Madras High Court
S.Annathai vs Marimuthu @ Kattamari on 2 April, 2025
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.A(MD)No.401 of of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 19.03.2025
Pronounced on : 02.04.2025
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
AND
THE HONOURABLE MS.JUSTICE R.POORNIMA
Crl.A(MD)No.401 of 2021
S.Annathai .. Appellant/De-facto
Complainant
Vs.
1.Marimuthu @ Kattamari
2.Madasamy @ NCC Madasamy
3.Amirtharaj
4.Kumar
5.Subramani @ Kumar
6.Mookkan @ Raja
7.Ranjithkumar
8.Sudalaimuthu @ Muthu
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9.Maharajan @ Kullamani ...Respondents 1 to 9/
Accused No.2,3 and 5 to 11
10.State of Tamil Nadu
Rep by the Inspector of Police,
Thalayuthu Police Station,
Thalayuthu
Tirunelveli District.
(Crime No.297 of 2015) ... 10th Respondent/
Complainant
PRAYER: Criminal Appeal is filed under Section 372 of the Code of
Criminal Procedure, against the judgment dated 05.04.2021 in S.C.No.735 of
2016 on the file of the III Additional Sessions Court, Tirunelveli.
For Appellant : Mr.N.Pragalathan
For R1, 3 to 5,
7 to 9 : Mr.V.Kathirvelu, Senior Counsel
for Mr.K.Prabhu
For R2 : Mr.D.Shanmugaraja Sethupathi
For R6 : Mr.G.Karuppasamy Pandian,
for Mr.P.Senthilkumar
For R10 :Mr.E.Antony Sahaya Prabhakar
Additional Public Prosecutor
JUDGMENT
Dr.G.JAYACHANDRAN, J.
and
R.POORNIMA, J.
The Criminal Appeal under Section 372 of Cr.P.C., is filed by one
Annathai, W/o Swaminathan, the de-facto complainant, being aggrieved by
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the judgement of acquittal rendered by the III Additional Sessions Judge at
Tirunelveli, in S.C.No:735 of 2016, dated 05-04-2021.
2.The case of the prosecution is that due to personal enmity between
two groups in the Dhandhanuthu Village, Tirunelveli District, Swaminathan,
the husband of the de-facto complainant was done to death by the members
of the other group. The de facto complainant set the law into motion through
her complaint/Ex.P-1. The said complaint dated 25.09.2019 received at
17:30 hours registered as Cr.No.297 of 2015 under sections 147, 148, 120 B
and 302IPC by Thalaiyuthu Police Station.
3.The sum and substance of the complaint is that, the husband of the
de-facto complainant viz., Swaminathan was supervising about 100 acres of
farm land owned by Sahib Meeran in that village. Out of which, in 25 acres
he had fenced and rearing cattles. The deceased under his leadership
conducted festivals of Mariamman Temple, Kaliamman Temple and Sudali
Temple in the year 2014. At that time, he did not collect contribution from
the members of the group led by NCC Maadaaamy, son of Subbaiah and
Katta Mari @ Marimuthu, son of Chelliah.
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4.Two months before the occurrence, a complaint to the Police was
lodged by the poojari of Mariamman Temple, viz., Thangavelu regarding the
theft of Temple hundi by Kallathiyan and Mani. The respondent Police
registered the complaint against them and the same was under investigation.
The deceased was assisting the complainant Thangavelu in this connection.
Therefore, the said Kallathiyan and his associates Marimuthu, Madasamy,
Komban @ Balasubramaniam, Amirtharaj, Kumar and Subramaniam and
others had a grudge against Swaminathan. The complainant-P.W.1 when she
heard that the associates of Kallthiyan had conspired to murder her husband,
she warned him to be careful.
5.On 25.09.2015 at about 1:30 PM, the said Swaminathan went to the
farm to milking. Since he did not return home, his wife/the complainant got
panic, so at about 3.00 p.m., she went to the farm along with one Pappa wife
of her husband’s brother in search of Swaminathan. Near the farm, they saw
Komban @ Balasubramaniam, Kallathiyan, his brother Subramani, Kumar
and Amirtaraj were running haphazard towards the Eastern direction.
