BAIL SLIP The Appellants / Accused 3 to 6 viz. 1. Siva @ Sivasankaran, S/o.Nagarajan (A3) 2. Mariappan, S/o.Poovathan Pillai (A4) 3. Raman, S/o. Subbaiah (A5) 4. Vinodh @ Vinodh Kumar, S/o.Balakrishnan (A6) were released on bail as per order of this Court dated 11.6.2008 made in Crl.M.P.No.1/08 in Cr.A.No.287/08 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.10.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH CRIMINAL APPEAL No.287 of 2008 1. Jeeva 2. Udhayan 3. Siva @ Sivasankaran 4. Mariappan 5. Raman 6. Vinodh @ Vinodh Kumar .. Appellants/Accused Vs. State through Deputy Superintendent of Police, Rural Police Station, Thirupur .. Respondent/Complainant This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Principal Sessions Judge, Coimbatore made in S.C.No.18 of 2007 dated 19.3.2008 For Appellants : Mr.G.Karthikeyan For Respondent : Mr.Babu Muthu Meeran, APP J U D G M E N T (The judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the Principal Sessions Division, Coimbatore made in S.C.No.18/2007 whereby the appellants six in number, stood charged, tried and found guilty as follows: Charges: 1st charge : A1 to A6 - S.147 IPC. 2nd charge : A1 to A3 - S.148 IPC. 3rd charge : A5 & A6 - S.341 IPC. https://hcservices.ecourts.gov.in/hcservices/ 4th charge : A1 to A4 - S.341 r/w 149 IPC. 5th charge : A1 & A2 - S.302 IPC r/w3(2)(v) of SC/ST Act 6th charge : A3 to A6 - S.302 IPC r/w3(2)(v) of SC/ST Act 7th charge : A3 & A4 - S.324 IPC. 8th charge : A1,A2,A5 & A6- S.324 r/w 149 IPC. Conviction and sentence: A1 to A3 - U/s 147 IPC – one year R.I. each along with fine of Rs.500/- each, in default , two months R.I. each A5 and A6 – U/s 341 IPC – one month S.I. each along with fine of Rs.500/- each, in default, one week S.I. each. A1 to A4 – U/s. 341 r/w 149 I.P.C. - one month S.I. each along with fine of Rs.500/- each, in default, one week S.I. each. A1 & A2 – U/s 302 IPC – Life imprisonment along with fine of Rs.1000/- each, in default, six months R.I. each. A3 to A6 – U/s 302 r/w 147 IPC – Life imprisonment each along with fine of Rs.1000/- each, in default, six months R.I. each. A3 & A4 – U/s. 324 IPC – six months R.I. each along with fine of Rs.1000/- each, in default, one month R.I. each. A1, A2, A5 and A6 – U/s. 324 r/w 149 IPC each – six months RI each along with fine of Rs.1000/- each, in default, one month R.I. each. The sentences are ordered to run concurrently. 2. The short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 was the native of Kamarajar Nagar, Tiruchirappalli. On 20.3.2006, when Ayyappan called him for some work, he went to Tirupur. The deceased Ayyappan was his close friend. P.W.1 and the deceased belongs to scheduled caste community. P.W.1 was employed in Garment Fabrication Company. P.W.2 Kolinjiappan is the uncle of the deceased. On 2.4.2006, P.W.2 phoned over to the deceased to give company to have drinks. P.W.2 asked the deceased to call P.W.1 also to have drinks. Both P.Ws.1 & 2 and the deceased went to wine shop near Saravana Petrol bunk. After consuming liquor, they proceeded from the shop. At that time, A1 who came over there, demanded Rs.350/- from P.W.2 which he promised to pay on behalf of one Raja. P.W.2 gave evasive reply. Hence, there was wordy altercation between them. In that process, the deceased intervened. He slapped A1 on his cheeks repeatedly. P.W.2 intervened and pacified the situation. A1 challenged them that he would see to it and left the place. Thereafter, when P.W.1, P.W.2 and the deceased were just proceeding on Dharapuram Road near Hotel Ashoka, A1, A5 and A6 came walking in https://hcservices.ecourts.gov.in/hcservices/ the opposite direction and A2 to A4 came in Yamaha bike. A5 and A6 caught hold of the deceased, while A1 attacked him with wooden log on his head uttering filthy words. When P.Ws.1 & 2 intervened, A4 attacked P.W.1. A3 attacked P.W.2. P.Ws. 1 and 2 fell down. Thereafter, when A2 attacked the deceased Ayyappan on his head, Ayyappan fell down. When there was distress cry, all the accused fled away from the place of occurrence. P.W.1 and P.W.2 took Ayyappan to the Government Hospital, Tirupur where the doctor examined Ayyappan and declared him dead. (b) On 3.4.2006, when P.W.11 doctor was on duty, P.W.1 was produced before him for treatment by P.W.2. P.W.11 medically examined him and gave treatment. Ex.P.25 is the wound certificate and Ex.P.26 is the accident register in that regard. On intimation from the Hospital, P.W.10 Sub Inspector of Police, Tirupur Rural proceeded to the hospital and recorded the statement of P.W.1 which was marked as Ex.P1. On the strength of the same, a case came to be registered by the respondent police in Crime No.649/2006. Ex.P24 is the F.I.R. which reached the Judicial Magistrate concerned on 3.4.2006 at 9.00 a.m. (c) On receipt of the copy of the F.I.R, P.W.16 Deputy Superintendent