BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 09/11/2006 CORAM: THE HONOURABLE MR.JUSTICE S.R.SINGHARAVELU and THE HONOURABLE MR.JUSTICE K.N.BASHA Criminal Appeal Nos.572 of 2004, Criminal Appeal Nos.572 of 2004, 578 and 940 of 2004 and Criminal Appeal (MD) No.111 of 2004 Bose ... Appellant in C.A.No.572 of 2004 Accused No.5 Mari ... Appellant in C.A.No.578 of 2004 Accused No.6 Murugan Ramalingam Kamaraj Murugan alias Kotti Murugan ... Appellants in C.A.No.940/2004 Accused Nos.1, 3, 4 & 7 Manilu alias Malin ... Appellant in C.A.(MD) No. 111 of 2004/Accused No.2 vs. $State through the Inspector of Police of Police, Theppakulam Police Station, Madurai District. (Crime No.512 of 2001) ... Respondent in all the appeals Complainant Prayer Criminal Appeals against the common judgment dated 24.03.20a04 in S.C.No.220 of 2002 on the file of the Additional District and Sessions Court, Fast Track Court No.III, Madurai. !For Appellant in ... Mr.Gopalakrishna C.A.No.572 of 2004 (A-5) Lakshmana Raju ^For Appellant in ... Mr.S.U.Kanagarajan C.A.No.578 of 2004 (A-6) For Appellants in ... Mr.P.Ezhilnilavan C.A.No.940 of 2004 (A-1 and A-3) For Appellants in ... Mr.S.Ashok Kumar, C.A.No.940 of 2004 Senior Counsel for (A-4 and A-7) M/s.A.K.Ramasamy and R.Manoharan For Appellant in ... Mr.T.Lajapathi Roy C.A.(MD) No.111 of 2004 (A-2) For respondent in all the ... Mr.A.Balaguru Appeals Addl. Public Prosecutor :COMMON JUDGMENT K.N.BASHA, J.
The above appeals arising out of the common judgment passed by the
learned Additional District and Sessions Judge, Fast Track Court No.III,
Madurai, in S.C.No.220 of 2002 dated 24.03.2004. The appellants who have
suffered conviction and sentence have come forward with these appeals
challenging their conviction and sentence convicting each of them under Section
302 I.P.C. and sentencing each of them to life imprisonment and to pay a fine of
Rs.500/-, in default, to undergo 6 months rigorous imprisonment and convicting
each of them under Section 148 I.P.C. and sentencing them to undergo 6 months
rigorous imprisonment and convicting each of them under Section 506 (ii) I.P.C.
and sentencing them to one year rigorous imprisonment and all the sentences
ordered to run concurrently.
2. The facts of the case, as projected by the prosecution, are as
follows :
(i) One Perumal is the deceased. PWs.1 and 2 are the son and son-
in-law of the deceased. PW.3 is his wife. Most of the accused have been working
as Scavengers in Madurai Corporation. The deceased is said to be a money lender
and it is claimed by the prosecution that he has advanced loan to the accused.
It is stated by PW.3, wife of the deceased that on 11.06.2001, the deceased
called her for getting the repayment of loan from Bose (A-5). Both the deceased
and PW.3 went to one Sugar Cane Factory. There they met A-5 which resulted in a
wordy quarrel between the deceased and A-5. The deceased and PW.3 frightened
and returned home.
(ii) On the fateful day of occurrence, i.e. on 12.06.2001 at 7.00
a.m. while PW.3 was chatting in the opposite house, A-1 came to the house of the
deceased and took the deceased in his cycle. PW.3 enquired PW.1, her son, as to
what purpose A-1 is taking the deceased. PW.1 informed that the deceased
informed him that he has to receive the dues from the persons working in the
Sewage Water Pumping Station (for short “pumping station”) at KeelasanthaiPettai
and therefore he is going along with A-1 as a pillion rider while A-1 was
peddling the cycle. PW.3 stated to PW.1 and PW.2 that even on the previous day
there was a quarrel and therefore requested both PWs.1 and 2 to go and bring
back the deceased.
(iii) PWs.1 and 2 left the house in a motor cycle to
KeelasanthaiPettai Pumping Station and reached the Pumping Station at 7.15 a.m.