Amritaraj, Kallathiyan and Komban @ Balasubramaniam were carrying
aruval with them. On seeing them running, P.W.1 suspected something
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cynical about the visit of these persons to her field. She got panic and started
calling her husband. They were not able to find him in the field. His cell
phone was switched off. They came back to village crying P.W.1 informed it
her son-in-law Maharaja, Sankaraammal, wife of murugan, Senthil Ganesh,
Son of Isakki Muthu and the Ward Councillor Essakimalli. Gathering the
villagers she again went to the field in search of Swaminathan. At about 5.00
p.m, in the Sahib Meeran land on the South-west corner found Swaminathan
dead with cut injuries on his neck head partially severed and cut injuries on
his head.
6.Thereafter, P.W.1(wife of the deceased Swaminathan) along with her
son-in-law Anandaraj went to the police station and gave the complaint for
taking necessary action. After registering the FIR at 17.30 hours, in Cr.No:
297 of 2016, the investigation was taken up by Jeen Kumar, the Inspector of
police, Thalaiyuthu P.S/(PW-23). The Investigating Officer went to the spot
at 18:10 hours started examining the witnesses, prepared rough sketch and
observation mahazar. Then conducted inquest in the presence of
Panchayatars between 18:30 hrs to 20.00 hrs. After completion of inquest,
removed the body and sent it for post-mortem through constable Utamraj
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(PW-17), to the Tirunelveli Government Medical College Hospital. The soil
with blood stain and without the stain collected from the scene of crime in
the presence of witnesses. Later, it was sent for chemical analysis. The next
day, arrested Kallathiyan(A-1) and Amirtaraj(A-5) in the presence of
witnesses and recorded their statement. Based on the confession given by
Kallathiyan, aruval (M.O 3) was recovered concealed in a thorn bush near
Rajaveli Puram, Villakoil. On the same day, at about 15:30 hours, arrested
Maharajan (A-11), Marimuthu (A-2) and Kumar (A-6).
7.The blood stained clothes of the deceased was collected from the
mortuary by Uthamraj Police Constable. They were sent to the forensic
laboratory for analysis. After completion of investigation and arrest of the
suspected accused, final report was laid against 11 persons. The learned
Judicial Magistrate, after serving the copies of documents and the final
report to the accused persons, committed the case of the court of Session for
trial by Court of Sessions. The case was made over to the III Additional
Sessions Judge, Tirunelveli who framed charges against the accused persons
as under:-
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1st Charge A1 to A11 Criminal Conspiracy to murder Swamy
@ Swaminathan, offence under
Sections 120(b) r/w 302 IPC.
2nd Charge A2 to A7 & A11 Rioting. Offence under Section 147
IPC
3rd Charge A1 & A8 to A10 Rioting armed with a deadly weapon.
Offence under Section 148 IPC
4th Charge A1 to A11 Wrongfully restraining Swamy @
Swaminathan, offence under Section
341 IPC
5th Charge A1 to A11 Abused with filthy language, offence
under Section 293(b) IPC
6th Charge A4 & A5 Wrongfully confining the deceased
Swamy @ Swaminathan. Offence
under Section 342 IPC
7th Charge A1,A8,A9 & A10 Murdered Swamy @ Swaminathan,
offence under Section 302 IPC
8th Charge A2 to A7 & A11 Murdered Swamy @ Swaminathan
along with other persons, offence under
Section 302 r/w 149 IPC.
8.To prove the charges, the prosecution had examined 23 witnesses,
marked 37 exhibits and nine material objects. On the side of the defence, no
witnesses examined and no documents marked.
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9.After questioning the accused persons about the incriminating
evidence against them under Section 313(1) of CrPC and on appreciation of
the evidence, the trial Court acquitted the accused from all the charges, after
recording the death of A-1 and A-4 pending trial.
10.The order of acquittal is under challenge in this Appeal preferred
by the wife of the deceased who is the de facto complainant.
