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.235 OF 2009 1. Manikandan 2. Ayakkudi Maraiappan @ Marimuthu 3. Panneerselvam 4. Theni Mariappan @ Palanisami 5. Kandasami 6. Masani @ Masanimuthu 7. Nagarajan .. Appellants/ Accused Vs. State rep. by Inspector of Police, Kottur Police Station. Coimbatore (Dt.,) (Crime No.28/2006) .. Respondent/ Complainant This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Additional District and Sessions Judge, Fast Track Court No.2, Coimbatore made in S.C.No.119 of 2008 dated 18.11.2008. For Appellants : Mr.T. Munirathnam Naidu for A1,A2, A4 to A7. Mr. G.Ponnambala Thiyagarajan for A3. For Respondent : Mr.Babu Muthu Meeran, APP JUDGMENT (The judgment of the Court was made by V.PERIYA KARUPPIAH, J.) This appeal is directed against the judgment of the Additional District and Sessions Judge made in S.C.No.119 of 2008 dated 18.11.2008 where by the accused A1 was found guilty of offence u/s. 148,341,302 I.P.C, A6 was found guilty of offence u/s. 148 302 https://hcservices.ecourts.gov.in/hcservices/ I.P.C and the accused 2,3 and 8 were found guilty of offence u/s. 147,341,302 r/w. 149 I.P.C, the accused 4 and 5 were found guilty of offence u/s. 147,302 r/w. 149 I.P.C and A7 was found guilty of offence u/s. 148, 302 r/w. 149 I.P.C. The lower court found A8 not guilty of any offence charged against him. 2.The brief facts necessary for the disposal of the appeal would be as follows: (a) P.Ws.1 to 4 are the occurrence witnesses and out of them P.W.1 and 2 are the parents of the deceased. P.W.5 is a washerman and P.W.6 is the brother of the deceased. P.W.7 and 9 are the V.A.Os P.W.8 is the sweeper, P.W.10 is an agriculturist in Vedachandur village. P.W.11 is the cycle shop owner. P.W.12 is acoconut merchant. P.W.13,14 and 15 are the agriculturists of Angalakurichi village. P.W.16 is the lineman in Malayandi pattinam. PW.17 is the V.A.O of Pongaliyur Village. P.W.18 is the Doctor and P.W.19 is the retired Deputy Collector, P.W.20 is the cycle stand owner and PW.21 is the photographer, P.W. 22 and 23 are the head constables, P.W.24 is the head clerk and P.W.25 is the Sub Inspector P.W.26 is the Judicial Magistrate and P.W.27 is the Investigating Officer. (b) The victim was the son of P.Ws.1 and 2 and brother of P.W.6. The case of the prosecution would be that the deceased Sakthivel had constructed Veeramathiyamman-Karupparayan temple at Angalakurichi and the accused had raised dispute for obstructing the way and road for the said temple and there were dispute between the deceased and the accused persons. The persons in and around that area had caused public nuisance near the temple and so the deceased Sakthivel raised a wall around the temple for the purpose of keeping the said temple clean. The persons in that area wanted space for having the pathway and hence they complained to the Tahsildar and the Sub-Collector, Pollachi, who had also passed orders there on and on that basis of the Village revenue records and the V.A.O certificate- Ex.P.16. As per documents, it was found that the pathway belong to the villagers was blocked and the deceased Sakthivel was directed to remove the said wall put up around the temple and on that dispute the accused persons and the deceased Sakthivel grew enmity. (c) In the meantime on 21.02.2006, during midnight the accused demolished the said wall. On the next day, 22.02.2006, P.W.1, P.W.2 and the deceased Sakthivel went to the Tahsildar and questioned about the demolition of the entire wall, for which A5 told P.W.1 to get lost with his son otherwise, they would demolish the temple itself. P.W.1 and P.W.2 had pacified Sakthivel and took him with them to the bus stop to catch the bus towards Kottur at Angalakurichi bus stand. On the same day at about 05.00 p.m the https://hcservices.ecourts.gov.in/hcservices/ accused A1 to A8 assembled together and on seeing them the deceased Sakthivel had attempted to run away and the accused had chased him and hit with a coconut stick and attacked with koduval. When the deceased Satkhivel had prevented the attack, he was pulled down by A1 and had stabbed him with knife on the chest of Sakthivel and left the knife in his body. Thereafter all the accused had taken soda bottle from the nearby bakery and the accused 2 and 7 had attacked him and cut on the head of Sakthivel with koduval. Due to the injuries caused with knife, koduval knife and knife with the wooden