THE HON’BLE MR.JUSTICE S.VAIDYANATHAN AND THE HON’BLE MR.JUSTICE A.D.JAGADISH CHANDIRA. Life sentence setaside. For Appellant : Mr.V.Elangovan for   Mr.S.Doraisamy   For Respondent         : Mr.Babu Muthumeeran,   Additional Public Prosecutor

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on : 5.8.2022

Delivered  on :  16.8.2022

CORAM

THE HON’BLE MR.JUSTICE S.VAIDYANATHAN

AND

THE HON’BLE MR.JUSTICE A.D.JAGADISH CHANDIRA

Criminal Appeal No.791 of 2018

Mani @ Palanisamy          Appellant

vs.

State rep. by

Inspector of Police, Palladam Police Station, Tiruppur District.

(Cr.No.472/2017).       Respondent

Criminal Appeal filed under Section 374 Cr.P.C. to set aside the judgment of the II Additional District and Sessions Judge, Tiruppur. made in S.C.No.123 of 2017 dated 2.11.2018.

For Appellant : Mr.V.Elangovan for   Mr.S.Doraisamy

For Respondent         : Mr.Babu Muthumeeran,

Additional Public Prosecutor

JUDGMENT

S.VAIDYANATHAN, J. and

A.D.JAGADISH CHANDIRA,J.

The Appeal has been filed seeking to set aside the order dated

2.11.2018 passed by the II Additional District and Sessions Judge, Tiruppur. made in S.C.No.123 of 2017.

2. The appellant stands convicted under Section 302 IPC and sentenced to undergo life imprisonment with a fine of Rs.5000/- in

default to undergo a further period of one year rigorous imprisonment.

3. Brief facts of the prosecution case is as under:-
4. One Siva @ Sivaraj (PW1) lodged a complaint, Ex.P1 with the Sub Inspector of Police, Palladam Police Station, Tiruppur District on

30.5.2017 contending that he is a flower merchant in Tiruppur Flower Market and on the previous day viz., on 29.5.2017, at 8.00 pm, when he was proceeding to his house vide Iduvaikaraiputhur after

completing his business collection, he had seen the deceased Ramesh, who is none other than his wife’s elder sister’s husband, in company of the appellant/accused and yet another person sitting in a rope cot near Thattanthottam and under the impression that they were taking liquor as usual, he went to his house, but, on the next day viz., on 30.5.2017

at 7.00 am, he received an information from the people at Thattanthottam that his co-brother Ramesh was lying dead.

1. On receiving such information, PW1 alongwith his neighbour one Thamilmani had rushed to the spot and found the deceased lying dead in front of the appellant’s house with injuries on his two elbows, chin, knee and head. His motorcycle bearing registration No.TN 42 0032 was lying in a pit located in the opposite side.

• The wife of the deceased Vanitha, PW2, who lives separately with her child at Annanagar, was away from town to Pudhupatti, Thanjavur District on 26.5.2017 itself in respect of school admission of

her child and hence, PW1 had informed her over phone about the occurrence and in turn, she had instructed him to lodge a complaint

with the Palladam Police Station.

10. By that time, the appellant/accused was not available in his house and hence, PW1 had rushed to the Palladam Police Station alongwith his neighbour Thamilmani at 10.00 am and pointing out suspicion on the appellant/accused, the complaint was lodged by PW1

with the Palladam Police Station.

1. On receipt of the complaint, Ex.P1, the Sub Inspector of Police, Senthil Prabhu, PW13 had registered a case in Crime No.472 of 2017 under Section 302 IPC in FIR, Ex.P17 and sent the original FIR alongwith the complaint to the Judicial Magistrate, Palladam and submitted a copy of the FIR to the Inspector of Police (in charge),

Kamanayakkanpalayam for investigation.