11.According to the final report, the crime was committed pursuant to
the conspiracy hatched by Kallathiyan(A-1) and his associates in the meeting
held on 22.09.2015 at about 19.00 hours at Dhathanuthu Bus stop. The crime
was executed on 25.09.2015 at about 2:30 PM. The witnesses to prove the
charge of conspiracy turned hostile and found lack of credibility.
12.In the complaint(Ex P-1), it is stated that PW-1 saw five persons
( A-1, A-4, A-5, A-6 and A-7) running hurriedly from her farm land. Out of
five, three ( A-1, A-3 and A-5) were carrying stickles and the remaining two
persons (A-6 and A-7) were carrying nothing in their hands. However,
before the Court, PW-1 had deposed that, she and Pappa(not examined) saw
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A-1, A-3, A-4 , A-5 , A-6 and A-7 all were carrying stickles. In the
complaint, she had mentioned about her information about the conspiracy
hatched to kill her husband, but she had not mentioned the source of that
information in the complaint. The witnesses, who were supposed to speak
about the conspiracy turned hostile. Therefore, the trial Court has held that
PW-1 is not a reliable witness and her testimony lacks corroboration.
13.Whereas, the learned counsel for the appellant/de-facto
complainant argued that, PW-1 saw the accused persons running with
weapon near the scene of crime. Her husband was found dead with several
injuries over his vitals. The motive been proved through the earlier
complaint against the accused persons regarding theft of temple money. The
enmity in connection with organizing the temple festival also spoken by the
witnesses. The accused were arrested and based on their confession, the
weapon and clothes were recovered from the place which was known to
them exclusive. While so, in spite of unassailable incriminating evidence, the
trial Court had acquitted all the accused doubting the case of the prosecution
pointing out minor contradictions, which are trivial in nature,
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14.The Leaned Counsel for the appellant submitted that the occurrence
took place inside the farm land near the road on the North West direction
leading to Thalaiyuthu village. Ex.P.35 shows the scene of occurrence. No
doubt only one pathway leading to Thalaiyuthu village is shown in the
sketch-Ex.P-35, however P.W.23, who visited the scene and prepared the
sketch, has categorically said that though the land been fenced, the persons
can exit through different points, since there were several gaps in the fence.
The place of crime was a vast area of land measuring about hundred acres
which belongs to P.W.10-Sahib Meeran. The trial Court has disbelieved the
evidence of P.W-3, who saw the occurrence and the evidence of P.W-1, who
saw the accused persons running from the field carrying weapons after
committing the crime.
15.The learned counsel for the appellant submitted that the trial Court
ought not to have disbelieved P.W.3 on the ground his conduct is un-natural
because, he claims that he saw PW-1 and Pappa coming towards the farm
land, but he did not inform them about the occurrence to them, but ran
towards the village to inform the villagers. This omission taken as a serious
lapse on the part of the prosecution witnesses to suspect their presence. The
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trial Court failed to visualise that P.W.3 was running out of fear on seeing
the occurrence. P.W.1 was moving towards the scene of occurrence without
knowing what has happened to her husband. In the said circumstances,
whether P.W-3 noticed P.W.1 and Pappa or not, is not clean. If noticed
whether his omission to caution P.W.1 can also be the behavior of a person
in the given circumstances when either of the behaviour is possible and
exhibiting one among them is not certainly a unnatural behavior as termed by
the trial Court.
16.The non-examination of Pappa shown as LW-6 cannot be a reason
to acquit the accused. It is settled principle of law, conviction can be given
based on the sole witness evidence if the evidence is cogent and wholly
reliable. Evidence has to be weighed by it quality and not by quantity. While
appreciating the evidence of witnesses, the trial Court had heavily harped on
non-examination of listed witness and the hostility of the prosecution
witness. It failed to take into consideration that the murder of Swaminathan
was the sequel of the criminal complaint in Cr.No:234 of 2015 dated
25.07.2015 registered against A-1 and his associate Mani. While so, it is
difficult for any witness to survive peacefully in the village, after giving
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evidence against these powerful group.
