IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13.11.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NO.247 OF 2006 State rep. by The Inspector of Police, Kadaladi Police Station, Tiruvannamalai District (Crime No.172/2002) .. Appellant Vs. 1.Paruvatham 2.Vaduvathai 3.Periyasami 4.Anandan 5.Nadamadi @ Subramani 6.Kuppan @ Kuppusamy .. Respondents This criminal appeal has been preferred under Section 378 Cr.P.C. against the judgment of the learned Sessions Judge, Tiruvannamalai made in S.C.No.67/2003, dated 30.09.2004. For Appellant : Mr.P.Kumaresan, APP For Respondents: Mr.S.Paneerselvam, Amicus Curiae for A-1 Mr.N.Duraisamy for Mr.P.Anbazhagan for A-2 to A-6 JUDGMENT (The judgment of the court was delivered by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the Sessions Division, Tiruvannamalai made in S.C.No.67 of 2003, whereby the respondents 6 in number stood charged as follows: I Charge - A-1 to A-6 - S.147 IPC II Charge - A-1 to A-6 - S.120-B IPC III Charge - A-3 and A-4 - S.143 IPC IV Charge - A-1,A-2 and A-5 - S.148 IPC V Charge - A-1 to A-5 - S.341 IPC VI Charge - A-1 - S.25(1-B) of Arms Act VII Charge - A-2 - S.302 IPC VIII Charge - A-3,A-4 and A-5 - S.302 r/w 149 IPC IX Charge - A-1 - S.302 IPC X Charge - A-6 - S.302 r/w 109 IPC https://hcservices.ecourts.gov.in/hcservices/ On trial, they were found not guilty and the trial court has recorded an order of acquittal. Hence the State has brought forth this appeal. 2.The short facts necessary for the disposal of this appeal can be stated thus: a)The deceased Katturaja is the junior paternal uncle of P.W.1. and he had two wives. There was a dispute between one Valakannu @ Parasuraman and A-2. In that matter, it passed an impression in the mind of A-2 that Katturaja was supporting the opposite party and therefore, A-2 and his associates were on inimical terms with the deceased and they were waiting for time to wreak vengeance. Just three months prior to the occurrence, there was a wordy quarrel between Katturaja and A-2. b)On the date of occurrence that was on 15.4.2002, the deceased was proceeding in his motor cycle, in which P.W.10 was to go with him. At that time, on request of A-6, the deceased took A-6 and they were proceeding and it was done pursuant to the plan hatched up by A-6 and the other accused to finish him off. Accordingly, A-6 brought the deceased from Kanthapalayam and on the way, the deceased dropped A-6 and proceeded to his house at Uthangal Odai. At about 9.30 p.m., the first accused armed with a country Gun, A-2 with a knife and A-5 with an iron rod and also A-3 and A-4 were all waiting for the arrival of the deceased. On the way, the deceased was waylaid by them and in furtherance of the common object of killing him, A-2 stabbed the deceased with the knife, A-3 beat him with hands on the left eye, A-4 kicked him on the thighs with leg, A-5 beat him with the iron rod, while A-1 opened fire on his chest, as a result of which, the deceased succumbed to injuries instantaneously. All the accused fled away from the place of occurrence. c)On the next morning at about 6.00 a.m., when P.W.1 was in his house, a villager, on seeing the dead body of the deceased, informed him. He accompanied with the grandmother Pachiammal and the two wives of the deceased, proceeded to the place of occurrence and found the dead body. The motor cycle was also found with the engine running. P.W.1 stopped the same. P.W.1 proceeded to the respondent police station and gave Ex.P.1, the complaint to P.W.18, the Inspector of Police. On the strength of the same, P.W.18 registered a case in crime No.172 of 2002 under Sections 302 IPC r/w S.25(1)(A) of Arms Act. Ex.P.20, the F.I.R. was despatched to the Court. d)P.W.18 took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.17, the observation mahazar and Ex.P.21, the rough sketch. The place of occurrence was photographed by P.W.15, the photographer. Ex.P.19 (series) photos and negatives were marked. Then, P.W.18 conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.22, the inquest report. He recovered material objects available from the place of occurrence under a cover of mahazar. The dead body was sent to the hospital for the purpose of autopsy. https://hcservices.ecourts.gov.in/hcservices/ e)P.W.5, the Doctor attached to the Government Hospital, Polur, on receipt of the requisition, has conducted post-mortem on the dead body of the deceased