Decided on November 25,2006

RAJENDRAN Respondents


- (1.)Criminal Appeal No. 755 of 2001 has been filed by the State while Criminal Appeal No.756 of 2001 has been filed by the informant.
(2.)Challenge in both the appeals is to the judgment of a Division Bench of the Madras High Court directing acquittal of the respondents who faced trial for alleged commission of offences punishable under Section 302 of the Indian Penal Code, 1860 (in short the 'IPC') so far as the respondents 1 to 4 are concerned and Section 25 of the Indian Arms Act, 1915 (in short the 'Arms Act') so far as respondent Nos. 1, 3 & 4 are concerned. Learned Sessions Judge, Tirunvelli held them guilty and sentenced them to imprisonment for life for the first offence but no separate sentence was imposed for the later offence.
(3.)Prosecution version as unfolded during trial is as follows:
Ruby is the elder sister of P.W.l. Thiraviya Nadar (hereinafter referred to as the 'deceased') was her husband. P.W.3 is the mother of P.Ws.l and 5. P.W.5 was employed as a driver in the Government Transport Corporation. At about 9.00 a.m. on 11-03-1989 when P.W.5 was to catch a bus in the bus stand to go to his village, A2 and two others came there and assaulted P.W.5. who lodged a complaint before the police at the Palayamkottai Police Station. Head Constable, P.W.12 received that complaint at 11.30 a.m. on that day and registered it in Crime No.906/89 for offences punishable under Sections 326 and 506 (II) I.P.C. Ex.P-4 is the printed F.I.R. for that crime. On 14-09-1989 at 10.00 a.m. P.W.5 was coming out of his work place in the company of the deceased. The younger brother of P.W.5 was selling lottery tickets opposite to the work place of P.W.5. A3 assaulted P.W.5 with a cycle chain, which was attempted to be prevented by P.W.5. Al and A4 were also by the side of A3 at that time. P.W.5 informed the control room of the police over phone and the police arrived at the scene. Al, A3 and A4 ran away from the scene. P.W.5 and the deceased went to the police station at Palayamkotai and gave a complaint to Constable, P.W.6 which was registered by him in Crime No.1016/89 for offences punishable under Sections 341, 323 and 506(II) IPC. Ex.P-5 is the F.I.R. At 12.00 noon on that day, A3 appeared at the police station and gave a complaint, which was registered in Crime no. 1017/89 for offences punishable under Sections 294(B), 323 and 324 I.P.C. P.W.12 registered that complaint and Ex.P-6 is the printed F.I.R.

The occurrence had taken place on 17-09-1989 at about 6.00 p.m. P.W.1, along with his mother P.W.3 was walking towards their residential colony from west to east. The deceased was coming in the opposite direction. On being questioned, the deceased informed them that he was going to finalise purchase of tender coconuts and he was on his way to Melamuneerpallam for that purpose. Two hundred feet east of that place, the house of A2 is situated. A2, with an aruval and Al, A3 and A4 each with a stick, came there. A2 asked the deceased as to the whereabouts of P.W.5. The deceased replied that P.W.5 had gone to Madras. Thereafter A3 and A4 stated that it is the deceased, who always comes in support of P.W.5 and his family and therefore he must be finished off. Immediately A2 attempted to cut the deceased with an aruval, but the deceased ran towards south. All the four accused chased him. Behind the house of one Athiappan @ Muthiah, the deceased was surrounded by all the four accused. A2 attacked on the head of the deceased with "aruval". Thiraviya Nadar thwarted that attack with his left hand but that attack landed on his left elbow. Al, with a metal tipped stick, stabbed on the right side chest of the deceased. A4 stabbed on the left side back of the deceased. They stabbed him indiscriminately. Thiraviya Nadar fell down on the spot and all the accused persons ran away with weapons of offence. Thiraviya Nadar died. P.Ws.2 & 3 had seen the occurrence. P.W.2 is a neighbour of P.W. 1. P.W.1 went to Munneerpallam Police Station to give a complaint. M.O. 1 is the weapon of offence in the hands of A2 and M.0.2 is the weapon of offence in the hands of A 1. Thiraviya Nadar was wearing a white colour shirt at the time of assault and the entire shirt became blood stained. M.0.3 is the shirt and M.0.4 is the lungi worn by him. After completion of investigation, charge sheet was filed. As the accused persons pleaded innocence, trial was held.

The trial court found the evidence of the eye witnesses 1 and 3 to be cogent and credible and held the accused persons guilty as aforenoted. Before the High Court the primary stand was that there was serious doubt as to preparation and registration of the Ex.P1, it was pointed out that Ex.P1 came to be registered around 7 P.M. on 17.9.1989 at the police station which is hardly 2 k.m. away from the scene of occurrence. According to prosecution, the occurrence had taken place on 17.9.1989 at about 6 P.M. But Ex.P1 according to PW7 was sent at 3.45 a.m. on 18.9.1989 alongwith P18, the inquest report. The names of PWs. 2& 3 were not found mentioned in the inquest report. Therefore, it was submitted that the preparation of Ex.P1 is shrouded in mystery. The High Court noted that the evidence offered by the prosecution against the accused was that the deceased was always in the company of PW 5 and whenever PW 5 was in trouble, the deceased used to help him. A reference was made to Ex.P5, information that is the FIR in Crime No. 1016 of 1989. There was an earlier FIR Ex.P4 in Crime No. 355 of 1989. According to prosecution, when Ex.P5, information was lodged by PW5, deceased was in his company and both of them went to the police station. According to the High Court Ex. P5 does not disclose the presence of the deceased at or about the time when PW 5 was sought to be attacked by the accused. High Court observed that except oral evidence of PWs. 1& 3 that PW 5 was always found in the company of the deceased, there was no other legal material on record. The omission to mention about the presence of the deceased in the company of PW 5 when he lodged Ex.P5- information with the police was found to be a suspicious circumstance. It was observed that the motive ascribed was very weak. It was further noted that there was an element of doubt as to why A2 would ask the deceased about the whereabouts of PW 5. Evidence shows that the deceased answered by stating that PW5 has gone to Madras. High Court was of the view that some material should have been brought on record to show that PW 5 was not actually in town and had gone to Madras or any other place. The High Court thereafter came to the conclusion which according to us, is totally absurd that it was not possible to infer from the evidence of PW5 that he had gone to Madras and, therefore, the very question by A2 to the deceased and the answer that came out appears to be artificial. Probably, according to the High Court the prosecution wanted to have a platform from which they wanted to develop their case. It was also found that there was considerable delay in sending Ex.P1 to P7 to the court.

It was therefore held that the credibility of Ex.P1 to P7 were in serious doubt and therefore the prosecution case was vulnerable.

Additionally, it was held that certain partly digested food articles were found in the stomach of the deceased. According to the High Court, evidence should have been led to show as to at what point of time the deceased took his last meal.

It was also held that the evidence of PWs 1 & 3 shows that they could not have been present at the place of occurrence as the investigating officer had not examined anybody to conclude that PW 1&3 were present at the spot of occurrence. It was also noted that in the inquest report, the name of PW 3 was not there and, therefore, he was not present. Accordingly, as aforesaid, the acquittal was directed.

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