Bail Slip The Appellants/Accused 1,2,5,6,7 & 10 viz., 1.Vaithi @ Vaithilingam,2.Ilasu @ Ilavarasan, 3.Ramanathan,4.Rasu,5.Dhanaseelan @ Thavaseelan,6.Ramachandran were directed to be released on bail in and by order of this Court dt. 27.1.2009 made in MP 1/2009 in Crl.A.805/2008. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.07.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRIMINAL APPEAL NO.805 OF 2008 1.Vaithi @ Vaithilingam 2.Ilasu @ Ilavarasan 3.Ramanathan 4.Rasu amended as per order of this Court dated 27.1.2009 in M.P.No.1 OF 2009 5.Dhanaseelan @ Thavaseelan 6.Ramachandran .. Accused Nos.1,2,5,6,7 and 10/Appellants Vs. The State rep.by the Inspector of Police, Andimadam Police Station, Periathathoor. (Crime No.93 of 2004) .. Respondent/Respondent This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Principal District and Sessions Judge,Perambalur made in S.C.No.174 of 2007, dated 20.10.2008. For Appellant : Mr.AR.L.Sundaresan Senior Counsel for Ms.AL.Gandhimathi For Respondent: Mr.A.Saravanan, Government Advocate(Crl.Side) - - - https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT (The judgment of the court was delivered by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the First Principal District and Sessions Judge, Perambalur made in S.C.No.174 of 2007, whereby appellants herein(A1,A2,A5,A6,A7 and A10) along with five others stood charged, tried and found guilty under Section 148 IPC and sentencing them to undergo two years R.I. and also charged under Section 302 IPC and awarded life imprisonment and to pay a fine of Rs.10,000/- and in default to undergo six months S.I. and also the first accused stood charged and found guilty under Section 341 IPC and sentencing him to undergo six months R.I. and to pay a fine of Rs.500/- in default to undergo three months S.I. and the fifth accused stood charged and found guilty under Section 323 IPC and sentencing him to undergo six months R.I., and to pay a fine of Rs.500/- in default to undergo three months S.I. and with the further direction to run the sentences concurrently by each accused The trial court made an order of acquittal for A3, A4,A8,A9 and A11. 2.The short facts necessary for the disposal of this appeal can be stated as follows: a)PW1 is the native of Periathathur. PW4 is the sister and PW6 is the mother of the deceased. All the appellants belonged to a political party. The deceased also was originally in that party and subsequently he joined another political party, by which, all the accused persons developed enmity against him. They had the common object of murdering him and in furtherance of the same, on the date of occurrence i.e. on 26.2.2004 at about 7.30 p.m., when Pws.1,2 and 11 were proceeding with the deceased, they intercepted the victim and it was at that time A1, attacked the deceased with an Aruval on his head, while all other accused cut him with Veecharuval indiscriminately thereby causing the death instantaneously. In the course of the same transaction, A5 slapped PW1 on the right cheek. After hearing the distressing cry, all the accused left the place of occurrence and Pws.1,2 and 11 proceeded to the house of the deceased and informed PW4 sister and PW6 mother of the deceased. P.Ws.4 and 6 went to the place of occurrence next day morning i.e. On 27.2.2004 and found the dead body. b) PW1 went to the respondent police station on 27.2.2004 at about 10.30 a.m. where PW.15 ,Sub Inspector of Police was on duty. He gave a complaint and made his signature which is marked as Ex.P.1 and on the strength of which, a case came to be registered in Crime No.93/2004 under Sections 147,148,341,323,506(ii) and 302 IPC. The complaint given by PW1 was marked as Ex.P.10 and Ex.P.11 is First Information Report . Both the documents were sent to the Judicial Magistrate Court concerned. c)P.W.16 took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared https://hcservices.ecourts.gov.in/hcservices/ Ex.P.13, the observation mahazar and Ex.P.12, the rough sketch. He recovered bloodstained earth and sample earth from the place of occurrence under a cover of mahazar Ex.P.14. He also examined the witnesses and recorded their statements.He conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.15, the inquest report. Then, the dead body was sent for the purpose of autopsy. d)P.W.10, the Doctor attached to the Government Hospital, Jayamkondam, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and has issued Ex.P.3, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained. e)P.W.16 caused the arrest of A1,A2,A3,A4 and A5 on 29.2.2004. A1 came forward to give confession statement voluntarily. It was recorded in the presence of two witnesses. The admissible part of which is marked as Ex.P.17. Pursuant to which, the first accused produced M.Os.7 to 11 which were recovered under a cover of Mahazar Ex.P.18. Pending investigation, M.O.12 a Tata Sumo was recovered under Ex.P.19 Mahazar. They were sent to judicial remand. f) PW17, Inspector of Police took up further investigation. All the material objects were sent for chemical analysis by the Forensic Department and the dead body was also sent for chemical analysis He has also recorded the evidence of witnesses. On completion of investigation, the investigator filed final report. 3.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 17 witnesses and also relied on 19 exhibits and 12 M.Os. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which they flatly denied as false. No defence witness was examined. The court below heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and found the accused/appellants guilty as per the charge of murder and awarded life imprisonment, which is the subject matter of challenge before this court. 