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Judgment
S. Nagamuthu, J.—The appellants are accused 1 to 5 in S.C.No. 169 of 2004 on the file of the Principal District and Sessions Judge,
Virudhunagar District at Srivilliputhur.
The first appellant has been convicted u/s 302 readwith 149 IPC and Section 302 read with 34 IPC and sentenced to undergo imprisonment for
life for each offence. Appellants 2 and 4 have been convicted u/s 302 read with 149 IPC and Section 302 read with 34 IPC and sentenced to
undergo imprisonment for life for each offence. The appellants 3 and 5 have been convicted u/s 302 read with 149 (2 counts) and sentenced to
undergo imprisonment for life (2 counts). The appellants 1 to 5 have been convicted u/s 148 IPC and sentenced to undergo rigorous imprisonment
for one year and u/s 341 IPC (2 counts) to undergo simple imprisonment for one month. The first appellant has been convicted u/s 307 IPC and
sentenced to undergo rigorous imprisonment for five years and the appellants 2 to 5 have been convicted u/s 307 read with 149 IPC and
sentenced to undergo imprisonment for five years. The lower court directed the sentence to run concurrently. Challenging the said conviction and
sentence dated 29.6.2006, the appellants have come forward with this appeal.
The case of the prosecution in brief is as follows:
This is a case of double murder. The first deceased was one Selvaraj and the second deceased was one Irulayee. The first deceased was the son
of the second deceased. One Gnanasekar who is the brother of the first deceased and the son of the second deceased had developed illicit
intimacy with the wife of the first accused Antony. One month prior to the occurrence, the wife of the first appellant had eloped with Gnanasekar.
The first accused along with his brothers accused 2 to 4, made enquiries with the deceased Selvaraj and Irulayee in respect of the whereabouts of
the Gnanasekar and the wife of the first accused viz., Jaya. But both the deceased expressed no knowledge. But the accused 1 to 4 believed that
both the deceased were wantonly refusing to disclose about the whereabouts of Jaya and Gnanasekar. Therefore, there arose a quarrel between
the accused 1 to 4 on one side and the deceased 1 and 2 on the other side.
On 25.2.2003, at about 5.00 a.m., when the deceased Selvaraj was proceeding from his village in his cycle to Poolangal village with a milk can
for the purpose of selling milk, near Poolangal kanmai, all the appellants way laid him and attacked him with sickles and velsticks. The occurrence
was witnessed by P.W. 2 and one Asaithambi. Then P.W. 2 and Asaithambi rushed to the house of P.W. 1 and the deceased Irulayee and
informed them about the fate of the deceased Selvaraj. At once, P.W. 1 and the deceased Irulayee rushed towards the place of occurrence from
their house. But when they were nearing the house of one Ravi, all the five appellants way laid them and attacked the deceased Irulayee with lethal
weapons like velstick and sickles. P.W. 1 intervened with a view to rescue the deceased Irulayee. But the first appellant stabbed her on her right
chest. The second appellant stabbed the deceased Irulayee with velkambu. The fourth appellant stabbed the second deceased Irulayee on her left
hand. The third appellant and the fifth appellant cut the deceased Irulayee with aruval. The second deceased Irulayee succumbed to injuries
instantaneously.
P.W. 1 and the deceased Selvaraj rushed to the Government hospital, Arupukottai in a van driven by P.W. 5. P.W. 8, was then an Assistant
Surgeon in the said hospital and he examined P.W. 1 at 7.40 a.m. and found the following injury:
Puncture wound 1 cm in diameter on the 4th intercostal space along interior axillary line, air coming through the wound.
Ex. P2 is the accident register relating to P.W. 1. He has opined that the injury found on P.W. 8 would have been caused by a weapon like
M.O.1 velstick. P.W. 8, sent due intimation to the police. On the said intimation, P.W. 16 who was then Sub Inspector of Police attached to
Thiruchuli police station proceeded to the Government Hospital, Aruppukottai and recorded the statement of P.W. 1 at 9.30 a.m. on 25.2.2003.
In the meantime, the deceased Selvaraj died in the hospital at 8.30 a.m. itself. On returning to the police station at 11.30 a.m., P.W. 16 registered
a case in Crime No. 11 of 2003 under Sections 147, 148, 307 and 302 IPC. Ex. P16 is the First Information Report. Then he forwarded Ex. P1,
complaint and Ex. P16, First Information Report to the jurisdictional Magistrate through a police constable. The learned Magistrate has received
the same at 4.00 p.m. on 25.2.2003. P.W. 16 then forwarded the case diary to P.W. 17, who was then Inspector of Police at Thiruchuli Police
Station for investigation.