17.The learned counsel for the appellant also took exception for the
observation of the trial Court that being a circumstantial evidence, the
prosecution failed to prove the chain of circumstances with cogent evidence.
According to the counsel for the appellant, it is not a case of circumstantial
evidence. For the occurrence, PW-3 is the eye witness. He in his testimony
had identified the accused persons and their overt act. While so, the trial
Court had ignored the evidence of PW-3 in toto, which is perverse.
18.According to the Learned Counsel for the appellant, the link in the
chain without break is proved by the prosecution through Ex.P-24 the FIR in
Cr.No:234 of 16 dated 25.07.2016 against/A-1 and one Mani, which is one
of the motive to murder Swaminathan. PW-3 had deposed cogently about the
presence of A-1, A-4, A-5, A-7, A-8, A-10 and their respective overt act in
causing injuries to Swaminathan. PW-1 had deposed that, when she came in
search of her husband, she saw A-1, A-4, A-5, A-6 and A-7 were running
towards Eastern direction near the farm land. Omission to examine Pappa,
who accompanied PW-1 and omission ot examine Moorthy, who
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accompanied PW-3 are noway fatal to the prosecution case in view of
impeccable evidence of PW-3 and PW-1. The minor contradictions noted by
the trial Court are insignificant as against the cogent evidence of these two
witnesses.
19.It is contended by the appellant counsel that the evidence of PW-3,
that the assailants split into two groups and ran in different direction is
disbelieved by the trial Court based on the rough sketch-Ex.P-35, which
shows only one pathway towards the village. The trial Court failed to
consider the live thorn fencing not a strong concrete structure difficult to
breach. Further, the Investigating Officer, who visited the spot and prepared
the sketch, had clearly explained that from the scene of occurrence one can
exit from different direction through the gaps in the fence.
20.The incident has taken place after Swaminathan left his house at
1:30 PM and before 3.00 PM. The incident was reported to the police by
5:30 PM and police has reached the spot by 6:30 PM. The sun-burn marks on
the body of Swaminathan been explained by the post-mortem Doctor as it
could have happened if the body is exposed to sun heat for more than 2
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hours. The trial Court, for the sake of disbelieving the prosecution case about
the possible time of occurrence, had opined that no person would have
allowed the body to get exposed to sun after noticing it. Hence, the time of
occurrence must be prior to the time what the prosecution has projected. This
reasoning on presumption is also perverse.
21.The counsel for the appellant submitted that three main reasons on
which the accused were acquitted or all very trivial in nature and contrary to
the evidence. Those contradictions no way impeaches the credibility of the
ocular evidence of PW1 and PW-3. Therefore, prayed for interference since
the view of the trial Court is not a possible view.
22.Per contr, the Learned Senior Counsel appearing for the
respondents submit that the case of the prosecution is without any basis even
to frame charges against the accused persons. He submitted that, according
to the appellant, PW-1 and PW-3 are the witness to prove the case of
prosecution. On examining the credibility of PW-1, her complaint Ex.P-1 say
about conspiracy, but does not disclose the source of information. She says
she along with Pappa saw five of the accused persons were running from the
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scene of occurrence. However for reasons best known the other witness
Pappa though shown as a listed witness in the final report not examined by
the prosecution to corroborate the version of PW-1. In her complaint, PW1
had also named few more persons, who went along with her in search of her
husband. Even those villagers were not examined as witnesses. This, on the
face, renders the evidence of PW1 unreliable. The wealth of details in the
complainant about the name of the suspects along with their father's name
but not mentioning the person, who informed about the conspiracy and the
participants in the conspiracy, embellishment about her interaction with
PW-3 and Moorthy, while she went in search of her husband are found in her
evidence to disregard it for want of credibility.
23.In the complaint, as well in her testimony, PW-1 had stated that her
husband went to the farm at about 1:30 PM for milking. The rough sketch
marked as Ex.P.35 there is no evidence of cattle shed or cattle in the field.
