Madras High Court
Thangam @ Mathalaimuthu vs The Inspector Of Police on 30 January, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1 CRL.A.(MD)No.137 OF 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.01.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HON'BLE MS.JUSTICE R.POORNIMA
CRL.A(MD)Nos.137, 138, 212 & 217 of 2023
Crl.A.(MD)No.137 of 2023
Thangam @ Mathalaimuthu ... Appellant / Accused No.4
Vs.
The Inspector of Police,
Dindigul Town South police station,
Dindigul.
(Crime No.198 of 2014) ... Respondent / Complainant
Prayer: Criminal Appeal filed under Section 374(2) of Code of
Criminal Procedure, to set aside the judgment dated 15.11.2022
made in S.C.No.36 of 2018 passed by the learned Additional District
and Sessions Judge, Dindigul and allow this criminal appeal.
For Appellant : Mr.Kathirvelu,
Senior counsel,
for Mr.K.Prabhu.
For Respondent : Mr.E.Antony Sahaya Prabahar,
Additional Public Prosecutor.
***
https://www.mhc.tn.gov.in/judis
1/19
2 CRL.A.(MD)No.137 OF 2023
Crl.A.(MD)No.138 of 2023
Joseph Stephen ... Appellant / PW2
Vs.
1. State through,
The Inspector of Police,
Dindigul Town South police station,
Dindigul.
(Crime No.198 of 2014) ... Respondent / Complainant
2. Chinnappan @ Chinnakalai
3. Pappathi @ Kuzhandhai Therasu
... Respondents / Accused Nos.9&10
Prayer: Criminal Appeal filed under Section 374(2) of Code
of Criminal Procedure, to call for the records of the judgment dated
15.11.2022 in S.No.36 of 2018 on the file of the learned Additional
District and Sessions Judge, Dindigul and set aside the order of
acquittal to the respondents 2 and 3 / accused No.9 and 10 with
regard to offences under Sections 148, 302 r/w.109 IPC and convict
them for the above said offences.
For Appellant : Mr.Ananda Padmanabhan,
Senior counsel,
for M/s.APN Law Associates.
For R-1 : Mr.E.Antony Sahaya Prabahar,
Additional Public Prosecutor.
For R-2 : Mr.R.Narayanan
***
https://www.mhc.tn.gov.in/judis
2/19
3 CRL.A.(MD)No.137 OF 2023
Crl.A.(MD)No.212 of 2023
1. Justin Doss @ Justin
2. Johnson Prabhakaran
3. Thamaraikannan @ Kannan
4. Ignesious Inbaraj ... Appellants / Accused Nos.5 to 8
Vs.
State through,
The Inspector of Police,
Dindigul Town South police station,
Dindigul.
(Crime No.198 of 2014) ... Respondent / Complainant
Prayer: Criminal Appeal filed under Section 374(2) of Code
of Criminal Procedure, to call for the records of the judgment dated
15.11.2022 in S.No.36 of 2018 on the file of the learned Additional
District and Sessions Judge, Dindigul and set aside the same.
For 1st Appellant : Mr.S.Sarvagan Prabhu
For Appellants
2 to 4 : Mr.Abudu Kumar Rajaratnam,
Senior counsel,
for Mr.M.Jegadeesh Pandian.
For Respondent : Mr.E.Antony Sahaya Prabahar,
Additional Public Prosecutor.
***
https://www.mhc.tn.gov.in/judis
3/19
4 CRL.A.(MD)No.137 OF 2023
Crl.A.(MD)No.217 of 2023
1. Anthony Vimal Raj @ Vimal Anthony
2. Chinnaparaj
3. Arul Arockiyadoss @ Avukutti ... Appellants /Accused Nos.1to3
Vs.
State through,
The Inspector of Police,
Dindigul Town South police station,
Dindigul.
(Crime No.198 of 2014) ... Respondent / Complainant
Prayer: Criminal Appeal filed under Section 374(2) of Code
of Criminal Procedure, to call for the records of the judgment dated
15.11.2022 in S.No.36 of 2018 on the file of the learned Additional
District and Sessions Judge, Dindigul and set aside the same.
For 1st Appellant : Mr.C.Mayil Vahana Rajendran
For Appellants 2&3: Mr.Ashok Kumar,
Senior counsel,
for Mr.M.Jegadeesh Pandian.
For Respondent : Mr.E.Antony Sahaya Prabahar,
Additional Public Prosecutor.
***
COMMON JUDGMENT
These appeals are directed against the judgment dated
15.11.2022 made in S.C.No.36 of 2018 on the file of the Additional
District and Sessions Judge, Dindigul.
