IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.03.2010 C O R A M THE HONOURABLE MR.JUSTICE C.NAGAPPAN and THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.A.Nos.733 and 761 of 2009 1.Mani 2.Shanmugam ... Appellants in Crl.A.No.733/2009 3.A.Chinnappan ... Appellant in Crl.A.No.761/2009 Vs. The State Rep. by Inspector of Police Vazhapadi Police Station Vazhapadi, Salem (Crime No.771/08) ... Respondent in both the Appellants These Criminal Appeals have been filed under Section 374(2) of Criminal Procedure Code as against the judgment of conviction and sentence dated 28.10.2009 made in S.C.No.202 of 2009 on the file of the Ist Additional District Judge, Fast Track Court No.1, Salem, Additional District-cum-Sessions Judge (Fast Track Court-1), Salem, set aside the same and acquit the accused. For Appellants : Mr.S.Sivakumar (Crl.A.No.733/2009) Mr.AR.L.Sundaresan for Ms.AL.Ganthimathi (Crl.A.No.761/2009) For Respondent : Mr.M.Babu Muthu Meeran, Addl. Public Prosecutor in both the appeals J U D G M E N T (Judgment of the Court delivered by P.R.SHIVAKUMAR, J.) The appellants in Crl.A.No.733/2009 figured as accused 1 and 2 in sessions case No.202/2009 on the file of Additional District-cum-Sessions Judge (Fast Track Court-1), Salem and the appellant in Crl.A.No.761/2009 figured as accused No.3 in the said https://hcservices.ecourts.gov.in/hcservices/ sessions case. All of them stood charged for committing an offence punishable under Section 302 IPC r/w section 34 IPC, found guilty of and convicted for the offence with which they stood charged and sentenced to undergo life imprisonment besides payment of a sum of Rs.1,00,000/- as fine by each one of them. Challenging the judgment of the trial court dated 28.10.2009 in respect of the conviction recorded as well as the sentence, they have come forward with the present appeals. 2. The summary of the prosecution case, in brief, as could be ascertained from the oral and documentary evidence adduced on the side of the prosecution is as follows:- i) P.W.1-Arumugam, P.W.2-Kaliappan and P.W.3-Chinnaponnu are respectively the father, brother and mother of deceased Kalaiarasan @ Raja. P.W.7 - Panner @ Pannerselvam was a friend of the deceased Kalaiarasan @ Raja and at the relevant period he was employed as a maesthry (Supervisor) in Sambandam Siva Spinning Mill at Atthanurpatti. The deceased who went out of the house on 31.08.2008 did not return home till late night. P.W.5-Easwaran was employed as a cleaner in a bus belonging to Sambandam Siva Spinning Mill. He saw the deceased Kalaiarasan @ Raja at about 2.00 a.m on 01.09.2008 making enquiries with the watchman Mani and Shanmugam (A1 and A2) as to whether his friend Panneerselvam was available in the mill and the accused 1 and 2 replying in the negative. The deceased Kalaiarasan @ Raja, who left the said place, came again after loitering here and there for about an hour and abused A1 and A2 in filthy language and at that point of time, A3 - Chinnappan also came to that place. As the act of abusing on the part of the deceased became intolerable, all the three accused hit him with hands. The deceased was found intoxicated at that point of time and hence on being attacked by accused 1 to 3, he fell down on the ground. Thereafter, the accused 1 to 3 dragged him to a place near Micro bus stop and left him at that place. P.W.6-Rajasekaran also saw the deceased lying outside the mill gate and groaning. On enquiry he was informed by A1 and A2 that the deceased wanted to know from them whether Pannerselvam was in the Mill to which they replied in the negative and informed him that his shift was over and he had gone home; that pursuant to the said reply the deceased quarrelled with them and that hence the accused 1 and 2 attacked the decased. ii) Meanwhile, at about 2.30 a.m on 01.09.2008, P.W.7- Panneerselvam received a phone call from A1-Mani and was informed that the deceased Kalairasan @ Raja came to the Mill in search of P.W.7 and quarrelled with A1 when he informed the deceased that P.W.7-Panneerselvam had left the mill. Pannerselvam, in turn informed P.W.2-Kaliappan and P.W.3-Chinnaponnu over phone and then P.W.3-Chinnaponnu in person. The said information was passed on by P.W.3 to her husband (P.W.1) when he returned home at 04.00 a.m on 01.09.2008, who had gone to the field for irrigating it. P.W.1 went in search of the deceased Kalaiarasan @ Raja and at 5.00 a.m he found the dead body of the deceased lying with bleeding injuries at a distance of about 50 feet on the west from the gate of Sambandam https://hcservices.ecourts.gov.in/hcservices/ Siva Spinning Mill. Immediately he informed