BAIL SLIP The Appellants/Accused 1 to 4 namely 1.Radhakrishnan, 2.Nagamuthu, 3.Mathiyan @ Mathiyalagan and 4.Thangavel, were directed o be released on bail as per the orders of this court dt. 1.8.2006 and made in Crl.M.P.No.3969 of 2006 in Crl.Appeal No.117/2006 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 23.07.2008 CORAM THE HONOURABLE MR. JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR. JUSTICE K.N.BASHA CRL.A.No.117 of 2006 1.Radhakrishnan 2.Nagamuthu 3.Mathiyan @ Mathiyalagan 4.Thangavel .. Appellants/A-1 to A-4 Vs State rep. by the Inspector of Police Vikramangalam Police Station, Perambalur District. [Crime No.159/2002] .. Respondent/Complainant Appeal filed under section 374[2] Cr.P.C., against the conviction and sentence made in SC.No.85/2005 on the file of the learned Sessions Judge, Perambalur by judgment dated 09.12.2005. For Appellants : Mr.A.Padmanaban For Respondent : Mr.N.R.Elango Addl. Public Prosecutor JUDGMENT [Judgment of the Court was delivered by K.N.BASHA, J.] The appellants have been arrayed as A-1 to A-4 and they have been https://hcservices.ecourts.gov.in/hcservices/ tried, convicted and sentenced by the learned Sessions Judge, Perambalur by the Judgment dated 09.12.2005 in SC.No.85/2005. 2. The appellants/A-1 to A-4 have been convicted and sentenced by the learned Trial Judge as follows:- Accused Conviction under section Sentence awarded A-1 to A-4 341 IPC Each of the accused were imposed a fine of Rs.500/- in default to undergo one week simple imprisonment. A-1 302 and 355 IPC 1]to undergo life imprisonment and to pay a fine of Rs.2,000/- in default to undergo 2 months rigorous imprisonment for the offence under section 302 IPC. 2]to undergo 6 months rigorous imprisonment for the offence under section 355 IPC. A-2 to A-4 302 r/w 34 and 355 r/w 34 IPC 1]to undergo life imprisonment and to pay a fine of Rs.2,000/- in default to undergo 2 months rigorous imprisonment for the offence under section 302 r/w 34 IPC. 2]to undergo 6 months rigorous imprisonment for the offence under section 355 r/w 34 IPC. The sentences are ordered to run concurrently. 3. The challenge in this appeal is to the above said judgment of the learned Sessions Judge, Perambalur District. 4. The prosecution case in a nutshell is as follows:- [a] P.W.1 is the father; P.W.2 is the mother and P.W.3 is the brother of the deceased Ravi. P.W.5 is the wife of A-2. Both the deceased party as well as the accused were the residents of Koraikuzhi Village. The deceased was in love with P.W.5, wife of A2. A panchayat was convened on the date of occurrence, i.e., 26.03.2002 from 8.00 p.m. to 11.00 p.m. in respect of the above said love affair. The panchayat was convened by A-1 and A-2. All the accused participated in the panchayat. One Raman, who was the "Nattanmai" for https://hcservices.ecourts.gov.in/hcservices/ the panchayat died before filing the complaint in this case. One Manickam also participated in the panchayat and he also died. One Marudaiyyan was also one of the "Nattanmai" in the said Panchayat, but he was not examined. P.W.5 and the deceased denied any illicit intimacy between them in the panchayat. In the panchayat, the deceased was asked to keep P.W.5 permanently and further the deceased was asked to pay Rs.50,000/- to Rs.1,00,000/- as compensation, to which decision of the panchayat, both the deceased and P.W.5 refused to accept. A-1 beat P.W.5 which was questioned by P.W.2 and as a result, A-1 also assaulted P.W.2. While P.W.1 questioned the conduct of A-1 in respect of assaulting P.W.2, his wife, A-1 and A-3 beat P.W.1 with chappal in the panchayat. P.W.3, son of P.Ws.1 and 2 was also assaulted in the panchayat. P.Ws.1 and 2 swooned after they have been assaulted by the accused. As the deceased was not accepting the verdict of the Panchayat, A-2 to A-4 caught hold of the deceased and A-1 poured the poison into the mouth of the deceased. At that time a light was burning at a nearby Amman temple. The deceased fell down after moving to a distance and died on that spot. [b] P.W.1 went to the respondent Police Station on 27.03.2002 at 10.00 a.m. and gave a report, Ex.P.1 to P.W.8, Head Constable who registered a case in crime No.159/2002 for the offences under sections 341 and 302 IPC. Ex.P.8 is the First Information Report. He sent the same to the Court concerned and to the higher police officials. [c] P.W.10, the Inspector of Police, received the FIR on 27.03.2002 at 10.45 a.m. and took up investigation. He went to the scene of occurrence and prepared Observation Mahazar-Ex.P.9 and Ex.P.10-rough sketch in the presence of witnesses. He recovered from the scene, M.O.6-a tin containing monocrotophos pesticide poison under Ex.P.11. He examined P.Ws.2,3,5 and others