IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 29.10.2009 CORAM THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR. JUSTICE V.PERIYA KARUPPIAH CRL.A.Nos.420 and 464/2009 1.Anguraj 2.Koozhai Senthil @ Senthil Kumar 3.Moorthy .. Appellants/A1,A3&A4 in Crl.A.No.420/09 M.Suresh .. Appellant/A2 in Crl.A.No.464/09 Vs State by the Inspector of Police Thiruppur South Police Station Tiruppur, Coimbatore District. .. Respondent [Cr.No.931/2006] Appeal filed u/s.374[2] Cr.P.C., to set aside the order dated 02.07.2009 passed in SC.No.59/2008 against the appellants/accused by the learned Additional District and Sessions Judge,Fast Track Court No.4, Coimbatore at Tiruppur. For A1, A3 and A4 : Mr.G.Karthikeyan For A2 : Mr.N.Duraisamy For Respondent : Mr.Babu Muthu Meeran, Addl. Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT [Judgment of the court was delivered by M.CHOCKALINGAM, J.] Challenge is made to the Judgment of the learned Additional District and Sessions Judge, FTC-4, Coimbatore at Tirupur made in SC.No.59/2008 dated 02.07.2009 whereby the accused stood charged, tried and found guilty for the offence u/s.148, 302 read with 149 IPC and on trial, they were found guilty of the charges and were awarded with punishments as follows:- Accused Conviction Sentence awarded A1 to A4 U/s.302 read with 149 IPC Each of the accused were sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/- and in default to undergo 3 months rigorous imprisonment for the offence u/s.302 IPC. A1 to A4 U/s.148 IPC Each of the accused to undergo 2 years rigorous imprisonment for the offence u/s.148 IPC. The trial Judge ordered the sentence to run concurrently. This judgment shall govern the above two appeals, viz., Crl.A.Nos.420 and 464 of 2009. 2.Short facts necessary for the disposal of the appeal can be stated as follows:- [a]P.W.1 is the wife of the deceased and she is a native of K.M.G. Nagar, Velliyangadu and she was employed as a Tailor in a Banian company. The deceased Karthik and herself fell in love with each other and without the consent of the family members, they married and they took a house on rental basis and were living at Kallangadu. While they were living so, P.W.3, the mother of P.W.1 used to visit them. She invited P.W.1 and her husband for a festival on 08.05.2006 and on invitation, both of them went to the place of https://hcservices.ecourts.gov.in/hcservices/ P.W.3's house. A week prior to the actual occurrence, the deceased Karthik was accompanied by his nephew, P.W.12 to a wine shop where one Kumar, the accused/deceased was present and he asked P.W.12 to get a brandy for him to which P.W.12 refused and so, Kumar, the accused/deceased, caught hold of P.W.12's shirt and there was a wordy altercation and the deceased, Karthik supported his nephew and thereafter, both came home. The mother of the deceased gave a message asking P.W.1 and her husband to come to Udumulpet and accordingly, they decided to go. The deceased Karthik went to take his two wheeler. At that time, P.W.1 warned him not to quarrel with anybody and within a short span of five minutes, she heard the distressing cry, she ran to the scene of occurrence and she found the deceased/accused, Kumar, attacking her husband, Karthik on his stomach with knife and the deceased Karthik snatched the knife from one Anguraj [A1] and attacked Kumar. The aruval which the Kumar was holding fell down and Senthil [A3] took the aruval and attacked Karthik on his back and the deceased Karthik fell down and at that time, Moorthy [A4] took the knife which fell down from the hands of Anguraj and attacked the deceased Karthik on his stomach and thighs. One Suresh [A2] attacked the deceased Karthik on his chest and left eye. P.Ws.2 and 3 witnessed the occurrence on hearing the distressing cry of the deceased and on the hue and cry of P.Ws.1 to 3, all the neighbours assembled there. Both, the severely injured Karthik and Kumar were taken to the Government Hospital, Tiruppur. [b] P.W.11, the doctor attached the Government Hospital, Tiruppur, who was on duty at the relevant point of time, medically examined the deceased/accused Kumar at about 10.05 p.m. on 08.05.2006 and issued Ex.P.7-Accident Register and despite treatment, the accused Kumar died. He also examined the deceased Karthik and declared him dead. He further examined A1-Anguraj in this case at about 00.00 hours and also issued Ex.P.6-Accident Register in respect of A1. P.W.1 went to the respondent police station at about 6.00 a.m. on 09.05.2006, wherein P.W.16, the Inspector of Police, was on duty at that time and P.W.1 gave a written complaint under Ex.P.1 on the strength of which a case came to be registered in Cr.No.931/2006 for the offence u/s.147,148 and 302 IPC and the FIR, Ex.P.12 was despatched to the court. [c]P.W.16, in continuation of