P.W.2, P.W.3 and P.W.7 over phone, pursuant to which all of them, along with other relatives of P.W.1, came to the place wherein the dead body of the deceased was found lying. P.W.1 and P.W.7 - Panneerselvam also met P.W.5 - Easwaran at about 6.30 a.m, whereupon P.W.5-Easwaran informed them of what he saw. Thereafter, P.W.1 went to Vazhapadi police station and lodged Ex.P1 - complaint. iii) Based on the said complaint, Ex.P8 - first information report was prepared and a case was registered as Cr.No.771/2008 by P.W.15 - Thangavel, Inspector of police under Section 174 of Cr.P.C and he himself took up the case for investigation. P.W.15 visited the place of occurrence and prepared Ex.P2 - Observation Mahazar and Ex.P9 - Rough sketch in the presence of the witnesses P.W.4 - Dhanapal and Pachakutti Raja. In the presence of panchayatdars, P.W.15 conducted inquest and prepared Ex.P10-inquest report. After completing the inquest, the body was sent to the hospital for autopsy through P.W.14- Ramakrishnan, Head Constable along with Ex.P4-requisition letter. P.W.12-Dr.Panneerselvam conducted autopsy and issued Ex.P5- postmortem certificate, wherein he noted as many as fifteen abrasions over various parts of the body and contusion over both sides of scrotum. P.W.12 incorporated his opinion in Ex.P5 that the deceased died of shock and haemorrhage due to multiple injuries sustained by him and the death occurred between 18 to 24 hours prior to autopsy. On examination of the viscera sent to the Forensic Sciences Department, Regional Forensic Science Laboratory, Ex.P13 - Viscera report was sent to the court to the effect that no poison was detected in the stomach, intestine and its contents, liver and kidney, brain, blood and preservative. Similarly, the blood stained earth and the control earth taken from the scene of occurrence under cover of Mahazar-Ex.P3 and the wearing apparels and the waist cord removed from the dead body at the time of postmortem examination (M.Os.1 to 6) were also sent to the forensic lab for chemical examination. The same was examined by P.W.13- Manickam, Scientific Assistant and a report was issued under Ex.P6 to the effect that no blood was detected in M.Os.1 to 3, whereas blood stains were detected in M.Os.4 to 6, namely lungi, jatti and the waist cord. The said blood stains were found to be human blood belonging to 'A' group, as per Ex.P7-Serological report. After the receipt of report of the Medical Officer who conducted autopsy, the case was altered into one for an offence punishable under Section 302 r/w 34 IPC, for which Ex.P11-Alteration report was prepared and sent by the Investigating officer to the Magistrate. During the course of investigation, P.W.15 arrested A1-Mani at 2.30 p.m on 03.09.2008 and A2 and A3 at 4.30 p.m on the same day and recorded their confession statements in the presence of P.W.8-Selvam and one Natarajan. P.W.10-Venkatachalam and P.W.11-Ponnudurai are the persons who are employed as watchman and Manager respectively in Sambandam Siva Spinning Mill. From the said witnesses also, P.W.15, the Investigating Officer, collected information regarding the fact that the accused 1 to 3 were the persons who were on night duty on the date of occurrence. https://hcservices.ecourts.gov.in/hcservices/ 3. On completion of investigation, the Inspector of Police, Vazhapadi police station (P.W.15), submitted a final report alleging commission of an offence punishable under Section 302 r/w 34 IPC on the part of the appellants herein, who figured as accused 1 to 3 in the said case. The learned Judicial Magistrate No.6, Salem took it on file as PRC No.12/2009 and committed the same to the Principal Sessions Judge, Salem for trial. The same was taken on file as S.C.No.202/2009 by the learned Principal Sessions Judge, Salem and made over to the Additional District and Sessions Judge (Fast Track Court No.1), Salem for disposal according to law. 4. The Additional district and Sessions Judge (Fast Track Court No.1), Salem framed a charge against all the three accused for the offence punishable under section 302 r/w section 34 IPC. As the accused pleaded not guilty, the trial court conducted trial, in which the prosecution examined fifteen witnesses as P.Ws.1 to 15 and marked Ex.P1 to P13 and produced six material objects as M.Os.1 to 6 in order to prove the prosecution case. 5. After completion of recording of the evidence adduced on the side of the prosecution, the incriminating materials found therein were pointed out to the appellants herein/A1 to A3 and they were questioned under Section 313(1)(b) of Cr.P.C. regarding such incriminating materials found in the evidence adduced on the side of the prosecution. They denied them as false. No witness was examined and no document was marked on the side of the accused/appellants herein. 