and recorded their statements. He held inquest on the dead body from 11.30 a.m. to 1.30 p.m. Ex.P.12 is the Inquest Report. He made arrangements to take photographs through the photographer and M.O.7 series are the photographs. He sent the body for postmortem through the constable under requisition Ex.P.13. [d] The doctor, P.W.7, attached to the Government Hospital, Ariyalur, conducted postmortem on the dead body of the deceased on 27.03.2002 at 4.00 p.m., on receipt of the requisition under Ex.P.13. He found the following injuries:- "Appearances found at the postmortem of a moderately nourished male body lying on is back with both arms close to the body both lower limbs in extended position. Eyes closed, teeth even, tongue inside the mouth. Dribbling of secretions with bubble in both angel of mouth and nostril. Faecal incontinence present. No external injuries made out." https://hcservices.ecourts.gov.in/hcservices/ Ex.P.4 is the Postmortem Certificate wherein the doctor has opined that the deceased would appear to have died due to organo phosphorous insecticide poison-monocrotophos and Ex.P.5 is the Viscera report. [e] P.W.7, on the same day also examined P.W.1 sent by the police with the police memo. Ex.P.6 is the Accident Register wherein he found the following injuries:- "Patient is conscious, well oriented pulse 76/min. 1.A dry abrasion in the right elbow 2x1.5cm. 2.Redness of left eye. 3.Complaint of pain in the hip." He opined that the injuries are simple in nature. He also examined P.W.2 and found the following injuries:- "No external injuries. Complaint of pain in the left leg, pain in both the thighs and pain in the chest." Ex.P.7 is the Accident Register wherein he has opined that the injuries are simple in nature. [f] P.W.10, in continuation of his investigation prepared Ex.P.16, the Observation Mahazar. On 28.3.2002 at 6.30 a.m. he arrested A-2. In pursuance of the admissible portion of the confession of A-2, he recovered M.O.1-a pair of chappal. He remanded A-2 to judicial custody through Court. He sent the material objects for chemical examination. After receiving the Postmortem Certificate, Ex.P.4 and Ex.P.5-Viscera Report and after completing the investigation, he filed the charge sheet against the accused 1 to 4 on 26.12.2002 for the offence under sections 341,302 and 355 IPC. 5. The prosecution in order to bring home the charges against the accused examined P.Ws.1 to 10, marked Exs.P.1 to 16 and M.Os.1 to 7. 6. When the accused were questioned under section 313 Cr.P.C., in respect of the incriminating circumstances appearing against each of them, they have denied their complicity and they have come forward with the version of total denial. They have not chosen to examine any witnesses or mark any document on their side. 7. Mr.A.Padmanaban, learned counsel for the appellants vehemently contended that the prosecution has miserably failed to prove the guilt of the accused by adducing clear and consistent evidence and put forward the following contentions:- https://hcservices.ecourts.gov.in/hcservices/ "[1] The prosecution has chosen to examine the eyewitnesses P.Ws.1 to 3 who are the father, mother and brother of the deceased Ravi and their evidence is not corroborated by any independent witness; [2] P.W.3, the brother of the deceased has not implicated the accused 1 to 4, the appellants herein, even in the chief examination for attacking the deceased and as such, he is not an eyewitness to the occurrence proper and further P.W.3 had admitted in his cross-examination that he was assaulted by the accused 1 to 4 and after regaining consciousness, he went and saw the body of the deceased at the bus stand. Therefore, P.W.3 is not an eyewitness to the occurrence; [3] P.Ws.1 and 2 categorically stated that after they have been assaulted, they swooned and only thereafter, according to the prosecution, the accused 1 to 4 said to have attacked the deceased and as such, P.Ws.1 and 2 could not have witnessed the occurrence; and lastly [4] The prosecution has not proved the possession of poison, viz., monocrotophos by anyone of the accused. It is highly improbable for A-1 to pour the poison in the presence of others in the panchayat." 8. We have heard Mr.N.R.Elango, the learned Additional Public Prosecutor on the submissions made by the learned counsel for the appellants. 9. We have given our careful and anxious consideration to the rival contentions put forward by either side and thoroughly scrutinised the entire materials available on record and also perused the impugned Judgment of conviction. 