IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.3.2008 CORAM THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI Criminal Appeal No.331 of 2007 Velu @ Velusamy .. Appellant Vs. The State rep. by its Inspector of Police Kaiyaralabath Police Station Ariyalur Taluk Perambalur District. .. Respondent Appeal against the judgment dated 31.3.2004 made in S.C.No.120 of 2003 on the file of learned Sessions Judge, Perambalur. For Appellant : Mr.N.Sankara Vadivel For Mr.S.Kamadevan For Respondent : Mr.N.R.Elango Addl. Public Prosecutor J U D G M E N T (Delivered by P.D.DINAKARAN,J.) The appellant is before us being aggrieved by and dissatisfied with a judgment dated 31.3.2004 passed by the learned Sessions Judge, Perambalur in S.C.No.120 of 2003 whereby and whereunder he convicted and sentenced the appellant herein (first accused) to undergo life imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for three months for the offence under Section 302, IPC. 2. The appellant/A1 was charged for alleged commission of offence punishable under Section 302 IPC, in connection with the occurrence said to have taken place at about 6.30 p.m. on 21.11.2002 in the graveyard of Wallajah Nagaram Colony, within the jurisdiction of respondent Police Station, for having said to have murdered one Ashok. 3.1. The case of the prosecution rests upon the statement (Ex.P1) given by one Veeramani (P.W.1). Based on the same, the First https://hcservices.ecourts.gov.in/hcservices/ Information Report (Ex.P8) was registered by the Sub Inspector of Police (P.W.15). 3.2. The story launching prosecution against the appellant is briefly stated as under: One Muruganandam and Ashok were friends. On the date of occurrence, viz. 21.12.2002, Ashok was selling illicit arrack in the graveyard of Wallajah Nagaram, on behalf of Muruganandam. At about 6 pm, the appellant (A1) demanded Ashok to give illicit arrack free of cost. Veeramani (P.W.1), who was in that place at the time of demand by the appellant (A1), after consuming arrack, returned to his home. At about 8.30 pm, Muruganandam called P.W.1 to search for Ashok, as he did not return home after selling the arrack. While the said Muruganandam and P.W.1 were so proceeding, P.W.2 also accompanied them. Since Ashok was not found in the graveyard, they went to the nearby village Manaleri, where one Sukru informed that the appellant (A1) and A2 dragged the deceased towards northern side. P.W.1 and P.W.2 proceeded further along with one Pulimoottai. While they were reaching a temple near colony, they heard the sound "don't assault me". When they went near the place, they saw A1 and A2 were assaulting the deceased. On noticing them, A1 and A2 threatened them with dire consequences. Hence, they returned fearing danger to their life. The next day morning, P.W.1 proceeded to Police Station. En route, he noticed the cadaver of the deceased with blood oozing out from his head. 3.3. P.W.1 gave a statement (Ex.P1) to the Sub Inspector of Police (P.W.15). F.I.R. was registered on the file of Kairalabath Police Station, which was marked as Ex.P8. F.I.R. was sent to the Judicial Magistrate's Court and to the higher authorities through the Constable, P.W.13 for taking further action. 3.4. The investigating officer (P.W.16), on the basis of the F.I.R. (Ex.P8), undertook the investigation, visited the place of occurrence at 7.30 am, prepared an Observation Mahazar (Ex.P2) and a Rough Sketch (Ex.P9), recovered watch (M.O.2) from the scene of occurrence under mahazar (Ex.P3). He conducted inquest over the dead body and the inquest report is Ex.P10. He sent the body for post mortem through the Constable (P.W.14), with requisition (Ex.P6). He arrested the appellant (A1) and A2 at 6.45 pm. Based on the confession statement of A1, the stick (M.O.1) was recovered. 3.5. The Doctor (P.W.11), who conducted autopsy on the body of the deceased at 1.00 pm and found six external injuries and three internal injuries, as certified in the Post Mortem Certificate, Ex.P7, and opined that the deceased would have died due to the head injuries sustained by him. 3.6. After completing the investigation, the Inspector of Police (P.W.16) filed the charge sheet on 29.11.2002. https://hcservices.ecourts.gov.in/hcservices/ 3.7. As the case of the accused was denial, both of them were tried in Sessions Case No.120 of 2003 before the learned Sessions Judge, Perambalur. 3.8. The prosecution examined 16 witnesses in support of its case and marked Exs.P1 to P10 and M.Os.1 to 3. 