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2. By the impugned judgment, accused Nos.1 to 8 were
convicted for the offences under Sections 302 r/w.149 and 148 IPC
and sentenced to life imprisonment and levied with fine of
Rs.10,000/- each. Accused Nos.9 and 10 were acquitted. A4
Thangam @ Mathalaimuthu filed Crl.A.(MD)No.137 of 2023.
Questioning the acquittal of accused Nos.9 and 10, P.W.2 filed
Crl.A.(MD)No.138 of 2023. A5 to A8 have filed Crl.A.(MD)No.212
of 2023. A1 to A3 have filed Crl.A.(MD)No.217 of 2023.
3. The case of the prosecution is as follows:-
Gnanaprakasam @ Podari was the husband of A10 Pappathi.
He was heading one faction of loadmen at Dhadikombu. The
deceased Sebasthiyan was heading the rival faction. Gnanaprakasam
was murdered in the year 2006. Sebasthiyan (deceased herein) was
awarded life sentence by the trial Court. He was acquitted by the
appellate Court. Since the family of Gnanaprakasam wanted to take
revenge, Sebasthiyan avoided regularly staying in his native village,
namely Muthazhagupatti. He used to come home once in 15 days.
On 04.05.2014 Sebasthiyan came to the village. He was murdered
between 5.00 a.m. and 5.30 a.m. (ie.) on 05.05.2014 in West Street
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near Sandhiyagappar Church. Sebasthiyan was accompanied by his
wife(P.W.1). Upon hearing the scream of P.W.1, P.W.2 and another
family member rushed to the spot. P.W.1 lodged Ex.P.1 complaint at
7.00 a.m. before the Dindigul Town South police station. P.W.2
signed in Ex.P.1 complaint. Crime No.198 of 2014 was registered
for the offences under Sections 147, 148 ,341, 302 and 109 IPC. As
many as 10 persons were named in the FIR. P.W.10 was working as
Inspector of Police. He went to the spot at around 7.45 a.m. He
conducted inquest. Ex.P.9 is the inquest report. He also prepared
rough sketch as well as observation mahazar. He examined the
witnesses. He collected bloodstained earth sample and other articles
from the spot. Postmortem was conducted on 05.05.2014 at 1.00 pm.
by P.W.7. Ex.P.5 is the postmortem certificate. Based on A2's
disclosure statement Ex.P.13, M.O.10 Aruval was seized under
recovery mahazar Ex.P.14. A1, A5, A6, and A7 were arrested on
10.05.2014. The fourth accused surrendered on 06.05.2014. The
tenth accused was arrested on 14.05.2014. The ninth accused
surrendered on 08.09.2014. A2, A3 and A8 were arrested on
05.05.2014 in the presence of P.W.4 and P.W.5. Likewise confession
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statements were obtained from all the accused. Based on the
disclosure statement of the other accused, weapons used for
committing the crime were recovered under mahazars. After
obtaining forensic reports and examining the medical witnesses,
P.W.11 who continued the investigation filed the final report before
the Judicial Magistrate No.III, Dindigul. It was taken on file as
P.R.C.No.15 of 2014. The case was committed to the file of the
Principal Sessions Judge, Dindigul and made over to the Additional
District and Sessions Judge, Dindigul in S.C.No.36 of 2018.
Charges were framed against the accused under Sections 302 r/w.
149 and 148 IPC. As against accused Nos.9 and 10, charges were
also framed under Section 302 r/w. 109 IPC. The prosecution
examined P.W.1 to P.W.11. Ex.P.1 to Ex.P.31 were marked. M.O.1 to
M.O.20 were marked. On the side of the accused, no evidence was
adduced. The trial Court after considering the evidence on record,
vide judgment dated 15.11.2022 acquitted accused Nos.9 and 10
and convicted and sentenced the remaining accused as mentioned
above. Aggrieved by the same, these criminal appeals have been
filed.
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4. Heard the learned Senior counsel appearing for the accused,
the learned Senior counsel appearing for P.W.2 / appellant in Crl.A.
(MD)No.138 of 2023 and the learned Additional Government
Pleader.
5. We will take up the first question whether acquittal of
accused Nos.9 and 10 is justified. P.W.2 in his testimony had
deposed that the crime was committed pursuant to the instigation of
accused Nos.9 and 10. But he did not say so during the police
investigation. P.W.10 investigation officer had also admitted that
P.W.2 did not state in his 161 Cr.P.C. statement that accused Nos.9
and 10 have instigated the commission of the crime. Accused No.10
was arrested and confession statement was taken from her. Pursuant
to the said confession, there was no recovery. Accused No.9 was
shown as an absconding accused. From accused No.9 also, there was
no recovery. P.W.2 had not deposed as to what accused Nos.9 and 10
were doing at the time of occurrence. Since accused Nos.9 and 10
were not present at the spot and none of the prosecution witnesses
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had stated that accused Nos.9 and 10 were armed with weapons, the
Court below rightly acquitted them of the charge under Section 148
IPC. There was no evidence whatsoever to show that accused Nos.9
and 10 had committed the offence. Therefore, the Court below
rightly acquitted accused Nos.9 and 10 in respect of the offences
under Sections 148 and 302 r/w.109 IPC. We are satisfied that the
acquittal of accused Nos.9 and 10 is well founded. Therefore, Crl.A.
