IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27-7-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.Nos.156, 157 and 575 of 2008 and CRL.R.C.No.1137 of 2008 1.Vengatesh @ Dhanasegar 2.Narayanan 3.Jagan @ Jagannathan .. Appellants in CA.156/2008/A-3, A-12 & A-22 in SC.No.57/2004 1.Sankar @ Jayasankar 2.Satish 3.Mathan .. Appellants in CA.157/2008/A-1, A-7 & A-8 in SC.No.57/2004. vs The State represented by The Inspector of Police Mudaliarpet Circle, Pondicherry, through the Special Public Prosecutor (in Cr.No.101/2004 of Mudaliarpet Police Station, Pondicherry) .. Respondent in CA Nos.156 & 157/2008 (Complainant) CA 575/2008: Union Territory of Pondicherry by Home Secretary Government of Pondicherry by Public Prosecutor High Court, Madras. .. Appellant vs 1.Sankar @ Jai Sankar 2.Murugan 3.Vengatesh @ Dhanasegar https://hcservices.ecourts.gov.in/hcservices/ 4.Ramesh 5.Nagaraj 6.Ganesh 7.Satish 8.Madhan 9.Sankar @ Karuppu Sankar 10.Vijayarangan 11.Azhagu @ Azhagar 12.Narayanan 13.Saravanan @ Mandai Saravanan 14.Mathi @ Mathiyazhagan 15.Sridhar 16.Prathab Singh Mouria @ Prathab 17.Ezhil @ Ezhilarasan 18.Ramesh @ Mattuvandi Ramesh 19.Sadai Viji @ Viji 20.Pragash 21.Jegan @ Jeganathan 22.Satish @ Sathishkumar 23.Suresh @ Azhukku Suresh 24.Vijayakannan .. Respondents / A1 to A20 & A22 to A25 CRL.R.C.No.1137/2008: Manikandan @ Duiman .. Petitioner (Defacto Complainant) vs 1.Murugan 2.Ramesh 3.Nagaraj 4.Ganesh 5.Sankar @ Karuppu Sankar 6.Vijayarangan 7.Azhagu @ Azhagar 8.Saravanan @ Mandai Saravanan 9.Mathi @ Mathiazhagan 10.Sridhar 11.Prathab Singh Mouria @ Prathab 12.Ezhil @ Ezhilarasan 13.Ramesh @ Mattuvandi Ramesh 14.Sadai Viji @ Vijayan 15.Pragash 16.Satish @ Satishkumar 17.Suresh @ Azhukku Suresh 18.Vijayakannan 19. State rep by Inspector of Police, Muduliarpet Police Station, Pondicherry (Crime No.101/04) .. Respondents/A2, 4 to 6 9 to 11 13 to 20 & 23 to 25 & Complaint C.A.Nos.156, 157 and 575 of 2008 preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the II Additional Sessions Judge, Pondicherry, in S.C.No.57/2004 dated 30.1.2008. https://hcservices.ecourts.gov.in/hcservices/ C.A.No.575/2008 preferred under Sec.378 of the Code of Criminal Procedure against the order of acquittal made by the II Additional Sessions Judge, Pondicherry, in S.C.No.57/2004 dated 30.1.2008. Criminal revision case preferred under Sec.397 r/w 401 of the Code of Criminal Procedure against the order of acquittal made by the II Additional Sessions Judge, Pondicherry, in S.C.No.57/2004 dated 30.1.2008. For Appellants : Mr.R.Shanmugasundaram Senior Advocate for Mr.A.Stalin for A-1, A-8 in CA 157/2008 for A-3, A-12 in CA 156/2008 and for RR1, 2, 4, 5, 6, 9 to 11, 13 to 20 & 22 to 24 in CA 575/2008 Mr.V.Gopinath Senior Advocate for Mr.K.Gandhikumar for A-7 in CA 157/2008 for A-22 in CA 156/2008 For Petitioner : Mr.C.D.Johnson in CRL.RC 1137/2008 For Respondents : Mr.Natarajan Additional Public Prosecutor (Pondy) in CA 156 &157/2008 and Crl.RC 1137/2008 and for Appellant in CA 575/2008 COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern these three appeals namely C.A.No.156/2008 by A-3, A-12 and A-22, C.A.157/2008 by A-1, A-7 and A-8 and C.A.575/2008 by the State of Pondicherry and also Crl.R.C.No.1137 of 2008 by P.W.1. 2.The appellants in CA 156 and 157/2008, six in number, along with 19 others stood charged, and on trial A-1, A-3, A-7, A-8, A-12 and A-22, the appellants herein, were found guilty as follows. A- 21 absconded, and hence the case was split up in his regard in S.C.No.12/2006. https://hcservices.ecourts.gov.in/hcservices/ ACCUSED CHARGES FINDING PUNISHMENT A-1 to A-24 148 IPC A-1, A-3, A-7, A-8, A-12 and A- 22 guilty 3 years RI with a fine of Rs.2000/- and default sentence A-1 to A-24 302 r/w 149 IPC A-1, A-3, A-7, A-8, A-12 and A- 22 guilty Life Imprisonment with a fine of Rs.5000/- and default sentence A-1, A-3, A-12 & A-21 4(b) of the Explosive Substances Act r/w 149 IPC A-1, A-3, A-12 guilty 5 years RI with a fine of Rs.3000/- and default sentence A-1, A-3, A-12 & A-21 4(a) of the Explosive Substances Act r/w 149 IPC A-1, A-3, A-12 guilty 5 years RI with a fine of Rs.3000/- and default sentence A-1 to A-24 307 (2 counts) r/w 149 IPC A-1, A-3, A-12 guilty 7 years RI with a fine of Rs.1000/- and default sentence A-1 to A-24 333 (2 counts) r/w 149 IPC A-1, A-3, A-12 guilty 7 years RI with a fine of Rs.1000/- and default sentence A-1, A-3, A-6 to A-8, A-12, A-21, A-22 and A-25 109 r/w 302 IPC and Sec.4(a) of the Explosive Substances Act Not guilty A-1, A-3, A-6 to A-8, A-12, A-21, A-22 and A-25 120-B r/w 302 IPC and Sec.4(a) of the Explosive Substances Act Not guilty 3.A-1, A-3, A-7, A-8, A-12 and A-22 were not found guilty in respect of the other charges levelled against them, and all other accused were not found guilty in respect of all the charges levelled against them. As against the part of acquittal, the aggrieved State of Pondicherry has brought forth C.A.No.575/2008, and P.W.1 has brought forth Crl.R.C.No.1137/2008. 