Sivagami v. State, represented byInspector of Police,Vill

Bail SlipThat the Appellant/Accused 3 Namely Azhagar, S/o.Chokklingam wasdirected to be released on bail as per Order of this Court dated18.7.2008 and made in M.P.No.2 of 2008 in Crl.A.No.171/2008 on thefile of this Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 26.3.2009CORAMTHE HONOURABLE MR. JUSTICE C.NAGAPPANandTHE HONOURABLE MR. JUSTICE T.SUDANTHIRAMCriminal Appeal Nos.293 and171 of 2008Criminal Appeal No.293/2008 1. Sivagami2. Devanathan3. Ratchagan4. Rajendran .. Appellants/Accused Nos.1, 2, 4 and 5.Vs.State, represented byInspector of Police,Villupuram Taluk Police Station,Villupuram.(Crime No.253/2005) .. Respondent/ComplainantCriminal Appeal No.171/2008Azhagar .. Appellant/Accused No.3Vs.State, represented by https://hcservices.ecourts.gov.in/hcservices/ Inspector of Police,Villupuram Taluk Police Station,Villupuram. (Crime No.253/2005) .. Respondent/ComplainantPrayer: Appeals against the judgment of conviction and sentenceimposed on the accused in S.C.No.116 of 2005, dated 18.2.2008, on thefile of the Principal Sessions Judge, Villupuram.For Appellants :: Mr.V.Gopinath in Crl.A.No.293/2008 Senior Counsel M/s.L.Mahendran, S.Suresh. For Appellant :: Mr.A.Shiv Kumar in Crl.A.No.171/2008 For Respondent :: Mr. V.R.Balasubramanian Additional Public ProsecutorCOMMON JUDGMENT(Judgment of the Court was delivered by C. NAGAPPAN, J.) The appellants, four in number, in Criminal AppealNo.293/2008, were Accused Nos.1, 2, 4 and 5 in Sessions Case No.116of 2005 on the file of Principal Sessions Judge, Villupuram. Theappellant in Criminal Appeal No.171/2008, was Accused No.3 in theabove Sessions Case and hereinafter, in this Judgment, they willbe referred to Accused Nos.1 to 5 respectively for the sake ofconvenience. 2. Accused Nos.2 to 4 were convicted by the learnedPrincipal Sessions Judge under Section 302 and 148 IPC and sentencedto undergo imprisonment for life each and to pay a fine of Rs.2,000/-each in default, to undergo simple imprisonment for three months foroffence under Section 302 IPC and to undergo rigorous imprisonmentfor one year each for offence under Section 148 IPC; Accused Nos.1 and 5 were convicted under Section 302 IPCread with 149 IPC and 147 IPC and sentenced to undergo imprisonmentfor life each and to pay a fine of Rs.2,000/- each, in default, toundergo simple imprisonment for three months for the offence underSection 302 IPC read with 149 IPC and to undergo RigorousImprisonment for six months each for offence under Section 147 IPC; https://hcservices.ecourts.gov.in/hcservices/ Accused Nos.1 to 5 were convicted under Section 341 IPC andsentenced to pay a fine of Rs.500/- each, in default, to undergoRigorous Imprisonment for three months and the learned PrincipalSessions Judge ordered the sentences to run concurrently. 3. To prove its case, the prosecution examined P.Ws.1 to 14and marked Exs.P1 to P17 and M.Os.1 to 10. 4. The case of the prosecution, as could be discerned fromoral and documentary evidence, can be briefly summarised as follows. Accused No.2-Devanathan and Accused No.4-Ratchakan arethe brothers of Accused No.1-Sivagami. Accused No.3-Azhagar is theparamour of Accused No.1-Sivagami. P.W.1-Dhanabakkiyam is the wifeof deceased-Murugan. P.W.5-Kadirvel Kounder is the father ofMurugan. P.W.5-Kadirvel Kounder has two wives and through the firstwife, he got a son by name Thangaraj and through his second wife, hegot two sons by name Murugan and Ramakrishnan and three daughters byname Shanthi, Lakshmi and Mallika. Ramakrishnan eloped AccusedNo.1-Sivagami and married her and they were living for about twoyears in Thayumanavar street, Villupuram. The marriage was notaccepted by P.W.5-Kadirvel Kounder and he settled four acres of landin favour