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Judgment
M. Chockalingam, J.—This appeal has arisen from the judgment of the Additional Sessions Judge / Fast Track Court No. I, Tuticorin made in S.C. No. 242 of 2000 whereby the appellants/accused Nos. 1 to 4 stood charged, tried and found guilty as follows:
Charges: A-2 and A-3 - Section 302 IPC. A-1 - Section 302 r/w Section 34 IPC A-2 to A-4 - Section 302 IPC A-1 - Section 302 r/w Section 34 IPC A.2 and A.3 were found guilty u/s 302 I.P.C (2 counts) and awarded life imprisonment for each counts along with a fine of Rs. 1,000/- and a default sentence of six months imprisonment. A.1 was found guilty u/s 302 I.P.C read with Section 34 I.P.C and awarded life imprisonment with a fine of Rs. 500/- and a default sentence of six months imprisonment. A.4 was found guilty u/s 302 I.P.C and awarded life imprisonment with a fine of Rs. 500/- and a default sentence of six months imprisonment and the sentences in respect of A-2 and A-3 were ordered to run concurrently.
The short facts necessary for the disposal of this appeal can be stated thus:
(a) P.W.1 is a native of Melameenakshipuram within the jurisdiction of the respondent police. She was living with her sons Poomurugan, Periamurugan and her daughter Poomari. The said Poomari was given in marriage to one Pachhai Perumal of the said village. The said Poomari had one daughter, namely Sakhundala, aged ten years, and one son, namely Sathish Raja, aged six years. The said Poomari was working at the Noon Meal Scheme of Melameenakshipuram. P.W.1''s son Murugan and Muthulakshmi A.4 herein, the daughter of one Petchimuthu, had love affair and when it came to the knowledge of the village, the marriage was solemnised on the advice of the villagers on 05.02.1999 and there was a strained relationship then and there. Muthulakshmi came back to her parental home and she was living there. A complaint was given in All Women Police Station, Kovilpatti and that it was treated as a petition No. 39 of 1999 dated 17.02.1999. Both the said Muthulakshmi A.4 and her husband were called and enquired into the matter and advised to live together and they lived together for sometime and then, she came back to her parental home.
(b) On 03.08.1999, all the accused went to the respondent police in respect of the previous petition No. 39 of 1999, Ex.P.22. At that time, the Inspector of Police was not available and P.W.15, the Head Constable asked them to come on the next day. Sometime later, P.W.1 along with her daughter went there and they were also informed the same. At that time, A.1 to A.3 informed the second deceased Poomari that she was responsible for the disturbance in the matrimony of their sister Muthulakshmi and that they would do away her and her brother also. On 04.08.1999 i.e., on the date of occurrence, P.W.1 and P.W.2 proceeded to Keelameenakshipuram to purchase idli from a hotel. At that time, A.3 armed with an aruval and A.2 armed with a knife and A.1 accompanied them, came over there and attacked the first deceased Murugan indiscriminately. This was witnessed by P.W.1 and P.W.2 and immediately after the occurrence, the accused fled away from the place of occurrence. P.W.1 immediately rushed to her house and asked her mother about Poomari and she was informed that Poomari went over to nearby well and she proceeded towards the well at about 09.00 a.m., and she found A.1 to A.4 there. A.3 armed with an aruval and A.2 armed with a knife, attacked the second deceased Poomari and A.3 handed over the aruval to A.4 and asked her to attack Poomari and A.3 got it back and further attacked Poomari. A.2 stabbed Poomari with the knife. A.1 instigated them to do so. The whole occurrence was witnessed by P.W.3, a child aged 10 years, who was also standing nearby and that immediately, after the second occurrence, all the accused fled away from the place of occurrence.
(c) P.W.1 along with P.W.2 proceeded to Ottapidaram Police Station and gave a complaint, Ex.P.1, on the strength of which, a case came to be registered in Cr. No. 72 of 1999 and the F.I.R which was marked as Ex.P.26, was despatched to the Court immediately. P.W.21, the Inspector of Police took up the investigation and proceeded to both the scene of occurrences and prepared observation mahazars, Exs.P.2 and P.3 in the presence of witnesses and through P.W.15, photographs were also taken. Further, he conducted inquest on the dead bodies in the presence of witnesses and Panchayatars and prepared Ex.P.28, the inquest report of the first deceased Murugan, and Ex.P.31, the inquest report of the second deceased Poomari. Further, both the dead bodies were sent with the respective requisitions for post-mortem to the Government Hospital and P.W.12, the Doctor attached to the Hospital, conducted autopsy on the dead body of the first deceased Murugan and gave post-mortem certificate Ex.P.14, where the Doctor opined that the death would appear to have caused due to shock and haemorrhage due to the injuries sustained and also conducted the post-mortem on the dead body of the second deceased and gave post-mortem certificate Ex.P.16, where the Doctor opined that the death would appear to have caused due to shock and haemorrhage due to the injuries sustained.
