BAIL SLIP That the Appellant 2 to 8 and 11 namely(1) Francis,(2)Raja, (3) Senthil, (4) Kupusali @ Suresh, (5) Sekar @ Kozhi Sekar (6) Masala Babu (7) Sugumar (8) Jeeva was directed to be released on bail by the order of this Court dated. 24.07.2007 and 13.08.2007 and made in MP.1/2007 and Mp.2/2007 in Crl.A.No.577/07. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 12.11.2009 CORAM THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR. JUSTICE V.PERIYA KARUPPIAH CRL.A.No.577/2007 1.Francis 2.Raja 3.Senthil 4.Kupusali @ Suresh 5.Sekar @ Kozhi Sekar 6.Masala Babu 7.Sugumar 8.Jeeva .. Appellants/A2 to 8 and 11 Vs State by the Inspector of Police E-1, Mylapore Police Station Mylapore, Chennai-41. .. Respondent [Cr.No.843/2003] Appeal filed u/s.374[2] Cr.P.C., filed against the Judgment and order of conviction and sentence passed in SC.No.334/2005 dated 6.7.2007 by the learned Additional District and Sessions Judge,Fast Track Court No.IV, Chennai and to set aside the same. For Appellants : Mr.R.Shunmugasundaram, SC for Mr.R.Vinayaga Vishnu For Respondent : Mr.Babu Muthu Meeran, Addl. Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ 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-IV, Chennai made in SC.No.334/2005 dated 06.07.2007 whereby the appellants along with A1[since deceased] and A9,A10 and A12 stood charged, tried and the appellants were found guilty for the offence u/s.147,148,302 read with 120-B and 506[ii] IPC and on trial, they were found guilty of the charges and were awarded with punishments as follows:- Accused Conviction Sentence awarded A2 to A8 and A11 U/s.147 and 148 IPC Each of the accused were sentenced to undergo 2 years rigourous imprisonment and to pay a fine of Rs.500/- each and in default to undergo three months simple imprisonment for the offence u/s.147 and 148 IPC. A2 to A8 and A11 U/s.506[ii] IPC Each of the accused to undergo 7 years rigorous imprisonment and to pay a fine of Rs.1,000/- each and in default to undergo three months simple imprisonment for the offence u/s.506[ii] IPC. A2 to A8 and A11 U/s.302 r/w 120-B IPC Each of the accused were sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/- each and in default to undergo three months simple imprisonment for the offence u/s.302 r/w 120-B IPC. The trial Judge ordered the sentences to run concurrently. After framing of the charge and before commencement of the trial, A1 died and hence, the charge as against A1 stood abated. Insofar as https://hcservices.ecourts.gov.in/hcservices/ A8,A9 and A12, the court recorded an order of acquittal. 2.Short facts necessary for the disposal of the appeal can be stated as follows:- [a]P.W.1 is the father of the deceased Kathirvan and P.W.16 is the second wife of P.W.1. Apart from the said Kathiravan, P.W.1 has got 3 sons and a daughter and all are residents of Pallaku Maanagar at Mylapore, Chennai. One Balaji, the brother of A1, was done to death by Deepan, one of the sons of P.W.1 on 10.05.2003 and subsequently, he was arrested and a case was also registered. Thus, A1 and his associates who are ranked as other accused, were on enmical terms with the said Kathiravan and his family members. On the day of occurrence, i.e., 12.05.2003 at about 4.30 p.m. when P.Ws.1 and 16 were sitting outside the house of P.W.16, situated in front of the Beef Stall run by the deceased Kathiravan, all the accused armed with deadly weapons like aruvals and knives, entered into the Beef stall, pulled the deceased Kathiravan outside and began to cut him indiscriminately. This occurrence was witnessed by P.Ws.1 to 3 and 16. After hearing the distressing cry of the deceased, neighbours gathered and so, all the accused fled away from the scene with weapons. Immediately, P.W.1 accompanied by others, took the severely injured Kathiravan to the Government Hospital, Royapettah, where he was declared dead by the doctor, P.W.14, attached to the said hospital and Ex.P.4 is the copy of the Accident Register and the same is also marked as Ex.D.1. [b] On receipt of intimation, P.W.17, the Inspector of Police [Law and Order], who was on duty attached to the respondent police at the relevant point of time, went to the hospital at about 5.15 p.m., recorded the complaint from P.W.1 under Ex.P.1 and came back to the police station at 6.00 p.m. and on the strength of Ex.P.1-complaint, a case came to be registered in Cr.No.843/2003 for the offence u/s.147,148,341,324,326,302 and 506[ii] IPC and the Express FIR, Ex.P.7 reached the court at 9.30 p.m. [c]P.W.17, in continuation of his investigation, proceeded to the scene of occurrence at about 6.30 p.m.; prepared an Observation Mahazar [Ex.P.8] and a rough sketch [Ex.P.9] in the presence of witnesses. He also recovered M.O.11-blood stained earth; M.O.12- sample earth under a cover of the mahazar-Ex.P.10. He also recovered Soda Bottle pieces [M.O.13 