IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25-11-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.No.867 of 2008 State rep. By The Inspector of Police "Q" Branch Thirupathur (Thirupathur Taluk P.S. Crime No.314/1978) .. Appellant/Complainant vs Nondi Palani @ Palani .. Respondent/Accused Criminal appeal preferred under Sec.378 of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge (Fast Track Court), Vellore, made in S.C.No.27/2008 dated 17.9.2008. For Appellant : Mr.V.R.Balasubramanian Additional Public Prosecutor For Respondent : Mr.R.Sankarasubbu JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) State appeals challenging a judgment of acquittal of the respondent made in S.C.No.27 of 2008 on the file of the Additional Sessions Division, Fast Track Court, Vellore, whereby the sole accused/respondent stood charged under Sections 148, 323, 324, 324 r/w 149, 307, 302 (two counts), 427 and 450 of IPC, tried and on trial, acquitted of all the charges levelled against him. 2.Short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 was the daughter of the first deceased (D1) Seenan @ Seenivasan. She was residing along with the family members at Koodapattu Village. Vasantha was his wife and Ramajiammal was the mother of D1 Seenan. Sundarammal and Kannammal were neighbours. The respondent/accused was originally employed in the house of Seenan, and subsequently his services were terminated. (b) On the date of occurrence i.e., 3.5.1978, at about 8.00 P.M., Seenan, P.W.1 and her mother Vasantha were all inside the house. Seenan was taking his dinner. At that time, Ramajiammal, https://hcservices.ecourts.gov.in/hcservices/ Sundarammal and Kannammal were sitting outside the house and chatting. Seenan after taking his dinner, came out of the house. At that time, the respondent/ accused along with all other accused came over there, caught hold of him and attacked him with the cycle chain. On seeing this, Vasantha raised alarm and shouted not to attack him. Immediately, the accused stabbed Seenan on his chest. Seenan fell down swooned. Within a short span of time, he died. The wife of D1 Vasantha, and also P.W.3 were injured in that incident. (c) All the accused including the respondent/accused, proceeded from the place, and on the way when they were just proceeding, they attacked the second deceased (D2) Nainath Gounder and also P.W.6 and one Govindasamy. They also hurled the country bombs. In that incident, not only Nainath died, but also P.W.6 and the said Govindasamy were seriously injured. The accused also damaged the tractor belonging to one Nagaraj and the motorcycle which belonged to P.W.5, and thereafter, they fled away from the place of occurrence. (d) The said Vasantha, P.Ws.3 and 6 and the said Govindasamy were given treatment. The accident register copies in their regard are marked as Exs.P12, P16, P22 and P25 respectively. (e) P.W.18, the Sub Inspector of Police, attached to the Taluk PS, Tirupattur, received a phone message at about 9.45 P.M. from one Ramachandran about the above crimes committed by all the accused who were naxalites. He after making an entry in the G.D., proceeded to Koodapattu Village and recorded the statement of Vasantha, the wife of D1. On the strength of the said report marked as Ex.P26, he registered a case in Crime No.314/78 under Sections 147, 148, 149, 307, 302 and 286 of IPC. The printed FIR, Ex.P27, was despatched to the Court. (f) P.W.19, the Inspector of Police of the Circle, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection of the first incident place namely the house of Seenan, and prepared an observation mahazar, Ex.P28, and also a sketch, Ex.P29. Then he recovered 12 pamphlets under Ex.P30 mahazar. On 4.5.1978 he conducted inquest on the dead body of Seenan in the presence of witnesses and panchayatdars, and the inquest report prepared by him, is marked as Ex.P31. Then he sent the dead body to the Government Hospital for the purpose of postmortem along with a requisition Ex.P32 through a Head Constable. He recovered the material objects under a cover of Ex.P34, mahazar from that place of occurrence. (g) P.W.19 also prepared an observation mahazar at the place where the telephone wire was disconnected. Ex.P36 is the said observation mahazar. Thereafter he proceeded to the place where the second incident has taken place in which Ninath Gounder and others were attacked, and prepared an observation mahazar, Ex.P37, and also a rough sketch, Ex.P38. He recovered all the material objects from that place of occurrence under a cover of Ex.P41 mahazar. Then he proceeded to the house of P.W.5, Ilayaraja, where the tractor and motorcycle were damaged. He prepared Ex.P43 mahazar, and the place of occurrence was photographed and