6. The trial court, after considering the evidence brought before it and also the answers given by the accused in their examination under Section 313(1)(b) of Cr.P.C in the light of the arguments advanced on either side, found all the accused A1 to A3 (appellants herein) guilty of the offence under Section 302 r/w section 34 IPC with which they stood charged, convicted them for the said offence and sentenced them as indicated supra. 7. Challenging the conviction and the sentence imposed, the appellants herein have come forward with these appeals on various grounds set out in the appeal petitions. 8. The submissions made by Mr.AR.L.Sundaresan, learned senior counsel representing the counsel on record for appellant in Crl.A.No.761/2009, by Mr.S.Sivakumar, learned counsel for the appellants in Crl.A.No.733 of 2009 and by Mr.M.Babu Muthu Meeran, learned Additional Public Prosecutor representing the State were heard. The materials available on record were also perused. 9. As rightly pointed out on behalf of the appellants, the case of the prosecution mainly depends on the credibility of the evidence of P.W.5, who is projected as the eye witness for the alleged attack on the deceased Kalaiarasan @ Raja made by the appellants (A1 to A3). In addition to P.W.5-Easwaran, P.W.6- https://hcservices.ecourts.gov.in/hcservices/ Rajasekaran, another watchman of Sambandam Siva Spinning Mill in which the accused are employed, is also projected to be an eye witness. But a careful analysis of the testimony of P.W.6 reveals the evidence adduced through P.W.6 is nothing but hearsay which has got to be eschewed as not admissible. The learned Additional Public Prosecutor made a meek attempt to show that the evidence of P.W.6 shall be admissible as res gestae. P.W.6 in his testimony has not stated in clear terms without ambiguity that he witnessed the act of the accused persons in either attacking the deceased or dragging him to the nearby bus stop after attacking him. In fact he has not at all stated that he witnessed anybody attacking the deceased. On the contrary, his evidence is to the effect that when he came to the mill gate at about 2.30 a.m on 01.09.2008, he saw a person lying on the ground in such a posture his back touching the ground and face facing upwards and raising noise; that on enquiry with A1 and A2, he was informed that the said person was Kalaiarasan @ Raja of Atthanurpatti; that the deceased came to the mill gate and asked whether Panneerselvam was there in the mill; that on hearing the answer in the negative he quarrelled with A1 and A2 and that pursuant to the same accused 1 and 2 (Mani and Shanmugam) assaulted him. It is his further evidence that he suggested that the police could be informed but A1 and A2 said that the family members were informed and they would come and take him home. The above said evidence of P.W.6 does not directly implicate any one of the accused as having either assaulted the deceased or dragged him to the nearby bus stop. Therefore, as rightly contended on behalf of the appellants, the evidence of P.W.6 serves no useful purpose for the proof of the prosecution version that it were the appellants who caused the injuries to the deceased leading to his death. It should be pertinent to note that P.W.6 does not speak about any overt act on the part of, and not even the presence of A3. Therefore, the evidence of P.W.6 has got to be eschewed as the same does not implicate any one of the accused. 10. So far as the testimony of P.W.5 is concerned, its credibility is doubtful in the light of the evidence of P.W.11 - Ponnudurai, who was working as a Manager in Sambandam Siva Spinning Mill. Of course P.W.11 was treated hostile by the prosecution and cross-examined on the side of the prosecution. From the cross- examination of P.W.11 by the Public Prosecutor, it is obvious that P.W.11 was examined only to depose that he heard about the incident. Even the said fact of hearing about the incident and giving a statement to that effect has been denied by P.W.11. The only point on which he was cross-examined by the Public Prosecutor is that he was speaking against the statement given to the Investigating Officer to the effect that he heard about the occurrence in which the accused persons, after assaulting the deceased, dragged him to a place near the Mill on the west and laid him there. When a witness is sought to be contradicted with reference to his statement recorded under section 161(3) of Cr.P.C besides