IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15-3-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.Nos.17, 22 and 24 of 2010 Udayakumar .. Appellant/A-2 in CA 17/2010 Periyasami .. Appellant/A-3 in CA 22/2010 Panneer Dass .. Appellant/A-1 in CA 24/2010 vs The State of Tamilnadu represented by The Inspector of Police E-3 Teynampet Police Station (In Crime No.2661/2008) .. Respondent/Complainant in all appeals Criminal appeals preferred under Sec.374 of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge, Fast Track Court No.V, Chennai, made in S.C.No.113 of 2009 dated 4.12.2009. For Appellant : Mr.S.Ashok Kumar Senior Counsel for Mr.C.Prabhakaran in CA 17/2010 Mr.V.Gopinath Senior Counsel for Mr.G.Gnanasundaram in CA 22/2010 Mr.N.Natarajan Senior Counsel for Mr.R.Karunakaran in CA 24/2010 For Respondent : Mr.V.R.Balasubramanian Additional Public Prosecutor COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) All these three appeals namely C.A.24/2010 by A-1, C.A.17/2010 by A-2 and C.A.22/2010 by A-3, concentrate in challenging a judgment of the Additional Sessions Division, Fast Track Court No.V, Chennai, made in S.C.No.113 of 2009 whereby they stood charged, tried, found guilty and awarded punishment as follows: https://hcservices.ecourts.gov.in/hcservices/ ACCUSED CHARGES FINDING PUNISHMENT A-1 to A-3 120B IPC Guilty 5 years RI with a fine of Rs.2000/- and default sentence A-2 302 IPC Guilty Life imprisonment with a fine of Rs.5000/- and default sentence A-1 & A-3 302 r/w 120B IPC Guilty Life imprisonment with a fine of Rs.5000/- and default sentence 2.Short facts necessary for the disposal of these appeals can be stated as follows: (a) The deceased Purushothaman and A-1 were carrying on a partnership business in the year 2001, and it continued for a few years. Thereafter, strained relationship developed, and they got apart. They started their own business individually. A-1 commenced his business in Hyderabad, and the deceased also commenced a rival business there. During the relevant time, A-1 had his own company and the deceased had his independent business. At that time, P.W.1 joined with the deceased as a partner. P.W.10 was the Manager of that business. P.W.2 was an employee. Due to the business rivalry in the past, A-1 had a grudge against the deceased. Hence he hatched up a conspiracy with A-3 to put an end to his life, and for that purpose, A-2, a hireling, was engaged. P.W.13, who is having a tiffin stall at the junction of Thiruvallurvar Salai and Eldams Road, witnessed continuously for about 10 days in the night hours that A-2 and A-3 came there and parked a car, M.O.3, and they were talking to each other, and thereafter, they left. (b) Pursuant to the conspiracy hatched, on 22.10.2008, at about 8.30 P.M., P.W.1 and the deceased were proceeding from their business place to the respective houses in their two wheelers. At that time, the deceased was coming in M.O.2 bullet. P.W.2 also followed them in another bike. At about 8.45 P.M., when they were just crossing Door No.8/19, Kamatchi Nagar, Teynampet, the deceased was just in the front, and P.Ws.1 and 2 followed him, and they were going in their two wheelers. At that time, M.O.3, a car, driven by A-3 was just crossing them, and A-2 got out of the car and attacked the deceased with M.O.1, sickle, on the head, neck and left fingers. This was witnessed by P.Ws.1 and 2. Immediately after the said incident, A-2 rushed and got into M.O.3, car, and A-2 and A-3 fled away from the place of occurrence. (c) P.W.1 proceeded to the respondent police station and gave a complaint, Ex.P1, to P.W.23, the Inspector of Police, who was on duty, on the strength of which a case came to be registered in Crime No.2261 of 2008 under Sec.302 of IPC. The printed FIR, Ex.P27, along with Ex.P1 was despatched to the concerned Metropolitan Magistrate. Then the Inspector of Police took up investigation, proceeded to the spot and caused the dead body to be photographed through P.W.19, the https://hcservices.ecourts.gov.in/hcservices/ Photographer. The photos are marked as M.O.16 series. Then he made an observation of the place in the presence of P.Ws.7 and 8 and prepared an observation mahazar, Ex.P29, and also a rough sketch, Ex.P28. He recovered from the place of occurrence M.O.2, bullet, M.O.4, bloodstained earth, and M.O.5, sample earth, under a cover of mahazar. He examined the witnesses and recorded their statements. Further, he conducted inquest on the dead body of Purushothaman in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P31. Thereafter, the dead body was sent to the Government Hospital, Royapettah, for the purpose of