BAIL SLIP --- The Appellants 1,2,4,5 and 6 (Accused Nos.1,2,4,5 & 6) were directed to be released on bail by the order of this Court, dated 8.4.2009 in M.P.No.2 of 2009 in Crl.Appeal.No.19 of 2009. ---- IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.10.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH CRIMINAL APPEAL No.19 of 2009 1. Mani 2. Premkumar 3. Pradapkumar 4. Ashokraj @ Ashok 5. Ashokmithran @ Mithran 6. Prabhakaran .. Appellants/Accused 1 to 6 Vs. State by The Inspector of Police, B-13, Police Station, Coimbatore District. (Crime No.160/2006) .. Respondent/Complainant This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned 1st Additional District and Sessions Court, Coimbatore, made in S.C.No.111 of 2007 dated 31.12.2008 For Appellants : Mr.S.N.Arunkumar for A1 & A3 Mr.K.Kalyanasundaram for A2 & A6 Mr.G.Karthikeyan for A4 & A5. For Respondent : Mr.Babu Muthu Meeran, APP. JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) This appeal challenges the judgment of the First Additional Sessions Division, Coimbatore made in S.C.No.111/2007 whereby the appellants, six in number, stood charged, tried, found guilty and awarded the punishment as follows: Charges: 1st charge : A1 to A6 - Section 147 IPC 2nd charge : A3 to A6 - Section 148 IPC 3rd charge : A1 to A6 - Section 341 IPC 4th charge : A3 to A6 - Section 302 r/w 34 IPC 5th charge : A1 and A2 - Section 302 r/w 149 IPC 6th charge : A4 to A6 - Section 326 r/w 149 IPC Conviction and Sentence: A1 & A2 - S.147 IPC - 1 years RI A3 to A6 - S.148 IPC – 2 years RI A1 to A6 - S. 341 IPC (2 counts) 1 month RI each for each count A1 & A2 - S. 302 r/w 149 IPC – life imprisonment A3 to A6 - S. 302 r/w 34 IPC – Life imprisonment A4 to A6 - S. 324 r/w 149 IPC – 2 years RI 2. The short facts necessary for the disposal of this appeal can be stated thus: (a) P.W.1 is the resident of Gandhiji Road, Kuruchi. The deceased Anandhan is the brother-in-law of P.W.1's sister. On 23.2.2006, one Prabhu had quarrel with all the accused and the accused beat him. It was informed to the deceased Anandhan. On the date of occurrence that was on 24.2.2006 at about 9.00 p.m, the deceased Anandhan and P.W.1 were talking about the incident and were walking on the Gandhiji Road at Pothanur. At that time, they saw the accused standing there. The accused asked why both of them were staring at them. There was wordy altercation between them. All the accused waylaid both deceased and P.W.1. and A1 instigated the other accused. A1 and A2 caught hold of the arms of the deceased. A3 cut the deceased with aruval on his head. P.W.1 went to the rescue. At that time, A4 to A6 attacked him with iron rod. P.W.1 fell down and all of the accused attacked Anandhan indiscriminately. The occurrence was witnessed by P.Ws. 2 and 3. (b) P.Ws.2 and 3 took the severely injured Anandhan to the Government Hospital where he was given treatment. P.W.1 proceeded to Pothanur Police station and gave Ex.P1 report to P.W.8 Inspector of Police at 21.45 hours. On the strength of Ex.P1, a case came to be registered in Crime No.160/2006 under sections 147, 148, 341, 324 and 307 I.P.C. The express F.I.R., Ex.P11 was dispatched to Court. (c) P.W.8, Inspector of Police took up investigation. He proceeded to the spot, made an inspection in the presence of witnesses, he prepared Ex.P2 observation mahazar and drew a rough sketch Ex.P12. He also recovered the material objects including the blood stained earth and sample earth under a cover of mahazar, Ex.P3. Pending investigation, Anandhan who was admitted in hospital for treatment died on 25.2.2006 at 22.05 hours. Thereafter, the case which was originally registered under section 307 I.P.C. was converted to Section 302 I.P.C. and the amended F.I.R. Ex.P14 was dispatched to Court. (d) A1 and A2 were arrested on 26.2.2006 at 4.00 a.m. The Investigating Officer proceeded to the mortuary and conducted inquest on the dead both of Anandhan in the presence of witnesses and prepared Ex.P15 inquest report. The dead body was subjected to post mortem. P.W.7, doctor on the requisition made by the Investigating Officer, conducted autopsy on the dead body of Anandhan and gave the post mortem certificate Ex.P.10 wherein he has opined that the deceased would appear to have died of head injuries sustained by him. A3 and A4 surrendered before the Court. On 28.2.2006, A6 was arrested when he was undergoing treatment at the Government Hospital, A3 gave confessional statement and the admissible part of the same was marked as Ex.P4 pursuant to which he produced M.O.1 aruval which was recovered under a cover of mahazar and A4 gave confessional statement and the admissible part was marked as Ex.P5. He also produced three iron rods which was marked as M.O.2 series. They were sent for judicial remand. All the materials objects were subjected to chemical analysis which broughtforth the chemical report and the serologist report. On completion of the investigation, the Investigating