B A I L S L I P 1. The Appellants/Accused namely (1) S. Kumar (A1) and 2) Sundaravadivel (A2) are released on bail in and by the order of this Court dated 20.4.2009 and made in MP.No.1/09 in Crl.Appeal Nos.860 and 841/08 respectively. 2. The Appellants/Accused namely (1) Balakrishnan A3, 2) Anbalagan A4, 3) Veeramani A5, are released on bail in and by the order of this Court dated 13.4.2009 and made in Crl.MP.No.1/09 in Crl.Appeal No.778/08. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13.07.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRIMINAL APPEAL NOS.860, 841 and 778 OF 2008 S.Kumar .. Appellant/A1 in Crl.A.No.860/2008 Sundaravadivel .. Appellant/A2 in Crl.A.No.841/2008 Balakrishnan Anbalagan Veeramani .. Appellants/A3,A4 & A5 respectively in Crl.A.No.778/2008 Vs. State represented by Inspector of Police, Jayakondam Police Station, Perambalur. (Crime No.171/05) .. Respondent in all the appeals These appeals are preferred under Section 374 Cr.P.C against the order of the learned Principal Sessions Judge, Perambalur, made in S.C.No.29 of 2007 dated 22.10.2008. For Appellant/A1 in C.A.No.860/2008 : Mr. P.Tamilavel https://hcservices.ecourts.gov.in/hcservices/ For Appellant/A2 in C.A.No.841/2008 and for Appellant/A3 in C.A.No.778/2008 : Mr. V.Rajamohan For Appellant/A4 & A5 in C.A.No.778/2008 : Mr.R.Sankarasubbu For Respondent : Mr.N.R.Elango,A.P.P. (All Crl Appeals) - - - - COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM. J.) Crl.A.No.860 of 2008 was filed by the first accused, Crl.A.No.841 of 2008 was filed by the second accused and Crl.A.No.778 of 2008 was filed by the third, fourth and fifth accused. This judgment shall govern these three appeals. 2. These appellants along with two other accused who were shown as A5 and A6 stood charged, tried and found guilty as follows: Accused Charges Findings Sentence A-1 to A-5 148 IPC Guilty Two years rigorous imprisonment each A-1 to A-5 449 IPC Guilty Two years rigorous imprisonment each A-1 to A-5 302 IPC Guilty Life Imprisonment each A-1 to A-5 & A-7 120(b)IPC Not Guilty A-1 to A-5 147 IPC Not Guilty A-6 449 r/w 109 IPC Not Guilty A-6 302 R/W 109 Not Guilty https://hcservices.ecourts.gov.in/hcservices/ 3. The short facts necessary for the disposal of these appeals can be stated as follows: (a) P.W.1 is the father of the deceased. The deceased, aged 19 years was doing his 10th standard. P.W.1 desired to sell his land. He sold the same to his nephew one Chinnadurai. Equally, his niece one Rani wished to purchase the land from P.W.1. Despite her request, P.W.1 sold the land to Chinnadurai. On instigation of Rani, the accused questioned P.W.1, how he could sell the land to Chinnadurai P.W.1 in turn informed that it was his land and he would sell according to his wish. At that time, the deceased joined with his father and informed the accused that since the advance was obtained from Chinnadurai earlier, his father was proper in selling the land to Chinnadurai and thus, there arose animosity between the accused party and the deceased. (b) P.W.16 owned a TATA Sumo car. The 4th accused was employed as his driver. Terminating his service, P.W.16 employed P.W.21 Karaikalan as his driver. The accused were aggrieved over the same and on that account, they attacked P.W.21 in a public place. On coming to know about the same, the deceased questioned the accused stating if they were really aggrieved, they should have attacked the owner of the van and not the driver. The accused were enraged over the same. All of them were waiting for a chance. On the date of occurrence that is on 14.4.2005 at 10.30 p.m., when P.Ws.3, 4 and the deceased went to witness a film at kala theatre, at that time, all the accused armed with weapons like aruval went inside the theatre and indiscriminately cut the deceased Ilavarasan and the caused his death. It was witnessed by P.Ws.3 and 4. On information, P.W.1 went to the theatre and found his son dead. Then, he immediately proceeded to the respondent Police Station where P.W.27 Inspector of Police was on duty and gave a complaint Ex.P1, on the strength of which, a case came to be registered in Crime No.171/2005 under section 147, 148, and 302 of IPC and the express F.I.R. Ex.P.27 was despatched to Court. (c) P.W.27 Investigating Officer took up investigation. He proceeded to the spot, made an inspection and prepared the observation mahazar Ex.P.28 and also drew a rough sketch Ex.P29. He conducted inquest on the dead body of the deceased in the presence of panchayatdars and prepared Ex.P.31 inquest report. Thereafter, the dead body was subjected to post mortem. P.W.20 doctor who conducted autopsy on the dead