series] in the presence of the same witnesses under a cover of Mahazar, Ex.P.11. He also examined the witnesses in the scene and recorded their statements. [d]P.W.17, the investigating officer went to the mortuary and held inquest on the dead body of the deceased at about 7.00 a.m. on 13.05.2003 in the presence of witnesses and panchayatdars and prepared Ex.P.12-Inquest Report. He recorded the statements of the witnesses at the hospital and also sent the dead body of Kathiravan https://hcservices.ecourts.gov.in/hcservices/ for postmortem. [e]P.W.13, the doctor attached to the Government Hospital, Royapettah received a requisition from P.W.17, the Inspector of Police and conducted autopsy on the dead body of the deceased Kathiravan on 13.05.2003 at 10.30 a.m. and issued Ex.P.3-Post Mortem Certificate wherein the doctor had opined that the deceased Kathiravan would appear to have died of shock and haemorhage due to multiple injuries sustained by him. [f]In continuance of the investigation, P.W.17, the Inspector of Police made the following arrests of some of the accused and some of them surrendered before the courts concerned, the details of which are as follows:- Rank of the accused Date of Arrest Date of Surrender Place of Surrender Admissible part of the Confessional Statement Material Objects recovered A1 and A2 - 13.05.2003 V Metropolitan Magistrate, Egmore,Chenna i. Not marked 2 Knives recovered under the cover of Mahazars, Exs.P.17 & 18 A3 - 23.05.2003 District Munsif court, Thiruvottriyu r Ex.P.22 Knife recovered under Ex.P.23 A4 & A5 - 14.05.2003 XIV Metropolitan Magistrate, George Town, Chennai Not marked Knife from A4-Mahazar not marked. Knife from A5 under Ex.P.19. A6 - 14.05.2003 Judicial Magistrate No.2, Kanchipuram Not marked Knife recovered under Ex.P.21. A7 - 06.07.2003 Judicial Magistrate No.5, Egmore, Chennai Not marked Not known https://hcservices.ecourts.gov.in/hcservices/ Rank of the accused Date of Arrest Date of Surrender Place of Surrender Admissible part of the Confessional Statement Material Objects recovered A8 to A10 13.5.2003 - - Ex.P.13 [A8] M.Os.5,9&2 recovered under Ex.P. 14 A11 - 19.05.2003 Judicial Magistrate, No.5, Vellore Ex.P.20 Mahazar not marked A12 18.5.2003 - - Ex.P.15 M.O.10 – Yamaha Bike [Mahazar not marked] All the material objects recovered from the place of occurrence; from the dead body of the deceased Kathiravan and the material objects recovered pursuant to the confessional statements of the accused were all subjected to chemical analysis along with a requisition which resulted in Chemical Analyst Report and Serologist Report, viz., Exs.P.5 and 6 respectively. [g]On completion of investigation and filing of the final report, the case was committed to Court of sessions; necessary charges were framed. In order to substantiate the charges, the prosecution examined 17 witnesses [P.Ws.1 to 17], marked 23 exhibits [Exs.P.1 to 23] and produced 13 material objects [M.Os.1 to 13]. 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 D.Ws.1 and 2 were examined and Exs.D.1 and 2 were 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 against the appellants/accused except A8,A9 and A12 and thus, rendered the judgment of conviction and sentence as stated supra. As against the said conviction and sentence, the appellants/accused have preferred the above appeal. 4.Advancing the arguments on behalf of the appellants, Mr.R.Shunmugasundaram, the learned senior counsel would submit that the prosecution has miserably failed to prove its case. It is contended that the occurrence had taken place on 12.05.2003 at about 4.30 p.m. when the deceased was in his Beef stall and all the accused who are arrayed as A1 to A12 armed with deadly weapons went over https://hcservices.ecourts.gov.in/hcservices/ there, pulled the deceased out of the stall and attacked him indiscriminately and caused his death instantaneously. In order to substantiate the entire charge against the accused, the prosecution rested its case on the direct evidence, viz., P.Ws.1 to 3 and 16 and out of these witnesses, P.Ws.2 and 3 have categorically deposed at the time of cross-examination that whatever they deposed at the time of chief examination, were all tutored by the police and so far as P.Ws.1 and 16 are concerned, they claim that there were the actual witnesses to the occurrence. But, the learned senior counsel submitted that clear evidence is available on record indicating that they could not have seen the occurrence at all. P.W.1 would claim that while he was sitting in front of the Beef stall, the occurrence had taken place and P.W.1 would further claim that immediately after the occurrence, he along with his wife-P.W.16, took the deceased Kathiravan to the Government Hospital, Royapettah, where he was declared dead. On the contrary, P.W.16 has categorically deposed that she did not go to the