No utensils or material to fortify the statement of PW-1 that her husband
went to the field for milking. PW-2 and PW-4 are not witnesses of the
occurrence. PW-3 had deposed that the occurrence took place in the farm
land of the deceased. He saw PW-1 and his sister Papa coming in search of
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Saminathan. If this version is to be believed as true, it is natural that he
would have informed the wife of the deceased about the incident. However
PW-1 says that PW-3 did not inform her about the incident. This goes
against the human nature, hence, the trial Court had disbelieved the evidence
of PW-1 and PW-3.
24.PW-4 is the witness for Observation Mahazar and the sketch. He
had deposed that he live 20 km away from the Thalaiyuthu village. He came
to know about the murder of Swaminathn at about 5 PM, who is the maternal
uncle of his mother. He went to the spot to see him. At the request of the
police, he put his signature in one document at 6.40 pm and another
document at 8.30 pm. At that time, PW-1 was in her house. Therefore, the
evidence of PW1 that she was presnet at the scene of occurrence when police
conducted inquest is demolished by the evidence of PW-4. If we to believe
PW-1, the evidence of PW4 become unbelievable.
25.The learned counsel for the respondents/accused further submits
that PW6-Gandhi is a person residing in Coimbatore and according to the
prosecution, he identified A-1 and A-5 as the person suspected in the crime.
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Though he is not a resident of the village or person, nor saw the assailants
earlier, had asked by the Investigating Officer to identify them. PW-3 the eye
witness or PW-1 or Papa not called by the police to identify the assailants,
but a stranger, who is not even in the village at the time of occurrence called
upon to identify the assailants.
26.All PW5, PW7, PW8 and PW9, who were witnesses for confession
and recovery turned hostile. They did not support the case of the prosecution.
Therefore, the recovery of weapons based on the confession of the accused
persons to the police stands not proved. Further, in the inquest report, in the
column, the person, who last saw the deceased alive, it is mentioned as PW-1
at 1.30 pm. Whereas, the last person, who saw Swaminathan alive and who
saw him hacked is hacking PW-3 at about 2.30 pm. PW-3 had deposed that
after police arrived to the spot, he went to the spot and saw the police
preparing inquest. He told the Investigating Officer about the incident that he
witnessed. Thus, the prosecution version about the presence of PW-3 at the
time of occurrence remains doubtful.
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27.The trial Court, after considering the grave material contradictions,
inconsistency and embellishments in the prosecution case, had acquitted the
accused persons for want of proof beyond doubt. Therefore, the learned
counsel submitted that the trial court finding need not be interfered.
28.The trite principle of law for appreciation of evidence and
classification of witness is always been wholly reliable witness and wholly
unreliable witness; and partially reliable and partially unreliable witness. It is
also the quality of the evidence to be weighed and not the quantity.
Therefore, Courts have held time and again, that even the evidence of a sole
witness is sufficient if it is inspires confidence and fall under the category of
wholly reliable.
29.With the above litmus test, the evidence of P.W.3, who according
to the prosecution witness is the eye witness, the evidence has to be
examined. Before adverting this scrutiny of the testimony, it is also necessary
to bear in mind the reliability of the witness is based on corroboration and
the absence of contradictions. Now, reverting back to the testimony of P.W.
3, this witness is the resident of the village and know the deceased as well as
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the accused personally. He had spoken about the dispute between the group
led by deceased Swaminathan and the group lead by Madasamy, Marimuthu
and others. He had also spoken about the peace meet conducted by the
Revenue Officials and completion of the temple festival three years ago,
after the peace meet. He had spoken about the complaint given by Poosari
Thangavelu, on 22.07.2025 regarding the theft of temple Hundi, in which,
Kallathiyan A1 and one Mani were the named accused. He had deposed that
on 25.09.2015 at about 02.30 p.m., he along with his son-in-law Moorthy
went to the farm of Moorthy which is nearby the farm of Swaminathan. It is
to be placed on record that the prosecution has not examined the said
Moorthy who would have been best witness to corroborate the evidence of
P.W.3 regarding the occurrence.
