;/ eh';fs; ,UtUk; v';fis tz;oia tpl;L
,w';Ftjw;fhf Kd;ng moj;Jf; bfhz;oUe;j egu; fle;J
brd;Wtpll; hu;/////”
19. Though PW10 had stated that, PW9 was his pillion rider,
strangely PW9 could not name the person, as to who drove the vehicle, and
he was also not in a position to name the owner of the said vehicle. More
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curiously, when PW9 had attempted to secure the assailant, and who knew
the deceased, was not in a position to name the person to whom he
informed about the occurrence. The relevant evidence of PW9 are as
follows:-
“////brd;w ,U rf;fu thfdj;jpy; ntbwhU egu; Xl;ote;jhu;
ehd; gpd;dhy; cl;fhu;e;J te;njd;/////
////eh';fs; brd;w ,U rf;fu thfdk; ahu; ngupy; cs;sJ
vd;gJ vdf;F bjupahJ/////
////bfhiy rk;ge;jkhf nghyPrhuplk; brhy;ytpy;iy/ ehd;
bfhiy ele;j tpguj;ij fz;oif eguplk; brhd;d egupd; bgau;
vdf;F bjupahJ/ ehd; brd;W jfty; brhd;d egu; ve;j Cupy;
,Uf;fpwhu; vd;gJ vdf;F bjupahJ/////”
20. More pertinently, no identification parade was conducted, which
factum was also admitted by PW10. Further, if we harmoniously look at
PW9 and PW10 evidence, it appears, as if the accused had waited for the
arrival of these witnesses, so as to witness the occurrence. The presence of
these witnesses suddenly on the scene when something has happened, and
their disappearance after noticing the occurrence, would also cause serious
doubts on the veracity of PW9 and PW10 evidences. All these factors were
not considered by the trial Court.
21. Further, both PW9 & PW10, though had stated that they were
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examined by the Police on the very next day, their statements recorded
under Section 161 Cr.P.C, reached the Court only after a period of one year.
It is relevant to extract the admission of the Investigating Officer [PW10],
in this regard:-
“////rhl;rpfs; 10 Kjy; 16 tiuapyhd thf;FK:y';fis tHf;F gjpt[
bra;ag;gl;L xU tUlj;jpw;F gpd;g[ jhd; rk;ge;jg;gl;l ePjpkd;wj;jpw;F
mDg;gp itj;Js;nsd; vd;why; rupjhd;/////”
The PW9 and PW10 were listed in the charge sheet as LW10 and LW11.
Therefore, the unexplained delay in sending this 161 Cr.P.C statement of
PW9 and PW10 would definitely be a factor to raise reasonable doubt in
the prosecution's case.
22. Thus, while considering all the above factors cumulatively, would
definitely cause reasonable doubt about the veracity of their evidence and
hence, this Court finds it unsafe to place reliance upon the PW9 and PW10
evidence. As rightly contended by the learned counsel for the appellant/first
accused, except the evidence of PW9 and PW10, no other witnesses spoke
about the occurrence. As we have already discussed, though the other
witnesses had been cited in the charge sheet as occurrence witnesses, they
did not support the prosecution's case.
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23. Therefore, the findings rendered by the trial Court in relying
upon PW9 and PW10, that there could be no fixed conduct between
persons may be a right explanation in general context. However, when
PW9 and PW10 are chance witnesses, and their conduct of ignorance about
the persons whom they informed about the occurrence, not going to the
Police Station after seeing such a grave occurrence, and having known the
identity of the deceased and accused, not even informing their family
members would all cast a grave doubt upon their conduct, which cannot be
put aside as insignificant, and the above instances, would definitely render
the general observation made by the trial Court, as perverse.
24. Therefore, we are of the firm view that the evidence of PW9 and
PW10 cannot be relied upon. Apart from that there are no other
corroborating evidences, and even the alleged weapon has no link with the
occurrence. In such circumstances, we find merit in the submissions made
by the learned counsel for the appellant/first accused, that the prosecution
has miserably failed to prove the charges beyond reasonable doubt.
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25. In the result, this Criminal Appeal is allowed and the judgement
dated 28.03.2019 passed by the I Additional Sessions Judge, Tiruvallur in
S.C.No.81 of 2015 is set aside and the appellant is acquitted of all charges.
Fine amount, if any, paid shall be refunded to him. Bail bond, if any
executed, shall stand cancelled.
[M.S.R., J.] [C.K., J.]
22.10.2024
Index:Yes/No
Speaking order /Non Speaking Order
Neutral Citation: Yes/No
kv
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M.S.RAMESH, J.
and
C.KUMARAPPAN, J.
kv
Judgment made in
22.10.2024
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