drawing his attention to such a previous statement before the same could be proved, such statement should be proved by other evidence. In this case the prosecution stopped with putting a suggestion to P.W.11 that he had given such a statement and was https://hcservices.ecourts.gov.in/hcservices/ deposing contra to such statement. The prosecution has not proceeded further to prove such a statement through the Investigating Officer. Under such circumstances, we can't hold that P.W.11 has been successfully contradicted with reference to his earlier statement, namely statement recorded under section 161 (3) Cr.P.C. Therefore, the contention that the said witness is an unreliable witness shall not be available to the prosecution. 11. Further, it is trite law simply that it does not mean that the evidence a witness, in its entirety, cannot be relied on by the court because a witness treated hostile and cross-examined by the prosecution. That part of his evidence, which according to the court, is trustworthy, can very well be relied on. Similarly, it cannot be said that the evidence of a witness treated hostile by the prosecution cannot be relied on by the accused. Cross- examination of such witnesses by the deceased shall not be confined to the purpose for which he is called as a witness for the prosecution. Relevant questions, outside scope of the purpose for which he was called as a witness for the prosecution, can always be put to such witness by the defence counsel. That is why, the hostile witnesses are offered to be cross-examined by the defence counsel after they are cross-examined by the prosecution. In this regard, the evidence of P.W.11 assumes greater importance. 12. It is not in dispute that P.W.1 was the Manager in Sambandam Siva Spinning Mill at the relevant point of time. As a manager, he knew the procedure that was being followed in the mill regarding the despatch of the buses and their return in between the shifts. He has stated in clear terms that within half an hour after end of each shift, the buses with the workers would be despatched from the mill to various places; that such buses, after dropping the workers at various places, would reach the terminal point and would be sheltered there at the terminal and that the buses would come back to the mill just 15 minutes prior to the start of the next shift. It is his further evidence that the buses of the mill shall be available in the mill premises at the maximum of 45 minutes to one hour. As per his evidence, the said period of 45 minutes to one hour shall be spread over the last lap of the earlier shift and the first lap of the succeeding shift. It is obvious from his evidence that the first, second and third shifts starts at 7.00 a.m, 3.00 p.m and 11.00 p.m respectivelty and that from 11.30 p.m on 31.08.2008 till 6.00 a.m on 01.09.2008, the buses were not there in the mill. P.W.5 is not able to tell the registration number of the bus in which he worked as a cleaner. No document has been obtained from the mill during investigation to show that P.W.5 was employed as a bus cleaner in the said mill. Therefore, it is quite obvious that neither the bus driver nor the cleaner would have been in the mill premises from 12.00 midnight 31.08.2008/01.09.2008 till 06.00 a.m on 01.09.2008. 13. Even if it is assumed that P.W.5 - Easwaran could have been there in the mill premises between 2.00 a.m and 6.00 a.m on 01.09.2008, he does not implicate the appellants/accused to have caused the death of the deceased Kalaiarasan @ Raja. The evidence https://hcservices.ecourts.gov.in/hcservices/ of P.W.5 is to the effect that, at the first instance at about 2.30 a.m. on 01.09.2008 the deceased Kalaiarasan @ Raja came to the mill gate and asked whether Panneerselvam was there; that on hearing the answer given by A1 - Mani and A2 - Shanmugam in the negative, he left that place and came back after a lapse of an hour and that when he came for the second time he was found shabby and untidy. It is his further evidence that the deceased started abusing accused 1 and 2 in a filthy language when he met them for the second time and again asked the very same question which invited the very same answer; that unable to tolerate the abusing language, A1 and A2 along with A3 who came to that place during the course of the transaction, assaulted the deceased Kalaiarasan @ Raja with hands, dragged him to a nearby place and made him lay there. The injuries found on the dead body of deceased Kalaiarasan @ Raja do not correspond to the alleged assault made by the accused persons. It is neither the case of the prosecution nor the evidence of P.W.6 that any one