B A I L S L I P The Appellant/accused viz., P. Varatharajan was released on bail as per order dated 25th April 2007 in Criminal M.P.No.1 of 2007 in Criminal Appeal No.356 of 2007 on the file of this High Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 06.01.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRIMINAL APPEAL NO.356 OF 2007 P.Varatharajan ..Appellant Vs. State rep. by Inspector of Police, Kanchi Taluk Police Station, Kanchipuram District. (Crime No.640/2006) ..Respondent This criminal appeal has been preferred under Section 374 Cr.P.C. against the judgment of the learned Additional Sessions Judge, Fast Track Court No.II, Kancheepuram made in S.C.No.651 of 2006, dated 22.3.2007. For Appellant : Mr.V.Gopinath, SC for Mr.L.Mahendran For Respondent: Mr.P.Kumaresan, APP JUDGMENT (The judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the Additional Sessions Division, Fast Track Court No.II, Kancheepuram made in S.C.No.651 of 2006, whereby the appellant herein shown as A-2 along with three others stood charged under Section 302 r/w S.34 IPC, tried and A-2 https://hcservices.ecourts.gov.in/hcservices/ alone was found guilty under Section 302 IPC and was sentenced to undergo life imprisonment and to pay a fine of Rs.1000/-, in default to undergo 6 months S.I., while A-1, A-3 and A-4 were found not guilty and acquitted of the charge levelled against them. 2.The short facts necessary for the disposal of this appeal can be stated as follows: a)The deceased Gopal is the son of P.W.8 through his second wife. P.W.1 is the son of P.W.8 through his first wife. There was previous enmity between the family of P.W.8 and the accused. On 12.5.2006, a Bull, belonging to the family of P.W.1, entered into the garden of the accused and was grazing. The accused abused P.W.1 and there was a quarrel. The villagers intervened and pacified the situation. On the same day, i.e. on 12.5.2006, P.W.1 along with the deceased went to the field for watering and after watering was over, they were sleeping near the pumpset room on that night. At about 1.00 a.m. on 13.5.2006, P.W.1 heard the barking sound of the dog and immediately, he woke up. He witnessed all the four accused armed with deadly weapons and immediately, he ran away from the place and rushed to P.W.7, the neighbour and informed him. P.W.7, in turn, informed him to go to the village and inform to the villagers. Accordingly, P.W.1 went to the villagers and informed to P.W.2 and all others. P.W.2 rushed to the place and she found that A-2 attacking her son with the knife. On seeing her, all the accused fled away from the place of occurrence. b)Immediately, P.W.2 and others took the severely injured to the Government Hospital, Kancheepuram at about 2.00 a.m. He was admitted by P.W.15, the Doctor, who examined him and has issued Ex.P.10, the accident register. Thereafter, the severely injured was taken to the Government General Hospital, Madras. P.W.1 proceeded to the respondent police station and gave Ex.P.1, the complaint to P.W.18, the Sub Inspector of Police. On the strength of Ex.P.1, P.W.18 registered a case in Crime No.640 of 2006 under Sections 324 and 307 IPC. Ex.P.13, the F.I.R. was despatched to the Court. c)P.W.19, the Inspector of Police, on receipt of the copy of the F.I.R., took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared the observation mahazar and Ex.P.14, the rough sketch. He examined the witnesses and recorded their statements. On 15.5.2006, the severely injured, who took treatment at the Government General Hospital, Chennai, died and on intimation, the case was altered to Section 302 IPC and Ex.P.15, the alteration report was sent to the Court. P.W.19 proceeded to the Government General Hospital and conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.16, the inquest report. Then, the dead body was sent for the purpose of autopsy. d)P.W.13, the Doctor attached to the Madras Medical College, on receipt of the requisition, has conducted post-mortem on the dead body of the deceased and has issued Ex.P.9, the post-mortem https://hcservices.ecourts.gov.in/hcservices/ certificate, wherein he has opined that the deceased would appear to have died of head injury. e)Pending investigation, P.W.19 arrested all the accused on 16.5.2006 and A-2 came forward to give confessional statement voluntarily, which was recorded in the presence of the witnesses, the admissible part of which was marked as Ex.P.17. Pursuant to the same, A-2 produced M.O.1, knife, which was recovered under a cover of mahazar. The accused were sent for judicial remand. All the material objects recovered were subjected to chemical analysis by the Forensic Science Department and the reports were received. On completion of the investigation, the Investigating Officer has filed the final report. 