Bail Slip The accused are directed to be released on bail as per order of the High Court dated 09.11.2006, made in MP.No.1 of 2006 in Crl.A.No.515/06 on the file of the High Court, Madras. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 11.06.2008 CORAM THE HONOURABLE MR. JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR. JUSTICE K.N.BASHA CRL.A.No. 515 OF 2006 Ramesh .. Appellant/A-1 Vs State by the Inspector Railway Police Jolarpet, Vellore District. [Crime No.315/2004] .. Respondent/Complainant Appeal filed under section 374[2] Cr.P.C., against the Judgment dated 23.03.2006 of the learned Additional District and Sessions Judge, [Fast Track Court], Tirupattur, Vellore District in SC.No.384/2005. For Appellant : Mr.R.Shunmugasundaram,SC for Mr.L.Baskaran For Respondent : Mr.N.R.Elango,APP JUDGMENT [Judgment of the Court was delivered by K.N.BASHA, J.] The appellant who has been arrayed as A-1 has come forward with this appeal challenging the conviction and sentence in Judgment dated 23.03.2006 passed by the learned Additional District and Sessions Judge, Fast Track Court, Tirupattur, Vellore District made in SC.No.384/2005 convicting the appellant under section 302 r/w 34 IPC and sentencing him to undergo life imprisonment and also imposing a fine of Rs.5,000/- in default to undergo six months simple imprisonment. https://hcservices.ecourts.gov.in/hcservices/ 2.There are two accused in this case, viz., A-1 and A-2 and A-2 has been acquitted by the learned Trial Judge as the learned Judge disbelieved the prosecution case in respect of A-2. 3.The occurrence in this case is shown to have taken place on 12.10.2004 at 8.00 p.m. in the train bearing No.6089 proceeding from Chennai to Jolarpet as A-1 poured petrol on the deceased Elumalai and A- 2 fired the match box and threw the same on the deceased and as a result, the deceased got down from the train with burn injuries and ran to some distance and fell down. 4.The prosecution in order to bring home the charges against the accused examined P.Ws.1 to 25, filed Exs.P.1 to 40 besides marking M.Os.1 to 26. 5.The brief facts of the case as unfolded during the course of trial through the evidence adduced by the prosecution are as follows:- [a] The deceased was working as a Constable at Katpadi Railway Protection Force. A-2 was working as a Constable at Assam Central Reserved Police. P.W.4 is the wife of the deceased. P.W.5 is the uncle of the deceased. The prosecution version is to the effect that the deceased was having illicit intimacy with A-2's wife. P.Ws.6 to 10 who have been examined to speak about the motive have turned hostile. [b] P.Ws.1 to 3 are the eyewitnesses to the occurrence. P.W.1 claimed that he knows both A-1 and A-2 and the deceased. On 12.10.2004 at 8.30 p.m., both P.W.1 and the deceased got into the train at Katpadi station. A-1 was also found in the train. At that time, A-1 poured petrol on the deceased Elumalai and the deceased ran away from the scene followed by the accused. P.W.2 stated that on the date of occurrence, i.e., 12.10.2004, he was also travelling in the same train. P.W.2 implicated only A-2 for setting fire on the deceased by firing the match box and he has not implicated A-1. P.W.3 who was also cited as an eyewitness neither implicated A-1 nor A-2. [c] P.W.19, the Sub-Inspector of Police attached to Railway Protection Force also stated that on 12.10.2004 he has seen the deceased sitting in the train bearing No.6089 at 8.25 p.m. He heard from a TV reporter that someone has committed suicide and he went and searched. But, he was not able to trace the body. He was also informed by one reporter that a person was burning near Goodshedyard. [d] P.W.4 the wife of the deceased stated that the deceased left from his house on 11.10.2004 for his duty in the train. As he has not returned back on 13.10.2004, she has informed her father-in-law and mother-in-law and thereafter they went to Katpadi Police Station and on their way, she found the dead body of the deceased with burn injuries. She identified the body of the deceased. https://hcservices.ecourts.gov.in/hcservices/ [e] P.W.25 the Inspector of Railway Protection Force received message about the occurrence on 13.10.2004 at 6.00 a.m. and also received the message that the deceased Elumalai has not reached Jolarpet after travelling in the train bearing No.6089. At 9.00 p.m. he received a message that the deceased was lying near the railway track. He went to the scene of occurrence and arranged for taking photographs of the body. He registered a case in Crime No.315/2004 for suspicious death. Ex.P.28 is the Express First Information Report [FIR]. He prepared Ex.P.1-the Observation Mahazar and Ex.P.29-the rough sketch. He held inquest on the dead body of the deceased in the presence of witnesses and Ex.P.30 is the Inquest Report. He examined the witnesses. [f] On 13.10.2004, he has recovered a Revolver, cap, Handkerchief and a badge containing the name of the deceased. He has also recovered a cell phone on the same day at 11.15 a.m. On 14.10.2004 at 11.30 a.m., he has recovered 380 Revolver and 11 bullets near the body of the deceased and he has sent the body for postmortem. [g] The doctor, P.W.13, attached to the Government Medical College Hospital, Vellore, conducted the postmortem on the dead body of the deceased on 13.10.2004 at 2.45 p.m. as per the requisition under Ex.P.10. He found the following injuries:- "APPEARANCES FOUND AT THE POST-MORTEM:- No external injuries seen. Body in a pugilistic attitude. 