4.Necessary facts for the disposal of the above appeals and revision case can be stated as follows: (a) P.W.1 is the younger brother of the deceased Jayakumar. On 26.3.2004, the deceased drove the motorcycle bearing Registration No.PY 01 R 1354 marked as M.O.9. P.W.1 was sitting as a pillion rider. They were returning to the house after meeting an Advocate in the Court premises. At about 1.40 P.M., they were just reaching the junction of Uppalam Road and Cuddalore Road. At that time, all the accused were standing in a crowded manner. A-1 and A-3 were riding two motorbikes, while the other two accused were https://hcservices.ecourts.gov.in/hcservices/ sitting behind. They dashed the vehicle against the motorbike which was driven by the deceased. P.W.1 and the deceased fell down. Immediately, it was A-1 who attacked the deceased with an aruval on the right shoulder. P.W.1 and the deceased made an attempt to escape. They were running towards Mudaliarpet Police Station situated nearby. When they were doing so, it was A-22 who gave a cut on the back of the head of the deceased. However managing the situation, the deceased and P.W.1 made an entry into the police station. At that time, it was P.W.3, one Rajaram, the Head Constable of the Station, was on duty, while P.W.4 was the Para Constable. While all the accused chased them, A-3, A-12 and A-21 gave cut injuries. Para Constable, P.W.4, caught hold of A-3, and P.W.3 caught hold of A-22. A-3 attacked P.W.4, and A-22 attacked P.W.3. A-1, A-3 and A-12 who were having bombs in hand, threw on the deceased. When it was thrown, P.Ws.3 and 4 were also injured. Immediately, P.W.1 rushed to his house situated 150 meters away. He informed to the relatives and came back. (b) P.W.32 was the Sub Inspector of Police attached to the respondent police station. He received the wireless message from P.W.3 and rushed to the police station. Then P.W.1 gave a complaint under Ex.P1 to P.W.32. On the strength of Ex.P1, the report, a case came to be registered in Crime No.101 of 2004 under Sections 147, 148, 302, 307, 330 of IPC and Sec.4 of Explosive Substances Act r/w Sections 35, 109 and 149 of IPC against all the 25 accused. The printed FIR, Ex.P53, and other records were sent to the Court. (c) P.W.34, the Inspector of Police, on message proceeded over there and got a copy of the FIR. Thereafter, he took up investigation, proceeded to the spot, made an observation of the scene of occurrence and prepared an observation mahazar, Ex.P56, and also a rough sketch, Ex.P57. Thereafter, P.Ws.3 and 4 were sent to the Government Hospital. P.W.17 examined P.W.3 at 3.00 P.M., and also examined P.W.4 at 3.10 P.M. The wound certificates are marked as Exs.P25 and P26 respectively. Then the Investigator conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P60. A requisition was given to the hospital authorities for conduct of autopsy. (d) P.W.15, the Chief Medical Officer, Department of Forensic Medicine, JIPMER, Pondicherry, on receipt of the said requisition, conducted autopsy on the dead body of Jayakumar and has issued a postmortem certificate, Ex.P20, with his opinion that the cause of death of the deceased was due to shock due to multiple injuries sustained by the deceased, chief being the head and neck injuries. (e) P.W.34 examined the witnesses and recorded their statements. In particular, he examined P.W.12, who spoke about the conspiracy hatched up on 25.3.2004, by the accused pursuant to which the occurrence has taken place. P.W.13 was examined from whom Exs.P17 and P18 were recovered to show that A-2 had attended duty on 26.3.2004, as part time worker in the Forest Department. Further, sanction was asked for from P.W.31, the District Magistrate of Pondicherry. He has also given sanction under Exs.P51 and P52. (f) On 29.3.2004, the absconding accused Suresh, A-12, A-22, A-3, A-8 and A-23 were arrested. The Investigator recovered the material objects. They came forward to give confessional https://hcservices.ecourts.gov.in/hcservices/ statements, which were recorded. The admissible parts are marked as Exs.P11 to P16 respectively. Pursuant to the same, M.Os.1 to 4, weapons of crime, were recovered under a cover of mahazar. They were sent for judicial remand. A-16 was arrested on 30.3.2004. He gave a confessional statement which was recorded. He was sent for judicial remand. A-1, A-6 