IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27-10-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH CRIMINAL APPEAL No.24 of 2008 and CRIMINAL REVISION CASE NO.1764 of 2007 State rep.by Inspector of Police, Panamadangi Police Station, Vellore District (Crime No.129/2006) ..Appellant in C.A.24/2008 Vasantha ..Petitioner in Crl.R.C.1764/2007 ..vs.. 1. Natarajan @ Muthu Natarajan 2. Subramani 3. Jayaraman 4. Krishnamurthy 5. Vijayan 6. Sankar @ Gowri Sankar 7. Dinakaran ..Respondents in Appeal/ R-1 to R-7 in Crl.R.C. 8. The State rep.by Inspector of Police, Panamadangi Police Station, Katpadi Taluk, Vellore District. ..R-8 in Crl.R.C. Criminal Appeal filed under Section 378 of Criminal Procedure Code and the Criminal Revision Case filed under section 397 r/w.401 of the Criminal Procedure Code, against the judgment of the learned Additional District & Sessions Judge (Fast Track Court), Vellore, made in S.C.No.299 of 2007, dated 03.10.2007. For Appellant : Mr.Babu Muthu Meeran, A.P.P., For Petitioner : Mr.K.Ramachandran For Respondents : Mr.V.Karthik for (A-1 to A-7) M/s.T.S.Gopalan & Co., https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT (Judgment of the court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern the criminal appeal preferred by the State and the criminal revision case preferred by P.W.1, Vasantha. 2. Both the matters challenge a judgment of the Additional District and Sessions Division, Fast Track Court, Vellore, made in S.C.No.299 of 2007, whereby the respondents/A-1 to A-7, stood charged, tried and acquitted as follows: Accused Charges Findings Sentence A-1 S.148, 450, 302, 326 (2), 324(2) and 436 IPC Not guilty Acquitted A-2 S.148,450,302 r/w. 149, 324,323(3) and 436 r/w.149 IPC Not guilty Acquitted A-3 S.148,450,302 r/w. 149,326, 324,323 and 436 IPC Not guilty Acquitted A-4 S.147,450,302 r/w. 149, 324 and 436 r/w.149 IPC Not guilty Acquitted A-5 S.148,450,302 r/w. 149, 324(2) and 436 IPC Not guilty Acquitted A-6 S.148,450,302 and 436 r/w.149 IPC Not guilty Acquitted A-7 S.147,450,302 r/w. 149, 326,323(2) and 436 r/w.149 IPC Not guilty Acquitted 3. Short facts, necessary for the disposal of the appeal as well as the revision, can be stated thus: (a) P.w.1 is the wife, P.W.2 is the son-in-law and P.Ws.3 and 4 are the sons of the deceased Mahalingam. The deceased had a dispute over the landed property with A-1 for more than a decade. On the date of occurrence, i.e. on 12.11.2006 at about 1.30 PM, when P.Ws.1 to 4, along with the deceased, were doing the agricultural operation in the land, all the accused persons came over there in a Tata Sumo car and they got down and at the instigation of A-2, all of them attacked the deceased at different parts of the body. When P.W.1 intervened, she was also attacked and she sustained injuries. P.Ws.2 https://hcservices.ecourts.gov.in/hcservices/ to 4 also, when they intervened, attacked and they sustained injuries. On hearing the distressing cry, the neighbours gathered and immediately all of them fled away from the place of occurrence and P.W.1 took the deceased in an auto and then, they proceeded to the Gudiyatham Government Hospital, where he was declared dead. Both P.Ws.1 and 2 were given treatment by P.W.13, the doctor by the Gudiyatham Hospital and P.Ws.3 and 4 directly proceeded to the C.M.C.Hospital at Vellore and they were also given treatment by P.W.16. (b) On receipt of the intimation, the Inspector of Police of the respondent Police Station, P.W.27, proceeded to Gudiyatham Government Hospital and recorded the statement of P.W.1 and on the strength of which, she registered a case in Crime No.129 of 2006 under Sections 147, 148, 326, 324, 436 and 302 I.P.C. at about 9.00 PM and the first information report Ex.P-29 was despatched to the Court and higher officials. (c) On receipt of the copy of the first information report, P.W.28, the Inspector of Police, taken up investigation, proceeded to the spot on the next day, made an inspection, prepared an observation mahazar Ex.P-2 and rough sketch Ex.P-30, recovered the material objects under cover of mahazars in the presence of witnesses and thereafter, he conducted an inquest on the dead body of Mahalingam at the mortuary and prepared the inquest report Ex.P-31 in the presence of witnesses and the panchayatdars and he has also caused photographs to be taken through P.W.23 and the photographs are marked as Ex.P-25 series. Thereafter, he also subjected the dead body to post mortem along with his requisition. (d) On