Madras High Court
Selvam vs State By The Inspector Of Police on 20 September, 2024
Author: M.S. Ramesh
Bench: M.S. Ramesh
2024:MHC:3414
Crl.A.No.83 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 22.08.2024
Pronounced on 20.09.2024
CORAM :
THE HONOURABLE Mr. JUSTICE M.S. RAMESH
AND
THE HONOURABLE Mr. JUSTICE C.KUMARAPPAN
Crl.A.No.83 of 2019
1. Selvam
2. Karthick
3. Tamilarasi
... Appellants/Accused 1 to 3
Vs.
State by The Inspector of Police,
Namagiripettai Police Station,
Namakkal District.
(Crime No.238 of 2015)
... Respondent/Complainant
PRAYER: Criminal Appeal filed under Section 374(2) of the Criminal
Procedure Code to set aside the judgment dated 11.01.2019 in S.C.No.59 of
2016 on the file of the Additional Sessions Judge, Namakkal.
For Appellants : Mr.A.Padmanabhan
For Respondent : Mr.A.Gokulakrishnan
Additional Public Prosecutor
*****
Page 1 of 17
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Crl.A.No.83 of 2019
JUDGMENT
C.KUMARAPPAN, J.
The instant Criminal Appeal has been filed by the appellants jointly
against the order of conviction passed in S.C.No.59 of 2016 dated
11.01.2019 by the learned Additional Sessions Judge, Namakkal. The first
appellant is father of the 2nd appellant and husband of 3rd appellant.
2. According to the prosecution's case, the first appellant's father
Varathappa Gounder has got 3 wives, among them, 1st appellant's mother is
the first wife, and the de facto complainant Kanthayee [PW1] is the 3rd wife.
The deceased Varathappa Gounder's 1st and 2nd wife pre deceased him.
According to the prosecution, there was a civil dispute between the deceased
Varathappa Gounder and the 1st appellant. It is the case of the prosecution
that the first appellant has nurtured grudge and enmity with his father, on
account of settling 2 acres of the property in favour of the 3 rd wife's son viz.,
Nallathambi [PW7]. Few days prior to the occurrence, there was an
altercation between the appellant's half brother Nallathambi [PW7] and
himself.
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3. It appears that on the fateful day, the first appellant, his son (A2)
and wife (A3) went to the scene of occurrence at about 5.30 p.m with
wooden logs and attacked the deceased Varathappa Gounder
indiscriminately. Further, the 2nd accused crushed the deceased's testicles, as
a resultant, the deceased died on the spot. After that, PW1- Kanthayee, and
PW8-Sellammal proceeded to the police station and gave a complaint
[Ex.P1]. The said complaint was received by the Special Sub Inspector of
Police Mr.Pichaimuthu [PW12] at about 8.30.p.m on 06.10.2015 and
registered an FIR in Crime No.238 of 2015 under Sections 294(b), 506(ii)
and 302 IPC. Thereafter, he forwarded the same to the concerned
jurisdictional Magistrate as well as to the Inspector of Police
Mr.Bharaneetharan [the investigating officer].
4. On receipt of the copy of the FIR, Mr.Bharaneetharan, the
Investigating Officer [PW17] proceeded to the scene of occurrence and
prepared the observation mahazar [Ex.P3] and rough sketch [Ex.P21] in the
presence of witnesses. On the next day, i.e., 07.10.2015 at about 12.40.p.m,
he arrested the accused, and in the presence of Mr.Gopal, Village
Administrative Officer [PW10], recorded separate confession statement for
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each of the accused, and effected discovery of fact by recovering the wooden
logs. He also recorded the statement of the scientific officer of the Forensic
Department, and other witnesses about the occurrence. In the meanwhile, he
also made arrangements to forward the recovered materials to the concerned
jurisdictional Magistrate under Form 95. After his transfer, the investigation
was taken by Mr.Balamurugan, Inspector of Police [PW18]. He recorded the
statement of the Doctor [PW11], who conducted postmortem and given the
postmortem report [Ex.P14], wherein the nature of injuries sustained by the
deceased have been stated and the same are as follows:-
“INJURIES
1) LACERATION M-1XIXMUSCLE DEEP NOTED OVER BACK OF
RIGHT LOWER ARM 2CMS ABOVE RIGHT ELBOW
2) PARALLEL CONTUSION OF SIZE M-24CMS WITH CENTRAL
PALLOR OF 2CMS NOTED VERTICALLY OVER BACK OF
RIGHT CHEST
3) CONTUSION OF SIZE M-5X3XMUSCLE DEEP NOTED OVER
BACK OF LEFT UPPER CHEST
4) CONTUSION OF SIZE M-7X3XMUSCLE DEEP NOTED OVER
BACK OF MIDDLE OF LEFT CHEST M-5CMS BELOW THE
PREVIOUS INJURY
5) CONTUSION M-10X3XMUSCLE DEEP NOTED OVER BACK
OF LOWER LEFT CHEST 6CMS BELOW THE PREVIOUS
INJURY
6) CONTUSION M-7X3XMUSCLE DEEP OVER BACK OF UPPER
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LEFT ABDOMEN 7CMS BELOW PREVIOUS INJURY.