Officer filed a final report. (e) The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution examined 8 witnesses and relied on 16 exhibits and 6 material objects. On completion of the evidence on the side of the prosecution, the accused were question under section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses and they denied them false. One Dr.Sekar on the side of the defence was examined as D.W.1 through whom the copy of the accident register of P.W.1 was marked as Ex.D1. On completion of the evidence and after hearing the arguments advanced on either side, the Court took the view that the prosecution has proved the case beyond reasonable doubt and found the appellant guilty as per the charge and awarded the punishment as referred to above. Hence, this appeal at the instance of the appellants. 3. Advancing the arguments on behalf of the appellants, the learned counsel inter alia would submit, in the instant case, the prosecution has miserably failed to prove its case. The gist of the case of the prosecution was that the occurrence has taken place at about 9.00 p.m. on 24.2.2006 and the occurrence it was actually witnessed by P.Ws. 1 to 3. The F.I.R. did not whisper of the presence of P.Ws. 2 and 3. Even P.Ws. 2 and 3 were not examined at the time of the inquest. Hence, P.Ws. 2 and 3 could not have been present at the time of occurrence at all. According to P.W.1, from the place of occurrence, he immediately proceeded to the Hospital and took treatment but according to investigating officer, he gave medical memo to P.W.1 and the prosecution would claim that on the complaint of P.W.1 which was marked as Ex.P1, a case originally came to be registered under section 307 I.P.C. From the evidence of P.W1. and P.W.8, it is highly doubtful whether Ex.P1 document should have come into existence as putforth by the prosecution. Added further learned counsel, so far as P.W.1 was concerned, though it was claimed by the prosecution that he was treated in the Government Hospital, the doctor who examined him was not examined by the prosecution and the accident register copy was not marked by the prosecution. Though P.W.1 was the eye witness and also the injured witness, the medical evidence was not canvassed. On the contrary, it was the defence who examined the doctor who treated P.W.1 as D.W.1 and through him, Ex.D1 accident register has been marked. A perusal of Ex.D1 would clearly indicate that it was thoroughly against the entire prosecution case. According to Ex.D.1 the assailants were four in number. The weapons which were used were not only knife and aruval but also cricket stick and the occurrence had taken place at Venkatachalapathy Nagar. According to the prosecution, the assailants are six in number and the occurrence has taken place at Gandhiji Road, Kuruchi and the weapons of crime were aruval and iron rod. The earliest document which came into existence is Ex.D1. From a reading of Ex.D1 which has come into existence from the mouth of P.W.1, it would go to show that the prosecution has come with a false story. 4. Added further learned counsel, it is admitted by the investigating officer that A6 took treatment in the Government Hospital and he arrested on 28.2.2006 and he has also given a complaint but neither the complaint given by A6 was brought before Court nor any documents pertaining to treatment was produced before the Court. All would go to show that the prosecution has failed to place all the necessary documents before the Court to enable the Court to come to a correct conclusion. All would indicate that the prosecution has miserably failed to prove its case. In the absence of any evidence and in the absence of necessary documents, the trial Court should have rejected the prosecution case. But the trial Court has found the accused guilty of the charges and awarded punishment as referred to above. Hence, the accused/appellants are entitled for acquitted in the hands of this Court. 5. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 6. It is not in controversy that one Anandhan who was admitted in the Hospital from the place of occurrence died on 10.05 hours on 25.2.2006. Originally, a case came to be registered under section 307 I.P.C. and on the death of Anandhan, it was converted under Section 302 I.P.C. Following the inquest made by the investigating officer P.W.8, the dead body of Anandhan was subjected to post mortem. The doctor has given opinion in the post mortem certificate that Anandhan died out of shock and haemorrhage due to the injuries sustained on the head. This fact that Anandhan died out of homicidal violence was never disputed by the appellants at any point of time before the trial court. Under such circumstances, there is no impediment in recording so. 7. In order to substantiate that all the accused constituted unlawful assembly, waylaid P.W.1 and the deceased and attacked them at the time of occurrence, the prosecution rested its case on the direct