IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.12.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH CRIMINAL APPEAL No.696 of 2009 1. Jagadeesan 2. Arun @ Arul @ Arunkumar .. Appellants/Accused 2 to 4 Vs. State by The Inspector of Police, Hasthamptti Police Station, Salem District (Cr.No.1962 of 2004) .. Respondent/Complainant This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned First Additional Sessions Judge of Salem made in S.C.No.324 of 2006 dated 28.11.2007. For Appellant : Mr.S.Suresh For Respondent : Mr.Babu Muthu Meeran, APP J U D G M E N T (The judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the I Additional Sessions Division, Salem made in S.C.No.324 of 2006 whereby these two appellants/A2 and A4 along with other accused ranked as A1 and A3 stood charged, tried and found guilty as follows: Accused Charges Findings Sentence A-1 148 IPC Guilty 1 year R.I A-2 to A-4 147 IPC Guilty 6 months R.I. each https://hcservices.ecourts.gov.in/hcservices/ Accused Charges Findings Sentence A-1 302 IPC Guilty Life imprisonment along with fine of Rs.20,000/- i/d 1 year R.I. A-2 and A-3 302 r/w 114 IPC Guilty Life imprisonment along with fine of Rs.20,000/- i/d 1 year R.I. each A-4 302 r/w 149 IPC Guilty Life imprisonment along with fine of Rs.20,000/- i/d 1 year R.I. A-4 307 IPC Guilty 7 years R.I along with fine of Rs.5000/- i/d 6 months R.I. A-1 to A-3 307 r/w 149 IPC Guilty 7 years R.I along with fine of Rs.5000/- i/d 6 months R.I.each The sentences are ordered to run concurrently. 2. The short fact necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 was the resident of Gorimedu Nellikadu Mariamman koil Street. On 31.10.2004, P.Ws. 2 and 5 went to Rohini theatre, at Chinnathirupathi to witness a film. During interval, Appu hit on P.W.5 and the same was questioned by P.Ws.2 and 5. At that time, the said Appu and others had beaten them. Immediately, P.Ws. 2 and 5 went home and informed it to P.W.1 at about 9.15 p.m. On hearing this, P.W.1 along with P.Ws. 2 and 5, P.Ws. 3 and 4 and the deceased went to the theatre and they were waiting outside the northern gate of the Rohini theatre. After the film was over, A1 to A4 and the juvenile accused in whose respect the case was split up, came out of the theatre. The deceased Karthikeyan questioned A1 why they had beat P.Ws. 2 and 5. Immediately, A1 asked the other accused to catch hold of the deceased. A2 and A3 caught hold of the deceased and A1 took a knife and stabbed him twice on the stomach. When P.W.4 intervened, he was caught hold by A4 and the juvenile accused and the other https://hcservices.ecourts.gov.in/hcservices/ accused by name Negro @ Jayakumar stabbed him. When there was distress cry and crowd gathered, all the accused fled away from the place of occurrence. (b) The deceased was first taken to Salem Medical Centre at 10.30 p.m. where P.W.10 doctor, after giving initial treatment told the witnesses to take the severely injured Karthikeyan to the Government Hospital since his condition was very critical. Thereafter, he was taken to Shanmuga Hospital where he was treated by P.W.11 doctor, at 11.30 p.m. where the doctor advised the witnesses to take him to the Government Hospital. Accordingly, the other witnesses took him to the Government Hospital, Salem, where he was declared dead at about 12.30 a.m. (c) P.W.4 was taken to Salem Ruthramoorthy Hospital where P.W.12-doctor gave initial treatment and the doctor asked the witnesses to take him to the Government Hospital. The accident register copy in respect of P.W.4 was marked as Ex.P.11. (d) P.W.1 proceeded to Hasthampatti Police Station and gave Ex.P1, report to P.W.16 Sub- Inspector of Police. On the strength of Ex.P1, report, a case came to be registered in Crime No.1962/2004. under sections 147, 148, 341, 307 and 302 I.P.C. The F.I.R. Copy, Ex.P.21 was dispatched to Court. (e) On receipt of the copy of F.I.R., P.W.18 Inspector of Police took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar Ex.P.2 and also drew a rough sketch Ex.P.25. The dead body was photographed through P.W.14 photographer. The photographs and the negatives were marked as Exs.P15 & P16 series respectively. Following the inquest made on the dead body, the investigating officer prepared Ex.P.26, inquest report