photographs were taken. He interrogated all the witnesses and recorded their statements. All the material objects were sent to the Court under Form 95. He also sent a requisition on 6.5.1978, to the Explosives Department for the purpose of analysis, and the https://hcservices.ecourts.gov.in/hcservices/ report is also marked as Ex.P51. (h) Despite treatment, Nainath Gounder died on 6.5.1978. On receipt of the intimation, the Investigator altered the provisions of law, and the altered FIR is marked as Ex.P52. Then he conducted inquest on the dead body of Nainath, and the inquest report prepared by him, is marked as Ex.P53. He sent a requisition, Ex.P54, to the hospital for the purpose of autopsy. (i) The dead body of Seenan was subjected to postmortem by one Dr.Jatti, attached to the Government Hospital, Tirupattur. Since the said medical person has gone to abroad, P.W.16, the Doctor, was examined. The postmortem certificate, issued by Dr.Jatti, is marked through P.W.16 as Ex.P8. The Doctor has opined that Seenan died of shock and haemorrhage due to the injuries sustained by him. (j) Equally the dead body of Nainath Gounder was subjected to autopsy by P.W.10, the Doctor, attached to the Government Hospital, Tirupattur, and the postmortem certificates issued by him is marked as Ex.P2. The Doctor has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained by him. (k) All the material objects were subjected to chemical analysis by the Forensic Sciences Department. The chemical analyst's report is Ex.P59, while the serologist's report is Ex.P60. (l) The further investigation, pursuant to the orders of the D.G.P., was entrusted to the "Q" Branch. One Krishnasamy, the Inspector of Police in "Q" Branch, took up the investigation. P.W.20, during the relevant time, was serving as the Sub Inspector of Police under the said Krishnasamy. P.W.20 knew the handwriting of Krishnasamy. Since Krishnasamy was not alive, P.W.20 gave evidence about the further investigation done by the said Krishnasamy. According to him, the Inspector Krishnasamy who took up investigation, on 16.5.1978, arrested the accused Jayachandran and also Sampath. On 18.5.1978, the accused Chandrasekaran was arrested, and on 22.5.1978, the Investigator examined 25 witnesses. On 23.5.1978, he examined 5 more witnesses. On 24.5.1978, he examined 12 more witnesses and recorded their statements. On 25.5.1978, he recorded the statements of 16 witnesses, and thereafter, on 5.6.1978, he arrested the accused by name Shanmugan. On 11.6.1978, he arrested the accused Krishnan, Elumalai and Samiyar @ Samraj. He examined Dr.Nandakumar who gave treatment to the injured witnesses, and he also examined Dr.Jatti who conducted postmortem on the dead body of Seenan. He also recorded the statement of Dr.Chandrasekar who conducted autopsy on the dead body of Nainath. On 27.6.1978, he gave a requisition for the conduct of identification parade. Accordingly, test identification parade was conducted. On completion of investigation, the Investigator filed the final report. 3.The case was committed to Court of Session, and out of 23 accused shown in the charge sheet, 15 were tried in S.C.No.65/78 on the file of the Court of Session, Vellore and one accused was tried in S.C.No.167/2001 by the same Court. Both the sessions cases ended in acquittal. The respondent accused was absconding. He was secured. After being secured, he was tried in S.C.No.27/2008. The trial Court framed as many number of charges https://hcservices.ecourts.gov.in/hcservices/ against him. After following the procedural formalities, the case was taken up for trial. In order to substantiate the charges, the prosecution examined 20 witnesses and also relied on 62 exhibits and 71 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 18 documents were marked on his side. On completion of the evidence on both sides, the trial Judge after hearing the arguments advanced on either side, took the view that the prosecution has not proved the case beyond reasonable doubt and made an order of acquittal. Aggrieved over the same, the State has brought forth this appeal. 