Bail Slip The Appellant/ Accused No.4 Viz R. Marimuth S/o Palainpandi was directed to be released on bail as per the order of the Court dated 30.9.2008 in crl M.P.No.1 of 2008 in Crl.A.No.711 of 2008. The Appellant/Accused No.5 Viz S. Manikandan, S/o Subramani was directed to be released on bail as per the order of the Court dated 4.01.2008 in Crl M.P.No.1 Of 2007 in Crl.A.No.1151 of 2007. The Appellant/Accused No.6 Viz Jeyachandran, S/o Vivekanathan was directed to be released on bail as per the order of the Court dated 11.09.2007 in crl.M.P.No.1/2007 in Crl. A.No.794 of 2007. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.07.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRIMINAL APPEAL Nos.711 of 2008 , 794 and 1151 of 2007 Marimuthu .. Appellant in C.A.No.711/2008/ Accused No.4 Manikandan .. Appellant in C.A.No.1151/2007/ Accused No.5 Jeyachandran .. Appellant in C.A.No.794/2007/ Accused No.6 Vs. State by Inspector of Police, Vadavalli Police Station, Coimbatore. (crime No.478 of 2006) .. Respondent in all the appeals/ Complainant https://hcservices.ecourts.gov.in/hcservices/ These appeals are preferred under Section 374 Cr.P.C against the order of the learned Additional District and Sessions Judge, Fast Track Court No.2 at Coimbatore made in S.C.No.14 of 2007 dated 25.6.2007. For Appellant in Crl.A.No.711/2008 : Mr. S.Nambi Arooran For Appellant in Crl.A.No.1151/2007 : Mr. R.Sankarasubbu for Mr.Rajanikanth For Appellant in Crl.A.No.794/2007 : Mr. Shanmughavelayutham Senior Counsel for Mr.P.Ramraj For Respondent : Mr.N.R.Elango,A.P.P. - - - - COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM. J.) These three criminal appeals concentrate in challenging the Judgment of the Additional Sessions Division, Coimbatore in S.C.No.14 of 2007 whereby the appellant/A6 in Crl.A.No.794/2007, the appellant/A5 in Crl.A.No.1151/2007 and the appellant/A4 in Crl.A.No.711/2008 along with three other accused/A1 to A3 stood charged tried and found guilty and awarded punishments as follows: ACCUSED CHARGES FINDING PUNISHMENT A-1 to A6 148 IPC. Guilty 1 year R.I. along with fine of Rs.500/- i/d 3 months S.I. each A-1 324 IPC Guilty 1 year R.I along with fine of Rs.500/- i/d 3 months S.I. A-2 324 r/w 149 IPC Guilty 1 year R.I. along with fine of Rs.500/- i/d 3 months S.I. A-1 & A-2 341 r/w 149 IPC Guilty 1 months R.I. along with fine of Rs.100/- i/d 1 week S.I. each https://hcservices.ecourts.gov.in/hcservices/ ACCUSED CHARGES FINDING PUNISHMENT A-1 & A-2 302 IPC Guilty Life Imprisonment along with fine of Rs.1000/- i/d one year R.I. each A-3 to A-6 341 r/w 149 IPC Guilty 1 month R.I. along with fine of Rs.100/- i/d 1 week S.I. each A-3 to A-6 302 r/w 149 IPC Guilty Life Imprisonment along with fine of Rs.1000/- i/d one year R.I. The sentences are ordered to run concurrently. 2. The short facts necessary for the disposal of these appeals can be stated thus: (a) P.W.1 is the brother and P.W.2 is the relative of the deceased Mayakumar. They were residents of Tuticorin. During the relevant time, Mayakumar was employed at K.G. Mill and he used to go for work during day time and during night time he was working as a Watchman in Krishna School. P.W.1 was also staying in the room where Mayakumar was staying. Mayakumar had illicit intimacy with one Kumudha. This came to the knowledge of Jaya, wife of Mayakumar, due to which, often there was quarrel between them. At one stage, Mayakumar took Kumudha and went to his native place Pudupatti. On coming to know about the same, Jaya, wife of Mayakumar gave a complaint in the All Women Police Station, Srivaikundam which was treated as C.S.R.S.No.56/2006. P.W.10 Sub-Inspector conducted enquiry and Mayakumar gave assurance that he would live with her and hence, the enquiry was closed. The said proceedings was marked as Ex.P15. Contrarily, Mayakumar filed a divorce O.P. before the Civil Forum, Tuticorin. Summons were served upon Jaya, wife of Mayakumar. On 28.7.2006 at 8.00 a.m., Mayakumar went for his work at K.G. Mills. On that day, Jaya wife of Mayakumar went to K.G. Mills and was standing in front of the Mill from morning till evening. P.W.16, Security Guard, inquired her, for that, she replied that her husband was working inside the Mill and that she was waiting for him. Some time later, Mayakumar came out in a cycle. Jaya caught hold of his shirt and quarreled with him. At that time, P.W.1 and P.W.2 intervened and pacified them. She gave a complaint Ex.P25 