of children of P.W.1-Dhanabakkiyam by name Thilagan andTamilkumaran and he also gave one acre of land to Ramakrishnan.Ramakrishnan was electrician by profession and Accused No.3-Azhagarwas his friend and there was illicit intimacy between Accused No.3-Azhagar and Accused No.1-Sivagami and Ramakrishnan died of electricshock. Accused No.1-Sivagami used to bring Accused No.3-Azhagar toone acre of land for cultivation and that was objected by Muruganand there was quarrel between them and Murugan issued Advocate notice. On 6.3.2005, at about 9.30 pm, Murugan drove the Suzukimotorcycle and P.W.1-Dhanabakkiyam was in the pillion and they werereturning from Villupuram to their native village and when they wereproceeding near Mandakulam, Accused Nos.1 to 5, armed with billhooks,restrained them and Accused No.1 instigated the other accused toattack and murder Murugan and Accused No.5 caught hold Murugan andAccused No.2-Devanathan cut Murugan with billhook on the left sideforehead and Accused No.4-Ratchakan cut Murugan on the eyebrow withbillhook and Accused No.3-Azhagar cut Murugan on the right knee.The occurrence was witnessed by P.W.3-Sundaram and the injured-Murugan ran to nearby Ramaraj Reddiar's house and P.W.1-Dhanabakkiyamfollowed him and swooned there. P.W.2-Narayanan took injured-Murugan to Government Hospital,Villupuram in a car. On 6.3.2005, at 10.20 pm, Dr.Amudha examinedMurugan and declared him dead and Ex.P6 is theAccident Register extract issued by her. P.W.13- https://hcservices.ecourts.gov.in/hcservices/ Sub Inspector Mohan, Villupuram Taluk Police Station, on7.3.2005 at 9 am, received Ex.P1-complaint fromP.W.1-Dhanabakkiyam and registered a case in Crime No.253/2005 underSections 147, 148, 341 and 302 IPC and prepared Ex.P11-printed FIR and despatched the copies to higher officers and Courtby Express report. P.W.14-Inspector Mathiyarasu received the Express report andtook up the investigation and went to the occurrence place andprepared Ex.P2-Observation mahazar in the presence of Kumaran andanother and Ex.P12 is the Rough sketch prepared by him. He alsoseized M.O.4-Blood stained earth, M.O.5-Ordinary earth andM.O.6-Hand grip of motorcycle under Ex.P3-mahazar in the presence ofthe same witnesses. He went to Villupuram Government Hospital andconducted inquest at 12 noon on the body of Murugan and examinedwitnesses and prepared Ex.P13-Inquest report. He gave Ex.P14-requisition to conduct post-mortem on the body of the deceasedMurugan. P.W.8-Dr.Thangaraj conducted post-mortem on the body ofMurugan on 7.3.2005 at about 4 pm and found the following. " R.M present in all the four limbs. Eyes partially opened.Mouth partially opened, tongue inside the mouth.EXTERNALLY: 1. A cut injury center of the forehead 6x2xbone depth black. 2. A cut injury left temple area 4x2x bone depth blackish red. 3. A cut injury right side of the forehead 5x2x bone depth. 4. A cut injury on the vertex 2 x 1/2 cm x bone depth. 5. A lacerated injury 2.5 cm above the right eyebrow 3x1x bonedepth blackish red. 6. Signs of bleeding from both nostrils and ear. 7. A cut injury right elbow 1 x 1 cm x bone depth. 8. A cut injury right forearm 1x1 cm x bone depth. 9. A contusion right wrist 5x4 cm. 10. A cut injury left upper arm 1x1x1 cm blackish red. 11. A cut injury left leg lower aspect 1x1 cm x bone depth. https://hcservices.ecourts.gov.in/hcservices/