3.9. P.Ws.1 to 3 are the eye-witnesses; P.Ws.4 and 5, though examined as eye-witnesses, turned hostile; P.W.6 speaks about the hearing of the sound of the deceased and thereafter, found the deceased with multiple injuries; P.W.7, wife of Muruganadam speaks about the employment of the deceased by her husband for selling arrack; P.W.8 is the wife of the deceased who identified the body of the deceased; P.W.9 is the Village Administrative Officer, who attested Exs.P2 and P3; P.W.10 is the mahazar witness; and P.W.12 is a photographer who took photos of the dead body. 4. When the accused were questioned under Section 313 Cr.P.C. as to the incriminating materials produced on the side of the prosecution and the circumstances found against the appellant (A1) in the evidence of prosecution witnesses, he denied the same. The learned Sessions Judge, Perambalur, after appreciation of the evidence and hearing both sides, convicted and sentenced the accused as aforementioned. Hence, the above appeal. 5. The learned counsel for the appellant vehemently contends that: (i) the evidence of P.W.1 does not corroborate with Ex.P1, FIR, with regard to the occurrence and abduction of the deceased; (ii) there are several contradictions in the evidence of P.Ws.1 to 3; and (iii) the prosecution failed to prove that the stick (M.O.1) was used for attacking the deceased, as the same does not contain the blood stain, and therefore, there is no clear evidence to prove that the appellant/A1 had caused the death of the deceased by M.O.1 and accordingly, seeks to acquit the appellant/A1. 6. Per contra, learned Additional Public Prosecutor reiterated the reasons that weighed the learned trial Judge to sustain the order of conviction and sentence. 7. We have given careful consideration to the submissions of both sides. 8. The question that arises for our consideration in this appeal is whether the prosecution has proved its case against the appellant beyond reasonable doubt? https://hcservices.ecourts.gov.in/hcservices/ 9.1. With regard to the contention that there is no corroboration between the evidence of P.W.1 and FIR (Ex.P1) with respect to the occurrence and abduction of the deceased, it would be apt to refer the evidence of P.W.1 and Ex.P1. 9.2. In his evidence, P.W.1 had stated that when he went to consume arrack, he saw the first accused demanding arrack free of cost and did not notice other people; that he came to know about the missing of the deceased only after Muruganantham informed him at his residence and at the request of Muruganantham, he went in search of the deceased to the grave yard. 9.3. But in Ex.P1, it is stated that there was a quarrel between the appellant (A1) and the deceased and that the appellant (A1) uttered that he had five criminal cases against him and attacked the deceased for not giving arrack free of cost and that the appellant (A1), A2 and one Kalaivanan dragged away the deceased; that when Muruganantham came to his house to enquire about the deceased, he informed him about the abduction of the deceased by the appellant/A1, A2 and Kalaivanan; that when he proceeded along with Muruganantham in search of the deceased, they picked up P.W.2 and on their way to Manaleri, they were informed by one Sukru that there was some noise near Mariamman temple and therefore, they went to that place where they noticed the appellant (A1) attacking the deceased on his head with a stick, while A2 and Kalaivanan were holding the deceased. 9.4. A perusal of the evidence of P.W.1 would show that P.W.1 did not notice the persons at the graveyard, except the appellant (A1) who demanded arrack from the deceased free of cost and he returned to his home on consuming the arrack. But, in Ex.P1, it is stated that while A2 and Kalaivanan were holding the deceased, the appellant (A1) attacked the deceased at the graveyard for not giving arrack to him free of cost. Further, in the evidence of P.W.1, it is stated that he came to know about the missing of the deceased only after Muruganantham informed him. But, in Ex.P1, it is stated that he informed Muruganantham that the deceased was abducted by the appellant (A1), A2 and Kalaivanan, when Muruganantham came to enquire about the deceased. 9.5. It is well settled proposition in law that FIR is not a substantive piece of evidence and it is only relevant in judging the veracity of prosecution case and the value attached to it depends on the facts of the case. From the facts of the case on hand, it is abundantly clear that there is material contradiction between the version of FIR (Ex.P1) and the evidence of P.W.1 with regard to the role played by the accused and the missing of the deceased and these circumstances throw a serious doubt as to the presence of the witnesses at the time of occurrence and shifts the balance of convenience to the side of accused (A1), giving him the benefit of doubt. https://hcservices.ecourts.gov.in/hcservices/ 10.1. Apropos the contention that there are several contradictions in the evidence of P.Ws.1 to 3, it is pertinent to refer Ex.P1, evidence of P.Ws.1 to 3. 