DEVENDRAN Vs. INSPECTOR OF POLICE ALANGAYAM

JUDGEMENT

(1.) THIS appeal is preferred by a sole accused challenging his conviction under Section 304 (I) I.P.C. and sentence of seven years rigorous imprisonment passed by the learned Additional Sessions Judge-cum-Chief Judicial Magistrate, Vellore in S.C.No. 54 of 1997 by the Judgment dated 11.01.1999.

(2.) THE appellant faced the trial in the following backdrop: (a) THE deceased was married to the appellant six years prior to the date of occurrence. Out of the wed-lock between the accused and the deceased, two children were born and died subsequently. THE accused was leading happy married life with the deceased for two years. THEreafter, there were misunderstanding between the accused and the deceased and the accused was residing separately. When deceased scolded the accused for that the accused beat the deceased and kicked her. A panchayat was convened in the village and thereafter, the accused and the deceased were living together once again. THE accused beat the deceased and she was driven away from the house. THE deceased informed to the panchayat, when it was convened once again, that she is not willing to go to the house of the accused, her husband. THEreafter, the deceased was living with her mother, P.W.2 and gave a report against the accused to the Thiruppathur police station three months prior to the occurrence. (b) On the date of occurrence i.e. on 30.6.1996 at 3.00 p.m., the deceased along with P.W.2, her mother, P.W.3 and one Ramani, went to the rice mill and since there was no power supply at that time, P.W.2 sent the deceased along with P.W.3 and one Ramani to her house and she went to the house of P.W.4. Within few minutes she heard hue and cry of the deceased from the pathway to Kanavaikal. On hearing the same, P.W.2 ran to the scene with P.W.4 and the father of P.W.4. At that time, she found the deceased lying on the road and the accused was running with knife, M.O.1. THEreafter, P.W.2 went near the deceased and found her dead with injuries on her head, left hand and on several parts of the body. P.W.2 was simply sitting at the place of occurrence and P.W.3 and one Ramani went to inform the villagers about the occurrence. (c) P.W.1, who is the Village Administrative Officer of Poongulam, has stated that on 30.6.1996 at 4.30 p.m. the accused came to his office with blood stained weapon, knife, and informed him that he has murdered his wife Mathammal at 4.00 p.m. THEreafter P.W.1 enquired the accused about the actual occurrence. It is further stated by P.W.1 that the accused stated to him that his wife was having illicit intimacy with one Thirupathi and the accused has also warned the deceased as a result of which, there was a quarrel between the said Thirupathi and the accused. P.W.1 also stated that the accused informed him on the date of occurrence that the deceased was coming along with P.W.3 and one Ramani and at that time one Janakan came near the deceased and while the accused also came near the deceased, the said Janakan ran away from the scene. It is also stated by P.W.1 that the accused further informed that on seeing the same, the accused provoked and cut the deceased indiscriminately. P.W.1 further stated that he has recorded the statement of the accused and obtained signature from the accused. P.W.1 also signed the statement given by the accused. Ex.P.1 is the statement of the accused. THEreafter, P.W.1 took the accused along with the statement, Ex.P.1 and knife, M.O.1, to the Alangayam police station and there he has given the statement, Ex.P.1, along with his report, Ex.P.2 to P.W.12, the Sub-Inspector of Police at 6.00 p.m. (d) P.W.12, on receipt of Ex.P.2, the report, registered the case in Crime No. 157 of 1996 under Section 302 I.P.C. P.W.12 prepared the Express First Information Report and sent the same to the higher officials and Court. Ex.P.13 is the express First Information Report. He recovered M.O.1, knife, under Form 95. THEreafter, he went to the scene of occurrence and taken photographs of the deceased through P.W.7, the photographer. He sent the message to the Inspector of Police. On 1.7.1996, he remanded the accused for judicial custody and sent the blood stained weapon, M.O.1 to the Court under Form 95. (e) P.W.13, received the First Information Report on 1.7.1996 and went to the scene of occurrence and prepared the Rough Sketch, Ex.P.14. He also prepared the Observation Mahazar, Ex.P.4. P.W.13 recovered M.O.2, blood stained earth, M.O.3, sample earth from the scene of occurrence under Ex.P.5, Mahazar. THEreafter, he went to Vaniyampadi Government Hospital and conducted inquest on the dead body of the deceased. Ex.P.15 is the Inquest Report. He also made arrangements for post-mortem. (f) P.W.11, the Doctor, attached to the Government Hospital, Vaniyampadi, as per the requisition, Ex.P.11, conducted post-mortem on 1.7.1996 at 12.30 noon. He found the following injuries: 1. Right forearm lacerated wound 7 " 5 " 5 cm. 2."Right upper arm in front 10 " 7 " 3 cm.