his investigation, proceeded to the scene of occurrence at about 7.00 a.m.; prepared Observation Mahazar [Ex.P.6] and a rough sketch [Ex.P.16] in the presence of the witnesses. He also recovered M.O.8 & 10-blood stained earth; M.Os.9 & 11-sample earth; M.O.12-a pair of chappals under the cover of the mahazar-Ex.P.3. The investigating officer went to the mortuary and held inquest on the dead body of the deceased at about 10.00 a.m. in the presence of the witnesses and panchayatdars and prepared Ex.P.17- Inquest Report. He also held an inquest on the dead body of the accused Kumar in the presence of the same witnesses and panchayatdars https://hcservices.ecourts.gov.in/hcservices/ and prepared Ex.P.18-Inquest Report. He recorded the statements of the witnesses at the scene of occurrence and also sent the dead bodies of Karthik and Kumar for postmortem. [d]P.W.10, the doctor attached to the Government Hospital, Tiruppur, received a requisition from P.W.16, the Inspector of Police and conducted autopsy on the dead body of the deceased/accused, Kumar and issued Ex.P.4, the Post Mortem Certificate wherein he has found the following injuries:- "1.Stab injury oval in shape at left mid-neck 8cm below and left leg 2x0.5x3cm pointing towards the leg. 2.5x2cm abrasion behind left ear. 3.Linear abrasion lower aspect of left of the chest 10x0.5cm. 4.Triangle shaped laceration 5x6x6cm depth 5cm pointing upwards towards the tip of right shoulder over right axilla. 5.A sliced injury oval in shape just below injury no.4 measuring 3x0.5x0.5cm 6.Incised wound oval in shape just below injury no.5 4x2x1cm. 7.Incised wound at right lower throat over 10th ICS mid clavicular line horizontal 3x2x1cm." The doctor also opined that the deceased/accused Kumar would appear to have died out of shock and haemorrhage due to multiple injuries and injury to right lung. [e]P.W.10, also conducted postmortem on the dead body of the deceased Karthik on 10.05.2006 at 9.00 a.m. and issued Ex.P.5-Post Mortem Certificate wherein he has found the following injuries:- "1.Incised wound 1x0.5x0.3cm in the lateral aspect of right eyebrow. 2.Incised wound oval in shape 11x6x10cm pointing towards left lower ribs. 3.Incised wound oval in shape 10x4x8cm-15 cm above left buttocks. 4.Incised wound back of right shoulder 1.5x.5x0.5cm. https://hcservices.ecourts.gov.in/hcservices/ 5.Cut injury on the left occipito-parietal area vertical 7x3xbone deep oval in shape. 6.Cut injury at the back of occipital area 7x3xbone deep vertical oval in shape. 7.Contusion-linear 7x0.5cm little depression 0.2cm [impression]. 8.Abrasion-right shoulder [impression] 3x2 cm. 9.Stab injury 1.5x0.5x.5 cm and surrounding 2cm in diameter of injury NO.1-an abrasion found. 10.Stab injury oval in shape 2.5x1x2 cm on the left thighs 15 cm upper to the left knee. 11.Stab injury oval in shape on the left axilla mid- axillary line 7th ICS 2x1x2cm pointing towards left shoulder. 12.Stab Injury on the left chest on 4th ICS mid clanicular line 2x1x2cm pointing towards left rib." The doctor also opined that the deceased Karthik would appear to have died of shock and haemorhage due to multiple injuries sustained by him and the injury to the left lung. [f]In continuance of the investigation, P.W.16, on 14.05.2006, at about 01.15 p.m. he arrested the A3 and A2 and both came forward to give confession statements voluntarily, the admissible parts of which are marked as Exs.P.21 and 22 pursuant to which M.O.1-aruval, M.O.5-Shirt, M.O.2-knife and M.O.4-Pant were recovered under the cover of Mahazars, Exs.P.9 and 10 respectively. On 19.05.2006 at about 1.00 p.m. the investigating officer arrested A1 who also gave a confessional statement voluntarily, the admissible parts of which is marked as Ex.P.23 pursuant to which M.O.13 was recovered under the cover of Mahazar, viz., Exs.P.11. P.W.16 sent all the material objects recovered from the place of occurrence; from the dead body of both the deceased Karthik and Kumar and the material objects recovered pursuant to the confessional statements for chemical analysis along with a requisition. [g]P.W.17, the Inspector of Police of the respondent police took up the further investigation and on 17.05.2006 A4 [Moorthy] surrendered before the learned Judicial Magistrate, Thiruthuraipoondi https://hcservices.ecourts.gov.in/hcservices/ and on requisition, he was taken to police custody and he also gave voluntarily the confessional statement, the admissible part of which is marked as Ex.P.24 pursuant to which M.O.3-Knife was recovered under the cover of Mahazar, viz., Ex.P.11. The material object recovered pursuant to the confession of A4 was also sent to chemical analysis under the cover of Mahazar, Ex.P.25, which resulted in the Chemical Analyst Report under Ex.P.26. [h]On completion of investigation and filing of the final report, the case was committed to sessions; necessary charges framed and in order to substantiate the charges, the prosecution examined 18 witnesses [P.Ws.1 to 18], marked 26 exhibits [Exs.P.1 to 26] and produced 16 material objects [M.Os.1 to 16]. 