(d) On 05.08.1999, the Investigating Officer arrested A.2 to A.4 and A.2 made confessional statement, the admissible portion of which was marked as Ex.P.6. Pursuant to the confessional statement, he produced the weapon of crimes, which were recovered in the presence of the witnesses under a cover of mahazar. The material objects recovered from the place of occurrence from the the dead bodies as well as the material objects recovered from the accused, including the weapons of the crime, were sent for chemical analysis by the Investigating Officer through the Court concerned to the Forensic Science Department with the respective requisitions, which resulted in the Chemical analysis report Ex.P.19 as well as the Serologist report Ex.P.20 respectively. On completion of investigation, final report was filed by the Investigating Officer before the committal court.
The case was committed to Court of Session and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution has examined 21 witnesses and relied on 31 exhibits along with 27 M.Os. After the evidence on the side of prosecution was over, the Court questioned the accused u/s 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses. The accused denied them as false. On the side of the defence, only one witness as D.W.1 was examined and through D.W.1, Ex.D.1 was marked.
After completion of trial, the trial court heard the arguments of both sides, perused the materials available, found the accused guilty as per the charges and awarded punishment as referred to above. Hence, this appeal at the instance of the appellants/accused Nos. 1 to 4.
Advancing his arguments on behalf of the appellants, the learned Counsel would submit that in the instant case, according to the prosecution, there were two occurrences. First of all, the prosecution had no immediate motive for the occurrence at all and actually, A.4 was given in marriage to the first deceased and there were disturbances in the matrimony and there was a conciliation and they lived together for some time. Apart from that, either at the time of the occurrence or on the previous day, there was no immediate motive for double murder. Insofar as the first occurrence is concerned, P.W.1 and P.W.2 were the eyewitnesses. According to the prosecution, the occurrence took place at about 08.30 a.m., that too in a public place near a hotel. If to be so, number of independent witnesses could have been examined as witnesses, but no one of the independent witnesses was examined. This would indicate that P.W.1 and P.W.2, who were not only the close relatives of both the deceased, but also interested, have come forward to give evidence against the accused, which would indicate that the prosecution has planted these witnesses to speak about the occurrences, which they have not seen at all. Thus, the non-examination of the independent witnesses would be fatal to the prosecution case. Added further the learned Counsel that in both the occurrences so far as A.1 was concerned, neither he was shown as armed nor he has participated in the crime and no overt act was attributed against him and hence, his participation in the offence was thoroughly nil. The first part of the occurrence is highly doubtful whether Ex.P.1, the complaint could have come into existence as put forth by the prosecution. According to P.W.1, on the date of occurrence, she was not conscious and she did not know whether the accused were armed with aruval and knife, etc., and thus, she could not have been the Author of the F.I.R. Apart from that, in the instant case, according to P.W.20, the Sub Inspector of Police, the F.I.R was actually written and recorded by the Head Constable. But, from the F.I.R, it could be seen that it was actually recorded by the Sub Inspector of Police and hence, it casts a doubt as to who has prepared the same.
The learned Counsel for the appellants further submitted that insofar as the second occurrence was concerned, according to the prosecution, the witnesses available were P.Ws.1 to 3. Though P.Ws.1 and 2 have claimed that they have witnessed the occurrence, P.W.21, the Inspector of Police has categorically deposed that both these P.W.1 and P.W.2 at the time of investigation have not spoken about the fact that they have witnessed the occurrence and it is quite clear that P.W.1 and P.W.2 would not have seen the occurrence. If to be so, the only witness for prosecution was P.W.3, a 10 year old child. The date of occurrence, namely 04.08.1999, was a working day for the school where P.W.3 was studying. According to D.W.1, she was attending the school and the attendance register, Ex.D.1, would indicate her presence in the school at 09.00 a.m., and thus, she would have started to School earlier and hence, she could not have seen the occurrence at all.
