BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 17/03/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN Crl.A.No.1 of 2007 Syed alias Syed Ibrahim .. Appellant/sole accused Vs. The State of Tamil Nadu rep.by The Inspector of Police, Ganesh Nagar Police Station, Pudukottai. (Crime No.265/1999) .. Respondent/Complainant PRAYER This criminal appeal has been preferred under Section 374 (2) Cr.P.C against the judgment dated 20.11.2006 made in S.C.No.26 of 2006 by the Additional District Sessions Judge - Fast Track Court, Pudukottai. !For Appellant ... Mr.Ganesh Rajan ^For Respondent ... Mr.P.N.Pandithurai Additional Public Prosecutor. :JUDGMENT
(The judgment of the court was made by M.CHOCKALINGAM,J.)
Challenge is made to the Judgment of the Additional District Sessions
Division – Fast Track Court, Pudukottai, dated 20.11.2006, made in S.C.No.26 of
2006, whereby the sole accused stood charged and tried under Section 302 IPC and
convicted and sentenced to undergo life imprisonment and to pay a fine of
Rs.5,000/- in default to undergo six months rigorous imprisonment and acquitted
for the offence under Section 506(ii)(two counts).
2. The necessary facts for the disposal of this appeal could be stated
thus:-
(a) P.W.1 is the father of the deceased Gopirajan. He is working as a
Foreman in the Transport Corporation and except the deceased, P.W.5 is an
another son of P.W.1. On 25.03.1999, at about 10.00p.m. on the evening hours,
there was a festival in NTR School, at Chinnappa Nagar. At that time, the
deceased along with his friends namely P.Ws. 2, 3 and 4 and one Xavier went over
there. There was a wordy altercation between the deceased and one Raja in
respect of a cycle accident. Later after the function was over, the deceased
along with P.Ws.2, 3 and 4 were sitting in the plot in Sathyamurthi Nagar. At
about 00.10 hours, on 25/26.03.1999, the accused and Raja had come to
Sathyamurthi Nagar. When P.W.4 questioned the accused and Raja why they had
come to their street, the accused replying whether he was Thatha of the place,
so that, there was a wordy altercation. At that juncture, the deceased pacified
them, while so the accused by uttering “are you in support of them” had taken a
knife from his hip and stabbed the deceased at his left thigh and in the
Scrotum. Immediately, the accused ran away from the place of occurrence. The
occurrence has taken at about 00.10 hours on 25/26.03.1999. Then at 00.30
hours, the deceased was taken to the Government Hospital, Pudukkottai, where
P.W.8, the Doctor was on duty, clearly stated that P.W.2 while admitting the
deceased had informed that someone in the crowd had stabbed the deceased, and
the same has been recorded in Ex.P.4. Thereafter, the deceased had died in the
hospital at about 01.00 hours on 26.03.1999. The body of the deceased was given
to P.W.5, who is the brother of the deceased, who in turn informed to the
father, P.W.1.
(b) Thereafter, P.W.1 gave a complaint to Ganesh Nagar Police Station,
where P.W.11, the Inspector of Police was on duty and lodged a complaint under
Ex.P.1. On the strength of the same, P.W.11, registered a case in Crime No.265
of 1999 under Sections 302 IPC and prepared the First Information Report under
Ex.P.6 and the same was sent along with Ex.P.1 to the Court and to the higher
officials.
c) P.W.11, the Inspector of Police, took up the investigation, proceeded
to the spot, made an inspection in the presence of witnesses and prepared
Ex.P.2, the Observation mahazar, and Ex.P.7, the rough sketch. Further, he
recorded the statement of the witnesses. He also recovered blood stained earth
M.O.1 and sample earth M.O.2 under a cover of mahazar. He conducted inquest on
the dead body of the deceased in the presence of the witnesses and panchayatdars
and prepared an inquest report, Ex.P.8.
d) The dead body of the deceased was sent to the hospital for the purpose
of autopsy. P.W.9, the Doctor, attached to the Government Hospital,
Pudukkottai, on receipt of the requisition, has conducted autopsy on the dead
body of the deceased and issued Ex.P.5, the post-mortem certificate, wherein he
has opined that the deceased would appear to have died out of shock and
hemorrhage due to the injuries sustained at 12.00 hours prior to the autopsy.
(e) Pending investigation, the Investigating Officer, arrested the
accused. He came forward to give a confessional statement voluntarily, which was
recorded in the presence of witnesses. The admissible part of the same was
marked as Ex.P.9, pursuant to which, M.O.3-knife was recovered from the accused
under a cover of mahazar. On completion, the investigator filed the final
report.
f) The accused was sent for judicial remand. All the material objects
recovered from the place of occurrence, from the dead body of the deceased and
the M.Os. recovered from the accused were sent for chemical analysis by the
Forensic Science Department, which resulted in two reports, namely, Ex.P.13, the
Chemical Analysis report and Ex.P.14, the Serologist report.
g)The case was committed to the Court of Sessions and necessary charges were
framed. In order to substantiate the charges, at the time of trial, the
prosecution examined 12 witnesses and relied on 16 exhibits and 5 M.Os. On
completion of the evidence on the side of the prosecution, the accused was
questioned under Section 313 Cr.P.C. as to the incriminating circumstances found
in the evidence of prosecution witnesses. He denied them as false. No defence
witness was examined. After hearing the arguments of the counsel, the lower
court, took the view that the prosecution has proved the case beyond reasonable
doubt in respect of the charge of murder and in respect of the second charge,
the court had acquitted the accused.