evidence of P.Ws. 1 to 3. On scrutiny of the evidence available, the Court is afraid whether it could accept these evidence. Insofar as P.Ws. 2 and 3 are concerned, their names do not find place in the F.I.R. Apart from that, their names were not mentioned in the inquest report also. Therefore, P.W.2 and 3 could not have been present at the place and time of occurrence at all. So far as P.W.1 is concerned, his evidence has got to be rejected for the reasons that according to P.W.1, from the place of occurrence, he directly rushed to the hospital and got treatment, on the contrary, P.W.8 investigator would say that P.W.1 came to the police station and he gave a medical memo and along with medical memo, he went to the hospital. According to the prosecution, P.W.1 gave complaint Ex.P1 on the strength of which a case came to be registered. Hence, it becomes highly doubtful whether Ex.P1 should have come into existence as putforth by the prosecution. Apart from that P.W.1 would claim that he went to Jipmer hospital and had treatment. This fact has been fairly admitted by the prosecution. If to be so, what impeded the prosecution from producing his medical evidence remains unexplained. The prosecution has miserably failed to produce that part of the evidence, on the contrary, it was the defence who had examined the doctor who gave treatment to P.W.1 as D.W.1 and the accident register copy of P.W.1 was marked as Ex.D1. From the very reading of Ex.D1 and on perusal of the evidence of D.W.1, it would reflect that the case of the prosecution cannot be believed. Ex.D1 would indicate that P.W.1 has given statement to D.W.1 doctor that four persons were the assailants and the weapons of crime were aruval and cricket sticks and the occurrence had taken place at Venkatachalapathi Nagar. On the contrary, the prosecution case is that there are six assailants and the weapons of crime were aruval and iron rods and the occurrence had taken place at Gandhiji Road. Therefore, the number of assailants, place of occurrence and the weapons of crime are different from the case of the prosecution, but the prosecution had no explanation to offer in that regard. 8. The reason for the non-production of that part of the medical evidence in respect of P.W.1 is not without reason. If those evidence was produced before Court, it would go against the prosecution and that was the impediment felt by the prosecution in producing the medical evidence of P.W.1. But on the defence side, the medical evidence of P.W.1 was produced, which would go to show that it is against the prosecution case. 9. Added circumstances against the prosecution noticed by this Court is the non-production of the complaint given by A6. Admittedly A6 was arrested in the Government Hospital on 28.2.2006, according to the investigator. It is also admitted by the investigating officer that A6 has given a complaint and he also sustained injuries and he took treatment for 4 or 5 days in the hospital but not even one of the documents in that regard was actually produced before the Court. Thus, the non-production of all the above documents both medical evidence regarding P.W.1, the so-called injured witness and also the complaint and the other medical evidenceof A6 would clearly indicate that the prosecution did not enable the trial Court to find out either the genesis or the truth of the case to come to a correct conclusion. 10. Under such circumstances, the Court is of the opinion that it would be highly unsafe to hold that the accused are involved in the crime. Under such circumstances, benefit of doubt would go to the appellants. Hence, they are entitled for acquittal. Therefore, judgment of the lower court has got to be made undone only by upsetting the same by this Court. 11. Accordingly, the judgment of conviction and sentence passed by the trial Court is set aside. The appellants are acquitted of the charges levelled against them. It is reported that A1,A2, A4, A5 and A6 are on bail. Therefore, A3/third appellant is directed to be released forthwith unless his presence is required in connection with any other case. The bail bonds, if any executed by the appellants, shall stand terminated. The fine amounts, if any paid by them, shall be ordered to be refunded to them. Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar vsi To 1. The Judicial Magistrate No.VII, Coimbatore. 2. -do- Thro The Chief Judicial Magistrate, Coimbatore. 3. The Superintendent, Central Prison, Coimbatore. 4. The Public Prosecutor, High Court, Madras. 5. The Inspector of Police, B-13, Police Station, Coimbatore District. 6. The I Additional District and Sessions Judge, Coimbatore. 7. -do- Thro The Principal District Judge, Coimbatore. 8. The District Collector, Coimbatore. 9. The Inspector General of Police, Mylapore, Chennai. 10. The Officer-in-Charge, Vellore South Police Station, Vellore. +1 cc to Mr.K.Kalyanasundaram, Advocate, SR.No.56467 CRL.APPEAL No.19 of 2009 PA {CO} TP/5.11.2009.