Murugan, Rasan alias Idumkan and Sarasal vs State

M. Karpagavinayagam, J.—The appellants 1 to 3 were convicted for the offence u/s 302 read with 34 of I.P.C and sentenced to undergo life imprisonment in S.C. No.69 of 1989 on the file of I Additional Sessions Court. Coimbatore for having attacked and murdered the deceased Palanisann with the sticks and stone on 12/13.8.1989 at 1.00 a.m. at Saderpalayam village.

Challenging the above conviction and sentence the appellants have filed this appeal

The factual matrix, which lead to the conviction of the appellants, is briefly stated hereunder-

(a)The first appellant Murugan is the father of Rasan. the second appellant and Sarasal. the third appellant. The deceased Palanisann is the husband of Sarasal. the third appellant. P.W.4 Raman is the father of the deceased Palanisann. P.W.1 Ayyasamy is the husband of P.W.2 Palaniammal All these persons belong to Saderpalayam village.

(b)P W.4 Raman is owing a house and a garden and punja lands in the same village. He is staying in the said house along with his wife. Just opposite to their house, the house of P. Ws. 1 and 2 is situated. They arc weavers by profession The deceased Palanisamy and his wife Sarasai the third appellant were residing separately in Kinathangatlu Tholtam in the same village along with their three children. Near their house. P.W.3 Karuppusamy. the local resident is staying.

(c) The deceased Palanisamy was a spendthrift and always used to spend his days by consuming drinks and he became a drunkard. Since he was doing no work and leading his life in an irresponsible manner. P.W.4 Raman, the father of the deceased executed a Will bequeathing all his properties in favour of the third appellant Sarasai and her sons Ex.P2 is the Will. Having grudge over this, the deceased always used to abuse the third appellant Consequently, there was a frequent quarrel between them.

(d)Ten days prior to the occurrence. P W.4 Raman and his wife left their village and went to Vadugapalayam. where their daughter's house is situated to stay there for some time, as his wile was not well. The fateful occurrence took place in the mid night of 12.8.1988 Friday On Thursday, there was vociferous quarrel between the third appellant and the deceased in their house P.W.3 Karuppusainy. who was a neighbour, went and pacified them and asked them not to quarrel am more On Friday at 12 mid night. P.W.3 Karuppusamy. while he was lying in his bed. heard the sound from the house of the third appellant He went near the fence and saw the deceased was running towards East to Saderpalayam village and all the three appellants were chasing him stating that

(e)At about 1.00 A.M. P.W.1 Ayyasamy was engaged in weaving a saree, P.W.2 Palaniammal also was doing the same. At that point of time, the deceased came and sat on the pial of the house of P. W.4 Few minutes later, all the three appellants appeared there with weapons in their hands and then they began to beat the deceased. The first appellant Murugan with Kattu Thadi M.O.3 beat on his neck and head, when the deceased fell down from the pill. the second appellant Rasan with kavaikoal M.O.4 hit him on the back. He also attacked him with a stone M.O.2. On seeing this incident. P.W.1. P.W.2 and Rangan came near the deceased On seeing them, all the three appellants escaped from the place with weapons.

The deceased was found with bleeding injuries, gasping for life. P.W.1 poured water into mouth. Within a few minutes, the victim Palanisamy died there itself. By that time. P.W.3 also came there. P.W.1 informed him as to what happened.

(f)Thereafter. P.W.1 sent intimation to P.W.4 to Vadugapalayam next day morning, i.e. on 13.8 1988. P.W. 1 went to Perumannalur Police Station and gave a complaint to P.W.9 the Sub Inspector of Police: The said complaint Ex.P1 was registered in Crime No. 149/88 at about 9.30 a.m. against the accused u/s 302 I.PC. Then, he prepared the FIR. Ex.P2l and sent the same to the Magistrate and to the higher officials. He came to the spot at 10.30 a.m. P.W.10 the Inspector of Police on receipt of the message rushed to the spot at 11.00 a.m. and took up investigation. He prepared the observation mahazar Ex.P5 and sketch Ex.P22 attested by P.W.6 and another. He also conducted in quest between 11.00 a.m. and 2.30 p.m. and examined P Ws. 1 to 4. Ex.P.23 is the inquest report. Then, he sent the dead body with requisition Ex.P3 to the doctor for post-mortem through P.W. 8 the Constable Thereafter, he recovered M.O.5 blood stained dhoti. M.Os.6 and 7. two polyster shirts. M.O.8 blood stained earth and MO 9 earth under mahazazr Ex.P6

(g)P.W.5 Dr. Devarajan attached to Timpur Government Hospital, received the requisition for post-mortem at 4.50 p.m. and commenced autopsy on the body of the deceased at 5.00 p.m. He found totally 14 injuries. He gave post-mortem certificate Ex.P4. He opined that the deceased would have died of shock and haemorrhage due to the injuries to the vital organ brain, about 16 to 20 hours prior to the autopsy.

