Bail Slip The Appellant/ Accused namely V. Doss was directed to be released on bail as per order of the Honourable Court on 23.2.2007 in Crl.M.P.No.1/07 in Crl.A.114/07. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.11.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NO.114 OF 2007 V.Doss .. Appellant/ Accused No.1 Vs. State rep. by Inspector of Police, C-5,Pallikkaranai Police Station, Chennai .. Respondent/ Complainant This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Principal Sessions Judge, Chengalpattu made in S.C.No.217 of 2005, dated 8.1.2007. For Appellant : Mr.N.Sankaravadivel 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 Principal Sessions Division, Chengalpattu made in S.C.No.217 of 2005, whereby this appellant, who is shown as A-1 along with 6 others stood charged under Section 396 IPC and on trial, A-1 was found guilty of the charge and awarded life imprisonment and to pay a fine of Rs.1000/-, in default to undergo one year R.I. A-2 to A-7 were acquitted of the said charge. https://hcservices.ecourts.gov.in/hcservices/ 2.The short facts necessary for the disposal of this appeal can be stated thus: a)P.W.8 owned 16.7 acres of land at Chitlapakkam, in which he had grown coconut and mango trees. He also appointed two watchmen. The lands were leased out to the deceased Dharmasivam as lessee. P.W.8 often received information from the watchmen and the lessee that some persons trespassed into the garden and committed theft of coconuts and mangos. As such, he informed the same to P.W.7 to enquire over the matter. P.W.1 was working in Kothari garden belonging to P.W.8. On 14.3.2003 at about 6.00 p.m., 7 persons armed with weapons entered into the garden and were plucking coconuts and mangoes from the trees. At that time, the lessee Dharmasivam came and intervened and when he intervened, all of them attacked him and he gave a distressing cry. b)Immediately, P.Ws.1 and 2 rushed to the spot along with other witnesses and they saw the accused persons attacking the deceased with iron rod, stones and wooden logs. On seeing them, all the accused fled away from the place of occurrence. Immediately, P.Ws.1 and 2 took Dharmasivam to Deepam Nursing Home at Tambaram. P.W.10, the Doctor admitted him and has given treatment. He has issued Ex.P.13, medico-legal register. c)P.W.1 went to Selaiyur Police Station and gave Ex.P.1, the complaint to P.W.12, the Inspector of Police. On the strength of the same, P.W.12 registered a case in Crime No.155 of 2003 under Sections 147, 148, 324, 336 and 506(2) IPC. Ex.P.18, the FIR was despatched to the Court. He took up the investigation, proceeded to Deepam Hospital, Tambaram, but he did not record the statement of the victim, since he was unconscious. He gave an intimation to the Judicial Magistrate, Tambaram for recording the dying declaration. Then, he went to the place of occurrence and made an inspection in the presence of witnesses. He prepared Ex.P.19, the observation mahazar and Ex.P.20, the rough sketch. He examined the witnesses and recorded their statements. On 17.3.2003, he received an information from the hospital that the injured Dharmasivam died. Therefore, he converted the case into Section 302 IPC. Ex.P.21, the express report was sent to the court. P.W.12 proceeded to the hospital and 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. Then the dead body of the deceased was sent to the Government Hospital, Tambaram for the purpose of post- mortem. d)P.W.5, the Doctor attached to the Government Hospital, Tambaram, on receipt of the requisition, has conducted post-mortem on the dead body of the deceased and has issued Ex.P.7, 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. e)Pending investigation, P.W.12 arrested A-1 to A-4 on 18.3.2003. They voluntarily came forward to give confessional statement, which were recorded in the presence of the witnesses. The admissible portion of the confessional statements of A-1 to A-4 were marked as Exs.P.23 to P.26 respectively. Pursuant to the confessional statements, A-1 to A-4 took the Investigating Officer https://hcservices.ecourts.gov.in/hcservices/ and the witnesses to Kothari garden. A-1 produced M.O.1, wooden log, A-2 produced M.O.2, wooden log, A-3 produced M.O.3, iron rod and A-4 produced M.O.4, iron rod. All the material objects were recovered under a cover of mahazar. The accused were sent for judicial remand. On 20.3.2003, A-5 was arrested and he came forward to give confessional statement, which was recorded in the presence of the witnesses, the admissible part of the same was marked as Ex.P.28. Pursuant to the same, he produced M.O.5, stick and M.O.6, iron rod, which were recovered under a cover of mahazar. On the same day, A-6 was also arrested and he has also come forward to give confessional statement, which was recorded in the presence of the witnesses, the admissible part of the same was marked as Ex.P.30. Pursuant to the same, he produced M.O.7, stick, which was recovered under a cover of mahazar. Then, A-5 and A-6 were also sent for judicial remand. On 21.3.2003, P.W.12 enquired Chithalapakkam Village Administrative Officer and thereafter, he came to know that the place of occurrence was within the jurisdiction of Pallikkaranai Police station and hence all the C.D. files were transferred to Pallikkaranai Police station. f)P.W.13, the Inspector of Police took up further investigation. He registered the case in Crime No.167 of 2003. Ex.P.32, the F.I.R. was despatched to the court. P.W.11, the Judicial Magistrate, Poondamalli, conducted identification parade on 2.5.2003. P.W.1 was able to identify A-1. The identification parade proceedings are marked as Ex.P.17. 