While PWs.1 and 2 went inside the pumping station they found A-1 stabbing the
deceased with a knife on his stomach. A-2 cut the deceased with a knife on his
head. A-3 attacked the deceased with a knife on his right fore arm and hip and
also on other parts. A-4, A-5, A-6 and A-7 cut the deceased with knife
repeatedly. PWs.1 and 2 raised hue and cry. The people who were working in the
Pumping Station rushed to the scene and the accused ran away with weapons by
threatening PWs.1 and 2 and others with dire consequences. Therefore, PWs.1 and
2 went inside and found the deceased lying dead with pool of blood. PW.2, son-
in-law of the deceased requested PW.1 to go to the police station to give a
report and PW.2 was waiting at the scene.
(iv) PW.1 went to Theppakulam Police Station and gave a written
report at 7.45 a.m. to PW.24, Inspector of Police. PW.24 on receipt of the same
registered a case in Crime No.512 of 2001 under Sections 147, 148, 341 and 302
I.P.C. Ex.P.17 is the Express First Information Report.
(v) PW.24 went to the scene of occurrence and prepared the
observation mahazar, Ex.P.18 and Rough Sketch, Ex.P.19 in the presence of PW.6
and another. He held inquest on the dead body of the deceased. Ex.P.20 is the
inquest report. He has sent the body for post-mortem through a Constable. He
recovered from the scene blood stained earth, M.O.13 and sample earth, M.O.14
under Ex.P.21. He also examined PWs.1 to 6 and others.
(vi) PW.23, Head Constable handed over the dead body to the Doctor,
PW.11. The Doctor, PW.11 conducted post-mortem at 1.00 p.m. on 12.06.2001. He
found the following injuries :
(1)Oblique cut injury on the right side of neck 4 cm below the angle of mandible
7 cm X 4 m X cervical bone deep.
(2)Two antero posterior cut injuries on the left parietal area 1 cm and 3 cm
lateral to midline each measuring 9 cm X 1 cm X bone deep and 8 cm X 1 cm X bone
deep respectively, separated by 2 cm
(3)Two stab injury on the right lateral abdomen, 5 cm below the costal margin,
one below the other, separated by 1.5 cm each measuring 5 cm X 1.5 cm X entering
into abdominal cavity through which loops of intestine protruding out.
(4)Oblique stab wound on front of right side of abdomen, 3 cm medial to wound
Nos.3, 4.5 cm X 1.5 cm X entering into abdominal vacity through which loops of
intestine protruding out.
(5)Oblique stab wound right abdomen in 3.5 cm X 1 cm X 5 cm along with muscle
plane. Direction downwards and backwards ends as a point.
(6)Oblique stab wound on the left right lateral abdomen, 5 cm above iliac crest
3.5 cm X 1 cm X 4 cm along the muscle plane. Direction downwards and backwards.
(7)Oblique stab injury on the left side of neck, 4 cm below the angle of
mandible, measuring 3.5 cm X 1 cm X 5 cm along the muscle plane. Direction
downwards and backwards.
(8)Three oblique stab wound on the left side of front of abdomen, 3 cm X 1cm X
entering into abdominal cavity each and separated by 3 cm in the front and 6 cm
at the outer aspect.
(9)Oblique stab injury below right ear 3.5 cm X 1 cm X 4 cm along the muscle
plane. Direction – downwards and laterally, one end is curved, other end
pointed, margins regular.
(10)Antero posterior cut injury on the right fronto-tempero-parietal area 13 cm
X 1.5 cm X bone deep.
(11)Oblique cut injury mid-occipital area and behind the right ear lobe 6 cm X
1.5 cm X bone deep.
(12)Oblique cut injury right occipital area and behind the right ear lobe 6 cm X
1.5 cm X bone deep.
(13)Oblique cut injury 4 m x 1 cm X bone deep, 1 cm below and behind right ear
lobe.
(14)Oblique cut injury on the right side of chin including the lower lip 5 cm X
1 cm X bone deep.
(15)Oblique cut injury on the left cheek, 3 cm in front of left ear, 6 cm X 2 cm
x muscle-deep.
