JUDGMENT
Janarthanam, J.
1. Appellants were respectively accused 1 to 6 in Sessions Case No. 195 of 1985 on the file of Court of Session, South Arcot Division, Cuddalore. They faced their trial for the charges as below :-
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Charge No. Against which accused Offences under the
Indian Penal Code
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Firstly, accused 1 & 3 to 6 147
Secondly, accused 2 148
Thirdly, accused 2 302
Fourthly, accused 6 302 read with 34
Fifthly, accused 1, 3, 4 & 5 302 read with 149
Sixthly, accused 1, 3, 4 & 5 323
Seventhly accused 1, 2 & 5 323
Lastly accused 1, 2 & 5 323
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2. Learned Sessions Judge found accused involved in Charge Nos. 6, 7 and 8, not guilty and acquitted them thereof. He, however, found accused 1 and 3 to 6 guilty under Section 147 of the Indian Penal Code, convicted them thereunder then sentenced each of them to rigorous imprisonment for one year and accused 1, 3, 4, 5 and 6 guilty under Section 302 read with Section 149 of the Indian Penal Code (in respect of accused 6, instead of under Section 302 read with Section 34 of the Indian Penal Code), convicted them thereunder then sentenced each of them to imprisonment for life. He found accused 2 guilty under Section 148 of the Indian Penal Code, convicted him thereunder and sentenced to rigorous imprisonment for two years and under Section 302 of the Indian Penal Code, convicted him thereunder and sentenced him to imprisonment for life.
3. The case of the prosecution, in brief, is as follows :-
(a) There is a Kaliamman temple at Melmanakkudi Village, which is situate within Bhuvanagiri Police Station limits. A festival on the day before the Tamil New Year’s day had been celebrated for quite long by the villagers in the said temple. The temple was not provided with electricity connection. During the times of Festival, electricity connection had been usually taken from the house of one Krishnamoorthy Nadar (since deceased). For the New Year’s festival in the year 1985, as usual, electricity connection had been taken from the house of the deceased. P.W. 4 had been engaged for providing sound and light, during the celebration of the festival in the said temple.
(b) It so happened, an issue, as respects electricity connection for the said temple came to be raised and in that connection, that villagers at 8.00 p.m., on 13-4-1985, congregated in front of the temple.
(c) Accused 1 to 6 are residents of Memanakkudi Village. Accused 1 to 3 are brothers. Accused 4 and 5 are their step-mother’s sons. Accused 6 is their cousin P.Ws. 1 and 2 are the sons of the deceased.
(d) During the course of the meeting, accused 3 suggested that the electricity connection for the temple should be taken in his name. He was in possession of the cash belonging to the temple and he would utilise the same for the purpose of electricity connection. This was objected to by P.W. 1 and others and that they then suggested was that the electricity connection should be taken in the name of one Kalimuthu, Village Administrative Officer, of Akkadavalli. The moment such a suggestion had been projected, a wordy altercation ensued between accused 1 and P.W. 1. In the process of such an altercation, accused I was stated to have pushed P.W. 1 down and beat him at his right hand and back by means of a stick. P.W. 2, who had been present there, tried his level best to separate them. But, it proved futile and consequently, he was stated to have given a hit on the head of accused 1, by means of a stick, which was lying there. At that time, the deceased was stated to have intervened, pacified them and averted any untoward incident being happened. The deceased was also stated to have proclaimed that he would take the electricity connection to the temple, in his own name, utilising his own funds. At that time, accused 1 to 6 registered their protest and questioned whether it was proper for all the things to be done in the name of the deceased, in relation to the temple. So, saying, they vowed to wreak vengeance and then left the place.