of Police, took up investigation, proceeded to the spot, made an inspection and prepared Ex.P2 observation mahazar and drew a rough sketch Ex.P.35. He also recovered the sample earth and blood stained earth under a cover of mahazer. He conducted inquest on the dead body of the deceased and prepared Ex.P36 inquest report in the presence of witnesses and panchayatdars. On 5.4.2006, he recorded the statement of the witnesses in the presence of witnesses including P.W.6. (d) P.W.16 arrested all the accused and their confessional were recorded pursuant to which material objects were recovered from them. The investigator also obtained the community certificate for the deceased indicating that he belonged to schedule caste and also for P.Ws.2 and 3 and the accused. (e) Following the inquest made, the dead body was subjected to post mortem. P.W.5, doctor attached to Government Hospital, Tirupur, conducted autopsy on the dead body of the deceased Ayyappan and gave the post mortem certificate Ex.P.17 wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to head injury, about 12 to 16 hours prior to autopsy. (f) The accused were sent for judicial remand. All the material objects recovered from the place of occurrence, from the dead body of the deceased and also the weapons produced by the accused pursuant to the confessional statement were subjected to chemical analysis by the Forensic Science Department and Ex.P19 chemical report was marked. https://hcservices.ecourts.gov.in/hcservices/ (g) On 9.4.2006, a medical memo was given to P.W.2 and he was medically examined at the Government Hospital, Tirupur. On examination, P.W.13, attached to the Government Hospital, gave Ex.P32, wound certificate and Ex.P33, accident register copy. On completion of the investigation, the investigating officer filed a final report. (h) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges, the prosecution examined 17 witnesses and also relied on 39 exhibits and 11 material objects. On completion of the evidence on the side of the prosecution, the accused were question under section 313 Cr.P.C as to the incriminating circumstances found in the evidence of the prosecution witnesses and they denied them as false. No defence witnesses were examined. The Court heard the arguments advanced on either side and took the view that the prosecution has proved its case beyond reasonable and found all the accused guilty as per the charge and awarded punishment as referred to above. Hence, this appeal at the instance of the appellants. 3. Advancing the arguments on behalf of the appellants, the learned counsel would submit that the specific case of the prosecution was that P.Ws.1 and 2 who were shown as injured witnesses and the deceased, after consumption of alcohol, were coming from the wine shop and proceeded toward Dharapuram Road. At that time, they were attacked by the appellants/accused at about 10.30 p.m. on 2.4.2006. The prosecution examined P.Ws.1 and 2 as eye witnesses. There was inconsistency in their testimony which would cast doubt whether they could have witnessed the occurrence at all. According to P.Ws.1 and 2, the occurrence has taken place near Asoka Bakery, but Ex.P1 report,the corresponding F.I.R. and the observation mahazar would indicate that the occurrence has taken place near Hotel Raja. 4. Learned counsel would further submit that according to P.Ws.1 and 2, when they went to the wine shop along with the deceased, all of them consumed alcohol but the post mortem certificate of the deceased would indicate that there was no alcohol contents present. Added further learned counsel, insofar as the wound certificate and the accident register of P.W.1 are concerned, the doctor has categorically recorded that he did not consume alcohol. Under such circumstances, it has become highly doubtful whether P.Ws.1 and 2 would have seen the occurrence at all. According to the prosecution, P.W.1 was taken to the hospital and he was examined by the doctor at the earliest i.e., at 12 'O' clock night and P.W.11, doctor examined him. But, according to the prosecution, even before the wound certificate and the accident register of P.W.1 have come into existence, Ex.P1- complaint was registered at the earliest point of time i.e., at 11.00 p.m. A perusal of Ex.P1 complaint would https://hcservices.ecourts.gov.in/hcservices/ show the names of all the accused and also their overt act. On the contrary, when the accident register and the wound certificate of P.W.1 are looked into, the statement of P.W.1 was recorded by P.W.11 doctor wherein he has stated that at the time of occurrence 4 unknown persons attacked him. P.W.11, doctor at the time of cross examination, has categorically admitted that P.W.1 was conscious while giving statement and he has given statement to the effect that he was attacked by four unknown person. From the evidence of P.W.11, doctor it is quite clear that P.W.1 has given such a statement which is contrary to Ex.P1 report. 