R.HEMALATHA, J

1. This criminal appeal has been filed against the judgment and order dated 22.04.2019, in S.C.No.54 of 2015 passed by the Additional District and Sessions Judge(FTC), Kumbakonam, in and by which, the appellant was convicted for the offences punishable under Sections 294 (b) and 302 IPC and sentenced as under:

The sentences were ordered to run concurrently. Challenging the said conviction and sentence, the appellant has come up with this Criminal Appeal.

2.This appeal in Crl.A(MD)No.277 of 2019 was originally filed by the appellant through Mr.P.Pethur Rajesh, Advocate. When the matter was taken up for hearing on 15.07.2022, Mr.P.Pethur Rajesh, Advocate, submitted that his client has taken away the bundle and he has filed a memo on 15.07.2022 to that effect. Though the name was printed in the cause list, in order to give one more opportunity, the Registry was directed to list the case on 19.07.2022. Further this Court has held that in the meantime, if no arrangement is made to proceed with the appeal, on the next hearing, this Court will nominate a counsel and proceed with the case.

2.1. When the matter was taken up for final hearing on 19.07.2022, it is represented by the learned Additional Public Prosecutor that on this Court's directions, the office of the Public Prosecutor informed the appellant through the prison authorities that his counsel had withdrawn his appearance from the case. The name of the appellant is printed in the cause list. The appellant has not made any arrangements for prosecuting the appeal. Thus, it was apparent to us that the appellant is not interested in prosecuting the appeal, which cannot be countenanced. Under Section 386 Cr.P.C., the Appellate Court is required to hear the counsel for the appellant or the Public Prosecutor only if they appear, which means that if they do not appear, the Appellate Court can peruse the records and decide the appeal, however, we did not want to take this extreme step and therefore, we nominated Mr.M.Jagadeesh Pandian, Advocate (Enrollment No. 2956/08), who has more than 10 years of experience on the criminal side and has a good track record, to appear for the appellant in this case. The Registry also handed over the paper book to Mr.M.Jagadeesh Pandian. In order to give time to Mr.M.Jagadeesh Pandian, Advocate to read and prepare, we adjourned the case to 04.08.2022 and heard both sides extensively.

3. The prosecution theory runs thus:

i. The victim Selvam and the appellant Kannadasan were residents of Karikulam Main Road, Thuruvidaimarudhur Taluk, Thanjavur District. Ratnam (P.W-1), who is the father of the victim was living with his wife and his youngest son Iyyappan and his daughter Selvi(P.W-3) in a house on the same street, where Selvam (victim) and his brother Sampath (P.W2) were also residing. The victim Selvam was also a tanker lorry driver by profession and used to go to Chennai now and then. Rathnam(P.W-1) had three sons and two daughters out of which one daughter Selvi (P.W-3), who was a widow and the youngest son Iyyappan were residing with him. He also had an ongoing dispute with the appellant over fencing his property and according to the prosecution, the appellant was nursing a grudge against P.W-1 and his family members. On the fateful day, ie., 27.05.2014, at about 2.30 p.m., the victim Selvam had returned from Chennai and went to P.W-1's house to enquire the whereabouts of his wife and Children. The appellant hearing the voice of the victim had confronted him in front of P.W-1's house and abused him using foul language. Even before the victim could react, the appellant, who had a billhook(M.O1) in his hand, attacked the victim on his head and face causing grievous injuries to the victim. The appellant fled the scene taking the weapon (M.O1) with him. This incident was witnessed by Ratnam (P.W-1), Sampath (P.W-2), Ramu (not examined), a neighbour Karthik (P.W-14), Durga (P.W-6) and Ramasamy (not examined). The bleeding victim was moved to the Government Hospital, Kumbakonam in an auto by P.W-1, his another son Sampath (P.W-2), Ramu (not examined) and Durga (P.W-6). The doctor, Selvam, who examined him declared him as 'brought dead'.

ii. Thereafter, P.W-1 went to Thiruvidaimarudhur Police Station and gave a written complaint (Ex.P1) at about 6.00 p.m., on the same day. Based on his written complaint (Ex.P1), an FIR (Ex.P11) was registered by Thiru.Tamilmani (P.W-16), Sub Inspector of Police, in Crime No.93/14 under Sections 294(b) and 302 IPC and sent the same to Court. The Magistrate received the FIR on 29.05.2014 at about 8.00 p.m. P.W-16 placed the records before Singaravelu(P.W-17), the Inspector of Police.

iii. Thiru. Singaravelu (P.W.17) Inspector of Police took up investigation, went to the place of occurrence at 6.00 a.m., on 28.05.2014, i.e, the next day of occurrence, prepared an observation mahazar (Ex.P.2) in the presence of Prasath(P.W-7) and Thangaiya (not examined) and also a rough sketch (Ex.P.12). He recovered a bloodstained earth(M.O.2) and ordinary earth(M.O3) in the presence of Ramasamy (not examined) and Honestraj(P.W-8) from the place of occurrence. P.W-17 thereafter went to the mortuary of the Government Hospital, Kumbakonam where the dead body was kept and conducted Inquest (Ex.P13) and sent the body for postmortem through Shanmugasundaram(P.W-10), Grade-I Police Constable attached to Thiruvidaimarudhur Police Station.