3.When the accused were questioned u/s.313 Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution against them, they denied them as false and no defence witness was examined and no documentary evidence was marked. Hearing the arguments advanced on either side and also considering the incriminating materials against the accused, the trial court took a view that the prosecution has proved its case beyond reasonable doubt insofar as the accused are concerned and thus, rendered the judgment of conviction and sentence as stated supra. As against the said conviction and sentence, the accused have preferred the above appeals. 4.Advancing the arguments on behalf of the appellants/A1 to A4, the learned counsel would submit that the prosecution has miserably failed to prove its case. It is contended that the occurrence had taken place on 08.05.2006 at about 9.00 p.m. in front of one Balavinayagar temple and P.Ws.1 to 3 and 12 have claimed to be the eyewitnesses to the occurrence. P.W.1 is the wife of the deceased; P.Ws.2 and 12 are close relatives and P.W.3 is the mother of P.W.1. P.W.1 has categorically stated that her mother, P.W.3 did not come out of the house at the time of occurrence and hence, P.W.3 could not have seen the occurrence at all. It is contended that P.Ws.1,2 and 12 could not have seen the occurrence at all and P.W.12 is involved in the occurrence that took place a week before the actual occurrence. Thus, it would be quite clear that he had a tussle with the deceased/accused Kumar on the previous occurrence and according to P.W.1, the deceased Karthik left the house and after 5 minutes she heard the distressing cry and thereafter, she came out of the house and then witnessed the occurrence and during the time of cross examination also, she had repeated the entire occurrence in length and she also stated that her mother, P.W.3's house is situated near the place of occurrence. If to be so, one would expect the house of P.W.3 in the Observation Mahazar as also in the rough sketch. But the investigating officer has candidly admitted that the house of P.W.3 was not shown in the rough sketch or the observation mahazar. https://hcservices.ecourts.gov.in/hcservices/ Thus, it would be quite clear that the house of P.W.3 did not exist near the place of occurrence at all. It is to be further added that all the houses nearby has been actually stated along with the names of the individuals but neither the house of P.W.3 nor her name is mentioned in the Observation Mahazar. 5.Learned counsel for the appellants would further add that according to the evidence of P.Ws.1 and 2, they immediately took the deceased to the hospital after the occurrence and P.W.11, the doctor who examined Karthik at about 9.55 p.m. declared him dead and the Accident Register in that regard is marked as Ex.P.6. It is pertinent to point out that in Ex.P.6, it was mentioned that it was P.W.7 who admitted the deceased Karthik in the hospital. P.W.7 also categorically deposed that when he came near the temple, he found the deceased lying on the ground and thereafter, an auto was taken and in that auto, two unknown persons accompanied P.W.7 and they are not the family members of the deceased Karthik. Thus, it would be indicative of the fact that P.Ws.1 and 2 have not accompanied the deceased and P.W.7 when the deceased Karthik was taken to the hospital. Had it been true that P.Ws.1 and 2 have actually witnessed the occurrence, they should have taken steps to take the deceased to the hospital in the same auto which was engaged by P.W.7 but either of them did not go. Thus, it casts a doubt as to whether P.Ws.1 and 2 could have been present in the place of occurrence to witness the same. 6.Added further, the learned counsel for the appellants submitted that P.W.16, the Inspector of Police of the respondent police station claimed that P.W.1 appeared before him on 09.05.2006 at about 6.00 a.m. and gave a written complaint Ex.P.1, on the strength of which a case was registered u/s.147,148,302 read with 149 IPC. But, contrarily, P.W.2 has stated that when P.Ws.1 and 2 were in hospital, P.W.16 came there within half an hour and a written complaint was handed over to him. If to be so, the written complaint should have been given at about 9.30 p.m. or 10.00 p.m. on 08.05.2006. It is contended that either the complaint given to P.W.16 at the hospital should have been suppressed or if really, a complaint is lodged by P.W.1 to P.W.16 at about 6.00 a.m. on 09.05.2006, the delay of nearly about 10 hours from the time of occurrence remains unexplained. Under the circumstance, it is highly doubtful whether Ex.P.1 has come into existence as put forward by the prosecution and thus, it was an embellished version. 