Shaikdurai vs State by Alangulam Police Station

M. Karpagavinayagam, J.—Chclladurai - the deceased herein was cut and butchered to death by the appellant - Shaikdurai on 23.2.1987 at about 7 a.m. at the outskirts of Kallathikulain village in a puramboke land by means of Armai. On this accusation, the appellant, who is none else than the junior paternal uncle of the deceased Chelladurai, was convicted for the offence u/s 302 of the Indian Penal Code and sentenced to undergo life imprisonment. Aggrieved against the said conviction and sentence, the present appeal has been filed by the appellant.

The factual matrix leading to the conviction could be summarized as follows.

(a) PWI Abimamian and PW2 Bakkiammul are the parents of the deceased. The appellant Shaikdurai is the brother of PWl. PW5 Irulan is the father in law of the deceased Chclladurai. PW1 Komban and PW4 Indhiramani are residents of Kallathikulain village, to which PWs I and 2 belonged, The appellant is also resident at the same village.

(b) Three years prior to the date of occurrence. Chelladurai got married to one Pakkinammal - the daughter of PW5 Iruian at Manur village.

Some-tune back. PW7 Sarasa the daughter of PWs. 1 and 2 got married to one Aruna at Ukkirankottai village. After three months of their marriage, there was misunderstanding between PW7 and her husband. Ultimately, she was driven away by her father in law and mother in law.

Since nobody came to the house of PW1 to take her back, three months prior to the date of occurrence. PW1, his son Ariunan and PW7 went to the house of PW7''s father in law to get back all her house hold utensils, which were given by PW1 and PW7 at the time of marriage They removed all her house hold articles from the house of PW7''s father in law and brought them to PWl's house.

(c) With reference to removal of the utensils. PW7''s father in law Dharmaraj lodged a complaint in the Manur Police Station, which is ExP.12.

PW10 - the Sub Inspector of Police, Manur Police Station called PW1, his son Arjunan and PW7 to Manur Police Station and enquired them with reference to the accusation levelled against them. In the enquiry, it has come to light that PW7 and PW1 removed only the house hold articles, which were entrusted to PW7 at the time her marriage and Dharmaraj - the father in law of PW7 had pledged the studs belonging to PW7.

Therefore, the Police warned both the parties not to indulge in any quarrel and directed Dharmaraj - the father in law of PW7 to redeem the pledged studs and return them to PW7. On the basis of the enquiry, a report has been submitted, which is ExP.15.

(d) The fateful occurrence took plaice on 23.2.1987 at 7 a.m. The deceased Chelladurai, after his marriage with Pakkiriammal, was residing at Manur along with the family of Irulan - PW5 his father in law. There was an announcement by the Panchayat Board President at Manur that houses will be constructed for the harijans, who owned only 3 cents of land at free of costs. In order to get the assignment, the deceased Chelladurai went to Maranthai village to meet the Village Administrative Officer - PW6. On the way to Maranthai village, he came to the scene village, namely, Kallathikulam. It was at about 7 a.m. At that time PWs 1 and 2 were working in the field and both of them heard their son crying as "" On hearing the Mumd. both of them rushed to the scene where they saw the deceased was being attacked with an aruval by the accused. The accused delivered eleven cuts on the deceased. On seeing PWs 1 and 2, the accused ran away with the aruval. When both PWsl and 2 went near the deceased, they found the deceased dead.

(e) After leaving PW2 at the scene, PW1 went to Manur to report to the wife of the deceased about the death of his son. After informing the wife of the deceased and the relatives, he came back to Kallathikulam village at 12 Noon along with PW5 Irulan - the father in law of the deceased.