(16)Vertically oblique cut injury on the left side of neck and the lower part of
left ear lobule 8 cm X 1 cm X muscle deep and cutting the left ear lobule
(17)Oblique cut injury extending from left side of supra-sternal notch to the
left anterior axillary line, measuring 19 cm X 3 cm X bone deep.
(18)Oblique cut injury o the inner aspect of right hand 6 cm X 2.5 cm X bone
deep.
(19)Oblique cut injury on the outer aspect of right wrist 5 cm X 3 cm X bone
deep above downwards.
(20)Cut wound on the back of the base of right index finger 2 cm X .5 cm X bone
deep.
(21)Three incised wounds on the front of left chest 1 cm below the middle of
left clavicle each measuring 1.5 cm x .25 cm X skin deep, 1.5 cm X .25 cm X skin
deep and 2 cm X .25 cm X skin deep separated by 1 cm and 1.5 cm.
(22)Incised wound on the back of right wrist 2.5 cm X .25 cm X muscle deep with
tailing upwards.
(23)Incised wound on the back of right thumb 5 cm X .25 cm X skin deep with
tailing upwards.
(24)Oblique incised wound on the outer aspect of right upper arm 3.5 cm X .25 cm
X skin deep with tailing downwards.
(25)Oblique incised wound on the back of right side of abdomen 5 cm X .25 cm X
skin deep tailing outwards.
(26)Oblique incised wound at the back of left hand and wrist 5 cm X .25 cm X
skin deep.
(27)Oblique incised wound on the front of left side of neck close to midline 2
cm X .25 cm X skin deep with tailing outwards.
Ex.P.5 is the Post-Mortem Certificate. The Doctor, PW.11, is of the opinion
that the deceased would appear to have died of shock and haemorrhage due to
external injuries 1 to 4 and its corresponding internal injuries and cumulative
effects of all the other injuries, 6 to 8 hours prior to post-mortem.
(vii) PW.24, in continuation of his investigation, arrested A-1 on
12.06.2001, in pursuance of his admissible portion of the confessional statement
he recovered knife, M.O.2. He remanded A-1 to judicial custody. He arrested A-
5 near Madurai Corporation Office and in pursuance of his admissible portion of
confessional statement, he recovered aruval, M.O.1. He remanded A-5 for
judicial custody. On 13.06.2001, he examined the constable who has taken the
First Information Report and the body for post-mortem and also examined the
Doctor who has conducted post-mortem and recorded their statements. He
recovered M.O.9, yellow colour towel, Shirt, M.O.10, Trouser, MO.11 and M.O.12,
from the body of the deceased. On 14.06.2001, A-2 and A-4 surrendered before
the Magistrate Court. On 18.06.2001, A-3 surrendered before the Magistrate
Court. On 18.06.2001 remanded A-2 and A-4 for police custody and on 23.08.2001
he has taken them under police custody and in pursuance of the admissible
portion of the confessional statement, he recovered the knives, MOs.3 to 5 and
thereafter he remanded them for judicial custody.
(viii) On 05.09.2001, he arrested A-6 and in pursuance of his
admissible portion of the confessional statement recovered two knives, MOs.6 and
7 and thereafter remanded him for judicial custody. On 11.09.2001 he has given a
requisition, Ex.P.15, for conducting Identification parade. On 14.09.2001, The
Judicial Magistrate No.III, Madurai, P.W.21, conducted identification parade at
the Central Prison. Again, he examined PWs.1 and 2. He also examined the
Judicial Magistrate. He received the report of the identification parade,
Ex.P.14 on 03.10.2001. After examining some more witnesses he sent the material
objects to the Judicial Magistrate with a requisition to send the same for
chemical examination under Ex.P.22 and Ex.P.23. He received the Chemical
Examination Report, ExP.24 and Serologist Report, Ex.P.25 and also the Post-
Mortem Certificate, Ex.P.5. After completing the investigation in this case
against all the accused, PW.24 filed charge sheet under Sections 147, 148, 324,
341 and 302 r/w 149 I.P.C.
3. The prosecution in order to bring home the charges against the
accused examined PWs.1 to 24, filed Exs.P.1 to P.25 and marked M.Os.1 to 14.
