IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.11.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL No.852 of 2007 1. Thennasi 2. Venkatesh @ Rotti .. Accused/ Appellants 4 & 5 Vs. State rep. by Inspector of Police, Komarapalayam Police Station Komarapalayam, Namakkal District (Cr.No.625/1998) ..Complainant/Respondent This criminal appeal is preferred under Section 374(2) of Cr.P.C against the judgment in S.C.No.4 of 2004 of the learned Additional District Sessions Court, Fast Track Court, Namakkal, dated 25.07.2006. For Appellants : Mr.Philip Ravindran Jesudoss For Respondent : Mr.P.Kumaresan, APP JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) This appeal challenges the Judgment of the Additional District Sessions Division, Fast Track Court, Namakkal, made in S.C.No.4 of 2004 dated 25.07.2006, whereby the accused/appellants 1 and 2 along with 4 others stood charged under Sections 148, 341, 302 r/w 34 IPC. Originally, trial was conducted only in respect of these two accused/appellants since A1, A3 and A6 died pending the trial and in so far as A2, the case was split up. On trial, both the accused/appellants are found guilty under Sections 148, 341, 302 r/w 34 of the Penal Code and awarded the punishment as detailed below:- Conviction and sentence to each of the appellants: S. 341 IPC - 6 months RI, a fine of Rs.1000/-, in default to undergo 1 month SI. https://hcservices.ecourts.gov.in/hcservices/ S.302 r/w 34 IPC- life imprisonment, a fine amount of Rs.10,000/-, in default to undergo 3 months SI S.148 IPC - 6 months RI, a fine amount of Rs.1000/- in default to undergo 1 month SI All the sentences should run concurrently. 2. The short facts necessary for the disposal of the Criminal Appeal can be stated thus: (a) P.W.1 is the mother and P.W.3 is the brother of the deceased Velayutham @ Velu. A1, A2 and all other accused belonged to the place of the deceased, P.Ws.1 and 3 and they were all close associates. A1, A2 and A3 were sent for judicial remand in a criminal proceedings and they made a request to Velu to apply for bail. A1 and A2 also had given money to the deceased. But the deceased failed to do so. Hence the accused A1, A2 and his associates and the deceased were on inimical terms. On the date of occurrence, i.e., on 23.05.1998 at about 10.00 p.m. when P.Ws.1 and 3 were at their firewood shop, they were informed that the accused were chasing the deceased. On hearing the same, they rushed and at that time they found all the accused persons armed with deadly weapons were chasing the deceased and got inside a hotel. They followed them and they saw A1 attacking the deceased with Aruval and all other accused attacking the deceased at different parts of the body and he succumbed to the injuries at the very place instantaneously. The same was witnessed by P.W.1 and also P.W.3, the occurrence witness. The accused persons fled away from the place of occurrence. (b) On seeing the occurrence, P.W.1 proceeded to the respondent Police Station and gave Ex.P.1, on the basis of which a case came to be registered in Crime No.625 of 1998 under Sections 341 r/w 34, 302 IPC IPC. The express F.I.R. Ex.P9 was despatched to Court. (c) P.W.12, Inspector of Police, took up the investigation, on receipt of the copy of the FIR. He proceeded to the spot, made an inspection in the presence of witnesses, prepared Observation Mahazaar Ex.P.6 and also sketch Ex.P.16. He conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and an inquest report Ex.P.17 was prepared. The dead body was sent for the purpose of post-mortem along with the requisition. Thereafter, P.W.2 Doctor, who conducted post mortem gave his opinion that the deceased would appear to have died out of shock and haemorrhage due to the injuries sustained by him. The Post Mortem report was marked as Ex.P.4. https://hcservices.ecourts.gov.in/hcservices/ (d) Thereafter, the accused persons were arrested. They have given their confessional statements which were recorded, pursuant to which deadly weapons were also recovered from them. (e) The accused persons were sent for judicial custody. On completion of the investigation, the Investigating Officer prepared final report. 