receipt of the said requisition, P.W.15, doctor attached to the Gudiyatham Government Hospital, conducted autopsy on the dead body of Mahalingam and gave a post-mortem certificate, Ex.P-16 wherein she opined that the deceased would appear to have died of 20 to 26 hours prior to autopsy and due to shock and haemorrhage due to vital organ injury (brain). (e) Pending investigation, the investigating officer P.W.28 recorded the statement of the witnesses and arrested A-1, who gave a confessional statement and the same was recorded and the admissible portion is Ex.P-33. Pursuant to which, the material objects of crime were recovered. A-6 was arrested thereafter on 15.11.2006 and he came forward to give a confessional statement and the admission part is marked as Ex.P-37. Following the same, he also produced the knife and other material objects. The material objects were sent for chemical analysis, which brought forth two reports Exs.P-21 and P-22 and on completion of investigation, P.W.28 filed the final report under section 302 I.P.C. (f) The case was committed to the Court of Additional District https://hcservices.ecourts.gov.in/hcservices/ and Sessions Judge, Vellore and necessary charges were framed. In order to substantiate the charges, the prosecution examined 28 witnesses and also relied on 37 exhibits and 31 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. procedurally as to the incriminating circumstances found against them in the evidence of prosecution witnesses, which they flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced and scrutinized the materials. On doing so, the trial Judge took the view that the prosecution has failed to prove the case beyond reasonable doubt and rendered the judgment of acquittal. Challenging the same, the appeal at the instance of the State and the revision at the instance of P.W.1 have been filed. 4. Advancing arguments on behalf of the appellant State, the learned Additional Public Prosecutor would submit that in the instant case, the trial court has miserably failed to make appreciation of the entire evidence, as put forth by the prosecution. In the instant case, the prosecution had examined P.Ws.1 to 4 as eye witnesses and all of them were the injured witnesses and they have spoken in one voice that the occurrence was taken place at about 1.30 PM on 12.11.2006 when they were all doing agricultural operation in the field along with the husband of P.W.1 and that the accused came in a Tata Sumo car with deadly weapons and attacked the husband of P.W.1 and P.Ws.1 to 4; that apart from that P.Ws.1 and 2 have been categorically examined by the doctor P.W.13 and the accident registers were marked as Exs.P-15 and P-13 respectively, in which they have also clearly given the statement that the occurrence was taken place at the land and they were attacked by the known persons; that in so far as P.Ws.3 and 4 were concerned, they were given treatment at the C.M.C.Hospital, Vellore, by P.W.16 and the accident registers were marked as Exs.P-18 and 17 respectively, wherein they clearly mentioned that the assailants are the known persons; that the Sub-Inspector of Police P.W.27 recorded the statement of P.W.1 at about 9.00 PM in the hospital and after coming to the police station, she registered the case and the copy of the first information report Ex.P-29 was also actually received by the Judicial Magistrate at Vellore at about 1.00 AM on 13.11.2006 and thus, there was no delay either in registering the case or sending the first information report to the Court concerned; that in the instant case, while the prosecution marched four witnesses as eye witnesses, who have also injured at the time of the occurrence, the trial Judge should have appreciated their evidence; that apart from the above, at the time of arrest of A-1, he gave a confessional statement and pursuant to which, the material objects (5 Nos.of btl;L fj;jp ) were recovered under the cover of mahazar Ex.P-34 and apart from that, following the confession statement given by P.W.16, one knife (btl;L fj;jp ) was recovered and under such circumstances, the trial Judge should have https://hcservices.ecourts.gov.in/hcservices/ found the appellants guilty; but a perusal of the judgment clearly indicates that the trial court has acquitted all the accused on flimsy grounds and therefore, the order of acquittal, which lacked any valid reasons, was perverse and apart from that, in the instant case, the medical opinion canvassed by the prosecution also stood in full