12. A lacerated injury medial aspect of right leg 6x2 cm x bone depth. 13. A cut injury below the right knee 3x1 cm x bone depth. 14. Abdomen left side of scapular area 5x1 cm x blackish red.Internally: Fracture of frontal bone corresponding to the injury No.1. 1. 6 x 1/2 cm. 2. Fracture of frontal bone corresponding to injury No.3. 6 x 1/2 cm. 3. Blood clots 20 ml. in the surface of frontal lobe of brain. 4. Hyoid Bone intact. 5. Ribs intact. 6. Heart : Pale chambers empty. 7. Lungs greyish red in colour. 8. Stomach : Empty 9. Intestine pale and empty 10. Liver, Spleen, Kidneys Pale. 11. Bladder Empty 12.Spinal Column intact." He gave opinion that the deceased would appear to have died of Headinjury and other injuries sustained 16-20 hours prior to post-mortemand issued Ex.P7-Post-mortem Certificate. P.W.11-Head Constable Sivaramakrishnan seized M.Os.7 to10-clothes from the dead body and handed over the same to P.W.14-Inspector Mathiyarasu under Ex.P10-Special Report. P.W.14-Inspector Mathiyarasu, on 8.3.2005 at 4 pm, arrested Accused No.1-Sivagami and Accused No.3-Azhagar near Serndhanur Railway Station andenquired them in the presence of witnesses and recorded theconfession statement given by Accused No.1-Sivagami. AccusedNo.1 took them to her house and took and produced M.Os.1 to 3-Billhooks from the backyard of her house and P.W.14-InspectorMathiyarasu recovered the same in the presence of witnesses P.W.7-Selvaraj and P.W.9-Rasu and he gave Ex.P15-requisition to send theproperties for chemical analysis and they were sent through https://hcservices.ecourts.gov.in/hcservices/ Ex.P16-letter of the Judicial Magistrate. Ex.P17 is the ChemicalAnalyst's report received in the Court. P.W.14-InspectorMathiyarasu examined some more witnesses and completed theinvestigation and filed final report against the accused.5. The accused were questioned under Section 313 Cr.P.C andthey denied complicity. They did not adduce any evidence on theirside.6. The learned Principal Sessions Judge convicted theaccused under the charges and sentenced them as stated earlier.Challenging the same, the accused have preferred the presentappeals. 7. Murugan died of homicidal violence is established by thetestimony of P.W.7-Dr.A.Thangaraju, who conducted post-mortem and according to him, 14 external injuries were found andamong them, 10 are cut injuries, 2 are lacerated injuries and theothers are contusions. On internal examination, he found fractureof frontal bone and blood clots in the surface of brain. He hasfurther testified that the head injuries are sufficient to causedeath and he has also opined that the deceased would appear to havedied of head injuries in his Ex.P7-Post-mortem Certificate. Hencethe medical evidence would amply show that it is a homicidal death. 8. The prosecution case is that on account of enmity, at thetime of occurrence, all the accused assembled together and some ofthem armed with billhooks, wrongfully restrained Murugan, who wasproceeding in the motorcycle and at the instigation of AccusedNo.1-Sivagami, Accused No.5-Rajendran caught hold of Murugan andAccused Nos.2 to 4 cut Murugan indiscriminately with billhooks,resulting in his death. P.Ws.1 to 4 and P.W.12 were examined ashaving witnessed the occurrence. P.Ws.2, 4 and 12 did not supportthe case of prosecution and they were declared as hostile. Thus weare left with the ocular testimonies of P.Ws.1 and 3 alone withregard to the occurrence. 9. Mr.V.Gopinath, learned Senior Counsel appearing for theappellants in Crl.A.No.293 of 2008/Accused Nos.1, 2, 4 and 5,submitted that P.W.1-Dhanabakkiyam could not have witnessed theoccurrence and her testimony is self-contradictory and contradictoryto the averments in the complaint and she is not the author ofEx.P1-complaint and there was delay in lodging the complaint and thecomplaint is fabricated and P.W.3-Sundaram, in the cross-examination,has given a go-by to his testimony in chief-examination and hasstated that he got information about the assault made on Muruganthrough the phone message given by Ramaraj Reddiar to P.W.2-Narayananand he along with P.Ws.1 to 3 went and saw injured Murugan in thehouse of Ramaraj Reddiar and hence no reliance can be placed on his https://hcservices.ecourts.gov.in/hcservices/ testimony and the investigation is perfunctory and tainted one andthe conviction and sentence imposed on the appellants by the TrialCourt are unsustainable. 