4. The accused were questioned under Section 313 of the Code of
Criminal Procedure in respect of the incriminating circumstances appearing
against them through the evidence adduced by the prosecution. All the accused
denied each and every incriminating circumstances and they said that they have
been falsely implicated in this case. They have also marked Exs.D.1 to D.4 to
substantiate their case to the effect that some of the accused were working at
the time of the occurrence in their office.
5. Mr.S. Ashok Kumar, learned Senior Counsel appearing for A-4 and
A-7, the appellants in Crl.A.No.940 of 2004, contended that the prosecution case
is suffering from infirmities and inconsistencies and the prosecution miserably
failed to prove its case against the accused. The learned Senior counsel taken
us meticulously through the materials available on record and made the following
submissions :
(1)The motive alleged by the prosecution is totally false. PW.3, wife of the
deceased, stated that there was a quarrel between the deceased and A-5 a day
prior to the occurrence in respect of the demand of the dues to the deceased.
It is also the prosecution case that only while the deceased went to pumping
station to getting the repayment of loans, the occurrence is said to have taken
place. But PW.24, Investigating Officer, categorically stated that A-5 has not
received any loan from the deceased and further his investigation revealed that
the deceased was not a money-lender.
(2)The First Information Report in this case is surrounded by suspicious
circumstances. The case of PW.1 is that he along with P.W.2 left the house by
motor bike and they witnessed the occurrence at the pumping station at 7.15 a.m.
and there he was requested by PW.2 to give a report to the police. The report,
Ex.P.1 was given to PW.24 at 7.45 a.m. PW.1 has given a written report. PW.1
further stated that he has narrated about the occurrence to the Inspector of
Police (P.W.24) and he has not aware whether the Inspector reduced the same into
writing. He further stated that he has written the report in the police
station, whereas PW.24 stated that PW.1 handed over a written report. The First
Information Report was handed over to the Head Constable, PW.12, at 8.00 a.m.
and the same reached the Magistrate Court at 1.00 p.m. on 12.06.2001. PW.22
admitted that it would take only half an hour to reach the Magistrate Court.
Therefore, it is very clear that PW.22 could not have received the First
Information Report at 8.00 a.m. and the First Information Report must have been
prepared belatedly after due concoction. There is also corrections and
Interpolations in the First Information Report.
(3)Pws.1 and 2 could not have witnessed the occurrence. The claim of PW.1 that
he was witnessing the attack on the deceased for 10 minutes is highly
artificial. In Ex.P.1, the report, given by him has not stated that he along
with PW.2 went and saw the deceased lying dead. PW.1 also admitted that he has
not spoken to anyone in the pumping station except PW.2. PW.1 also not stated
at what time PW.3 asked him to go and see his father, the deceased. PW.2
admitted that he has informed about the occurrence first time only to the
police. He has not asked PW.1 to take the motor bike to give the report. PW.2
also stated that all the accused attacked the deceased at the same time and
therefore, it is impossible to state the overt act against each and every
accused.
(4)The evidence of PW.3 also unacceptable and unbelievable. PW.3, in spite of
claiming that there was a quarrel between the deceased and A-5 on the previous
day, not prevented the deceased from going along with A-1. PW.3 further stated
that PW.2 informed her that A-1 to A-3 and two unidentified persons cut the
deceased and ran away.
(5)P.W.24 admitted in his cross-examination that he has not mentioned in the
inquest report that Pws.1 and 2 are eye-witnesses.
(6)The identification parade was conducted on 16.09.2001 by P.W.21, i.e. three
months after the occurrence. PW.1 categorically admitted that he has seen all
the accused earlier and he has seen A-6 earlier to the occurrence while he was
doing scavenger work in his Ward. Further, PW.1 admitted that he has also seen
A-6 talking with his father, the deceased. PW.1 also admitted that he has seen
A-7 for three four times while he was working at the pumping station. It is
also specifically admitted by PW.1 that he has not stated anything about A-7
till the identification parade. Therefore, no value could be attached to the
identification parade.
(7)PW.1 categorically admitted in his cross-examination that after the
occurrence there was picketing for one hour after the occurrence to ascertain
the assailants and therefore the assailants were unknown to PWs.1 and 2.
