IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.07.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRIMINAL APPEAL Nos.626 and 636 OF 2008 1.Francis Xavier @ Francis 2.Vigneshwar @ Vikki ...Appellant in Crl.A.No.626/08 Anandha Babu @ Anandhan ...Appellant in Crl.A.No.636/08 Vs. State represented by Inspector of Police, R.S.Puram Police Station, Coimbatore (Crime No.689 of 2003) .. Respondent in both the appeals These criminal appeals have been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Additional District and Sessions Court (Fast track Court No.2) Coimbatore made in S.C.No.44 of 2004 dated 25.7.2008. For Appellant in Crl.A.626/08: Mr.V.Gopinath Senior Counsel for Mr.G.Karthikeyan For Appellant in Crl.A.No.636/08: Mr.V.Bharathidasan For Respondent: Mr.N.R.Elango, APP - - - - JUDGMENT
(The judgment of the court was delivered by
M.CHOCKALINGAM, J.)
This Judgment shall govern two appeals viz., Crl.A.No.626/08 by A1 and A2 and Crl.A.No.636 of 2008 by A3
2. Challenge is made to the judgment of the Additional District and Sessions Court (Fast Track Court No.2) Coimbatore made in S.C.No.44 of 2004, whereby the accused 1 and 2/appellants 1 and 2, tried, stood charged and found guilty under Section 341 IPC and awarded one month S.I. with a fine of Rs.100/- in default to undergo one week S.I. and under Section 302 read with 34 IPC and awarded life imprisonment with a fine of Rs.2,000/-(each) in default to undergo three years S.I. and the sentences are ordered to run concurrently and the third accused tried, stood charged and found guilty under Section 302 read with 109 IPC and awarded life imprisonment with a fine of Rs.2000/- in default to undergo three years S.I.
3.The short facts necessary for the disposal of this appeal can be stated as follows:
a)P.W.1 is the wife of the deceased. PW3 is the father of PW1. PW1 and her husband were previously carrying on fruit vending business where the first accused was employed. After leaving his job, he has commenced his own business in fruit vending just opposite to the shop of the deceased. This has got the business rivalry and they were inimical with each other and often they were quareling. On 30.6.2003 at about 10.30 hours, the deceased took his wife PW1 along with a child in a two wheeler and went to the house of PW3 and when they reached the junction of PCP Road and Syrian church road, just opposite to the grocery shop of PW7, all the three accused way-laid the deceased when he was in his vehicle. A1 and A2 caught hold of the shirt of the deceased and immediately PW1 along with the child fell down. The deceased stopped his two wheeler and questioned the conduct of the accused. Subsequently, A1 took the knife and stabbed the deceased on his left ear and also at the back. A2 attacked at the left arm and wrist. The third accused who was standing nearby the two wheeler of the accused persons. This was witnessed by PW3 who was just crossing the place. This was also witnessed by Pws.2 and 4 also. After hearing the distress cry,a group of people gathered and thereafter the accused fled away from the place of occurrence.
b)Pws.1 and 3 took the injured to Senthil Nursing Home and since there was no doctor available, they took him to the Government Hospital at about 11.30 hours, PW13, doctor who was on duty, on medical examination, declared the deceased dead. He gave an intimation to the respondent police station which is marked as Ex.P.9.
c)On 30.6.2007 at about 23 hours, PW.18 Sub Inspector of Police attached to P2, R.S.Puram Police Station reached the hospital, recorded the statement of PW1 which is marked as Ex.P.1, on the strength of which, he registered a case on 1.7.2003 at about 1.30 a.m. in Crime No.689 of 2003 under Section 302 IPC. Ex.P.12 FIR was despatched to the Court.
d)PW.19,Deputy Superintendent of Police, on receipt of the copy of FIR, proceeded to the spot,made an inspection at about 3 a.m. and prepared Observation Mahazar Ex.P.13 and also drew rough sketch Ex.P.14. He recovered M.Os. from the place of occurrence including blood stained earth (M.O.12), sample earth (M.O.13), two wheeler bearing registration No.TCT 8760 under the cover of Mahazar Ex.P.15. He has also photographed the place of occurrence and they were marked as M.O.9 and 10 series are Photos and negatives respectively. PW19 conducted inquest on the dead body in the CMC Hospital ,Coimbatore in the presence of panchayators and witnesses and prepared Ex.P.17 inquest report. Then the dead body was sent for postmortem.