4.Advancing arguments on behalf of the appellant/State, the learned Additional Public Prosecutor would submit that the judgment of the trial Court is perverse and lacking in reasons; that the corroborative testimony of the witnesses should have been believed by the trial Court; that P.Ws.1 and 2, who are the eyewitnesses to the occurrence, and P.W.6, who is an injured witness, have given clear evidence regarding the overt acts committed by the respondent/ accused; that the quantity of evidence is not the criterion, but only the quality of evidence assumes importance; that the trial Court has failed to appreciate the evidence put forth by the prosecution; that the trial Court has erroneously concluded that the non-examination of many witnesses has affected the prosecution case; that it is pertinent to point out that many witnesses have given evidence in the earlier proceedings in S.C.Nos.65/78 and 167/2001; that P.W.1 who was aged 11 at the time of occurrence, has clearly deposed in S.C.No.65/1978 against the other accused; that after a lapse of 20 years, one could not recollect the memory, and hence minor contradictions are bound to occur; that under the circumstances, the evidence of the eyewitnesses cannot be brushed aside on that ground; that the reasons adduced by the trial Court for rejecting her evidence, are too flimsy; that it is settled law that even on the basis of the testimony of a sole eyewitness, the accused can be convicted; that it is pertinent to point out that at the time of cross-examination, P.W.1 has categorically stated that she knew the respondent/accused since he worked as a servant in their house, and it was the respondent/accused who stabbed him on the chest with a knife and caused his death; that she has also identified the respondent/accused and stated that he was the person involved in the commission of the offence; that there are minor discrepancies as to the place of occurrence; but, the same need not be given much weight; that admittedly, the murder took place at the gate of the house of the deceased; that since the body was taken inside the house, it cannot be stated that the witnesses have given different versions regarding the scene of occurrence; that apart from that, P.W.4, who belonged to the same village, has identified the respondent/accused and has also deposed that he came there along with other accused persons; that in the instant case, P.W.3 is an injured witness; that according to P.W.5, his motor cycle was damaged apart from the tractor belonging to one Nagaraj; that P.W.7 has also spoken about the involvement of the respondent/accused in the commission of the https://hcservices.ecourts.gov.in/hcservices/ offence; that since Dr.Jatti who conducted postmortem on the deceased Seenan, has gone abroad, he could not be examined, and P.W.16, the Doctor, has been examined; that in this case, according to P.W.18, the Sub Inspector of Police, he recorded the statement given by Vasantha, wife of Seenan, at 11.00 P.M. and registered the FIR at 12.15 night, and the Inspector of Police Mr.Palani has conducted the inquest and recorded the statement of the witnesses on the next day; but the trial Court has taken it as contradiction as if the complaint was recorded only the next day; that under the circumstances, the prosecution has proved the case beyond all reasonable doubts by adducing oral, documentary, medical and scientific evidence in the proper perspective, but the trial Court without appreciation of the evidence has acquitted the respondent/accused, and hence the judgment of the trial Court has got to be set aside and the respondent/accused be dealt with in accordance with law. 5.The Court heard the learned Counsel for the respondent/accused who put forth his submissions elaborately in his sincere attempt of sustaining the judgment of acquittal by the trial Court. 6.The Court paid its anxious consideration on the submissions made. 7.As could be seen above, the case of the prosecution before the trial Court was that on 3.5.1978 at about 8.00 P.M., all the 23 accused, who were naxalites and who were shown in the charge sheet, in furtherance of their common object of causing the death of Seenan, constituted an unlawful assembly, entered into his house, attacked him and caused his death, and in that incident, his wife Vasantha sustained injuries, and also P.W.3 sustained injuries, and when they proceeded therefrom, they attacked one Nainath Gounder and P.W.6 and one Govindasamy, and thereafter, they damaged the tractor of one Nagaraj and the two wheeler of P.W.5, and thus they have committed the crimes mentioned in the charges. The trial Court on appreciation of evidence, has made a judgment of acquittal. It is settled principle of law that while the trial Court on appreciation of evidence made an order of acquittal, the appellate Court should not interfere with the judgment unless and until the judgment of the trial Court is perverse or it absolutely lacked in reason for making an order of acquittal. 