and has issued Ex.P.3, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained 17 to 20 hours prior to post-mortem. f)Pending investigation, P.W.18 arrested A-1 to A-5 on 20.4.2002 and they came forward to give confessional statements, which were recorded in the presence of the witnesses. The admissible part of the confessional statements of A-1 was marked as Ex.P.10, A-2 was marked as Ex.P.11, A-3 was marked as Ex.P.24, A-4 was marked as Ex.P.25 and A-5 was marked as Ex.P.26. Pursuant to the same, the accused produced the material objects, which were recovered under a cover of mahazar. A-1 to A-5 were sent for judicial remand. A-6 was arrested on 3.7.2002 and he was sent for judicial remand. All the material objects recovered were subjected to chemical analysis by the Forensic Science Department, which resulted in Exs.P.7 and 9, Serologist's reports and Ex.P.8, the Biological report. Further, investigation was done by P.W.19, the Inspector of Police. On completion of the investigation, he 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 30 exhibits and 21 M.Os. On completion of the evidence on the side of the prosecution, all 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, on hearing the arguments advanced on either side, took the view that the prosecution has not proved the case beyond reasonable doubt and has made an order of acquittal. Aggrieved over the same, the State has brought forth this appeal. 4.Advancing arguments on behalf of the State, the learned Additional Public Prosecutor would submit that the occurrence has taken place on 15.4.2002 at 9.30 p.m.; that though the prosecution had no evidence to offer, it has placed and proved necessary circumstances, pointing to the guilt of the accused; that two witnesses have been examined; that so far as the motive part was concerned, there was a land dispute between the second accused and P.W.14; that from the evidence adduced by the prosecution, it would be quite clear that during the relevant time, the deceased was supporting the cause of P.W.14 and that A-2 was actually aggrieved; that all other accused are close relatives or associates of A-2 and they are supporting him; that pursuant to the plan, it was A-6 who took the deceased in M.O.1, motor cycle and all other accused were waiting for him; and that from the evidence of P.W.8, it would be quite clear that on the date of occurrence, A-1 to A-5 came to his house and asked for arrack, which P.W.8 could not supply and all the accused left the house and within a short while, he heard the noise of gun shot and he came out of the house and found all the accused persons running from the place of occurrence and also found the dead body of the deceased. https://hcservices.ecourts.gov.in/hcservices/ 5.Added further the learned Additional Public Prosecutor that P.W.9 has also spoken in the same line; that from the evidence of P.Ws.8 and 9, it would be quite clear that all accused persons were found in the company of the deceased at the time of occurrence and thereafter, they found the dead body of the deceased and thus, it would be quite clear that except these accused, no one could have committed the offence; that P.W.10 has given evidence that he saw A-6 and the deceased in the motor bike and thus, all would further strengthen the case of prosecution; that pursuant to the confession statement of A-1, the weapons of crime have been recovered and evidence was also adduced in this regard and thus, all would indicate the guilt of the accused, but the lower court has rejected the case of prosecution on flimsy grounds and further, the reasons stated by the lower court were all lacking and under these circumstances, the judgment of the lower court has got to be set aside and the respondents have got to be dealt with in accordance with law. 6.The court heard the learned counsel appearing for the respondents on the above contentions and has paid its anxious consideration on the submissions made. 7.The gist of the case of the prosecution was that pursuant to the enmity between the deceased and A-2, the accused persons hatched up a plan and on the date of occurrence, i.e. on 15.4.2002 at about 9.30 p.m., it was A-6 who took the deceased to the place of occurrence and thereafter, all the accused waylaid him. A-2 stabbed the deceased with the knife, A-3 beat him with hands, A-4 kicked him on the thighs with leg, A-5 beat him with the iron rod, while A-1 