and A-24 were arrested on 6.4.2004. They came forward to give confessional statements which were recorded. They were sent for judicial remand. On 24.5.2004, A-7 was arrested, and he gave a confessional statement which was recorded. He was sent for judicial remand. Then on 24.6.2004, the Investigator arrested A-4, A-5, A-9, A-10, A-11, A-15, A-17, A-18 and A-20. They came forward to give confessional statements which were recorded. They were sent for judicial remand. (g) On 13.7.2004, A-2 was arrested, and he came forward to give a confessional statement which was recorded. He was sent for judicial remand. On 25.7.2004, A-14 was arrested, and he came forward to give a confessional statement, which was recorded. He was sent for judicial remand. A-13 was arrested on 30.7.2004, and he came forward to give a confessional statement, which was recorded. Then he was sent for judicial remand. On 3.8.2004, A-25 was arrested. He gave a confessional statement, which was recorded. He was sent for judicial remand. A-19 surrendered before the Judicial Magistrate's Court. On completion of investigation, the Investigator filed the final report. 5.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 35 witnesses and also relied on 69 exhibits and 34 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which they flatly denied as false. The defence examined D.Ws.1 to 5 through whom Exs.D1 to D19 were marked. Ex.C1 was also marked by the Court. The trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt in respect of A-1, A-3, A-7, A-8, A-12 and A-22, and hence found them guilty and awarded punishment as referred to above. Hence the above aggrieved appellants/accused have brought forth C.A.Nos.156 and 157 of 2008, while the State aggrieved over the part of order of acquittal has brought forth C.A.No.575 of 2008 and the revision by P.W.1 in Crl.R.C.No.1137 of 2008. 6.Advancing arguments on behalf of A-1, A-3, A-8 and A-12, the learned Senior Counsel Mr.R.Shanmugasundaram would submit that in the instant case, the prosecution relied on the evidence of P.Ws.1 to 4 as eyewitnesses to the occurrence; that as far as P.W.2 was concerned, the lower Court was not prepared to accept the evidence; that the evidence of P.Ws.1, 3 and 4 were taken up for consideration by the trial Court; and that as far as the so-called eyewitnesses are concerned, their evidence was in support of the prosecution. 7.The learned Senior Counsel at the outset would submit that P.W.1 was shown as an eyewitness, through whom according to the prosecution, Ex.P1, the report, has come into existence; that P.W.1 https://hcservices.ecourts.gov.in/hcservices/ could not have been in the place of occurrence at all; that he was only a 19 years old boy who was studying X Standard; that the occurrence, according to the prosecution, has taken place at about 1.45 P.M. that was on a working day; and that though P.W.1 claimed to be present, his name does not find place in the contemporaneous document namely the G.D. which is marked as Ex.P3. Added further the learned Senior Counsel that it would be quite clear that though he claimed to be present in the place of occurrence, it is curious that he was not attacked by any one out of 25, and he was not found with any bloodstain; that it is pertinent to point out that the FIR has reached the Court at about 12.00 A.M. night; that P.W.32 would claim that the case was registered at 2.00 P.M.; that if to be so, why there was a huge delay remained unexplained; that P.W.34 when he was cross-examined in that regard, has deposed that he did not enquire how the delay was caused; and that as far as P.W.1 was concerned, had he been present, his presence should have been made mention anywhere, but not done so. 8.Added further the learned Senior Counsel that D.W.5, the News Reporter, was examined; that within a short span of 15 minutes, he rushed to the place and took photographs, and the same were published in the newspaper next day as a news item; but, the presence of P.W.1 was not whispered anywhere. 