3.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 19 witnesses and also relied on 18 exhibits and 2 M.Os. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which they flatly denied as false. No defence witness was examined. The trial court, after hearing the arguments advanced on either side, took the view that the prosecution has proved the case beyond reasonable doubt insofar as A-2 and found him guilty under Section 302 IPC and awarded life imprisonment along with fine and default sentence, while it has recorded an order of acquittal of A-1, A-3 and A-4. Hence this appeal at the instance of the appellant. 4.Advancing arguments on behalf of the appellant, the learned Senior Counsel, inter-alia, would submit that the occurrence, according to the prosecution, has taken place at about 1.30 a.m. on 13.5.2006; that P.W.1 has claimed that he was sleeping along with the deceased and at about 1.00 a.m. on 13.5.2006, he heard the barking sound of the dog and he woke up, but he never stated that the deceased, who was lying by the side, woke up; that according to P.W.1, he saw all the four accused armed with deadly weapons and immediately, he ran away from that place and he informed to P.W.7, the neighbour, who in turn, asked him to go to the village and inform to the villagers and accordingly, P.W.1 went to the village and informed to P.Ws.2 to 6 and he went to the place of occurrence later; that according to P.W.2, on receipt of the information from P.W.1, she rushed to the place of occurrence and found all the four accused and it was A-2 who attacked her son, namely the deceased, with the knife; that on seeing her, all the accused persons fled away from the place of occurrence; that though the prosecution has examined P.W.2 as the only eyewitness, from the available materials, it was noticed that P.W.2 could not have been the eyewitness at all; that the name of P.W.2 was not at all mentioned in the F.I.R.; that as per the statement recorded by the Investigator from P.W.1 at the earliest, P.W.1 rushed to P.W.7 and informed him and thereafter, he went to the village and informed to P.Ws.3 to 6; that he never whispered that he informed to P.W.2 at all; that when the matter came before the court, this development was made; that the https://hcservices.ecourts.gov.in/hcservices/ Investigator was unable to say as to when the statement of P.W.2, the so-called eyewitness was recorded; that the statement of the said witness under Section 161 Cr.P.C. has reached the court only on 18.8.2006, i.e. after a few months and thus, introduction of P.W.2 as eyewitness was only an afterthought in order to supply the evidence to suit the prosecution case and thus, it would be quite clear that P.W.2 could not have seen the occurrence at all. 5.Added further the learned Senior Counsel that even according to the prosecution, the severely injured Gopal was taken to the Government Hospital, Kancheepuram and was admitted by P.W.15, the Doctor and it was P.W.1 who accompanied the severely injured to the hospital and admitted him. Ex.P.10, the accident register, has come into existence at 2.00 a.m., i.e. within an hour from the time of occurrence, wherein it has been clearly stated by P.W.1 that four unknown persons have attacked the deceased and hence P.W.1 could not have been in the place of occurrence at all; that all put together would clearly indicate that the prosecution has miserably failed to prove its case, but the trial court has taken an erroneous view; that the other part of the evidence as to the arrest, confessional statement and the recovery were all creation in order to suit the prosecution case, but in vain; that the same reasons, which are applicable for an order of acquittal of A-1, A-3 and A-4, are equally applicable to A-2/the appellant herein and hence the judgment of the trial court has got to be set aside and the appellant herein is entitled for acquittal in the hands of this court. 6.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 7.It is not in controversy that Gopal, the son of P.W.2, following an incident that took place at about 1.30 a.m. on 13.5.2006, was taken to the Government Hospital, Kancheepuram and thereafter, he was taken to the Government General Hospital, Madras, where he died. Following the inquest made by the Investigating Officer, the dead body was subjected to post-mortem by P.W.13, the Doctor, who has deposed before the court as a witness and also opined in the post-mortem certificate that the deceased would appear to have died of head injury. The fact that the deceased died out of the injury sustained by him was never questioned by the appellant and hence it could be recorded so. 