7) SWELLING DEFORMITY NOTED OVER RIGHT LOWER
FOREARM O/D FRACTURE OF UNDERLYING BOTH BONES
WITH SURROUNDING SOFT TISSUE CONTUSION.
8) SWELLING DEFORMITY NOTED OVER LEFT LOWER ARM
O/D FRACTURE OF UNDERLYING BONE WITH
SURROUNDING SOFT TISSUE CONTUSION
9) SWELLING DEFORMITY NOTED OVER LEFT UPPER LEG O/D
FRACTURE OF UNDERLYING BOTH BONES WITH
SURROUNDING SOFT TISSUE CONTUSION.
10) SWELLING DEFORMITY NOTED OVER FRONT OF RIGHT
KNEE O/D FRACTURE PATELLA INTO TWO HALF WITH
SURROUNDING SOFT TISSUE CONTUSION.
11) MULTIPLE SUPERFICIAL SURFACE INCISIONS ALL OVER
THE BODY REVEALS
A) CONTUSION M-30X7XBONE DEEP OVER FRONT OF
RIGHT LEG
B) CONTUSION M-40X10XMUSCLE DEEP OVER BACK OF
LOWER THIGH AND RIGHT LEG
C) CONTUSION M-27X7XMUSCLE DEEP NOTED OVER BACK
OF LEFT LEG
INTERNAL EXAMINATION:
O/D HEAD :-SCALP- NORMAL, CRANIAL VAULT INTACT.,BRAIN-
EDEMATOUS, C/S CONGESTED. BASE OF SKULL-INTACT.
O/D NECK: NECK STRUCTURES-NORMAL. HYOID BONE-INTACT.
O/D THORAX- RIBS-INTACT. HEART NORMAL IN SIZE, C/S
CHAMBERS CONTAINED FLUID BLOOD. VALVES AND
CORONARIES-NORMAL. LUNGS-BOTH LUNGS C/S CONGESTED.
O/D ABDOMEN: STOMACH-CONTAINED 300GMS OF PARTLY
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DIGESTED COOKED FOOD MATERIAL WITH NO SPECIFIC ODOUR
C/S CONGESTED.. LIVER, SPLEEN AND BOTH KIDNEYS- NORMAL
IN SIZE, C/S CONGESTED.. BLADDER - EMPTY. PELVIS, SPINAL
COLUMN-INTACT
VISCERA PRESERVED AND SENT FOR CHEMICAL ANALYSIS.
OPINION: RESERVED PENDING CHEMICAL ANALYSIS
REPORT.”
The Doctor [PW11] opined that the deceased would have died out of shock
and hemorrhage of the injury sustained by him. The Investigating Officer
[PW18], after completing his investigation, has laid the charge sheet against
the first accused for the offences under Sections 294(b), 506(ii), 302, 302 r/w
34 IPC and Section 302 r/w 34 IPC.
5. In order to prove the charges, the prosecution examined as many as
18 witnesses as PW1 to PW18, relied 27 documents as Exs.P1 to P27, and
marked 4 Material Objects as M.O.1 to M.O.4. On behalf of the defence, no
witness was examined and no document was marked.