Thereafter, he went to Maranthai village by walk and from there, he got into a bus and reached Alangulam Police Station at about 4 p.m. He gave to oral statement giving the details of the incident to PW14 the Sub-Inspector of Police. The said statement was reduced into writing. PW14, the Sub-Inspector of Police obtained the thumb impression of PW 1 in the complaint, which was attested by PW5 Irulan. ExP 1 is the complaint. He registered the case in Crime No. 81 of 1987 u/s 302 of the Indian Penal Code. He sent the first information report and the complaint to the Magistrate and to the higher authorities through PW12 - the Constable.

(f) PW 15 - the Inspector of Police, Alangulam Police Station, on receipt of the printed first information report, came to the scene at about (S p.m. and took up investigation. He inspected the scene of occurrence in the presence of PW6 and prepared the observation mahazar ExP2. He drew a rough sketch ExP20. He recovered blood stained earth MO4; and sample earth MO5 under mahazar ExP3 He held inquest over the dead body between 7.30 p.m. and 10 p.m.. He examined PWs 1,2 and 5. ExP21 is the inquest report. At about 10 p.m., he recovered MO2 - blood stained shirt from PW1 and MG3 blood stained saree, under mahazar ExP4. He sent the requisition ExP5 through PW13 the Constable to the doctor PWS to conduct post mortem.

(g)On 24.2.1987, Dr. Balakrishnan PWS attached to Tirunelveli Medical College Hospital received the requisition ExP5 at 10.30 a.m. and commenced autopsy at about 10.45 a.m. He found the following injuries on the dead body of the deceased''

i. 14x4 cms gaping, bone deep on the right side of the face involving the right cheek and right frontal region. It has cut the muscles, the vessels, the nerves and the bones at site. Direction vertically downwards.

ii. 7x4 cms gaping bone - deep - on the middle of the right shoulder. It had cut the muscles, the vessels and the nerves and the right collar bone at side.

iii. 7 x 4 cms gaping, bone deep - on the outer aspect of right hip. It had cut the right side of the pelvic bone at site.

iv. 5x2 cms gaping, bone deep - on the middle of the right forearm cutting the muscles, the vessels, the nerves and the radius at site.

v. 5x3 gaping bone - deep on the back of left fore-arm in its middle. It has cut the muscles, the vessels and the nerves at site. Ulna was found to be partly cut.

vi. Left thumb was found cut completely and missing.

vii. 8x4 cms gaping bone - deep on the outer aspect of lower portion of right leg. It has cut the both bones, namely, tibia and fibula involving the muscles and nerves at site.

viii. 9x0.5 cms gaping muscle - deep on the upper portion of the left side of the abdomen.

ix. 1 x 1 cm gaping bone - deep on the left index finger. The cut portion was found hanging.

x. 5x2 cms gaping muscles - deep on the upper portion of the right arm.

xi. 4 x2 cms. 5x 2 cms gaping, muscle - deep just below the injury mentioned above (No.10).

He issued the post mortem certificate ExP6. He opined that the deceased would appear to have died of shock and haemorrhage due to multiple cut injuries sustained by him.

(h) PW15, the Inspector of Police took steps to arrest the appellant, but he was absconding. Ultimately, the accused/appellant surrendered before the Judicial Magistrate, Tirunelveli on 2.3.1987. On receipt of the said message. PW15 the Inspector of Police gave a requisition on 11.3.1987 requesting for the police custody. Accordingly, the police custody was granted on 16.3.1987. On the very same day, the accused, at about 5 p.m., gave a voluntary confession, the admissible portion of which is marked as EXP 16. In pursuance of the said confession, at about 7 p.m., MOI Aruval, which was kept hidden near Sivan temple at Kallathikulam village, was recovered under ExP17, attested by PW 11. He arranged to send all the material objects for chemical analysis through the Court. PW9 the Court clerk, on receipt of the requisition ExP7 and ExP8, sent the material objects for chemical analysis along with the requisition ExP9. He received Ex.PIO-the chemical examiner's report and ExP11, the serologist's report on 4.5.1987. PW15, the Inspector of Police, after completing the investigation, filed the charge sheet on 6.5.1987 against the appellant for the offence u/s 302 of the Indian Penal Code

