Muthupandi and Murugan vs State

T. Sudhanthiram, J.—The Appellants 1 and 2 are the accused 1 and 2 in S.C. No. 176 of 1999 on the file of the Principal Sessions Court,

Virudhunagar District at Srivilliputhur. The first Appellant/first accused was convicted for the offence u/s 302 I.P.C. and sentenced to undergo life

imprisonment and to pay a fine of Rs. 1,500/- and in default to undergo 6 months simple imprisonment and the second Appellant/second accused

was convicted for the offences under Sections 341, 302 r/w. 34 I.P.C. and he was sentenced to pay a fine of Rs. 500/- and in default to undergo

one week simple imprisonment for the offence u/s 341 I.P.C. and he was also sentenced to undergo life imprisonment and to pay a fine of Rs.

1,500/- and in default to undergo six months simple imprisonment for the offence u/s 302 r/w. 34 I.P.C. Challenging the conviction and sentence,

the appeal was preferred by the Appellants.

It is now reported that the first accused/first Appellant had died. The Sub Inspector of Police, Sattur Taluk Police Station, has filed a report

stating that the first Petitioner/first accused Muthupandi had died in the year 2005. Hence, the appeal in respect of the first accused abates.

The case of the prosecution in brief is as follows:

P.W.1 is the wife of the deceased. They were residing in Sattur Village. On 17.09.1998, at about 7.15 a.m., P.W.1 and the deceased were going

to their daughter''s house, who was residing at Amirpalayam and at that time, the deceased was also carrying a water pot. When they were going

on the Vellakarai road from West to East, the accused 1 to 3 came to the scene of occurrence and due to previous enmity, the second accused

caught-hold the hands of the deceased and the first accused attacked the deceased on his head with an aruval. Thereafter,all the three accused had

run away from the scene of occurrence. P.W.1 went to the Sattur Police Station and gave a complaint against the accused, which was marked as

Ex.P.1. P.W.12, the Inspector of Police, on receiving the complaint at 9.00 a.m., registered a case in Crime No. 712 of 1998 for the offence u/s

302 I.P.C., and prepared a First Information Report - Ex.P.13. Thereafter, P.W.12 went to the scene of occurrence and prepared a rough sketch

- Ex.P.14 and Observation Mahazar - Ex.P.15. Thereafter, he went to the hospital and held inquest on the body of the deceased and recorded the

statement of the witnesses and prepared a report - Ex.P.16. He also gave a requisition for conducting post-mortem. P.W.11, the doctor, on

receiving the intimation, held autopsy on the body of the deceased, on 18.09.1998 at about 10.00 a.m. He noticed the following injuries in the

body.

A transversely oblique cut wound extending from the just lateral to the left eye cutting the middle of the ear upto middle of the occipital region

measuring 26 cms x 8 cms x brain deep cutting underlying bones, dura and brain, 10 x 0.5 x 2.5 cms, with sourrounding extravasated blood clots.

An oblique cut injury on the back of left scapuala region measuring 8 cms x 1 cm x 2.5 cm cutting the underlying muscles and scapula.

He also issued the post-mortem certificate - Ex.P.12. The Doctor has opined that the deceased would appear to have died of shock and

hemorrhage as a result of external wound No. I with corresponding internal injuries sustained by the deceased. P.W.12 arrested the first accused

on 19.09.1998 at 8.00 a.m. and recorded his confession statement (the admissible portion of the confession statement - Ex.P.18) and recovered

an aruval - M.O.1. On 11.10.1998, he arrested the third accused and sent him to the judicial custody. The second accused had surrendered

before the Court. P.W.12 after completion of investigation, laid the final report against all the three accused for the offences under Sections 341,

302 r/w. 34 I.P.C.

The prosecution examined P. Ws.1 to 12 and marked Exs.1 to 19 and produced M. Os.1 to 7.

When the accused was questioned u/s 313 of the Code of Criminal Procedure in respect of the incriminating materials appearing against him

through the evidence adduced by the prosecution, he has come forward with the version of total denial.

The trial Court after analysing the evidence available on record, acquitted the third accused and convicted and sentenced the accused 1 and 2

alone already stated above.

The learned Counsel for the Appellant submitted that except P.W.1, the other witnesses did not speak about the occurrence and P.W.1 had

admitted during the cross-examination by the accused, that she was not present at the time of occurrence and she was also treated as hostile

witness by the prosecution. The learned Counsel for the Appellant further submitted that there is no incriminating material against the accused.

Per contra, the learned Additional Public Prosecutor submitted that P.W.1, wife of the deceased had stated in her chief examination that the

second accused caught-hold of the deceased and the first accused attacked the deceased on his head with an aruval and P.W.1 was not cross-

examined on the date, when her chief-examination was recorded and subsequently during the cross-examination by the accused, she had resiled

from what she had stated in the chief-examination.

We have considered the submissions made on either side and perused the

records.

Except P.W.1, no other witnesses speaks about the occurrence. Of course P.W.1 has stated in the chief-examination that the accused 1 to 3

came to the scene of occurrence and the second accused/second Appellant caught-hold of the deceased and the first accused/first Appellant

attacked the deceased with an aruval on his head. During the cross-examination by the accused, P.W.1 had stated that she was not present at the

scene of occurrence and she did not know who attacked the deceased. She further stated that she did not know what was written in the complaint

- Ex.P.1. P.W.1 was treated as hostile and she was also cross-examined by the prosecution. During the cross-examination by the prosecution, she

had stated that she had no reason for changing her version. Though P.W.1 had given evidence against the accused during the chief-examination,

having changed her version during the cross-examination and having disowned the complaint-Ex.P.1. We feel that it is not safe to convict the

accused, placing reliance on the evidence given by P.W.1 in the chief examination.

In the result, the judgment of the trial Court, dated 25.01.2000, made in S.C. No. 176 of 1999, by the learned Principal Sessions Judge,

Virudhunagar at Srivilliputhur is set aside. Accordingly, this Criminal Appeal is allowed. The Appellant is acquitted of the charges. The bail bonds

executed, if any, by the Appellant stand canceled. Fine amount paid, if any, is directed to be refunded to the Appellant.