(h)P.W.S the Constable, who recovered M.O.11 underwear and M.O.12 waist card from the deceased and handed over the same to P.W. 10.

(i)On 14.8.1988 at 3.00 p.m. P.W. 10 arrested A3 near a temple and obtained her confession, the admissible portion of which is Ex.P8. In pursuance of the said confession. M.0.1 Kavaikoal and M.O.2 stone were recovered under Ex.P9 Then, she was taken to the Police Station There, her blood stained saree M.O.10 was recovered under Ex.P. 10 On 15.6.1988 at about 7.30 a.m. P.W. 10 arrested Al and obtained his confession. The admissible portion of the same is Ex.P. 11 He also gave information about A2. Consequent to that. P W. 10 arrested A2 and obtained his confession, the admissible portion of which is Ex.P. 12. Thereafter both the accused were taken to two different places and M.O.3 and M.O.4 were recovered respectively. Then, he examined other witnesses. He also arranged to send the blood stained MOs. for Chemical reports Exs.P17 and P.18 and Scrologist's report Ex.P 19 P.W. 10 filed the charge sheet on 25 10.1988 against all the three appellants for the offence tinder Section 302 read with 34 of I.P.C.

Alter committal, the trial Court framed charges against the accused for the offence u/s 302 read with 34 I.P.C.

During the course of trial, the prosecution examined P.W.1 to 10 and marked Exs.Pl to P24 and M.Os.l to 12. When the accused were questioned u/s 313 Cr.P.C. by the trial Court, the accused denied their complicity in the offence

The trial Court after taking into consideration all the materials placed by the prosecution and the statement of the appellants, found the appellants guilty and convicted them as stated above. Hence, this appeal

Mr. N.T. Vanamamalai. the learned senior counsel appearing for the appellants challenging the findings of the judgment of the trial Court, would contend that the reasonings for conviction are not sound and materials available on record are not credible so as to find the appellants guilty. The gist of his submissions is as follows:-

P.W 1 is a single eye witness whose evidence cannot be acted upon to base conviction. His conduct in not informing the villagers about the murder would create doubt over his veracity Admittedly he came to the Police Station to give complaint only alter 9 hours delay even though so many buses are available from the early morning. There cannot be any motive for the appellants to murder the deceased, since P.W 4 had already settled his properties on A3, his daughter-in-law There arc also material discrepancies with reference to the overt acts attributed to the accused between Px.Pl complaint and the deposition of P.W.1 The evidence of P.W. I is also contrary to the medical testimony. The evidence of P W.3 who saw the accused chasing the deceased is highly doubtful, since he did not make any effort to prevent their attempt to attack the deceased and he also did not report am person about the incident even though he was informed by P.W.1 immediate after the incident was over Therefore, the accused are entitled to be acquitted and the judgment of the trial Court is liable to"" be set aside.

Challenging these submissions; Mr. Elango the learned Government Advocate would contend the following -

Though there was sonic delay in lodging F.1.R.. P.W.l has given proper explanation to the effect that he took steps to inform P.W 4. the father of the deceased about the murder and after his arrival to the village, he came to the Police Station along with him. The evidence of P.W.1, the sole eve witness assumes significance, as his house is situated (list in front of the place of occurrence. Similarh. P.W.2 who is the neighbour of the accused also would state that at the time of occurrence he saw the deceased being chased by all the accused the injuries found on the body of the deceased would correlate with the overt acts attributed to the accused mentioned by P.W. 1 m the deposition as well us in the complaint Ex.Pl Furthermore, the conduct of the accused in absconding from their place would also indicate that they had participated in the occurrence. The appreciation by tile trial court on considering the factual aspects has been properly made and therefore, the judgment convicting the appellants for the offence u/s 302 read with 34 I.P.C. is liable to be continued.

We have carefully considered the submissions made by the counsel on either side and given our anxious consideration to the same.