On committal, the trial Court framed charges u/s 302 of the Indian Penal Code. The prosecution examined witnesses PWs 1 to 15 and ExPl to ExP21 were marked. MOs 1 to 9 were also marked. The appellant was questioned by the trial Court with reference to the deposition made by the prosecution witnesses. The appellant pleaded innocence. However, no evidence was adduced on the side of the appellant. On taking into consideration the materials available on record, the trial Court found the appellant guilty of the offence u/s 302 of the Indian Penal Code and sentenced him to undergo life imprisonment. Hence, this appeal.

Mr. Shanmuga Velayutham, learned counsel for the appellant took us through the entire evidence and pointed out the various infirmities found in the prosecution case.

On the other hand, Mr. N.R. Elango, learned Government Advocate on the Criminal Side, in reply, would submit that those, infirmities would not affect the veracity of the witnesses, especially when the version of the eyewitnesses has been corroborated by the medical evidence. He would further submit that the reasonings given by the trial Court for concluding that the prosecution case was proved beyond reasonable doubt, are valid and so. the conviction has to be confirmed.

We have heard the learned counsel on either side and given our thoughtful consideration to the various submissions made by them.

Mr. Shanmuga Velayutham, learned counsel, in his elaborate arguments, would mainly contend that there is unexplained delay of fourteen hours and the earlier report, which was given by PW1 - the father of the deceased to PW6 the Village Administrative Officer, was suppressed and the prosecution has failed to prove any motive for the accused to attack the deceased. He would also contend that the evidence of PW1 is not consistent with the version of PW2 and PW7 also would not support the evidence of PWs 1 and 2 on the important aspects of the occurrence.

The main attack made by the learned counsel for the appellant is on the aspect of delay. The occurrence took place on 23.2.1987 at 7 a.m.

Alangulam police station is situated 10 k.m. away from the scene of occurrence i.e. Kallathikulam. The first information report was registered at 4 p.m.. It reached the Magistrate at 9.45 p.m. on the same day. According to the learned counsel, by making use of these fourteen hours delay, the prosecution has created a document ExPl in order to falsely implicate the appellant, who is admittedly, inimically disposed with PWIs family.

He would also cite the following judgments:

i. Apren Joseph alias Current Kunjukunju and Others Vs. The State of Kerala,

ii. Thulia Kali Vs. The State of Tamil Nadu,

iii. Ram Jag and Others Vs. The State of U.P.,

iv. Ramji Surjya Padvi and Another Vs. State of Maharashtra,

The submission made by the learned counsel for the appellant with reference to the delay of fourteen hours, in our view, may not have any impact in the light of the present facts relying to the time of occurrence, manner of occurrence and the participation of the accused in the occurrence.

It is settled law, as held by the Supreme Court in the earlier decisions referred to above, that the mere delay in lodging the complaint or the same reaching the Magistrate cannot be the sole ground to reject the prosecution case. The effect of delay in doing so, in the light of the plausibility of the explanation forthcoming for such delay, accordingly, must fall for consideration on all the facts and circumstances of a given case. Whether the delay is so long to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors. Even a long delay can be condoned, if the witnesses have no motive for implicating the accused. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness of the version of the prosecution. Thus, the extraordinary delay in giving the first information to the police can be condoned, if there is a proper explanation.

In other words, if the reason given by the prosecution for inordinate delay in reporting the incident to the police is convincing, naturally, the Court for the same reason of delay, cannot brush aside the genuine materials placed before the Court through the witnesses. Therefore, we are not able to accept the contentions of the learned counsel for the appellant stating that there is fourteen hours delay and hence, the prosecution case has to be disbelieved.