1. The Inspector of Police, Kamanayakkanpalayam, PW14, whowas in additional charge of Palladam Police Station, took up

investigation of the case, visited the scene of occurrence at 11.00 am on 30.5.2014 itself and in the presence of Dinesh, PW3 and one Ravi, he had prepared the observation mahazar, Ex.P2 and rough sketch, Ex.P18.  Then, at 12.45 pm, in the presence of the same witnesses, he had recovered bloodstained cement flooring, normal cement flooring under seizure mahazar, Ex.P14. Later, from 13.00 to 16.00 hours, in the presence of panchayatdars and the witnesses PW1 Sivaraj, PW2 Vanitha, Sunitha, Rajasekaran and Thamilmani, he had conducted inquest over the dead body and prepared the inquest report, Ex.P19. Thereafter, he sent the body for post mortem. Then, he had enquired

the witnesses and recorded their statements.

• Peranantham, PW8, who conducted post mortem on the dead body, had found 19 injuries and had opined that the deceased would appear to have died of shock and hemorrhage due to multiple

injuries and issued the post mortem report, Ex.P6.

• On 31.5.2017, PW14 had enquired Duraiyan @ Duraisamy, Saravanakumar (PW4), Muthukumar (PW5), Ilayaraj and Govindaraj

(PW6) and recorded their statements.  On the same day, on getting a confidential information, he went to Palladam Police Station and arrested the appellant/accused. Since no public had come forward to be witness for the confession of the appellant/accused, PW14 had recorded the confession of the appellant/accused in the presence of the Village Administrative Officer Arumugam, PW9 and his Assistant Easaiyan, who had been arranged through PW13, the Sub Inspector of Police. On the basis of such confession, PW14 had seized a bloodstained wooden log, M.O.3 a cellphone, M.O.4, bloodstained white half shirt, M.O.5,  bloodstained blue colour dhoti, M.O.6 in the

presence of the same witnesses by preparing a mahazar, Ex.P9. Then, he reached the Police Station alongwith the appellant/accused and the recovered material objects  by 6.15 pm  and sent the material objects to court under Form 95, Exs.P20 and P21 and remanded the

appellant/accused to judicial custody.

1. PW14 had seized the clothes worn by the deceased viz., bloodstained half shirt, bloodstained pant, bloodstained underwear, waist rope under Form 95, Ex.P16 as produced by the Constable Nagaraj after completion of the post mortem. Subsequently, on

3.6.2017, PW14 had handed over the case to the Inspector of Police,

Palladam Police Station for further investigation.

11. PW11, the Scientific Officer in Regional Forensic SciencesLaboratory, Coimbatore, examined the material objects had issued chemical analysis report, Ex.P11. Ex.P12 is the report issued by the Director of Forensic Sciences confirming that the bloodstained cement mortar are the normal cement mortar were similar to each other with respect to their density and distribution pattern.  P13 is the Serology Report, which affirmed that the bloodstains found on the clothes belong to “O” group and Ex.P14 is the report issued by the Director of Forensic Sciences Department contending that the blood

group of the deceased is “O” group.

4. PW15, the Inspector of Police, Palladam, Police Station took up further investigation of the case on 4.6.2017 and visited the scene of occurrence and enquired the witnesses and since they reiterated their old version, he had not recorded the same. However, PW15 had enquired the witnesses, Mani, Kanagaraj, PW10, the vendor of cell phones, who sold the mobile phone, M.O.10 to the deceased and Shanmugam and the Sub Inspector of Police, PW13 and recorded their statements.   On 6.6.2017, he had enquired Dr.Bhuvana, PW7, who was in charge of Emergency Ward at the relevant time and Dr.Peranantham, PW8, who conducted the post mortem and recorded their statements. On 9.6.2017, he had enquired the Police Constable

Nagaraj, who took the body for post mortem and record his statement. Then, he had sent the material objects and the clothes recovered from the dead body to Forensic Sciences Laboratory for examination through the said Police Constable on 12.6.2017.  On 16.6.2017, he had enquired the father of the deceased viz., Venkatesan at the police station and recorded his statement.  On  30.6.2017, he had enquired Dr.Peranantham, PW8 and obtained his final opinion and the opinion of Mr.Venkateswaran, PW11, the Scientific Officer of Forensic Sciences Laboratory, Coimbatore.  On completing the investigation, PW15 had filed the final report against the appellant/accused for offences

punishable under Sections 302 and 397 read with 294 IPC.