body of Ilavarasan has given his categoric opinion in Ex.P.18 that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained to the vital organs. The Investigation Officer examined P.W.6, the owner of the theatre, P.W.7 operator and also the employees of the theatre and recorded their statements. He recorded the statement of other witnesses also. (d) Pending investigation, the Investigating Officer arrested A3 and he came forward to give confessional statement, pursuant to https://hcservices.ecourts.gov.in/hcservices/ which he produced M.O.3 aruval and also TATA Sumo van and the same were recovered. Pending investigation, the Investigating Officer came to know that A1, A2, A4 and A5 surrendered before the Judicial Magistrate Court. He made an application for police custody and the same was also ordered. The accused came forward to give confessional statement and the same were recorded, pursuant to which, they produced the weapons of crime which were also recovered under a cover of mahazar and all the material objects were subjected to chemical analysis by the Forensic Department on the request made by the Investigating Officer through the concerned Court. The chemical report ExP26 and the serologist report Ex.P42 were obtained by the Judicial Magistrate Court. On completion of the investigation, the Investigating Officer filed a final report. (e) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 27 witnesses and relied on 42 exhibits and 19 material objects. On completion of the evidence on the side of the prosecution, all the accused were questioned under section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution and they denied them as false. No defence witness was examined. The lower Court heard the arguments advanced on either side and took a view that the prosecution has proved the case beyond reasonable doubt and rendered the judgment of conviction and sentence as referred to above. Hence, these appeals at the instance of the appellants. 4. Advancing the arguments on behalf of the appellants, learned counsel inter alia made the following submissions. 5. The case of the prosecution was due to previous enmity all the accused/appellants along with A6 and A7 in furtherance of common object went inside the theatre when the deceased along with P.Ws. 3 and 4 were witnessing a film and attacked the deceased indiscriminately by deadly weapons and caused his death instantaneously and fled away from the place of occurrence. In this regard, two eye witnesses were examined viz., P.Ws. 3 and 4 but they have turned hostile and did not support the prosecution case at all. The other witnesses examined were the owner of the theatre, operator and the person who used to check and issue tickets. It is pertinent to point out that the occurrence has taken place at 10.30 p.m. inside the theatre and it could have been seen by number of persons. Apart from that, according to the prosecution, the deceased accompanied by P.Ws. 3 and 4 went to watch a film but no independent witness was examined. The two eye witnesses, viz., P.Ws. 3 and 4 have turned hostile. As such, the prosecution has miserably failed to prove the overt act attributed to the accused. Added further learned counsel, in the instant case, so far as the recovery was concerned, though the prosecution examined P.Ws.17 and 19 as witnesses for recovery, confession, they have turned hostile https://hcservices.ecourts.gov.in/hcservices/ and even the Village Administrative Officer Ex.P18 who was examined by the prosecution in this regard has spoken that after the accused were taken to the police station, his signature was obtained in the confession statement and in the recovery mahazars. Thus, it is quite clear that the prosecution could not bring home the fact of arrest, recovery and confessional statement. Therefore, that part of the evidence did not support the case of the prosecution. 6. The other part which was available is the medical opinion canvassed. Ilavarasan was done to death inside the theatre but the prosecution had no evidence to offer in that regard. Under such circumstances, the trial Court was erroneously carried away by the evidence adduced by P.W.1 which was to the effect that due to previous enmity the accused have caused the dead of the deceased who was 19 years old, though the prosecution had not proved the case in any manner known to law. Thus, the trial Court should have acquitted the accused/appellants but failed to do so. Hence, the appellants are entitled for acquittal in the hands of this Court. 