6. The Trial Court, after having considered the oral and documentary
evidence and also based upon the material objects, have arrived at a
conclusion that the accused are liable to be convicted for the offence under
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Section 302 r/w 34 of IPC and sentenced them to undergo imprisonment for
life and to pay a fine of Rs.10,000/- each in default, rigorous imprisonment of
one year each. Aggrieved with the order of the learned Sessions Judge, the
appellants preferred the instant appeal.
7. Assailing the order of the learned Trial Judge, the learned counsel
appearing for the appellants would vehemently contend that though PW1
would project herself as the occurrence witness, her evidence is highly
unreliable, and that except her singular testimony, there are no other
witnesses either to corroborate or to support the evidence of PW1. It is also
the contention of the learned counsel for the appellants that, there are
unexplained delay in registering the FIR, and forwarding the same to the
concerned jurisdictional Magistrate. It is further contended that the accident
report copy of the deceased was not marked. The learned counsel would
further contend that there is no enmity between the accused and the
deceased. On the other hand, it is the contention of the appellant that PW7
may have some role in the death of the deceased or it could have been the
accident as the deceased was tethering his cattle at the relevant point of time.
Hence, prayed to interfere with the order of Trial Court by allowing the
instant criminal appeal.
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8. Per contra, the learned Additional Public Prosecutor would
vehemently contend that the prosecution has established the case beyond
reasonable doubts through the occurrence witness PW1 and her evidence
have been corroborated through the recovery witnesses. It is the further
contention of the prosecution that by examining the sisters of the accused and
also by examining PW7-half brother, the prosecution has established the
motive of the accused against the deceased. Therefore, the findings rendered
by the Trial Court in convicting the accused is well merited and does not
require any interference by this Court.
9. We have given our anxious consideration to either side submissions.
10. The prosecution attempted to prove their case through occurrence
witnesses viz., PW1 to PW3. In the complaint [Ex.P1], PW1-Kanthayee has
narrated as to how the occurrence took place. According to her version, at
about 5.30.p.m when the deceased was tethering the cattle in the cattle shed,
she [PW1] and PW2-Sellammal were talking in front of their house. While
so, the accused came and attacked the deceased. Therefore, according to
Ex.P1-complaint, Kanthayee [PW1] and Sellammal [PW2] qua wife of Raju
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[PW9] were initially projected as the eyewitnesses. Even, in the chief
examination, PW1 reiterated the said stand.
11. During her cross examination, she has further improved her
statement that PW9-Raju namely the husband of PW2-Sellammal was also
present at the scene of occurrence. However, while examining Sellammal
[PW2], though she speaks about the death of the deceased, did not state
anything incriminating against the accused. More pertinently, she admits that
she do not know as to how deceased died. Similarly, the husband of PW2,
who was examined as PW9 as the witness for the observation mahazar
[Ex.P3], also did not state anything incriminating against the accused, except
the manner in which Mahazar-Ex.P4 was prepared. But, he admitted that
there was an enmity between the accused and himself. Therefore, though
PW1 projected 3 witnesses as the occurrence witnesses, now PW2 and PW9,
as stated supra, did not support PW1.