corroboration with the case of the prosecution. Under such circumstances, the trial Judge should have found the accused guilty and hence, the judgment has got to be set aside and the accused have got to be dealt with in accordance with law. 5. The court heard the learned counsel for the petitioner in the revision case/P.W.1, who also put forth the submissions in the line as it was put forth by the learned Additional Public Prosecutor, as mentioned above and heard the learned counsel for the respondents/accused, who made his sincere attempt of sustaining the judgment of the acquittal rendered by the trial court. The Court paid its anxious consideration on the submissions made by the learned counsel for all the parties. 6. It is not in controversy that one Mahalingam, the husband of P.W.1, following an incident that took place on 12.11.2006 at about 1.30 p.m.at the place of occurrence, was taken to the Government Hospital, Gudiyatham, where he was declared dead by the doctor P.W.13 and the copy of the accident register was marked as Ex.P-14 to that effect and following the inquest made by the investigator P.W.28 and the dead body was subjected to post-mortem by P.W.15, who gave a categorical opinion that he died due to injury to vital organ (brain). The fact that Mahalingam died out of homicidal violence was never subjected to controversy before the trial court and before this Court and hence, it could be safely recorded so. 7. In order to substantiate the involvement and act of the respondents/accused 1 to 7, the prosecution has marched four witnesses P.Ws.1 to 4 as not only eye witnesses but also as injured witnesses. The Court in mind full of caution by the settled principles of law and the decisions of the Apex Court and also this Court, that in a given case, where P.Ws.1 to 4 happened to be the eye witnesses, their evidence should not be discarded unless and until a strong circumstance is noticed or a reason is brought about by the accused. It is true that in the instant case, there are four eye witnesses but the Court is afraid as to whether the evidence of these witnesses could be accepted for the purpose of sustaining conviction. Admittedly, P.W.1 is the wife, P.W.2 is the son-in-law and P.Ws.3 and 4 are the sons of the deceased Mahalingam. It is not for the Court to undermine the settled principles of law and that in a given case, where the eye witnesses happened to be the close relatives of the deceased, their evidence should not be looked into with suspicion but before accepting the same, the Court must exercise the test of careful scrutiny. In the instant case, P.Ws.1 to 4 would claim that https://hcservices.ecourts.gov.in/hcservices/ they were very well present at the time of the occurrence and when the evidence in so far as the overt act attributed to the accused persons are concerned, no consistency is found; on the contrary, all inconsistencies, that too, in the material particulars, are noticed. P.W.1 would claim that it was she, who took her husband with severe injuries to Gudiyatham Government Hospital, where he was declared dead and at the time of cross examination, as rightly pointed out by the learned counsel for the respondents/A-1 to A-7, she has stated that immediately after the occurrence was over, P.W.27 Saraswathi, Sub-Inspector came to the spot and if it was true, the information should have been passed on to P.W.26 and what was the impediment felt by P.W.26 in recording the statement or the information of P.W.1 remains unexplained and P.W.1 further added it was the police, who arranged for the auto to go to Gudiyatham Government Hospital and thereafter, she went over there and was examined by the doctor P.W.13 at about 4.40 PM and the accident register copy is marked as Ex.P- 15. A Perusal of the said accident register would clearly indicate that she was attacked by 30 persons at the time of occurrence and she continued to be under treatment in the same hospital. P.W.27, the Sub-Inspector of Police of the respondent police station went over there and recorded the statement of Ex.P-1 where the names of five persons (A-1 to A-5) were mentioned but the names of A-6 and A-7 were not mentioned. It is highly doubtful how P.W.2, who went to the hospital and gave a statement to P.W.13 doctor at 4.40 PM that the persons attacked were 30 in number, gave such a statement at 9.00 PM before the Sub Inspector of Police, P.W.27 as if only A-1 to A-5 were involved, which would be indicative of the fact that the document Ex.P-1 should have come forward only with embellishment and improvements. Added further, the prosecution came with a specific story to state that all the accused persons came over there and caused mischief by firing two motor bikes and standing crops, but P.W.1 in Ex P.1, has not even whispered anything about this fact and in so far as the injuries sustained by her, what were all stated before the Court below were, found to be contra. 