(8)PW.23, Head Constable, admitted that at 7.00 a.m. there was picketing and he
was present along with the Inspector and other police officials. The picketing
was going on from 7.00 a.m. to 2.00 p.m. It is also admitted by PW.23 that
Photographer also taken photographs of blood stained pamphlets near the body of
the deceased. PW.24, the Investigating Officer, admitted that he went to the
scene of occurrence at 7.15 a.m. and there was a picketing in respect of this
case. He also found the pamphlets at the scene. The Hand-writing experts also
came there and taken the pamphlets and gave the same to him but he has not sent
those pamphlets to the Court. Therefore, it is clear that the assailants were
not known to the police for a long time and the present accused persons have
been implicated falsely. This aspect also assumes importance in view of the
delay in First Information Report reaching the Court and that the occurrence
could not have been taken place in the manner as alleged by the prosecution.
Therefore, the entire case surrounded by suspicious circumstances.
6. Mr.Gopalakrishna Lakshmana Raju, learned counsel appearing for A-
5/appellant in Crl.A.No.572 of 2004, Mr.S.Kanagarajan, learned counsel appearing
for A-6/ Appellant in Crl.A.No.578 of 2004, Mr.P.Eshilnilavan, learned counsel
appearing for A-1 and A-3/Appellants in Crl.A.No.940 of 2004 and Mr.T.Lajapathi
Roy, learned counsel appearing for A-2/Appellant in Crl.A.111 of 2004, while
adopting the arguments of Mr.S. Ashok Kumar, learned Senior counsel, submitted
some more points. It is contended by them that on the date of occurrence the
accused were working in their respective office. It is pointed out by them that
PW.19, Sanitary Inspector, stated that A-6 was working from 11.06.2001 to
04.09.2001 and the Attendance Register is marked as Ex.D.1 PW.20, the Health
Inspector, stated that on 12.06.2001 at 6.30 a.m., A-5 came for his work. It is
further pointed out by the learned counsel that PW.24, the Investigating
Officer, has not produced the attendance Register and Muster Roll as the same is
against the prosecution case. It is further submitted by the learned counsel
for the Appellants that PW.7, though, turned hostile has clearly stated that on
hearing the hue and cry, he found one person lying with blood stained injuries
after reaching the scene and thereafter he gave the telephonic message to the
police at 7.10. a.m. itself. Therefore, the prosecution has suppressed the
earliest report.
7. Per contra, the learned Additional Public Prosecutor contended
that the prosecution has come forward with a clear and cogent version. It is
also submitted that the evidence of Pws.1 and 2, eye-witnesses, are quite
natural and there are no infirmities in their evidence. It is further submitted
that the evidence of Pws.1 and 2, eye-witnesses, is also corroborated by the
medical evidence. The learned Additional Public Prosecutor further contended
that though there are some lapses on the part of the investigation, on that
score the entire prosecution case cannot be rejected. It is also pointed out by
the learned Additional Public Prosecutor that inconsistencies found in the
evidence of Pws.1 to 3 not affected the main case of the prosecution. The
learned Additional Public Prosecutor further contended that there is no delay in
giving the report to the police as the occurrence said to have taken place at
7.15 a.m. and the report was given at 7.45 a.m. The learned Additional Public
Prosecutor lastly contended that the involvement of the accused also proved by
the recovery of weapons in pursuance of their admissible portion of the
confession.
8. We have given our careful and thoughtful consideration to the
rival contentions made by both sides.
9. The prosecution heavily placed reliance on the evidence of Pws.1
and 2, eye-witnesses, in this case. PW.3, wife of the deceased, has spoken
about the motive for the occurrence. The fact remains all these witnesses,
Pws.1 to 3 are closely related to the deceased as they are the son, son-in-law
and wife of the deceased and therefore they are interested witnesses. Such
being the position, this Court has to scrutinize their evidence with great care
and caution.