4.The case was taken on file by the learned Judicial Magistrate, Palladam in P.R.C.No.9/2017 and after compliance with the

requirements under Section 207 Cr.P.C. having found that the case is exclusively triable by Court of Sessions, the Judicial Magistrate had committed the case to the Principal District and Sessions Judge, Tiruppur, which was, in turn, made over to the II Additional District &

Sessions Judge, Tiruppur assigning case number as S.C.No.123 of

2018. The Trial Court, framed charges for the offences underSections 302 and 394 read with 397 IPC as against the appellant and when the appellant/accused was questioned, he denied the charges

and sought to be tried.

6. In order to prove its case,  the prosecution has examined 15 witnesses as P.Ws.1 to 15 and marked 21 documents as Exs.P1 to P21

and 19 material objects as M.Os.1 to 7.

7. When the appellant was confronted with the above

incriminating materials under Section 313 Cr.P.C., he denied the same, however, he had not chosen to produce either oral or documentary

evidence.

8. On completion of the trial, the Trial Court, while acquitting the appellant for offence punishable under Section 394 r/w 397 IPC on the ground that it has not been proved by the prosecution beyond reasonable doubt, found the accused guilty under Section 302 IPC and

convicted and sentenced as indicated above.

9. The submissions of the learned counsel for the appellant

Mr.V.Elangovan are as under:-

1. The entire case of the prosecution is filled with contradictions, embellishments and fabrication of evidence.
2. The Trial Court erred in convicting the appellant without

carefully analysing and appreciating the evidence on record.

• The alleged occurrence is said to have taken place on 29.8.2014 during the night hours and the complaint, Ex.P1  was stated to be given to the respondent police on 30.8.2014 at 10.00 am and the FIR Ex.P17 was stated to be registered on the same day at 10.00 hours. The case of the prosecution rests on the theory of PW1  having seen the deceased in the company of the appellant and yet another person and further PW4 having seen the appellant holding a stick M.O.3 and quarreling with the deceased and shouting at him and PW5 having seen the appellant, thrashing the deceased with the stick. The entire case of the prosecution being fabricated and P.Ws.4 and 5 having been stated to be chance witnesses to the occurrence, cannot

be believed.

7. The conduct of the witnesses belies the prosecution theory. As per PW1, he is stated to have had knowledge about the death of the deceased at 7.00 am in the morning through somebody.  However, the complaint has been given at 10.00 am and though the court is within one kilometer away from the police station, the FIR has reached the court only at 5.00 pm on that day thereby creating a grave doubt in the prosecution case.
8. When the occurrence had taken place on 29.5.2017 and the complaint has been lodged on the next day, the statements of the eyewitnesses have reached the court with a long delay only on 17.7.2017.
9. The contradictions in the evidence of P.Ws.4 and 5 who have deposed to have lastly seen the deceased and the appellant together

falsifies the prosecution case.

• The contradiction in the evidence of PW5 falsifies the case of the prosecution in respect of arrest, confession and recovery. Pointing out the above discrepancies, the learned counsel for the

appellant would seek for indulgence of this court.

• Absolutely no investigation has been done by the respondent with regard to the other, person who was stated to be in the company

of the appellant and the deceased on the previous night.

10. Per contra, Mr.Babu Muthumeeran, learned Additional Public Prosecutor would submit that the prosecution witnesses, especially, the eyewitnesses to the occurrence, have cogently spoken about the occurrence. He would further submit that PW1, co-brother of the deceased had seen the deceased and the appellant in the company with yet another person on the previous night, and after a few hours, P.W4 and 5 have also seen the deceased and the appellant quarreling with each other and PW5 had spoken about the appellant having assaulted the deceased with the stick and thus, the prosecution has proved its case beyond reasonable doubts and pray for dismissal of the

appeal.