e)P.W.14, the Doctor attached to the Department of Forensic Medicine, Coimbatore, medical College and Hospital, Coimbatore, on receipt of the requisition, has conducted post-mortem on the dead body of the deceased and has issued Ex.P.10, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and hemorrhage due to multiple injuries.
f)Pending investigation, A1 to A3 were arrested. They gave confession statement voluntarily and recorded in the presence of witnesses and admissible part of which are marked as Ex.P.18, 19 and 20 respectively. Pursuant to the confession statement, A1 produced M.O.1, knife, M.O.14 shirt and M.O.15 pant. They were recovered under the cover of Mahazar. Equally, A2 produced M.O.2 knife, M.O.16 shirt and M.O.17 pant which were also recovered under the cover of Mahazar. A3 also gave confession statement . All the three accused sent to judicial remand and thereafter all the M.Os. were sent for chemical analysis. Accordingly, the analysis report also
received by the Court and on completion of the investigation, Investigator filed the final report.
4.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 19 witnesses and also relied on 31 exhibits and M.Os.17. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses. The accused flatly denied the same as false. On the side of defence, one Irudayaraj was examined as DW1. The trial court, after hearing the arguments advanced and scrutinizing the materials available, took the view that the prosecution has proved the case beyond reasonable doubt, found them guilty and awarded punishment as referred to above. Hence this appeal has arisen at the instance of accused 1 to 3/appellants herein.
5. Advancing arguments on behalf of the appellants 1 and 2, learned Senior counsel would submit that the occurrence had taken place at 10.30 p.m. on 30.6.2003. The prosecution had examined Pws.1,2,3,4 and 5 as eye witnesses. It is true that all the eye witnesses have supported the case of the prosecution at the time of chief examination. At the time of cross-examination, they have given up their entire evidence recorded, but they have not treated as hostile. The cross examination of the witnesses, if scrutinized, would clearly indicative of the fact that the entire prosecution case has been given up. On intimation given by doctor, the police Officer went to the CMC Hospital and recorded the statement of PW1 and the same is marked as Ex.P.1. It is further claimed that the name of the accused were mentioned in Ex.P.1, but PW1 has categorically deposed that immediately after the occurrence, the deceased was taken to Senthil Nursing Home and since the doctor was not available, they went to Government Hospital where the police officer came and recorded the statement of PW1 which was to the effect that the accused persons were not known to her and further added that the such an evidence was given in chief examination under threat and coercion and further she has added that at the time of cross examination, she has categorically deposed that she could not identify the accused persons who were involved in the crime. Under such circumstances, the evidence of PW1 is of no use to the prosecution case.
6. Inso far as PW2 was concerned, he was a boy of 16 years old. According to PW2, he was employed in the shop of P.W.7. On the date of occurrence PW3 was carrying on his business at about 10.00 p.m.,though at the time of chief examination he has categorically deposed that he was inside the shop and immediately all the accused ran away from the place of occurrence,he came out of the shop and saw PW1 along with her child . Under such circumstances, he did not give any evidence in favour of the prosecution. In so far as PW3 was concerned, he has categorically deposed in cross examination that he came to know the incident only from a lady and went to the scene of occurrence and therefore, insofar as PW3 was concerned, he came to the place of occurrence at about 12 O’ clock and not at the time of occurrence. Equally Pws.4 and 5 also stated in the same line .In so far as PW7 was concerned, he stated that he left the grocery shop at 9 a.m. but PW.2 returned only at 2’O clock. Thus, all would go to show that none of the witnesses could have seen the occurrence at all. Added further, that if these evidences cannot have any consequences, then the remaining part was recovery of M.Os. Insofar as M.Os. recovered from A1 and A2 are concerned, pursuant to the confession statement which speak about the heinous crime. In a case like this, mere recovery of Mos. by itself would not suffice to convict the accused which would bring home the guilt of the accused aan hence the prosecution had nothing to offer. It is not the case where the prosecution had rested its case not on circumstantial evidence, but on direct evidence. All the witnesses have not supported the case of the prosecution at the time of cross-examination and hence the trial Court has not looked into the above aspects, Under such circumstances, the lower court should have acquitted the accused, but had taken an erroneous view and hence it is a fit case where the judgment of the trial Court has got to be set aside.
7.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made.