at Vadavalli Police Station which was enquired by P.W.18. Since Mayakumar informed that a divorce case was pending before the Civil Forum at Tuticorin, P.W.18 told them that they should get remedy https://hcservices.ecourts.gov.in/hcservices/ before the Court of Civil law. While leaving the place, Jaya made a challenge that she would see to him. (b) On 29.7.2006 Mayakumar went for his job and returned by 10.00 p.m. and slept along with P.W.2. At about 11.00 p.m., on hearing the knock of the door, P.W.2 opened the door and saw A1 and A2 along with four others. A1 asked P.W.2, where his brother-in- law was, at that time, Mayakumar also woke up and came out of the house. On seeing him, A1 asked him "Why are you beating my sister?", saying so, he attacked the deceased with aruval on his shoulder, then the accused dragged the deceased to the nearby bush and A1 and A2 attacked him severely on different parts of the body and when P.W.2 intervened, it was A2 who cut him and A2 also sustained injuries. When A3 made a cut, the aruval fell down and in that process, A1 sustained injuries. When there was distress cry, all the accused fled away from the place of occurrence. P.Ws. 1 and 2 were in fear and hence, they went inside the house and did not come out throughout the night and only on the next day morning P.W.1 gave a complaint Ex.P.1 to P.W.20. (c) On the strength of the complaint Ex.P1 given by P.W.1, a case came to be registered in Crime No.478/2006 under section 302 I.P.C. The express F.I.R. Ex.P30 was dispatched to Court and the copy was served on to P.W.21 Inspector of Police of that circle. P.W.21 Investigating Officer, took up investigation, proceeded to the spot, made an inspection in the presence of witnesses and panchayatdars, prepared the observation mahazar Ex.P31 and also drew a rough sketch Ex.P32. He conducted inquest on the dead body of the deceased and prepared Ex.P33 inquest report. He also recovered all the material objects from the place of occurrence including the blood stained earth and sample earth. Thereafter, the dead body was subjected to post mortem. (d) P.W.9, doctor attached to the Government Hospital, Coimbatore conducted autopsy on the dead body of the deceased Mayakumar and issued post mortem certificate Ex.P.14 wherein he has given opinion that the deceased would appear to have died of shock and haemorrhage due to multiple injuries sustained on him. Thereafter, P.W.9. doctor examined P.W.2 and gave the wound certificate Ex.P6. (e) Pending investigation, it was A3 who was first arrested on 2.8.2006. He gave confessional statement and the admissible part was marked as Ex.P35 pursuant to the confession, he produced M.O.8 shirt which was recovered under a cover of mahazar. Further, he identified A4 to A6 and they were all arrested. A6 gave confession statement and the admissible part was marked as Ex.P36. He also produced shirt M.O.10 and iron rod M.O.4 which was also recovered under a cover of mahazar. A4 gave confessional statement and the admissible part of the same was marked as Ex.P38 and he produced the https://hcservices.ecourts.gov.in/hcservices/ shirt and iron rod and the same were recovered under a cover of mahazar-Ex.P18. A5 and A6 gave confessional statement and A5 produced shirt and iron rod which were recovered under a cover of mahazar Ex.P.19. Thereafter, all the accused were sent for judicial remand. (f) Identification parade was conducted by P.W.19 Judicial Magistrate pursuant to the orders of the Chief Judicial Magistrate of that said place. So far as A3 to A6 were concerned, they were identified by P.Ws.1 to 3. The proceedings of the identification parade was marked as Ex.P29. (g) A2 was arrested on 9.8.2006. He gave confessional statement voluntarily and the admissible part was marked as Ex.P20. He produced M.O.1 aruval. Following the same, A1 was arrested. He gave confessional statement and the admissible part was marked as Ex.P22. Pursuant to which M.O.2 aruval was recovered. The accused were sent for judicial remand. All the material objects were subjected to chemical analysis by the Forensic Department which resulted in two reports and they were also placed before the Judicial Magistrate Court. On completion of the investigation, the investigating officer filed a final report. (h) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges leveled against the accused, the prosecution examined 21 witnesses and relied on 39 exhibits and marked 15 material objects. 