Madras High Court
Pambaikannan @ M.P.Natesan vs The State on 3 April, 2025
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.A(MD)No.318 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 24.03.2025
Pronounced on : 03.04.2025
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
AND
THE HONOURABLE MS.JUSTICE R.POORNIMA
Crl.A(MD)No.318 of 2021
Pambaikannan @ M.P.Natesan .. Appellant/Sole accused
Vs.
The State, rep by
The Inspector of Police,
Sivagangai Town Police Station,
Sivagangai,
Sivagangai District.
(In Crime No.725 of 2012)
...Respondent/Complainant
PRAYER: Criminal Appeal is filed under Section 372(2) of the Code of
Criminal Procedure, against the judgment dated 07.10.2020 in S.C.No.41 of
2014 on the file of the Additional District and Sessions Judge, Sivagangai,
Sivagangai District.
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Crl.A(MD)No.318 of 2021
For Appellant : Mr.K.Subhalakshmi,
for Mr.S.T.Sasidharan Tamilkani
For Respondent :Mr.A.Thiruvadikumar
Additional Public Prosecutor
JUDGMENT
Dr.G.JAYACHANDRAN, J.
and
R.POORNIMA, J.
The Appellant is the sole accused in S.C.No.41 of 2014 on the file of
the learned Additional District and Sessions Judge, Sivagangai. He was
charged for offences under Sections 449 and 302 IPC.
2.To prove these two charges, the prosecution examined 11 witnesses.
Marked 12 exhibits and two material objects. In defence, three witnesses
DW-1 to DW-3 and seven exhibits, Ex D1 to ExD7 were marked and relied.
3.The trial Court, after discussing the evidence and the submissions
made by the respective counsels, held that the accused guilty of offence
under section 449 of IPC sentenced to undergo two years Rigorous
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Imprisonment with fine of Rs.500/- in default, six months Rigorous
Imprisonment and also guilty of offence under Section 302 IPC and
sentenced him to undergo life imprisonment and fine of Rs.5000/- in default
to undergo one year Rigorous Imprisonment. The period of sentence ordered
to run concurrently and the imprisonment period already undergone was
ordered to be set off.
The gist of the prosecution case:
4.In the Neduvasal village of Pudukkottai District, Vellaiyappan
Swamy Temple, is managed by three branches known as Muthusamy
Vagaiyara, Mandaiyan Vagaiyara and Alagar Vagaiyara. The accused
belongs to Mandaiyan Vagaiyara. When the members of all the three
lineages decided to conduct Kumbabhishekam (consecration) of the family
deity, the accused refused to pay his contribution, so he was not called for
the meeting held in connection with consecration. Hence, Vaithi (the
deceased) who was the priest of the temple became inimical to the accused.
On 27.06.2012 at about 6:40 PM, when PW-1 was at Madurai, the accused
call him over phone and told that his uncle Vaithi will be done to death by
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that dawn of the day. More or less at the same time, the accused went to the
house of Vaithi and picked quarrel with him. PW-3 and others intervened
and sent back the accused. Thereafter, at about 9.00 PM, the accused
trespassed into the house of the deceased, smothered the deceased and then
to show to the world that he committed suicide by hanging, neck tied with a
rope and hanged it to the ceiling of the thatched house.
The evidence placed through the prosecution witnesses:
5.Muniammal(P.W.3), the wife of P.W.1(de-facto complainant) saw
the accused entering the house of the deceased at about 9.00 pm. PW-2, the
mother of PW-1 saw the deceased at about 9.50 pm, in a weird position tied
with rope on the neck. When PW-1 returned home, he came to know about
this and rushed to the house of the deceased. He cut the rope and laid the
dead body down. PW.1 set the law into motion by his complaint-Ex.P.1
registered as FIR at 22.15 hrs suspecting the accused. P.W.6 the Sub-
Inspector of police registered the FIR under section 174 CrPC. The Sub-
Inspector of Police, after registering the FIR had forwarded a copy of the FIR
to the Judicial Magistrate. P.W.7 is the Grade-I, Police Constable, who took
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the body of Vaithi to the Sivagangai Hospital for postmortem, on the
instruction given by P.W.8-the Sub-Inspector of Police. P.W.10 is the
Investigating Officer, who conducted the initial investigation and prepared
the rough sketch, observation mahazar. Conducted inquest, recorded the
statements of witnesses and the accused was arrested on 29.06.2012 in the
presence of P.W.5-Siva Subramaniam, Village Administrative Officer of that
Village. The confession statement of the accused was recorded in his
presence. Based on the information, the towel used for smothering Vaithi
was recovered under Mahazar. P.W.11 is the subsequent Investigating
Officer, who collected the postmortem report, recorded the statements of the
postmortem Doctor-Mr. Kannan(PW-9) and the statement of the Scientific
Officer, who gave the viscera report-Ex.P.7. After completion of the
investigation, he had filed the final report.
