Bail Slip The Appellant/ Accused No.6 namely B. Raja was directed to release on bail as per order of this Court dated 21.11.2008 and made in Crl.M.P.No.1 of 2007 in Crl.Appeal No.981 of 2007 on the file of this Court. The Appellants/ Accused Nos. 3,4,5&7 namely Dharmaraj @ Dharma (A3), Dilli Babu @ Balu (A4),Venkatesan (A5), Rajesh (A7) was directed on bail as per order of this Court dated 22.11.2007 and made in Crl.M.P.No.1 of 2007 in Crl.A.No.983 of 2007 on file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26-11-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRL.A.Nos.952, 981 and 983 of 2007 Jalakandeswaran @ Eswaran .. Appellant in CA 952/2007 B.Raja .. Appellant/ Accused 6 in CA 981/2007 1.Dharmaraj @ Dharma 2.Dilli Babu @ Balu 3.Venkatesan 4.Rajesh .. Appellants/Accused 3,4,5&7 in CA 983/2007 vs State rep. By Inspector of Police Poonamallee Police Station Poonamallee Crime No.411 of 2006 .. Respondent/ Complainant in all appeals Criminal appeals preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge, F.T.C. No.3, Poonamallee, made in S.C.No.151 of 2007 dated 28.9.2007. https://hcservices.ecourts.gov.in/hcservices/ For Appellants : Mr.N.Manoharan Amicus Curiae for A-2 in CA 952/2007 Mr.T.V.Ganesh for A-6 in CA 981/2007 Mr.R.Vijayaraghavan for A-3 to A-5 & A-7 in CA 983/2007 For Respondent : Mr.P.Kumaresan Additional Public Prosecutor COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern all these three appeals, C.A.No.952/2007 by A-2, C.A.No.981/2007 by A-6 and C.A.No.983/2007 by A-3 to A-5 and A-7. 2.These appeals have arisen from the judgment of the Additional Sessions Division, Fast Track Court No.III, Poonamallee, made in S.C.No.151 of 2007 whereby these appellants along with A-1 stood charged and tried under Sections 147, 148, 302 read with 149 and 307 read with 149 of IPC. On trial, A-2 to A-7 were found guilty under Sections 148, 307 read with 149 and 302 read with 149 of IPC and awarded life imprisonment along with a fine of Rs.5000/- and default sentence under Sec.302 read with 149 IPC, 10 years Rigorous Imprisonment along with a fine of Rs.2000/- and default sentence under Sec.307 read with 149 IPC and 1 year Rigorous Imprisonment under Sec.148 IPC, and the trial Court has made an order of acquittal of A-1 of all the charges. 3.The short facts necessary for the disposal of these appeals can be stated as follows: (a) P.W.2 is a resident of New Colony, Porur. The deceased Edwin Jacob was his son. He was taking Karate classes under A-2. The deceased Edwin Jacob fell in love with the sister of A-1. Despite the objections raised by the family of A-1, he married her. Thereafter, the relationship between the spouses got strained, and he deserted her. Despite the request of A-1, he did not take her back, and hence they were on inimical terms. Then, on the request of A-1, his friend A-2 and his associates, the other accused, planned to finish him off. On 4.3.2006 at about 6.00 P.M., Edwin Jacob, and his friend P.W.3 Munirathinam, proceeded to Karate School at Pariwakkam. When the classes were going on, they were witnessing for a while. A-7, who was already available there at that time, went in a motorbike and brought A-3 and A-4. They were talking with each other for sometime. Then, leaving A-2, the deceased and P.W.3, all of them left the place. https://hcservices.ecourts.gov.in/hcservices/ (b) At about 10.00 P.M., the deceased Edwin Jacob, P.W.3 and A-2 proceeded in a motorbike. When they were just proceeding in the main road, A-2 informed the deceased to go on the right side towards Mettupalayam. Edwin Jacob questioned why they should go there. Then A-2 replied that they have got a marriage festival, and he was to attend the same. Accordingly, on the instructions of A-2, Edwin Jacob took the motorbike towards Mettupalayam. When they were just proceeding for a short while, they found another motorbike, and the light was also burning. A-2 told the deceased that it looked like his bike, and hence he asked him to stop the vehicle. Accordingly, the motorbike in which all the three were travelling, was stopped. Immediately, A-3 and A-4 were found running. They began to attack P.W.3, and P.W.3 who sustained severe bleeding injuries, was running from the place. After a short distance, he turned back and witnessed A-2 to A-7 armed with deadly weapons attacking Edwin Jacob. Then he immediately