(e) The deceased, after reaching his house, was sitting in the front verandah of his house, which is situate on the north of the east-west road, that is to say, his house faces south. On the west of his house, a lamp post is situate on the northern margin of the road. The said lamp post was not having any bulb and therefore, it was not emitting any light during night hours. There is also a lamp post on the western extremity of the road at a point when the road takes a slight tilt and deviates towards south-western direction. A bulb in the said lamp post was burning during night hours. There is also another lamp post on the eastern extremity of the road on the northern side at a point or place, where the said road takes a turn and deviation towards north-eastern direction. The bulb in the said lamp post was also not burning during night hours. There is one more lamp post situate on the eastern side extremity of the road on the southern side at a point where the road takes a turn and the bulb in the said lamp post was also not burning during night hours. Kaliamman temple is situate 100 feet away on the west of the house of the deceased.
(f) The deceased mandated his son P.W. 2 to bring cattle to-the-shed in the backyard of his house to the lane situate on the east of his house for tying the cattle there. While doing so, P.W. 2 was stated to have put on the light above the window facing the lane. At that time, P.W. 1 was stated to be washing his hands in the hand pipe situate on the backyard of his house. The moment the cattle was brought by P.W. 2 to the lane, the deceased took custody of the cattle and tried to tether it to the peg on hook there.
(g) At that time, accused 2 emerged from the garden belonging to accused 4, arming himself with a crowbar (MO 3), after removing the fence put up on the eastern ridge of the lane. He gave a hit on the right flank of the deceased with M.O. 3. On receipt of the hit, the deceased sat down in quick succession, he gave two more hits with M.O. 3 on the head of the deceased. Thereafter, the deceased fell down. At that time, P.W. 3 and one Prakasam were making onward march from north to south in the lane and they had the opportunity of witnessing the occurrence. The other accused, namely, accused 1 and 3 to 6 threw stones from the garden of accused 4 and in that process certain injuries had been caused to P.Ws. 1 and 2.
(h) Thereafter, the injured – deceased was bodily lifted by P.Ws. 1, 2 and others and placed in the front Verandah of their house. P.Ws. 1 and 2, along with their mother Thillaiammal took the injured – deceased in the bus to Bhuvanagiri Police Station. They reached the police station at 10.30 p.m., P.W. 11 Head Constable was then in charge there. P.W. 1 gave a report, to P.W. 11, who reduced the same into writing, as per his dictation. Accused 1 also appeared before P.W. 11 at 11 p.m., and gave a report, as respects the occurrence. P.W. 11 did not at all register a case either on the report of P.W. 1 or on the report of accused 1. He would, however, send P.Ws. 1 and 2, injured – deceased and accused 1, with a memo to the hospital for treatment. Then, he visited the scene village at 11-30 p.m. and returned to the police station at 2 a.m., (on 14-4-1985). Thereafter, he registered a case in crime No. 151/85 for alleged offence under Section 160 of the Indian Penal Code. Exhibit P. 13 is the printed FIR.
(i) P.W. 8 was the then Medical Officer, Government Hospital, Chidambaram. He examined the injured-deceased at 11-15 p.m. and treated him for the injuries. Exhibit P. 7 is the copy of the accident register. He examined P.Ws. 1 and 2 at 11.20 p.m. One after another and treated them for their injuries. Exhibits P. 8 and P. 9 are the copies of the accident registers issued to P.Ws. 1 and 2 respectively. At 11.55 p.m. he examined accused 1 and treated him for the injuries. Exhibit P. 10 is the copy of the accident register issued to accused 1. Considering the seriousness of the injuries sustained by the injured-deceased, he referred him for further treatement and management to the Government Head Quarters Hospital, Cuddalore.
(j) P.W. 12 is the Sub Inspector of Police Bhuvanagiri. He has gone for investigation in connection with another case and returned to the police station at 2-10 a.m. (on 14-4-1985). He perused the FIR in crime No. 151/85 and on such perusal, he came to the conclusion that what P.W. 11 Head Cosntable had done in registering the case only under Section 160 of the Indian Penal Code was not correct and what he had done was that he registered the complaint of P.W. 1, namely, Exhibit P. 1, as Crime No. 152/85 for alleged offences under Sections 147, 148, 324 and 323 of the Indian Penal Code. Exhibit P. 15 is the printed FIR. He also registered the complaint given by accused 1, namely, Exhibit P. 14, as a case in Crime No. 153/85 for alleged offences under Section 147, 148, 323 and 324 of the Indian Penal Code. Exhibit P. 16 is the printed FIR. After the registration of these two Crime Numbers, he dropped the case in Crime No. 151/85.