hospital along with P.W.1. Thus, it would be quite clear that neither P.W.1 nor P.W.16 could have taken the dead body of the deceased to the hospital immediately after the occurrence was over. 5.Added further, the learned senior counsel would submit that P.W.13-the doctor attached to the said hospital, who declared the deceased as dead has given Ex.P.4-Accident Register in that regard and the same is also marked as Ex.D.1. In the said Accident Register, it is stated that the dead body of the deceased was actually brought forth by two persons from public, viz., Annadurai and Ramesh. A perusal of the document would clearly indicate the fact that neither of them, viz., P.Ws.1 and 16, could have taken Kathiravan to the hospital. Further, the defence had examined the said Annadurai and Ramesh as D.W.1 and D.W.2 respectively, who have categorically deposed that the dead body of the deceased Kathiravan was found unattended in the street and that they took the dead body to the hospital and thus, from their evidence, it would be quite clear that when they took the dead body to the hospital, neither P.W.1 nor P.W.16 was present. It was also not the evidence of P.Ws.1 and 16 that immediately after the occurrence was over and after witnessing the same, they left the place. But, P.W.1 would add that immediately after the occurrence, he took the dead body to the hospital. All would go to show that P.Ws.1 and 16 could not have been present at the scene of occurrence at all. 6.The learned senior counsel would further contend that so far as the recoveries of the material objects are concerned, they are actually planted in order to strengthen the case of the prosecution. The prosecution showed two witnesses in the list of witnesses for recovery, viz., P.W.12 and other person. However, P.W.12 did not support the prosecution case and the prosecution ought to have examined the other witness but failed to do so. Hence, the alleged confessions and recoveries of material objects from the accused https://hcservices.ecourts.gov.in/hcservices/ automatically fails and that part of the evidence was not available for the prosecution to fasten the guilt on the accused and it can be well stated that the prosecution has miserably failed to prove its case. On the contrary, the learned Trial Judge has taken an erroneous view accepting the evidence as put forth by the prosecution at the time of chief examination and forgetting the creditability of the evidence given at the time of cross examination and hence, the Judgment of the trial court has got to be set aside and the appellants/accused are entitled for acquittal in the hands of this court. 7.Heard the learned Additional Public Prosecutor on the above contentions and the court paid its anxious consideration on the submissions made on either side. 8.It is not in controversy that one Kathirvan, following an incident that took place on 12.05.2003 at about 4.30 p.m., was taken to the Government Hospital, Royapettah where P.W.14, the doctor who examined Kathirvan, declared him dead and after following the procedural formalities, P.W.17, the Inspector of Police, sent the dead body for Postmortem and the dead body was subjected to postmortem by P.W.13, the doctor attached to Government Hospital, Royapettah, who has given a categorical opinion that the deceased died out of shock and haemorrhage due to multiple injuries sustained by him and the fact that the deceased Kathiravan died out of homicidal violence was not disputed by the appellants/accused and other accused 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. 9.In order to substantiate that it was the accused persons, armed with deadly weapons, pulled the deceased out of his Beef stall and attacked him with knives and aruvals indiscriminately and caused his instantaneous death, the prosecution marched P.Ws.1 to 3 and 16 as eyewitnesses. As rightly pointed out by the learned senior counsel for the appellants, the evidence of P.Ws.2 and 3 has got to be rejected since both of them have categorically deposed during cross-examination that whatever they deposed in the chief examination, was a tutored one by the police. Hence, their evidence would be of no use for the prosecution. Insofar as P.Ws.1 and 16, they have claimed themselves to be the eyewitnesses to the occurrence. But their evidence, if scrutinised carefully, casts a doubt in the minds of the court. P.W.1 is the father and P.W.16 is the step-mother of the deceased Kathiravan and naturally they cannot be expected to speak contra. Both have deposed during the chief examination that they have witnessed the occurrence. Since they are not only interested witnesses but also related witnesses, this court, before accepting their evidence, must exercise the careful scrutiny test and if such test is applied, this court is afraid whether it can accept their evidence. P.W.1 has claimed that he was very well https://hcservices.ecourts.gov.in/hcservices/ available along with P.W.16 when the occurrence had taken place. But, P.W.1 would further add that immediately after the occurrence, he took the dead body along with P.W.16 to the hospital and it is not his case that either P.W.16 or himself left the place of occurrence after the occurrence was over. On the contrary, P.W.16 has categorically deposed during the cross-examination that she never went to the hospital with her husband, P.W.1 and thus, it is highly doubtful whether P.W.1 or P.W.16 could have gone to the hospital along with the dead body of the deceased. 