30.Thus, the evidence of P.W.3 lack corroboration. That apart, it also
suffers contradictions. When his testimony is that he and his son-in-law on
seeing the occurrence fearing threat to their life returned to their house and
on there way, saw his sister Papa and P.W.1 Annathai,(wife of
Swaminathan), proceeding to the farm of Swaminathan. He, after informing
the incident of the villagers on hearing the police has arrived went back to
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the secene of occurrence. He was in the secene of occurrence at 05.30 p.m.
According to his testimony, the police had asked the public if anybody seen
the occurrence, he and his son-in-law informed the Inspector of police that
they saw the occurrence, the Inspector recorded the same. Whereas, contrary
to this evidence, P.W.1-Annathai had not said anything about the presence of
P.W.3 or his son-in-law-Moorthy, when she went to the farm at about 3.00
p.m. She had further deposed that when the police came to this spot on their
complaint and commenced the investigation, Moorthy @ Senthil and
Kanagaraj were present. Further, deposed that they informed the police that
they saw the occurrence and they saw Kallathiyan, Subramanian, Komban @
Balasubrmanian, Sudalai @ Raja, Amirtharaj, Ranjithkumar and Muthu
together slained Swaminathan. However, in the inquest report, no evidence
to show P.W.1 and P.W.3 were present when the police conducted inquest
and P.W.3 informed the police that he witnessed 7 of the accused persons
named above, slained Swaminathan likewise in Column IV of the inquest
report, the Investigating Officer should have mentioned the name of P.W.3
as the last person, who saw the deceased Swaminathan alive at 03.30 p.m.
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31.Whereas it says PW.1, saw swaminathan at 1.30 in her cross P.W.1
had deposed that she saw 5 persons running from the farm carrying weapon.
She had also deposed that during the enquiry, Kanagaraj and Moorthy
informed the police that 7 persons attacked her husband Swaminathan. The
name of Sudalai Mani @ Raja, Ranjithkumar been added only in her
deposition. P.W.3 has added yet another accused by name Murugan, who is
arrayed as A8. Thus, the complaint which started with 5 person slowly
enlarged into 7 persons then 8 persons and ultimately 11 persons with the aid
of Section 120(b) of IPC.
32.Unfortunately, the prosecution was unable to prove the place or
time conspiracy. Thus, first charge agains the accused persons failed to be
proved the contradiction and embellishment had lead to failure of other
charges.
33.In view of the above circumstances, when P.W.2 evidence lack
corroboration and also suffers material contradiction, his sole testimony
cannot be relied upon to sustain a conviction. It is settled principles of law
that the accused, who is acquitted by the trial Court is bestowed with double
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benefit. The first benefit of innocence till proved to be guilty and second
benefit is the judicial verdict holding guilty not proved. To interfere the
order of acquittal, the reasoning for disbeliveing the prosecution case must
be pervese or contrary to the evidence. In this case, this Court finds neither
perversity nor improper appreciation of evidence. The view of the trial Court
holding that the prosecution has failed to prove the guilt beyond reasonable
doubt is a possible view, since there is no corroboration but lot of
contradictions. Since the view of the trial Court is also possible and the
beneficiary to the accused, the alternative view, even though it may be
possible that need not be substituted by the Court of appeal. The benefit of
doubt ended in acquittal.
34. For the reasons stated above, this Criminal Appeal filed against the
order of acquittal is dismissed.
[G.J.,J] & [R.P., J]
02.04.2025
Index : Yes/No
NCC : Yes/No
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To
1.The III Additional Sessions Court,
Tirunelveli.
2.The Inspector of Police,
Thalayuthu Police Station,
Thalayuthu
Tirunelveli District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/04/2025 05:41:50 pm )
Crl.A(MD)No.401 of of 2021
DR.G.JAYACHANDRAN, J.
AND
R.POORNIMA, J.
Ns
Predelivery Judgement made in
02.04.2025
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https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/04/2025 05:41:50 pm )