It is settled law that where the appreciation of evidence by Trial Court is highly unsatisfactory, this Court is not only entitled but bound to give effect to its independent conclusion on evidence, giving due weight to all the circumstances which have normally to be kept in view, that too in a case of murder.

There is no dispute in the proposition that in a murder case, the conviction may be based on the testimony of a single witness. For proof of a fact, not plurality but quality of evidence is needed. Therefore the conviction can certainly be based on the evidence of a solitary witness, but it must be clear, cogent and unimpeachable.

In appreciating the oral evidence of the single witness, the question in such case is whether the witness is a truthful witness or not and whether there is anything to doubt his veracity. Where the witness is found to be untruthful on material facts there is an end of the matter, where the witness is found to the partly truthful or the evidence found to spring from tamed sources, the court may take the precaution of seeking some corroboration, adequate and reasonable to meet the demands of the situation.

There are three classes of witnesses, viz.. (a) wholly reliable (b)wholly unreliable and (c)neither wholly reliable nor wholly unreliable. When the Court finds that the witness is wholly reliable, the question of corroboration docs not arise. If the witness is wholly unreliable, availability of the corroboration evidence would not be of any help to the prosecution The question of corroboration arises only in cases of witnesses of the last category.

In this case P W.2 another eye-witness turned hostile But. it could not be a ground to throw out the prosecution case projected by the single witness P.W. I The conduct of the accused by mere abscondence or the absence of any explanation by the accused would not lead to the conclusion that the accused participated in the occurrence.

It is settled law that the prosecution is to prove its case beyond reasonable doubt, it cannot gain strength from the weakness of the defence.

In criminal case, the accused is not bound by his pleading. It is open to the accused to prove his defence even from the admission made by the prosecution witnesses and the circumstances proved in the case, though it is ailed that even in murder case, the conviction may be based on the testimony of a single witness

These are the settled principles laid down by the Supreme Court in its various decisions. The notable decision is Vadivelu Thevur v. State of Madras ( AIR 1957 S.C. 6 : 1957 Cri. LJ. l /HW).

If we analyse the materials available on record and the facts and circumstances of the case, in the light of the above legal situation, we arc of the opinion that the appellants are entitled to be acquitted, as we are not able to hold that P.W. 1 the sole eve- witness is wholly reliable, besides other suspicious features. The following are the reasons to arrive at the above conclusion.

The motive for murder is that the deceased used to quarrel and abuse his wife A3, since P.W.4. the father of the deceased bequeathed all his properties in her favour without making airy provision for him and unable to bear the said torture. Al to A3 decided to kill him so that A3 alone can enjoy the properties This motive, in our view, has not been established

The recitals of Ex.P2. the Will dated 20.12.1984 would show that the properties would come to the hands of A3 and her sons only after the death of P.W.4''s wife, as it is mentioned in the Will that after the death of P.W.4 his wife will have life interest in the properties and only after her

death. A3 and her children will have absolute right over the properties So. the question of enjoying the entire properties by herself without intervention of others would not arise, so long as P.W.4 and his wife are alive Therefore, there is no necessity for A3, the wife to kill her husband, the deceased.

Moreover, under Ex.P2. P.W.4 reserved his right of revoking the Will at any tune If A3 had killed her husband, then P.W.4 would not allow her to enjoy the properties and would certainly revoke the Will Furthermore, it is not established that the deceased always used to torture A3 only because of the reason that the properties were bequeathed through Will by P W 4 without making any provision for him

Further, in Ex.P2. the Will the deceased himself was one of the attesting witnesses, therefore, the deceased being one of the signatories of the document as a witness cannot have an/grievance against A3 Even otherwise, if at all he could have any grievance, it must be not against A3, but against P.W.4 only P.W.4 also does not say that the deceased Palantsamy had aggrieved over the execution of Will in lay our of A3 Therefore, there is no material whatsoever to establish the above motive

But. in the case where the eye-witness is available it is settled law that the case of the prosecution cannot be thrown out nearly because motive is not established In other words, even if motive is not proved, the accused can be convicted on the basis of the evidence of eve witness provided he is reliable. In other words, even if motive is established, if the eye witness is not reliable, then the accused cannot be committed for the offence of murder.

In this case, as discussed above, motive is not proved. But. we have to see whether P. W I is a reliable witness or not On a careful scrutiny of the evidence of P.W.1, It is clear that he is not a witness of truth and he lacks reliability and consequently his evidence cannot be acted upon.