Case of the accused:
6.In his defence, the accused himself mounted the witness box and
been examined as D.W.1. In support of his case, DW-2 and DW-3 were
examined. The accused had projected a theory that P.W.1 had ill will against
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the accused for trying to get a job in the TAMIN under compassionate
ground. Therefore, when questioned P.W.1 about refusal to collect the
contribution for the temple consecration, he conceived a design to fix him in
the case of the suspicious death of Vaithi. P.W.1 through his wife-P.W.3 and
his sister P.W.2 had manipulated the investigation by feeding false evidence.
Exs.D.1 to D.7 are the correspondence and the Court order in connection
with the request to provide appointment under compassionate ground.
According to the evidence on the side of the accused, the said Vaithi, who
had no cordial relationship with his wife and children, was living separately,
Though his wife and daughter were living in the same village, they were not
enquired by the police regarding the suspicious death of Vaithi.
Trial court finding:
7.The trial Court, relying upon the evidence of PW.1, PW.2 and PW.3
accepted the version of the prosecution and rejected the defence theory
projected through D.W.1, D.W.2 and D.W.3 and the Ex.D1 to Ex.D7.
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8.The recovery of towel M.O.2 based on the admissible portion of the
confession taken as a circumstance against the accused as a proof of the
guilt. The injuries found on the right forearm and left leg as sign of struggle
while smothering. Since the deceased Vaithi was found in a squatting
posture, legs stretched and hands on the knee the possibility of him
committing suicide by hanging was eliminated. The previous enmity between
the deceased and the accused in connection with the affairs of the family
deity was projected as motive for killing. The evidence of P.W.3, taken as a
proof for the last seen together. The evidence of P.W.1 regarding the
threatening call received from the accused at 6.41 p.m., and the evidence of
PW-2 about the early quarrel between the accused and the deceased at about
6.30 pm were considered to be incriminating the accused and sufficient to
convict him for offences under sections 449 and 302 IPC.
9.The trial Court finding is challenged for the following grounds:-
“1.The judgment of the lower Court has to be set aside,
since the occurrence happened on 27.06.2012 at 22.15 hrs and
he same was reported to the respondent police on next day
28.06.2012 at 03.30 p.m., but the same was reached to the
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Judicial Magistrate Court only on 29.06.2012 at 11.30 a.m.
The delay reporting the matter and reached the Court is fatal
to the case of the prosecution. The delay alone not a fatal to
the case of the prosecution, unless the prosecution witnesses
came forward with explanation. Here is this case, the
prosecution witnesses not given any explanation regarding the
delay.
2.The judgment of the lower Court has to be set aside,
since according to the prosecution, there was a dispute
regarding the Collection of Fund in respect of Temple
Kumbabishekam, for this aspect, no documents has been
produced before the Court. Out of the motive, 27.06.2012 at
06.41 p.m, the accused using hemp rope would ties deceased
neck to the stick projecting from the ceiling of the hut and
escape. To prove the case of the prosecution P.W1 to P.W.3
witnesses cited as an eye witness in this case. P.W.1 is an uncle
of the deceased. OP.W.2 is the sister of P.W.1. P.W.3 is the
wife of P.W.1. They are the close relatives and also chance
witnesses in this case. P.W.1 is concerned, at the time of
occurrence, he was working as a Driver at Damin Company
and he gave a reason that because of the threat of the accused,
he came to the spot. But earlier threat, he was not gave any
complaint to the respondent police.
3.The judgment of the lower Court has to be set aside,
since the FIR disclosed that 27.06.2012 there was a quarrel,
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after that, at about 10 p.m., P.W1 to P.W3 saw the deceased in
a hanged position. But now the prosecution came forward with
the story that P.W.3 saw the accused with torch light at 09.30
p.m., and entered into the deceased house. But that story was
not mentioned in the FIR.
4.The judgment of the lower Court has to the set aside,
since P.W.1 and P.W.2 are concerned, they are not seen the
accused in the place of the occurrence. So as may as version to
the connection of an accused to commission of the crime and
evidence are contradictory with each other.
5.The judgment of the lower Court has to be set aside,
since the prosecution party converted the case of suicide into
murder case as against the accused.
