IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 04.10.2010 Coram The Honourable Mr. Justice M. CHOCKALINGAM and The Honourable Mr. Justice M. SATHYANARAYANAN Crl. A. No.331 of 2010 Krishnakumar ... Appellant/Accused No.1 ..Vs.. State, rep. by Sub Inspector of Police, B-8 Police Station, Coimbatore. (Crime No.346 of 2008) ... Respondent/Complainant Appeal filed against the judgment dated 29.10.2009 passed by the learned Additional District-cum-Sessions Judge, Fast Track Court No.2, Coimbatore in S.C. No.266 of 2008. For Appellant : Mr. G. Karthikeyan For Respondent : Mr. V.R. Balasubramanian, Addl. Public Prosecutor JUDGMENT (Judgment was delivered by M. CHOCKALINGAM, J.) This appeal challenges the judgment dated 29.10.2009 passed by the learned Additional District-cum-Sessions Judge, Fast Track Court No.2, Coimbatore in S.C. No.266 of 2008, whereby the appellant ranked as first accused along with second accused stood charged and tried for the offence under Section 302 of the Indian Penal Code and found the appellant/first accused guilty under Section 302 of the Indian Penal Code and awarded Life imprisonment and to pay a fine of Rs.1,000/- in default to undergo Rigorous Imprisonment for six months and acquitted the second accused. 2. The short facts necessary for the disposal of the case can be stated thus: (i) Accused 1 and 2 are brothers. They are sons of one Jayalakshmi. She was carrying on a street shop in a Banyan tree https://hcservices.ecourts.gov.in/hcservices/ where she is vending idlis. She developed intimacy with the deceased. When it came to the knowledge of the accused and the other brother, they warned him, saying that because of their intimacy, their marriage was delayed. But, they did not heed to them and they continued their intimacy. (ii) On the date of occurrence i.e. on 16.3.2008, when P.W.1 was in his chicken shop, he heard the quarrel between the accused 1 and 2 on one side and the deceased on the other side. When he came out, he found the first accused attacking the deceased with stone on his hip and the deceased fell down and thereafter, the second accused put the stone on his head. This was witnessed by P.Ws.1, 2 and 3. The accused immediately ran away from the place of occurrence. P.W.1 took an auto, sent the deceased for treatment along with P.W.4, but on the way to the Hospital, he died. P.W.1 gave a complaint Ex.P1 to the respondent-police, on the strength of which, a case came to be registered in Crime No.346 of 2008 for the offence under Section 302 of the Indian Penal Code. Ex.P21 First Information Report was despatched to the Court. (iii) P.W.23 took up investigation and went to the place of occurrence, made an inspection and prepared Observation Mahazar Ex.P10 and Rough Sketch Ex.P22. He caused photographs through P.W.16 Photographer and the photographs are marked as Ex.P5 series. All the material objects were recovered from the place of occurrence. And sent to Forensic Department for chemical analysis. Ex.Ps18 and 19 are the chemical analysis reports and Ex.P20 is the serological report. Thereafter, P.W.23 conducted inquest on the dead body in the presence of Panchayatars and the inquest report is marked as Ex.P23. The dead body was subjected to autopsy through requisition letter Ex.P14 by P.W.21 Doctor and the post-mortem Certificate is marked as Ex.P15 and Final Opinion is marked as Ex.P16, where it is opined that the deceased died due to Cranio cerebral injuries sustained by him. (iv) Pending investigation, on 17.3.2008 at about 3.30 p.m., the accused appeared before 44th Ward Councilor and the confession statement given by the appellant voluntarily was recorded by him in the presence of witnesses and the admissible portion of the same is marked as Ex.P16. Thereafter, the appellant produced blood stained shirt M.O.2 and the same was recovered under the cover of mahazar Ex.P5. Thereafter, P.W.24 Inspector of Police took up investigation and recorded the statements of the witnesses. Thereafter, P.W.25 Inspector of Police took up investigation and recorded the statements. On completion of investigation, final report is filed. The case was committed to the Court of Sessions. Necessary charges were framed against the accused. 3. In order to substantiate its case, the prosecution examined 25 witnesses and relied on 25 documents and also relied on M.Os.1 to 8. On completion of examination of witnesses on the side https://hcservices.ecourts.gov.in/hcservices/ of the prosecution, when the accused were questioned under Section 313 of the Criminal Procedure Code, they denied them as false. No witness was examined on the side of the accused. 4. The Trial Court, after hearing the arguments advanced by either side and scrutinizing the materials available on record, found the appellant/first accused guilty under Section 302 of the Indian Penal Code and awarded the punishment as referred to above, while acquitting the second accused. Hence this appeal is filed at the instance of the appellant. 5. Advancing arguments on behalf of the appellant, learned counsel would submit that the occurrence had taken place on 16.3.2008 at 6.15 p.m.. To prove the case, the prosecution examined three witnesses. P.W.2 has turned hostile. Learned Trial Judge was not ready to believe the evidence of P.W.3 and rejected his testimony. The only evidence available is P.W.1. 6. According to P.W.1, he was having a chicken shop and he was also having his residence near the shop. It was a Sunday at the time of occurrence and he was inside the shop. Since there was heavy crowd, he could not have seen the occurrence. According to P.W.1, he made arrangements to send the deceased to the Hospital along with P.W.4. In Ex.P13 Accident Register, it is mentioned that the deceased was brought by P.W.4 through the respondent-police. But P.W.4 has not even whispered about the presence of P.W.1 and thus it is quite indicative of the fact that the evidence of P.W.1 is wholly inconsistent. 