Mookan vs State

V.S. Ravi, J. - The appellant is the sole accused in S.C.No.36 of 2011(Crime No. 351 of 2009), on the file of the learned Additional Sessions Judge, Fast Track Court No. I, Thoothukudi. He has been charged for the offences under Sections 341 and 302 I.P.C. The trial Court, by Judgment dated 28.04.2011, acquitted him under Section 341 I.P.C, but convicted him under Section 302 I.P.C., and sentenced him to undergo Life Imprisonment and also imposed a fine of Rs.2,000/- and, in default, to undergo Rigorous Imprisonment for six months. Challenging the said Judgment passed in S.C.No.36 of 2011, the appellant/accused in Crime No. 351 of 2009, is before this Court with this present appeal and he is confined in Central Prison, Palayamkottai.

The brief case of the prosecution is as follows;

On 07.10.2009, there arose a wordily quarrel, between the accused and the deceased Mani in Isac Tea stall at Thalamuthunagar Bazar and due to the previous enmity, on 08.10.2009 at about 00.30 hours, when the deceased Mani has gone near the house of Joseph at Samarvias Nagar 3rd Street, Thalamuthunagar, Thoothukudi and at that time, the accused has waylaid and dragged him and brutally assaulted him repeatedly with stone and caused his death, and thereby the appellant / accused committed the offences punishable under Sections 341 and 302 I.P.C.

2.1. In order to prove the case of the prosecution, the prosecution has examined 19 witnesses as P.W.1 to P.W.19 and also marked 19 exhibits as Ex.P.1 to Ex.P.19 and also Material Objects as M.O.1 to M.O.11.

2.2. P.W.1 Gopi has spoken about the occurrence and he has lodged the complaint as per Ex.P.1 to the Sub Inspector of Police and also he has identified the Gold Ring as M.O.1 and M.O. Nos.2 and 3, namely, the dresses of the P.W.1 and big stone as M.O.4. Further, P.W.2 Sudalaimani has also corroborated the evidence of P.W.1. P.W.3 Victor has taken the deceased to the hospital in his Tempo on the date of occurrence and P.W.5 Dr. Ganapathy has issued Postmortem Certificate as per Ex.P.3. Further, P.W.6 Jesudass has spoken about the M.O.4, kept for constructing the wall and P.W.7 Mariappan has stated that the police have prepared Observation Magazar of Ex.P.4 and also they have recovered M.O.5 bloodstained earth and M.O.6 Sample earth in the Athatchi of Ex.P.5. P.W.8 Pakiaraj has stated that he and one Vignesh have signed in admissible portion of the confession statement of Ex.P.6 and they have also signed in Athatchi of Ex.P.7 for the recovery of M.O.Nos.7 and 8, namely, the dresses of the accused. P.W.9 Thiru. Kadhirvelandi, Head Clerk of Judicial Magistrate Court No. 2, Thoothukudi has stated that Ex.P.10 is the Chemical Analysis Report and Ex.P.11 and Ex.P.12 are the Serology Reports.

2.3. P.W.10 Thiru. Sellathurai, Head Constable has spoken about the Ex.P.17 Express F.I.R submitted to the learned Judicial Magistrate No. 2, Thoothukudi on 8.10.2009 at 7.45 a.m., and P.W.11 Thiru. Ramalingam, Head Constable has handed over the dead body of the deceased Mani to the Thoothukudi Government Hospital for conducting Postmortem and after conducting the Postmortem, he has handed over the dead body of the deceased to the relatives and also he has handed over the M.O.Nos.9 to 11, namely, the dresses of the deceased to the police station. P.W.12 Sankaralingam, Head Constable has submitted the Death Intimation Report of Ex.P.15 to the Sub Inspector of Police.

2.4. P.W.13 Dr. Geetha has issued Accident Register as per Ex.P.16. P.W.14 Thiru. Joseph has spoken about the presence of street lights on the date of occurrence in the place of occurrence and P.W.15 Sekar has stated that he has knowledge about the incident through newspaper. P.W.17 Thiru. Radhakrishnan, Sub Inspector of Police has received the Ex.P.1 complaint on 08.10.2009 and registered a case in Crime No. 351 of 2009 and also he has submitted the Ex.P.17 Express First Information Report to the learned Judicial Magistrate No. 2, Thoothukudi. P.W.18 Thiru. Vijayendran, Scientific Assistant has issued Serology Reports as per Ex.P.11 and Ex.P.12. Further, P.W.19 Thiru. Gajendravaradhan, Scientific Assistant has issued the Chemical Analysis Report as per Ex.P.10.