6.The judgment of the lower Court has to be set aside,
since the evidence adduced as circumstantial evidence, hence
there is no direct evidence in this case. Based upon the
circumstance evidence, this appellant was implicated in this
case and further the trial Court also convicted the accused as
same.
7.The judgment of the lower Court has to be set aside,
since the prosecution does not examined as a witness of the
deceased wife and her family members with regards to the
antecedents of the accused.
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10.The case of the prosecution is based on the evidence of P.W.3, the
witness, who claims to have seen the accused entering the house of the
deceased and after some time her mother PW.2 came and informed her that
the deceased found dead in his house. PW.3 had deposed that, on the fateful
day, earlier at 6.30 pm there was fight between the accused and the deceased
over conducting the temple festival. The accused left the place after
challenging to kill the deceased by night. Soon she informed this to her
husband (PW1) over phone. Thereafter, at about 9.00 pm, when there was
power cut in the street, with the help of torch light, she saw the accused
entering the house of the deceased. Again, she called her husband and
informed about the visit of the accused to the deceased house. After some
time, PW.2-the mother of PW.3 came crying and informed that Vaithi (the
deceased) found hanging in his house. By the time her husband (PW-1) also
reached home and they all went to the house of Vaithi. They saw Vaithi neck
tied with a rope and the other end tied to the ceiling of the thatched house.
PW.1 cut the rope and laid him on the floor.
11.PW-1 and PW-2 are brother and sister. The deceased Vaithi is their
paternal uncle. PW-3 is the wife of PW-1 and she is also the daughter of
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PW-2. The accused is distantly related to these witnesses. P.W.2 is the first
person to see Vaithi dead. On seeing Vaithi legs stretched and hand on his
knee, neck tied with rope and the other end to the ceiling wooden reaper, she
rushed to the house of PW.2 and informed PW.1 and PW.3.
12.Though the trial Court had observed that these three witnesses had
withstood the grueling cross-examination and no inconsistency in their
evidence, the following contradiction and omissions are seen:
(a) PW-3 had deposed that at about 6.30 pm there was fight between
the deceased Vaithi and the accused. She along with one Karruppi intervened
and stopped the fight. Before leaving the accused challenged that he will kill
Vaithi within that day. Immediately she informed her husband (PW-1) about
the first fight at 6.30 pm and life threat made by the accused. Her husband
told her that he was also threatened by the accused over phone and then
instructed her to be careful, he will come back home soon. PW.1 had
deposed that at about 6.40 pm., the accused called him over phone and
threatened to kill him and his uncle Vaithi. Immediately he called his wife
and told her about the phone call he received from the accused and about his
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threat. He advised PW.3 to be careful. At that time, his wife PW.3 informed
about the fight between the accused and the deceased at about 6.30 pm. Both
PW-1 as well as PW-3 claim that they first called their spouse and informed
about the threat made by the deceased. The Investigating Officer had failed
to collect the call details to testify their contradictory claim. PW-2 had not
said anything about the 6.30 occurrence. Further, Karruppi not examined to
corroborate PW-3.
(b)PW.1, in the chief examination, had deposed that, after he reached
the home and while changing his dress, his wife (PW-3) told him that, she
saw the accused entering the house of the deceased. Whereas, PW-3 had
deposed that soon after she saw the accused entering the house of the
deceased, she called her husband again and informed him about the entry of
the accused inside the house of the deceased. The trial Court has relied on
the evidence of PW-3 as proof for the charge under section 449 IPC as well
as the proof for last seen together. However, the trial Court has failed to
consider the evidence of PW-3 is not corroborated by PW-1 but
contradictory. If PW.3 had informed PW.1 over phone about the trespass of
the accused into the house of the deceased at about 9.00 pm, then in the
complaint, PW-1 would have certainly mentioned about it. Also, he would
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have deposed about the information he got from his wife at about 9.00 pm.
PW-1 contrarily had deposed that, when he reached the home by 9.30 – 9.45
pm, there was power cut. While changing his dress, power got restored. At
that time, PW-3 informed him that she saw the accused entering the house of
the deceased and she saw that with the help of torchlight.