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 and they denied them as false. No defence witness was examined. The lower Court heard the arguments advanced on either side, considered the materials available on record and the submissions made on either side and took a view that the prosecution has proved its case beyond reasonable doubt and found the appellants guilty along with the three other accused and rendered the judgment of conviction and sentence as referred to above which was challenged by the appellants/A4to A6 in these appeals. 3. Advancing the argument on behalf of the appellants Mr.Shanmughavelayutham, learned Senior counsel inter alia made the following submissions. (a) In the instant case, the specific case of the prosecution is that the occurrence had taken place at 11.00 p.m. on 29.7.2006. P.Ws. 1 to 3 are the eye witnesses. P.W.1 is the brother and P.Ws.2 & 3 are the close relatives of the deceased. They have actually seen the heinous crime of murder of Mayakumar but have given a report to the police station which is situate nearby to the place of occurrence only the next morning at 6.30 a.m. There was a huge delay in giving the report. The explanation which was tendered before the trial Court is that they were under the grip of fear and hence, they did not go https://hcservices.ecourts.gov.in/hcservices/ to the Police station which is unbelievable and unacceptable. (b) The learned counsel further submitted that according to the prosecution, P.W.1 went to the police station at about 6.30 a.m. and gave a report Ex.P1 to P.W.20 Sub Inspector of Police. Ex.P1 would clearly indicate the names of A1 and A2 along with other four persons, but the names of the other four persons were not mentioned. The case was also registered under section 302 I.P.C. and the evidence of P.W.20 would clearly indicate that when Ex.P1 was prepared, only two accused names were mentioned and the other four accused names were not mentioned. He has also categorically deposed that it was surprise to him to look into the F.I.R. where the names of all the six persons were mentioned, when originally only the names of A1 and A2 were mentioned and the names of other four persons were not mentioned. Had it been true that originally six accused names were mentioned in the F.I.R., the other provisions of sections viz., 149, 147 would have been added, but not done so. (c) The learned Senior counsel pointing to the evidence of the Investigating Officer would submit that the Investigating Officer has categorically admitted that when he received Ex.P1- copy of the F.I.R. the names of only two accused were found and the other accused names were not found there but the FIR copy which was shown to him before the Court contains all the six names which was a surprise to him and he could not explain how it happened. Learned Senior counsel further pointed out that in the FIR originally, the names of two accused/A1 and A2 were mentioned and the names of A4, A5 and A6 apart from A3 are later introduced. The prosecution had no explanation to offer as to how the names got introduced in the F.I.R. On the contrary, the evidence of P.W.20 and P.W.21 would put an end to the prosecution case in respect of these appellants. (d) Added further learned counsel, in the instant case, identification parade was conducted. When P.Ws. 1 to 3 and the accused came for the first time, no identification parade was conducted. Only on the second time, identification parade was conducted. Though the witnesses were summoned, no proper explanation was tendered by the prosecution why on the first occasion, identification parade was not conducted. Actually, the first occasion was utilised by the Investigation Officer to identify the accused by the witnesses. Added further, in so far as the identification proceedings is concerned, they cannot be given any evidentiary value for the simple reason that when identification parade conducted in respect of A3 to A6, A3 was shown as A1, A4 was shown as A2, A4 was shown as A3. Therefore, this identification parade would be only as against the prosecution case. (e) Added further learned counsel, P.W.2 was not only the eye witness but also injured witness. In the earliest document, Ex.P6 Accident Register given by P.W.7 doctor who examined P.W.2 it is https://hcservices.ecourts.gov.in/hcservices/ shown that P.W.2 informed to the doctor that he sustained injuries when he was assaulted by six