8.When the charge sheet was laid against 23 accused, out of them, 15 faced trial in S.C.No.65/1978, and one faced trial in S.C.No.167/2001, and the accused in those cases after full trial, on the same factual finding and the charges, were acquitted. Number of witnesses who were examined in those cases, are not examined in the present case in S.C.No.27/2008. For the non- examination of those witnesses, the prosecution placed reasons before the trial Court. The witnesses who were examined in the present case, were also examined as witnesses in the earlier case. Under the said circumstances, there cannot be any impediment for entering a judgment on the appreciation of the evidence adduced before the trial Court at the time of trial as done by the trial https://hcservices.ecourts.gov.in/hcservices/ Court in the instant case. 9.The prosecution came with the story that the respondent accused along with 22 others whose names are found in the original charge sheet, came to the occurrence spot in furtherance of their common object of causing the death of Seenan; that in the course of the same transaction, they caused injury to Vasantha, the wife of D1 Seenan and P.W.3; and that also in the later part of the transaction, they attacked one Nainath Gounder, D2, and also P.W.6 and one Govindasamy. The wife of Seenan, Vasantha, who gave Ex.P26, the report, and gave evidence in the earlier Sessions trials in S.C.Nos.65/1978 and 167/2001, died pending the trial. In such circumstances, though she was shown as an injured witness, she could not be examined. In respect of the first part of the transaction which took place in the residential house of Seenan, the prosecution examined P.W.1 Maheswari, the daughter of Seenan, P.W.2, Sundarammal, a neighbour, and also P.W.3, Santhinathan. P.W.1, admittedly, was 10 years old at the time of the incident in the year 1978, and when she was examined in the instant case in the year 2008-2009, she was in her 40's. Since she was the daughter of Seenan, her evidence could be accepted only after applying the careful scrutiny test. If the test is applied, this Court is afraid whether her evidence can be accepted. The prosecution proceeded with its case as if P.W.1 was available at the time of the transaction when all the accused persons entered into the house. She has deposed at the time of chief-examination that the occurrence has taken place in the hall; but at the time of cross-examination, she has deposed that the occurrence has taken place in between the gate and the house. She has also deposed that she used to stay in her grand-father's house situated adjacent, and after hearing the hue and cry, she along with number of persons rushed to the house where Seenan was residing, and when all of them were entering, the occurrence was taking place. At this juncture, it is pertinent to point out that since she has got different versions as to the place of occurrence and also in view of the admission made by her that after hearing the distressing cry, she along with all other members rushed to the spot, she could not have witnessed the occurrence at all. Apart from that, she has categorically deposed that all the persons were wearing mask. It could also be seen that at the time when the occurrence was on, the electric energy was disconnected, and it was under darkness. Hence P.W.1 could not have seen the occurrence at all. Besides that, P.W.1 was also not examined at the time of the inquest. If really, she was an eyewitness to the occurrence, when the inquest was conducted, she should have been mentioned as a witness, but not so. 10.P.W.1 has deposed that totally about 50 persons entered into the house and attacked her father. From the medical report and also the evidence of P.W.10, the Doctor, it could be seen that Seenan sustained two cut injuries and also a contusion on the right shoulder, and thus P.W.1 could not account for the injuries sustained by him. If the version of P.W.1 that Seenan was attacked by 50 persons at the same time is true, the case of the prosecution that it was the respondent/accused who attacked him with a cycle chain and also a knife cannot be accepted. It is https://hcservices.ecourts.gov.in/hcservices/ highly doubtful whether Ex.P26, the report, alleged to have been given by Vasantha, wife of D1 Seenan, could have come into existence on the date of occurrence i.e., 3.5.1978. According to P.W.18, on receipt of the intimation from one Ramachandran through telephone, he rushed to the place of occurrence at Koodapattu Village, enquired the said Vasantha and recorded her statement at about 11.00 P.M., and that is Ex.P26, and then he registered a case under Ex.P27, the FIR, immediately after reaching the station. P.W.1 has given two versions with respect to Ex.P26, the report. At one stage, she has stated that the police enquired her mother, recorded her statement and got her signature at about 9.30 P.M. on the date of occurrence. But, at another stage, she has deposed that the police official enquired only on the next day morning at about 10.00 A.M. when for the first time, her mother and all witnesses informed the names of the accused, and after