100% III degree burns except both feet and sole. Body was found to have blackened, charred burnt area all over the body except both feet and sole. Stingeing of scalp hair present. On exploration of the burnt area the tissues underneath the blackened and roaster upto a long [nc] including sub-cutaneous tissues, muscles and bones. [third Degree burns]." Ex.P.11 is the Postmortem Certificate wherein the doctor has opined that the deceased would appear to have died of hypovolemic shock due to 100% burns about 6-20 hours prior to autopsy. [h] P.W.25, the Inspector, also examined P.Ws.1 to 3, the alleged eyewitnesses and thereafter, altered the section from 174 Cr.P.C., to one under section 302 IPC. Ex.P.31 is the altered FIR and he has sent the same to the higher police officials and to the Court concerned. He has also examined the doctor, P.W.13 who has conducted the postmortem and other witnesses. A-2 surrendered before P.W.25. In pursuance of the admissible portion of the confession of A-2 under Ex.P.32, he has recovered the petrol tin on 24.10.2004 at Kudiyatham Road. He has arrested A-1 in the presence of witnesses and thereafter brought both the accused, A-1 and A-2 to the Police Station on 24.10.2004. He recovered the Railway warrant counterfoil-Ex.P.34, Leave Certificate- https://hcservices.ecourts.gov.in/hcservices/ Ex.P.35, Reservation Ticket-Ex.P.36 series and thereafter, the accused were remanded to judicial custody on 25.10.2004. He has given requisition to P.W.12, the learned Judicial Magistrate No.3, to record the statement from P.Ws.1 to 3 under section 164 Cr.P.C. and also to conduct the Identification Parade. [i] P.W.12, the learned Judicial Magistrate No.3, Vellore, conducted the Identification Parade on 02.11.2004 after following the procedure. A-1 and A-2 were produced and P.W.1 identified A-1 and not A-2 and P.W.2 identified A-2 and not A-1. Ex.P.8 is the report of the Identification Parade. After examining the other witnesses and after receiving the Postmortem Certificate etc., and after completion of investigation, the Investigating Officer filed the charge sheet under section 120[b], 302 r/w 34 IPC against the accused. 6. When the accused were questioned under section 313 Cr.P.C., in respect of the incriminating circumstances appearing against them they have come forward with the version of total denial. They have not chosen to examine any witnesses on their side but marked only one document, viz., Ex.D.1. 7. Mr.R.Shunmugasundaram, learned Senior Counsel appearing for the appellant/A-1 contended that the prosecution has not come forward with clear and cogent evidence implicating the accused and put forward the following contentions:- [1] P.Ws.1 to 3 the alleged eyewitnesses are unbelievable and their evidence is contrary to each other. [2] P.W.1 the alleged eyewitness has not implicated A-2 and he implicates only A-1, P.W.2 implicates only A-2 and not A-1. P.W.3 on the other hand neither implicated A-1 nor A-2. Inspite of the same, they have not been treated as hostile by the prosecution. Though P.W.1 implicated A-1, he has admitted in his cross-examination that the accused were not known to him earlier. [3] P.W.1's identification of A-1 at the time of Identification Parade cannot be relied on as per the admission of P.W.1 in his cross-examination that he has already seen the photographs of A-1 and A-2 through the newspaper and TV and he has also admitted that he has not given any identifying features of A-1 and A-2 to the police during the course of his examination or stated in his statement recorded under section 164 Cr.P.C. https://hcservices.ecourts.gov.in/hcservices/ [4] P.W.2 categorically admitted in his cross- examination that the police shown both the accused to him at the Police Station and therefore, the identification of A-2 by P.W.2 at the Identification Parade cannot be relied. [5] The learned Trial Judge disbelieved the prosecution case in respect of A-2 and acquitted him and on the very same materials convicted the appellant/A-1 without assigning any valid reasons. The trial Court also disbelieved the arrest and recovery in respect of the co-accused/A-2 and as such, the conviction of A-1 is not justified. [6] The appellant/A-1 was illegally detained by the police and only after seeing the telegram, Ex.D.1, the Investigating Officer produced A-1 before the Court and after showing him as an accused. [7] Apart from the evidence of P.Ws.1 to 3, there is no other clinching or incriminating circumstances available on record against the appellant/A-1 and even the evidence of P.Ws.1 to 3 is unreliable. [8] The prosecution also miserably failed to prove the alleged motive as the witnesses P.Ws.6 to 10 who have been examined to speak about the motive have turned hostile." 