P.W. 17, proceeded to the place of occurrence at 1.00 p.m. on 25.2.2003 and prepared an observation mahazar Ex. P11 in the presence of
witnesses and also prepared a rough sketch Ex. P19. Then he conducted inquest on the body of the deceased Irulayee at the place where the
body was found. Ex. P20 is the inquest report relating to the deceased Irulayee. He also recovered blood stained earth and sample earth from the
place where the body of the deceased Irulayee was found as well as from the place where the deceased Selvaraj was attacked under a mahazar
Ex. P12. He also recovered a cycle, milk can and other articles from the place where the deceased Selvaraj was attacked under Ex. P13 mahazar.
During inquest, he examined P.Ws.1 to 3 and other witnesses. Then he forwarded the dead body of the deceased Irulayee for postmortem
examination.
Then he proceeded to the Government Hospital and held inquest on the body of the deceased Selvaraj and prepared a report under Ex. P22.
He examined few more witnesses on the same day. Then he forwarded the body of the deceased Selvaraj also for postmortem examination.
P.W. 9 who was the Assistant Surgeon attached to the Government Hospital, Aruppukottai, on receiving the requisition from the police,
conducted autopsy on the body of the deceased Selvaraj at 9.30 a.m. on 26.2.2003 and found the following injuries.
1) A cut injury over the right side of temporal region of scalp about 8 cms above the right ear, size of about 6 cm x 2 cm x bone depth, transverse,
edges are clear cut and regular and tail of the wound towards back.
2) A cut injury over the middle of frontal region of scalp about 10 x 5 cm x bone depth causing fracture of underlying skull bone exposing the skull
cavity vertical in direction, tail towards front, edges are clear cut and regular.
3) A cut injury over middle of scalp just posterior to the injury No. 2 about 6 x 3 cm x bone depth, edges are clear cut and regular, tail towards
front, vertical in direction.
4) A cut injury over the middle of occipital region of scalp size about 5 x 1 cm x (muscle) depth, transverse, edges are clear cut and regular tail
towards right.
5) A cut injury over the occipital region of scalp just 2 cm below the injury No. 4 about 3 x 1/2 cm x skin depth, tail towards right, edges are clear
cut and regular.
6) A cut injury over right side of Mandibular region, about 8 x 3 cm x bone depth, causing fracture of right Rames of mandible and opening into
mounting tail towards right edges are clear cut and regular.
7) A cut injury the middle of mandibular region just 1 cms internal to the injury No. 6, size about 2 x 1 cm to bone depth causing fracture of
mandible, edges are clear cut and regular, tail towards right.
8) Diffuse contusion over front of neck and upper part of chest seen.
9) A cut injury over the front of right forearm about 6 cms above the wrist, size about 2 cm x 1 cm x bone depth causing fracture of both bones of
forearm, edges are clear cut and regular tail towards right side.
10) A diffuse swelling over left upper 1/3 of forearm, causing fracture of both bones of left forearm.
Ex. P4 is the postmortem certificate relating to the deceased Selvaraj. He has opined that the injuries found on the deceased would have been
caused by weapons like M.Os.1 to 6 and he has further opined that the death was due to the injuries sustained.
On the same day at 11.30 a.m, P.W. 19 conducted autopsy on the body of the deceased Irulayee. He found the following injuries.
A stab injury over middle of front of neck below the thyroid cartilage about the size of 4 x 1 cms x depth about 8 cms transverse, direction
towards backwards, inferior and to right side, causing complete of (torn) trachae and enter into right hemi thorax causing injury to (torn) apea of
right lung.
A stab injury over back of left side back about 10 cms below left ear, size about 3 x 1 cm x depth about 5 cms oblique, direction towards
posterior, inferior and to right, causing injury to left carotid artery.
A stab injury over left strna clavicular joint region, size about 5 cm x 2 cm x depth about 6 cms direction towards posterior and towards right
side, causing fracture of left clavicle and cut of trachae.
A stab injury over the left side of chest 2 cms below the injury No. 3, size about 6 cm x 2 cm depth about 6 cms verticle, direction towards
posterior and to right side, causing fracture of left II rib and injury to upper lobe of left lung on anterior aspect.
5) A stab injury over middle of left side of chest on left mammary region, 2 cms below the injury No. 4. size about 5 cm x 2 cm, depth about 10
cms, vertical, direction towards posteriorly and to right side, causing fracture of IV left rib and injury to anterior aspect of upper lobe of left lung
and piercing into left ventricle of heart.