handle and coconut stick produced as M.Os.1 to M.O.4 respectively Sakthivel died on the spot. (d) Immediately, P.W.1 had given a complaint at Kottur Police Station to the Sub Inspector of Police and the complaint was registered in Cr.No.28/2006 u/s. 147,148,341,323,324 and 302 I.P.C and an Express F.I.R-Ex.P.23 was immediately despatched to Judicial Magistrate No.2, Pollachi and Investigating Officer inspected the scene of occurrence at 07.45 p.m and found the deceased Sakthivel was laid down with knife. He had prepared Observation Mahazar and Rough Sketch and had arranged for taking photographs of the dead body of Sakthivel at the scene of occurrence. Thereafter he had conducted inquest and for that he examined various witnesses and prepared Ex.P.29 Inquest Report. He had also examined P.Ws.1, 2 and 4 and the witnesses Manikandan, Kalimuthu and recorded their statement. He has sent the dead body of Sakthivel for autopsy with a requisition through the Head Constable P.W.23 and the autopsy was done by the Doctor P.W.18 on 23.02.2006 by 11.10 a.m and had found that the death of Sakthivel was due to the injuries sustained by him and also due to the profused bleeding and shock over the injuries. The said Post Mortem Certificate was produced as Ex.P.19. Investigating Officer subsequently collected M.Os.6 to 13 from the scene of occurrence in the presence of witnesses and examined witnesses and recorded their statement. The Investigating Officer had also seized the knife embedded on the chest of the deceased Sakthivel from the Post Mortem Doctor. Thereafter he handed over the body of Sakthivel to the relatives and had collected M.Os.16 to 19 the clothes worn by him from the body of deceased and after examining the other witnesses and recording their statements handed over the material objects to the court and arrested A5 and A6 in the presence of P.W.8 and recorded their confession statements and on the basis of the confession leading to recovery was also recorded and on that basis A6 had identified and taken M.O.2 Koduval and the Investigating Officer seized the weapons through Seizure Mahazar. He had also identified the place where A4 destroyed the shirt of the deceased by putting fire. Thereafter he produced the said accused for remand. Similarly A1 was arrested by the Investigating Officer on 01.03.2006 at 06.00 p.m in the presence of witnesses and recorded his confession statement from him and according to the said confession leading to recovery, he https://hcservices.ecourts.gov.in/hcservices/ seized T.V.S Victor motor cycle - M.O.14 from the Abirami cycle stand near Pollachi bus stand. He had also recorded statement from the witnesses of the seizure. The blood stained white shirt was seized as per confession of A1 leading to disclosure through Mahazar and thereafter he arranged for the remand of A1 to judicial custody. He had also sent the seized material objects to court and examined witnesses and recorded their statements. Similarly he had also arrested A7 and A8 in the presence of witnesses and recorded the confession statement given by A8 alone. (e) Investigating Officer also examined P.W.11 and recorded his statement. Since A2 and A3 surrendered before Judicial Magistrate, Pollachi on 06.03.2006 and 08.03.2006 he submitted a requisition for recording statement of witnesses P.W.1, P.W.2 before the Judicial Magistrate u/s.164 Cr.P.C and accordingly P.W.1, P.W.2 and one Arukutty @ Arumugam and Manikandan were examined by the learned Judicial Magistrate u/s. 164 Cr.P.C. The Investigating Officer had also obtained police custody regarding A2 and A3 and it he examined and recorded confession statement from A2 and A3 and on their confession A7 was arrested on 11.04.2006 and his confession statement was also recorded by the Investigating Officer and in pursuance of the said confession leading to recovery, he had seized M.O.3 knife from the bushes in Manjanaickanoor palayam on the Udumalpet road through Seizure Mahazar and had also sought for remand against A7. He had also submitted requisition for sending M.Os for Forensic examination and thereafter obtained the Chemical Observation report and serology report from the said laboratories and completed the investigation and filed the charge sheet u/s. 147,148,341 and 302 r/w 149 I.P.C. 3. The case was committed to the court of sessions and the same was transferred to the file of the Additional Sessions Court, FTC No.2, Coimbatore lower court and charges were framed against all the accused and all of them denied the charges. Thereafter lower court had examined P.Ws.1 to P.W.27 and Exs.P.1 to P.30 and the material objects M.O.1 to M.O.19. 