(k) The deceased, sent to the Government Head Quarters Hospital, Cuddalore, got admitted as an inpatient there at 3 a.m on 14-4-1985 and he breathed his last at 3.50 a.m there.
(l) P.W. 12 left the police station and reached the scene village at 4 a.m. After inspecting the scene, namely, the lane lying on the east of the house of the deceased, he prepared Exhibit P. 2 observation mahazer at 6 a.m. Exhibit P. 17 is the rough sketch of the scene. At 6-15 a.m., he seized M.O. 1 series-stones, under the cover of Exhibit P. 3 Mahazar. Exhibits P. 2 and P. 3 were attested by P.W. 5 and another. He examined P.Ws. 2 and 3. He searched for the accused and they were not available. He returned to the police station at 9.15 a.m.
(m) He came to know then that the deceased died at 3.50 a.m. at Cuddalore Head Quarters Hospital, as revealed by Exhibit P. 18, death intimation. He then altered the case in Crime No. 152/85 into one under Section 302 of the Indian Penal Code. He prepared express reports and sent the same to the court and the officers concerned. Exhibit P. 19 is the express FIR.
(n) P.W. 13 was the then Inspector of Police (Law & Order), Chidambaram Town Police Station. On receipt of express FIR at 9.15 a.m., he went to Bhuvanagiri police station and took up further investigation. He went to the scene and verified the investigation already made by P.W. 12. At 10.15 a.m., he recovered the blood stained Cement scrapping (M.O. 4) from the front verandah of the house of the deceased. He also seized the sample earth (M.O. 5). M.Os. 4 and 5 were seized under Exhibit P. 4 mahazar, attested by P.W. 5.
(o) He then went to Cuddalore Headquarters Hospital. He held inquest over the body of the deceased. Exhibit P. 20 is the inquest report. During inquest, he examined P.Ws. 1, 2, 3 and others. He handed over the body of the deceased to the Constable, P.W. 10 at 3.30 p.m., along with Exhibit P. 11 requisition for the purpose of autopsy.
(p) P.W. 9 was the then Medical Officer attached to the Government Headquarter’s Hospital, Cuddalore. On receipt of requisition, Exhibit P. 11 at 4 p.m., he commenced autopsy over the body of the deceased at 4.30 p.m. on the same day. Exhibit P. 12 is the post mortem certificate. He is of opinion that the deceased would appear to have died of multiple fracture of skull bone with coreberal haemorrhage and shock 12 to 14 hours prior to autopsy.
(q) Immediately after the autopsy was over, the body was handed over to the Constable, P.W. 10, who, in turn, seized from the body M.O. 2 dhoti and handed over the same in the police station, which was seized under Form No. 95.
(r) P.W. 13 then examined P.W. 9 in the hospital. Thereafter, he went to the scene village and examined P.W. 5 and others. On 15-4-1985, he examined P.W. 4 and others. He also examined witness by name Ranganathan in connection with Crime No. 153/85. On 17-4-1985 at 11 a.m., he arrested accused 1 to 6 at Villianallur near the bus stand in the presence of P.Ws. 6 and 7. Immediately after arrest and on interrogation, one of the accused namely, accused 2 gave a confession under Section 27 of the Evidence Act stating that he kept concealed the crowbar underneath the culvert in the lake at Melamanakkudi. The admissible portion of the said confession statement in Exhibit. P. 5. Pursuant to the said confession, he took P.Ws. 6, 7 and 13 to lake at at Melamanakkudi he took out the crowber M.O. 8 kept concealed underneath the culvert in that lake, which was seized under Exhibit P. 6 mahazar. Exhibits P. 5 and P. 6 were attested by P.Ws. 6 and 7. Then all the accused were brought to the police station and from there, they were sent to court for remand. He also examined accused 1. On 27-4-1985, he examined P.W. 8. On 10-6-1985, he examined Sub-Inspector, P.W. 12. On 23-6-1985, he examined P.W. 10. After completing the investigation in crime No. 153/85, he dropped further investigation. Chidambaram Taluk Inspector filed a final report under Section 173(4) Crl.P.C. against accused in crime No. 152/85 for the aforesaid offences.