11. Now, what requires to be seen is,
12. whether the prosecution has proved its case beyond

reasonable doubts? and

1. whether the trial court is right in convicting the appellant

based on the materials available?

12. The case of the prosecution as elicited from the prosecution witnesses is that the deceased used to drink liquor alongwith his friends frequently and due to a dispute between himself and his wife PW2, they were living separately and a week prior to the occurrence, when the deceased had visited the appellant’s residence for consuming liquor, the appellant/accused, without the knowledge of the deceased, had stolen petrol from his bike for using in his bike, as a result, the bike of the deceased stalled on the way due to lack of fuel as a consequence, the deceased had shouted on him at his residence and slapped on his cheek, due to which the appellant/accused felt ashamed

and to wreak vengeance, he had intended to do away with the deceased and accordingly,  on the date of occurrence, when the deceased had visited the house of the appellant alongwith one Duraian and was taking liquor, the appellant took a wooden log, M.O.3, from his house and gave several blows with the stick on the head and other

parts of the deceased and committed murder.

13. To prove the case against the appellant, the prosecution mainly relies upon the evidence of P.Ws.1, 4 and 5. The evidence of P.W.1 is that on the previous day of his return after his business collection, he had seen the appellant, the deceased and yet another person and he assuming that they were taking liquor as usual, proceeded to his house, however, on the next day at about 7.00 am, he was informed by the people of that locality that his co-brother, the deceased is lying dead  and on receipt of such information, he had visited the scene of occurrence and found his co-brother lying dead in front of the house of the appellant. His further evidence is that he had informed his sister-in-law, PW2 and she, in turn, instructed him to lodge complaint with the police and accordingly, he had rushed to the police station alongwith his neighbour one Thamilmani and lodged the complaint, Ex.P1  by 10.00 am on that day.
14. The relevant points to be noted in respect of the evidence of PW1, the author of the complaint, Ex.P1 is that the other person, who was found in company of the deceased and the appellant, as spoken by PW1 and named as Duraian in the charges framed against the appellant was not examined by the prosecution.  Further, one Thamilmani, the neighbour of PW1, who had accompanied to the police station to lodge the complaint was also not examined.  The case of the prosecution is that the deceased was staying separately in the house of one Ilayaraja at Karaiputhur, who was also not examined by the prosecution. Though PW1 speaks in his evidence that people from Thattan Thottam  had informed him over phone about the death of his co-brother, he could not identify as to who had informed him over phone and no one has been examined by the prosecution in this regard.  The non-examination of the above crucial witnesses is

certainly a flaw in the case of the prosecution.  It is further strange that the prosecution has not initiated to examine any witnesses of the

locality which creates grave doubt about the prosecution case.

15. Further, the evidence of PW1 is that he went to the police station to lodge the complaint and when he came back to the scene of occurrence, the wife of the deceased, PW2 had arrived at there by then, however, the evidence of PW2, Vanitha is that when she arrived at the scene of occurrence, the police personnel were there enquiring the witnesses and at the scene of occurrence, they had obtained signature of PW1. The above contradiction belies the case of prosecution with regard to lodging of complaint by PW1 in the manner

alleged.

16. The case of the prosecution is that P.Ws.4 and 5 are the eyewitnesses to the quarrel that took place between the appellant and the deceased. Their evidence is that at about 11.30/11.45 pm they were riding a Pulsar Bike belonging to PW5 and when the crossed the spot as spoken by PW1, they had seen the appellant/accused picking up quarrel with the deceased and beating him with a stick, M.O.3.  It is their version that both appellant and the deceased were known to them,  however, strangely, they depose that they kept away from the quarrel since the appellant/accused had shouted at them to mind their way and they thought that it is quite common for the appellant and the deceased to fight with each other and they could settle their issues by themselves.  W.4 and P.W5 are chance witnesses.  They both belong to the same locality and had acquaintance with both appellant and the deceased.  It is their evidence that when they had crossed the appellant’s house on their return from duty, they had witnessed the quarrel between the appellant and the deceased, however, it seems that they had struggled to maintain their stand during their cross examination.  Their admission and denial of suggestions leads to an inference that their presence at the scene of occurrence at the relevant

time is highly doubtful.