Insofar as the second part of the occurrence was concerned in which the said Poomari was killed, there was absolutely no evidence at all and the prosecution had no evidence in that regard. Added further the learned Counsel that in the instant case, the case of the prosecution that A.4 participated in the second crime was highly artificial. According to the prosecution, it was A.3, who wielded aruval on the deceased Poomari and after that, he handed over the same to A.4, his sister and asked her to attack the second deceased Poomari and after she gave cut, again A.3 got it back and inflicted cuts on the second deceased. Thus, it would be quite clear that A.4 could not have participated in the crime at all. In order to strengthen or to make it believe affair, A.4 has been implicated in the instant case. In the absence of the evidence of P.W.3, there is no evidence at all and under such circumstances, the prosecution has not proved its case beyond all reasonable doubts. All the facts now brought to the notice of the court and all these aspects of the matter were not taken into account by the lower court and they have escaped from the vision of the lower court and hence, the accused/appellants are entitled for acquittal in the hands of this Court.
Heard the learned Additional Public Prosecutor on the above contentions.
The Court has paid its anxious consideration on the submissions made.
It is a case of double murder, in which the first deceased namely Murugan was killed at about 08.30 a.m. on 04.08.1999 before a hotel at Keelameenakshipuram, while the second deceased namely Poomari was killed at about 09.00 a.m., on the same day near a well situated at Melameenakshipuram. The prosecution came forward to state that both the persons were killed due to homicidal violence and in order to substantiate the same, the prosecution examined not only the eyewitnesses, but also relied on the medical evidence through P.W.12, the Doctor, who conducted autopsy through whom the post-mortem certificates were marked and apart from that, the fact that both the deceased died due to homicidal violence was never questioned by the appellants at any stage of proceedings and hence, it has got to be recorded so.
In order to substantiate the first occurrence in which the first deceased was murdered, the prosecution has examined P.W.1 and P.W.2. It could be seen that there are sufficient materials pointing to the motive for the occurrence. All the accused Nos. 1 to 3 are the brothers of A.4 and A.4 was given in marriage to the first deceased. There was a disturbance in the matrimony and there was also a conciliation. Even then, they could not live together and A.4 was living in her parental home and hence, her brothers were aggrieved over the same. Even on previous day of the occurrence, they went to the police station and according to the evidence of P.W.1, there was a challenge made by all the three accused to the second deceased that they would do away her and also her brother. Thus, it would be quite clear that the accused persons were on inimical terms against P.Ws. In the instant case, P.Ws.1 and 2 were the eyewitnesses to the first occurrence. According to them, they proceeded to the hotel, situated at Keelameenakshipuram to purchase idli, where they witnessed the first occurrence, in which A.1 to A.3 came over there and A.2 armed with knife and A.3 armed with aruval, attacked the first deceased indiscriminately and caused his death. It is true, they were close relatives of the deceased, but on that ground alone, their evidence cannot be rejected. The Court is mindful of the caution made by the Apex Court that the evidence of the relatives of the deceased cannot be discarded on that ground, but it must be scrutinised carefully. Even after exercising the test of careful scrutiny, their evidence has inspired the confidence of the Court. The comment made by the learned Counsel for the appellants that the independent witnesses have not been examined cannot be accepted for the reason that it is a case where P.W.5 and P.W.6 have been examined, but they have turned hostile. Hence the comment made by the learned Counsel for the appellants that no independent witness was examined cannot be warranted. It is a case where independent witnesses have been examined, but they have turned hostile. P.Ws.1 and 2, though relatives of the deceased, they have given a graphic narration of the entire incident and their evidence has been marshalled, considered and accepted by the trial court and rightly too.
At this juncture, it is to be pointed out that as per the prosecution case, A.1 was neither armed nor attributed any overt act and thus, he had no role to play and nothing has been whispered that he has shared any common intention. Now, what are all stated by the prosecution was that it was he, who hold the legs of the first deceased and twisted the same and he was roped in the murder case. Insofar as the first occurrence is concerned, the Court is able to see that the second accused armed with knife and the third accused armed with aruval, attacked the first deceased indiscriminately and caused instantaneous death of the first deceased. This part of the prosecution case through the ocular testimony was also fully corroborated by the medical evidence. Thus, in respect of the first occurrence, the prosecution has proved that murder was committed by A.2 and A.3.
