Criminal Appeal No.455 of 2010

1st February, 2018.

Petitioner Counsel: Mr. V. PADMANABHAN, Sr. Adv., Mr. SENTHIL JAGADEESAN, Mr. VISWANATHAN, Ms. SHRUTI IYER, Ms. SONAKSHI MALHAN, Ms. SURITI CHOWDHARY
Respondent Counsel: Mr. M. YOGESH KANNA, Ms. SUJATHA BAGADHI

Cases Cited:
Masalti & Ors. Vs. The State of Uttar Pradesh, 2008 ALL SCR (O.C.C.) 52=AIR 1965 SC 202 [Para 7]
Busi Koteswara Rao and others Vs. State of Andhra Pradesh, 2013 ALL MR (Cri) 355 (S.C.)=(2012) 12 SCC 711 [Para 7]

JUDGMENT

JUDGMENT :- Fifteen (15) accused were sent for trial for commission of various offences including the offence punishable under Section 302 of the Indian Penal Code, 1860 ("IPC" for short) for the murder of one Umanath (deceased) which had occurred at about 10.45 p.m. on 10th March, 2007. The learned trial Court acquitted six (06) of the accused while convicting the remaining nine (09) accused. In appeal, the High Court set aside the conviction of five (05) of the accused while maintaining the same in respect of four (04) accused, namely, Accused No.1 - Ramanathan s/o Velu, Accused No.2 - Purushothaman s/o Mani Nathan, Accused No.3 - Selvaraj s/o Veerappan and Accused No.4 - Kalaimohan s/o Desingu. Aggrieved, Accused No.3 - Selvaraj s/o Veerappan and Accused No.4 - Kalaimohan s/o Desingu have filed the present appeal by special leave.

2. We have heard the learned counsels for the parties.

3. The prosecution examined a large number of witnesses as eye-witnesses to the occurrence, namely, Pandian (PW-1), Deivanayagam (PW-2), Karunakaran (PW-3), Suresh (PW-4), Punitha (PW-5), Kadal Dhanasekar (PW-6), Sundari (PW-7), Bhuvaneshwari (PW-8), Anandhi (PW-9), Jayalakshmi (PW-10), Tamilvanan (PW-11) and Saravanan (PW-12). All the prosecution witnesses except Kadal Dhanasekar (PW-6) and Tamilvanan (PW-11) were declared hostile.

4. The core of the evidence of Kadal Dhanasekar (PW-6) is to the effect that on the day of the occurrence he saw a mob of people attacking the deceased and he had identified the accused persons to be a part of that mob. Kadal Dhanasekar (PW-6), however, had stated that he did not see as to who had assaulted the deceased on which part of the body and with what weapon. Tamilvanan (PW-11), on the other hand, has specifically named Accused No.1 - Ramanathan s/o Velu, Accused No.2 - Purushothaman s/o Mani Nathan, Accused No.3 - Selvaraj s/o Veerappan and Accused No.4 - Kalaimohan s/o Desingu and has testified that it is the aforesaid persons who had assaulted the deceased. The said witness had also stated that he cannot recollect as to which accused had assaulted the deceased on which part of the body and with what weapon. The evidence of Ramachandran, V.A.O. (PW-14) shows recovery of a knife at the instance of several accused including Accused No.4 - Kalaimohan s/o Desingu. The medical opinion of Dr. Anandakumar (PW-13) indicates injuries on the forehead leading to hemorrhage and also several other injuries including stab injuries.

5. It is in the totality of the above circumstances that we are required to decide on the culpability of the accused appellants (i.e. Accused No.3 - Selvaraj s/o Veerappan and Accused No.4 - Kalaimohan s/o Desingu).

6. There is undoubtedly a glaring inconsistency in the evidence of Kadal Dhanasekar (PW-6) and Tamilvanan (PW-11) inasmuch as Kadal Dhanasekar (PW-6) did not name any of the accused specifically whereas Tamilvanan (PW-11) named four accused persons including the accused appellants as being the perpetrators of the crime. If Kadal Dhanasekar (PW-6) did not name any specific accused which, in fact, is the basis of the acquittal of the other accused persons we do not see how the said lacunae in the evidence of Kadal Dhanasekar (PW-6) should not go to the benefit of the accused appellants.

7. However, we are still left with the evidence of Tamilvanan (PW-11) who has specifically named the accused appellants. While the ratio of the law laid down by this Court in Masalti & Ors. vs. The State of Uttar Prades, AIR 1965 SC 202 : [2008 ALL SCR (O.C.C.) 52] and Busi Koteswara Rao and others vs. State of Andhra Pradesh, (2012) 12 SCC 711 : [2013 ALL MR (Cri) 355 (S.C.)] may not strictly apply to the present case inasmuch as the present is a case where a large number of accused had attacked a single person what we are left with in the present case is the sole testimony of Tamilvanan (PW-11). The question that arises is how safe will it be to convict the accused appellants on the basis of the sole testimony of the said witness.

8. In this regard, we have taken note of the evidence of Ramachandran, V.A.O. (PW-14) who had proved the statement of Accused No.4 - Kalaimohan s/o Desingu leading to the recovery of a knife. Injuries caused by a knife is a possible cause of death as mentioned in the evidence of Dr. M. Anandakumar (PW-13). However, the recovery of the knife is only at the instance of the Accused No.4 - Kalaimohan s/o Desingu and there has been no recovery of any offending weapon at the instance of the Accused No. 3 - Selvaraj s/o Veerappan. Both the accused, therefore, cannot be treated at par and would, in fact, stand on a different footing. As the conviction of the Accused No.3 - Selvaraj s/o Veerappan is based on the sole testimony of Tamilvanan (PW-11) which is inconsistent with the evidence of other eye-witness i.e. Kadal Dhanasekar (PW-6) and as there is no statement made by the said Accused No.3 - Selvaraj s/o Veerappan leading to recovery of any weapon, we are of the view that Accused No.3 - Selvaraj s/o Veerappan deserves an order of acquittal. We order accordingly.

9. The same, however, would not be the position with regard to the Accused No.4 Kalaimohan s/o Desingu inasmuch as there is a specific evidence of recovery of a knife which is capable of causing stab injuries mentioned in the post-mortem report as one of the causes of death of the deceased Umanath. We will, therefore, have no occasion to interfere with the conviction of Accused No.4 - Kalaimohan s/o Desingu and the sentence awarded.

10. Consequently and in the light of the above while setting aside the order of the High Court insofar as Accused No.3 - Selvaraj s/o Veerappan is concerned we hold the said accused to be not guilty of the offence(s) of which he has been charged. We, accordingly, acquit the Accused No.3 - Selvaraj s/o Veerappan while confirming the conviction of the Accused No.4 - Kalaimohan s/o Desingu.

11. The Accused No.3 - Selvaraj s/o Veerappan be released from custody forthwith unless his custody is required in connection with any other case.

12. The appeal is partly allowed as indicated above.

Appeal partly allowed.