recording the same, the police official got the signature of her mother. Apart from her evidence, P.W.9, the brother of D1 Seenan, has deposed that the report was prepared at the Village Administrative Officer's house at 9.00 A.M. the next morning, and the signature of Seenan's wife Vasantha was obtained in the report at about 10.00 A.M. If the evidence of P.Ws.1 and 9 that the report was prepared only in the next morning and the signature of Vasantha was obtained at about 9.00 or 10.00 A.M. on 4.5.1978 is taken as true, then the case of the prosecution that the report was recorded on the very night, and the case was also registered at about 11.00 P.M. on 3.5.1978, cannot be accepted, and thus it cast a reasonable doubt whether the report and the corresponding FIR could have come into existence at the night hours as put forth by the prosecution. 11.Equally, it is highly doubtful whether P.W.2 could have seen the occurrence at all. It is not the case of the prosecution that the occurrence has taken place in any closed room. But, P.W.2 has categorically stated that the occurrence has taken place inside a closed room where Seenan was actually attacked; that the injured persons were also inside the room which was locked; and that thereafter, the windows were broken and they were taken out. At this juncture, the learned Counsel for the respondent/accused took the Court to Exs.D1 to D5 which would clearly indicate that P.W.2 in the earlier proceedings has categorically stated that she did not know who were the assailants, and since the room where the occurrence has taken place, was closed, she could not see the incident; and that after the occurrence was over, the windows were broken, and all were brought out. In such circumstances, it can be well stated that the version of P.W.2 was discrepant not only in respect of the place of occurrence, but also the manner in which the incident had taken place. That apart, P.W.2 was not examined during the inquest. Insofar as P.W.3, though shown as an injured witness, the trial Court has pointed out the discrepancies found in the evidence which would suffice to reject the testimony. Thus the evidence of P.Ws.1 to 3 who were eyewitnesses, was not useful to the prosecution case. 12.In the earlier proceedings in S.C.No.65/78, Ramajiammal, mother of D1, was examined as P.W.1. In her evidence in the earlier proceedings, she has categorically deposed that she did https://hcservices.ecourts.gov.in/hcservices/ not know any one of the accused, nor had she given any one of their names; that the next day only she was informed about their names; and that when 10 of the accused came inside, the electric energy was terminated. Thus in respect of the first part of the occurrence, it cannot be stated that the prosecution has placed any acceptable evidence. 13.Insofar as the second part of occurrence, in which Nainath and P.W.6 and one Govindasamy were attacked, P.W.16 has categorically deposed that he knew only A-1 and A-15 in the earlier proceedings, who attacked D2 and not others. The evidence of P.Ws.7 and 8 as pointed out by the trial Judge could not be availed by the prosecution, and the trial Judge has also noted all the discrepancies in the present evidence from the one recorded by him in the earlier proceedings. In such circumstances, the evidence of these witnesses cannot also be accepted. 14.As regards the second part of occurrence, though three witnesses were examined, P.W.6 was the only witness who was examined in respect of the death of Nainath Gounder. But, from his evidence, there is nothing to infer that there was any common object in furtherance of which the accused persons acted, or in particular, the respondent was acting during the relevant time. Admittedly, the occurrence has taken place on a new moon day and that too during night hours. According to P.W.6, Ninath Gounder was actually attacked in a fruit garden. It is also admitted that all the accused persons were wearing mask, and hence it would not have been possible for the witnesses to notice the accused persons and that too in utter darkness when they were wearing mask. Though the prosecution tried to introduce a torch light as if it was held by P.W.6, he has categorically admitted that at the time of occurrence, he dropped the same, and hence the evidence of P.W.6 was not useful to the prosecution theory. 15.There is no material placed before the trial Court when and by whom he was arrested. The learned Counsel for the respondent brought to the notice of the Court that Ramajiammal in her evidence in the earlier proceedings has candidly admitted that the respondent was actually arrested and taken to the police station on the very night. But no material is placed as to the arrest, his production