8. Per contra, Mr.N.R.Elango, the learned Additional Public Prosecutor contended that the prosecution has come forward with the clear and cogent evidence implicating the appellant/A-1 through the evidence of P.W.1. It is submitted that P.W.1 has also identified A-1 at the time of Identification Parade. The learned Additional Public Prosecutor further contended that motive is immaterial in view of the availability of the direct evidence through P.W.1 who is an eyewitness to the occurrence. It is contended that though there are certain infirmities in the prosecution case, those infirmities had not at all affected the main case of the prosecution implicating the appellant/A-1 in this case. Therefore, it is submitted that the prosecution has proved its case beyond reasonable doubt against the appellant/A-1 in all aspects. 9. We have given our careful and anxious consideration to the rival contentions put forward by either side and also thoroughly scrutinised the evidence available on record and perused the impugned Judgment of conviction. https://hcservices.ecourts.gov.in/hcservices/ 10. The prosecution heavily placed reliance on the evidence of P.Ws.1 to 3 who are the alleged eyewitnesses in this case. At the outset, we are constrained to state that there are infirmities and inconsistencies in the evidence of P.Ws.1 to 3 throwing serious doubt about the veracity of the prosecution version. 11. As far as P.Ws.1 and 2 are concerned, it is curiously noted that P.W.1 implicated A-1 and not A-2 and P.W.2 implicated A-2 and not A-1. Though it is claimed by the prosecution that P.W.1 identified A-1 in the Identification Parade conducted by P.W.12, the learned Judicial Magistrate No.3, Vellore and P.W.2 identified A-2 during the Identification Parade, they have categorically admitted that both the accused were unknown to them. P.W.1 specifically admitted in his cross- examination that he has seen the photographs of the accused through the newspaper and TV even before conducting Identification Parade. It is also admitted by P.W.1 that he has not stated anything about the identifying features of A-1 neither during his examination by the police nor during his examination by the learned Judicial Magistrate under section 164 Cr.P.c. As far as P.W.2 is concerned, he has specifically stated even in his chief examination that he has seen both the accused in the Police Station. Therefore, it is most unsafe to place reliance on the evidence of P.Ws.1 and 2 and the conducting of the Identification Parade after P.Ws.1 and 2 seeing the accused is a futile exercise. 12. The Hon'ble Apex Court has held in BUDHSEN AND ANOTHER Vs. STATE OF U.P. Reported in AIR 1970 SUPREME COURT 1321 that:- "...... 7.... the Magistrates holding them are expected to take all possible precautions to eliminate any suspicion of unfairness and to reduce the chance of testimonial error. They must, therefore, take intelligent interest in the proceedings, bearing in mind two considerations: [i]that the life and liberty of an accused may depend on their vigilance and caution and [ii]that justice should be done in the identification. Those proceedings should not make it impossible for the identifiers who, after all, have, as a rule, only fleeting glimpses of the person they are supposed to identify..... .... The persons required to identify an accused should have had no opportunity of seeing him after the commission of the crime and before identification and secondly that no mistakes are made by them or the mistakes made are negligible." https://hcservices.ecourts.gov.in/hcservices/ 13. The above principle laid down by the Hon'ble Apex Court in respect of the Identification Parade is squarely applicable to the facts of the instant case as in this case also, both P.Ws.1 and 2 already saw the accused before conducting the Identification Parade. 14. Now, coming to the evidence of P.W.3, the yet another eyewitness in this case, it is crystal clear from the perusal of his evidence that he has neither implicated A-1 nor implicated A-2 and his evidence is not at all useful to advance the case of the prosecution. 15.As we have already pointed out that once the evidence of the eyewitnesses P.Ws.1 to 3 have been excluded as their evidence suffers from serious infirmities and inherent improbabilities, we are left with no other clinching and incriminating circumstances available on record to implicate the appellant/A-1 in this case. 16.Therefore, for the aforesaid reasons, we are constrained to come to the inevitable conclusion to the effect that the impugned Judgment of conviction and sentence is unsustainable in law and accordingly, the conviction and sentence passed in the judgment dated 23.03.2006 by the learned Additional District and Sessions Judge, [Fast Track Court], Tirupattur, Vellore District in SC.No.384/2005 is set aside and the criminal appeal is allowed. 17.It is reported that the appellant/A-1 is on bail. Hence,the bail bond, if any, executed by him, shall stand terminated. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ap To 1. The Additional District and Sessions Judge, [Fast Track Court], Tirupattur, Vellore District. 2. The Inspector Railway Police Jolarpet, Vellore District. https://hcservices.ecourts.gov.in/hcservices/ 3. The Public Prosecutor High Court, Chennai. 4. The Judicial Magistrate II, Thiruppatur. 5. The Chief Judicial Magistrate, Vellore. 6. The Principle Sessions Judge, Vellore. 7. The Superintendent, Central Prison, Vellore. 1 cc To Mr.L.Baskar, Advocate, SR.28693. Crl.A.No.515/2006 SCD(CO) RVL 25.06.2008 https://hcservices.ecourts.gov.in/hcservices/