On the other hand, as rightly pointed out by Mr. N.R. Elango, learned Government Advocate, there is no long delay. Even assuming that there is a delay, it was properly explained by PW1 and ExPl as well as in his deposition. Though the occurrence took place at 7 a.m.. PW1 had to go to Manur village to inform about the death of the deceased to his wife and to his father-in-law by leaving PW1''s wife PW2 by the side of the dead

body. Thereafter, he had to come back to the scene of occurrence and went to Maranthai village by walking and reached the police station by getting a bus. Immediately when the complaint was given at 4 p.m.. PW14, the Sub-Inspector of Police registered the case against the accused for the offence u/s 302 of the Indian Penal Code and PW12, the Constable took the documents, went to the Magistrates house and handed over the same at 9.45 p.m. on the same day. Therefore, it cannot be contended that there is a long delay and even assuming that there is a delay, the delay, in our view, has been properly explained by PW1 both in ExPl as well as in his statement made before the Court.

Similarly, much was said about the absence of motive. In criminal cases, the aspect of motive pales into insignificance once, the eyewitnesses narrating the entire incident relating to the murder are to the disbelieved. If there is suspicion of the veracity of the eyewitnesses, then we go for corroboration from the surrounding circumstances including the aspect of motive. In this case, the motive projected by the prosecution is that earlier. PW7 and one Arjunan went to the house of PW7"s father-in-law and removed the house hold articles belonging to PW7, and brought them back to PWl"s house. Will reference to that, there was a complaint to PW1U, the Sub-Inspector of Police, Manur. In the enquiry, both the parties were warned. The father-in-law of PW7 was under the impression that for the act of removing the house hold articles. Chelladurai the deceased, son of PW1 was mainly responsible. This was intimated to the appellant Shaikdurai by his sister Lakshmi and Dharmaraj-the father in law of PW7. This is the motive attributed to the murder. However, as correctly pointed out by the learned counsel for the appellant, there is no material for the immediate motive for the occurrence that took place on 23.2.1987 at about 7 a.m..

As indicated above, even in the absence of strong motive or even in the absence of material for the immediate motive, if this Court conies to the conclusion that the evidence of PWs 1 and 2 is genuine and acceptable, then, the other lacuna with reference to the motive would not cause any impact on the conclusion arrived at by this Court, with reference to the participation of the accused in the commission of crime.

However, on going through the entire evidence and on considering the various submissions made by the learned counsel for the rival parties, vv-e are of the view that there are so many other suspicious features in the case of the prosecution. As noted above, we are not impressed about the aspect of delay in lodging the first information or on the aspect of absence of motive. But, we are of the considered view that PWs 1 and 2 are not consistent in their version with reference to the manner of occurrence, the time of occurrence and also with regard to the complaint given to the authorities concerned. Ultimately, when we feel that PWs 1 and 2 are not reliable witnesses, naturally, the benefit of doubt is to be given to the accused. To come to the conclusion that PWs 1 and 2 have not given correct version and placed the correct materials before the Court, there are other witnesses reflecting the various suspicious features, resulting in the doubt being entertained in the prosecution case. Now, we have to point out the various suspicious circumstances, which are given below:

As stated about, according to the prosecution, the occurrence took place at 7 a.m. on 23.2.1987. PWs 1 and 2 are the eyewitnesses. Though PWs 3 and 4 are also arrayed as eyewitnesses, they turned hostile. After witnessing the occurrence, PW1 after leaving his wife PW2 by the side of the dead body, went to Manur to inform the matter to the wife and father-in-law of the deceased. Admittedly, the occurrence took place in the field situated between Manur and Kallathikulam Village. According to the evidence of PW1, he was enquired at Manur police station with reference to the complaint given by one Dharmaraj-the father-in-law of PW7 against PWl, Arjunan and PW7. Therefore, he knows that there is a police station at Manur. PWl did go to Manur, informs PW5 Irulan the father-in-law of the deceased and bring him to the scene. There is no reason as to why he did not inform the Manur police station. When a specific question had been put to PWl with reference to that, he said Though he initially deposed before the Court that he knew that there was a police station at Manur, he gave a false answer to the question put by the Court stating that he did not know as to whether there is any police station situated at Manur. But, for yet another question, he gave an answer stating

.