iv. Dr.Durgalakshmi(P.W-15) conducted postmortem on the body of the victim and found the following injuries:

“External injuries: Incised wound of size 5l cm x 5b cm x 1 cm depth seen over right eyebrow exposing the right frontel bone. (2) Incised wound of sixe 3(l) cm x 1.5 (b) cm x 1 cm depth seen in the vertex, close to the midline over the porictal bone. Hemorrhagic region of skull surface. Bleeding from scalp found present. (3) Fracture of anterior nasal bones present just below the glabellcur region. i/c. Neck: Larynx; glothis;truchia; Hadible; hyoid bone and other long bones of body are intact. Ribs appear intact. heart weight 350 gms. Chambers are empty. c/s of liver; lungs; spleen;kidney appears pale. About 100 ml of yellowing brown partially digested food substance present in stomach. No specific odour present. Intestine empty. Fracture of external surface of skull not present/not made out. on opening of skull: inner table of skull intact. Mentraves intact. hemorrhagic cohersion present in the membranes and in falx cerebri; intra-cerebral Hemorrhagic contusion present in both cerebral hemispheres.

viscera anlaysis: ethyl alcohol in stomach; intestine; liver and kidney no other poison detected.”

In the opinion of the Doctor (P.W-15), “the deceased would appear to have died of Hemorrhagic shock and injury to vital organs especially brain”. Postmortem certificate was marked as Ex.P10.

v. P.W-17 arrested the appellant on 28.05.2014 at about 11.30 hours near Govindapuram bus stand and recorded his police confession in the presence of the witnesses Karthikeyan(P.W-11) and Kaliyamurthy(P.W-12). Based on the said confession (admissible portion of which was marked as Ex.P14), P.W-17 recovered a bloodstained billhook(M.O1) which was hidden by the appellant in a thatched roof of his house under the cover of a mahazar (Ex.P-15) in the presence of the same witnesses. The appellant was thereafter produced before the concerned jurisdictional Magistrate for judicial custody.

vi. Thereafter, Thiru.Singaravelu (P.W-17), Inspector of Police, examined the witnesses and recorded their statements and also collected various reports from experts. After completing investigation, he filed a final report against the appellant for the offences under Sections 294(b) and 302 IPC., before the Judicial Magistrate, Kumbakonam, in P.R.C.No.XXXIII of 2014, who in turn, committed the case to the Court of Sessions after furnishing copies of documents to the accused under Section 207 of the Code of Criminal Procedure. The learned Additional District and Sessions Judge(FTC), Kumbakonam, took up the case on file in S.C.No.54 of 2015. To the charges framed under Sections 294(b) and 302 IPC, the appellant pleaded not guilty. Hence, the case was posted for trial.

vii.In order to establish the guilt of the accused, the prosecution examined 18 witnesses and marked 16 documents and 5 material objects.

viii. When the appellant was questioned with regard to the circumstances appearing in evidence against him under Section 313 of the Code of Criminal Procedure, he denied of having committed any offence and further filed a separate statement in which he has stated that his father and PW1's father are step brothers and that he has been falsely implicated by P.W-1 in order to grab the joint family properties. According to him, even as per the newspaper report on 28.05.2017, the victim was murdered by unknown persons. A copy of the newspaper report was filed along with his statement. However, he did not examine any witnesses on his side.

ix. The learned Additional District and Sessions Judge(FTC), Kumbakonam, after analyzing the oral and documentary evidence adduced on both sides, found the appellant guilty of the offences under Sections 294 (b) and 302 IPC, and convicted and sentenced him as stated in paragraph No.1. Challenging the conviction and sentence passed by the trial Court, the appellant filed the present appeal.

4. Heard Mr.M.Jegadeesh Pandian, Legal Aid Counsel appearing for the appellant and Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor appearing for the respondent.

5. The prosecution has come out with the theory that there was a dispute between P.W-1, the father of the victim and the appellant regarding fencing. In this regard, P.W-1 to P.W-3 had testified about the dispute. Navodaya(P.W-5),who was also a neighbour of P.W-1's family had deposed about the existing enmity between P.W-1 and the appellant. P.W-1 and P.W-2 were eyewitnesses whereas P.W-3 was only a hearsay witness. While Durga (P.W-6) turned hostile to the prosecution, two other neighbours, Ramu and Ramasamy, who reportedly came to the scene of occurrence after hearing the cries of the victim were not examined. According to the prosecution Ramu had left India and Ramasamy is since deceased. The deposition of Navodaya (P.W-5) again was only to the extent of the existing enmity between P.W-1 and the appellant. Two witnesses, P.W-11 and P.W-12 in whose presence, the appellant had reportedly made police confession, turned hostile to the prosecution. Shanmugasundaram (P.W-10), Head Constable of Police, who took the body for postmortem had deposed that the victim was found wearing only a vest and brief. According to the prosecution, the corroborative evidence of P.W-1 and P.W-2 were sufficient to prove the guilt of the appellant and the evidence of P.W-5, to substantiate the existence of enmity between P.W-1 and the appellant thereby proving the motive of the appellant.