left the place and proceeded to the hospital of P.W.4, the Doctor, where he had the treatment. He was medically treated by P.W.4 at 11.00 P.M. The accident register copy is marked as Ex.P2. Since P.W.2's son did not come, he was making a search. Next morning, he was informed that P.W.3 was taking treatment in the hospital of P.W.4. Then he went over to the hospital, and P.W.3 informed P.W.2 that himself and his son were attacked by the accused. (c) While the matter stood thus, on 5.3.2006 in the morning hours, P.W.1, the Village Administrative Officer (VAO), was informed by his Assistant by phone that near the Meikkal poramboke, a male body was found. Immediately P.W.1 proceeded to the place and found the dead body. He prepared Ex.P1, the report, and went to the respondent police station where P.W.11, the Inspector of Police, was actually on duty, to whom he gave Ex.P1 report, on the strength of which a case came to be registered in Crime No.411 of 2006 under Sec.302 of IPC. The printed FIR, Ex.P20, was despatched to the Court. (d) P.W.11 took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P11, and a rough sketch, Ex.P21. Then, he conducted inquest on the dead body of Edwin Jacob in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P22. The dead body was sent to the hospital along with a requisition Ex.P3, for the purpose of postmortem. (e) P.W.5, the Professor, Department of Forensic Medicine, Government Kilpauk Medical College, on receipt of the requisition, conducted autopsy on the dead body of Edwin Jacob and has issued a postmortem certificate, Ex.P4, wherein he has opined that the deceased would appear to have died of cranio-cerebral injuries due to multiple cut wounds. (f) Pending the investigation, the Investigating Officer arrested A-2, A-3, A-4, A-5, A-6 and A-7 on 6.3.2006. A-2 gave a confessional statement which was recorded by him. The admissible part is marked as Ex.P12 pursuant to which he produced M.O.9 https://hcservices.ecourts.gov.in/hcservices/ motorbike, which was recovered under a cover of mahazar. A-3 gave a confessional statement voluntarily, and Ex.P14 is the admissible part. He also produced an iron rod, M.O.7, which was recovered under a cover of mahazar. A-4 gave a confessional statement, which was recorded, and the admissible part is Ex.P15. Then, A-4 produced M.O.5 knife, which was recovered under a cover of mahazar. A-5 also gave a confessional statement which was recorded, and he produced M.O.6 knife, which was recovered under a cover of mahazar, Ex.P17. They were all sent for judicial remand. The Investigating Officer altered the case into Sections 147, 148, 120-B, 180, 307 and 302 of IPC. The express report, Ex.P23, was sent to the Court. (g) On requisition made by the Investigating Officer, the test identification parade was conducted by P.W.6, the Judicial Magistrate No.II, Poonamallee, and P.W.3 identified A-2 to A-7. The identification parade proceedings are marked as Ex.P8. All the material objects were subjected to chemical analysis which resulted in two reports Exs.P9, the chemical analyst's report, and Ex.P10, the serologist's report. P.W.12, the Inspector of Police, took up further investigation and on completion of investigation, filed the final report. 4.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution marched 12 witnesses and also relied on 23 exhibits and 10 material objects. On completion of evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C., which they flatly denied as false. No defence witness was examined. The lower Court heard the arguments advanced, perused the materials available and took the view that the prosecution has proved the case in respect of all the charges against A-2 to A-7 and hence found them guilty and awarded the punishment as referred to above. Hence these appeals at the instance of the appellants. 