These answers would make it clear that PWl knows that there is a police at Manur and he would admit that he was enquired by Manur police station with reference to the complaint given by PW7""s father-in-law, but even then, he did not choose to report to the Manur police station.

Ultimately, he came forward with the false explanation that the scene place is not within the jurisdiction of Manur and that therefore, he went to Alangulam. This explanation is quite artificial and unacceptable. That apart. PW5-Irulan is an important person in Manur and he himself would admit that he is . When these people came to know about the incident and the particulars of the assailant, there is no reason as to why they did not go to Manur police station.

In this context, it is relevant to note that PWl has given all the details in the complaint stating that he went to Manur, brought Irulan PW5 and the wife of the deceased to the scene place and from there, he came to Maranthai Village, got a bus and reached Alangulam at 4 p.m.. including the details relating to the removal of the household articles and the enquiry conducted at Manur police station. Though there is delay in lodging the first information at the police station at 4 p.m.. even though the occurrence took place at 7 a.m., on going through the minute details, we are of the opinion that the delay between 7am and 4pm had been made use of to give an explanation in order to cover up the delay, by stating that PW1 went to Manur and brought Irulan PW5. Therefore, in our view, though the delay by itself would not throw doubt, the explanation for the delay, which has been given in ExPl, raises very serious doubt, especially when he had failed to report to Manur police station.

Furthermore, the office of the Village Administrative Officer PW6 is situated at Maranthai. PWl was accompanied byPW5, who is a Even if they failed to give a complaint at Manur police station, they could have come to Maranthai, where the office of the Village Administrative Officer Pw6 is situated and reported the matter. But, they waited for the bus and reached Alangulam at 4 p.m.. All these things would clearly show that these reasons have been given in ExPl only by way of explaining the delay, which, in our view, are not proper, especially in the light of the fact that there is a police station at Manur and there is office of the Village Administrative Officer situated at Maranthai.

So, in the light of the improper explanation for the delay in lodging the first information, we have to analyse cautiously the evidence of PWs 1 and 2, who are the eyewitnesses. According to PWl, in ExPl, the deceased, on the way to Maranthai Village, in order to get assignment of the land from PW6 - the Village Administrative Officer, was walking through Kallathikulam Village along with several persons such as Balaiah, Arumugam, Velsami, Indiraiuani, Annadurai, Sekar, Komban, Thiagarajan, Ganapathi, Muthiah, Sekku, Mariyanayagam, Kovil Pillai and others. It is specifically stated in ExPl that the deceased was going along with all these persons to Maranthai Village. At that time, the occurrence had taken

place. According to PW1, in his deposition, he would state that at the place of occurrence, when PWs 1 and 2 were working in the field, the accused came along and that PW1 did not know with whom and from which direction, the deceased came to the scene.

Furthermore, in the later portion of the deposition, PW1 would state that his son-the deceased came to his house in the early morning, took food and thereafter, came to the scene. But, this is not supported by the evidence of PW2. PW2 would state that the deceased came to the scene and she saw him for the first time at about 7 a.m. near the field and that before that, she met him only ten days back. She did not state that the accused came to their house and took food. Furthermore, PW15 the Inspector of police would admit that during the course of investigation, he was not able to find out as to where actually the deceased took food by saying . This aspect of the statement given by PWs 2 and 15 would clearly show that PW1 has not come with truth

As indicated above, PW1 in one portion of the deposition would state that the deceased came alone directly to the scene. In ExP1, he would state that the deceased came to the scene along with several persons. In another portion of the deposition, he would state that the deceased came to his house, took food and then, came to the scene just prior to the incident. The reason for such improvement, in our view, has been made by PW1, probably, because of the statement of the doctor PW8, who had stated that the stomach of the deceased contained partially digested food and the deceased had taken food two hours prior to the occurrence. Therefore, we are unable to place much reliance on the evidence of PW1.