8. In so far as P.W.2 was concerned, the prosecution would claim that he also sustained injuries and according to him, he went to Gudiyatham Government Hospital in a two wheeler, where he was given treatment by the doctor P.W.13, to whom P.W.2 has given a statement that he was attacked by 15 persons at the place of occurrence and this also casts a doubt upon the case of the prosecution. So far as the attack made on him, the statement given by him before the trial court was contra and the discrepancies were found out with the statement given before the police under section 164 Cr.P.C. Further, P.W.2 stated the place of occurrence to the doctor as Vaduganthangal, but when he was cross examined, he has specifically stated that Pallakollai. This also casts a doubt, whether he would have witnessed or presented before the place at all. The evidence of P.W.2 could not be relied on for any purpose. https://hcservices.ecourts.gov.in/hcservices/ 9. In so far as the evidence of P.Ws.3 and 4 is concerned, it is highly doubtful for the simple reason that since they are the sons of P.W.1 and the deceased, immediately after the occurrence when their father and mother were severely injured, they left in a different direction and went to the C.M.C.Hospital directly and they were treated at the night hours after 11.0 clock and apart from this, while they narrated the incident, they could not give the counts of the injuries properly and in short, so far as the narration of the incident is concerned, P.Ws.1 to 4 could not give a proper information but there were thoroughly inconsistencies and the evidence of P.Ws.1 to 4 all put together, would show that the conviction cannot be based on their evidence. 10. Apart form this, in the instant case, so far as P.W.26 was concerned, at the place of occurrence what prevented the police immediately to register a case, remained unknown. P.W.1 would claim that she was in the Government Hospital and P.W.27 came over there and recorded the statement at 9.00 PM and the delay in registering the first information report. The first information report was registered at 9.00 PM and immediately it was sent to the Magistrate concerned at 1.00 AM (night hours) and there cannot be any reason to accept the case. In the instant case, so many inconsistent versions are available. The first information report came into existence with embellishment. Even assuming to be true the recovery of the material objects of the weapons of crime from A-1 and A-6 remained proved, that cannot the basis for conviction in a given case. When all these discrepancies are noticed, it cannot be stated that the prosecution had proved the case beyond reasonable doubt and under the circumstance, it remains to be stated that in a given case, where the trial Judge on appreciation of evidence, has rendered the judgment of acquittal and the appellate forum can intervene and reverse the judgment only if on two circumstances, (i) if the judgment is perverse and (ii) the judgment of acquittal was completely or thoroughly unreasonable and lack of evidence. In the instant case, neither of the reasons is noticed by the Court and, in the considered opinion of the Court, it is not a fit case, where this forum could disturb the judgment of the trial court, and it has got to be sustained. For the reasons stated above, the appeal as well as the revision petition fail and accordingly, they are dismissed. Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar gl https://hcservices.ecourts.gov.in/hcservices/ To 1. The Additional District & Sessions Judge(Fast Track Court) Vellore. 2. -do- Thro the Principal Sessions Judge, Vellore. 3. The District Collector, Vellore. 4. The Director General of Police, Chennai. 5. The Inspector of Police, Panamadangi Police Station, Katpadi Taluk, Vellore District. 6. The Public Prosecutor High Court, Madras. +1 cc to Mr.K.Ramachandran, Advocate, SR.No.57011 +1 cc to Mr.T.S.Gopalan & Co., Advocate, SR.No.56945 Common Judgment in Crl.A. No.24 of 2008 and Crl.R.C.No.1764 of 2007 LA {CO} TP/5.11.2009. https://hcservices.ecourts.gov.in/hcservices/