(Prayer: Appeals filed against the judgment passed by the learned Additional Sessions Judge, (Fast Track Court No.III) Thoothukudi dated 25.5.2004 in S.C.No.244/2000.)

1. The appellant was convicted for the offence under Sec.302 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.500/-, in default, to undergo R.I for 3 months and also convicted for the offence under Sec.449 IPC and sentenced to undergo RI for two years by the learned Additional Sessions Judge, (Fast Track Court No.III) Thoothukudi dated 25.5.2004 in S.C.No.244/2000.

2. The case of the prosecution, in brief, is as follows:

(a) The deceased Vel Murugan @ Murugan was practicing Homeopathy and was residing at Manakkari village at Srivaikundam. The appellant also belong to the same place. Some time in 1995, the appellant waylaid the deceased and robbed jewels and cash. The deceased gave a complaint and a case was registered. In 1997, the appellant attempted to murder the deceased by using a country made bomb and an aruval. Again a complaint was given and it was pending.

(b) Meanwhile, the appellant was detained under Act 14. During the time, the robbery case came for trial and the deceased gave evidence against the appellant. The appellant came out of the detention and gave out that he will finish off the deceased as he had deposed against him and he was the root cause for the detention.

(c) On 7.2.1999 at 11.15 p.m., the deceased and P.W.1, his wife were watching television at their house. One Kolappan was also in the house. P.W.1 heard a noise at the outside and on enquiry, she found two persons standing outside and requesting the doctor to treat them as they were not well. The deceased opened the door and the appellant and another person forcibly entered into the house. The appellant took out the knife and stabbed the deceased on his left chest. The other accused also assaulted the deceased. P.W.1 raised alarm and the accused ran off from the place.

(d) P.W.4 was a neighbour who heard the noise and rushed to the house of P.W.1. He saw the appellant and another person running out of the house. He found the deceased with stab injuries. P.W.s1 and 4 engaged P.W.6 a Taxi driver to take the injured to the hospital.

(e) P.W.15 was the duty doctor at the Government Hospital, Tirunelveli. On 8.2.1999 around 1.20 a.m., he examined the injured and declared him dead. He sent an intimation to the police. P.W.1 proceeded to Morappadu Police station and gave a complaint which was received by P.W.11, the Head Constable who registered a case in Cr.No.39 of 1999 for the offence under Sec.302 IPC and forwarded the FIR to the Inspector of Police.

3. P.W.16 Inspector of Police investigated and on completion of the investigation, he filed a charge sheet.

4. The case was taken on file by the learned Judicial Magistrate, Srivaikundam and later committed to the learned Additional Sessions Judge, (Fast Track Court No.III) Thoothukudi. The learned Sessions Judge took the case on file in S.C.No.244 of 2000. To substantiate its case, the prosecution examined 17 witnesses, marked 25 documents, produced 13 material objects.

5. With reference to the incriminating materials adduced by the prosecution, the trial judge questioned the accused under Sec.313 Cr.P.C for which he pleaded innocence.

6. The learned Sessions Judge, after examining the evidence in the lights of the argument advanced, ultimately, found A.1 guilty for the offence stated above and A.2 not guilty. A.1 has preferred the present appeal.

7. The point that arises for consideration is whether the order of conviction and sentence passed by the learned Additional Sessions Judge, (Fast Track Court No.III) Thoothukudi dated 25.5.2004 in S.C.No.244/2000 is sustainable or not.

8. Mr.G.R. Edmund the learned counsel for the appellant would submit that the trial court is wrong in convicting the appellant on the uncorroborated evidence of the wife of the deceased. The learned counsel further pointed out that the place of occurrence has been suppressed by the prosecution and it has not taken place inside the house and therefore, the presence of P.W.s.1 and 4 are doubtful.

9. The learned counsel also pointed out that the earliest information to the police has been suppressed which is fatal to the prosecution. The learned counsel pointed out that the motive is too remote and there are discrepancies in the evidences.

10. On the contrary, Mr.Issac Manuel, the learned Additional Public Prosecutor would submit that the case of the prosecution has been proved beyond reasonable doubt by the evidence of P.W.1, corroborated by P.W.4. The learned Additional Public Prosecutor pointed out that the occurrence had taken place inside the house and the only natural witnesses is the wife and therefore, the evidence of the wife cannot be neglected.

11. According to the learned Additional Public Prosecutor,, the motive and the occurrence had been proved beyond reasonable doubt and the conviction and sentence are sustainable .

