IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 9-3-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.No.668 of 2009 Raja .. Appellant vs State by: Inspector of Police Mettur Police Station Salem District Crime No.421/2007 .. Respondent Criminal appeal preferred under Sec.374 of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Court, Fast Track Court No.I, Salem, made in S.C.No.214 of 2008 dated 12.8.2009. For Appellant : Mr.S.Doraisamy For Respondent : Mr.V.R.Balasubramanian Additional Public Prosecutor JUDGMENT (Judgment of the Court was made by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the Additional Sessions Division, Fast Track Court No.I, Salem, made in S.C.No.214 of 2008 whereby the appellant, sole accused stood charged, tried, found guilty under Sec.302 read with 34 of IPC and awarded life imprisonment along with a fine of Rs.1,00,000/- and default sentence. In respect of the other juvenile accused, the case was split up. 2.Short acts necessary for the disposal of this appeal can be stated as follows: (a) P.Ws.1 and 2 were residents of Kullaveeranpatti. The appellant/accused is the younger brother of P.W.1, and the other juvenile accused is the son of the appellant. P.W.1 had another brother by name Chinnappan and also a sister. The younger brother of P.W.1 Chinnappan and the accused had quarrel over their immovable properties. At one point of time, the appellant/accused along with his relatives drove Chinnappan out of the family properties. He came and informed to P.W.1. P.W.1 accompanied by his son the deceased Venkateswaran, and others went to the house and questioned the https://hcservices.ecourts.gov.in/hcservices/ conduct of the appellant. Immediately, he took an aruval and attacked both P.W.1 and Chinnappan. Thereafter, at the time of the death of P.W.1's mother, when P.W.1 accompanied by his relatives went over there, the accused chased them out. Following the same, the deceased Venkateswaran attacked the accused with an aruval, and a case came to be registered. The criminal proceedings were pending before the Assistant Sessions Court, Mettur, during the relevant time. (b) On the date of occurrence i.e., 7.11.2007, at about 7.00 A.M., when the appellant/accused and his son the juvenile accused on seeing the deceased, told him "you cannot escape and you should be finished off". On the afternoon hours, when P.W.1 and his wife were in the house at about 4.00 P.M., Venkateswaran went to the nearby workshop for getting certain spare parts for the motorbike, and even after about half an hour, since he did not return, both P.Ws.1 and 2 went in search of him. Nearby the pump house abutting the house of Tirumalaisamy, P.Ws.1 and 2 witnessed both the accused and the deceased quarrelling. When they were about to intervene, both the accused were wielding their aruvals on the deceased indiscriminately. When the witnesses shouted, the nearby people gathered. The occurrence was witnessed not only by P.Ws.1 and 2, but also by P.Ws.3 to 6 who are the neighbours. Immediately, both the accused fled away from the place of occurrence. (c) P.W.1 and others took the severely injured Venkateswaran to the Government Hospital, Mettur, for giving treatment. They were advised to take him immediately to Salem Government Hospital. But, on the way to Salem, he died. Then they took the dead body of Venkateswaran to the house. Thereafter, P.W.1 proceeded to the respondent police station and gave a report, Ex.P1, on the strength of which P.W.13, the Sub Inspector of Police, registered a case in Crime No.621 of 2007 under Sec.302 of IPC. The printed FIR, Ex.P9, was despatched to the Court. (d) On receipt of the copy of the FIR, P.W.14, the Inspector of Police of the Circle, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P10. Then he recovered the material objects including the bloodstained earth and sample earth under a cover of mahazar. He conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P11. Thereafter, the dead body was sent to the Government Hospital along with a requisition for the purpose of autopsy. (e) P.W.12, the Doctor, attached to the Government Hospital, Mettur, on receipt of the requisition, conducted autopsy on the dead body of Venkateswaran and has issued a postmortem certificate, Ex.P8. The Doctor has given his opinion under Ex.P16 that the deceased would appear to have died of shock and haemorrhage due to multiple cut injuries. (f) On the next day i.e., 8.11.2007, at 10.30 A.M., when P.W.9, the Village Administrative Officer (VAO), was in his office, the appellant/accused appeared before him and gave a confessional statement regarding the crime. The same was recorded by him which https://hcservices.ecourts.gov.in/hcservices/ was marked as Ex.P4. Along with his report, Ex.P5, he produced the accused before the Investigator. The Investigator arrested him, and at that time, he came forward to give a confessional statement voluntarily. The same was recorded. The admissible part is marked as Ex.P6, pursuant to which he produced an aruval, marked as M.O.1, which was recovered under a cover of mahazar. Thereafter, he was sent for judicial remand. (g) P.W.1 was taken to the Judicial Magistrate's Court for recording his statement under Sec.164 of Cr.P.C. Accordingly, the same was recorded. All the material objects were subjected to analysis by the Forensic Sciences Department which brought forth Ex.P17, the chemical analyst's report. On completion of investigation, the Investigator filed the final report. 3.The case was committed to Court of Sessions, and necessary charge was framed. In order to substantiate the charge, the prosecution examined 14 witnesses and also relied on 18 exhibits and 10 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which he flatly denied as false. No defence witness was examined; but, three documents were filed as Exs.D1 to D3. On completion of the evidence on both sides, the trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and entered a judgment of conviction insofar as the charge of murder and awarded life imprisonment. Hence this appeal at the instance of the appellant. 