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2017 Supreme(Mad) 1500
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S. Nagamuthu and Anita Sumanth, JJ.
Moliselvam and Another - Appellants
Versus
State, through The Inspector of Police, Gowthapadi Police Station, Erode District - Respondent
Crl.A. No. 137 of 2017
Decided On : 20-03-2017
For the Appellant :Mr. Philip Ravindran Jesudoss, Advocate.
For the Respondent: Mr. P. Govindarajan, Addl. PP.
Headnote:
Indian Penal Code, 1860 - Sections 302 read with Section 120-B – Offence of Murder – Conviction – Appeal - P.W.1, the wife of the deceased, was informed that the dead body of the deceased was found in the cremation ground - Then she went to Gowthapadi Police Station and made a complaint at 10.00 a.m. Since the assailants were not known, the FIR was registered as against unknown assailants – Held, no motive had been attributed to the accused. After all they were all poor people living out of rag picking (bottle picking), whereas, the deceased owned a land near the cremation shed. There is absolutely no evidence to show that on any previous occasion, there was any quarrel between the accused and the deceased -It is too difficult to believe that the first accused would have chosen a total stranger to make an extra judicial confession. When such doubt is there, in respect of the said extra judicial confession, we should look for corroboration from independent sources, at least, on material particulars. In this case, there is no other evidence available on record to corroborate the so called extra judicial confession made by the first accused. Thus, we hold that it would not be safe to rely on the evidence of P.W.9 and to convict the first accused - The recovery of the material objects, on the confession made by these accused, would not in any manner go to improve the case of the prosecution - Prosecution has failed to prove the case against A1 as well as A2. Therefore, both the accused are entitled for acquittal - Criminal appeal is allowed
Mr. S. Nagamuthu, J.
The appellants are the accused 1 and 2 in Sessions Case No.79 of 2016, on the file of the III Additional District and Sessions Court, Gobichettipalayam. They stood charged for offence under Sections 302 read with Section 120-B and Section 302 IPC. By judgement dated 8.11.2016, the trial Court convicted them only under Section 302 IPC and sentenced them to undergo imprisonment for life and to pay a fine of Rs.1000/- each, in default, to undergo simple imprisonment for four weeks. Challenging the said conviction and sentence, the appellants are before this Court with this appeal.
2. The case of the prosecution in brief is as follows:
(a) The accused are brothers. They were residing at Anna Nagar, Salangapalayam Village in Erode District. They were empty bottle pickers by profession. From out of the meagre income from the said profession, they used to have their food in hotels and to stay overnight in a shed in the graveyard at Ammam Koil, Gowthapadi Bhavani Road. On the East of the said shed, the deceased Mr. Paattaiyan had his coconut grove. On noticing these two accused sleeping in the shed during night hours, the deceased shouted at them and objected to their sleeping in the shed. But the accused did not stop sleeping there during night hours. On 8.1.2016, as usual, after having their dinner, these two accused were sleeping in the said shed. At around 1.00 a.m., the deceased came to the shed and shouted at the accused. He questioned them as to why they were sleeping in the shed, despite his objection. This resulted in a quarrel. The deceased pushed the second accused down. This again resulted in a scuffle. In that scuffle, both the accused took out one wooden log each lying there in the cremation ground and attacked the deceased. The deceased fell down and died instantaneously. The occurrence was not witnessed by any one. Both the accused then fled away from the scene of occurrence.
(b) P.W.1, the wife of the deceased, was informed that the dead body of the deceased was found in the cremation ground at around 8.00 a.m. on 9.1.2016. Then she went to Gowthapadi Police Station and made a complaint at 10.00 a.m. Since the assailants were not known, the FIR was registered as against unknown assailants. Ex.P1 is the complaint. Ex.P.20 is the FIR. Both the documents were sent to the Court, which were received by the learned Magistrate at 11.30 a.m. on 9.1.2016.
(c) The case was taken up for investigation by P.W.16. He visited the place of occurrence at 11.00 a.m. on 9.1.2016, prepared an observation mahazar and a rough sketch and also recovered blood stained earth, sample earth, blood stained clothes and other blood stained material objects from the place of occurrence. Then he forwarded the body for post-mortem. P.W.8, Dr. Sivasankar, held autopsy on the body of the deceased on 9.1.2016 at 4.30 p.m. He found the following injuries.
"External injuries: 1) Deep laceration over (Lt) temporal region 2) Laceration over the (Lt) Ear lobe 3 x 2 x 1 cm 3)Laceration over (Rt) parietal region 5 x 2 x 1 cm (4) Abrasion over the root of penis 4 x 2 cm (5) Abrasion over (lt) leg 2 x 2 cm. Eye lids closed. Blood stained discharge seen over nose and mouth. Tongue kept inside the mouth. Teeth. No fracture of ribs. Heart 270 gms (Rt) chamber - fluid blood. Lungs - pale (Rt) 400gms (Lt) 350 gms. Hyoid Bone - intact. Stomach - 1000 gms of partially digested food particles present. Liver - pale, wt-1100 gms. Spleen - pale wt-90 gms. Kidneys - pale - Each 130 gms. Intestine - distended with gas. Bladder - Empty. Skull: Depressed fracture of skull seen over (Lt) temporal. Laceration seen over left temporal region of brain. Extensive haemorrhage seen over entire brain surface. Base of skull fracture seen."
Ex.P5 is the postmortem certificate. He opined that the said injuries on the body of the deceased could have been caused by a weapon like wooden log. He further opined that the death of the deceased was due to shock and haemorrh