4. On committal, charges, as aforesaid, had been framed against accused and when they had been questioned as respects those charges, they denied the same and claimed to be tried.
5. The prosecution, in proof of the charges so levelled against the accused, examined P.Ws. 1, to 13, filed Exhibits P. 1 to P. 20 and marked M.Os. 1 to 5.
6. The accused when questioned under Section 313 Crl.P.C., as respects the incriminating circumstances appearing in evidence against them, denied their complicity in the crime. They did not choose to examine any witness of their behalf.
7. Learned Sessions Judge, on consideration of the materials placed, rendered the verdict as aforesaid.
8. Arguments of Mr. K. V. Sridharan, learned Counsel for the appellants and Mr. S. Sriramulu, learned Public Prosecutor representing the prosecution were heard.
9. From their submissions, the point, in pith and substance, that arises for consideration is as to whether the conviction and sentence of all accused for various offences, as had been done by the court below, are sustainable, in the facts and circumstances of the case.
10. Accused 8, it is said, died pending appeal : Consequently, the appeal as against him has to abate, pursuant to the salient provisions adumbrated under Section 394 Crl.P.C.
11. The prosecution version, is reflected by three witnesses, namely, P.Ws. 1 to 3. Of them P.Ws. 1 and 2 narrate the entirely of the occurrence, which consists of two parts, namely, occurrence that had happened at or about 8.00 p.m. on the fateful night in front of Kaliamman temple and the other part of the occurrence that took place in the lane, situate adjacent to the house of the deceased, on the east; whereas the other witness, namely, P.W. 3 speaks to the latter part of the occurrence only. The picture, as painted by P.Ws. 1 to 3 regarding the occurrence is not at all in accord with the earliest information. Exhibit P. 1, given by P.W. 1 before P.W. 11 Head Constable within 1-1/2 hours after the occurrence and to put it otherwise, the version, as projected in Court by P.Ws. 1 to 3 is diametrically opposite to what has been stated in Exhibit P. 1. Exhibit P. 1 proceeds on the footing that the entirety of the occurrence involving in causation of injuries to not only the deceased, but also to some of the prosecution witnesses, happened only in the lane situate adjacent to the house of the deceased on the east. The said occurrence happened at 9 p.m. No doubt true it is that the narration in Exhibit P. 1 leads us to think that igniting cause for the occurrence was relatable to dispute relatable to Kaliamman temple. In the said occurrence, the deceased was stated to have been attacked by accused 1 to 6 with stones, culminating in the deceased sustaining certain injuries on his upper lip and head. Likewise, P.W. 1 was attacked by accused, 1, 2 and 5, with stones, resulting in his sustaining an injury on his right hand. So also P.W. 2 sustaining injury on his back, as a result of stone-hit at the hands of accused 1, 3, 4 and 5. These things apart, Thilliammal was the victim of attack at the hands of accused 1, 2 and 5, in the sense of her tuft being caught hold of by them and she being beaten with their hands. This sort of an occurrence was witnessed by P.W. 8 from the beginning to the end.
12. For projecting such a version, there was no time left either for P.W. 1 or others, interested in his welfare, to consult and confabulate for giving a version, different from the one that had happened, with a view to implicate the persons involved in the occurrence. This sort of an occurrence had been reported by P.W. 1 to P.W. 11, who recorded the same, as per the narration of P.W. 1, P.W. 1 at no point of time, had any sort of a problem either with P.W. 11. Head Constable or other Police personnel working in Bhuvanagiri Police Station, so that there was any sort of want of cordial atmosphere between him and the police personnel. It is also not the case of the prosecution that P.W. 1 had been involved in any other case connected with the police station and in handling such a case. P.W. 1 had a bitter experience with them, so that there was no lovelost between him and the personnel in the police station. It is also not the case of P.W. 1 that what he had narrated to P.W. 11 had not been taken down by him in the way he had narrated. Of course true it is that under the foot of Exhibit P. 1, no certificate had been appended to by P.W. 11 that the same had been recorded, as per the narration of P.W. 1 and the same, after having been recorded, had been read over to him. The factum of absence of such a certificate in Exhibit P. 1 is of no consequence, in the facts and circumstances of the case, when especially, as earlier indicated, P.W. 1 had not at all complained anything about the recording of the information he had furnished to P.W. 11. In such stage of affairs, we can safely take it for granted that P. 11. Head Constable could not be having any hand in tinkering with the information given to him at the earliest point of time by P.W. 1.