in the presence of witnesses. (f) The dead body was subjected to post mortem. P.W.17- doctor, attached to Government Hospital, Salem conducted autopsy on the dead body of the deceased Karthikeyan and gave his opinion in Ex.P.24, post mortem certificate that the deceased died out of shock and haemorrhage due to stab injury to right lung and liver. (g) Pending investigation, A1 and the juvenile accused were arrested and they gave confessional statement and the same was recorded. The admissible part of the confessional statement of A1 was marked as Ex.P.5, pursuant to which he produced a knife and a blood stained shirt which were recovered under a cover of mahazar. The other accused A2, A3 and A4 were also arrested and they were also sent for judicial remand. All the material objects recovered from the place of occurrence, from the dead body and also the material objects recovered from the accused which were produced pursuant to the confession statement were subjected to chemical analysis which brought forth two reports viz., chemical report Ex.P19 and the serologist report Ex.P.20. On completion of the investigation, the investigating officer filed a final order. (h) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 18 witnesses and relied https://hcservices.ecourts.gov.in/hcservices/ in 26 exhibits and 14 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under section 313 Cr.P.C. They denied them as false. No defence witness was examined. The Court heard the arguments advanced on either side and took the view that the prosecution has proved its case beyond reasonable doubt and found the accused guilty and rendered the judgment of conviction and sentence as referred to above. Hence, these appeals at the instance of A2 and A4. 3. Advancing the argument on behalf of the appellants, learned counsel would submit that in the instant case, P.Ws. 1 to 6 were shown as eye-witnesses. As per the prosecution, P.Ws. 2 and 5 went to Rohini theatre to witness a film and during the interval at 8.30 p.m., they were attacked by the accused and they came home and reported to P.W.1 and P.W.1 along with 5 others and the deceased went to the theatre to question the conduct of the accused and thus, the incident had taken place. If really such and incident had taken place at 8.30 p.m., in which P.Ws.2 and 5 were attacked, they would have gone to the Police Station and would have given a complaint but no such complaint was given. The prosecution has come with a story as if P.Ws. 2 and 5 have gone to the house of P.W.1 and reported to him. 4. Learned counsel would further add, in the instant case, according to the prosecution, Karthikeyan was stabbed to death at 10.30 p.m. in front of the northern gate of Rohini theatre, at the time, when the film was over. If to be so, there should have been number of independent witnesses available. But in the instant case, not even one independent witness was examined. It is claimed by the prosecution witnesses that the severely injured karthikeyan was taken to the Medical Centre at about 10.30 p.m. where the witnesses were advised to take the deceased karthikeyan to the Government Hospital but they did not do so, instead they have taken him to the Shanmugam Hospital at 11.30 p.m. and there, they were advised to go to the Government Hospital and only thereafter, they took him to Government Hospital Salem where he was declared dead at 12.30 a.m. Therefore, there was an intervening period of 2 ½ hours. The condition of Karthikeyan was so serious when the witnesses were advised by the doctor of Medical Centre. If really such an incident had taken place, they would have taken him to the Government Hospital immediately, but they have not done so. This would clearly indicate the fact that these witnesses would not have seen the occurrence at all. 5. It was not the case of the prosecution that they attacked P.W.2 or P.W.5 with any weapon but they have only beaten them with hands. It is also further claimed by the prosecution that P.Ws. 2 and 5 came to the house of P.W.1 and informed him what had happened in the theatre. Immediately, P.W.1 along with 5 others went to the https://hcservices.ecourts.gov.in/hcservices/ theatre. Thus, the prosecution witnesses were the aggressors at the time when the occurrence had taken place. 