5. Added further learned counsel, though the F.I.R. is claimed to have come into existence on the strength of Ex.P1 report, it has reached the Judicial Magistrate concerned on the next day morning at 9.00 a.m. Thus, the delay in the F.I.R. reaching the Court coupled with the statement given by P.W.1 to P.W.11 as found in the accident register and wound certificate would clearly indicate that Ex.P1 document should have come into existence only later. The statement recorded by the doctor is the earliest in point of time. There is no explanation to the effect how this had happened. From the earliest document, viz., the copy of the Accident register and also the wound certificate of P.W.1, it would be quite clear that the persons who attacked P.W.1, P.W.2 and the deceased remain unknown. 6. Added further learned counsel, in the instant case, the investigator would claim that all the accused, A1 to A6 were arrested on 5.4.2006, but according to P.Ws.1 and 6, all these accused persons were found in the police station on 3.4.2006. If to be so, the claim of arrest on 5.4.2006 and the recovery of the material objects from them, cannot be believed. It would go against the prosecution case. Apart from all the above, there is lot of discrepancies in the testimony of P.W.1. It is further contended by the learned counsel that at the time of occurrence, there was quarrel due to demand of money by A1 from P.W.2 which P.W.2 promised to give on behalf of one Raja but the said Raja was not examined. All would go to show that the prosecution has miserably failed to prove its case beyond reasonable doubt but the trial Judge has taken an erroneous view and found the accused guilty and had passed the judgment. Hence, the judgment of the trial Court has got to be set aside by this Court. 7. Yet another circumstances which doubt the prosecution case is that according to P.W.2, he was also injured since he was attacked by A3. It was P.W.2 who took P.W.1 to the hospital and P.W.11 examined P.W.1 at that time. If P.W.2 had really sustained injuries at the time of occurrence, he would have mentioned it to the doctor and would have taken treatment but did not do so. On the contrary, P.W.2 was taken to the hospital only on 19.4.2006 and was examined by the doctor when he https://hcservices.ecourts.gov.in/hcservices/ actually complained of pain. Therefore, it is highly doubtful whether P.W.2 would have been in the place of occurrence. 8. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 9. It is not in controversy that one Ayyappan who was the associate of P.Ws.1 and 2, following the incident that had taken place at 10.30 p.m. on 2.4.2006 was taken to the hospital and was declared dead by P.W.11, doctor. Following the inquest made by the investigating officer, the Deputy Superintendent of Police, Rural Tirupur, the dead body was subjected to post mortem. The doctor who has given post mortem certificate was also examined before Court. He has given statement before the Court and has also given opinion through the contents of the post mortem certificate that the deceased would appear to have died of shock and haemorrhage due to head injury, about 12 to 16 hours prior to autopsy. The fact that Ayyappan died out of homicidal violence was never disputed before the trial Court and before this Court. Hence, there is no impediment in recording so. 10. In order to substantiate that all the accused persons constituted an unlawful assembly; that they way laid P.Ws.1 and 2 and the deceased; that when A5 and A6 caught hold of the deceased, A1 attacked the deceased with log on his head; that A4 attacked P.W.1; and that A3 attacked P.W.2, the prosecution rested its case on the direct evidence of P.Ws.1 and 2. It is well settled principle of law that in a given case, where the eye witness happens to be the injured witness, the court should not discard the testimony unless and until strong circumstances or reasons are brought to the notice of the Court. In the instant case, the Court is afraid whether it could accept the evidence of P.Ws.1 and 2 to sustain the conviction. 