opened fire on his chest, as a result of which, the deceased succumbed to injuries. The prosecution had no direct evidence to offer and hence it has rested its case exclusively on circumstantial evidence. The trial court, on appreciation of the contentions put forth and scrutiny of the materials available, has recorded an order of acquittal. It is a well settled proposition of law that when the trial court has recorded an order of acquittal of the accused on appreciation of evidence, the appellate forum has to see whether the judgment of the trial court is perverse or the reasons adduced by the trial court cannot be found to be sufficient for ordering acquittal. If this test is applied in the instant case, this court is afraid whether the judgment of the trial court could be disturbed. 8.In the instant case, the prosecution mainly rested on the evidence of P.Ws.8 and 9 to the effect that on the date of occurrence, they have noticed the accused persons running from the place of occurrence. It has also relied on the evidence of P.W.10, who saw A-6 and the deceased going together in M.O.1, motor bike and also the recovery of material objects from A-1 pursuant to the confessional statement. 9.The materials which were placed before the trial court were actually marshalled proper and have been rejected by the trial court, which in the considered opinion of the court is rightly too. According to P.W.8, a short while before the occurrence, A-1 to A-5 came to his house and asked for arrack, but he could not supply and thereafter, they https://hcservices.ecourts.gov.in/hcservices/ left the place and within a short while, P.W.8 heard the sound of gun fire and he came out of the house and saw the accused persons running from the place of occurrence. The evidence of P.W.8 at no stretch of imagination could be accepted for the reason that according to him, the place of occurrence is situated ½ km. from his house and secondly, from the evidence of P.W.4, it would be quite clear that P.W.8 was immediately taken by the police on the very day. But the prosecution would claim that the statements of P.Ws.8 and 9 were recorded and reached the court after 2 or 3 days. Had it been true that P.Ws.8 and 9 have seen the accused persons running from the place of occurrence, immediately, they would have informed the same to the police, but they have not done so. Further, the fact that P.Ws.8 and 9 have not spoken about the occurrence on the very day despite enquiry by the police and the Investigator would clearly indicate that they were planted witnesses. Apart from that, P.Ws.8 and 9 were arrack sellers and therefore, they were under the grip of the police all along and hence, they were planted witnesses in order to suit the prosecution case. Hence their evidence was rightly rejected by the trial court. 10.So far as P.W.10 was concerned, according to him, A-6 and the deceased went together on the date of occurrence in the motor bike. But, the same by itself cannot be a reason pointing to the guilt of A-6 or any other accused. According to the prosecution, the other circumstance relied on was the recovery from A-1 pursuant to his arrest and confessional statement. It is a well settled proposition of law that the mere recovery by itself would not be sufficient to sustain conviction. The trial court has marshalled the evidence proper, considered the same and recorded an order of acquittal. The judgment of the trial court was neither found to be perverse nor lacking any reason in making an order of acquittal. Under these circumstances, the court is unable to see reason to disturb the judgment of the trial court. Accordingly, this criminal appeal fails and the same is dismissed. 11.Mr.S.Paneerselvam, Amicus Curiae counsel appearing for A-1 is entitled to get remuneration from the Tamil Nadu Legal Services Authority, Chennai. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1.The Sessions Judge, Tiruvannamalai. https://hcservices.ecourts.gov.in/hcservices/ 2.The Inspector of Police, Kadaladi Police Station, Tiruvannamalai District. 3. The District Collector, Thiruvannamalai. 4. The Director General of Police, Chennai - 4. 5. The Additional Public Prosecutor, High Court, Madras. 6. The Secretary, Tamil Nadu Legal Services Authority, Chennai. 1 cc To Mr.S.Paneerselvam, Amicus Curiae Counsel, SR.63493. CRL.A.NO.247 OF 2006 SJ(CO) RVL 25.11.2008 https://hcservices.ecourts.gov.in/hcservices/