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 13 witnesses and also relied on 34 exhibits and 7 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 and looking into the materials available, took the view that the prosecution has proved the case beyond reasonable doubt insofar as A-1 and has found him guilty and awarded punishment as referred to above and has acquitted A-2 to A-7 in respect of the charge. Hence this appeal has arisen at the instance of A-1. 4.Advancing arguments on behalf of the appellant, the learned counsel would submit that the prosecution has miserably failed to prove its case either placing direct evidence or circumstantial evidence; that according to the prosecution, the occurrence has taken place on 14.03.2003 at 6.00 p.m.; that the first information, according to the prosecution, was given to P.W.12, the Inspector of Police, Selaiyur Police Station, who has registered the case at 9.00 p.m.; that further P.W.10, the Doctor of Deepam hospital, admitted the deceased; that the earliest document that has come into existence is Ex.P.13, the accident register, wherein it is mentioned that the occurrence has taken place at 8.30 p.m. and not at 6.00 p.m. and thus, it is highly doubtful whether the occurrence https://hcservices.ecourts.gov.in/hcservices/ has taken place at 6.00 p.m. as put forth by the prosecution; that the earlier report given was Ex.P.1, which was given by P.W.1, wherein the names of 7 accused were actually mentioned; that when the deceased was taken to the hospital, it was reported to P.W.10, the Doctor that more than 7 unknown persons have committed the offence and thus, there was discrepancy on the vital fact; that further when Ex.P.1 was given by P.W.1, he has categorically stated that the accused have taken all coconuts and mangoes from the place of occurrence, but when he gave evidence, he has stated that all were left in the place of occurrence and that all would go to show that P.W.1 could not have seen the occurrence at all. 5.Added further the learned counsel that the occurrence has taken place on 14.03.2003; that originally, the case was registered on the same day; that the case was altered to Section 302 IPC on 17.3.2003; that both the F.I.Rs. have reached the court on 17.3.2003; that the first F.I.R. has been received by the Magistrate at 10.00 a.m.; that so far as the second F.I.R. was concerned, no time was mentioned, which would be clearly indicative of the fact that both the FIRs have reached the court on the very day; that the first information in this case was thoroughly suppressed; that from the evidence of P.W.7, it would be clear that he was the friend of P.W.8, the owner of the garden and it was P.W.8 who informed P.W.7 over phone that some incident has taken place in the garden and therefore, you must go and see it; that accordingly, P.W.7 went to Pallikkaranai police station, within whose jurisdiction the occurrence has taken place and has given the report; that the said report has not been placed before the court; that it is pertinent to point out that P.W.1 has given the report to Selaiyur police station and the same has been transferred to Pallikkaranai police station on 18.3.2003, i.e. after the death of the deceased; that it would be quite clear that the first information would speak about the entire truth and it would unfold the truth also, but it has been suppressed. 6.The learned counsel would further add that the Investigator would claim that A-1 was arrested on 18.3.2003 and M.O.1 was recovered from A-1 pursuant to his confessional statement; that the witnesses examined in respect of the arrest, confessional statement and the recovery of weapon of crime, were P.Ws.3 and 6, but they have turned hostile; that M.O.1 was not found to be contained human blood and thus, all would go to show that the prosecution has not proved its case in any manner known to law and that the trial court has taken an erroneous view in finding the accused guilty and further, what were the evidence available for A-2 to A-7 for making an order of acquittal are equally applicable to this appellant also and hence the appellant has got to be acquitted. 7.