3. The case was committed to the Court of Sessions and necessary charges were framed. Pending trial, A1, A3 and A6 died, A2 was absconding and therefore, the Court proceeded against A4 and A5. On trial, in order to substantiate the charges levelled against the accused, prosecution examined 12 witnesses and also relied on 18 documents and 11 material objects. On completion of evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. and they denied them as false. No defence witness was examined. After hearing the submissions made on either side and also on scrutiny of the material available, the trial Court took a view that the prosecution has proved the case beyond reasonable doubt and found them guilty under Sections 302 , 341 and 148 IPC and awarded the punishment referred to above. The fourth and fifth accused preferred an appeal, which is taken up for consideration. 4. Advancing the arguments on behalf of the appellants Mr.Philip Ravindran Jesudoss, learned Counsel made the following statements: (1) According to the prosecution, the occurrence had taken place on 23.05.1998. Both P.Ws.1 and 3 would submit that they have witnessed the occurrence. P.W.1 is the mother and P.W.3 is the brother and hence their evidence had got to be scrutinised with care and caution. If that test is applied, their evidence had got to be rejected because P.Ws.1 and 3 could not have seen the occurrence at all. The occurrence had taken place according to the prosecution inside a hotel and P.W.1, according to her on hearing the information, she along with P.W.3 proceeded to the spot and they found the accused appellants were chasing the deceased, who got inside the hotel, they also followed him and attacked him with deadly weapons and caused his death. P.Ws.1 and 3 could not have seen the occurrence for the reason that both the witnesses were actually in their firewood shop. The occurrence had taken place at about 10.00 p.m.. Both of them would claim that they saw the accused chasing the deceased from their light which is burning in front of their shop. But, P.W.3 has categorically admitted that firewood shop is situated in a lane and not in the main road. But, the hotel where the occurrence had taken place actually situated in the main road and hence P.Ws.1 and 3 could not have seen the accused running from the place or chasing towards the hotel. https://hcservices.ecourts.gov.in/hcservices/ (2) Added further, in the sketch nowhere the firewood shop of P.Ws.1 and 3 is found and hence it would be quite clear that firewood shop of P.W.1 is not situated nearby. Apart from that, according to P.W.1, it was she who gave Ex.P.1 report, in which P.W.3 has also signed, which would clearly indicate that P.W.3 was also present when the report was given and P.W.1 at the time of examination and in Court had deposed that she knew all the persons in particular A4 and A5, who are the appellants herein. According to P.W.3, at the time of occurrence he saw all the 6 persons chasing his brother and attacking him and he knew all of them. When P.W.1 gave a complaint, who was also accompanied by P.W.3 and was also present at the time of giving the complaint, she mentioned only the names of A1 A2 and A3, but it is quite natural that she should have mentioned the names of all the assailants, but not done so, and it would clearly indicate that A4 and A5 had been added on surmise. In Ex.P.1 report, the names of A1, A2 and A3 were found and not the names of A4 and A5 and for the first time, A4 and A5 were identified only in Court hall. This occurrence had taken place at night hours, P.Ws.1 and 3 could not have seen the occurrence at all. Even though according to them they have seen, they could not identify them properly. Under such circumstances, identification parade should have been conducted, but the investigator has failed to take steps to conduct identification parade. Hence on the evidence of P.Ws.1 and 3, who, according to the prosecution are occurrence witnesses, the prosecution should not have placed reliance for sustaining the conviction and hence both the evidence were actually prepared in order to suit the prosecution story. Under these circumstances the appellants are entitled for acquittal. 5. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made and perused the materials available on record. 6. It is not in controversy that one Velayutham @ Velu was chased by accused persons and was done to death instantaneously inside a hotel on 23.05.1998 at about 10.00 p.m. After that, the dead body was subjected to post mortem by P.W.2 Doctor, who issued the post mortem certificate to the effect that the death would have occurred out of shock and haemorrhage due the injuries sustained by him. The post mortem certificate issued by the Doctor, was also marked. This fact also never disputed by the appellants before the trial Court and hence there is no impediment for this Court to record a finding that Velayutham @ Velue died out of homicidal violence. 