1 BAIL SLIP The Appellants/Accused 1 and 2 namely 1. Palani Kumar, 2. Sakthivel directed to be released on bail as per the court order dated 18.10.2006 made in MP.No.1 of 2006 in Crl.A.No.207 of 2004 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20.06.2011 CORAM: THE HONOURABLE MR. JUSTICE S.RAJESWARAN and THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI Crl.A.(MD)No.207 of 2004 and M.P.(MD)No.1 of 2006 1.Palanikumar 2.Sakthivelu .... Appellants Vs. State of Tamil Nadu reb by The Inspector of Police, West Police Station, Virudhunagar, Virudhunagar District. ... Respondent Prayer: This Criminal Original Petition is filed under Section 374 Cr.P.C., against the order of conviction passed by the learned Additional District Sessions Judge (Fast Track Court) Virudhunagar in S.C.No.148 of 2003 dated 28.09.2004 convicting the appellants under Section 302 of IPC and imposed a sentence of imprisonment for life. For Appellants: Mr.C.Mayil Vahana Rajendran For Respondent: Mr.K.S.Duraipandian,APP JUDGMENT (Judgment of the Court delivered by G.M.AKBAR ALI,J.,) The appeal is filed against the order of conviction passed by the learned Additional District Sessions Judge (Fast Track Court) Virudhunagar in S.C.No.148 of 2003 dated 28.09.2004 convicting the appellants under Section 302 of IPC and imposed a sentence of imprisonment for life. 2.The case of the prosecution is as follows: The deceased Athi Narayanan, was the son of P.W.1 Subbulakshmi and brother of P.W.8. The accused 1 and 2 are brothers. It is alleged that the parents of the appellants have approached P.W.1 seeking alliance of marriage of P.W.8 with A1. However, it was negatived by the deceased Athi Narayanan and the appellants had a grudge against the deceased thinking that he was the only reason behind such refusal. On 05.08.2002 https://hcservices.ecourts.gov.in/hcservices/ 2 around 8.15 a.m., the deceased went to bus stop to drop his sister P.W.8 and when he was returning back through Kasukadai Bazaar the busy area, P.Ws.4, 5 and 9 were also proceeding in the same road and at that time, the appellants intercepted the deceased. A1 assaulted the deceased with an aruval on his head, neck and all over the body of the deceased and A2 also assaulted the deceased and they ran away from the scene of occurrence. P.W.1 the mother of the deceased was informed about the assault and she rushed to the spot and on finding, her son was murdered, she went to the respondent/Police to lodge a complaint. 3.The Sub-Inspector of Police attached to Virudhunagar West Police Station registered a case in Crime No.292 of 2002 under Section 302 IPC at about 9.30 a.m. on 05.08.2002. He forwarded the same to the Court as well as to the Higher Officials. P.W.14, the Inspector of Police investigated the case. He visited the scene of occurrence and prepared magazor and sketch and recovered the material objects available in the scene of occurrence. He also conducted inquest and forwarded the body of the deceased for post-mortem. 4.The Doctor attached to Government Hospital, Virudhunagar, examined the body of the deceased and found that there are 10 cut injuries on the head and also on the neck and other places. The Doctor opined that the deceased would appear to have died 6 to 12 hours prior to autopsy due to extensive haemorrhage and injuries to vital organs viz., brain and trachea. On 06.08.2008, the Inspector of Police examined P.Ws.4,5 and 9 and other witnesses. 5.On 14.08.2002, the Inspector of Police arrested the accused and recorded the confession and pursuant to which, MOs.7 and 8 were recovered. He has also recovered MOs.11 and 12 the blood stained clothes of the accused. He remanded the accused. On obtaining the post-mortem report and chemical analysis report and on completion of investigation, he laid a charge sheet as stated above. 6.The learned Additional District Sessions Judge (Fast Track Court) Virudhunagar examined 14 witnesses, 14 exhibits and 13 Material Objects and one defence witness. 7.On appreciation of oral and documentary evidences, the learned Trial Judge found that the accused 1 and 2 are guilty for an offence under Section 302 IPC and imposed life imprisonment. Aggrieved by which, the accused are before this Court. 8.The point for consideration is as to whether the conviction and sentence is sustainable? 9.Mr.C.Mayil Vahana Rajendran, learned counsel for the appellants would submit that the alleged motive is too flimsy, too remote and unbelievable. The learned counsel pointed out that there is no corroborative evidence for the motive. The learned counsel for the appellants pointed out that the Trial Court itself had rejected the evidence of P.W.4 on the ground that he was examined as witness at the time of inquest and he signed in the inquest summon and in the inquest report he did not reveal the fact about the incident. The learned counsel pointed out that P.W.5 and P.W.9 could not be the eye witnesses as their https://hcservices.ecourts.gov.in/hcservices/ 3 statement under Section 161 had reached the Court only on 29.08.2002 whereas, they were examined as early as on 06.08.2002. 10.The learned counsel for the appellant relied on a decision reported in AIR 1979 SC 135 (Ganesh Bhavan Patel and another Vs. Sate of Maharastra) and 1998 SCC (Cri.)1064 (Mohd.Iqbal M.Shaikh and others Vs. State of Maharastra). 11.The learned counsel further pointed out that the defence witnesses were examined and the documents were marked to show that the deceased himself had involved in various criminal cases and there is nothing to suggest that the appellants had committed the offence and the prosecution case is doubtful and the benefit of doubt has to be given to the appellants. 