of the accused used any weapon. The abrasions found on various parts of the body and the contusion found on both sides of the scrotum and abdomen as evidenced by Ex.P5 – Postmortem certificate, cannot be related to the alleged assault with hands. More particularly, the contusion on both sides of scrotum could not have been caused by any one of the accused, as P.W.5 does not speak about kicking on the abdomen or squeezing the scrotum. It is the opinion of the Medical officer that the death occurred due to shock and haemorrhage caused by the abrasions found on various parts of the body. As many as 15 abrasions and contusions on both sides of scrotum and abdomen were noted by P.W.12. For a better appreciation the injuries noted in Ex.P5-Postmortem certificate is reproduced here under. 1."Abrasions dark brown in colour seen over:- (a) 1.5 x 0.5 cm over right frontal region and it lie 6.5 cm above mid eyebrow (b) 2 x 0.5 cm right side temple and it lies 2 cms above zygomatic prominence (c) 3 x 2 cm left forehead 2.5 cm above left eyebrow (d) 7 x 3.5 cm left temple extends upto cheek (e) 2 x 2 cms left wrist (f) a grazed abrasion over outer aspect of right thigh 15 x 14 cms (g) a grazed abrasion back of lower 3rd of left leg 12 x 5 cms (h) 5.5 x 1.75 cm outer aspect right knee (i) 12 x 4 cms inner aspect of lower 3rd right thigh to right leg (j) 7 x 2 cms upper 3rd of left leg (k) 2 x 2, 3 x 2 cms front of right knee (l) Grazed abrasion upper 3rd of left thigh to left hip and lower 3rd of left thigh 21 x 12 cms (m) 6 x 4 cms left side lower abdomen (n) 1 x 1 cm left flanks (o) 3 x 2 cm front of upper 3rd of left thigh a dark blackish discolouration over lower part of abdomen it extends upto it flanks 44 x 15 cms. 3.Contusion over both sides of scrotum 4 x 4 x 0.25 cm dark red blood clots seen above the https://hcservices.ecourts.gov.in/hcservices/ abdomen muscles." Any one of the above said injuries is not of serious nature sufficient to cause death. On the other hand, the opinion of P.W.12 seems to be that all above said injuries found on the dead body combined together led to the death of the deceased due to shock and haemorrhage. 14. Assuming that the cumulative effect of injuries, led to the death of the deceased due to shock and haemorrhage, the next question that arises for consideration is whether those injuries were proved to be caused by the accused persons. The evidence of P.W.5, the lone eye witness, does not lend any help to the prosecution to show that those injuries were caused by the appellants/accused. In his cross-examination, P.W.5 has stated that with gaps of half an hour, the deceased came to the mill gate for about 5 or 6 times and he could not say what happened to him during these gaps. It is also his evidence that he was not aware of the places to which the deceased had gone and where and how he got injuries during those gaps. Therefore, it is quite probable that the deceased could have been attacked by somebody else and thus could have sustained the injuries noted by the Medical officer, who conducted autopsy. In this regard, the evidence of the prosecution witnesses as to the conduct of the deceased also become relevant. P.W.5 in his evidence has made it clear that the deceased was found under the influence of alcohol and he quarrelled with the accused using filthy words. He has gone to the extent of stating that the deceased was found in such a condition that he was completely under the influence of alcohol and was not capable of understanding what he was doing. The said part of the evidence of P.W.5 stands corroborated by P.W.6 and P.W.7. It is the further evidence of P.W.5 that, when he asked the accused as to why they had not informed the police, they replied that the deceased, after coming out of the influence of alcohol, would get up and leave that place. The evidence of P.W.6 is to the effect that when he suggested that the police could be informed, the accused answered that P.W.7 was informed and the family members of the deceased would come and take him home. The evidence of P.W.7 is to the effect that he was informed by A1 over phone that the deceased went to the mill gate and picked up quarrel with A1-Mani. It is his further evidence that when the same was informed by him to P.W.2, the brother of the deceased, he did not take it seriously and on the other hand, informing P.W.7 that it had been the routine affair of the deceased to behave in such a manner, he refrained from taking any steps to go the place of occurrence and bring the deceased home. P.W.7 has also stated that P.W.3, the mother of the deceased also did not take care to send anybody at once