postmortem. (d) P.W.21, the Assistant Professor, Department of Forensic Medicine, Government Royapettah Hospital, on receipt of the requisition, conducted autopsy on the dead body of Purushothaman and has issued a postmortem certificate, Ex.P26 with his opinion that the deceased would appear to have died of shock and haemorrhage due to injury to the neck. (e) Pending the investigation, on information received, A-3 was arrested on 16.12.2008, and he came forward to give a confessional statement voluntarily. The same was recorded in the presence of P.W.10. The admissible part is marked as Ex.P39, pursuant to which he produced M.O.3, car, which was recovered under a cover of mahazar. When he pointed out A-2, he was also arrested. A-2 came forward to give a confessional statement. The same was recorded, and the admissible part is marked as Ex.P41. A-2 also produced a cell phone, M.O.6, which was recovered under a cover of mahazar. Thereafter, A-1 was arrested. He came forward to give a confessional statement which was recorded, and the admissible part is marked as Ex.P43. M.O.9, pant, M.O.10, socks and M.Os.7 and 8 cell phones, produced by him were recovered under a cover of mahazar. They were sent for judicial remand. (f) The other witnesses were examined including P.W.13 who spoke about the part of conspiracy. A requisition was made for the conduct of the test identification parade. The same was ordered, and P.W.15, the Metropolitan Magistrate, conducted the identification parade on 7.1.2009. P.Ws.1 and 2 were taken to identify both A-2 and A-3, and they identified them. The identification parade proceedings are marked as Ex.P15. (g) P.W.7 was taken before the Metropolitan Magistrate for the purpose of recording his statement under Sec.164 of Cr.P.C., and the same was recorded. It is marked as Ex.P4. All the material objects were sent for chemical analysis and Exs.P45 and P46, the serologist's reports, were received by the Court. On completion of investigation, the Investigator filed the final report. 3.The case was committed to Court of Sessions, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 23 witnesses and also relied on 48 exhibits and 18 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which they flatly denied as false. No defence witness was examined; but, two documents were marked as Exs.D1 and D2 and also one material object as M.O.1 on the side of the defence. The trial Court heard the arguments advanced on either side and after considering the submissions made and looking into the materials available, took the view that the prosecution has brought home the https://hcservices.ecourts.gov.in/hcservices/ guilt of the accused as per the charges levelled against them and hence found them guilty and awarded punishment as referred to above. Hence these appeals at the instance of the appellants. 4.Advancing arguments on behalf of A-1, the learned Senior Counsel Mr.N.Natarajan would submit that in the instant case, the prosecution commenced its story with the conspiracy theory which it has miserably failed; that as far as A-1 is concerned, there is nothing to indicate either the presence or the involvement of A-1; that as far as conspiracy part was concerned, the prosecution placed much reliance on and the trial Court has also accepted the evidence of P.Ws.7 and 11; that as far as P.W.7 was concerned, his evidence should not have been accepted by the trial Court for the reasons that first of all, the occurrence has taken place on 22.10.2008 and P.W.7 was actually examined, according to the investigator, the very day, and his statement was also sent to the Court; that a perusal of the first statement as admitted by the Investigator would indicate that there was no whisper about the conspiracy; that further the second statement was recorded on 17.12.2008, after a lapse of time; that he actually turned hostile when he was examined before the Court; and that much reliance was placed by the prosecution on the statement allegedly given by P.W.7 and recorded by the Metropolitan Magistrate under Sec.164 of Cr.P.C. after the statement was recorded by the Police Officer on 17.12.2008. 