10. Mr.A.Shiv Kumar, learned counsel for the appellant inCrl.A.No.171 of 2008/Accused No.3, adopted the contentions of thelearned Senior Counsel and reiterated that P.Ws.1 and 3 could nothave witnessed the occurrence and their testimonies do not deserveany credence and the Trial Court has failed to appreciate theevidence in proper perspective and the conclusion is erroneous. 11. Per contra, Mr.V.R.Balasubramanian, learned AdditionalPublic Prosecutor, submitted that P.W.1-Dhanabakkiyam was travellingas a pillion rider in the motorcycle driven by her husband Muruganand she had witnessed the occurrence and P.W.3-Sundaram happened towitness the occurrence while returning from his land and histestimony corroborates the testimony of P.W.1-Dhanabakkiyam and theTrial Court has properly appreciated the evidence and the delay inlodging the complaint has been explained by the prosecution and theconviction and sentence passed by the Trial Court are sustainable.12. P.Ws.1 and 3, in their chief-examination, have stated thatat the time of occurrence, the accused armed with billhooks,wrongfully restrained Murugan who was coming on his motorcycle andAccused No.1 instigated the other accused to attack and murderMurugan and Accused No.5 caught hold Murugan and Accused No.2-Devanathan cut Murugan with billhook on the left side forehead andAccused No.4-Ratchakan cut Murugan on the eyebrow with billhook andAccused No.3-Azhagar cut Murugan on the right knee and theaccused ran away and the injured-Murugan went to nearby RamarajReddiar's house and P.W.2-Narayanan took the injured-Muruganto Villupuram Government Hospital in a car. Having said so in thechief-examination, P.W.3-Sundaram, in his cross-examination, hasstated that Accused No.4-Ratchakan and Accused No.5-Rajendran came tothe place in a two-wheeler and other three accused were found sittingnear Mandaivai pond and he returned to his home and thereafterRamaraj Reddiar telephoned to P.W.2-Narayanan's house andinformed him that Murugan was attacked by unknown persons and onhearing the same, he along with P.W.1-Dhanabakkiyam andP.W.2-Narayanan went and saw injured-Murugan in the house ofRamaraj Reddiar and the injured Murugan was taken to VillupuramGovernment Hospital in a car. 13. P.W.3-Sundaram is a chance witness and no doubt, he was nottreated as hostile, but still, his testimony has no probative value.As already seen, in the chief-examination, P.W.3-Sundaram claimed tohave witnessed the entire occurrence, but in the cross-examination,he has denied the same and has stated that he only heard about theoccurrence. In short, the testimony of P.W.3-Sundaram is liable https://hcservices.ecourts.gov.in/hcservices/ to be rejected as not trustworthy. 14. The remaining is the sole testimony ofP.W.1-Dhanabakkiyam, wife of deceased Murugan. She claimed to havereturned to the native village along with her husband Murugan in themotorcycle when the accused waylaid them and witnessed the attackmade on Murugan by the accused. In her oral testimony as P.W.1, shehas testified that her husband Murugan, who got injured in theattack made by the accused, ran to nearby Ramaraj Reddiar's houseand she followed him and she swooned in the house of Ramaraj Reddiarand P.W.2-Narayanan took the injured Murugan to Villupuram GovernmentHospital and she was taken to her house and after regainingconsciousness, the next day morning she lodged Ex.P1-complaint withher signature in Villupuram Police Station. In the averments inEx.P1-complaint, she has stated that after the attack made by theaccused on her husband