2.5. P.W.16 Thiru. Jeyaprakasam, Inspector of Police has taken investigation of the case and he has prepared Observation Magazar, Rough Sketch and Inquest Report as per Ex.P.4, Ex.P.18 and Ex.P.19 and also he has recovered the M.O.5 bloodstained earth and M.O.6 sample earth in the Athatchi as per Ex.P.5. Further, he has recorded the admissible portion of the confession statement given by the accused as per Ex.P.6 and also he has recovered the M.O.Nos.7 and 8, namely, the dresses of the accused in the Athatchi as per Ex.P.7. Further, he has enquired the P.W.5 Postmortem Doctor and received the Ex.P.3 Postmortem Certificate and he has enquired the P.W.4 Jesuraja who has taken the deceased in his vehicle to Thoothukudi Government Hospital and after completing the investigation, he has filed final report on 27.10.2009.

On completion of the evidences on the side of the prosecution, the accused has been questioned under Section 313 Cr.P.C., as to the incriminating circumstances mentioned in the evidences of prosecution witnesses and he has stated that he is an innocent person and he is not involved in the case.

Having considered all the above materials on record, the trial Court has convicted the accused, as mentioned in the beginning of this judgment and challenging the said judgment, the appellant has come forward with the present appeal.

It is stated in the Grounds of Appeal, that the Judgment of the Lower Court is against law, weight of evidence and probabilities of the case. P.W.1 and P.W.2 are closely related to the deceased and they are interested witnesses and therefore their evidences have not to be relied upon in this case. The Lower Court has failed to note that the motive put forward by the prosecution has not been established by the prosecution in the present case. The Lower Court has failed to see that the F.I.R has not been registered on the basis of the complaint given as stated by the prosecution, and the same has been prepared at a later stage for the purpose of the case and as such the F.I.R has not to be relied upon. There is vital contradictions between the evidences of P.W.1 and P.W.2 and medical evidence and the charge framed as against the accused has not been proved by the prosecution beyond all reasonable doubts. The Lower Court has failed to see that in the Accident Register, it is only mentioned that P.W.3 Victor has brought the injured to the hospital and the injured has not been brought before the Doctor by P.W.1 and P.W.2 and so they are not available at the place of occurrence. The Lower Court has failed to note that one Vignesh, who has written the complaint, has not been examined in this case and it is fatal to the prosecution case. The Lower Court has failed to note that in order to prove the light facility in the place of occurrence, the worker of Electricity Board has not been examined in the present case.

The points that arise for consideration in the present Criminal Appeal are as follows:-

i) Whether the Lower Court has passed the impugned judgment, after properly appreciating the materials on record, in the proper perspective?

ii) Whether the Criminal Appeal has to be allowed for the reasons and grounds stated in the Memorandum of Appeal and also for the submissions made on behalf of the appellant?

Analysis, discussions and findings with regard to the above mentioned points:-

The learned counsel for the appellant has submitted that the Trial Court has committed error in convicting the appellant on the basis is highly unbelievable, insufficient and unconvincing evidences of the prosecution. The appellant/accused has been wrongly implicated in the commission of the crime by the prosecution. Further, the learned counsel appearing for the appellant has submitted that when several independent witnesses are available, the prosecution has purposely chosen to examine the P.W.1 and P.W.2, who are none else than the son and brother of the deceased and a whole case rest on the evidences of P.W.1 and P.W.2 and their evidences are not clear and cogent. Further, the evidences of P.W.1 and P.W.2 have not inspired the confidence to believe the case of the prosecution. There are serious infirmity in the case of the prosecution. Further, the evidences of the prosecution witnesses are not clear and cogent, about the offence alleged to be done by the appellant. There are no believable evidences on record to establish the case of the prosecution and hence the case of the prosecution is unbelievable and unreliable.

On the other hand, the learned Additional Public Prosecutor has submitted that the reasons given by the Lower Court for recording the Judgment of Conviction against the appellant, are based upon the proper appreciation of the evidences and material records submitted by the prosecution. Further, he has submitted that the evidences of prosecution witnesses coupled with Exhibits and Material Objects are clear and satisfactory and also with hypothesis of the guilt of the appellant and the Lower Court has passed well-reasoned and well-merited Judgment.