7.Learned counsel for the appellants contended that it was the admitted position of the prosecution that A1 was taking treatment in the hospital and Ex.P.6 is the Accident Register in that regard. If to be so, the police has not taken efforts to register any case on the injuries sustained by him. It is claimed by the prosecution that all the accused were arrested on different dates and the material objects were recovered, viz., the weapons of crime, pursuant to their https://hcservices.ecourts.gov.in/hcservices/ confessional statements. But, P.W.2 had categorically admitted in the cross examination that all the accused were identified in the police station within two days from the date of occurrence and thereafter, the material objects were recovered. In the face of P.W.2's evidence, the case of the prosecution that all the accused were arrested and pursuant to their confessional statements, all material objects were recovered, cannot but be a false one and all put together, it cannot be stated that the prosecution has proved the case beyond reasonable doubt and the trial court has taken an erroneous view and hence, the accused/appellants are entitled for acquittal at the hands of this court. 8.Heard the learned Additional Public Prosecutor on the above contentions and the court paid its anxious consideration on the submissions made on either side. 9.It is not in controversy that one Karthik, following an incident that took place on 08.05.2006 at about 9.00 a.m., was taken to the Government Hospital, Tiruppur where P.W.10, the doctor who examined Karthik, declared him dead and after following the procedural formalities, P.W.16, the Inspector of Police, sent the dead body for Postmortem and the dead body was subjected to postmortem by P.W.11, the doctor attached to Government Hospital, Tiruppur, who has given a categorical opinion that the deceased died out of shock and haemorrhage due to multiple injuries and the injury on the left lung and the fact that the deceased Karthik died out of homicidal violence was not disputed by the appellants before the trial court and accordingly, the trial court did not feel any impediment in recording so and hence, it has got to be affirmed. 10.In order to substantiate the charges leveled against the appellants/A1 to A4, the prosecution marched P.Ws.1 to 3 and 12 as eyewitnesses. The gist of the prosecution case is that due to previous quarrel, at the time of occurrence at about 9.00 p.m. on 08.05.2006, the accused 1 to 4 armed with deadly weapons, were standing nearby the Balavinayagar temple and when the deceased Karthik, the husband of P.W.1 went out of the house, the accused attacked him and in the same transaction, the deceased Karthik snatched knife from the hands of A1 and stabbed the accused/deceased Kumar and thus, one of the accused who was already shown as A1, had died. It was at that time, all the accused attacked the deceased Karthik with deadly weapons and the same was witnessed by P.Ws.1 to 3 and 12. On careful scrutiny of the evidence of P.Ws.1 to 3 and 12, this court is unable to agree with their evidence and that their evidence do not inspire the confidence of this court. P.W.1 would claim that she was actually inside the house along with P.W.3, her mother and P.W.1 has categorically admitted that till the occurrence was over, P.W.3 did not come out of the https://hcservices.ecourts.gov.in/hcservices/ house. Under such circumstances, it can be stated that P.W.3 could have witnessed the occurrence at all. Insofar as P.W.1, she would admit that she was inside the house and five minutes after the deceased Karthik left the house, she heard his distressing cry and she came out of the house and witnessed the occurrence. Now, the main question is as to whether the house of her mother, P.W.3, was situated nearby the place of occurrence or not? Learned counsel for the appellants took the court to Ex.P.2-Observation Mahazar and Ex.P.16-Rough Sketch wherein the house of P.W.3 is not shown at all and P.W.16, the Inspector of Police also candidly had admitted that the house of P.W.3 is not mentioned. On perusal of these 2 documents, viz., Exs.P.2 and 16, it would be quite evident that all the houses and even the shops nearby the scene of occurrence are mentioned therein. If really the house of P.W.3 was situated in that place, there could not be any impediment for the investigating officer to mention the same. Hence, it is highly doubtful whether the house of P.W.3 is situated at the place of occurrence or not? In the absence of P.W.3's house situated there, P.Ws.1 and 2 could not have heard the distressing cry or come out and have witnessed the occurrence. 