(c) According to PW-1, the distance between his house and the house
of the accused is about 15 feet. No electricity service in the house of the
deceased. PW-3 had deposed that she does not know what light Vaithi used
during the night. There was power cut in the street when she saw the accused
entering the house of the deceased. She says that she saw him with the help
of torch light. First of all, identifying a person at 15 feet away, with the help
of torch light need to be appreciated with care and caution. Particularly,
when PW.1 does not support the evidence of PW-3 in this regard and also
the Sketch and observation mahazar indicates that PW.3 could not have seen
the accused, as deposed in view of the obstructing structures between the
house of PW-3 and the deceased as per the sketch Ex P-9 and Observation
Mahazar Ex P-2. Ex.P.9-sketch prepared by PW.10 shows the house of the
deceased is on the East of the thatched shed of Ramasamy(PW-1) and the
house of Ramasamy is on the West of the thatched shed. The observation
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mahazar (Ex.P.2) shows that there is a thatched shed in between the house of
the witnesses (PW-1 and PW-3) and the house of the deceased. Also few
more obstructions like building materials collected for the nearby temple
under construction. Therefore, when the evidence of PW-3 that she over
phone reported to PW-1 immediately, after the visit of the accused to the
house of the deceased, is not corroborated by PW.1. The contradiction
between PW-1 and PW-3 makes the testimony of PW-3 that she saw the
accused with the help of the torch light becomes highly doubtful. In this
context, more than 5 hours delay in giving the complaint to the Police which
is hardly 8 kms away and the delay of 32 hours in forwarding the copy of the
FIR to the Judicial Magistrate gains relevancy.
(d) About the family of the deceased, PW.1 had deposed that the
deceased and his wife were living separately in the same village. They got
separated about 6 to 7 years. PW.2, also had deposed that the deceased and
his wife are living separately for about 9 years, but living in the same village.
Whereas, PW.3 contrary to the evidence of PW.1 and PW.2, had deposed
that, the deceased was living with his wife and daughter in the same house.
The unworthiness of PW-3 due to the contradiction not considered by the
trial Court. Except PW-1 to PW-3, who are all related and interested
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witnesses, no independent witnesses in that village examined by the police to
prove the enmity between the deceased and the accused regarding
conducting the Kumbabishekam of the temple or th collection of fund.
Regarding the confession of the accused leading to recovery, prosecution
had relied on the evidence of Village Administrative Offiver examined as
PW5. This witness is not able to recollect, who reduced the confession into
writing. He is not able to recollect at what time the confession was given by
the accused. Towel which has nothing in unique and found in common at all
places been shown as a material object used for smothering the deceased.
Thus, the recovery of M.O.2 also not proved beyond doubt.
13.Being a case of circumstantial evidence, every circumstances must
be proved and the link in the chain must be intact. In this case motive, the
last seen alive together with the accused, recovery nothing is proved beyond
doubt. None of the link which are necessary to complete the chain found
proved. To fix the accused, in this case, prosecution had heavily relied on the
evidence of PW.3. However, her deposition is contrary to the evidence of
other witnesses PW.1 and PW.3 in respect of vital aspects including her
testimony of seeing the accused near the house of the deceased which is
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about 15 feet away, with the help of torch light.
14.The suspected time of death is mentioned as 22:15 hours on 27 six
2012. FIR registered on 28.06.2012 at 3:30 a.m. The FIR copy had reached
the Judicial Magistrate on 29.06.2012 at about 11:30 a.m. That is two days
later. No proper explanation is given by the prosecution for this inordinate
delay. The suspicion over the credibility of the information is strengthened in
view of the inordinate delay.
15.Therefore, in view of the contradictions in the evidence of core
witnesses PW-1 to PW-3, this Court holds that the prosecution has failed to
prove the links in the circumstances of previous enmity as motive for the
murder. It has also failed to prove the accused was seen near the house of the
deceased at the relevant point of time. The delay in complaint and
forwarding it to the Judicial Magistrate probablises the doubt about the
truthfulness of the complaint. The non-examination of the family members of
the deceased, though his wife and daughter were residing in the same village,
but separately, all put together it is established by the defence that the link in
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the chain of circumstances not proved beyond doubt.
16.Therefore, the judgement of the trial Court is set aside. Accordingly
the Criminal Appeal is allowed. The bail bond executed by the
appellant/accused shall stand terminated. The fine amount, if any paid, to be
refunded. The appellant/accused shall be released forthwith, if his
confinement is not required in any other case.
[G.J.,J] & [R.P., J]
03.04.2025
Index : Yes/No
NCC : Yes/No
Ns
To
1.The Additional District and Sessions Judge,
Sivagangai,
Sivagangai District.
2.The Inspector of Police,
Sivagangai Town Police Station,
Sivagangai,
Sivagangai District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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DR.G.JAYACHANDRAN, J.
AND
R.POORNIMA, J.
Ns
Predelivery Judgement made in
03.04.2025
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