10.2. In FIR (Ex.P1), P.W.1 had stated that he went to the residence of P.W.2 and informed him about the abduction of the deceased by the appellant (A1), A2 and Kalaivanan; but in his evidence, he had stated that he accompanied Muruganantham and while they were proceeding to the graveyard searching the deceased, P.W.2 came on the way and he also accompanied them. Further, at the time when Sukru informed that the appellant/A1 and A2 took the deceased by dragging, P.W.3 also accompanied them to search the deceased. 10.3. However, P.W.2, in his evidence, stated that when he was in his house, P.W.1 came and informed him that the deceased is missing and that the appellant (A1), A2 and Kalaivanan quarrelled with him, and asked P.W.2 to accompany them to search the deceased; that he went along with P.W.1 and Muruganantham in search of the deceased; that at Manaleri, they enquired P.W.3, who was sitting, about the deceased and he also accompanied him to search the deceased. 10.4. In his evidence, P.W.3 had stated when P.Ws.1 and 2 informed that the deceased was missing, he accompanied them and he heard some sound near the Mariamman temple and found A2 and Kalaivanan catching hold of the deceased and the appellant (A1) attacked the deceased on his head. 10.5. The position of the eye-witnesses in relation to the occurrence may have been such that all the details could not have been noticed, but by the evidence of the eye witnesses it can be established that the salient features of the prosecution story were true. In the case on hand, there are discrepancies and contradictions in the evidence of all of the witnesses and under such circumstances, this Court has to exercise caution and care and sift the evidence to separate the truth from untruth, exaggeration, embellishments and improvement. 10.6. In the instant case, the evidence of P.W.1 and P.W.2 is vague, viz., as to whether P.W.2 joined P.W.1 and Muruganantham from his house or on the way to search the deceased. That apart, as per the evidence of P.W.1 and P.W.2, Sukru informed him that the appellant (A1) and A2 took the deceased by dragging. But, P.W.3, in his evidence, had not spoken anything about Sukru and the information given by him. Therefore, there is a doubt as to whether P.W.3 had accompanied P.W.1 and P.W.2 or not, to search the deceased. There is a snap in the chain of circumstances narrated by the ocular witnesses and there are many contradictions in their evidence. 11.1. Next contention for consideration is whether the weapon used for attacking the deceased, viz. M.O.1 stick contained the blood stain https://hcservices.ecourts.gov.in/hcservices/ or not. P.W.16, the investigating officer has stated that M.O.1 had not been sent for chemical analysis to find out whether it contained human blood stain or not. Non sending of the stick for chemical examination by the investigating officer does not corrode the evidentiary value of the eye-witnesses if they are otherwise found to be in one voice proving the guilt of the accused. In this case, as already observed, there are contradictions in the evidence of the ocular witnesses. 11.2. Further, the Doctor (P.W.11), who conducted autopsy, even though had stated that the injuries found on the body of the deceased had been made by the stick (M.O.1), in the cross examination he had stated that the injuries would have been caused even by a motor vehicle accident. Further, the blood stained earth and sample earth had not been recovered and sent for chemical examination. The aforesaid infirmities on the part of the prosecution create a serious doubt as to the occurrence and participation of the appellant (A1). 12. In view of the discussions aforementioned, we hold that the prosecution failed to prove the guilt of the accused beyond all reasonable doubt. The appeal is allowed. The conviction and sentence imposed on the appellant (A1) by judgment of learned Sessions Judge, Perambalur dated 31.3.2004 made in S.C.No.120 of 2003 is set aside. The appellant (A1) is acquitted of the charge. The bail bonds executed by the appellant (A1) shall stand cancelled. The fine amount paid by the appellant (A1) shall be refunded. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar kpl/sasi To 1. The Sessions Judge Perambalur. 2. The Inspector of Police Kaiyaralabath Police Station, Ariyalur Taluk, Perumbalur District. 3. The Superintendent, Central Prison, Trichy. https://hcservices.ecourts.gov.in/hcservices/ 4. The District Collector, Perambalur. 5. The Director of General of Police, Chennai. 6. The Public Prosecutor, High Court, Chennai. +1 cc to Mr.S.Kamadevan, Advocate, SR.No.13353. Akr (Co) krd / 30.4 Crl.A.No.331 of 2007. https://hcservices.ecourts.gov.in/hcservices/