8.It is not in controversy that the husband of PW1, was actually done to death following the incident that had taken place at 10.30 p.m. on 30.6.2003. He was taken to Senthil Nursing Home and thereafter to Government Hospital wherein he was declared dead. After the inquest was made by the Investigating Officer, the dead body was subjected to post-mortem by P.W.14 Doctor and the Doctor who has given his categorical opinion that the deceased would appear to have died due to shock and hemorrhage due to injuries sustained. The fact that the deceased died out of homicidal violence was never disputed by the appellants before the trial court and hence it has got to be recorded so.
9.In order to substantiate the fact that all the three accused waylaid the deceased when he was accompanied by PW1 and the child, the prosecution has marshalled PWs.1,2,3,4 and 5 as eye witnesses. It is true that a perusal of chief examination would clearly indicative of the fact that they have actually spoken in favour of the prosecution case, but as rightly pointed by the learned counsel for the appellants, when they were cross examined, they have completely given up the prosecution story. According to the prosecution, it was PW1 the wife of the deceased accompanied her husband in two wheeler along with their child and when they were returning, all the accused way laid them and A1 took the knife and stabbed the deceased on his left ear and also at the back, A2 attacked at the left arm and wrist and the third accused was standing nearby the two wheeler. But, PW1 categorically deposed in cross examination that the above evidence was given by her in Court in cross-examination under threat and coercion. She has further added that her husband was immediately taken to Senthil Nursing Home and since the doctor was not available, he was taken to Government Hospital where the police officer came there and to whom she gave a complaint and that complaint was not available in court . She would further add that about fifteen persons who were assailants standing at the time of occurrence and she did not know whom they are. In the face of such evidence, it would be quite clear that the said finding cannot be recorded that it was in favour of the prosecution case. Equally, PW2 who was 16 years old boy and according to him, in his grocery shop he was carrying on his business and he would further add at the time of cross examination that after the occurrence he came out of the shop. This would clearly indicative of the fact that he could not have seen the occurrence. PW3 stated that only on information he went to the spot and he had not seen the occurrence. PW4 has also come to the spot at 12’o clock. PW5 come to the place after the occurrence was over. Placing reliance on the piece of evidence as narrated above, it cannot be stated that the prosecution has brought home the guilt of the accused. Learned Additional Public Prosecutor would submit that at the time of enquiry, all the witnesses who were cross examined earlier were recalled after a period of 1= years and they have given a go-bye to the prosecution case. It is true that after an interval of 1-1/2 years from the time of evidence, all the witnesses were recalled . At this juncture, even assuming, at the time of recalling the witnesses, without giving a go bye to the prosecution case, there is a possibility of treating them as hostile by the prosecution side. But,the prosecution had not treated them as hostile, but put forward their submissions as recorded by the trial court. It is pertinent to point out that the evidence recorded by the trial court at the time of cross examination was intact and the evidence is binding on the prosecution. As narrated above all the witnesses at the time of further cross examination have clearly given a go bye to the entire story of the prosecution. Now placing reliance on such an evidence of the witnesses, this Court is of the considered opinion that it would be highly unsafe to rely on the above evidences and barring those witnesses, what was available for the prosecution was only the recovery of Mos. It is settled principle of law that mere recovery of weapons with reference to crime, the conviction cannot be sustained if they have no evidence to offer. Under these circumstances, the court is of the considered opinion it would be highly unsafe to sustain the conviction. Hence the judgment of the trial court has got to be made undone only by upsetting the same.
10. The judgment of conviction and sentence imposed on the appellants herein by the learned Additional District Judge and Fast track Court No.II, Coimbatore in SC.No.44 of 2004 are set aside, and they are acquitted of the charges levelled against them. The appellants/(A1 and A2) in Crl.A.No.626 of 2009 are directed to be released forthwith unless their presence is required in connection with any other case. The fine amount if any paid is ordered to be refunded to them. In so far as appellant(A3) in Crl.A.No.636 of 2008, who is on bail, is concerned, his bail bond shall stand cancelled and the fine amount if any paid is ordered to be refunded to him.
11. In the result, the appeals are allowed.
VJY
To
1 Additional District and Sessions Court
(Fast track Court No.2) Coimbatore
2.The Inspector of Police,
R.S.Puram Police Station,
Coimbtore.
3.The Additional Public Prosecutor,
High Court,
Madras