known persons with aruval at 11.00 p.m on 29.7.2006. If this statement made by A2 was correct, all the six persons names would have mentioned in the original report but it contained only two names and the other four names were not mentioned. Therefore, two F.I.R. should have been registered and the first F.I.R. was not before the Court. In the second F.I.R., all the accused names were shown. Hence, the entire story of the prosecution is false. (f) The learned counsel as the last line of argument would submit that the appellants before the Court who are shown as A4, A5 and A6 were actually not on the same footing. A1 and A2 have not appealed against the judgment of the trial Court. As far as these appellants are concerned, the prosecution has neither any evidence to offer nor there is case as against these appellants. Under such circumstances, the appellants are entitled for acquittal in the hands of the Court. 4. The learned counsel appearing for the other appellants adopted the above arguments advanced by the learned Senior counsel. 5. The Court heard the learned counsel appearing for the State and paid its anxious consideration on the submissions made. 6. It is not in controversy that following the inquest made in the dead body of one Mayakumar, the same was subjected to post mortem. P.W.9 doctor who conducted autopsy on the dead body of the deceased gave his categoric opinion as witness before the Court and also in the post mortem certificate Ex.P.14 that the deceased would appear to have died of shock and haemorrhage due to multiple injuries sustained on him. The fact that Mayakumar died out of homicidal violence was never disputed by the appellants at any stage of the proceedings. Hence, it could be safely recorded that Mayakumar died out of homicidal violence. 7. In order to substantiate the charges leveled against these appellants, three in number, shown as A4, A5 and A6 along with the other three accused, the prosecution marched three witnesses as eye witnesses. Out of these three witnesses, P.W.2 was the injured witness. The Court is mindful of the caution made by the Apex Court and the settled principles of law that in a given case if the eye witness is shown as injured the Court should not discard his evidence unless strong circumstances or reason are noticed. In the instance case, on scrutiny of the evidence available, the court is afraid whether it could sustain the judgment of conviction and sentence entered by the court below. 8. According to the prosecution, the occurrence had taken place at about 11.00 p.m. on 29.7.2006. The person who was actually murdered was the own brother of P.W.1 and the close relative of https://hcservices.ecourts.gov.in/hcservices/ P.Ws.2 & 3. According to the prosecution A1 and A2 were armed aruval and the other accused, four in number, were actually standing by their side armed with iron rods. Even after seeing the cold blooded murder, the report was given to the police station at 6.30 a.m., the next morning. The explanation tendered by the prosecution side that they were under the grip of fear, hence, they did not go to the police station till morning, cannot be accepted for the reason that when such heinous crime has taken place, and the police station is situate nearby, a reasonable conduct of the witness is to rush to the police station or to seek the help of others but the witnesses went inside the house and locked and waited till dawn and gave the complaint, could not be believed. P.W.2 was taken to the hospital and he was given treatment. Ex.P6 is the accident register in that regard which reads " Alleged to have sustained injury while being assaulted by 6 known person with (knife) mhpths; at about 11.00 p.m. on 29.6.2007 at the above address." From this statement contained in Ex.P6, it could be taken that all the six persons were known to him. According to the prosecution, P.W.1 went to the respondent police station and gave Ex.P1 report which shows that "KUfd;. GhyfpUc&;z;d. Kw;Wk; 4 ngh;fSld; te;J.... ". Now at this juncture, the contentions putforth and critisized by the learned counsel for the appellant are to be considered. 