(3.) THE perusal of the entire records shows that P.W.3 is a child eye-witness, who is claimed to be the eye-witness, in this case. P.Ws.2 and 4 stated to have reached the scene of occurrence after hearing the hue and cry and among them P.W.2 only claimed that she has also seen the accused at that time who was running with the knife, M.O.1. Yet another piece of material available on record implicating the accused, is the extra judicial confession, Ex.P.1, said to have given by the accused to P.W.1, the Village Administrative Officer. At the outset, I find that the contentions put forward by the learned counsel for the appellant is having much force. THE learned counsel for the appellant also took me through the entire evidence of P.W.3, the child eye-witness, and pointed out several infirmities and the material contradictions elicited in the cross-examination. It is stated by P.W.3 that soon after the occurrence, she ran to her house and informed her father about the occurrence and her father also came to the scene subsequently. But the prosecution has not chosen to examine the father of P.W.3. It is also relevant to be noted that P.W.3 is also closely related to the deceased, as she is the brother's daughter of P.W.2, mother of the deceased. P.W.2, on the other hand, simply stated that after seeing the deceased lying dead she was sitting at the scene of occurrence and P.W.3., and one Ramani only went to the village to inform the villagers. She has not whispered a word about P.W.3 going to her house to inform her father and thereafter P.W.3 returned to the scene alongwith her father. It is also highly improbable that the eye-witness P.W.3 has left the scene after the occurrence after seeing her close relative lying dead. THE prosecution also failed to examine the said Ramani who is alleged to have accompanied along with the deceased and P.W.3 before the occurrence. If the version of prosecution is true that the said Ramani is not only eye-witness to the occurence but also the witness to speak about the entire events right from the deceased going to the rice mill along with P.W.2 and P.W.3 and thereafter returning back from the rice mill to her house and on the way, the fateful occurrence said to have taken place. THE non-examination of Ramani is fatal to the prosecution case. THE answers given by P.W.3, the child eye-witness in the cross-examination clearly shows that she has not a truthful witness and she has been tutored witness. P.W.3 has categorically stated in her cross-examination that she was examined by the police on the date of occurrence at 6.00 p.m. But P.Ws.12 and 13, who went to the scene of occurrence have not whispered a word about examining P.W.3, on the day of occurrence. P.W.12 has merely stated that he went to the scene of occurrence and made arrangements to take photographs on the body of the deceased through P.W.7, the photographer, and thereafter he has sent message to the Inspector of Police. THEre is absolutely no explanation from the prosecution as to who reached the scene of occurrence at the earliest point of time and the prosecution has not chosen to examine any witness at the scene of occurrence. P.W.12 categorically stated in his cross-examination that on 30.6.1996, he has not examined P.Ws.2 and 3. It is also stated by P.W.13 about not examining neither P.W.12 nor P.Ws.2 and 4. THErefore, the statement of P.W.3 that she was examined by the police on the same day at 6.00 p.m. is unbelievable and unacceptable. It is also relevant to be noted as per the admission of P.W.6, the Court Head Clerk, that the 161 statement of P.W.3, reached only on 1.7.1996 at 4.40 p.m. Further, the answers given by P.W.3 in her cross-examination clearly shows that she is a tutored witness. It is also relevant to be noted that at one stage she has stated in her cross-examination that the deceased used to stay at her house only and she will not go anywhere. But at the later portion of the cross-examination, she has admitted that the deceased was having illicit intimacy with one Janakan and used to visit the said Janakan frequently and sometimes she used to stay back during night time at the house of the Janakan. Further, she has stated in her cross-examination that she has not stated to the police that the deceased used to stay back at the house of Janakan itself during night time. But the evidence of P.W.13, the Inspector of Police, clearly shows that she has stated to the police during investigation that the deceased used to stay at the house of Janakan during night time. It is also further relevant to be noted that P.W.3 has stated in her cross-examination that she has not stated to the police that after grinding the rice at the rice mill, she has returned to the village along with one Ramani. But the evidence of P.W.13 clearly shows that she has stated so at the time of her examination. All these material contradictions elicited in the evidence of P.W.3 show that she is not a truthful witness. THE fact remains that there is absolutely no corroboration for the version of the child witness, P.W.3.