Murugan, the injured Murugan ran to nearbyRamaraj Reddiar's house and she followed him and she and P.W.2-Narayanan took Murugan to Villupuram Government Hospital at 10.20 pmon the same night and the doctor declared him dead and out of shock,she returned to her house and fell unconscious and on the next daymorning, she lodged the complaint. There is a vital contradictionas to whether P.W.1-Dhanabakkiyam accompanied injured-Murugan to thehospital after the occurrence. According to P.W.1-Dhanabakkiyam,the clothes owned by her at the time of occurrence were stained withblood of her injured husband and with the same clothes, she went tothe hospital and Police Station and she handed over the clothesalso. P.W.13-Sub Inspector Mohan, who received the Ex.P1-complaint, has stated in the cross-examination that the clothes ofP.W.1-Dhanabakkiyam were not stained with blood when she handedover the complaint and the Investigation Officer P.W.14-InspectorMathiyarasu has stated that P.W.1-Dhanabakkiyam did nothand over any blood-stained clothes of her during investigation.The blood-stained clothes of P.W.1-Dhanabakkiyam, if any, mayprobablise her presence along with her husband at the time ofoccurrence and that is absent. Moreover the testimony of P.W.3-Sundaram that they got information about the attack made on Muruganthrough telephone message and he along with P.Ws.1 and 2 went toRamaraj Reddiar's house and saw injured Murugan there, destroysthe testimony of P.W.1-Dhanabakkiyam of having witnessed theoccurrence. 15. The occurrence took place at about 9.30 pm on 6.3.2005 andEx.P1-complaint was lodged by P.W.1-Dhanabakkiyam at about 9 amon 7.3.2005 and there is a delay of about 11 hours. Though FirstInformation Report was registered at about 9 am, it reached the Courtonly at about 3 pm. The only reason given for the delay inlodging Ex.P1-complaint is that after the occurrence,P.W.1-Dhanabakkiyam returned home and fell unconscious and afterrecovery from the same, she lodged the complaint on the next day https://hcservices.ecourts.gov.in/hcservices/ morning. The explanation cannot be accepted on the face of it.If really, P.W.1-Dhanabakkiyam, the wife of injured Murugan, hadwitnessed the occurrence and taken her injured husband to thehospital, she would not have ventured to return home and wait tillthe next day to lodge the complaint. Her conduct is unnatural andbelies her version. 16. In this context, it is relevant to note that P.W.2-Narayanan took injured-Murugan to Villupuram Government Hospital andinformed Dr.Amudha that Murugan was attacked by unknown persons andthe same was recorded in Ex.P6-Accident Register. If really,P.W.1-Dhanabakkiyam accompanied injured Murugan and P.W.2-Narayananto the hospital, she would have informed the doctor about the attackmade by the accused on her husband during the occurrence and wouldhave lodged the complaint immediately in the Police out-post attached to the hospital. 17. Though Ex.P1-complaint contained the signature of P.W.1-Dhanabakkiyam, she does not appear to be the author of the same. Inthe earlier portion of the cross-examination, P.W.1-Dhanabakkiyam hasstated that the complaint was written by the villagers and they askedher to put the signature and she had signed the same withoutknowing the contents. In the later part of the cross-examination, P.W.1-Dhanabakkiyam has further stated that evenbefore her lodging the complaint, the Police on suspicion, keptJayalakshmi, the wife of Accused No.2-Devanathan and Sasikala, thewife of Accused No.4-Ratchakan and Accused No.1-Sivagami and AccusedNo.3-Azhagar were also kept in Villupuram Police Station and in theirpresence, at the instructions of the Police, Ex.P1-complaint wasprepared. This shows that Ex.P1-complaint has been created afterdeliberation, roping in all the accused and it is a fabricated one.The law is well settled that the entire fabric of the prosecutioncase would collapse if the First Information Report is held to befabricated or brought into existence long after the occurrence.