5.Advancing arguments on behalf of the respective appellants, the learned Counsel made the following submissions: (i) The occurrence has taken place at 10.00 P.M. on 4.3.2006. The only eyewitness, according to the prosecution, was P.W.3. Admittedly, P.W.3 was a friend of the deceased. The prosecution would claim that he was also injured at the time of the occurrence. According to P.W.3, he went along with the deceased to Karate School, and he was talking to A-2, and the other accused were present, and A-3 to A-7 left the place. He would further add that thereafter, he was proceeding with the deceased and A-2 in a motorbike, and on the way they stopped at a particular place where all the other accused were present except A-1, and they attacked him first, and immediately he got frightened, and with the bleeding injuries he was running. After a short distance, he turned back to see A-2 to A-7 who were attacking the deceased with deadly weapons, and immediately he proceeded to the hospital of P.W.4 where he got admitted and had treatment for a period of three days. The evidence of P.W.3 was thoroughly unreliable, and the lower Court should have rejected his evidence in toto. https://hcservices.ecourts.gov.in/hcservices/ (ii) According to P.W.3, he was cut by 3 or 4 persons, and he got bleeding injuries, and he was running. The first circumstance is that naturally he could not have waited there and witnessed the occurrence. Secondly, it admitted by him that it was about 10.00 P.M., and the occurrence has taken place in utter darkness, and there was no light. Under the circumstances, he could not have seen the occurrence at all. (iii) When P.W.3 went to the hospital of P.W.4, the earliest document in the instant case is Ex.P2 wherein he has given the statement that originally 3 or 4 persons attacked him, and they were unknown persons, and it has been recorded thrice, and subsequently it has been altered as known persons. Further, he has categorically stated that all these persons who attacked him, and the deceased were also not known to him previously, and hence he could not have seen them. (iv) According to P.W.3, he was proceeding in Mettupalayam Road, and at a particular place, the occurrence has taken place. The sketch prepared by the Investigating Officer, does not indicate Mettupalayam Road at all or the place of occurrence also. (v) There is lot of discrepancy found in Ex.P2. The place of occurrence is shown by interpolation as near Balaji Distilleries and Palavakkam Granite Company. It is pertinent to point out that either the Granite Company or Balaji Distilleries is not found either in the observation mahazar or in the sketch at all. (vi) Added circumstance is the evidence of P.W.1, who was the VAO of that place. According to him, the place where the dead body was found namely Balaji Distilleries, is situated about 2 ½ kilometers away and the Granite Company is situated about 300 to 400 meters away, and thus it would be indicative of the fact that the place of occurrence is also not as found in the FIR or in the earliest document, Ex.P2. (vii) Apart from the above, in Ex.P2, all interpolations and corrections have been made. Further, it was P.W.1, who went over to the place and who gave the information to police; but, the names of the accused are not stated. Though it is claimed by the police and also by P.W.3 that when he was taking treatment in the clinic of P.W.4, the police approached him on 5.3.2006, and recorded his statement. If to be so, there was all possibility for P.W.3 to tell all the names of the accused; but, he has not given the names of the accused at all. All these would go to show that the evidence of P.W.3 could not in any way fix the appellants as the assailants or they were involved in the crime in question. (viii) Added circumstance is that once P.W.3 was unable to say who were the assailants at the spot, the identification parade conducted subsequently would be of no significance in law and could not be given any evidentiary value. Thus, the prosecution was able to prove that Edwin Jacob was actually murdered, and P.W.3 was also injured; but, it has miserably failed to prove the participation of https://hcservices.ecourts.gov.in/hcservices/ the appellants in the crime. But, the lower Court has given unnecessary weight and importance to the evidence of P.W.3 since he was shown as an injured person. In the face of such evidence with all these inconsistencies, doubts and suspicions and in view of the fact that the prosecution has miserably failed to prove its case, the appellants are entitled for acquittal. 6.