9. As per the evidence available it would clearly indicate that Ex.P1 reached the Court at 4.00 p.m. and the Judicial Magistrate has initialed therein. Ex.P1 report and the F.I.R. which was actually before the Court and initialed by the Magistrate are found to be different. It is needless to say that a case would be registered by the police and would be assigned crime number only on the strength of the complaint given by a party. In the instant case, the prosecution has not given up Ex.P1. According to P.W.1, Ex.P1 was the report given by him. A perusal of Ex.P1 report would indicate that the names of A1 and A2 alone were mentioned and the names of the other accused were not mentioned but the F.I.R. what is now relied on by the prosecution shows the names of six accused. The duty is cast upon the prosecution to explain as to how the names of the other four accused came to be included in the F.I.R. and why they were not found in Ex.P1 report, but the prosecution has not discharged its duty by explaining the same. On the other hand, the evidence placed by the prosecution through P.W.20 Sub inspector of Police who registered the case and P.W.21 who conducted the investigation were actually against the prosecution. 10. According to P.W.20, P.W.1 came to the police station and gave a report and the same was reduced into writing i.e., Ex.P1. Further, he was surprised to note that in the F.I.R. placed before the Court, the names of the other four accused were also mentioned. He could not say how and under what circumstances, they were actually added. The evidence adduced by P.W.21 Investigating Officer, further worsen the prosecution case. According to him, when https://hcservices.ecourts.gov.in/hcservices/ he got a copy of F.I.R. concerned to Ex.P1, it contained two accused names and the other accused names were not mentioned at all, but the F.I.R. shown in Court contains six names and he did not know how the names of the other four accused crept in. All put together would show that the F.I.R. originally prepared was not produced before Court and what was actually in the hands of the Sessions Court was the F.I.R. which was subsequently prepared and the original F.I.R. prepared by the police was suppressed and not placed before the trial court. 11. It has to be further pointed out that the identification parade conducted by P.W.19 Judicial Magistrate pursuant to the order of the Chief Judicial Magistrate was not helpful to the prosecution. P.Ws. 1 to 3 were summoned for identification parade to identify A3 to A6. Identification parade of A1, A2, A3 and A4 was conducted but no where it was pertaining to A3 to A6. Under such circumstances no reliance could be placed on such identification proceedings. 12. As rightly pointed out by the learned counsel for the appellants, these appellants were actually not on the same footing as that of A1 and A2. At last, it has to be pointed out that the names of these appellants were not available in the original Ex.P1 but it was subsequent addition. It remains to be stated, according to the prosecution witnesses, these accused were holding iron rods. When A1 and A2 attacked the deceased, these accused were all standing nearby as passive spectator though holding iron rods which looks unnatural and it is not a case where the court could record a finding that the accused persons have acted in furtherance of common object. All would show that the prosecution miserably failed to prove its case to bring home the guilt of the appellants/A4, A5 and A6 before this Court. Hence, the appellants are entitled for acquittal. 13.Accordingly, the criminal appeals are allowed, setting aside the conviction and sentence imposed on the appellants/A4, A5 and A6 by the court below. The appellants are acquitted of the charges leveled against them. The bail bonds if any executed by the appellants shall stand terminated and the fine amounts if any paid by them is ordered to be refunded to them. vsi Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. THE JUDICIAL MAGISTRATE NO.II, COIMBATORE. 2. THE JUDICIAL MAGISTRATE NO.VI, COIMBATORE. 3. -DO-THROUGH THE CHIEF JUDICIAL MAGISTRATE, COIMBATORE. 4. THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAST TRACK COURT NO.II, COIMBATORE. 5. THE SUPERINTENDENT, CENTRAL PRISON, COIMBATORE. 6. THE INSPECTOR OF POLICE VADAVALLI POLICE STATION COIMBATORE DISTRICT 7. THE DIRECTOR GENERAL OF POLIC, MYLAPORE, CHENNAI 004. 8. THE DISTRICT COLLECTOR, COIMBATORE. 9. HE PUBLIC PROSECUTORE, HIGH COURT, MADRAS. + 1 cc to Mr. P. Samvel Gunasingh, advocate SR.28527 + 1 cc to Mr. S. Rajanikanth Advocate SR.28682 +1 cc tp Mr. S. Nambiarooran advocate SR.28955. Crl.Nos.711 of 2008, 794 and 1151 of 2007 EV(CO) EU24.7.2009. https://hcservices.ecourts.gov.in/hcservices/