(MARUDANAL AUGUSTI v. STATE OF KERALA, 1980 Supreme Court Cases(Cri) 985). 18. According to P.W.14-Inspector Mathiyarasu, Accused No.1-Sivagami was arrested at 4 pm on 8.3.2005 in Sernathur RailwayStation and she gave a confession in the presence of P.W.7-Selvarajand P.W.9-Rasu and she took them to her house and she took M.Os.1 to3-Billhooks from the backyard of her house and produced the same andhe recovered the same under Ex.P4-mahazar in the presence ofwitnesses. The witnesses viz., P.W.7-Selvaraj and P.W.9-Rasudid not support the case of the prosecution and they were declaredas hostile. In fact, the admissible portion of the confession wasnot marked and it is not proved that Accused No.1-Sivagami gavethe information. Moreover, P.W.1-Dhanabakkiyam, in her https://hcservices.ecourts.gov.in/hcservices/ cross-examination, has stated that she saw Accused No.1-Sivagami inthe Police Station even before her lodging the complaint. If thatbe so, there is no question of any arrest of Accused No.1-Sivagamibeing made during investigation and the prosecution case is liable tobe rejected. 19. The contention of the learned Senior Counsel appearing forthe appellants that the investigation is perfunctory and taintedone, cannot be brushed aside. The prosecution case is that Muruganwas brutally attacked by the accused during the occurrence and he ranto nearby Ramaraj Reddiar's house and after some time, he was takento Villupuram Government Hospital by P.W.2-Narayanan. P.W.3-Sundaram has stated that Ramaraj Reddiar telephoned to P.W.2-Narayanan's house and informed him that Murugan was attacked byunknown persons and on hearing the same, he along with P.Ws.1 and 2met the injured Murugan in the house of Ramaraj Reddiar and tookhim to hospital. Immediately after the occurrence, the injuredMurugan met Ramaraj Reddiar and if he has been examined, he wouldhave thrown much light upon the occurrence and that has not beendone. During investigation, Ramaraj Reddiar was not examined andno steps appeared to have been taken to examine him in the case.The failure to examine him affects the prosecution case. 20. We are of the considered opinion that the prosecution hasnot proved the guilt of the Accused Nos.1 to 5 beyond reasonabledoubt and they are entitled for the benefit of doubt. 21. In the result, both the Criminal Appeals are allowed andthe conviction and sentence imposed on the appellants/Accused Nos.1to 5 are set aside and the appellants/Accused Nos.1 to 5 areacquitted of all the charges and the fine amount paid, is tobe refunded to them. The Bail bonds executed by Accused No.3-Azhagarshall stand cancelled. The appellants/Accused Nos.1, 2, 4 and 5 aredirected to be released forthwith if their custody is not requiredin any other case. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvksTo https://hcservices.ecourts.gov.in/hcservices/

1. The Principal Sessions Judge, Villupuram.2. The Inspector of Police, Villupuram TalukPolice Station, Villupuram (Cr.No.253/2005).3.The Judicial Magistrate No.I, Villupuram.4.-do- through the Chief Judicial Magistrate,Villupuram.5.The Superintendent, Central Prison, Cuddalore.6. The Public Prosecutor, High Court, Madras.7.The District Collector, Villupuram8.The Director General of Police, Chennai. 9. The Superintendent Special Prison for Women at Vellore.Copy toThe Section Officer, Criminal Section, High Court, Madras 104. 1 CC To Mr.A.Shivkumar, Advocate, SR NO.99491 CC To Mr.L.Mahendran, Advocate, SR NO.10260 Common Judgment in Crl.A.Nos.293 and 171 of 2008.nm(co)pmk/8.4.2009.