6) A stab injury over left side of chest, 5 cms below and lateral to injury No. 5 size about 5 x 2 cms x depth about 6 cms, direction towards
posteriorly and to right side, causing fracture of 6th left rib and injury to upper lobe of left lung.
7) A stab injury over lower part of left side of chest about 6 cms medial to injury NO. 6 and 8 cm below the injury NO. 5 size about 5 cm x 2 cm
x depth about 8cms, vertical, direction towards posteriorly and towards right side, piercing into abdominal cavity and injury to left lobe of liver on
upper surface.
8) A stab injury over upper part of left side of abdomen size about 4 cm x 2 cm x depth about 8 cms vertical, direction towards posteriorly and to
right side, piercing the abdominal cavity and injury to mesentry.
9) A cut injury over left supra clavicular over about 5 cm x 2 cm x muscle depth, transverse.
10) A cut injury over left shoulder about 5 cm x 2 cm x muscle depth, transverse.
11) A stab injury over left palm piercing the whole of left hand size of 6 cm x 2 cm on palmar aspect and about 2 cm x 1 cm on posterior aspect of
left hand.
12) A stab injury over right side of chest on right mid clavicular bone size about 4 cm x 2 cm x depth about 12 cms vertical, causing fracture of 7th
& 8th right ribs, injury to lower lobe of right lung, injury to liver, piercing the liver from superior to inferior surface, direction towards posteriorly
medially and inferiorly.
13) A stab injury over right side of chest about 1 cm below the injury No. 12, size about 5 cm x 3 cm x depth about 10 cm vertical, directions
towards anteriorly, medially and inferiorly, causing fracture of 9th right rib and injury to liver from superior surface to inferior surface.
14) A stab injury over right side of abdomen, on right hypochondium size about 2 x 1 cm depth about 5 cms, piercing the abdomen direction
towards posteriorly and medially.
15) A stab injury over right side of abdomen, near injury No. 14, about 1 x 1 cm x depth about 1.5 cms.
All the above said injuries are elliptical in shape and edges clear cut and regular.
Ex. P6 is the postmortem certificate relating to the deceased Irulayee. He has opined that the injuries found on the deceased Irulayee would
have been caused by a weapon like M.O.s 1 to 5 and has further opined that the death was due to the injuries sustained.
Continuing the investigation, P.W. 17, arrested the first accused on 1.3.2003 at 4.00 p.m. at Viswatham village chathram in the presence of
P.W. 14 and other witnesses. On such arrest, the first appellant volunteered a confession, which was duly reduced into writing. In the said
statement, the first appellant had disclosed about the place where he had hidden M.Os.1 to 5. Ex. P14 is the admissible portion of the said
statement. Pursuant to the said statement, the first appellant took the police officials and identified the place where weapons were hidden and
produced the same. P.W. 17, recovered the articles under mahazar Ex. P15 in the presence of P.W. 14 and another witness. On the same day, at
5.00 p.m. he arrested the appellants 2, 3 and 4. Then he sent the appellants 1 to 4 to Court for Judicial remand. On 11.3.2003, the fifth appellant
surrendered before the Judicial Magistrate, No. 5 of Madurai. Then he examined Doctors and other witnesses. He gave requisition to the learned
Magistrate for forwarding the material objects for chemical examination. Ex. P9 is the chemical analylist report and Ex. P10 is the serologist report.
On completing the investigation, he laid charge sheet against all the appellants.
The trial court framed the following charges against the appellants.
1) Against appellants 1 to 5 u/s 148 IPC.
2) Against appellants 1 to 5 u/s 341 IPC for having restrained the deceased Selvaraj.
3) Against accused 1 to 5 u/s 302 read with 149 IPC in respect of murder of the deceased Selvaraj.
4) Against accused 1 to 5 u/s 341 IPC for having restrained the deceased Irulayee and Manimekalai, P.W. 1.
5) Against accused 1 to 2 and 4 u/s 302 readwith 34 IPC in respect of the death of the deceased Irulayee.
6) Against appellants 3 and 5 u/s 302 read with 149 IPC in respect of death of the deceased Irulayee.
7) Against accused 1 u/s 307 IPC for having made an attempt on the life of P.W. 1, Manimegalai.
8) Against Accused 2 to 5 u/s 302 read with 149 IPC in respect of attempt on the life of P.W. 1 Manimegalai.