10. The motive part of the prosecution was mainly spoken by PW.3,
who is the wife of the deceased. PW.3 stated that a day prior to the date of
occurrence, i.e., on 11.06.2001, the deceased called her that he has to get the
repayment of loans given to A-5 and thereafter they went to the sugar cane
factory and demanded A-5 to pay the dues which resulted in wordy quarrel between
the deceased and A-5. The deceased and PW.3 frightened and returned to their
house.
11. It is further claimed by PW.3 that on the date of occurrence
i.e. on 12.06.2001 at 7.00 a.m., she was chatting in the opposite house and at
that time A-1 came to her house and took the deceased and she asked her son,
PW.1, the reason for A-1 taking the deceased in his cycle, PW.1 said to have
replied that the deceased was going along with A-1 for getting the repayment of
loan at pumping station and thereafter PW.3 stated that even on the previous day
there was a quarrel and therefore, she was having fear and requested Pws.1 and 2
to go and bring back the deceased immediately. It is the case of the
prosecution that only thereafter Pws.1 and 2 left for pumping station in a motor
bike. This version of PW.3 is falsified by the evidence of PW.24, Investigating
Officer, in this case. PW.24 categorically admitted in his cross-examination
that his investigation not disclosed that A-5 received any loan from the
deceased. It is further admitted by PW.24 that his investigation also not
revealed that the deceased was doing money lending business and no records were
seized on that aspect. Added to these versions, it is also pertinent to be
noted that PW.3 during her examination by the police has not stated that on the
date of occurrence she saw the first accused taking the deceased in his cycle
and enquired about the reason from PW.1 and after PW.1 informing that the
deceased was going to receive the repayment at pumping station and further she
has stated to PW.1 that she was having fear and directed Pws.1 and 2 to bring
back the deceased immediately. This vital infirmity in the evidence of PW.3
coupled with the evidence of PW.24 not only falsified the motive put forward by
the prosecution but also the reason for Pws.1 and 2, to leave the house in the
motor bike and to go to the pumping station to bring back the deceased and
thereafter alleged to have witnessed the occurrence.
12. The above contradictions elicited from PW.3 and PW.24, the
Investigating Officer, make it crystal clear that PW.3 has come forward with a
version of informing Pws.1 and 2 that she is having fear and thereafter
requesting them to go and fetch the deceased immediately only for the first time
before the Court. These infirmities raise serious doubt about Pws.1 and 2 going
to the pumping station and thereafter witnessing the alleged occurrence.
13. Now, let us consider the evidence of the eye-witnesses, Pws.1
and 2. PW.1 is a school student aged about 19 years at the time of giving the
evidence and he must be aged about 17 years at the time of the occurrence as his
evidence was recorded on 05.11.2003. PW.2, who is the son-in-law of the
deceased is a responsible person comparing to PW.1. The version of PW.2 that
after the occurrence he asked PW.1 to go to the police station and to give a
report is itself raises serious doubt.
14. PW.1 claimed that he gave a written report to PW.24 under
Ex.P.1. It is highly unbelievable that PW.1 who is not a matured person to give
a written report to the police as he was only a school student at that time and
further if he has witnessed the occurrence he would be in shock and tension
after seeing the attack on his father. PW.24 also stated in his chief
examination that PW.1 has given a written report, Ex.P.1. He further admitted
in his cross-examination that the report, Ex.P.1, was brought by P.W.1 to the
police station. On the other hand, PW.1 claimed in his cross-examination that
he has written the report only at the police station. There is further
contradiction in the evidence of PW.1 that PW.1 also stated in the cross that he
has narrated the occurrence to PW.24 and he was not remembering whether PW.24,
Inspector of Police recorded the same or not. It is claimed by PW.1 in his
cross that PW.24, Inspector of Police, only gave a paper for writing the report.
Apart from these suspicious circumstances regarding the report, Ex.P.1, there
are also corrections and interpolations found in Ex.P.1, report as admitted by
PW.1. PW.1 further admitted that Hand-writing between Ex.P.1, report and his
signature in the Identification Parade report also varied.