4.Advancing arguments on behalf of the appellants, the learned counsel would submit that the prosecution came forward with a case that the occurrence had taken place on 26.2.2004 at 7.30 p.m. In order to substantiate the charges levelled against the appellants and other accused that with the common object of murdering the victim Venkatesan and in furtherance of the same, all of them way-laid the deceased at the scene of occurrence at 7.30 p.m. on 26.2.2004. The occurrence was actually witnessed by Pws.1,2 and 11. It is pertinent to point out that three witnesses have been turned hostile before the trial Court. PW1 had not even spoken to the fact that he who gave a complaint and even the complaint was marked through the police official and thus the prosecution could not get the evidence of https://hcservices.ecourts.gov.in/hcservices/ anyone of the eye witness. The prosecution had also relied on the confession alleged to have been given by A1, when he was arrested along with other accused. Though both the witnesses examined by the prosecution in respect of the alleged arrest and recovery have turned hostile, what was available before the lower court was only the medical evidence. 5. It is true that from the medical evidence, it would be quite clear that the deceased died out of homicidal violence and the prosecution was successful enough in proving the particular fact. But, insofar as the other parts were concerned, the prosecution had not proved its case. Added further, the occurrence had taken place at 7.30 p.m. on 26.2.2004, Pws.1,2 and 11, though claimed to be eye witnesses have not gone to the police station after seeing the heinous crime. They have only informed PW4, the sister and PW6, the mother of the deceased. Moreover, Pws.4 and 6 have not gone to the scene of occurrence immediately, but they went to the spot next day morning i.e.on 27.2.2004. Though PW1 has actually seen the occurrence and also sustained injury by A5 at the spot, he has not proceeded to the police station, but has given a complaint on the next day morning at 10.30 a.m. i.e. after a period of nearly 12 hours. All would go to show that these witnesses could not have been come in the place of occurrence and hence the prosecution miserably failed in its attempt to prove the case. The trial Court, without looking anyone of the aspects of the matter, has taken an erroneous view that the prosecution had proved the case beyond reasonable doubt. Hence, the appellants are entitled for acquittal. 6.The court heard the learned Government Advocate (Crl.Side) on the above contentions and has paid its anxious consideration on the submissions made. 7.It is not in controversy that Venkatesan, the Son of of P.W.6 was done to death in an incident that took place at the time and place of occurrence as put forth by the prosecution. Following the inquest made by the Investigating Officer, the dead body was subjected to post-mortem by P.W.10, the Doctor, who has given his categorical opinion before the court as a witness and also through his post-mortem certificate that the deceased died out of shock and haemorrhage due to the injuries sustainedand hence the deceased died out of homicidal death was never disputed by the appellants before the trial Court and thus it can be recorded that the prosecution had successful enough in proving the fact that the deceased Venkatesan died out of homicidal violence. 8. In order to substantiate the charges levelled against the appellants and other accused, the prosecution had rested its case on direct evidence by marshalling three eye witnesses Pws1,2 and 11.Unfortunaely,all the three eye witnesses have turned hostile. Thus, the prosecution could not have an advantage of their evidence. Next, the prosecution relied on the recoveries that were alleged to have been made from A1, viz.,M.O.7 to 11 pursuant to the confession made by him in the presence of the witnesses examined. The arrest, https://hcservices.ecourts.gov.in/hcservices/ confession and recovery have also failed and the witnesses have not spoken to the case of the prosecution. Thus, the prosecution has also failed in its attempt to prove those facts. What was prevailing for the prosecution was the evidence of P.W.10 the post mortem doctor who has opined that the deceased died out of homicidal violence and the said fact was not in dispute and thus the prosecution could not bring forth any relevant fact which would indicate the nexus of the crime with the accused. It is quite unfortunate that the trial court has passed an order of conviction and sentence of life imprisonment in a case of weaker or feeble evidence or lack of evidence is noticed. It is a case of bereft of evidence. Under such circumstances, this Court has no option than to set aside and the judgment of the trial Court and the same has got to be made undone by upsetting the judgment of the trial Court. 9. In the result, the criminal appeal is allowed setting aside the judgment of conviction and sentence of the appellants herein by the court below. The appellants/A1,2,5,6,7 and 10 are acquitted of the charges levelled against them. Bail bond, if any, executed by the appellants shall stand cancelled. The fine amount, if paid, shall be refunded to them. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar VJY To 1.The Principal District and Sessions Judge, Perambalur. 2.The Inspector of Police, AndimadamPolice Station 3.The Additional Public Prosecutor, High Court, Madras. 4.The Judicial Magistrate, Jayankondam. https://hcservices.ecourts.gov.in/hcservices/ 5.The Chief Judicial Magistrate, Perambalur. 6.The Superintendent, Central Prison,Trichirapalli. 7.The District Collector, Perambalur. 8.The Director General of Police, Chennai. Copy to: The Section Officer, Crl.Section, High Court,Madras. +1cc to Ms.AL.Ganthimathi, Advocate Sr 30714 VSV(CO) km/23.7. CRL.A.No.805 of 2008 https://hcservices.ecourts.gov.in/hcservices/