6. Mr.M.Jegadeesh Pandian, Legal Aid Counsel for the appellant has raised serious doubts on many aspects of the prosecution case. According to him, the inordinate delay in sending the FIR to Court itself is fatal to the case of the prosecution. According to him, the incident, which had occurred at 2.30 p.m., on 27.05.2014 was registered as an FIR only at 6.30 p.m. but was sent to Court only on 29.05.2014 at about 8.00 p.m. Secondly Sangaravelu (P.W-17), the Investigation Officer, who handled a major portion of the investigation reached the scene of occurrence only on 28.05.2014 at about 6.00 a.m., and takes shelter under a lame excuse that it was already late in the evening to go to the spot of occurrence. This again, according to the learned counsel for the appellant, gives raise to a suspicion as to whether the appellant had committed the offence. Another important aspect pointed out by him was that neither the doctor Selvam, who reportedly declared the victim (as per inquest report) as brought dead was examined, nor the Accident Register for the same was filed by the prosecution. It was also pointed out that the bloodstained soil(M.O2) and the soil without blood stain (M.O3) recovered from the scene of occurrence were not sent to the forensic lab for analysis.

7. On the other side, the prosecution had no reasons to substantiate the inordinate delay in sending FIR to Court. There has also been no plausible explanation for not sending the M.O2 & M.O3 to forensic lab. Going through the entire records presented by the prosecution along with the facts that could be made out from the depositions of the prosecution witnesses, it is clear that there was a dispute between P.W-1 and the appellant. However, it is incomprehensible as to how the animosity against P.W-1 turned against the victim. It is also evident from the cross examination of P.W-1 that P.W-1 and the appellant are step brothers having the same father born to two different mothers. It is also revealed that the wife of P.W-1, wife of the victim and the daughter of P.W-1 had all attended a family wedding at Pandarigapuram on the same day, ie., 27.05.2014. The marriage was that of the daughter of P.W-3's sister. P.W-1 has also confirmed that it was his granddaughter's wedding. There is a natural question which arises from the above is as to why the maternal grandfather (P.W-1) and the maternal uncle(P.W-2) did not attend such an important function and how they were present at home as if only women folk were only allowed to attend the function. Moreover, the explanation offered by P.W-17 regarding the delay in going over to the scene of crime makes a mockery of the entire system. He was supposed to be at the scene of crime immediately after the crime is registered and similarly, the inordinate delay in sending the FIR to the Court shows the investigation agency in bad light and also considerably weakens the case of the prosecution.

8. Dr.Durgalakshmi (P.W-15) who performed autopsy has opined that the “death may be due to Hemorrhagic shock and injury to vital organs especially brain”. It was also revealed in the viscera report (Ex.P9) given by Thiru.Sivadurai(P.W-13) Scientific Officer, Forensic Science Lab, that the victim was drunk and the stomach and other organs contained ethyl alcohol. Though the name of the doctor Selvam finds a place in Ex.P13(inquest report) as the doctor, who examined the victim in Government Hospital, Kumbakonam, he has not been examined as a prosecution witness. The Accident Register has also not been filed. This also raises a doubt as to whether P.W-1 had taken the victim to the hospital as claimed by him. The deposition of P.W-10 that the body of the victim was found only with a vest and brief also causes serious doubt about the scene of occurrence and about the veracity of the depositions of P.W-1 and P.W-2. P.W-1 was categorical that the victim had come to his house enquiring about the whereabouts of his wife and children (which itself is doubtful) and could not have been in the scanty clothing at the time of his alleged murder by the appellant. This aspect is perplexing and lends credence to the suggested possibility that he could have been assaulted in a brawl while drinking. In this context the learned counsel for the appellant, to support this contention, had relied on the newspaper item produced along with the statement of the appellant when he was questioned under Section 313 Cr.P.C., in which it was reported that the victim was murdered by some unidentified assailants. Though the evidentiary value of the said news item cannot carry much weight without proper proof in the form of examination of the editor of the newspaper or the publisher, it helps the appellant in such circumstances, where the prosecution was not able to prove his guilt beyond reasonable doubt. In our opinion, the prosecution has failed to establish the guilt of the appellant and therefore, we hold that the appellant is not guilty of the offences of which he was charged.

9. In the result,

i. This Criminal Appeal is allowed.

ii. The conviction and sentence passed by the learned Additional District and Sessions Judge (FTC), Kumbakonam, in S.C.No. 54 of 2015 dated 22.04.2019, is set aside.

iii. The appellant is directed to be released forthwith, if his custody is not required in any other case.

iv. Fine amount, if any, paid by him shall be refunded.

v. We place on record our appreciation to Mr.M.Jegadeesh Pandian, the counsel nominated by the High Court Legal Services Authority for effectively arguing the case of the appellant and we direct that he shall be paid a remuneration of Rs.10,000/- (Rupees Ten Thousand only).