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 8.It is not in controversy that Dharmasivam, following an incident that took place in the garden of P.W.8 on 14.3.2003, was https://hcservices.ecourts.gov.in/hcservices/ taken to Deepam Hospital, Tambaram, where he was given treatment and despite treatment, he died on 17.3.2003. Originally, on complaint given by P.W.1, a case came to be registered by P.W.12, the Inspector of Police, Selaiyur Police station and after the death of the deceased, it was converted to Section 302 IPC. After the inquest was made by P.W.12, the Investigator, the dead body was subjected to post-mortem by P.W.5, the Doctor, who has given his categorical opinion that the deceased died out of shock and haemorrhage due to the injuries sustained. This fact that the deceased died out of the injuries sustained was not questioned by the appellant/accused and hence it has got to be recorded so. 9.In order to substantiate the fact that in an incident that took place at about 6.00 p.m. on 14.3.2003, the deceased was attacked by A-1 to A-7 with deadly weapons, namely wooden logs and iron rod, the prosecution rested its case on the evidence of P.Ws.1 and 2. P.W.2 has categorically deposed that he came to the place of occurrence after the occurrence was over and hence the prosecution was left with the only evidence of P.W.1. Needless to say that in a given case like this when the prosecution rested its case on an uncorroborated and solitary testimony, the court has to exercise the test of careful scrutiny. Even it this test is applied, the court is afraid whether it can sustain conviction as done by the learned trial judge. 10.According to the prosecution, the occurrence has taken place at 6.00 p.m. on 14.3.2003 in the garden of P.W.8. According to P.W.1, he witnessed the occurrence and immediately after the occurrence, he along with P.W.2 took the deceased to Deepam Hospital, where P.W.10, the Doctor was available, who gave treatment to him and has issued Ex.P.13, the accident register. P.W.10, the Doctor has deposed that it was informed him that the occurrence has taken place at 8.30 p.m. There is no reason to doubt the evidence of the Doctor or the contents in the accident register. Thus, it casts a doubt whether the occurrence has taken place at about 6.00 p.m. as stated by P.W.1 and in Ex.P.1, the report or at 8.30 p.m. as found in the evidence of P.W.10, the Doctor. 11.Nextly, according to P.W.7, he is the friend of P.W.8, the owner of the garden and he was informed that an incident has taken place at the garden on 14.3.2003. Immediately, P.W.7 went over there and thereafter, went to Pallikaranai police station and gave the report. At this juncture, it is pertinent to point out that the FIR what is before the court was actually one which was given by P.W.1 and the same was given by P.W.1 at Selaiyur Police station. Thus, the report given by P.W.7 to the jurisdictional police station, namely Pallikaranai police station, was not brought to the notice of the court. As rightly put forth by the learned counsel for the appellant, had it been brought to the notice of the court, the contents of the said first information given by P.W.7 would have been very useful to find out the truth of the matter. https://hcservices.ecourts.gov.in/hcservices/ 12.Further, the prosecution relied on the recovery of M.O.1 from A-1 pursuant to the confessional statement. The witnesses examined were P.Ws.3 and 6 as to the arrest, confessional statement and the recovery of weapon of crime, but both have turned hostile and hence that part of the evidence was not also useful to the prosecution case. 13.The case was originally registered on 14.3.2003 by Selaiyur police station and the case was altered to Section 302 IPC on 17.3.2003, but both the F.I.Rs., the first one originally registered on 14.3.2003 and the altered F.I.R. on 17.3.2003, have reached the court on 17.3.2003 only, which also casts a doubt on the prosecution case. Apart from that, in Ex.P.1, the report, P.W.1 has stated all the names of the accused persons and that F.I.R. has come into existence at 9.00 p.m. At this juncture, it is pertinent to point out that just before the same, the deceased was taken to the Deepam hospital by P.W.1 and P.W.2, where P.W.10 the Doctor has given treatment to the deceased. Before the Doctor, it has been stated that more than seven unknown persons have committed the crime and it is also stated in the accident register. Thus, it would also cast a doubt on the evidence of P.W.1. All put together would clearly indicate that it would be highly unsafe to accept the evidence of P.W.1 to sustain the conviction as done by the trial court and hence without any hesitation, the court has to disagree with the case of prosecution. It is a fit case where the appellant has got to be acquitted of the charges levelled against him. 14.Accordingly, the conviction and sentence imposed on the appellant by the trial court are 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 the fine amount if any paid by him shall be refunded to him. Accordingly, this criminal appeal is allowed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. vvk To 1.The Principal Sessions Judge, Chengalpttu. https://hcservices.ecourts.gov.in/hcservices/ 2. The Judicial Magistrate, Alandur 3. do thro the Chief Judicial Magistrate Chengalpattu. 4. The Director General of Police Mylapore, Chennai 5. The District Collector, Kancheepuram 6. The Superintendent central Prison Cuddalore 7.The Inspector of Police, C-5,Pallikkaranai Police Station, Chennai. 8.The Additional Public Prosecutor, High Court, Madras. 1 cc to Mr.N. Sankaravadivel, Advocate, SR. 64734 CRL.A.NO.114 OF 2007 NSM (CO) kk 5/12 https://hcservices.ecourts.gov.in/hcservices/