15. PW.24, Investigating Officer also admitted about the corrections
made in the report, Ex.P.1. In Ex.P.1, it is also not stated by PW.1 that he
was asked by PW.2 to give a report to the police. Added to these infirmities,
it is found in Ex.P.1 that place of residence of A-3 and A-4 also mentioned but
P.W.1 has admitted in his cross that he was not aware about the father’s name of
A-3 and A-4 and their place of residence. PW.1 claimed that he knows all the
accused even prior to the date of occurrence, but he has not mentioned the names
of A-6 and A-7 and their overt acts. It is further relevant to note that PW.1
has seen A-6 while he was working in his Ward and also seen A-6 talking with his
father, the deceased. PW.1 also admitted in cross that he has seen A-7 three or
four times and he has also aware A-7 was working in the pumping station and he
has also aware about their identification. But the fact remains as already
stated, PW.1 not only written the names of A-6 and A-7 but also not given the
description of identification of A-6 and A-7 in Ex.P.1. Therefore, there is
serious doubt about the genuineness of the report, Ex.P.1, rendering the entire
prosecution case as highly doubtful and raises serious doubt about the
credibility of the evidence of the eye-witnesses Pws.1 and 2.
16. PW.1 or PW.2 not lifted the deceased after the occurrence. PW.1
strangely not requested PW.2 to accompany with him to give the report. If the
version of Pws.1 and 2 is true that both of them have been threatened by the
accused, it is inherently impossible for PW.1 to go to the police station alone.
The conduct of PW.1 also unnatural and unbelievable that soon after the
occurrence he has not thought it fit to go and inform about the occurrence to
his mother. Though PW.1 claimed in his evidence that one of the accused cut the
deceased with aruval, he has not mentioned in the report, Ex.P.1 about the
accused using the aruval at the time of occurrence. Added to all these
infirmities, it is admitted by PW.1 in his cross-examination that he used to go
to school at 6.30 a.m. itself but PW.1 claimed that on the date of occurrence he
has not attended the school as it happened to be a holiday. PW.24 admitted in
his cross-examination that he has not enquired whether PW.1 was studying in the
school and whether the school was functioning on the date of occurrence.
Therefore there is serious doubt about the presence of PW.1 at the time of
occurrence.
17. The evidence of P.W.2, yet another eye-witness also surrounded
by suspicious circumstances, as already stated. PW.2, being a responsible
person, as he has admitted that he was sent by his mother-in-law, PW.3, along
with PW.1 only to fetch the deceased as P.W.3 expressed fear. But curiously
after the occurrence neither he went to the police to give a report nor went to
the house to inform about the occurrence to PW.3, his mother-in-law. His
conduct of not going to the police station immediately after the occurrence
raises serious doubt about his presence in the scene of occurrence. It is
further relevant to note that he was also threatened by the accused with dire
consequences. But strangely it is stated by him that he was remaining at the
scene after the occurrence. PW.2 has not stated during his examination by the
police that he was threatened by the accused. The conduct of PW.2 by not
informing anyone about the occurrence till he was examined by the police also
throws considerable doubt about the veracity of his version. PW.2 further
admitted in his cross that he has parked the motor cycle outside the pumping
station gate and the place of occurrence was not visible from that place. It is
also claimed by PW.2 that they went inside only for 5 feet and they have not
proceeded further as all the accused were armed with weapons. It is further
admitted by PW.2 that even at that time he has not called the people outside
though the occurrence took place 6 to 7 minutes and as they raised hue and cry
nearly 10 persons gathered at the scene and he has not able to state what
happened to that 10 persons after the occurrence. It is also admitted by P.W.2
that he has not informed PW.1 after giving the report to go and inform his
mother-in-law, PW.3. Added to these admissions, it is categorically admitted by
PW.2 that all the accused attacked the deceased at the same time. If such being
the position, it is impossible and improbable for PW.2 to state the specific
overt act against each of the accused.