9.Added further the learned Senior Counsel that P.W.1 could not have been in the place of occurrence for the reason that A-1 to A-25 have been added by entering their names, addresses, features, etc., which are found place; that the evidence of P.W.3 would go to show that the entry that was made by the Sub Inspector of Police nowhere indicates the presence of P.W.1 at the time when the G.D. entry was made; and that so long the GD entry does not speak about the presence of P.W.1, through whom the complaint has come into existence, it would be indicative of the fact that P.W.1 could not have been present at the place of occurrence at all. 10.Added further the learned Senior Counsel that as far as P.Ws.3 and 4 are concerned, the trial Court has placed much reliance on their evidence; but, their evidence was found to be thoroughly discrepant; that both the witnesses according to the Investigator, were taken to the hospital immediately; that P.Ws.3 and 4 have categorically stated to P.W.17 the Doctor, that four persons attacked them; that at the time of evidence, P.W.3 has categorically spoken to the fact that he was attacked by A-21 only; that equally, P.W.4 has also spoken to the same fact; that under the circumstance, the attack was by only one; that had it been true that they gave such a statement to the Doctor that they were attacked by four persons, it is highly doubtful; that equally according to P.W.34, he received a message, and immediately he rushed to the spot and when he received the wireless message, only the names of three accused were mentioned and some others and neither 22 persons nor the involvement of any other accused; and that all would go to show that the earliest document G.D. or the information given to P.W.34 does not implicate or show the involvement of these accused persons. https://hcservices.ecourts.gov.in/hcservices/ 11.The learned Senior Counsel would further add that all these accused persons are related to each other; that A-1, A-2, A-4 and A-5 are brothers; that A-3 is the son of A-25; that A-6 and A-7 are brothers of A-3; that A-8 and A-12 are brothers; that A-9 is the nephew of A-8; that A-21 and A-22 are brothers, and thus they are all related to each other; that the police would have added their names or P.W.1 at the instigation of his friend who was involved in the earlier murder, should have roped in all these accused persons; that they have nothing to do with the crime; that the motive part which was attributed by P.W.1 is found to be entirely different; that in the FIR, he has stated that the deceased implicated A-1 in a murder case, and thus A-1 was aggrieved, and he hatched up a conspiracy, and it has culminated in the murder; but, he has given a version in the evidence contra; that according to his evidence, it was A-1 who implicated the deceased in an earlier murder case, and thus, contradictory version as to the motive was spoken to by P.W.1; that this would be indicative of the fact that P.W.1 with different versions has gone on his own grudge; that P.W.1 is also shown to have involved in number of criminal cases, and thus, his evidence could not be believed; that P.W.3 was the Head Constable and P.W.4 was the Para Constable at the police station; that P.Ws.3 and 4 though claimed that they were injured at the time of the occurrence, they are expected to give special reports; but, either P.W.3 or P.W.4 have not given any special report at all; that no explanation was forthcoming in that regard; that as far as P.Ws.3 and 4 are concerned, they have given evidence, and the original statements given by them are found to be different; that it is a case where the occurrence has taken place in a police station; that not only a murder has taken place, but also P.W.3 Head Constable, and P.W.4 Constable, were injured; that bombs were also hurled; that under the circumstances, the higher officials should have come to the police station immediately and that too in the State of Pondicherry; but, in the instant case, the FIR has reached the Court at about 12.00 A.M. night; that no explanation is tendered; that ordinarily mere delay will not suffice to reject the prosecution case; but, in the case on hand, the unexplained and inordinate delay would tell upon the prosecution case and that too the occurrence has taken place inside the police station; and that under the circumstances, the evidence forthcoming from the prosecution side should not be accepted. 12.The learned Senior Counsel pointing to the original FIR, would contend that the serial number is 2301; that the next number as could be seen is 2303, and Sl.No.2302 is found missing; that no explanation was forthcoming; that added further, as expected by the procedure, the carbon copies should have been despatched to the authorities; that in the instant case, photocopies were actually sent; that the photocopies which were placed before the higher officials would clearly indicate that they could not have been prepared from the original since discrepancies are found; that for instance, A-21's name is not in the original FIR, and it has been interpolated in the photocopy; that equally, in the column "receiving the copy of the FIR" at the second page, no signature is found in the original; but in the photocopy it has been added; that all would go to show that the FIR could not have come into https://hcservices.ecourts.gov.in/hcservices/ existence as put forth by the prosecution; and that the above circumstances would clearly indicate that P.W.1 could not have been present at the place of occurrence. 