4. On the incriminating circumstances spoken by the prosecution witnesses against the accused, they were examined u/s. 313 Cr.P.C and they have denied such evidence as false and unsustainable. They have also examined D.W.1 Rajammal and produced Exs.D1&D2 in support of their case. The lower court had considered the evidence adduced by both sides and had come to the conclusion of convicting the accused A1 to A7 and acquitted A8. Accordingly the accused A1 was found guilty of offences u/s. 148,341,302 I.P.C, and A6 was found guilty of offences u/s. 148 and 302 I.P.C, the accused A2,A3 and A8 were found guilty of offences u/s. 147,341,302 r/w. 149 I.P.C, the accused A4 and A5 were found guilty of offences https://hcservices.ecourts.gov.in/hcservices/ u/s. 147,302 r/w. 149 I.P.C and A7 was found guilty of offences u/s. 148, 302 r/w. 149 I.P.C. 8th accused was acquitted from charges framed against him. 5. Aggrieved by the judgment of conviction passed against the accused A1 to A7, the appellants/accused have preferred the present appeal. The learned counsel for the appellants A1, A2, A4 to A7 and A3 while collectively submitting their arguments would insist that the lower court without properly appraising the evidence had wrongly ended in conviction against A1 to A7 and the evidence of prosecution witnesses were not properly scrutinised and weighed by the lower court. They would further submit that the evidence of P.W.1 and P.W.2 who were the eye witnesses were considered by the lower court and had given credit and based upon their evidence A1 to A7 were convicted under various sections. It is also argued that out of eye witnesses P.Ws.1 to P.W.4, P.W.3 and P.W.4 turned hostile and the evidence of P.W.1 and P.W.2 are none other than the parents, who are interested witnesses and their evidence are full of contradictions and it cannot be believed. He would also point out the admissions made by P.W.1 in cross examination to the effect that he had seen the police constable at the scene of occurrence and both P.W.1 and P.W.2 did not intervene the stopping of their son as various persons stabbed on him and murdered him. It is also stressed that P.W.1 had categorically admitted that the accused had neither stabbed nor beat his son. These contradictions according to the learned counsel for the appellants would not only affect the evidence but also falsify the entire evidence of P.W.2 who was stated to have accompanied P.W.1 to the scene of occurrence. He would further submit in his argument that P.W.2 also would not have been present at the scene of occurrence and the entire evidence of P.W.1 and 2 could not be relied upon. He would again submit that the evidence of P.W.1 and P.W.2 even if true had not spoken about several injuries found on the body of the deceased and this would bloom large over the suspicion over the evidence of P.Ws 1 and 2. He would further submit in his argument that the alleged occurrence was said to have happened on 22.02.2006 by 05.00 p.m and the Police Station was only five minutes walk distance from the scene of occurrence, however the F.I.R reached the court very belatedly and it would leave a presumption that it has been concocted for the purpose of implicating the accused. 6. He would further submit in his argument that the circumstantial evidence showing the collection of weapons in the alleged confession leading to the recovery from the accused would not be helpful as the serology report had not rendered any support to the prosecution's case. The wearing apparel owned by the deceased alone was found to contain human blood with 'B' group whereas the alleged weapons (i.e) knife and bill hook, did not contain the same blood group and therefore the seizure of weapons https://hcservices.ecourts.gov.in/hcservices/ from the accused persons would not in anyway help the prosecution to support the evidence of P.W.1 and P.W.2. He would again submit in his argument that the deceased person was having bad antecedent and the defence witness would speak to the fact that Exs.D1 and D2 and he had connections with Tribal people in smuggling sandalwoods and ganja and therefore his enemies would have caused the death out of such enmity. P.Ws.1 and 2 have shifted the crime over the accused on the enmity had by them due to the demolition order obtained from the Sub-Collector regarding the temple wall. Therefore, he would request the court that the conviction sentence passed by the lower court were without any basis and therefore to interfere with the conviction and the sentence passed against the accused A1 to A7. 