Insofar as the second occurrence was concerned, the second deceased Poomari was killed at about 09.00 a.m. on the same day, in which, according to the prosecution, A.1 to A.4 have participated. Even in that occurrence also, A.1 was neither armed nor attributed any overt act and it was A.2 to A.4 who have attacked the deceased Poomari. Insofar as the second occurrence was concerned, the evidence of P.W.1 to P.W.3 were available. It is highly doubtful whether P.W.1 and P.W.2 could have seen the occurrence at all. The Investigator who was examined as P.W.21, has categorically deposed that P.W.1 and P.W.2, at the time of interrogation u/s 161 Cr.P.C, have not stated that they have witnessed the occurrence and thus, it would be quite clear that P.Ws.1 and 2 could not have seen the occurrence at all.
But, the prosecution had its advantage of the evidence of P.W.3. It is true, P.W.3 was only 10 years old and a school going child. She, with sufficient maturity, has given evidence before the court. She has clearly narrated the entire episode by stating that all these accused came over there and A.2 was armed with knife and A.3 was armed with aruval and A.4 was also present there. They attacked the deceased Poomari and it was A.3, who handed over the aruval to his sister A.4 and asked her to attack the deceased Poomari and A.4 attacked with that aruval and A.3 got it back and further attacked the deceased Poomari. Thus, P.W.3 has given a clear narration about the occurrence, in which A.4 has also participated. The contention of the learned Counsel for the appellants that the role of A.4, as projected by the prosecution, was not natural, cannot be accepted for the simple reason that she was an aggrieved party and she could not live with her husband and she thought that Poomari was responsible for the same. Under these circumstances, she, in order to take a revenge, has acted so. The contention of the learned Counsel for the appellants that the evidence of P.W.3 cannot be accepted, has got to be stated only for the purpose of rejection.
It is true that D.W.1 has been examined and Ex.D.1 attendance register, was marked to the effect that P.W.3 attended the school on 04.08.1999, the date of occurrence, and the school also commenced functioning by 09.00 a.m., which was the time of the second occurrence in which Poomari was murdered. It is pertinent to point out that even on 05.08.1999, when the dead bodies were cremated, the entries in respect of P.W.3 were made in Ex.D.1, the attendance register, which would be indicative of the fact that even on the date when the child did not go to School, there was an entry of her presence and this would be indicative of the fact that the attendance register was given entry of her presence automatically. D.W.1 has stated in his evidence that from June 1999 to December 1999, there were no absentees at in all these months. Thus, this would be indicative of the fact that the entries of the presence of the child were made automatically whether they were present or not. Under such circumstances, the Court at no stretch of imagination can rely on either the evidence of D.W.1 or the document Ex.D.1. While the witness, namely P.W.3, before the court has categorically spoken about her presence and has also given a graphic narration of the entire incident, the Court without any hesitation has to believe such an evidence, since it has inspired the confidence of the Court. Thus, the prosecution has proved that A.2 to A.4 have participated in the crime. Insofar as in the first occurrence was concerned, A.2 and A.3 have acted and shared common intention and murdered the first deceased, while in the second occurrence, A.2 to A.4 have shared common intention and caused the death of the second deceased. But, in both the occurrences, A.1 was a passive spectator and there is nothing to indicate that he shared the common intention of causing murder of either the first deceased or the second deceased. Under such circumstances, in the absence of any overt act, A.1 cannot be found guilty as put forth by the prosecution and he is entitled for acquittal of the charges levelled against him.
In the result, this criminal appeal is partly allowed in respect of A.1. The conviction and sentence imposed on the accused No. 1 by the trial court are set aside and the first accused alone is acquitted of the charges levelled against him. A.1 is directed to be set at liberty forthwith unless his presence is required in connection with any other case. The fine amount, if any paid by A.1, is ordered to be refunded to him.
The criminal appeal is dismissed in respect of A.2 to A.4 and the convictions and sentences imposed by the trial court as against A.2 to A.4 are confirmed.
Mr. C. Ramachandran, Advocate, who was appointed as Amicus Curiae counsel to argue the appeal on behalf of the appellants, is entitled to get remuneration from the Legal Aid, Madurai.