7. The Court heard the Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submission made. 8. It is not in controversy that one Ilavarasan son of Kaliyaperumal was done to death in the incident that had taken place inside the theatre at 10.30 p.m. on 14.4.2005. Following the inquest made by Investigating Officer- P.W.27, the dead body was subjected to post mortem. P.W.20 doctor who conducted post mortem has given his categoric opinion in the post mortem certificate Ex.P.18 that the deceased would have died out of shock and haemorrhage due to the injuries sustained to the vital organs. The fact that Ilavarasan died out of homicidal violence was never disputed by the appellants before the trial Court. Hence, there is no impediment felt by this Court in recording that the prosecution was successful enough to prove that the deceased Ilavarasan died out of homicidal violence. 9. In order to substantiate the fact that these accused in furtherance of common object of causing death of Ilavarasan went inside Kala theatre at 10.30 p.m. on 14.4.2005 and attacked him with aruval and caused his death instantaneously, the prosecution relied on the evidence of P.Ws. 3 and 4 as eye witnesses. The occurrence has taken place at 10.30 p.m. and P.Ws. 3 and 4 actually accompanied the deceased. Though the place of occurrence was inside the theatre which is a public place and number of witnesses would have been present, for the reasons best known to the prosecution, no independent witnesses were examined. P.Ws. 3 and 4 though claim that they knew the incident they did not come forward to speak about the occurrence. Thus, the prosecution could not have benefit of the evidence of P.Ws 3 and 4. https://hcservices.ecourts.gov.in/hcservices/ 10. Further, the prosecution wanted to rely its case much on the recovery of material objects, the weapon of crime. It is true that the weapons of crime were produced before the trial Court and they were marked through the Investigating Officer and the witnesses examined for the arrest and confession statement have turned hostile. Equally, the other accused A1, A2, A4 and A5 surrendered before the Judicial Magistrate Court on the request made by the Investigator and in the order passed by the Court it was stated that they were taken to police custody at the time of interrogation and before the investigator they gave confessional statement and it was recorded, pursuant to which they produced the weapon of crime. At this juncture, one would expect the witnesses to speak to the fact. Village Administrative Officer has been examined as P.W.18 and he has categorically deposed that he was called to the police station and at that time, the accused were also present there and the confessional statement were kept ready and his signatures were obtained in it. Thus, it would go show that these documents were all cooked up documents in order to strength the prosecution case. Under such circumstances, even the scientific evidence which is in favour of the prosecution is of no consequence at all. All the evidence putforth by the prosecution should have been rejected by the trial Court. In a given case like this, the prosecution has only proved the fact that the death of a person is due to homicidal violence and in the absence of any piece of evidence, the Court of Sessions i.e., the Principal Sessions Division has found the appellants guilty, which is a matter of shock and surprise to notice by this Court. The lower court, without considering all the aspects, has erroneously found the appellant guilty and hence, the judgment of the lower court has got to be made undone only by upsetting the same. 11. Accordingly, the criminal appeals are allowed, setting aside the judgment of conviction and sentence imposed by the lower court on the accused/appellants. The appellants are acquitted of the charges leveled against them. The bail bonds, if any executed by the appellants, shall stand terminated. vsi Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Principal Sessions Judge, Perambalur. 2. Do Through The District and Sessions Judge, Parambalur. 3. The Judicial Magistrate, Jayamkondam. 4. Do Through The Chief Judicial Magistrate, Parambalur. 5. The Officer In-charge, Dharmapuri Town Police Station, Dharmapuri. 6. The Superintendent, Central Prison, Cuddalore. 7. The Superintendent, Central Prison, Trichy. 8. The District Collector, Perambalur. 9. The Director General of Police, Mylapore, Chennai. 10. The Public Prosecutor, High Court, Chennai 11. The Inspector of Police, Jayakondam Police Station, Jayakondam, Perambalur District. + 2 ccs to Mr. V. Rajamohan, Advocate SR No.30816 + 1 cc to Mr. P. Tamilavel, Advocate SR No.21206 C.A.Nos.860, 841 and 778 of 2008 NTK(CO) SR/22.7.2009 https://hcservices.ecourts.gov.in/hcservices/