Santosh Hegde, J. -
(1.)The appellant abovenamed was charge-sheeted by Erode Taluk Police Station for an offence under Section 302, IPC (on two counts) and Section 506, IPC before the Judicial Magistrate, Erode, for having committed the murders of Arisikarar alias Nachimuthu (D-1) and Beedikarrar alias Nachimuthu Gounder (D-2) due to previous enmity and for further having threatened certain others who tried to intervene in the incident which led to the death of D-1 and D-2. Learned Sessions Judge, Periyar District, after trial, came to the conclusion that the prosecution has established that the appellant had committed the said murders, hence, found him guilty of offence punishable under Section 302 on two counts and convicted and sentenced him to life imprisonment on each of the said count and further held him guilty for an offence punishable under Section 506, IPC and convicted and sentenced him to undergo RI for a period of one year. He directed that all the sentences should run concurrently.
(2.)The appeal of the appellant before the High Court of Judicature at Madras being unsuccessful, the appellant is before us in this criminal appeal. The prosecution case, stated briefly, is as follows :
The family of the accused was originally staying in a village called Velauthampulayam and moved about 25 years before the date of the incident from the said village to Thottanichatram. His family members were agricultural labourers. It is stated that the accused had 2 brothers and 2 sisters out of which Saraswathi also known as Sarasu, the elder sister, was doing the work of agricultural labourer. About 15 years prior to the incident in question, one of the sons of deceased D-1, namely, Muthusamy and another friend of his also known as Muthusamy alais Kidakarar son of Chinnappa Gounder had raped the said Sarasu. In regard to this incident, a Panchayat was called and there was a suggestion that either of the persons involved in the said rape incident should marry the said Sarasu which was not agreed to by D-1 and the latter had threatened the family of the appellant to banish the said Sarasu from the village because of her bad character. The appellant's family being helpless, had to send her away to Madras where she lived for sometime and about 4 years before the date of the incident, she had come back to the village along with another person whom she claimed to have married and on coming to know of the said incident of rape, her husband is supposed to have taken her away to a place called Karaikudi. The further case of the prosecution is that thereafter about 2 years prior to the date of the incident, the said Saraswati again came back to the village alone and when D-1 came to know of the same, he called the appellant and warned him that if Sarasu was allowed to stay in the village, he would arrange for a boycott of the family by other villagers, therefore, he directed the appellant to take Sarasu away from the village because of which Sarasu had to go away. It is the case of the prosecution that since then the appellant entertained a grudge against D-1 and was off and on telling people that because of the deceased persons, his family had been ruined. With this incident in the background, according to the prosecution, the appellant wanted to take vengence upon the deceased persons, hence, on 16-12-1990 at about 1.30 p.m. when the two deceased persons were working on a piece of land near about their house , he attacked them with a sickle, consequent upon which both the deceased died on the the spot. It is stated that this incident was witnessed by PW 1 who is son of D-1, PW 2, Palanisamy, son of D-2, one Thulasi Ammal, wife of PW 2 and Rengasamy son of D-2. The further case of the prosecution is that the appellant after the attack took to his heels with the blood stained sickle in his hand. It is also stated that as he was running, he met PW 3, Chinnappa Gounder and one Papayee alias Periyammal wife of D-1. It is the case of the prosecution that the accused volunteered an extra-judicial confession of his assault on the deceased to these two persons, namely, PW 3 and Papayee and thereafter he ran further away. The prosecution states that after seeing his father and uncle dead, PW 1 went to the residence of PW 11 V.K. Saburamaniam who was the Village Admdinistrative Officer (VAO) and narrated the incident to him who recorded the statement of PW 1 as per Ex. P1 and read the same over to PW 1 and obtained his signatures. Thereafter, PW 11 is alleged to have inspected the place of the incident and confirmed the statement of PW 1 to be correct and went to Erode Taluk Police Station along with PW 1 and submitted Ex. P1 at about 4 pm. to the Sub-Inspector (PW 13) along with special report of PW 11, PW 13, the Sub-Inspector then prepared an FIR in the printed form in Ex. P17 and sent the same to the jurisdictional Magistrate and other higher officials by which time PW 14, the Inspector of Police at the said Police Station came to the Station and took over the investigation. It is stated that PW 14 along with his other staff proceeded to the place of the incident. PW 1 and PW 11 which is about 13 miles away from the Police Station. On reaching the village, PW 14 conducted the inquest and recorded the statement of PWs 1 and 2 and some others. He seized some blood stained articles, sent some of them to the Chemical Examiner and arranged for the bodies of the deceased to be sent for post mortem. PW 5, the doctor who conducted the post mortem examination found 3 injuries on the body of D-1 out of which injury No. 3 had almost severed the neck of the deceased and was hanging by the front skin of the neck. He found another cut injury on the left hand of the deceased. On the body of D-2 the doctor found a cut injury on the nape of the neck extending till below the jaw bone up to the place called angle. The said injury had cut the head which was hanging from the jaw-bone and the skin on that part. The doctor opined that the death was caused due to shock and bleeding caused by the said injuries on the bodies of the deceased. In the examination-in-chief the doctor had opined that the death of the deceased might have been caused within a period of 16-24 hours before the post mortem. The post mortem report of the doctor was marked as Ex. P4. It is also stated by prosecution that on 17-12-1990 the appellant went to the village Mettukkadai and met the VAO of that village by name Chinnasamy at about 8 am. and told him that he had committed the murder of the deceased persons at their village and since he apprehended that if he went to the Police by himself, he would be tortured. He requested PW 12 to take him to the Police Station and hand him over. According to this witness he made a lengthy statement which was taken down by him in writing and he has obtained the signature of the accused on the same. This extra-judicial confession was marked as Ex. P14, subject to objection. During the course of investigation it is alleged that on a statement made by the appellant MO-1 the sickle was recovered along with certain stained clothes of the appellant.
(3.)Mr. N. Natarajan, learned senior counsel for the appellant, contended that the entire prosecution case is totally unbelievable. He pointed out that the investigation conducted by PW 14 does not inspire any confidence whatsoever and there is very serious doubt as to the time and place of the occurrence of the incident as also to the presence of the eye-witnesses. He pointed out from the evidence PW 16, IO, that when he got to read the complaint of PW 1 he was not sure of the facts narrated in the said complaint. Therefore, even though the name of the accused was mentioned in the complaint, he had decided to investigate to ascertain the real culprit by inquiring with the eye witnesses himself which according to the learned counsel, this itself shows even PW 16 was doubtful about Ex. P1. He also contended that from the evidence of the doctor in the cross-examination, it is clear that the death in question had occurred about 39 hours before the post mortem which would take the time of death sometime in the evening/night of 15-12-1990 which if it is correct would entirely demolish the prosecution case. He also submitted that non-examination of the independent witnesses as also other eye-witnesses who were the members of the family of the deceased, creates considerable doubt on the prosecution case. He pointed out that PW 1 was not residing with D-1 and was staying independently with his family about one and a half kilometers away from the house of D-1 therefore his presence at the time of the incident is also doubtful. From the contents of Ex.P1 the complaint and the evidence of PW 1 as well as the alleged extra judicial confession made as per Ex. P14, he pointed out great similarity in them as to the motive, nature of attack etc. which also throws considerable doubt on the prosecution case. He also pointed out the discrepancy between the oral evidence of the two eye witnesses and the medical evidence. From this he concluded that the prosecution case cannot be accepted and the courts below have very lightly brushed aside the various discrepancies, omissions and glaring infirmities while coming to the conclusion that the appellant was guilty of the offence.