10.Added circumstance which would indicate that neither P.W.1 nor P.W.16 could have seen the occurrence at all is the evidence of P.W.14, the doctor who attended the dead body of the deceased and declared him dead and also the contents of Ex.P.4-the Accident Register pertaining to the deceased which also is marked as Ex.D.1 on the side of the defence. A perusal of these documents would clearly indicate that one Ramesh and Annadurai brought the dead body and P.W.14 has also categorically deposed that the dead body of the deceased was brought by two persons who are from public, viz., Ramesh and Annadurai and they were examined as Dws.1 and 2 respectively. From their evidence, it would be quite clear that the body of the Kathiravan remained in the street unattended and under such circumstances, they took the dead body to the hospital in order to save him. To further add, P.Ws.1 and 16, had they really witnessed the occurrence, could have accompanied the dead body of the deceased to the hospital. When Dws.1 and 2 has deposed that the body remained unattended and so long as P.Ws.1 and 16 did not claim that they moved away from the place of occurrence and they took the dead body to the hospital, as put forward by the prosecution, it would clearly indicate that P.Ws.1 and 16 could not have been present in the place of occurrence. Hence, the evidence of P.Ws.1 and 16 is shrouded with suspicion. So long as the evidence of P.Ws.1 and 16 is not believed, it can be well stated that the prosecution has no further direct evidence to strengthen its case. 11.As far as the confessions and recoveries are concerned, the prosecution did not have any evidence at all. It is true that the prosecution claimed that all the accused were interrogated and at that time, they voluntarily gave confessional statements when they were in the police custody and the same were recorded. According to the investigating officer, the material objects were recovered including the weapons of crime pursuant to the confessional statements of the accused. But, the prosecution, in order to substantiate the recoveries, listed 2 witnesses out of whom, one was examined before the court as P.W.12 and he did not support the prosecution case and the other witness was not at all examined. In a given case, when number of witnesses are listed in order to substantiate the alleged confession and recovery and if one of the witnesses examined turns hostile or did not support the prosecution case, a duty is casts upon the prosecution to examine the other https://hcservices.ecourts.gov.in/hcservices/ witness. But, in the instant case, since P.W.12 did not support the prosecution for the alleged recoveries, the prosecution ought to have examined the other witness before the trial court but not done so for the reasons best known to them. Under such circumstance, the witness examined by the prosecution in respect of the alleged confessions and recoveries, viz., P.W.12, did not get the acceptance of this court and equally the evidence of the other part remained unproved. Therefore, the Judgment of the trial court has got be made undone by upsetting the same and the appellants are entitled for acquittal. 12.Accordingly, the appeal is allowed and the judgment of conviction and sentence against the appellants/A2 to A8 and A11 passed by the learned Additional District and Sessions Judge,Fast Track Court No.IV, Chennai in SC.No.334/2005 dated 06.07.2007 is set aside. 13.The bail bond executed by them shall stand terminated. The fine amount, if any paid, shall be refunded to them. Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar ap To 1. The Metropolitan Magistrate XVIII, Saidapet, Chennai. 2. -do- Thro' The Chief Metropolitan Magistrate,Egmore, Chennai. 3.The Additional District and Sessions Judge, Fast Track Court No.IV, Chennai. 4. -do- Thro' The Principal District Judge, Chennai. 5.The Inspector of Police E-1, Mylapore Police Station Mylapore, Chennai-41. 6.The Public Prosecutor, High Court, Chennai. 7.The Superintendent, Central Prison, Puzhal, Chennai. 8. The District Collector, Chennai. 9. The Director General of Police, Chennai. Crl.A.No.577 of 2007 MBS(CO) EM/8.12.09 https://hcservices.ecourts.gov.in/hcservices/