5.Commenting that part of the evidence, the learned Senior Counsel would submit that in the instant case, the same should have been rejected by the trial Court outright, but not done so; that why P.W.7 did not come with anything to speak about the alleged conspiracy in the first statement remained unknown; that after a lapse of time, the statement was recorded under Sec.164 of Cr.P.C.; that even in that statement, he has given a categorical evidence to the effect that he was actually pressurized by the police due to which he gave that statement under Sec.164 Cr.P.C. before the Metropolitan Magistrate; that he also brought to the notice of the Court by way of a letter with acknowledgement due in that regard; that they were also marked as Exs.D1 and D2 on the defence side; and that all would clearly indicate that P.W.7's evidence should have been rejected; but the trial Court has accepted the same. 6.Added further the learned Senior Counsel that the other part of the evidence relied on by the prosecution, was that of P.W.11; that as far as P.W.11 was concerned, according to him, on the pledge of jewellery which was given to him, he gave Rs.2 lakhs; that this evidence cannot in any way be taken as part of conspiracy; that admittedly, he was a pawn broker, and hence he should have maintained accounts; but, the accounts were not recovered; that there is nothing to indicate either the jewel was pledged with him or he made any payment of Rs.2 lakhs as claimed by him; and that even assuming that such a payment was made as claimed by him, unless and until there is nexus of that payment or receipt of the amount with the conspiracy in question, it cannot be acted upon. 7.The learned Senior Counsel would further add that so long as the prosecution is unable to prove the conspiracy theory, A-1 cannot be roped in and for that purpose, much was laboured by the https://hcservices.ecourts.gov.in/hcservices/ prosecution to bring forth the conspiracy story; and that in the instant case, the prosecution had no direct evidence either, or any proved circumstances from which conspiracy could be inferred. The learned Senior Counsel pointing to the settled position of law, would submit that in a given case either by direct evidence or by the proved circumstances, it could be inferred; but, there must be something to indicate that there was an agreement between the parties; that in the case on hand, it is not at all available; that in the absence of any such agreement which is brought to the notice of the Court by the prosecution, that conspiracy theory should have been rejected; but, the trial Court has accepted the same erroneously; that as far as A-1 is concerned, there is neither direct evidence or any circumstances, and hence the conspiracy theory has failed and A-1 who was erroneously found guilty by the trial Court, has got to be acquitted by this Court. 8.Advancing arguments on behalf of A-2, the learned Senior Counsel Mr.S.Ashok Kumar would submit that in the instant case, the prosecution has miserably failed to prove its case; that firstly, the prosecution relied on the evidence of P.Ws.1 and 2 as eyewitnesses; that secondly, it also relied upon the recovery of the material objects; that thirdly, it relied upon the evidence of P.W.13, a tea shopwala, and fourthly, the identification of the accused by P.Ws.1 and 2 for the purpose of conspiracy. The learned Senior Counsel pointing to the evidence of the witnesses would submit that as far as conspiracy part is concerned, the trial Court should have rejected the same for the reason that according to the prosecution, A-3 was first arrested and thereafter, he pointed out A-2 and then A-2 was arrested and thereafter A-1 was also arrested; that the arrest, confession and recovery all have preceded the statement of P.W.13 which is alleged to have been recorded by the Investigator on 18.12.2008; that it would be quite clear that how the police had got any information or suspicion about the involvement of A-2 and A-3 remained unknown; that suddenly they arrested A-3; that as far as this conspiracy is concerned, all these evidence were actually created in order to suit the prosecution case; and that the arrest, confession and recovery of the material objects cannot but be a creation by the Investigating agency. 9.As far as the identification parade is concerned, the learned Senior Counsel would submit that P.Ws.1 and 2 have categorically admitted that at the time when they were interrogated by the Police Officer, and the statements were recorded under Sec.161 of Cr.P.C., they had occasion to see them in the police station, and only thereafter, they have identified them at the time of the parade; that if to be so, their evidence was of no effect and consequence and it cannot be attached with any evidentiary value. 