Since the appellants pleaded not guilty, they were put on trial. During trial, on the side of the prosecution, 17 witnesses were examined, 22
documents were exhibited and 22 material objects were marked.
When the appellants were questioned in respect of the incriminating evidence against them, they denied the same as false. However, they did
not chose to examine any witness on their side or mark any document.
Having considered the materials available on record, the trial court found the accused guilty under various provisions and accordingly convicted
and sentenced them as detailed herein above. Challenging the said conviction and sentence, the appellants have come forward with this appeal.
The learned Counsel for the appellants would submit that in so far as the killing of the deceased Selvaraj is concerned, absolutely there is no
evidence whatsoever. He would submit that the positive case of the prosecution is that P.W. 2 and one Asaithambi witnessed the occurrence.
P.W. 2 has turned hostile and Asaithambi has not been examined for the reason best known to the prosecution. Thus, according to him, there is no
evidence at all for linking the accused with the murder of the deceased Selvaraj and therefore, in respect of those charges, all the appellants are
entitled for acquittal.
The learned Counsel would further submit that in respect of the occurrence involving the murder of the deceased Irulayee and attempt on the
life of P.W. 1, the prosecution relies only on the evidences of P.Ws.1 and 3. But their evidence cannot inspire confidence of the Court, the learned
Counsel contended. He would further submit that though it is stated that P.W. 1 and the deceased Irulayee were attacked with aruval as well as
with velstick, the injuries found on the deceased Irulayee and P.W. 1 could not have been caused by a weapon like aruval since all the injuries
found on them were stab injuries. Thus according to the learned Counsel for the appellants, the medical evidence also does not support.
He would further submit that though it is stated that M.Os.4 and 5 were used by the appellants 3 and 5 to cause injuries on the deceased
Irulayee, but there was no blood found on these weapons. Therefore, the learned Counsel would submit that the evidence of P.Ws.1 to 3 are fully
unbelievable and as such, their evidence are liable to be rejected.
Per contra, the learned Additional Public Prosecutor would submit that the evidence of P.Ws.1 to 3 cannot be rejected. More particularly, the
evidence of P.W. 1, who is an injured person cannot be rejected, since there are no reasons to do so. He would further submit that though P.W. 2
has turned hostile, P.Ws.1 and 3 have seen all these appellants together with weapons somewhere near the place of occurrence, where the
deceased Selvaraj was killed. Therefore, according to the learned Additional Public Prosecutor, the evidence of P.Ws.1 and 2 would be sufficient
to convict all the appellants in respect of murder of the deceased Selvaraj.
The learned Additional Public Prosecutor would further submit that the medical evidence, of course, does not tally in so far as Accused Nos.3
and 5 are concerned in respect of the injuries found on the deceased Irulayee. But the said infirmity cannot be a ground to reject the entire case of
the prosecution. In conclusion, the learned Additional Public Prosecutor would pray for sustaining the findings rendered by the trial court.
We have considered the rival contentions and also perused the records very carefully.
As it is stated by the prosecution, the deceased Selvaraj was done to death at 4.45 a.m. on 25.2.2003. But, unfortunately, P.W. 2, who was
examined by the prosecution as an eyewitness to speak about the involvement of these appellants in the murder of the deceased Selvaraj has
turned hostile and hence, his evidence is of no use at all for the prosecution. The other witness, by name Asaithambi, who claimed to have seen the
occurrence has not been examined. Thus, virtually there is no eyewitness in respect of the murder of the deceased Selvaraj. The contention of the
learned Additional Public Prosecutor is that the evidence of P.Ws.1 and 2 would be sufficient to hold that the deceased Selvaraj should have been
done to death only by these appellants. To examine the said contention, we have carefully gone through the sketch and observation mahazar to
satisfy ourselves as to whether P.Ws.1 to 3 could have seen these appellants any where near the place where the deceased Selvaraj was killed. In
our considered opinion, the same is not possible, since the distance between the place where the deceased Selvaraj was attacked and the place
where the deceased Irulayee was killed is about 350 feet. It is not the evidence of P.Ws.1 and 3 that they saw these accused coming together or
standing together with weapons some where near the house of Ravi, i.e. about 350 feet away from the place where the deceased Selvaraj was
attacked. They found all these accused suddenly emerged and started attacking them. Therefore, the evidence of P.Ws.1 to 3 would not unerringly
point out to the guilt of the appellants in respect of the murder of the deceased Selvaraj. Therefore, we cannot uphold the findings of the trial court
that the deceased Selvaraj was way laid and killed only by these appellants.