P.W.1 Gopi has categorically admitted in his evidence that he is the son of the deceased and he has seen the occurrence directly and the P.W.2 Sudalaimani has also admitted that he is the brother of the deceased and he has seen the occurrence directly. According to the prosecution, the P.W.1 and P.W.2 are the eyewitnesses of the occurrence. Further, the prosecution has stated that due to the previous enmity, the accused has brutally assaulted the deceased with the help of M.O.4 stone and caused death to the deceased. The Ex.P.1 complaint has been lodged immediately after the occurrence by the P.W.1. It is stated that only the accused has entered into wordily quarrel with the deceased and created trouble. However, the P.W.1 has vividly deposed in his evidence that before the occurrence, the deceased has dashed with the accused slightly and also the deceased has scolded the accused that he is unable to live with his wife. P.W.2 has also manifestly deposed that in his evidence that the deceased has dashed the accused slightly and also the deceased has scolded the accused, that the accused is unable to live with the wife. Further, the P.W.1 has clearly pointed out that the Ex.P.1 complaint has been written by one Vignesh, namely, the son-in-law of P.W.1. However, the said Vignesh has not been examined by the prosecution. Also, the prosecution has not furnished any acceptable reasons for not examining the said Vignesh. Further, P.W.2 has particularly deposed that P.W.3 Victor has taken the deceased to the doctor. However, in the evidence of P.W.3, he has clearly deposed that he has seen the accused for the first time on 09.03.2011, while giving evidence before the Lower Court only and even the name of the deceased is also not known to him, at the time of taking the deceased to the doctor. Further, P.W.1 has categorically admitted in his cross examination that in the Ex.P.1 complaint, he has not stated about the scolding of the accused by the deceased that the accused is unable to live with his wife. Further, the P.W.1 has admitted in his evidence that the deceased, namely, his father is an addict of drinking of Alcohol and they have not lodged any complaint to the police station, regarding the previous trouble that has happened prior to the brutal assault. Further, P.W.1 has deposed in the cross examination that he has no knowledge about the place of residence of the wife of the accused and he has not stated in the Ex.P.1 complaint about the scolding of his father, namely, the deceased, that the accused is unable to live with the wife and also to lead a married life.

Further, the P.W.1 and P.W.2 have clearly mentioned that they have seen the dance function on 07.10.2009 at night hours and during mid night, the deceased has got stomach pain and he has gone to some dark place in order to go for latrine. However, the P.W.5 Dr. Ganapathy, who has conducted Postmortem on the dead body of the deceased and also, issued Ex.P.3 Postmortem Certificate, as per the Ex.P.2 requisition made by the police, has specifically pointed out that if the person has gone for latrine and suddenly assaulted and also death has occurred and then, the latrine would have come out from his body and he has examined the dead body of the deceased and he has not noticed any such details in the said dead body of the deceased. Hence, it is found that the evidence of P.W.1 and P.W.2, namely, the eyewitnesses are not corroborating with the medical evidence of P.W.5. Further, P.W.1 and P.W.2 have deposed that they have followed the deceased and at that time, the accused has suddenly assaulted the deceased with the help of M.O.4 stone. However, P.W.2 has particularly admitted in his evidence that they have not tried to stop the accused from assaulting the deceased or they have not tried to catch hold of the deceased, after the occurrence. Further, the P.W.3 Victor has undeniably deposed that he has got no knowledge about the two persons seen at the place nearer to the body of the deceased and the P.W.13 Dr. Geetha has enquired about the name of the deceased to P.W.3 and he has asked about the name of the deceased from the persons, standing outside of the hospital and then only, informed the deceased name and thereafter only, the P.W.13 Doctor has written the name of the deceased as Mani in bracket, as the Doctor has already written as unknown person, in the Ex.P.16 Accident Register. It is also seen that P.W.13 has written in the column of the deceased name as unknown person at the first instance and thereafter, she has written in bracket as Mani, in the said Accident Register. Further, the P.W.13 has also categorically admitted that initially, P.W.3 Victor has not informed the name of the deceased person and thereafter only, he has stated the name of the deceased as Mani. Hence, she has written in the bracket as Mani in the Ex.P.16 Accident Register.

