Back
2017 Supreme(Mad) 1461
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S. Nagamuthu and N. Authinathan, JJ.
Sambu @ Tamilnilavu (A2) - Appellant
Versus
State rep by Inspector of Police, Kolathur Police Station, Salem District - Respondent
Criminal Appeal No.757 of 2016
Decided On : 18-01-2017
For the Appellant :Mr. A. Raghunathan SC for Mr. T.I. Ramanathan, Advocates.
For the Respondent: Mr. P. Govindaraj, Additional Public Prosecutor.
Headnote:
Indian Penal Code, 1860 – Sections 120(B), 447, 302 – Offence of Murder – Conspiracy – Appeal against conviction - When the deceased was engaged in agricultural operations in the said land, the accused 1 to 3 trespassed into the said land and threatened the deceased to vacate and finally the second accused/appellant snatched and threw away the spade with which the deceased was doing agricultural work and then the accused 2 and 3 held the deceased and the first accused cut him with Koduval repeatedly. The deceased died on the spot – held, appellant is one of the assailants who held the deceased facilitating the first accused to cut the deceased. It is seen from the records that the appellant had nothing to do either with the first accused or with the others. Thus, absolutely there is no motive. Secondly, the presence of P.W.1 at the place of occurrence is by chance. According to his evidence, he went along with the deceased to the disputed land for watering. He has further stated that at that time, the accused 1 to 3 came to the place of occurrence and participated in the crime. But, in the F.I.R., he has mentioned the names of the accused 1 and 2 and one unidentifiable person as the assailants. It is not as though the third accused is not already known to P.W.1. Had it been true that A1 to A3 had participated in the crime and had it been true that P.W.1 witnessed the occurrence, in Ex.P1, he would have, by all means, mentioned about the presence and participation of A1 to A3. But as we have already pointed out, he has mentioned only about the presence and participation of A1 and A2 and yet another person who was unknown to him. This creates enormous doubt in the very presence of P.W.1. - if the evidence of the solitary evidence is partly believable in the absence of any corroboration from any other independent source, on material particulars, it would not be safe to act upon the said evidence of the solitary witness. In this case, the case projected by the prosecution as against the accused 4 and 5 has been rejected by the trial Court. The evidence of P.W.1 is highly doubtful as we have already discussed. Therefore in the absence of corroboration from any other source on material particulars, it will not be safe to rely on the evidence of P.W.1 and sustain the conviction - Prosecution has, thus failed to prove the case against the second accused/appellant beyond reasonable doubt. Therefore, he is entitled for acquittal - Appeal is allowed
S. Nagamuthu, J.
The appellant is the second accused in S.C.No.136 of 2012 on the file of the learned III Additional District and Sessions Judge, Salem. The first accused Mr. Arulmani died during the pendency of the trial and thus the charge against him stood abated. The third accused Mr. Vijay Prabhu was found to be a juvenile and therefore the case against him was split up and the same is now dealt with by the Juvenile Justice Board. The accused 4 and 5 are one Mrs. Selvi and Mrs. Valarmathi. The trial Court framed charges as detailed below:
Serial Number of charge
Charges framed against
Charges framed under Section
1
A2 to A5
120(B) of IPC
2
A2 & A3
447 of IPC
3
A2 to A5
447 r/w 120(B) of IPC
4
A2 & A3
302 of IPC
5
A4 & A5
302 r/w 120(B) of IPC
By judgment dated 08.09.2016, the trial Court acquitted the accused 4 and 5, however convicted the second accused/appellant herein alone under Sections 447 and 302 I.P.C. and sentenced him to undergo simple imprisonment for three months for offence under Section 447 I.P.C. and to undergo imprisonment for life and pay a fine of Rs.1,000/- in default to undergo simple imprisonment for one year for offence under Section 302 I.P.C. Challenging the said conviction and sentence, the appellant/second accused is before this Court with this appeal.
2. The case of the prosecution in brief is as follows:
2.1. The deceased in this case was one Mr. Ponnusamy. The father of the first accused owned landed property in the same village and that was brought for sale in Court auction. The deceased participated and became the successful bidder and thus the said land had been in the possession and enjoyment of the deceased from the year 2006 onwards.
2.2. The 5th accused is the sister of the first accused. The 4th accused is the daughter-in-law of the first accused. The appellant/second accused is not in any way related either to the accused or to the deceased. From 2006 onwards, the first accused and his other family members were demanding the deceased to return the said land to them. This culminated in a strong motive between the two families. It is stated to be the motive for the occurrence.
2.3. It is alleged that on 09.01.2011, around 09.30 a.m. when the deceased was engaged in agricultural operations in the said land, the accused 1 to 3 trespassed into the said land and threatened the deceased to vacate and finally the second accused/appellant snatched and threw away the spade with which the deceased was doing agricultural work and then the accused 2 and 3 held the deceased and the first accused cut him with Koduval repeatedly. The deceased died on the spot.
2.4. P.W.1 witnessed the occurrence. He informed his mother about the occurrence and thereafter he went to Kolathur police station and made a complaint at 11.00 a.m. on 09.01.2011. P.W.12 the then Inspector of Police, registered a case in Crime No.11 of 2011 under Sections 341 and 302 I.P.C.
2.5. Taking up the case for investigation, P.W.12 went to the place of occurrence, prepared an observation mahazar and a rough sketch in the presence of P.W.3 and another witness. He recovered the bloodstained earth and sample earth from the place of occurrence. After completing inquest on the body of the deceased, he forwarded the same for postmortem.
2.6. Dr. Saravanan conducted autopsy on the body of the deceased on 09.01.2011 at 04.45 p.m. He found the following injuries:
"External injuries: (1) Blood stains seen over entire face and both forearm. (2) A cut injury about 8x3x7 cm muscles and bone deep injury extending from 4cm below the right angle of the mandible to left angle of mobile exposing major blood vessels, major nerves, muscles cut entirely with reddish clotted blood. (3) A cut injury about 6x5x2 cm above the injury No.(1) below the chin Ones submental area exposing muscles cut reddish colour and clott