7. Learned counsel added further that according to P.W.1, when he was actually in the spot, the police patrolmen came there and he was taken to the police station where he gave report Ex.P1. On the contrary, in the cross-examination, P.W.1 has stated that immediately after the occurrence, he went to the police station and gave Ex.P1 report. It is highly doubtful whether Ex.P1 came into existence as alleged by P.W.1 and hence, the evidence of P.W.1 should be rejected. 8. Insofar as the extra judicial confession alleged to have been given by the appellant to the Ward Councilor is concerned, he has categorically admitted that he was not the Councilor of the said Ward and he was the Councilor of the other ward. If so, it is utter strange that the appellant went to the Councilor of other ward and gave statement since there is no reason for the Councilor to record such a statement. Barring this evidence, the prosecution had only serological report. Only on the basis of the said report, the conviction cannot be sustained. Hence, the prosecution has miserably failed to prove its case, but the Trial Court has taken an erroneous view. https://hcservices.ecourts.gov.in/hcservices/ 9. This Court heard the learned Additional Public Prosecutor on the above contentions paid its anxious considerations on the submissions made. 10. It is not in controversy that after preparation of inquest report on the dead body of Thambu @ Vivekanandan by the Investigator, the dead body was subjected to post-mortem by P.W.21 Doctor pursuant to the requisition made by the Investigator. P.W.21 Doctor has categorically deposed that the deceased died due to shock and hemorrhage and also due to Cranio cerebral injuries sustained by him. As per the contents of post-mortem Certificate Ex.P15 and also the evidence of medical person, who conducted post-mortem, the prosecution was successful enough to prove the fact that the deceased died out of homicidal violence. 11. In order to substantiate the case of the prosecution that it was the first accused/appellant, who hit the deceased with stone and caused the death, the prosecution has marched over three witnesses, who were P.Ws.1 to 3. Learned Trial Judge was not ready to believe the evidence of P.W.3. P.W.2 has turned hostile. Hence, the prosecution has left with the evidence of P.W.1. Thus, the evidence of P.W.1 remains scrutinized carefully. After the test is applied, the Court is afraid whether the Court can accept the testimony of P.W.1. According to P.W.1, he was carrying on a chicken shop. It was a Sunday. He was inside the shop. The occurrence had taken place 150 or 200 feet away from the shop. If to be so, it is highly doubtful whether he would have come out to see the occurrence and whether he would have seen the first accused/appellant actually hitting the stone on the deceased from 150 to 200 feet from inside the shop. 12. Apart from this, it is highly doubtful to believe the evidence of P.W.1 that after he witnessed the occurrence, the police patrolmen and one Sub Inspector of Police came there and they took him to the police station where Ex.P1 was given. This fact was not mentioned in Ex.P1. Apart from this, according to him, the dead body was sent to the Government Hospital through P.W.4. But P.W.4 has not even whispered about the presence of P.W.1 or the body of Thambu @ Vivekanandan was sent by P.W.1. 13. Apart from that, a perusal of Ex.P13 Accident Register would clearly indicate that the body of Thambu @ Vivekandan was actually sent to the Hospital through the police. Under such circumstances, it is quite inferable while the police came over there, the body was found in the public place and also P.W.1 was not found nearby. The services of P.W.1 was obtained in order to suit the convenience of the prosecution story. Under the circumstances, the evidence of P.W.1 is highly doubtful. https://hcservices.ecourts.gov.in/hcservices/ 14. Added further, insofar as the confession statement alleged to have been given by the appellant to P.W.7 Ward Councilor is concerned, the appellant was not at all required to go to the Ward Councilor, who is out of jurisdiction. On the contrary, the respondent-police was actually within the jurisdiction than the Ward Councilor. Thereafter, the evidence of P.W.7 that the appellant came to his office and gave extra judicial confession and the same was recorded is doubtful. He was a stranger to the appellant. If to be so, there is no reason for the appellant to go to the another Councilor and give statement. Hence, the said statement is highly doubtful. Apart from this, the Serological report through Forensic Department, in the considered opinion of the Court, by itself, would not be suffice to point out the guilt of the accused. Relying on the evidence, as narrated above, is highly unsafe. 15. In such circumstances, the above criminal appeal is allowed, setting aside the judgment dated 29.10.2009 passed by the learned Additional District-cum-Sessions Judge, Fast Track Court No.2, Coimbatore in S.C. No.266 of 2008 and the appellant is acquitted of all the charges framed against him. The appellant/first accused viz. Krishnakumar is directed to be set at liberty forthwith unless his custody is required in connection with any other case. Fine amount, if any, paid is ordered to be refunded to him. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar ssa. To 1. The Additional District-cum- Sessions Judge, Fast Track Court No.2, Coimbatore. 2. -do- Through The Principal Sessions Judges Coimbatore. 3. The Judicial Magistrate No5, Coimbatore. 4. The Chief Judicial Magistrate Coimbatore. 5. The Superintendent, Central Prison, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/ 6. The Sub Inspector of Police, B-8 Police Station, Coimbatore. 7. The District Collector, Coimbatore. 8. The Director General of Police, Madras – 4. 9. The Public Prosecutor, High Court, Madras. + 1 cc to Mr.G. Karthikeyan, Advocate Sr.73120 Crl. A. No.331 of 2010 JRG(CO) Eu 3.11.10 https://hcservices.ecourts.gov.in/hcservices/