7. In order to substantiate that these two accused appellants along with 4 others chased the deceased; that he got inside a hotel and accused chased him inside the hotel and followed him and attacked him with deadly weapons and caused his death, prosecution examined two witnesses as occurrence witnesses. They are P.Ws.1 and 3. P.W.1 is the mother and P.W.3 is the brother of the https://hcservices.ecourts.gov.in/hcservices/ deceased. Hence it is trite in law that before accepting their evidence, it must be carefully scrutinised. If the test is applied, this Court is afraid whether their evidence could be accepted for sustaining the conviction. In the instant case, both P.Ws.1 and 3 would claim that at the time of occurrence namely at about 10.00 p.m. they were inside their firewood shop and light was burning and on hearing the deceased was being chased, both of them proceeded towards the place of occurrence. 8. The contents of the sketch is not disputed. When the contents of the Observation Mahazaar and sketch are noticed, nowhere the firewood shop of P.W.1 is found therein and P.W.3 has categorically admitted that the hotel, where the occurrence had taken place, is on the main road, but the firewood shop is situated in the lane. Apart from this, P.Ws.1 and 3 would claim that at the time of occurrence they were informed that Velu was being chased by the accused and only on hearing the same, they reached the place. Hence it would be quite clear that P.Ws.1 and 3 could not have seen the assailants from their firewood shop. 9. Further P.W.1 had deposed that after the occurrence was over, she rushed to the police station and gave a complaint Ex.P.1 to the respondent police and a case came to be registered on the basis of Ex.P.1. When the complaint Ex.P.1 is looked into, P.W.3 has also signed the document. Hence, it would be quite clear that P.W.3 was also available when the report was given by P.W.1. In the Ex.P.1 report, the names of three accused A1, A2 and A3 alone was found, but not others. P.W.1 would claim that when she gave the report, she had mentioned all the names of the assailants. P.W.3 would claim that he knew all the assailants at the time of occurrence itself. Had it been true that when P.W.3 was also present at the time of occurrence and he knew all the assailants including A4 and A5, there was no impediment for him in mentioning their names also and hence it is highly doubtful whether P.W.1 and P.W.3 could have seen the occurrence at all. There was really grudge against A1 to A3 as they were in inimical terms against the deceased person and thus it would be clear that only on surmise the associates of A1, A2 and A3 viz., A4 and A5 could have been added as if they had got a role in the crime. Hence, what was available to the prosecution was only the evidence of P.Ws.1 and 3 to prove the case. 10. Added further the Additional Public Prosecutor brought to the notice of the Court that there was recovery of weapons from A4 and A5, pursuant to their confessional statement, it is settled law that merely on the strength of the recovery of weapons of crime, it cannot be presumed that they have committed the crime. In the absence of any other evidence, it cannot be taken so. This Court is of the considered opinion that in view of the suspicious circumstances attendant, it is unfair to sustain the conviction. Hence the appellants are entitled for acquittal. https://hcservices.ecourts.gov.in/hcservices/ 11. In the result, this criminal appeal is allowed, setting aside the conviction and sentence imposed on the appellants by the learned Additional District Sessions Judge, Fast Track Court, Namakkal in S.C.No.4 of 2004. The appellants are acquitted of the charges levelled against them. They are ordered to be released forthwith unless their presence is required in connection with any other case. The fine amount paid by them will be refunded to them. rg Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To 1. THE ADDITIONAL SESSIONS JUDGE FAST TRACK COURT, NAMAKKAL. 3. THE SUPERINTENDENT CENTRAL PRISON, COIMBATORE. 3. THE INSPECTOR OF POLICE KOMARAPALAYAM POLICE STATION, KOMARAPALAYAM, NAMAKKAL DISTRICT 4. THE PUBLIC PROSECUTOR HIGH COURT, MADRAS 1 cc to Mr.Philip Ravindran Jesudoss, Advocate, SR.66240 ssn (co) dv/11.12. CRIMINAL APPEAL No.852 of 2007 https://hcservices.ecourts.gov.in/hcservices/