(MD)No.138 of 2023 stands dismissed.
6. The next question that calls for consideration is whether the
conviction of accused Nos.1 to 8 is sustainable. The specific case of
the prosecution is that the deceased Sebasthiyan and his wife Daisy
Pensila Mary (P.W.1) were crossing Sandhiyagappar temple to
attend the call of nature. Admittedly, P.W.2 rushed to the spot only
after hearing the scream of P.W.1, and witnessed the occurrence.
7. P.W.1 turned hostile. P.W.1 in her chief examination stated
that her husband was found killed in a channel. When persons of the
locality rushed to the spot, P.W.1 also went and saw the deceased
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lying dead. P.W.1 did not support the prosecution version that she
was with her husband when the occurrence took place. Not only
P.W.1, other witnesses such as P.W.3, P.W.4, P.W.5, P.W.6 and P.W.8
also turned hostile. The Court below found that the accused Nos.1 to
8's guilt rests entirely on the testimony of P.W.2 Joseph Stephen.
Joseph Stephen was the nephew of the deceased Sebasthiyan.
According to him, the case on hand is one of revenge murder.
Gnanaprakasam, the father of accused Nos.2 and 3 was murdered in
2006 and in the said case, Sebasthiyan was the prime accused.
Though the trial Court found him guilty, he was acquitted by the
appellate Court. The prosecution no doubt has established that the
accused had a motive to kill Sebasthiyan.
8. It is well settled that motive by itself is not sufficient to find
the accused guilty (vide State of Madhya Pradesh V. Paltan Mallah
[(2005) 3 SCC 169]. There must be a legally acceptable evidence to
connect the accused with the crime. In the case on hand except the
testimony of P.W.2, there is no other evidence. The Hon'ble Supreme
Court in its decision reported in (1957) SCR 981 (Vadivelu Thevar
v State of Madras), held as follows:
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“Generally speaking, oral testimony in this context may be classified
into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in
coming to its conclusion either way-it may convict or may acquit on the
testimony of a single witness, if it is found to be above reproach or
suspicion of interestedness, incompetence or subornation. In the second
category, the court, equally has no difficulty in coming to its conclusion.
It is in the third category of cases, that the court has to be
circumspect and has to look for corroboration in material particulars
by reliable testimony, direct or circumstantial.”
Since the testimony of PW2 falls in the third category, we have to
carefully scrutinize his testimony and find out if it has a ring
of truth and can command our confidence.
9.Admittedly, the occurrence had taken place between
5.00 a.m. and 5.30 a.m. on 05.04.2014. P.W.2 is the nephew of the
deceased Sebasthiyan. Sebasthiyan's residence was in the South
street of Muthazhagupatti. Admittedly, P.W.2 was residing in East
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Street. There is a distance of 200 meters between the house of P.W.2
and the house of the deceased. P.W.2 has not given any convincing
reason as to why he should be in the house of Sebasthiyan in the
early hours on 05.05.2014. P.W.2 admittedly did not accompany his
uncle when he went to attend the call of nature. The occurrence had
taken place near a drainage channel which was located near
Sandhiyagapar Church which was on the West Street. P.W.2 would
claim that the distance between Sebasthiyan's house and the
occurrence spot would be 100 meters. The defence suggested that
the distance between the occurrence spot (Odai Street) and the house
of Sebasthiyan would be close to ¾ km. This suggestion was of
course denied by P.W.2. Ex.P.11 is the rough sketch drawn by
P.W.10. In the rough sketch, the houses in Sandhiyagapar Church
street where the occurrence took place have been mentioned(houses
on both sides). Likewise, the names of the houses on both sides of
South Street have been mentioned. But there is no reference to the
house of the deceased. The distance between the occurrence spot and
the house of the deceased ought to have been mentioned in the
observation mahazar. The failure to include the house of the
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deceased in Ex.P.11 rough sketch is a serious lacuna in the
investigation. Neither P.W.10 nor P.W.11 have mentioned the exact
distance between the occurrence spot and the house of the deceased.
Such an omission is fatal to the prosecution. The learned Senior
counsel pointedly contended that it was impossible for those
sleeping in the house of the deceased in South Street to have heard
any noise from the occurrence spot.