Yet another interesting feature is to be noticed. PW1 and PW14 would uniformly state that the complaint was given at about 4 p.m. on 23.2.1987 by PW1 attested by PW5 But, unfortunately, PW2 would admit in the course of cross examination that immediately after the occurrence. PW6 the Village Administrative Officer and Thalayan came to the scene and PWs 1 and 2 informed about the incident to PW6, the Village Administrative Officer, who in turn, reduced the same into writing, obtained thumb impression of PW1 and thereafter, he went to the police station and brought the police officers in the morning itself. The consistent suggestion put by the defence of PW6, PW14 and PW15 is that the earlier complaint given by PW1 the father of the deceased to the Village Administrative Officer PW6, who handed over the said complaint to the police was suppressed. Since the said complaint did not give details of the assailant, and in order to implicate the accused, falsely a new complaint had been fabricated as if PW1 came to the police station at 4 p.m. and gave the complaint making the the appellant as an accused. This is, in our view, a very serious lacunae.

Further, this aspect has been strengthened by the admission of PW7, the sister of the deceased also. PW7 Sarasa would state in the cross examination that she came to know about the incident only about 7 a.m. and after receipt of the said information. PW-7. PW1 and PW2 went together to the scene and saw the dead body saying

.

This admission made by PW2 and PW7 with reference to these aspects would clearly show that the story projected by PW1 is not true.

In other words, we can very well hold that the story of the prosecution projected in ExP 1 registered at 4 p.m. is a clear outcome of the fertile imagination by the police. There is also a doubt with reference to the time of occurrence PW8, the doctor had specifically stated in his evidence that the death would have occurred 28 hours prior to and within 32 hours of the commencement of the post mortem.

According to PW8 the doctor, the rigor mortis would commence, three hours after the death and will be present for 24 hours. If this time is taken note of, then there is a possibility that the occurrence would have taken place on the mid night on 22/23-2-1987 or in the early morning of

23.2.1987. This aspect of evidence of the doctor PW8 is anyway corroborated by the admission of PW1. PW1 would state in the cross examination that when he came near the dead body of the deceased, and when he first saw the body of his son, the dead body was stiff. The doctor PW8 would say that stiffness would commence only after three hours If it is so, it could be gathered that PW1 must have gone to the scene place, only three hours after the occurrence. To this effect, a suggestion had been put by the defence to all the relevant witnesses. It is the case of the defence through the suggestion that the deceased got so many enemies, since he had involved in so many criminal cases and since he was afraid of his life, he left the village Kallathikulam and stayed with his wife at Manur Village. It is also probable that the deceased would have done to death during the night time or in the early morning, and these people would have gone to the field and seen ''he deceased, as admitted by PW7, the sister of the deceased.

In this context, it is quite relevant to refer to the statement of PW1 in the cross examination to the effect that he had suspicion about the involvement of the accused in the murder of his son, because he alone is his family's enemy saying . This statement would make it clear that the complaint, which was given by PW1, the father of the deceased to PW6, the Village Administrative Officer, on having suspicion against the accused, probably mentioning about the dead body being found in the field, without getting particulars about the assailant, was suppressed by the police, as it was stated by PW1 that the accused alone should have done this dastardly act as he was his only enemy. With reference to the evidence relating to the recovery of MOI, we do not place much reliance, because the weapon was recovered long after the date of occurrence i.e. on 16.3.1987 and also MOI did not contain any blood stain.

Ultimately, we are of the opinion that the prosecution has not established its case beyond reasonable doubt, especially when we feel that one important document, namely, the statement given by PW1, the father of the deceased to PW6, the Village Administrative Officer has been suppressed and as such, the prosecution has not come out with clean hands. Therefore, we are of the view that the conviction and sentence imposed upon the appellant are liable to be set aside and are, accordingly set aside. The appeal is allowed