Further, P.W.4 Jesuraja has been treated as hostile witness, as he has not supported the case of the prosecution. Further, P.W.6 Jesudass clearly deposed that he has not seen the occurrence and he has not no knowledge about the deceased person. Further, P.W.7 Mariappan has deposed that he has only heard about the occurrence on the next day at 6.00 a.m. P.W.10 Sellathurai has deposed that he has submitted the Ex.P.17 F.I.R to the learned Judicial Magistrate No. 2, Thoothukudi on 08.10.2009 at 7.45 a.m., and also he has deposed that he has received the said F.I.R at 4.30 a.m., itself from the police station and due to the puncher of the cycle tyre, he has submitted the said F.I.R only at 7.45 a.m. Further, P.W.15 Sekar has also deposed that he has only heard about the incident and also he has deposed that the western side and southern side of the place of occurrence have been covered with coconut leaves and there is no light in the house of P.W.15 and as per newspaper report only, in his 3 cents land, the deceased person has been assaulted.

Further, P.W.16 Jeyaprakasam, Investigation Officer has manifestly deposed that he has enquired the persons living in the nearby house, namely, place of occurrence, and ascertained about the lights in the place of occurrence. However, P.W.15 has deposed that there is no light in his 3 cents land, namely, the place of occurrence. Hence, regarding the proper light facilities available at the place of occurrence has also not been clearly established by the prosecution, to witness the occurrence during the night hours. Further, the evidence of P.W.1 and P.W.2, who are interested and related witnesses to the deceased person, have to be examined with care and caution. Further, the P.W.1 and P.W.2 have clearly pointed out that already there existed motive in between the deceased and the accused. In such circumstances, the evidences of P.W.1 and P.W.2 eyewitnesses have to be examined with extra caution and on a careful scrutiny of the entire materials available on record, it is found that the evidence of P.W.1 and P.W.2 are not clear, cogent and natural and also not believable to accept the case of the prosecution. Further, in the citation reported in (2003) 12 SCC 675, (State of M.P. v. Kriparam), it is clearly observed as follows:-

"Thus even the motive suggested, in our view, is very weak. It is based on these facts available from the evidence of the prosecution, the High Court rightly came to the conclusion that it was not safe to base a conviction on the accused, hence, it allowed the appeal." In this case also, it is found that the prosecution has not established the strong motive for the accused to commit the murder of the deceased with the help of M.O.4 stone, beyond reasonable doubts."

Of course, the Court has to analyse the materials available, on record and also to find out the real truth. However, in the present case, after evaluating the materials available on record, it is found that the prosecution has not established the case beyond reasonable doubt. Further, it is found that the prosecution has not established the offence as against the appellant and hence, the charge framed as against the appellant has held to be doubtful and the benefit of doubt is to be given to the appellant. Further, the prosecution has not established the above offence against the appellant and hence, the charge, framed as against the appellant, stands not proved beyond reasonable doubt. Further, it is found that the evidences of the eyewitnesses, namely, the P.W.1 and P.W.2 do not inspire the confidence as both of them have not given the full version of the incident and there is also a possibility to falsely implicate the appellant, due to the previous enmity in between the accused and the deceased, immediately before the occurrence. Further, the evidences of the P.W.1 and P.W.2 eyewitnesses are not reliable and the medical evidences also do not corroborate with the evidences of the said eyewitnesses. Further, the motive, as been pointed out by the prosecution, has not been established in a believable manner. Further, as held in the Judgment reported in (2009) Cri.L.J.4647, Dhanpal v. State by Public Prosecutor, Madras, it is detailedly observed as follows:-

"Appreciation of evidence, Court is under bounden duty and obligation to deal with evidence as it is, and no improvement or rewriting of evidence is permissible."

Moreover, it is found that the prosecution has not produced cogent, natural and trustworthy evidences and material objects to establish the crime alleged to be committed by the appellant. Further, the prosecution has not established the case beyond all reasonable doubts by adducing acceptable evidence. For the above mentioned facts and circumstances, it is found that the finding and discussion of the Lower Court are not in accordance with the law.

In view of the above discussion, this Court has no hesitation to hold that the prosecution has not established the guilt of the appellant beyond reasonable doubts and the above mentioned circumstances also create serious doubt in the case of the prosecution. The doubts have not been clearly explained by the prosecution in any manner and thus, the appellant is entitled to get the benefit of such doubts. Thus, it is found that the prosecution has failed to prove the case beyond all reasonable doubts and the appellant is entitled for acquittal.

In the result, the conviction and sentence imposed on the appellant/accused/Mookkan@Murugan@Baskar in Crime No. 351 of 2009 delivered in S.C. No.36 of 2011, dated 28.04.2011 on the file of the learned Additional Sessions Judge, Fast Track Court No. 1, Thoothukudi is set aside and the Criminal Appeal is allowed. The appellant shall be released forthwith, if he is not required in connection with any other case.