These are the following reasons:-

(a)The occurrence took place at 1.00 a.m. on 12/13.X. 19X8. The complaint was given by P W 1 at 9.00 a.m. According to the case of the prosecution, three witnesses, namely P. W. I P W.2 and one Rangan have witnessed the occurrence During the course of trial. Rangan died. So he was not examined P W.2 turned hostile Therefore. P.W Is evidence alone is available. In order to explain the delay of 9 hours P.W. 1 has given an explanation to the effect that he sent word to P.W.4. the father of the deceased, who was slaying then at Vadugapalay am village and after P.W.4 came to scene place, he came along with him to the Police Station to give complaint. He would also state that first bus started for the Perumal Koil village where the Police Station is situated, at 6.30 a.m.. but he came only in the fourth bus. as he waited all along for P.W 4 s arrival. The 9 hours delay cannot be considered to be a huge delay provided his explanation is true and genuine But. the reading of the complaint Ex.PI would show that the explanation given for the delay in the deposition is not true In the complaint, he stated that he arranged to send a person to give information about the murder of the deceased to P.W.4 and then in the morning he came to the Police Station But in the deposition he has slated that he waited for P-W.4 and after his arrival he came to the Police Station accompanied by P.W.4. This is not only contradictory to his statement in the complaint but also to the evidence of P.W 4. P.W.4 would merely state that he was informed by the local villagers, who came in a lorry to Vadugapalayam village that his son died and therefore he came to the scene He did not at all refer to P.W.1. This would indicate that P.W.1 did not meet P.W.4 at all and never informed him that the deceased was done to death by the accused. But strangely he would depose that he came to the Police Station along with P.W.4. But. P.W 4 does not speak to this Therefore, the explanation for the delay given by P.W. 1 cannot be accepted.

(b) In the complaint, it is stated that Al used stick and caused injury on the head and hip of the deceased. But in the deposition, he would state that Al attacked on the head and neck As per Ex.PI. A2 caused injury with thadi on neck. head. back, hands and legs. But in the deposition P.W.1 would state that A2 attacked and caused injury only on the hip. In Ex.PI. it is slated that A3 squeezed testicles of the deceased and beat him on (he head with thadi and also hit him repeatedly with the stone on the head. On the other hand in the deposition, he would stale that A3 beat with the stick only on the back. The reading of the complaint would show that A3 took mam part by causing injury on the head which is found to be

fatal. But m the deposition, the main part had been given to Al. as if he attacked on the head and caused fatal injury and A3 with the thadi and caused injury only on the back. No doubt, he mentioned the stone also at the end of his chief examination only when identified all the M.Os. including stone. Therefore. P.W.1 has not given consistent details about the overt act attributed to each of the accused (c)The conduct of P.W. 1 would also show that he is not telling the truth. He would state that as soon as the attack was over, the villagers came but he never informed to any of the villagers including his wife that the accused attacked him and caused his death. This is quite artificial. He has stated that he arranged to send a person to P.W.4 to give information and then he came to the Police Station. If it is so. it is not necessary for him to wait till 4th bus arrives al 8.30 a.m. to go to the Police Station. It is admitted that the first bus started from the village to go to Perumal Koil Police Station at 6.30 a.m. This conduct of not informing any one till then would create a doubt whether he would have been present at the time of occurrence (d)According to P.W. 1 he saw the occurrence, even though it was dark, one day prior to Aadi Ajnavasai and it was mid-night, since the electric light was burning. But. the evidence of P.W. 10. the Inspector of Police would clearly show that the light was burning not in the scene place, but inside his house, namely at Veranda. Admittedly, the place of occurrence is 15 feet away from the house. P.W.1 also would admit that the occurrence took place at pial of the house of P.W.4 and he could not see entire portion of the pial from his house and he could only see one portion of the comer. When such being the case, he could not have seen the entire occurrence in which the deceased was attacked when he fell down on pial.

(e)P. W. 1 would admit that he merely sent a word to P.W.4. who was then staying in Vadugapalayam village informing that the deceased was lying dead on the pial of the house. This would show that he has not sent the information to P.W.4 that the death of the deceased was due to attack by the accused persons. P.W.4 also would state that he was merely informed by the villagers who came in a lorry that the deceased died.