7. The court has also given anxious thoughts to the submissions made by the learned Additional Public Prosecutor and the learned counsel for the appellants/accused A1 to A7. 8. The learned Additional Public Prosecutor had supported the lower court's judgment by stating that P.Ws.1 and P.W.2 were only innocent villagers and the evidence adduced by them should be considered in an untamed circumstance and the other circumstantial evidence coupled with the scientific evidence would make the accused guilty and in those circumstances the judgment of conviction and sentence passed by lower court cannot be interfered but may be confirmed. 9. Considering the arguments advanced on either side, we could see that the alleged occurrence is said to have taken place on 22.02.2006 by 05.00 p.m at Kottur- Ucchhimaakaliamman temple bus stop where the 8th accused had assembled with dangerous weapons in order to cause the murder of deceased Sakthivel and accordingly the 1st accused had stabbed with knife on his left abdomen and chest and the 6th accused with koduval had caused cut injuries on right side of the head and ear and the other accused A2 to A5, A7 and A8 had joined hands with A1 and A6 in the incident and thereby committed offence u/s.147,148,341,302 r/w 149 I.P.C. The prosecution has mainly rested on the evidence of eye witnesses namely P.Ws.1 to P.W.4. The rest of the witnesses speak about the circumstances of the enmity created in between the accused and the deceased persons and the collection of weapons through seizure and the Forensic evidence from the samples collected through the investigation. P.W.3 and P.W.4 were independent eye witnesses but they turned hostile. Naturally the entire case is resting upon P.Ws.1 and 2 who happened to be the parents of deceased Sakthivel. Whether the evidence of P.W.1 and P.W.2 have to be discarded as they happened to be the relative witnesses and there by branded them as interested witnesses. According to the submissions made by the learned counsel for the appellants, the evidence of P.W.1 and P.W.2 https://hcservices.ecourts.gov.in/hcservices/ would not incriminate the accused A1 to A7 for the commission of said offence. Their evidence are not trust worthy because the enmity has been developed over the incident namely the demolition of the temple wall was as per the order of the Sub-Collector after enquiry. Admittedly, the said wall raised by the deceased Sakthivel in and around the temple was ordered to be demolished by the Sub- Collector. Accordingly, the said wall was demolished by the accused and that the incident had triggered tension in between the parties. The accused were said to have demolished the compound wall under the guise of Sub-Collector. However according to the defence such enmity had grown in the mind of P.W.1 and P.W.2 in order to give a false complaint against the accused, taking advantage of the death of Sakthivel caused by some other enemies of Sakthivel. 10. We have to see whether the said submission made by the accused could be true. If the evidence of P.W.1 and P.W.2 are found to be true and reliable, the said statement of learned counsel for the appellants need not be considered. For that, we have to see the evidence of P.W.1 and P.W.2. No doubt P.W.1 was the father and P.W.2 was the mother of the deceased Sakthivel. P.W.1 had deposed elaborately about the incident in his chief examination. When we go through the evidence in the cross examination he would categorically admit as follows:- @///rk;gtk; ele;j md;W ehd;. vd; kfd;. kidtp kjpak; rhg;ghL rhg;gpl;nlhk;/ ehd; brhy;fpw khjphp vd; kfid vjphpfs; Fj;jt[k;,y;iy vd;why; rhp/ g[jd;fpHik khiy 5.6 kzpf;F eh';fs; fhty; epiyak; bry;ytpy;iy/ nghyP!;fhuiu vd; kfd; ,we;Jf;fple;j ,lj;jpy; ghh;j;njd;/ nghyP!hh; ehd; brhd;d 8 ifnuif vd;dplk; th';fpdhh;fs;/ vdf;F nfhl;L:h; rg; ,d;!;bgf;lh;. ,d;!;bgf;lh;. Rh;f;fpfs; ,d;!;bgf;lhplk; jhd;/ mtu; jhd; vy;yhnk ehd; brhd;d tpgu';fis vGjpdhh;/ vGjpa gpd;dh; vd;dplk; vy;yh gf;f';fspYk; ifnuif th';fpdhh;/ vd; kfid ahnuh Fj;Jfpwhh;fs;/ bfhiy