6. It is a matter of surprise to note that two of the accused were having knife at the time which was thorough unbelievable and unacceptable. Even the medical evidence canvassed did not support the ocular testimony. The arrest, confession statements and pursuant to the confessional statements, recoveries were made, were all nothing but cooked up story to strengthen the prosecution case. 7. The learned counsel would submit that insofar as P.W.4 was concerned, there was an attempt made to murder him but the accused who stabbed him actually died, pending trial. The charges levelled against that accused stood abated. Insofar as the appellants/A2 and A4 are concerned, the case of the prosecution is that A2 caught hold of the deceased and he was actually on the same footing along with A3. On an earlier occasion, this Court considered the appeal filed by A3 on the merits of the matter and acquitted him. Except the above said allegation, nothing is further submitted by the prosecution as far as A2 was concerned. Insofar as A4 was concerned, the case of the prosecution is that he actually caught hold of P.W.4 but in the earlier appeal referred to above, the evidence of P.W.4 was rejected since P.W.4 was unable to identify, either the person who attacked him or the person who caught hold of him. Once the evidence of P.W.4 was not believed then the act alleged to have been done by A4 is also not acceptable. Hence, the appellants are entitled for acquittal in the hands of the Court. 8. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 9. It is not in controversy that one Karthikeyan, following the incident that had taken place at the place as putforth by the prosecution, was taken to Medical Centre and thereafter, to Shanmugham Hospital and thereafter, to the Government Hospital, Salem where he was declared dead at 12.30 a.m. on the date of occurrence. Following the investigation made by P.W.17 Inspector of Police, the dead body was subjected to post mortem and the post mortem. P.W.17 doctor who conducted autopsy has deposed before the Court as a witness and has also given opinion through the contents of the post mortem certificate Ex.P.24 that the deceased Karthikeyan died out of homicidal violence. The fact that Karthikeyan died out of homicidal violence was never questioned by the appellants before the trial Court. Hence, no impediment is felt by this Court in recording so. 10. In order to substantiate the act of the accused/appellants, the prosecution has marched P.Ws 1 to 6 as eye witnesses. As could be seen from the available materials, originally, there was an https://hcservices.ecourts.gov.in/hcservices/ incident that had taken place at 8.30 p.m. inside Rohini theatre at Chinnathirupathi, Salem in which P.Ws. 2 and 5 were beaten by the accused party. Thereafter, P.Ws. 2 and 5 approached P.W.1 and informed him about the incident and after hearing the same, P.W.1 accompanied by P.Ws. 2 and 5 along with the deceased and others went to the theatre and they were waiting till the accused come out of the theatre and they question them about their conduct. When we visualise such a situation, it would be quite clear that P.Ws. 1 to 5 and the deceased went to the theatre to question the same and when the accused came out of the theatre, they would have quarrelled with them and in that process, the occurrence had taken place. The witnesses have spoken in one voice that it was A1 who stabbed the deceased on the stomach twice. At this juncture, the contention putforth by the learned counsel for the appellants that such an occurrence at 10.30 p.m. in front of the theatre in which Karthikeyan was attacked could not have taken place at all, cannot be accepted. It is true that the severely injured Karthikeyan was originally taken to Medical Centre, Salem and thereafter, he was treated by P.W.10 doctor who has categorically deposed before the Court. Insofar as the treatment given in Shanmuga Hospital is concerned, P.W.11 doctor has been examined and he has also spoken to the fact. Thereafter, the said Karthikeyan was declared dead in the Government Hospital, Salem. All put together would clearly indicate that the severely injured Karthekeyan was taken to the Medical Centre,thereafter, he was taken to Shanmuga Hospital and then to the Government Hospital, Salem. Therefore, the contention put forth by the learned counsel for the appellants that Karthikeyan could not have been stabbed in the incident as putforth by the prosecution, cannot be countenanced. 