17. The evidence of a chance witness requires a very cautious and close scrutiny and it should stand the test of such caution and close scrutiny and it can be relied upon only if it is cogent, credible, trustworthy and the evidence has a ring of truth to it.  In Shankarlal vs. State of Rajasthan (2004) 10 SCC 632, a Full Bench of the Apex Court has held that evidence of chance witness, whose presence at the

place of incident is highly doubtful should be discarded.

18. The case of the prosecution is mainly on the basis of evidence of P.Ws.4 and 5. However, there are some material

contradictions in the evidence of PW4 and PW5.  It is the evidence of PW4 that he had not revealed to PW1 about his witnessing the appellant assaulting the deceased on the previous night and he had revealed about the same only to the police personnel however, PW5, has categorically admitted that he had revealed to PW1 in the scene of occurrence itself about the quarrel between the appellant and the deceased he had seen on the previous night and that too when the police had arrived at the spot. His specific evidence is that he had informed  about the incident he had seen on the previous night to the police official also and that he was very much available throughout the

process even till autopsy of the body.

19. If PW5 had informed PW1 about the incident he had seen on the previous night and when his evidence is taken by the prosecution as the basis to point out the appellant as the offender, such an information would have been found place in the complaint lodged by PW1 or atleast in his evidence, but, both the complaint and the

evidence of PW1 are silent on this aspect.

20. Similarly, when it is the categorical admission of PW4 that he had informed the police on 30.5.2017 about the incident he, alongwith PW5 had seen on the previous night, at the scene of occurrence itself and it has been recorded by the police and also on 31.5.2017, when the police had enquired him at the Police Station, PW14, Inspector of Police, who had initially conducted the investigation, does not speak at all about the same. A perusal of the inquest report, Ex.P19 also reveals that either in column 9 or 11, which speak about the cause of death

and suspect of crime, there is no mention at all about the information provided by PW4 having witnessed the assault of the deceased by the appellant/accused on the previous night which is a dent in the case of the prosecution and  it creates a doubt with regard to the concept of eyewitness.  Even in Ex.P19, the inquest report, at column 3, it is mentioned that one Mani had seen the dead body at 6.30 am on 30.5.2017, however, he has not been examined by the

prosecution.

21. Apart from the above, it is seen that though the statement of P.Ws.4 and 5 to the effect that they had seen the incident on the night prior to the occurrence, had been recorded on 31.5.2017 itself, they reached the court only on 17.7.2017 and their evidence is not corroborated by PW14, the investigating officer and such information alleged to have been provided by them does not reflect in the inquest report, Ex.P19 also and thereby, they lose their credentiality and

credibility.

22. Further, when the occurrence is said to have taken place on the night hours of 29.5.2017 and the complaint was lodged on the next day at 10.00 am, the printed copy of the FIR has reached the Judicial Magistrate Court, which is located just one kilometer away from the Palladam Police Station, only at 4.30 pm, nearly after more than 6 hours, as categorically admitted by PW13, Sub Inspector of Police. Though he admits in his evidence that it took only half an hour to register the complaint and prepare the printed FIR, Ex.P17 and it is mandatory that it should be sent to the court forthwith, he had tried to take a feeble contention that such a delay had caused only due to the

fact that he was assisting his higher official in the investigation.

23. In Suresh Chaudhary vs State of Bihar ((2003) SCC (Cri) 801), the Apex Court has held that inordinate delay of 1-1/2 days in sending the report to the Magistrate after the registration of complaint in the absence of any explanation therefor, it contributes to

the doubtful circumstances surrounding the prosecution case.

24. In Rajeevan and another vs. State of Kerala ((2003) SCC (Cri.) 751)), it has been held by the Apex Court that the delay in forwarding FIR to the Magistrate without satisfactory explanation

therefor, it would adversely affect the prosecution case.