11. According to the prosecution, P.Ws.1 and 2 were eye witnesses. P.W.2 would claim that it was he who took P.W.1 to the hospital and P.W.11 doctor who was on duty examined P.W.1 and also recorded the statement as found in Exs.P25 and 26 wound certificate and the accident register respectively. P.W.11 has stated in this evidence, that when P.W.2 was brought P.W.1 for treatment, P.W.2 did not complain anything more. It is pertinent to point out, P.W.2 took P.W.1 to the hospital immediately after the incident. But on 19.4.2006, that was after 16 days from the date of occurrence, a medical memo was given to P.W.2 and he was examined by P.W.13,doctor. who has given certificate that he complained of pain. Thus, the evidence of P.W.2 who was shown as eye witness and also as an injured witness has got to be brushed aside. Under such circumstances, the prosecution is left with the testimony of P.W.1 alone. https://hcservices.ecourts.gov.in/hcservices/ 12. The evidence of P.W.1 is also highly doubtful. According to P.W.1, he along with P.W.2 consumed alcohol and they were actually proceeding on the way to home. While P.W.11, doctor who examined P.W.1 has categorically given evidence in that regard that at the time of cross examination P.W.1 has not consumed alcohol. It is further to be pointed out that in the post mortem certificate of the deceased, the stomach contents did not reveal that he had consumed alcohol. Thus, it is highly doubtful whether they would have taken alcohol. According to P.W.1, the occurrence had taken place before Ashoka bakery. On the contrary, in Ex.P1 report, F.I.R. and the observation mahazar, the place of occurrence was shown as opposite to Hotel Raja. Therefore, the place of occurrence is also doubtful. 13. Apart from the above, according to the Sub-Inspector, on intimation, he went to Tirupur Government Hospital and recorded the statement of P.W.1 which was marked as Ex.P1 which has come into existence on 2.4.2006 at 11.00 p.m. The case came to be registered in the police station at 12.30 night hours and the F.I.R. reached the Magistrate at 9.00 a.m. on 3.4.2006. It is pertinent to point out that P.W.11 doctor who has examined P.W.1 has stated that P.W.1 was conscious when he examined him and at that time P.W.1 has given statement to him that he had sustained injuries when four unknown persons attacked him and the same was also recorded by P.W.11. There is nothing to doubt about evidence of P.W.11,doctor. On the contrary, though the prosecution claim that Ex.P1, earliest document has coming into existence at 11.00 p.m., the names of six persons were shown as assailants. Had it been true that Ex.P1 report has come into existence at the earliest with the names of six assailants, there is no need for P.W.1 to say contrary to P.W.11, doctor that four unknown persons were the assailants. Thus, this statement coupled with the delay in F.I.R. reaching the Court at 9.00 a.m. On 3.4.2006, about 9 hours later, when the police station and the Judicial Magistrate Court are situated nearby within a kilometer, would go to show that Ex.P1 has come into existence after the statement was recorded by the doctor as found in Ex.P25 and Ex.P.26 wound certificate and accident register of P.W.1. Thus, the FIR which contains the name of six assailants becomes doubtful. Under such circumstances, it cannot be given any evidentiary value at all. 14. Yet another circumstances which actually shake the prosecution case is the alleged arrest and recovery. The investigator would claim that A1 to A6 were arrested on 5.4.2006 and pursuant to the confessional statement recorded in the presence of P.W.6 and another witness, the weapons were recovered. On the contrary P.W.1, injured and eye witness and P.W.6 would state that all the accused were actually found in the police station on 3.4.2006. Thus, it would falsify the theory of the alleged confession and the recovery of weapons of crime. All put together would indicate that the prosecution has miserably failed to prove the case beyond reasonable https://hcservices.ecourts.gov.in/hcservices/ doubt. Hence, it is highly unsafe to sustain the conviction relying on the evidence adduced by the prosecution. Hence, benefit of doubt has to be given to the appellants and they are entitled for acquittal. Accordingly, the judgment of the trial Court is made undone by setting aside the same. 15. In the result, the criminal appeal is allowed. The judgment of conviction and sentence passed by the trial Court is set aside. The appellants are acquitted of the charges levelled against them. It is reported that A3 to A6 are on bail. Therefore, A1 and A2 are set at liberty forth unless their presence is required in connection with any other case. The bail bond executed by the appellants shall stand cancelled and the fine amount, if any, paid by them shall be refunded to appellants. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar vsi To 1. The Principal Sessions Judge(Special Court) Coimbatore 2. The Judicial Magistrate No.2, Thiruppur 3. -Do-Thro The Chief Judicial Magistrate, Coimbatore 4. The Deputy Superintendent of Police, Rural Police Station, Thirupur. 5. The Superintendent, Central Prison, Coimbatore 6. The District Collector, Coimbatore. 7. The Director General of Police, Mylapore, Chennai. 8. The Public Prosecutor, High Court, Chennai. Copy to The Section Officer, Criminal Section, High Court, Madras. CRL. APPEAL No.287 of 2008 CK(CO) SRA(9/11/2009) https://hcservices.ecourts.gov.in/hcservices/