bra;jhh;fs;/ ehndh. vd; kidtpnah brd;W jLf;ftpy;iy/ @ The said evidence would categorically show that the accused did not beat P.W.1's son is correct. He would also categorically admit that either P.W.1 or P.W.2 did not prevent the accused from stabbing their son. Even these evidence in cross examination are contradictory in nature on one similar occasion he would speak that the accused did not stab or beat their son and on next occasion he would state that his son was stabbed by somebody and murdered by somebody and they did not prevent the same. This fluctuating evidence of P.W.1 would certainly affect the veracity of his evidence spoken in chief examination. Similarly evidence of P.W.2 namely his wife was also affected by the contradicting evidence https://hcservices.ecourts.gov.in/hcservices/ spoken by P.W.1. We can see that there was a dispute in between the deceased Sakthivel and the Tribal people and due to the said enmity the incident would have been happened and the same was wrongfully charged against the accused. If the incident is true P.W.3 who was closely related to the deceased Sakthivel would have supported the prosecution story but he did not support the case of prosecution, even though he was stated to be in the scene of occurrence. 11. The stress made by the learned Additional Public Prosecutor was that the circumstantial evidence produced by the prosecution would show the recovery of weapons and the disclosure of facts through the confession statements given by the accused would make it to the conviction of A1 to A7, may not be helpful to him. Such circumstantial evidence should coincide with scientific evidence. Merely because weapons were seized through the confession statement given by the accused leading to recovery of blood stains found in these weapons should correlate with blood samples found in the cloth of the deceased. The serology report received in Ex.P.22 would show that the blood group B as found in M.Os.4 to 6 were not found in M.O.17- weapon. The weapons were seized through the confession which lead to recovery from the accused persons. In such circumstances, the circumstantial evidence adduced by the prosecution were not helpful, to complete the links to form and complete chain of circumstantial evidence. In these circumstances both ocular and circumstantial evidence relied upon by the prosecution were not helpful to the prosecution. In these circumstances, the lower court should have come to a conclusion that the charges framed against the accused were not proved by the prosecution beyond any reasonable doubt. But it had relied upon the contradictory and inconclusive evidence of P.W.1 and P.W.2 and had rested its conviction on those witnesses which cannot be correct. 12. Therefore, we are of the considered view that the judgment of conviction and sentence passed by the lower court against A1 to A7 cannot be sustained for the simple reason that neither the ocular evidence nor the circumstantial evidence, coupled with scientific evidence are not helpful to the prosecution. Therefore we have no hesitation to set aside the judgment of conviction and sentence passed by the lower court against A1 to A7. 13.Accordingly, the appeal is allowed. The judgment of conviction and sentence against the appellants/accused 1 to 7 by the learned Additinal District and Sessions Judge, Fast Track Court No.2, Coimbatore in S.C.No.119/2008 dated 18.11.2008 is set aside, and consequently they are acquitted from the charges levelled against them. They are directed to be released forthwith unless https://hcservices.ecourts.gov.in/hcservices/ their presence is required in connection with any other case. The bail bond if any executed by the appellants shall stand terminated and the fine amount if any paid are ordered to be refunded to them. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. kpr To 1. The Additional District and Sessions Judge, Fast Track Court No.2, Coimbatore 2. through the Principal Sessions Judge, Coimbatore 3. The Judicial Magistrate No.2 Pollachi. 4. Thro the Chief Judicial Magistrate Coimbatore 5. The District Collector Coimbatore 6. The Director General of Police Egmore, Chennai 7. The Superintendent Central Prison, Coimbatore 8. The Inspector of Police, Kottur Police Station. Coimbatore (District) 9. The Public Prosecutor, High Court, Chennai. Crl.A.No.235 of 2009 PVR (CO) kk 24/11 https://hcservices.ecourts.gov.in/hcservices/