12. It is the case of the defence that there was an enmity among the
deceased on one side, and PW1 and her son PW7-Nallathambi on the other
side. The enmity is not in serious dispute, which was even admitted by PW1
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by stating that her son PW7 had problem with the deceased about 15 days
back, and that it was the accused who had intervened in support of his father
qua deceased. In such an intervention, the accused had sustained injury
through PW7, which necessitated 7 sutures. For ready reference, this Court
deems it appropriate to extract relevant portion of the admission of PW1:-
“xU jhd brl;oy;bkz;l; vd; fzth; vGjp itj;jhh;/ mjpy;
vd; kfDf;F KGikahf jdJ bgahpy; brhj;ij vGjp itf;ftpy;iy
vd;W brhy;yp vd; fzth; kPJ tUj;jk;/ mjdhy; vd; kfd; jd;
mg;ght[ld; rz;il nghl;lhh;/ vd; fztUf;Fk; vd; kfDf;Fk;
nkw;Twpa rk;gtj;jpw;Fk; 15 ehl;fshf tay;fhl;oy; itj;J rz;il
ele;jJ/ mg;nghJ bry;tk; Vd; mg;ghit mof;fpwha; nf!;nghl;l
Fg;ghap kfs; yl;Rkpia nfl;fhky; Vd; gpur;rid bra;fpwha; vd;W
nfl;lnghJ bry;tj;jpw;Fk; vd; kfDf;Fk; jfuhW te;J mjpy; vd;
kfd; bry;tj;ij moj;Jtpl;lhh;/ mt;thW moj;jjpy; 1tJ vjphpf;F
jiyapy; 7 ijay; nghLk; mstpw;F fhak; Vw;gl;lJ vd;gJ
rhpjhd;/ bry;tk; ,uhrpgu[ k; muR kUj;Jtkidapy; rpfpr;ir bgw;whh;/”
13. Therefore, even according to PW1, there was enmity between PW7
and deceased about 15 days back and it was the accused, who saved the
deceased from the attack of PW7. This was further corroborated by PW7-
Nallathambi himself, in his cross examination. The admission of PW7-
Nallathambi is as follows:-
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“/////////////////////ehd; bry;tj;ij moj;jJ rk;ge;jkhf uhrpgu[ k; nfhh;lo; y;
tHf;F ele;jJ/”
14. Therefore, the very motive projected by the prosecution against the
deceased is some what weak. Even PW6, who is the daughter of PW1,
admits the enmity between her deceased father and her brother PW7-
Nallathambi. In her cross examination, PW6-Manimegalai, who is the
daughter and sister of PW1 and PW7 respectively had supported the defence
case of enmity between the deceased and accused on one side and PW7 on
the other side. The relevant portion of the admission of PW6 is as under:-
“///////////////////// jk;gp vd; mg;ghtplk; tpLjiy Mtzj;jpy; vd;dplk;
ifbaGj;J th';fpf; bfhLf;ftpy;iy vd;W brhy;yp jfuhW bra;jhh;/
me;j rkaj;jpy; vd; mg;gh vd; jk;gp 2. 3 jlit moj;J
,Uf;fpwhh;/ me;j rka';fspy; mo th';fpf; bfhz;L vd; mg;gh
mtuJ jk;gp tPlo; w;F brd;W tpLthuh> vd;why; ,y;iy/ vd; jk;gp
vd; mg;ghit moj;jnghJ mjid ngha; nfl;l bry;tj;ij vd;
jk;gp moj;J bry;tk; mjdhy; M!;gj;jphpapy; rpfpr;ir bgw;whh;/”
15. It is pertinent to mention here that at the time of occurrence,
though it was projected that there were 2 other persons witnessing the
occurrence, the enmity between PW1's son [PW7], and the accused would
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impulse this Court to look at the evidence of PW1 with great caution and
circumspection.
16. There is yet another factor which also raises the apprehension in
respect of the involvement of the accused. Though it was projected that the
accused has got enmity with the deceased, from the evidences of PW1 and
PW6, what emerges is the enmity between the deceased and PW7. In fact
this accused supported his father [deceased]. Apart from that, PW4, who on
information given by PW1, when PW4 reached the scene of occurrence, PW7
was also present. Whereas, such material factum was disputed by PW7. The
relevant admission of PW4 is as follows:-
“///////////////////// ehd; tUjg;g ft[zl; h; jk;gpia Tl;o te;jnghJ fe;jhap
kw;Wk; mtuJ kfd; Mfpnahh; m';F ,Ue;jhh;fs;/ me;j ,lj;jpy; jo
fple;jjh> vd;why; ehd; tUk;nghJ ,ut[ 7/00 kzp neuk; Mfptpll; J/
tUjg;g ft[zl; iu ahh; M!;g; j;jphpfF ; Tl;or; brd;whh;fs; vd;gJ
bjhpahJ/”
17. But, more strangely, PW7 during his chief examination deposed
that he reached the scene of occurrence on 06.10.2015 at about 9 to
10.00.p.m. This aspect is also must be looked at in a suspicious manner. The
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above statement of PW4 further strengthened from the admission of PW1,
wherein she categorically admitted that PW8-Sellammal, who is the scribe for
Ex.P1 complaint was informed only by her son [PW7]. The relevant portion
of the admission of PW1 is as follows:-
“///////////////////// vdf;F bry; nghd; gz;z bjhpahJ/ v';fs;
tPlo; y; vd; kfdplk; bry;nghd; ,Uf;fpwJ/ vd; kfd; jhd; nghd;
bra;J bry;yk;khis tur;brhd;dhh;/”
18. As per the above evidence, PW1 deposed that Sellammal was
informed by her son [PW7], as she does not know as to how to make a phone
call. Whereas, during chief examination, she stated that she only made a
phone call to PW8-Sellammal. These are all would definitely cause a great
suspicion over the evidence of PW1 and also unfurl suspicion over the
involvement of PW7. Here, Except the sole doubtful testimony of PW1, there
are no witnesses either supports the prosecution case or to corroborate the
evidence of PW1.