10. The prosecution heavily placed reliance on the evidence of the eyewitnesses P.Ws.1 to 3. As pointed out by the learned counsel for the appellants, P.Ws.1 to 3 are the father, mother and brother of the deceased Ravi and as such, they are the interested witnesses. But, on that score itself we cannot reject their evidence in toto. The only requirement is we have to scrutinise their evidence with great care and caution. 11. Before proceeding to consider the evidence of P.Ws.1 and 2, let us consider the evidence of the eyewitness P.W.3. P.W.3 is the brother of the deceased and the perusal of the evidence of P.W.3 https://hcservices.ecourts.gov.in/hcservices/ clearly shows that he has not implicated A-1 to A-4 as he has not whispered a word about A-2 to A-4 catching hold of the deceased and A- 1 pouring the poison into the mouth of the deceased even in the chief examination. It is seen that in the chief examination itself, he has stated that he was also assaulted by the accused and he swooned. The fact remains that he has not sustained any external injuries and he has not been referred to the doctor for any medical examination by the police. It is admitted by P.W.3 in his cross-examination that he swooned after he was assaulted by the accused and thereafter, he regained consciousness and went to the bus stand accidentally and found the body of the deceased. Therefore, it is crystal clear that he was not at all present at the time of the alleged occurrence and therefore, we are of the considered view that the evidence of P.W.3 is not at all helpful to advance the case of the prosecution. 12. Now, coming to the evidence of P.Ws.1 and 2, it is seen that P.W.1, in the chief examination itself, has categorically stated that he was assaulted along with his wife P.W.2 in the panchayat by the accused and both of them swooned and only thereafter, the deceased was caught hold by the accused A-2 to A-4 and A-1 pouring the poison into the mouth of the deceased. 13. P.W.2 also admitted in her cross-examination that she swooned after she was assaulted at 8.00 p.m. by the accused 1 to 4 and she regained consciousness only at 00.00 hours in the midnight and thereafter, she went and found the deceased lying dead at the bus stand. Therefore, it is crystal clear that both P.Ws.1 and 2 are not the eyewitnesses to the occurrence proper wherein A-2 to A-4 said to have been caught hold of the deceased and A-1 said to have poured the poison into the mouth of the deceased. It is further pertinent to be noted that P.W.1 categorically admitted in his cross examination as he was swooned, he was not able to go to the Police Station in the night. It is seen that the report, Ex.P.1 said to have been given by P.W.1 to P.W.8 the Head Constable only at 10.00 a.m. on 27.03.2002 and as such, there is also an inordinate and unexplained delay in giving the report to the police which assumes importance in view of the categorical statements of P.Ws.1 and 2 to the effect that they swooned immediately after the assault of A-1 to A-4. Therefore, we are constrained to state that the evidence of P.Ws.1 and 2 also not at all inspires our confidence and we are of the considered view that it is most unsafe and hazardous to place reliance on their evidence. 14. As rightly pointed out by the learned counsel for the appellants, the prosecution also miserably failed to put forward any other incriminating circumstances implicating A-1 to A-4 in this case. There is absolutely no evidence for the possession of the poison by anyone of the accused. The recovered empty tin-M.O.1 also does not contain any poison even as per the version of the prosecution. Therefore, the entire prosecution case suffers from https://hcservices.ecourts.gov.in/hcservices/ serious infirmities and inherent improbabilities and hence, we are constrained to come to the inevitable conclusion that the impugned judgment of conviction is unsustainable. 15. Accordingly, the conviction and sentence imposed on the appellants in the judgment dated 09.12.2005 by the learned Sessions Judge, Perambalur, in S.C.No.85/2005 are set aside and the criminal appeal is allowed. 16. It is reported that the appellants are on bail. Hence, bail bond, if any, executed by them, shall stand terminated and the fine amount, if any paid, may be directed to be refunded to them. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ap To 1. THE JUDICIAL MAGISTRATE, ARIYALUR. 2. -do- thro THE CHIEF JUDICIAL MAGISTRATE, PERAMBALUR. 3. THE SESSIONS JUDGE, PRAMBALUR DISTRICT. 4. THE SUPERINTENDENT, CENTRAL PRISON, TRICHY. 5. THE CHIEF JUDICIAL MAGISTRATE, TIRUNELVELI. 6. THE DIRECTOR GENERAL OF POLICE, MYLAPORE, CHENNAI 4. https://hcservices.ecourts.gov.in/hcservices/ 7. THE COLLECTOR, PERAMBALUR DISTRICT. 8. THE INSPECTOR OF POLICE, VIKRAMANGALAM POLICE STATION, PERAMBALUR DISTRICT. VM(CO) km/5.8. Crl.A.No.117/2006 https://hcservices.ecourts.gov.in/hcservices/