13.The learned Senior Counsel would further add that in the instant case, there was a preliminary charge sheet and later there was an additional charge sheet; that the preliminary charge sheet contained only 20 names; that the additional charge sheet would contain 25 names; but the Investigator has categorically admitted that after the preliminary charge sheet was filed, no investigation was done; and that under the circumstances, five names should have been added without any reason whatsoever. 14.Added further the learned Senior Counsel that as far as the name of P.W.1 is concerned, another important factor which would cast a doubt whether Ex.P1 could have come into existence as put forth by the prosecution, was that P.W.1's name is found in Ex.P1 as Duiman @ Manikandan; but, it is found in evidence as Veeman @ Manikandan, and thus it would be quite clear that Ex.P1 could not have been prepared when P.W.1 was present; that his signature should have been obtained after its preparation, and thus Ex.P1 is highly doubtful. 15.Added further the learned Senior Counsel that as far as the presence of P.W.2 is concerned, the evidence of P.W.2 was rightly rejected by the trial Court; that if the presence of P.W.1 is doubtful, what could be available for the prosecution is the evidence of P.Ws.3 and 4; that they were police personnel; that apart from that, they have given different versions before the Doctor and also in the evidence; that the GD entry is also found to be different; and that all would go to show that no credit could be attached to the evidence of P.Ws.3 and 4. 16.Added further the learned Senior Counsel that the further evidence of P.W.1 that at the time when they were actually coming in the bike, it was A-3 who was riding one bike and A-1 another bike; that as regards pillion riders, no statement was given before the Court; that P.W.34, the Investigating Officer, has stated in his inquest report that at the time of occurrence, A-21 was riding one bike and A-3 was riding another bike and in the first bike, A-1 and A-2 were pillion riders; that as per the remand report, A-8 and A-22 were the pillion riders and thus inconsistent versions were found; and that all would go to show that the prosecution has miserably failed to prove the presence of the accused persons who were found guilty by the trial Court. 17.The learned Senior Counsel would further add that as far as A-1 was concerned, he had fracture on the third metabone right foot and had treatment with D.W.1, the Doctor, who advised him to take rest for 40 days; that he was actually very well available in the house; that a condolence has taken place in the opposite house, and he was found present in his house till 3.00 P.M. on that day, and thus, he could not have participated in the occurrence at all; that the defence has brought forth sufficient evidence to disprove the prosecution story; but, the trial Court has not adverted its attention in any one of the aspects; that apart from that, it is a https://hcservices.ecourts.gov.in/hcservices/ case where there is thorough lack of evidence; that under the circumstances, the prosecution has miserably failed to prove its case, and hence they are entitled for acquittal. 18.Advancing arguments on behalf of A-7 and A-22, the learned Senior Counsel Mr.V.Gopinath, would urge that the FIR has reached the Court at 12.00 A.M. night; that P.W.34 has not given any explanation at all; that the evidence of P.Ws.3 and 4 was shaky as to their presence and that of P.W.1; that in a given case like this, the higher officials immediately on reaching the police station, should have verified whether the FIR has been sent or not; that in the case on hand, the FIR was not sent immediately, but has reached the Court at 12.00 A.M.; that this would clearly indicate that sufficient developments have been made; and that all embellishments possible have also been made. 19.The learned Senior Counsel would further add that the trial Court has not marshaled the evidence proper and the totality of the evidence what was available that P.W.1 was not present; that P.Ws.3 and 4's evidence was shaky and thoroughly unbelievable and not because of the reason that they were police personnel; but, they have given different versions regarding the way in which the occurrence has taken place and they were also attacked; that under the circumstances, the prosecution has miserably failed to prove its case, and hence they are entitled for acquittal