8.In order to substantiate that it was the second accused/the appellant herein stabbed the deceased at the time of occurrence, the prosecution rested its entire case on the evidence of P.W.2, as eyewitness and also on the evidence of P.W.1 to an extent that he saw all the accused persons at the time and place of occurrence immediately before the occurrence. When the evidence of these two witnesses are scrutinized, the court is afraid whether these evidences could be accepted by the court. The occurrence has taken place at 1.30 a.m. on 13.5.2006. P.W.1 would claim that he was sleeping along with the deceased and he heard the barking sound of https://hcservices.ecourts.gov.in/hcservices/ the dog and woke up and found all the four accused persons armed with deadly weapons. From the evidence of P.W.1, it would be quite clear that all belonged to the same village and there was a quarrel and their families were on inimical terms and the accused were thoroughly known to him previously. The earliest document, which has come into existence in the instant case, is Ex.P.10, the accident register issued at the Government Hospital, Kancheepuram. The deceased was admitted by P.W.15, the Doctor at 2.00 a.m. at the Government Hospital, Kancheepuram and it was P.W.1 who took him the severely injured to the hospital and admitted him for treatment. A perusal of Ex.P.10, the accident register copy would clearly indicate that P.W.1 has stated to P.W.15 that four unknown persons attacked the deceased and thus, it would be quite clear from the above document that the evidence of P.W.1 that he was sleeping along with the deceased at the time and place of occurrence, becomes highly doubtful. Equally, the evidence of P.W.2 is also thoroughly unreliable for the following reasons. 9.According to P.W.1, immediately on seeing all the four persons armed with deadly weapons, he rushed to his neighbour P.W.7 and it was P.W.7 who advised him to go to the village and informed to the villagers. Accordingly, he went to the village and informed to P.Ws.2 to 6. But, at the earliest, in the F.I.R., nowhere he has stated that he informed P.W.2, the mother of the deceased. Apart from that, the statement of P.W.2, the so-called eyewitness, though claimed to have been recorded thereafter, reached the court only on 18.08.2006 and thus, how the delay has happened was not explained. Further, at the time of inquest conducted by the Investigating Officer, though she was present, she was not examined. Had it been true that she was the only eyewitness, there could not be any impediment felt by the Investigating Officer to record her statement, but at the time of inquest, she was not examined nor her statement was recorded. But the statement which was said to have been recorded from her by the Investigator has reached the court after a few months. All would go to show that P.W.2 could not have been the eyewitness at all. If the evidence of P.Ws.1 and 2 becomes unreliable, the prosecution has miserably failed to prove the factual position. So far as the recovery of weapon of crime followed by the arrest and the medical opinion canvassed were concerned, in the absence of any evidence, they cannot bring home the guilt of the accused. 10.Under these circumstances, it would be highly unsafe to sustain the conviction. The trial court has believed the evidence of P.Ws.1 and 2 and acquitted A-1, A-3 and A-4. As rightly pointed out by the learned Senior Counsel, the reasons for the acquittal of A-1, A-3 and A-4 are equally applicable to A-2 also. Under these circumstances, the judgment of conviction and sentence imposed on A- 2 has got to be made undone only by upsetting the same. 11.Accordingly, the judgment of conviction and sentence imposed on the appellant herein/A-2 by the trial court is set aside and the appellant is acquitted of the charges levelled against him. The bail bond, if any, executed by the appellant shall stand terminated and https://hcservices.ecourts.gov.in/hcservices/ the fine amount, if any, paid shall be refunded to him. Accordingly, this criminal appeal is allowed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1. The Additional Sessions Judge, Fast Track Court No.II, Kancheepuram. 2. The Judicial Magistrate No.II, Kanchipuram. 3. -do-Through The Chief Judicial Magistrate, Chengalpattu. 4. The Inspector of Police, Kanchi Taluk Police Station, Kanchipuram District. 5. The Superintendent, Central Prison, Puzhal, Chennai. 6. The Director General of Police, Chennai-4. 7. The District Collector, Kanchipuram. 8. The Additional Public Prosecutor, High Court, Madras. + 1 c.c. to Mr. L. Mahendran, Advocate. S.R.No.562. CRL.A.NO.356 OF 2007 KA (CO) GSK 12.01.2009. https://hcservices.ecourts.gov.in/hcservices/