Thus, there was no information to him that it was a murder. P.W.4 also did not state that P.W. 1 told him at the scene anything about the occurrence. Furthermore, as pointed out by the learned counsel for the appellants, there is nothing to indicate that P.W.4 did take any steps for revoking Ex.P2, the Will thereafter on the reason that A3 also participated in the murder. In short. P.W.4 does not support the version of P.W. 1

In Ex.P4 post-mortem certificate, the doctor said that the injuries 1 to 4 on the head are the vital injuries which could be caused by stone In Ex.Pl. it is stated that A3 only used stone and caused injury on the head. But. P.W 1 while deposing, would state that the head injury was inflicted by A1 with a stick. According to P W. 1. A3 with the stick caused injury on the back. The injuries on the back of the deceased are injury Nos.5 and 12 which are only abrasions. Therefore, the story of the prosecution on the basis of which charge was framed that A3 alone caused fatal injury has been given a complete go-by That apart, during the course of trial, a new case had been projected in the deposition that A1 only caused fatal injury on the head with a stick. But this is not supported by P W.5 the doctor, who would state that the head injury could be caused only by stone.

A3 was arrested on 14.8.1998 at 3.00 p.m. The occurrence took place on 13.8.1988 early morning, i.e. midnight at 1.00 O'clock. So. she was arrested after about 15 hours. But. the case of the prosecution is that when A3 was arrested, she was wearing a blood stained saree. It was recovered and the group of the blood of the deceased would tally with the group of the blood stained in the saree. It is not stated by the eye witness that while the deceased was beaten by A3. A3s saree got stained with blood. Furthermore. AI and A2 were arrested and their dressed had not been recovered, as there were no blood stains in their clothes. It is quite mysterious to see that A3""s saree alone got stained, while all the accused beat the deceased .In this context, the suggestion put to P W.6 mahazar witness and P.W. W. Inspector of Police that when the Inspector of Police came to the scene, the third appellant (A3) was sitting near the dead body of her husband and weeping P.W 10 also would admit that on the blood stains were found on the chest portion of the saree . Therefore, the possibility; of the saree getting stained with blood, while she was sitting near the body of the deceased and weeping by falling upon the body. cannot be ruled out. Moreover, there is also a doubt as to whether A3 would have worn the bloodstained saree for about two days till it is recovered as M.O.10.

Furthermore, it is the case of the defence that she was at the scene place when the police came and then she was taken to the Police Station on Friday itself, though arrest was shown on the next day. that is on Saturday''. It is also to be noticed that all the other accused were arrested on two days later. When all the accused escaped from the place at the same time, there will be no reason for A3 to go alone to a different place to get her arrested on the next day itself. This also shows artificiality in the arrest.

The evidence of P.W.3 is artificial. According to him. he saw the deceased chased by Al to A3. He would state that he went inside the house and put his shirt and came to the scene place to help and save the deceased. He would state as follows:-

But even after knowing through P.W. 1 that he was murdered by all the appellants, he did not care to inform am one nor to arrange to send a word to P W 4 who was then in other village He admitted in the cross-examination that he did not uniform about the murder to any body else and straightaway went back home in fact, he would admit thus - If he had actually accompanied the deceased to render possible help to save him being neighbour, his normal conduct would have been either to inform P. W.4. the lather of the deceased or to inform the police. This is not admittedly done Moreover, he did not mention that when the accused chased the deceased, they were carrying the weapons in their hands So. his evidence also does not inspire confidence and as such, his unreliable evidence would not help the prosecution in any way

Further, it is the case of P W 1 that the deceased was chased by three accused shouting that the deceased must be finished on that day itself II it is so. the deceased would not have chosen to sit on the pial of the house of P W 4 especially when all the accused came with weapons to finish him once for all It is the case of prosecution that P.W. 1 whose house is situated 15 feet away from the pial was weaving a saree in the Veranda of his house under the burning electric light. If actually, the deceased wanted to escape, either he would have continued to run away seeing that the accused were chasing him or would have entered into the house of P.W.1 to seek shelter there So. this part of the evidence also adduced by P.Ws. 1 and 3 docs not seem to be reliable and acceptable

For all these circumstances stated above. we are not able to hold that the prosecution has succeeded in proving the guilt of the accused beyond reasonable doubt When this Court would entertain serious doubt over the factual aspects in regard to the involvement of the accused and if the presence of P.Ws. 1 to 3 at the time of occurrence is doubtful, this Court would necessarily give the benefit of doubt to the accused Therefore, in our view. the appellants/accused are entitled to be acquitted and consequently, we hold that the reasonings given by the trial Court for convicting the appellants arc not valid

In the result, the appeal is allowed and the conviction and sentence imposed upon the appellants arc set aside, resultantly. the appellants are acquitted.