12.On the contrary, Mr.K.S.Duraipandian, learned Additional Public Prosecutor would submit that the evidence of P.Ws.5 and 9 coupled with medical evidence would show that A1 had assaulted the deceased on the head and caused injury to the brain and A2 had caused injury to the neck and thereby cutting the trachea. The learned Additional Public Prosecutor also pointed out that the motive was spoken about the P.W.1 corroborated by PW.8 and therefore, the conviction and sentence passed by the Trial Court is sustainable. 13.Heard the learned counsel for the appellants and the learned Additional Public Prosecutor and also perused the materials available on record. 14.The date of occurrence and the cause of death were not disputed. It is alleged that the first appellant had a motive against the deceased since he believed that the deceased was the reason behind for the refusal of his alliance of marriage with P.W.8. However, except the evidence of P.W.1, there is no other evidence to show that the first appellant sought for the alliance of marriage of P.W.8, which was refused by the deceased. 15.As far as the evidence of P.W.4 is concerned, the Trial Court itself had rejected the eye witness on the single ground that he was the party to the inquest and at the time of inquest, he has not revealed his presence. P.W.5 is yet another witness. However, he would state that on 05.08.2002 around 8.45 a.m., he accompanied P.W.4 and he witnessed the occurrence. If the evidence of P.W.4 is rejected as unbelievable, and the same yardstick has to be applied towards the evidence of P.W.5 also. The Trial Court is wrong in disbelieving one eye witness and taking into consideration of the other eye witness, who is also in the same footing. 16.As rightly pointed out by the learned counsel for the appellants that P.W.5 was examined as early as 06.08.2002, but, the statement has reached the Court only on 29.08.2002, which would also suggest that P.W.5 could not have been an eye witness and there are possibilities that he could have been fixed as there was no other eye witnesses to the occurrence. Similarly, P.W.9, was also examined on 06.08.2002 and his statement has reached the Court only on 28.02.2002. It is pertinent to note that the alleged eye witnesses are P.Ws.4,5 and 9 were not informants about the occurrence. If it is really showed that they are the eye witness the occurrence and more particularly one of the witness https://hcservices.ecourts.gov.in/hcservices/ 4 being closely associated with the deceased, what has prevented him from giving the information immediately to the Police, is not explained by the prosecution. Therefore, it is evident that P.Ws.4, 5 and 9 could not have been the eye witnesses and their evidences are unbelievable. https://hcservices.ecourts.gov.in/hcservices/ 5 17.In AIR 1979 SC 135, the Supreme Court has held as follows: "15.As noted by the Trial Court, one unusual feature which projects its shadow on the evidence of P.Ws.Welji, Pramila and Kuvarbai and casts a serious doubt about their being eye witnesses of the occurrence, is the undue delay on the part of the investigating officer in recording their statements. Although these witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, their statements under S.161 Cr.P.C. were recorded on the following day. Welji (P.W.3) was examined at 8. a.m., Pramila at 9.15 or 9.30 a.m., and Kuvarbai at 1 p.m. Delay of a few hours, simpliciter, in recording the statements of eye witnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye witnesses to be introduced. A catena of circumstances which lend such significance to this delay, exists in the instance case. 29.Thus considered in the light of the surrounding circumstances, this inordinate delay in registration of the FIR and further delay in recording the statements of the material witnesses, casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story." 18.The appellants have examined one witness and produced 7 documents, which would go to show that the deceased and one of the witnesses were accused in many criminal offences and the deceased was a notorious person. It is also elicited by the defence that the occurrence had taken place in a busy road where usually the public will be moving around and P.W.6 had disclosed that in the street, shops will be opened during that point of time. But strangely no other independent witness have been examined. Therefore, it goes to show that the so-called eye witnesses would have not been present at the time of occurrence and if the evidence is unbelievable, there is no other incriminating evidence against the accused to sustain the conviction. 19.In the result, the Criminal appeal is allowed and the conviction and sentence imposed on the appellants are set aside and the appellants are acquitted of the charges levelled. Consequently, connected M.P. is closed. Sd/- Assistant Registrar (T&P) /True Copy/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 6 To 1.The Additional District Sessions Judge (Fast Track Court), Virudhunagar. 2.The Inspector of Police, West Police Station, Virudhunagar, Virudhunagar District. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1cc to Mr.Majil Vahana Rajendran, Advocate,SR.No.19155 nbj GH : 19.09.2011 : 6p/5c Crl.A.(MD)No.207 of 2004 20.06.2011 https://hcservices.ecourts.gov.in/hcservices/