25. Coming to the aspect of recovery of weapon, it is seen that PW9 has been examined as a witness to the arrest, confession and recovery of M.O.3 stick M.O.4 mobile phone, M.O.5 bloodstained shirt and M.O.6 bloodstained dhoti wore by the accused. He had deposed that the M.Os were recovered beneath a bridge on the way to Iduvampalayam based on the confession of the appellant whereas, it is the admission of PW5 during his cross examination that the stick M.O.3

was found near the door of the house of the appellant, which

contradiction also goes to the root of the prosecution  case with regard to recovery of weapon.  If the evidence of PW5, a witness alleged to have last seen the deceased in company of the appellant/accused,

quarreling with each other, the evidence of PW9 loses its reliability and as a consequence, the genuineness of the case of prosecution with regard to arrest, confession and recovery of material objects cannot be believed and vice versa, if the evidence of PW9 is to be accepted, the evidence of chance witnesses, viz., PW5 and the witness  alleged to

have accompanied him viz., PW4  become highly doubtful.

26. In such a backdrop, the conduct of the chance witnesses viz., P.Ws.4 and 5, who claim to have acquaintance with the appellant and the deceased, in not attempting to prevent the quarrel between the appellant and the deceased and protect the deceased from being assaulted by the appellant goes against the natural human conduct and thereby constrains this court to draw an inference that they could not have been present at the scene of occurrence on the previous night as claimed by them as they are not only chance witnesses but,

also interested witnesses.

27. A perusal of the entire materials would reveal that the case

of the prosecution is filled with the following discrepancies:-

1. Motive – Appellant is said to have stealthily took fuel from the motorcycle of the deceased, which made the deceased to shout at the appellant and slap on his cheek and thereby the appellant felt ashamed and to wreak vengeance, he had murdered the deceased, whereas, not even a single witness has been examined to speak about the motive part attributed to the appellant. Even in the complaint, PW1 has stated

that for some reason (not mentioned), his co-brother had been

murdered with some weapon (not mentioned).

1. Eyewitnesses – Though no independent witness has been examined to speak about the exact occurrence, the prosecution has come out with P.Ws.1, 2 and 4 to contend that they had seen the appellant and the deceased quarreling with each other on the previous night. As indicated above, there are many contradictions in their evidence and they are not only chance witnesses, but, also interested ones.

• Arrest, confession and recovery – Though the prosecution has projected the evidence of PW9, Village Administrative Officer, as witness to arrest, confession and recovery, the material contradiction

in the evidence of PW9 when compared to that of PW5, a chance

witness, the case of the prosecution becomes highly doubtful.

28. Taking into consideration the totality of the facts, circumstances and evidence on record, we are of the opinion that the prosecution has failed to prove the case beyond reasonable doubt and the Trial Court, without properly analysing and appreciating the evidence and materials available on record, has proceeded to convict

the appellant.

29. In view of the above, we find that the Trial Court has grossly erred in convicting the appellant in the absence of any material pointing out the appellant as guilty beyond reasonable doubt. Therefore, we feel that it may not be appropriate to confirm the conviction and sentence of the appellant rendered by the Trial Court. Accordingly, the judgment of conviction and sentence rendered by the II Additional District and Sessions Judge, Tiruppur. made in S.C.No.123 of 2017 dated 2.11.2018 is set aside and the appellant is acquitted of all the charges. The appellant is set at liberty. Bail bond executed, if any, shall stand cancelled.  Fine amount paid, if any, shall

be refunded to the appellant.

(S.V.N.,J.) (A.D.J.C.,J.) 16.8.2022.

Index: Yes/No. Internet: Yes/No. ssk.

To

1. II Additional District and Sessions Judge,
2. The Inspector of Police, Palladam Police Station,     Tiruppur District.
3. The Superintendent, Central Prison,
4. The Public Prosecutor, High Court, Madras.

S.VAIDYANATHAN, J.           and

A.D.JAGADISH CHANDIRA, J.

ssk.

P.D. JUDGMENT IN

Criminal Appeal No.791 of 2018

Delivered on

16.8.2022.