11.The further circumstances which would strengthen the doubt whether P.Ws.1 and 2 could have seen the occurrence at all is that P.Ws.1 and 2 claimed that immediately after the occurrence was over, they took the deceased to the hospital in an auto. But, P.Ws.1 and 2 did not mention anything about the presence of P.W.7 in their evidence. On the contrary, P.W.7 would claim that it was he who took the deceased Karthik in an auto which was on its way. The evidence of P.W.7 is strengthened by P.W.10, the doctor who medically treated Karthik at the hospital at about 9.30 p.m. and declared him dead and also stated that it was P.W.7 who admitted Karthik in the hospital. The said fact is also mentioned in Ex.P.7-Accident Register of Karthik. Now, at this juncture, it is pertinent to point out that according to P.W.7, it was he who took the deceased in an auto where 2 persons accompanied not belonging to Karthik's family and hence, the claim of P.Ws.1 and 2 that they accompanied the deceased Karthik to the hospital is highly doubtful and a doubt is casts upon their evidence in this regard. 12.The yet another circumstance noticed by this court is that, if really P.Ws.1 to 3 were present and witnessed the occurrence, they should have taken and accompanied the deceased to the hospital since they are closely related to the deceased, viz., P.W.1, the wife of the deceased , P.W.2, the brother of P.W.1 and P.W.3 is the mother- in-law of the deceased and naturally, one would expect them to take the deceased to the hospital. But, P.W.7 has categorically admitted that the deceased Karthik was taken in an auto to the hospital by him and two unknown persons, not belonging to the family of the deceased Karthik, accompanied P.W.7. Thus, it would be quite clear that none https://hcservices.ecourts.gov.in/hcservices/ of P.Ws.1 to 3 admitted the deceased Karthik in the hospital except P.W.7 and hence, it castss a doubt as to whether P.Ws.1 to 3 could have been present in the place of occurrence. 13.The added circumstance which negatives the case of the prosecution is the registration of the case. P.W.16, the Inspector of Police would claim that P.W.1 came to the police station at about 6.00 a.m. on 09.05.2006 and gave Ex.P.1-complaint on the strength of which a case came to the registered and the FIR has come into existence but on the contrary, P.W.2 would state that when both P.Ws.1 and 2 were in hospital at 9.30 p.m., P.W.16 reached the hospital within half an hour and P.W.2 has given a written complaint. If to be so, the police officials should have come to the hospital at nearly about 10.00 p.m. on 08.05.2006 itself and if really, such a complaint was given at about 10.00 p.m., the fact that what prevented the police from registering the case at 10.00 p.m. on 08.05.2006 and what made them to register the case on the next day morning at 6.00 a.m. i.e., after nearly about 8 hours, remains unexplained. Hence, the above circumstance also castss a doubt that Ex.P.1 could have come into existence, as put forward by the prosecution, coupled with the evidence adduced by the prosecution through P.Ws.1 to 3 that they could have present at the scene of occurrence and the same is fully strengthened by the registration of the case nearly after 8 hours. 14.In the instant case, much reliance was placed by the prosecution on the arrest of the accused 1 to 4 and the consequent recoveries of the material objects. The evidence of P.W.2 would give a go-by to that piece of evidence and according to P.W.2, he saw all the accused two days after the date of occurrence in the respondent police station and they were identified by him and thereafter, the M.O.s were recovered. But, P.W.16 has deposed that he arrested the accused on different dates and pursuant to their confessions, the material objects were recovered and thus, this claim of P.W.16, the Inspector of Police cannot but be false and hence, it has got to be rejected. 15.Though the prosecution has claimed that P.Ws.1 to 3 and 12 were present at the time of occurrence, in view of the above doubts as to their presence and that Ex.P.1 is shrouded and that the case is registered after a delay of eight hours coupled with the fact that the accused were actually identified in the police station within a few days, all would go to show that the prosecution case is filled with doubts and in the face of such reasonable doubts which remains unexplained by the prosecution, in the considered opinion of the court that it would be highly unsafe to record the finding that the accused were guilty of the offence leveled against them. Under such circumstances, benefit of doubt should go to the accused and they are entitled to for acquittal. https://hcservices.ecourts.gov.in/hcservices/ 16.Accordingly, the appeals are allowed and the