10.The learned Senior Counsel also took the Court to the evidence of P.W.2 and would further add that he has also well admitted so; that as far as A-2 is concerned, the recovery was a knife and also a cell phone; that the knife was actually subjected to analysis; but, it did not contain bloodstain; that it would further indicate that it was actually an introduction made by the Investigating agency and thus this piece of evidence relied on by the prosecution cannot in any way be helpful, and hence he was entitled https://hcservices.ecourts.gov.in/hcservices/ for acquittal; but, the trial Court has taken an erroneous view. 11.Advancing arguments on behalf of A-3, the learned Senior Counsel Mr.V.Gopinath would submit that a perusal of the evidence of P.Ws.1 and 2 did not indicate the presence of A-3 anywhere; that P.W.1 has averred that he was just proceeding along with the deceased, and at that time, he was actually stabbed by a person known aged about 22, and thereafter, M.O.3 car, was just coming and the door was opened, and A-2 got into the car and fled away in that car; that nowhere he has whispered the presence of A-3 or not even has given any description of A-3; that he has actually averred that he has seen the driver; that when he came before the Court as a witness, at the time of evidence, P.W.1 has developed in such a way that A-2 got down from the car and stabbed the deceased and then again got into the car and fled away; and that this was a subsequent development. 12.Added further the learned Senior Counsel that as far as the eyewitnesses P.Ws.1 and 2 are concerned, P.W.1 does not indicate the presence of P.W.2; that if to be so, it would be quite clear that P.W.2 could not have accompanied them; that even the evidence of P.W.2 would clearly indicate all kinds of discrepancies; that the statement was recorded only after the arrest and recovery; that it has also reached the Court after a few months; that had it been true that he was an eyewitness, he should have immediately come forward to state the same, but not done so; that all would clearly indicate that P.W.2 could not have seen the occurrence at all; that in the absence of P.W.2, the prosecution had got only the evidence of P.W.1; and that before accepting the solitary testimony, the Court has to apply the test of careful scrutiny; but, in the instant case, P.W.1's evidence did not have any corroborative piece of evidence. 13.Added further the learned Senior Counsel that as far as P.W.13 is concerned, his evidence should have been rejected outright by the Court for the reason that he has stated that he saw the registration number of the car, and he also noted the same in a chit and handed over, and he was also examined by the police within a period of 10 days; but the Investigator would claim that he has examined him only on 18.12.2008, and this contradiction would go to the root of the matter. 14.Added further the learned Senior Counsel that according to P.W.13, the police was go on enquiring all the shopwalas there; that he also knew that fact; but, he did not come forward to whisper about the conspiracy immediately and he laboured much at the time of interrogation by the police and also before the Court; and that all would go to show that P.W.13 was a planted witness in order to bring forth the conspiracy theory if possible, but in vain. 15.The learned Senior Counsel would further add that as far as the arrest of A-3 first, followed by A-1 and A-2 is concerned, from the morning till night hours, P.W.10, the Manager of the shop, has been utilised for that purpose; that he happened to be a chance witness according to him; that the arrest has actually taken place at Velacherry bus stand which was a commercial and congested area; that number of independent witnesses were available; that why the service https://hcservices.ecourts.gov.in/hcservices/ of P.W.10 was taken remained unknown; that it would be quite clear that such an arrest or confession or recovery should not have taken place at all, and hence P.W.10, who was actually employed under P.W.1 and the deceased was taken to service, and hence that part of the evidence should not have also been relied on. 16.Added further the learned Senior Counsel that in the instant case, the prosecution has miserably failed to bring home either the conspiracy or the recovery or the evidence of P.Ws.1 and 2 or the identification parade as one expected in law; that under the circumstances, A-3 along with the other accused should have been acquitted by the trial Court, but not done so, and hence the judgment of the trial Court has got to be set aside, and they are to be acquitted. 17.