This appeal by a solitary appellant arises out of the following
facts:
On 11/8/1998 the deceased Ponnusa my boarded a van bearing
No.TN-72-Z-9171 belonging to P W.7 in order to bring some fish from
Tuticorin to his village Puliyankkudi-P W.1 was the driver of the vehicle and
P W.2 was its cleaner. As the van was on its way to Tuticorin the appellant
Anil Ku mar also boarded the van. Itappears that at about 11.00 p.m. P W.1 was driving the vehicle whereas P W.2 was sleeping when some quarrel
took place between the appellant and the deceased and consequent to the
quarrel the appellant pushed the deceased out of the van and then ran
away. As the deceased had not returned ho me till16/8/1998 his wife P W.4
went in search of him but to no avail.Thereafter, Subramanian, a brother
in law of the deceased, went to the police station and lodged a report and
on its basis an FIR was registered. As the nu mber of vehicle had been
disclosed in the report, the police examined
the owner the driver, and the cleaner after the dead body had been found
on 16/8/1998. Both the Pws in their statements under Sec.161 Cr.P.C. narrated the story as given above. The dead body was also subjected to a
post-mortem examination by the Doctor, P W.3 who found nine injuries
thereon and opined that the death was due to multiple injuries to vital
organs. He further opined that the death could have happened between
32-48 hours prior to the post-mortem examination. On the completion of
the trial, the accused was charged under Sec.302 of the IPC and as he
pleaded not guilty,he was brought to trial.
The learned Sessions Judge relying primarily on the evidence of
P W.2 (PW.1 having turned hostile),and P W.3 the Doctor and the recovery
of the murder weapon, a knife, at the instance of the appellant, and the
fact that the deceased and the appellant had been last seen together in
the van, convicted the appellant for an offence under Sec.302 of the IPC
and sentenced him to undergo imprisonment for life and a fine of
Rs.2,000/-; in default,to undergo RI for a period of 2 years. This judgment
has been affirmed by the High Court in appeal. The matter is before us by
way of special leave.
Mr. Gireesh Ku mar, the learned counsel for the appellant has
raised several arguments during the hearing of the appeal. He has pointed
out that as P W.1, the driver had
turned hostile, the reliance of the Courts, though insignificant, on his
statement, to corroborate the evidence of P W.2, was not justified. He has
also sub mitted that the evidence of P W.2 itselfwas ambivalent not only as
to the actual incident but also on the question of the identity of the
appellant and as such, could not be believed. He has further argued that
as per the case of the prosecution, the murder had taken taken place on
11/8/1998 and the post mortem had been done in the afternoon on
17/8/1998 and as per the doctor's report, the death had occurred between
3-4 days prior to the post mortem, falsified the prosecution story as it brought the date of murder to 13 or 14 August, 1998.
Mr. S.Thanjayan, learned counsel for the State has, however,
supported the judgment of the trial Court and sub mitted that there was no
reason whatsoever to disbelieve P W.2, who was a truly independent
witness and bore no animosity with the appellant and none had even been
suggested by the defence. He has further sub mitted that the minor
discrepancy in his statement with regard to the date of the murder being
either 10 th August 1998 or 11th August 1998, could be attributed to a failure
in me m ory as his statement had been recorded more than four years after
the incident.
We have heard learned counsel for the parties and gone through the record. It is true that P W.2, does prima facie, appear to be an
independent witness and there is not even the slightest suggestion from
the defence that he was in any way inimical to the appellant. To our mind,
however, this is not only the test in order to determine the veracity of a
prosecution witness and an over view of the entire evidence has to be
made. P W.2 belongs to village Puthukottai near Puliyangudi whereas the
appellant belonged to village Sankarankoli and the villages are 16
kilometers apart though on the National Highway. This witness was
examined on 12 th June, 2002, and in his examination in chief deposed that
he knew the the deceased Ponnusa my and also the appellant. In cross
examination, however, he toned down his categoric statement by stating
that he did not know the name of the appellant and that he had come to
know his name only on the previous date of hearing of the case. He
further stated that he did not know the name of his father and had not told
his name or that of his father to the police or anybody else. He also
candidly admitted and that he had not even seen the appellant properly before the last date of hearing and itwas on that day and after he had been
pointed out to him by the police that he had seen him properly.
Undoubtedly an identification of an accused by a witness in Court for the
firsttime is on the face of it
weak evidence, but even if this evidence is tainted as the police had
identified the appellant to the witness in Court, the very basis of the
identification even in the Court beco mes meaningless. It is also
significant that as per the prosecution story the deceased had been done
to death on the night of 11/8/1998 and his body had been thrown alongside
the National Highway. It has come in the evidence of P W.7 the owner of
the vehicle that he had informed the police on 12/8/1998 about the incident and that the police had that very evening gone to that place on a routine
check and had found no body. We find that this story itself does not
inspire confidence for the simple reason that had the dead body had been
thrown on the National Highway from a running vehicle it would have
fallen at a very short distance therefrom and had the police actually made
an attempt to inspect the place, there is no reason as to why the dead
body could not have been found on the 12/8/1998, even assu ming that the
same was lying, as suggested, in a pit. We find that in the face of P W.2's
ambivalent, and certain evidence, and as no support can be taken from
the statement of P W.1 the driver of the vehicle who had turned hostile and
did not support the prosecution and denied the incident all together, the
other ocular evidence too does not really advance the prosecution's case.
So me support could perhaps be found for the prosecution from
the medical evidence. Pw.3 the Doctor deposed that at the time of the post
mortem examination on 17/8/1998 that dead body was deco m posed and
crawling with maggots, the brain had deco mposed and was in an oozing
state and that death had occurred between 32-48 hours and as maggots
were present death could have occurred even three days before the post
mortem. We find that in this situation the incident could not have been
happened on 11/8/1998 and would have happened either on 13th or 14tth
August, 1998, making the presence of P W.2 unlikely. We also find that the
doctor's statement finds full support from Modi's Medical jurisprudence
and Toxicology Twenty-third Edition pages 438-442. On page 438 a table
reveals that the maggots come onto the body between 39 to 43 hours on
an average (although a longer and shorter period is also possible given
certain variable factors).W hile dealing with the condition of the brain Modi
says at page 440:
“(h)Adult Brain: The putrefaction of the adult brain
initially begins at its base, and then proceeds to the upper
surface. It is hastened if any injury to the brain or skull is
present. The brain beco mes soft ad pulpy within 24 to 48 hours
in sum m er, and beco mes a liquid mass from three to four
days.”
The inferences that emerge from the above discussion is that the
medical evidence far from supporting the prosecution story destroys its
very substratum.
We, therefore, find that the conviction of the appellant cannot be
sustained.
The appeal is, accordingly, allowed, the judgment of the courts
below are set aside and the appellant is acquitted of the offence for which
he has been charged.
(J.M. PAN C H A L) New Delhi, August 4, 2009.