10. Even according to P.W.2, he rushed to the spot only after
hearing the screams of P.W.1. P.W.2 claimed that he was in the house
of Sebasthiyan along with his sons / daughter. He further claimed
that he and the second daughter of Sebasthiyan rushed to the spot.
The said second daughter of Sebasthiyan was not examined as a
witness. If others were also with him, they too would have definitely
rushed to the occurrence spot. There is no such evidence. According
to P.W.2, he rushed to the spot only after hearing the screams of P.W.
1. Obviously by the time P.W.2 would have reached the spot, the
entire crime would have been committed.
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11.P.W.2 graphically described the acts committed by each of
the accused. He states that when he went to the spot, all the accused
had surrounded the deceased and that A1 inflicted cut injury on the
neck as well as on the left hand. Likewise, he individualized each of
the acts committed by each of the accused. PW2's blow by blow
account of strikes inflicted on the deceased like in a screenplay
renders his version highly improbable. P.W.2 admitted that he did
not attempt to save his uncle.
12.P.W.2 had implicated all the family members of
Gnanaprakasam. A10 was the wife of Gnanaprakasam. A2 and A3
were the sons of Gnanaprakasam. A9 Chinnappan was the brother of
A10. A6 was the son of A9. A4 was also the brother of
Gnanaprakasam. A1 and A5 were the sons of A4. Thus, all the
family members of Gnanaprakasam have been implicated. A7 and
A8 are also closely related to Gnanaprakasam.
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13.P.W.1 was projected as the prime eye-witness. When P.W.1
herself had turned hostile, it is difficult to believe that P.W.2 after
hearing P.W.1's screams, rushed to the spot and saw the deceased
Sebasthiyan being hacked to death. In matters such as this, where a
large number of persons have been implicated as direct participants
in the crime, it would be most unsafe for the Court to rest its
conviction on uncorroborated evidence. The Hon'ble Supreme Court
in Amar Singh v The State (NCT of Delhi) [(2020) 19 SCC 165]
held as follows:
“16. ... As a general rule the Court can and may act on the
testimony of single eye witness provided he is wholly reliable.
There is no legal impediment in convicting a person on the sole
testimony of a single witness. That is the logic of Section 134 of
the Evidence Act, 1872. But if there are doubts about the testimony
Courts will insist on corroboration. It is not the number, the
quantity but quality that is material. The time honoured principle is
that evidence has to be weighed and not counted. On this principle
stands the edifice of Section 134 of the Evidence Act. The test is
whether the evidence has a ring of truth, is cogent, credible and
trustworthy or otherwise (see Sunil Kumar V/s State
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Government of NCT of Delhi ((2003) 11 SCC 367)”.
14.It is true that Section 134 of the Indian Evidence Act, 1872
does not postulate that there should be “n” number of witnesses in
support of the charge. It is the quality and not the quantity that is
material. But in the present case, the most material witness(P.W.1)
had turned hostile. It would be unsafe for the Court to sustain the
conviction of as many as eight accused on the solitary, doubtful and
uncorroborated testimony of P.W.2 in this case.
15.This is all the more because, recoveries have not been
proved through evidences. Even according to the prosecution, there
were lot of differences and enmity between the family of the accused
and the family of the deceased. Gnanaprakasam, the father of A2
and A3 and the husband of A10 was murdered in the year 2006.
Jeyaraj, the brother of Sebasthiyan who was also convicted along
with Sebasthiyan was attempted to be murdered in the year 2007.
Sebasthiyan was murdered on 05.05.2014. In this background, the
possibility of false implication cannot be ruled out. The testimony of
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P.W.2 is such that even his very presence in the occurrence spot, as
an eyewitness, is open to grave doubt. Only if we are satisfied that
the prosecution proved his case beyond reasonable doubt, we can
find the accused guilty and not otherwise.
16.Since we have come to the conclusion that it would be
unsafe to convict the accused upon the uncorroborated testimony of
P.W.2, the impugned judgment is set aside. Accused Nos.1 to 8 are
also acquitted of all the offences with which they were charged.
Crl.A.(MD)Nos.137, 212 and 217 of 2023 are allowed. The fine
amount, if any paid by them shall be refunded forthwith. The bail
bond, if any executed by them shall stand cancelled. No costs.
(G.R.SWAMINATHAN, J.) & (R.POORNIMA, J.)
30.01.2025
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
PMU
https://www.mhc.tn.gov.in/judis
To:
1. The Additional District and Sessions Judge,
Dindigul.
2. The Inspector of Police,
Dindigul Town South police station,
Dindigul.
3. The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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G.R.SWAMINATHAN, J.
AND
R.POORNIMA, J.
PMU
CRL.A(MD)Nos.137, 138, 212 & 217 of 2023
28.01.2025
https://www.mhc.tn.gov.in/judis
