SARAVANAN Vs. STATE

JUDGEMENT

(1.) CHALLENGE in this appeal is to the judgment of the learned Additional Sessions Judge, Fast Track Court, Dharmapuri, dated 15.06.2006 made in S.C.No.57 of 2005 convicting the appellants under Section 302 IPC and sentencing them to undergo imprisonment for life and also imposing a fine of Rs.1,000/- each, in default, to undergo three months rigorous imprisonment.

(2.) THE prosecution version, as unfolded during the course of trial through the evidence adduced by the prosecution, is as follows : (i) P.W.3 is the elder sister of the deceased, Palanivasan. A-1 was the neighbour of the deceased and P.W.3. A-1, A-2 and the deceased were friends. A-1 asked an amount of Rs.2,000/- as loan from P.W.3 through the deceased. P.W.3 gave the loan amount of Rs.2,000/- to A-1 as the deceased guaranteed for the repayment. P.W.3 demanded the repayment of the loan amount from A-1, three months after giving the loan. THE deceased went and asked A-1 to repay the loan which was given by his sister, P.W.3 and A-1 abused the deceased in filthy language. THEy were not in talking terms for a week and thereafter, they restored their relationship and both of them used to consume alchohol. On one day, A-1 called the deceased to Laingalapatti village for Kaliamman temple festival and thereafter both the deceased and A-1 left for that temple festival. As the deceased was not returned even two days thereafter, P.W.3 went and enquired mother of A-1 and she informed that he would come two days thereafter. Again after three days, P.W.3 went and enquired A-1 and A-1 stated to P.W.3 that due to the quarrel in respect of loan amount of Rs.2,000/-, A-2 caught hold of the deceased and A-1 said to have thrown the deceased into the well. THEreafter, P.W.3 went and informed her mother one Ariyakkal and her uncle one Dharman. (ii) Meanwhile P.W.2 who is an agriculturist in the village went to his field on 09.06.2002 at 9.00 a.m. and found an unidentified body of a male person was floating in his well. He went and informed P.W.1, Village Administrative Officer. P.W.1 along with his Assistant, P.W.10, came to the well and found the body of a male person at 10.30 a.m. He enquired the neighbours, but no one was able to identify the body. P.W.1 had not received any information from anyone. THEreafter, P.W.1 asked his Assistant, P.W.10, to remain at the scene and went to the police station. (iii) P.W.1 went to palacode Police Station and gave the report, Ex.P.1. P.W.13, on receipt of the report, registered the case in Crime No.316 of 2002 under Section 174 Cr.P.C. He sent the First Information Report, Ex.P.13 to the Tahsildar, Palacode, the Magistrate and to the higher police officials. (iv) P.W.13 took up investigation and went to the scene of occurrence at 1.45 p.m. and prepared the observation mahazar, Ex.P.6 and the rough sketch, Ex.P.14 in the presence of P.W.10 and another. He held inquest on the dead body of the deceased at 2.30 p.m. Ex.P.15 is the inquest report. He examined some witnesses and recorded their statements at the scene. He sent the body for post-mortem. (v) THE Doctor, P.W.11, conducted post-mortem on the dead body of the deceased on 10.06.2002 at 12.45 p.m. and found the following injuries: External injury not made not due to high decomposing of the body. Internal Examination: Opening of the Thorax: Hyoid Bone: Intact Ribs: No fracture of the ribs Heart: Weight normal on C/s. Congested and decomposed Lungs: On c/s. congested on squeezing frothy watery fluid comes out Opening of the Abdomen: Liver: Weight normal on c/s. congested and decomposed. Stomach: Contains 250 gms of undigested rice food Intestines: Distended with gas Kidney: Weight normal on c/s congested Bladder: Empty Opening of the Head: Skull: No fracture of the skull bone Brain: Liquified. Ex.P.10 is the Post-mortem certificate. He opined that the deceased would appear to have died at about 72 to 96 hours prior to autopsy and would have died due to asphyxia due to drowning. (vi) P.W.13, in continuation of his investigation, examined P.Ws.1, 2, 3 and others and recorded their statements. On 10.06.2002, he examined P.W.6, Tailor, and recorded his statement and he came to know that the body is that of the deceased. As P.W.6 identified the shirt, M.O.1, is that of the deceased as he used to stitch shirt for the deceased. P.W.13 went to the house of the deceased and showed the photograph and shirt, M.O.1, to P.W.3, sister of the deceased. P.W.3 identified the body as that of her brother. P.W.3 further informed that A-1 gave the extra-judicial confession and thereafter, he recorded a statement from P.W.3 and altered the offence to one under Section 302 IPC. Ex.P.16 is the altered First Information Report and he sent the same to the Magistrate Court. (vii) P.W.1 stated that on 14.06.2002, A-1 and A-2 appeared before him in his office and at that time P.W.4 and one Thirupathi came to his office. On enquiry, A-1 gave the extra-judicial confession, Ex.P.2 to the Village Administrative Officer, P.W.1. THEreafter, P.W.1 took both the accused and produced them before P.W.13, Inspector of Police, palacode Police Station at 12.00 noon along with his report, Ex.P.3. P.W.13 arrested both the accused and took them to the scene and after A-1 and A-2 identified the place, they were remanded to judicial custody through the Court. P.W.13 examined the other remaining witnesses and recorded their statements. (viii) P.W.14 took up further investigation. He examined the Doctor, P.W.11, who has conducted post-mortem and received the post-mortem certificate, Ex.P.10. He also received Ex.P.9, Viscera report and Ex.P.11, final opinion. After completion of investigation, P.W.14 filed the charge sheet against the accused on 30.11.2002 for the offence under Section 302 IPC.

(3.) MR. S. Ashok Kumar, learned senior counsel appearing for the appellants vehemently contended that the prosecution has miserably failed to prove the charges against the accused by adducing clear and consistent evidence and made the following submissions: (1) The evidence of P.W.3, sister of the deceased, is unbelievable and unacceptable as she was not even able to state the date of occurrence and also the date on which A-1 and A-2 said to have been made extra-judicial confession to her and she has also not given report to the police or informed to anyone. (2) The evidence of P.W.1, Village Administrative Officer, is unacceptable and unbelievable. P.W.1 has stated that A-1 and A-2 appeared before him on 14.06.2002 and A-1 gave the extra-judicial confession, Ex.P.2, and at that time P.W.4 and one Thirupathi was present. But P.W.4 stated that they went to the police station on the date of conducting post-mortem, i.e., on 10.06.2002 and also on the next day, i.e., on 11.06.2002 and found A-1 at the police station. P.W.5 stated that on 13.06.2002, he was examined by the police and he was taken to the police station and at that time A-1 and A-2 were present at the police station. Therefore, the version of the prosecution that A-1 and A-2 appeared before P.W.1 and gave the extra-judicial confession, Ex.P.2 is unreliable and unacceptable. (3) The last seen theory as spoken by P.W.8 is unreliable and unbelievable as P.W.8 has not stated about the date and time on which he has seen the accused along with the deceased at Kaliamman temple festival. P.W.8 further admitted in his cross-examination that the deceased and the accused were unknown to him and he has not seen them before the temple festival.