11. Added further learned counsel, it is true that there was a delay in registering the F.I.R. The occurrence had taken place at 10.30 p.m. and P.W.1 has given Ex.P1 report to P.W.16 Sub Inspector of Police at Hasthampatti Police Station at 12.30 a.m. and thereafter,a case came to be registered. It is true that the place of occurrence is not far away from the Police Station. It is pertinent to point out that when the witnesses were to save the life of their friend and in their attempt to safe life, they took him to different hospitals and one cannot expect them to go to the police station immediately and give a complaint. Hence,in that process, the delay has naturally occurred. Therefore, the said delay, in the considered opinion of the Court, will in no way take away the truth of the prosecution case. 12. As could be seen from the available materials, it was A1 who stabbed the deceased, as a result, he died. Insofar as P.W.4 is concerned, he was severely injured and the Accident Register copy is that regard was marked as Ex.P.11. But insofar as P.W.4 was concerned, he was unable to identify either the person who attacked https://hcservices.ecourts.gov.in/hcservices/ him or the person who caught hold of him. Hence, his evidence in toto is not acceptable. 13. It is true that identification parade has taken place and this identification parade did not bring home any useful result as expected by the prosecution. Thus, as rightly pointed out by the learned counsel for the appellants, at the time of occurrence A2 caught hold of the deceased and A4 caught hold of P.W.4 to facilitate the crime, cannot be taken as true, on consideration of the facts and circumstances of the case. 14. This Court had an occasion to consider the appeals putforth by A1 in Crl.A.No.1081/2007 and A3 in Crl.A.1102/2007. On considering the merits of the matter, A3 was acquittal of the charges levelled against him and in respect of A1, the conviction and sentence are modified from that of Section 302 IPC and awarding life imprisonment to that of Section 304(1) IPC and awarded 7 years rigorous imprisonment and in respect of other charges, A1 was acquitted. 15. As rightly pointed out by the learned counsel, insofar as A2 was concerned, the only allegation made against him was that he caught hold of the deceased. Insofar as A3 was concerned, the Court had occasion to consider the case of A3 and acquitted him. The Court is of the opinion that A2 was also on the same footing as that of A3 and the charges against him was not proved by the prosecution and he has got to be acquitted. Insofar as A4 is concerned,the evidence of P.W.4 was not believed by the Court. The only allegation against A4 is that he caught hold of P.W.4. It is true the medical opinion was canvassed through Ex.P11, accident register copy in respect of the injuries sustained by P.W.4 but this Court did not accept the ocular testimony of P.W.4. So long as the evidence of P.W.4 is not acceptable, the medical opinion canvassed to whatever extent it may be, it cannot be accepted. Hence, A4 is also entitled for acquittal. 16. Accordingly, the criminal appeal is allowed, setting aside the conviction and sentence imposed on the appellants/A2 and A4 by the court below. The appellants/A2 & A4 are acquitted of the charges levelled against them. They are directed to be released forthwith unless their presence are required in connection with any other case. The fine amount if any paid by the appellants is ordered to be refunded to them. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ vsi To 1. The First Additional Sessions Judge, Salem. 2. -do- Through The Principal Sessions Judge, Salem. 3. The Inspector of Police, Hasthamptti Police Station, Salem District. 4. The Superintendent, Central Prison, Salem. 5. The District Collector, Salem. 6. The Director General of Police, Santhome, Madras. 7. The Public Prosecutor, High Court, Chennai. 1 cc To Mr.S.Suresh, Advocate, SR.70165. CRL. APPEAL No.696 of 2009 PUR(CO) RVL 07.01.2010 https://hcservices.ecourts.gov.in/hcservices/