3. Advancing arguments Mr.Ganesh Rajan, the learned Counsel would submit
the following submissions:
The occurrence has taken place on 25/26.03.1999 at 00.10 hours. A
complaint was given by P.W.1 at about 03.00 hours. But, he was not an eye
witness. According to Ex.P.1, he was informed by P.W.5, another son, who was
also not an eye witness. According to the prosecution, the eye witnesses are
P.Ws.2, 3 and 4. The earliest document in this case was not Ex.P.1, but Ex.P.4,
which is the accident register copy issued in respect of the deceased. P.W.8,
the Doctor not only noted therein but also categorically deposed before the
Court that P.W.2, who took the severely injured deceased to the hospital and
informed that someone in the procession had stabbed the deceased. Had it been
true that P.W.2 was an eye witness, there was no need for him to reproduce the
statement alleged to have been given by the deceased that he was attacked by
someone. This would indicate that P.W.2 could not have been an eye witness.
Added further, P.W.2 has clearly claimed that he went to the hospital along with
P.Ws.3 and 4 by Auto with severely injured deceased. P.Ws.3 and 4 have also
gone to the hospital and hence it clearly indicates that P.Ws.3 and 4 also could
not have seen the place of occurrence at all. In the instant case, in the First
Information Report, the name of the accused and all the details have been given,
but by whom it has been given, was remain unknown. P.W.5 had also no knowledge
about the same and thus P.Ws.2, 3 and 4 could not have been eye witness at all.
If their evidence is viewed from the document contained in Ex.P.4, it was only
an inference, such a complaint has been given.
4.Added circumstances was the prosecution much relied upon the alleged
confession and recovery of M.O.3-knife. But no one independent witness was
examined for that purpose. The only evidence examined by the Investigating
Officer was only self serving and the prosecution had not proved the case.
Hence, the appellant is entitled for an acquittal.
4. The court heard the learned Additional Public Prosecutor on the above
contentions and has paid its anxious consideration on the submissions made.
5. It is not in controversy that one Gobirajan, the son of P.W.1,
following an incident that took place at about 0.10 hours on 25/26.03.1999 has
taken to the Government Hospital, Pudukottai, where he was declared died by
P.W.8, Doctor. Following the inquest made by the Investigating Officer, the dead
body was subjected to post morterm by P.W.9, the Doctor, who has categorically
deposed before the Court as found in his post-morterm Certificate that the
deceased would have died out of shock and hemorrhage due to injuries sustained.
Thus, the fact that Gobirajan was died due to homicidal violence was not a
subject matter of controversy before the lower court and thus it would be quite
clear that the prosecution has successful enough in proving that fact.
6.In order to substantiate the charge against the appellant that it was
the accused, who stabbed the deceased and caused the death, the prosecution
rested its case on the evidence of P.Ws.2, 3 and 4 as occurrence witness;
closely they were all associates of the deceased. Now, if the evidence of
P.Ws.2 to 4 as occurrence witness carefully scrutinized, the Court is afraid
whether the deceased can be sustained. P.W.2 would claim that along with P.Ws. 3
and 4, the deceased were also with them at that time; the other accused
accompanied by his friend Raja also came over there. There was a wordy
altercation and thus in that process, the accused stabbed the deceased. P.W.2
would also claim that he along with P.Ws.3 and 4 took the deceased to the
Government Hospital, Pudukottai, where P.W.8, the Doctor was on duty. The
statement made by P.W.2 to P.W.8 is actually recorded under Ex.P.4, the accident
register copy, which is the earliest document. P.W.8, the Doctor has deposed as
found in Ex.P.4 that P.W.2 gave a statement to the effect that the deceased
informed P.W.2 that some one in the crowd, when a procession was going on, had
stabbed him and thus as put forth by the learned counsel for the appellant, had
it been true, P.W.2 was an eye witness since there was no need for him to make
such a statement contained in Ex.P.4 and the evidence of P.W.8 would put an end
to the whole evidence as P.W.2 was not an eye witness.
7.Added further, not only P.W.2 but also P.Ws.3 and 4, would also claim
that they were all together at the time of occurrence and they took the deceased
to the hospital and therefore, had it been true, such an occurrence was
witnessed by them, there was no impediment to anyone telling the doctor and
solong the fact remains of them claimed by them that they were all together in
that occurrence and they took the deceased to the hospital. Now, it would be
quite clear that they could not have been in the place of occurrence at all.
Further, there is lot of discrepancies in the major parts and apart from the
material particulars and added further, on information given by P.W.5, the
complaint was given by P.W.1, Nowhere P.W.5 is shown an eye witness. Hence the
witness of P.W.5 was of no use. Added circumstances was P.Ws.2,3 and 4 would
claim that in the place of occurrence not only the accused was present but also
one Raja was also present, but he was not added an accused. Further no
investigation has been done in that process and added further the alleged
confession and recovery of M.O.3, the weapon of crime, no one independent
witness was not examined and to the best reasons known to the prosecution before
the lower Court. The only evidence was the investigator and on his evidence and
It can not be taken as the fact remain proved and hence no other evidence was
available for the prosecution and hence the trial court had not looked into the
aspect of the matter and recorded its finding that the accused found guilty.
Hence the order of the lower court has to be set aside.
In the result, the order of the lower Court is set aside and the
appellant/accused is acquitted of the charges. The appeal is allowed.
ssm/rj2
To
1.The Inspector of Police,
Ganesh Nagar Police Station,
Pudukottai.
2.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.