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 18.It is not in controversy that one Purushothaman, who was actually a business partner of P.W.1 during the relevant time, was stabbed to death at about 8.45 P.M. on 22.10.2008 near Door No.8/19, Kamatchi Nagar, Teynampet. Immediately within half an hour, the case was registered by P.W.23, the Inspector of Police, directly under Sec.302 of IPC, and investigation was taken up. After preparation of the inquest report at the place of occurrence, the dead body was subjected to postmortem by P.W.21, the Doctor, who has given his opinion that he died out of shock and haemorrhage due to the injury sustained by him. The cause of death as put forth by the prosecution through the medical evidence was never disputed by the appellants either before the trial Court or before this Court at the time of appeal. Hence no impediment is felt by the Court in recording that he died out of homicidal violence. 19.In order to substantiate the charges levelled against the appellants, the prosecution examined P.Ws.1 and 2 as eyewitnesses, and apart from that, it came with a story of conspiracy hatched up between A-2 and A-3 wherein A-1 was also party to that for which purpose it relied on the evidence of P.Ws.7, 11 and 13 and also some of the telephone calls through cellphones which were recovered and also some documents in that regard. In order to further prove the charges, the prosecution relied on the identification parade and also the recovery of the material objects pursuant to the confessional statements given by A-1 to A-3 as could be seen from the available materials. 20.At the outset, on perusal of the materials available, this Court is of the considered opinion that it is afraid whether it could accept the conspiracy theory as put forth by the prosecution. The main witness examined by the prosecution in that regard is P.W.13. P.W.13 was running a tea stall. According to him, for nearly about 10 days in the night hours, A-2 and A-3 stopped the car, M.O.3, and they were talking for an hour, and they left from the place, but this was not whispered to anybody. He would claim that he actually entered the registration number of the car in a chit, but not given to the police. He has also further stated that within 10 days from the time https://hcservices.ecourts.gov.in/hcservices/ of occurrence, he was examined by the police, and he gave a statement. On the contrary, the Investigator would claim that he has given statement only in the month of December 2008. Now, at this juncture, it is pertinent to point out that all these accused were arrested even earlier, and the alleged confessional statements and recovery were also made. Subsequently, P.W.13 has been interrogated and his statement has been recorded. Now, it remains to be stated that till that period, it is highly unnatural for a witness who has witnessed so and who has seen all the news items everyday, not to whisper anything. It would cast a doubt on his evidence. 21.As far as P.Ws.7 was concerned, he gave the first statement on 22.10.2008, according to the Investigator wherein he has not even whispered anything about the conspiracy part. His second statement was recorded on 17.12.2008. Within a short span of time, according to the prosecution, he was produced before the Metropolitan Magistrate, and his statement was actually recorded under Sec.164 of Cr.P.C. Much reliance was placed before the trial Court and the trial Court has also accepted this part of the evidence. It is pertinent to point out that he was actually treated hostile, and apart from the same, the second statement was recorded only on 17.12.2008, after nearly about a period of two months. The statement under Sec.164 was given consistent to the statement given under Sec.161 on 17.12.2008. In the first statement given by him at the earliest, there was no whisper about any part of the conspiracy. Added further, he has turned hostile. Even then, the trial Court has relied upon his statement under Sec.164 of Cr.P.C. At the time of cross-examination, he has categorically stated that a letter has also been written by him to the Metropolitan Magistrate's Court, and it has also been marked wherein he has clearly stated that he was pressurized by the police to give statement, and only then he appeared along with the police before the Magistrate and gave the statement. In the face of the evidence available, this Court is of the considered opinion that the evidence of P.W.7 was not trustworthy and hence the same should have been rejected by the trial Court. 22.Equally, as far as P.W.11 was concerned, according to him, he handed over Rs.2 lakhs on the pledge of a jewel which belonged to A-1 and the amount was not given to A-1, but to somebody else. He has well admitted that he is maintaining accounts because it was a pawn broker shop. But, the accounts were not recovered, and no material is available to show that he gave Rs.2 lakhs and to whom he gave the amount, except his oral assertion made before the Police Officer and that