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 7.It is not in controversy that one Edwin Jacob, the son of P.W.2, was done to death in an incident that has taken place in the night hours of 4.3.2006, and P.W.3 was also injured in that occurrence. Following the inquest made by the Investigating Officer, P.W.11, the dead body was subjected to postmortem by P.W.5, the Doctor, who has given his categorical opinion as a witness before the Court and also by issuing a certificate, Ex.P4, that Edwin Jacob died out of cranio-cerebral injuries due to multiple cut wounds. The fact that he died out of homicidal violence was not in controversy before the trial Court. Hence the prosecution was successful enough in establishing the fact that Edwin Jacob died on account of homicidal violence. 8.In order to substantiate the involvement of all the accused persons and that in pursuance of the common object to murder Edwin Jacob, all have constituted an unlawful assembly, and they armed with deadly weapons proceeded and not only attacked P.W.3, caused grievous injuries and attempted his life, but also caused the death of Edwin Jacob, the prosecution rested its entire case on the sole testimony of P.W.3. It is trite law that in a given case like this, when the prosecution case rests upon the sole testimony of a witness, the Court must exercise all its care and caution before accepting the evidence. Now, at this juncture, the learned Additional Public Prosecutor brought to the notice of the Court that P.W.3 was not only an occurrence witness, but also an injured witness. It is also settled proposition of law that in a given case when an occurrence witness happened to be an injured witness, the Court should not discard his testimony, unless and until strong circumstance is noticed or reason is brought about. The Court is thoroughly mindful of the settled position of law. Even after the application of the position of law, this Court is afraid whether it can accept the evidence of P.W.3 to sustain a conviction in the present case since this Court is able to see all the infirmities in the evidence of P.W.3. 9.According to P.W.3, he accompanied the deceased and A-2 in the same motorbike, and when they were proceeding in Mettupalayam Road, at a particular place they stopped the motorbike, and at that time, they got down from the bike, and A-3 to A-7 armed with deadly weapons, attacked him, and immediately he went away from the place. It is the further evidence of P.W.3 that with bleeding injuries, he was running, and after a short while, he turned back to see the accused persons who were attacking the deceased with deadly https://hcservices.ecourts.gov.in/hcservices/ weapons. The first and foremost thing which strikes anybody's mind is that the occurrence has taken place in utter darkness at about 10.00 P.M. P.W.3 has categorically admitted in the cross- examination that there was no light at all, and these accused persons were not known to him also. Therefore, he could have neither seen the assailants at all nor identified them later. 10.Besides the above, when number of persons attacked P.W.3 with deadly weapons like iron rod and knife, and he was running with bleeding injuries, it would be highly unnatural that he stayed there, turned back and saw the occurrence which was going on and that too in utter darkness. So long the prosecution has not explained how P.W.3 could have seen the occurrence and that too when all the accused persons were not known to him previously, the case of the prosecution projected through P.W.3 could not be accepted. 11.Above all, P.W.3 went to the clinic of P.W.4, the Doctor, where he was taking treatment from 11.00 P.M. on 4.3.2006 for a period of three days i.e., till 7.3.2006. Immediately on reaching there, he informed to the Doctor as to the time and place of occurrence and also the assailants. According to him ,it was only 3 or 4 persons. Added further, originally the Doctor has mentioned in the accident register copy, Ex.P2, as unknown persons. Thereafter, it has been corrected as known persons in two places. That apart, it could also be seen that the place of occurrence is noted in Ex.P2 by P.W.4, the Doctor, as informed by P.W.3. What is found in Ex.P2 was shown as the place of occurrence which was near Granite Factory and also Balaji Distilleries. From the evidence of P.W.1, the VAO of the said place, it could be seen that Balaji Distilleries is situated about 2 ½ kilometers from the place where the dead body was found, and also the other one Granite Factory is situated about 300 to 400 meters from the place where the dead body was found. When the sketch and the observation mahazar prepared by the Investigating Officer in the presence of two witnesses and placed before the trial Court, are looked into, neither Mettupalayam Road nor Granite Factory nor Balaji Distilleries is noticed. Thus, it would be highly doubtful whether such an occurrence could have taken place as put forth by the prosecution and also as focused before the trial Court through the evidence of P.W.3. All would cast a doubt whether such an occurrence could have taken place as put forth by P.W.3. 