19. However, the learned Additional Public Prosecutor would invite the
attention of this Court about the evidence of PW10, who had witnessed the
confession statement of the accused 1 to 3. Though we have our own
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reservations to believe the discovery of fact at the instance of the respective
accused, through the discovered material, no connection was established
between the occurrence and the weapons. According to the prosecution,
these weapons were discovered near the scene of occurrence, that too with the
blood stain. But it was not established whether those blood stains are human
blood and whether it has got nexus with the blood grouping of the deceased.
The chemical report was marked as Ex.P27 and the same was proved through
PW16. According to his evidence, the grouping test is inconclusive and the
blood stain found in the wooden log and the cloth pieces were disintegrated.
Hence, as stated supra, there is no proof as to the connection between the
recovered materials and the occurrence. Therefore, the mere finding in
Ex.P19 serology report, about the detection of blood in the wooden log is not
sufficient to connect the recovered materials with the occurrence without
having any finding in respect of, whether the said blood is a human blood or
not, and it's grouping.
20. It is pertinent to mention here that the Hon'ble Supreme Court in
Marwadi Kishor Parmanand and another Vs. State of Gujarat reported in
(1994) 4 SCC 549, has restated the principle that the Court may convict if the
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evidence is wholly reliable, may acquit if it is wholly unreliable, and must
look for corroboration if it is neither wholly reliable nor wholly unreliable. In
the case on hand, PW1 at the best could only be termed as neither wholly
reliable nor wholly unreliable. As found hereinabove, there are no
corroboration to PW1's evidence. Except PW1's solitary testimony, there are
no other witnesses to support the prosecution. Therefore, in such an event,
laying conviction on the basis of doubtful testimony of PW1 is against all
cannons of law.
21. However, the Trial Court, though had discussed so many legal
principles, had hardly gone into the veracity and reliability of the testimony of
PW1 and landed into a wrong conclusion. Therefore, we are of the firm
opinion that it is highly unsafe to rely on PW1's evidence, that too when there
are no strong materials to prove even the motive. More pertinently, about 15
days back, it was PW7, who had assaulted the deceased, when he was saved
by the accused. Therefore, in such a background, we are of the indubitable
view that the prosecution has miserably failed to prove the charges against
the accused.
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22. In the result, this Criminal Appeal is allowed and the conviction
and sentence passed in S.C.No.59 of 2016 by the learned Additional Sessions
Judge, Namakkal, dated 11.01.2019 is set aside. The appellants are acquitted
from all the charges and the fine amount paid by them will be directed to be
refunded. The bail bond, if any, executed by the accused shall stand
cancelled.
[M.S.R., J.] [C.K., J.]
20.09.2024
Index:Yes
Neutral Citation: Yes
Speaking order: Yes
kmi
Note: Issue order copy on 20.09.2024
To
1. The Additional Sessions Judge,
Namakkal.
2. The Inspector of Police,
Namagiripettai Police Station,
Namakkal District.
3.The Public Prosecutor,
High Court of Madras,
Chennai-104.
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M.S.RAMESH, J.
and
C.KUMARAPPAN, J.
kmi
Pre-delivery judgment made in
20.09.2024
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