4.Advancing arguments on behalf of the appellant, the learned Counsel inter alia raised the following two submissions: (i) As far as the occurrence was concerned, the gist of the case of the prosecution was that at about 4.30 P.M. on 7.11.2007, the appellant before the Court along with the juvenile accused attacked the deceased Venkateswaran and caused his death instantaneously, and the same was witnessed by P.Ws.1 to 6. Insofar as P.Ws.1 and 2, they are the parents of the deceased. As far as P.Ws.3 to 6 are concerned, they have turned hostile, and hence their evidence was not available to the prosecution. P.Ws.1 and 2 though claimed that they have witnessed the occurrence, their evidence at the time of cross- examination would make it abundantly clear that they could not have seen the occurrence at all. P.Ws.1 and 2 have accompanied each other. According to them, they came to know that there was a wordy altercation between the accused and the deceased, and immediately they went to the spot. Both have categorically admitted at the time of cross-examination that when they went to the place, they found the dead body, and thus it would be quite clear that by that time, the occurrence was over. At that time, it is not their case that both of them were standing nearby. Even by their own admission, they could not have seen the occurrence at all and hence their evidence was not available to the prosecution. Hence the prosecution had no evidence to adduce to support its case. (ii) The prosecution much relied on and the trial Court has also https://hcservices.ecourts.gov.in/hcservices/ accepted the evidence adduced by P.W.9, the VAO, that when he was in his office at about 10.30 A.M. on 8.11.2007, the accused appeared before him and gave a confessional statement, and the same was recorded, and he produced the accused along with the statement and also the report which were marked as Exs.P4 and P5 respectively, before the police officer. But, these documents should have been rejected by the trial Court for the simple reason that even P.W.1 has candidly admitted that he went to the police station to give Ex.P1, the complaint, and at that time, he found the appellant/accused in the police station, and if the appellant/accused was well available in the police station on the night hours of 7.11.2007, then no question of the accused appearing before the VAO, P.W.9, on the next day would arise. Thus these documents were actually prepared by the police to suit the prosecution case, and they should have been rejected by the trial Court. 5.The learned Counsel would further submit that if the above two pieces of evidence relied on by the prosecution and accepted by the trial Court, are rejected, then the prosecution has no evidence to offer, and hence the prosecution had not brought home the guilt of the accused in any manner known to law, and they are entitled for acquittal in the hands of this Court. 6.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 7.It is not in controversy that one Venkateswaran, the son of P.Ws.1 and 2, was done to death in an incident that took place in the afternoon hours of 7.11.2007. Following the inquest made by P.W.14, the Investigator, the dead body was subjected to postmortem by P.W.12, the Doctor, who has given the postmortem certificate, Ex.P8, wherein he has opined that the deceased died of shock and haemorrhage due to the injuries sustained by him. The fact that he died out of homicidal violence was never disputed by the appellant before the trial Court, and hence without any impediment it could be recorded so. 8.In order to substantiate the charge alleged against the appellant/accused that in furtherance of the common intention, the appellant along with the juvenile accused attacked the deceased indiscriminately and caused his death the prosecution put forth evidence which was twofold. Firstly, P.Ws.1 to 6 were examined as direct evidence, and the second part was that of the extra-judicial confession alleged to have been given by the appellant/accused to P.W.9, the VAO. After scrutiny of all the materials available, this Court is of the considered opinion that these two pieces of evidence put forth by the prosecution have got to be rejected for the following reasons. 9.As far as the occurrence witnesses are concerned, P.Ws.3 to 6 have turned hostile, and thus their evidence was not useful to the prosecution. As far as P.Ws.1 and 2 are concerned, they have candidly admitted that at the time of occurrence, when they went to the spot, they found the dead body of their son lying on the ground. Thus it would be quite clear that they have gone to the place of occurrence only after the occurrence was over. Hence the evidence of https://hcservices.ecourts.gov.in/hcservices/ these witnesses would not serve the case of the prosecution. In such circumstances, the direct evidence adduced by the prosecution was of no avail. 10.Insofar as the second part, as rightly pointed out by the learned Counsel for the appellant, P.W.1 has candidly admitted that the present appellant/accused was available in the police station on the night hours of 7.11.2007 when he gave the complaint. If to be so, the evidence adduced by P.W.9, the VAO, that when he was in his office at about 10.30 A.M. on 8.11.2007, the accused appeared before him and gave the extra-judicial confession cannot but be false. Hence the arrest and the confession which led to the recovery of the material object as urged by the Investigator cannot also be accepted. Under such circumstances, the evidence put forth by the prosecution in no way was helpful to the prosecution to bring home the guilt of the accused. If these two pieces of evidence as put forth by the prosecution are not available, then the prosecution had no more evidence to offer. Hence it can be well stated that the prosecution has not brought home the guilt of the accused either by direct evidence or by indirect evidence. Under the circumstances, the judgment of the trial Court has got to be set aside by allowing the appeal and acquitting the appellant. 11.In the result, this criminal appeal is allowed setting aside the judgment of the trial Court. The appellant is acquitted of the charge levelled against him. The fine amount if any paid by him shall be refunded to him. He is directed to be set at liberty forthwith unless his presence is required in connection with any other case. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar nsv To: 1.The Additional District and Sessions Judge Fast Track Court No.I Salem 2.-do- Thro The Principal District and Sessions Judge, Salem. 3.The District Collector, Salem District. 4.The Director General of Police, Chennai. 5.The Superintendent, Central Prison, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/ 6.The Inspector of Police Mettur Police Station Salem District Crime No.421/2007 7.The Public Prosecutor High Court Madras. 1 cc to Mr.S.Doraisamy, Advocate, Sr.No.15926 CRL.A.No.668 of 2009 KU {CO} TP/17.3.2010. https://hcservices.ecourts.gov.in/hcservices/