12. Heard both sides and perused the materials available on record.

13. The case of the prosecution is that due to previous enmity the appellant had taken revenge against the deceased and on the fateful night, trespassed into the house of the deceased and stabbed him.

14. P.W.1 is the wife of the deceased who would speak about the motive and the occurrence. P.Ws.2 and 3 have not supported the case of the prosecution.

15. Yet another witness one Ravi Kolappan, who was an eyewitness and also identified the accused in the test identification parade, was not examined by the prosecution. P.W.4 is a witness who came to the scene of occurrence on hearing the noise raised by P.W.1. However, he would state that he saw the appellant running out of the house. He is the witness who accompanied the injured to the hospital.

16. The occurrence is said to have taken place at 11.45 p.m on 7.2.1999. They have reached the hospital at 1.20 a.m. It is admitted that an intimation was sent to the outpost and from the outpost it was intimated to the Morappanadu Police at 4.30 a.m.

17. However, P.W.1 has gone to the Morappanadu Police and gave a statement, which was recorded at 6.00 a.m which is Ex.P.1. A case was registered in Cr.No.39 of 1999 and the FIR has reached the Magistrate at 11.30 a.m.

18. The Inspector of Police who was examined as P.W.16 has proceeded to the hospital to conduct inquest and subjected the body for post mortem. Thereafter, he proceeded to the scene of occurrence and has prepared the observation mahazar and sketch. In the observation mahazar, he has stated that the blood stains on the floor was wiped out by a cloth and therefore, he had not recovered the blood stained earth.

19. The post mortem would reveal one vertically oblique stab wound on the lower part of the chest cutting the muscles, left lung, diaphragm, spleen.

20. Though there are three other injuries on the middle of the forehead and parietal region and on the right cheek, the death has caused only by the injury No.1.

21. The appellant was arrested and on confession M.O.1 was recovered. As rightly pointed out by the learned counsel for the appellant, the evidence of the prosecution rests on the single evidence of the wife of the deceased. Though P.W.4 could state that he came to the house on hearing the alarm he has not witnessed the occurrence.

22. The case of the appellant is that there was a communal riot in the village and on the fateful night, the deceased was done to death by a mob which mistook him as a person belonging to the other community. The learned counsel for the appellant would vehemently argue that the occurrence had not taken place inside the house and the prosecution had failed to prove the place of occurrence.

23. According to the learned counsel, the wife and P.W.4 had accompanied the deceased to the hospital in a car driven by P.W.6 and the deceased was profusely bleeding and the prosecution has not recovered the blood stained clothes of the witnesses. The learned counsel also pointed out that neither P.W.1 nor P.W.4 would speak about P.W.6 who was alleged to have taken the deceased in his car to the hospital.

24. According to the prosecution, the occurrence had taken place inside the house of P.W.1. The Investigating officer would state that the blood stains were wiped out from the floor and he did not collect the blood stained earth. He has also not taken the photograph of the scene of occurrence and has also not recovered the cloth which was used to wipe out the blood. The purpose of preparing an observation mahazar itself is to establish the fact that such an occurrence had taken place in such a place and to show the evidence of such occurrence taking place.

25. The preparation of mahazar has a significant role to establish the primary fact that the occurrence had taken place and the scene of occurrence is described in minute detail for later reference.

26. It is also pertinent to note that P.W.1 would admit that the deceased was profusely bleeding and the entire house was blood stained. She would further admit that the deceased was bleeding when taken into the car and she was very close to her husband. Obviously, her dresses should have been blood stained and they were not recovered.

27. PW.2 would admit that there was a communal riot in the village and there were revengeful murders on both sides. The motive is said to be that the deceased had given two complaints against the appellant- one in the year 1995 and another in the year 1997. The occurrence is said to have taken place in the year 1999.

28. The motive is too remote and it is unbelievable that the appellant trespassed into the house of the deceased along with another person and assaulted the deceased in the presence of the wife of the deceased without a strong motive.

29. We see a force in the arguments of the counsel for the appellant that the prosecution has not established the place of the occurrence and the presence of P.Ws.1 and 4.

30. If their presence is doubtful, we are of the considered view that the benefit of doubt has to be given to the appellant and accordingly, the benefit of doubt is granted to the appellant.

31. In the result, the appeal stands allowed and the conviction and sentence passed by the learned Additional Sessions Judge, (Fast Track Court No.III) Thoothukudi dated 25.5.2004 in S.C.No.244/2000 are set aside and the appellant is acquitted. The bail bond executed by the appellant shall stand cancelled and fine amount paid by him is ordered to be refunded to him.