18. There is variations regarding the scene of occurrence between
the evidence of PWs.1 and 2. The materials available on records disclosed that
there are 5 wells in the pumping station. PW.1 stated that the occurrence took
place near the back side well of the pumping station whereas PW.2 admitted in
his cross-examination that the occurrence took place on the left side of the
first well of the pumping station. But the fact remains even PW.2 stated to the
police during his examination that the occurrence said to have taken place on
the back side well of the pumping station. If the version of PWs.1 and 2 is
taken, as per their earlier statement, that the occurrence is taken place on the
back side of the pumping station, the undisputed fact remains that both PWs.1
and 2 could not have witnessed the occurrence as it is categorically admitted by
PW.2 that he has parked the motor bike outside the gate and they went inside
only for 5 feet. A perusal of observation mahazar, Ex.P.18, also shows that the
body of the deceased was found 60 feet away from the main gate on the left hand
side of the well. A perusal of the rough sketch, Ex.P.19, shows that the
Investigating Officer, PW.24, has not noted about the blood stains found on the
floor. Therefore, there are contradictory versions in the evidence of P.Ws1.
and 2 even regarding the exact place of occurrence rendering their evidence
unbelievable and unacceptable.
19. PW.2 also not stated to the police that he went to the scene of
occurrence in a motor cycle and soon after reaching the scene he has witnessed
the occurrence. PW.2 further admitted that he is aware that A-7 was working in
the pumping station but he has not stated so before the police during his
examination. Therefore we have no hesitation to hold that PWs.1 and 2 are
unreliable and untrustworthy witnesses as their evidence not at all inspires the
confidence of this Court.
20. The Identification Parade conducted in this case also not
helpful to advance the case of the prosecution. The occurrence is said to have
taken place on 12.06.2001 and the identification parade was conducted only on
16.09.2001 nearly three months after the occurrence. Added to this, the purpose
of conducting identification parade is to identify A-6 and A-7 and in view of
the admitted version both PWs.1 and 2 that they knew A-6 and A-7 even before the
occurrence and as such no value could be attached to the identification parade
and the same is a futile exercise.
21. The yet another infirmity in the case of the prosecution is that
most of the accused were admittedly working at their work spot on the fateful
day of occurrence. It is stated by PW.19, Sanitary Inspector, that A-6 was
working from 11.06.2001 to 04.09.2001 and the Attendance register and muster
roll is marked as Ex.D.1, to show that A-6 was working at the time of the
occurrence. PW.20, Health Inspector, also stated that A-5 was working at the
pumping station at 6.30 a.m. on 12.06.2001. PW.24 also admitted that he has
found that A-5 was working on the date of occurrence from 6.00 a.m. as per the
attendance register. But he has not recovered the attendance register and as
such this Court has to draw adverse inference against the case of the
prosecution for withholding the material documents under Section 114 (g) of the
Indian Evidence Act.
22. The yet another distributing feature in this case is that
admittedly there was a picketing soon after the occurrence with a demand to find
out the assailants. P.W.1 categorically admitted in his cross-examination that
he has found pamphlets at the scene. PW.23, Head Constable, categorically
stated in his cross-examination that there was a picketing from 7.00 a.m. to
2.00 p.m. on the date of occurrence in respect of this case. It is also
admitted by him that photographers came and took the photographs of the body of
the deceased and bloodstained pamphlets. PW.24, the Investigating Officer, also
admitted in his cross-examination that the police might have received the
telephonic message at 7.15 a.m. itself and there was a picketing in respect of
this case. PW.24, also admitted that while he went to the scene of occurrence
he found the pamphlets and the Hand-writing experts were also present at the
scene. PW.24 also went to the extent of admitting that he has even furnished
with the pamphlets and other materials in respect of the occurrence. But he has
not send the same to the Court. Coupled with these admitted facts, the delay in
the First Information Report reaching the Magistrate Court raises a very serious
doubt about the genesis and origin of the occurrence. Therefore, it is crystal
clear that the prosecution has not come forward with a true version.
23. Therefore, in view of the above said infirmities,
inconsistencies and improbabilities found in the prosecution case and on the
reasons stated above, the appeals are allowed. The conviction and sentence
imposed on the appellants by the learned Additional District and Sessions Judge
(Fast Track Court No.III), Madurai, are set aside. Fine amount paid, if any, is
directed to be refunded.
gg
To
1)The Additional District and Sessions Judge, Madurai.
2) – Do – thro’ The Principal Sessions Judge, Madurai.
3)The Superintendent, Central Prison,
4)The District Collector, Madurai.
5)The Director General of Police, Chennai -4.
6)The Inspector of Police, Theppakulam Police Station,
Madurai.
7)The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.