In respect of the second occurrence, according to the prosecution, it happened near the house of one Ravi. P.W. 1 is an injured witness. So,
his presence at the place of occurrence can not be doubted. Though P.W. 3 claims to be an eyewitness, we are not convinced that he would have
been present at the place of occurrence. The first reason is that his name is not found in the First Information Report as an eyewitness. Had it been
true that he was present at the time of occurrence, since he happens to be the brother of the deceased Selvaraj, P.W. 1 would not have omitted to
mention about the same in Ex. P1. We are not disbelieving the presence of P.W. 3 not solely on this ground. According to the prosecution, there
were five assailants, all armed with weapons. They were enemical towards not only Selvaraj, P.W. 1, the deceased Irulayee and also against P.W.
Had it been true that P.W. 3 was present, certainly attempt on the life of P.W. 3 would have been made. But it is not the case that any such
attempt was made on him. This in our considered opinion is strange which impel us to doubt the presence of P.W. 3 at the place of occurrence.
Therefore, we reject the evidence of P.W. 3.
Thus, the case of the prosecution rests only on the evidence of P.W. 1, who is an injured witness. According to her evidence, the deceased
Irulayee was attacked by all the accused with lethal weapons like velstick and aruval. More specifically, she has stated that Accused 3 and 5
attacked the deceased Irulayee with Aruvals indiscriminately and others stabbed her with velsticks. As rightly pointed out by the learned Counsel
for the appellants, we are not able to see any cut injury on the deceased Irulayee. Thus, the evidence of P.W. 1 in respect of Accused Nos.3 and
5 is not supported by medical evidence. But the medical evidence contradicts the same. The said contradiction in our considered opinion is
material which creates doubt about the involvement of Accused Nos.3 and 5 in the attack on the deceased Irulayee. However, we find cogent and
convincing evidence as against Accused Nos. 1, 2 and 4. The trial court in our considered opinion was right in holding that Accused Nos.1,2 and
4 had committed the murder of the deceased Irulayee.
In so far as the attempt on the life of P.W. 1 is concerned, it is not the case that Accused Nos.3 and 5 ever made any attack on P.W. 1. Even
according to P.W. 1, Accused No. 1 alone caused the stab injury on her. Therefore, Accused No. 1 is surely liable for conviction u/s 307 IPC.
Since we have doubt about the involvement of Accused Nos.3 and 5 in the whole occurrence in respect of the attempt made on the life of P.W. 1
also, we have to necessarily acquit Accused Nos. 3 and 5. However, the accused 2 and 4 are liable to be convicted u/s 307 readwith 34 IPC.
In result, all the appellants are acquitted of charge No. 1 u/s 148 IPC and the charge No. 2 u/s 341 IPC in respect of the alleged restraint
made on the deceased Selvaraj. The appellants 1 to 5 are acquitted of charge No. 3 u/s 302 read with 149 IPC in respect of murder of the
deceased Selvaraj. The conviction and sentence under Charge No. 4 in respect of appellants 1, 2 and 4 is confirmed u/s 341 IPC and the
sentence is also confirmed. Under this charge (Charge NO. 4), the appellants 3 and 4 are acquitted and the conviction and sentence is set aside.
Under charge No. 5, appellants 1,2 and 4 are convicted u/s 302 read with 34 IPC and the conviction and sentence imposed on them is confirmed.
Under charge No. 6, the appellants 3 and 5 are acquitted and conviction and sentence imposed under the said charge u/s 302 read with 149 IPC
in respect of the deceased Irulayee is set aside. Under charge No. 7, the conviction and sentence imposed on the first appellant u/s 307 IPC in
respect of the attempt made on the life of P.W. 1 is confirmed. Under charge No. 8, the appellants 3 and 5 are acquitted and the conviction and
sentence imposed on them is set aside. The conviction and sentence in respect of appellants 2 and 4 u/s 307 readwith 34 IPC is confirmed.
In result, the appellants 3 and 5 are acquitted of all the charges and the conviction and the sentence imposed on them is set aside. They are
directed to be set at liberty forthwith, unless they are required in connection with some other case. The conviction and sentence in respect of other
appellants is modified as indicated above. The appeal is partly allowed.
Before parting with the case, we should point out that the Officer, who has investigated the case has not taken pains even to collect the
accident register in respect of the deceased Selvaraj and to examine the Doctor who treated him. The way in which he has deposed before the
Court also shows that he was quite indifferent even while deposing. We only express our anguish in this regard.