12.In the instant case, the prosecution has much relied on the identification parade conducted by P.W.6, the Judicial Magistrate, and also the contents of the proceedings found in Ex.P8. This Court is of the considered opinion that this document requires rejection since no evidentiary value could be attacked to the same. As stated above, since P.W.3 could not have seen the assailants at the time and place of occurrence, the identification made by him was of no significance at all. In a given case like this, identification parade are conducted only by way of supportive piece of evidence. It does not constitute substantive piece of evidence, but it has got to be used as corroborative of the statement in https://hcservices.ecourts.gov.in/hcservices/ Court since the evidence of the witness who was taken for identification parade, is the main evidence, and it is also the direct evidence. In the instant case, even according to P.W.3, he did not know the assailants earlier and also he did not see them in darkness. Thus, the identification parade subsequently conducted was of no significance at all, and no evidentiary value could be attached as rightly pointed out by the learned Counsel for the appellants, and the Court has to necessarily agree with them. 13.Now, the remaining part of the evidence was the recovery of the material objects. It is true that recovery has been made following the confessional statements of A-2, A-3 and A-4. In respect of A-6 and A-7 there was no confessional statement at all. As far as A-4 was concerned, according to the prosecution, the admissible part of the confessional statement given by A-4, is marked as Ex.P15, pursuant to which M.O.5 knife, has been recovered from him. When the FIR along with the documents and records were placed before the Judicial Magistrate, it was returned by him since the description was found to be discrepant. Even assuming that there was recovery of weapon of crime, the same by itself would not suffice to sustain a conviction. As narrated above, the evidence adduced by the prosecution was completely shrouded with suspicion, and sustaining a conviction, in the considered opinion of this Court, on the evidence of P.W.3, which was completely filled with suspicion, would be highly unsafe. For the above reasons, it cannot be stated that the prosecution has brought home the guilt of the accused. Hence the judgment of the lower Court has got to be set aside, and they are entitled for acquittal. 14.In the result, all these criminal appeals are allowed setting aside the judgment of conviction and sentence passed by the lower Court. The appellants/A-2 to A-7 are acquitted of the charges levelled against them. The bail bonds executed by A-3 to A-7, shall stand terminated. The fine amounts if any paid by them, will be refunded to them. A-2 is directed to be released forthwith unless his presence is required in connection with any other case. Mr.N.Manoharan, Amicus Curiae for A-2 in C.A.952/2007, is entitled to get remuneration from the Tamil Nadu State Legal Services Authority. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. nsv/ https://hcservices.ecourts.gov.in/hcservices/ To: 1. The Judicial Magistrate No.1 Poonamallee 2. thro the Chief Judicial Magistrate Tiruvallur 3. The Superintendent Central Prison, Puzhal, Chennai 4.The Additional District and Sessions Judge Fast Track Court No.III, Poonamallee 5.The Inspector of Police Poonamallee Police Station Poonamallee Crime No.411 of 2006 6. The Public Prosecutor High Court, Madras. 7. The Secretary Tamilnadu State Legal Services Authority Madras 8. The District Collector Tiruvellore 9. The Director General of Police Chennai-4. 2 ccs to Mr.T.V. Ganesh, Advocate, SR. 66348 2 ccs to Mr.N. Manokaran, Advocate, SR. 66343 1 cc to Mr.R. Vijayaraghavan, Advocate, SR. 66157 CRL.A.Nos.952, 981 and 983 of 2007 SSN (CO) kk 3/12 https://hcservices.ecourts.gov.in/hcservices/