13. The version as projected by P.Ws. 1 to 3, as already indicated, is quite contrary to the version painted in Exhibit P. 1. Therefore, normal it is, we feel, that the prosecution entertained some sort of anxiety to some how or other throw mud on P.W. 11 Head Constable and that perhaps was the reason for the prosecution to have resorted to seek permission of the Court by treating him as hostile, on the ground that he had exhibited an element of hostility to the case of the prosecution. The Court below also readily granted such a permission and allowed the prosecution to put questions in cross-examination treating him as hostile. The ritualistic exercise undertaken by the prosecution was in a bid to nullify the earlier version of the case of the prosecution, as projected in Exhibit P. 1. The grant of permission by the Court below to treat P.W. 11, as hostile, in the facts and circumstances of the case, we feel, is rather unwarranted and we only feel that the Court below, without applying its mind, simply granted permission to treat him as hostile, when the prosecution prayed for such a permission. P.W. 11, put in such a position, cannot be expected to say that he had not faithfully recorded the version as projected by P.W. 1, simply because he has not appended a certificate at the foot of Exhibit P. 1 to the effect that the same had been recorded as per the narration of P.W. 1, besides the same having been read over to him. May be the non-appendage of a certificate, due to the negligence on his part and for such negligence, the prosecution must have to pay its price. The story, as narrated by P.Ws. 1. to 3, it examined in detail, would reveal the core improvement of the prosecution case beyond recognition, by giving different place of occurrence, introduction of lethal weapon utilised, in causing injuries to the deceased and what not.
14. When the issue relatable to taking electricity connection the temple was being discussed in a heated fashion, there arose a wordy altercation between P.W. 1 and accused 1 and such an altercation rose to the height of mutual fight between them, which resulted in accused 1 beating on his right hand and back by means of a stick, thereby causing him injuries. P.W. 1 who was stated to have been present there, too up a stick, which was lying there and gave a hit with such a stick on the head of accused 1 causing him bleeding injuries. In order to avert any further untoward incident, the deceased intervened and pacified P.Ws. 1 and 2 and took them to his house.
15. Thereafter, the deceased was sitting in the verandah of his house. He would mandate P.W. 2 to go to the backyard and bring the cattle tethered there to the lane. In the process of obeying of such a command, P.W. 2, switched on the bulb hanging above the window facing the lane on the east and brought the cattle to the lane. At that time, P.W. 1 was washing his hands in the hand pipe situate on the backyard of his house. The cattle brought by P.W. 2 was handed over to the deceased to be tethered in the lane in a peg or hook situate there. It is only at that juncture, accused 2 arming himself with M.O. 3 crowbar emerged therein through the garden of accused 4, situate adjacent to the lane, after removing the fence and hit with M.O. 3 on the right flank of the deceased. Immediately after the receipt of the hit, the deceased sat on the ground. In quick succession, he also gave two more hits with M.O. 3 on his head causing bleeding injuries. On receipt of those injuries, the deceased fell down over on the ground. Rest of the accused, namely accused 1 and 3 to 6 hurled stone on P.Ws. 1 and 2, besides the deceased. In the process of hurling of such stones, P.W. 1 would categorically state even in chief examination that why were not at all injured by any of the stones to hurled on their person. P.W. 3, a near relation of the deceased, not being a resident of the locality, had an occasion to pass through that lane from north to south so as to make himself available in the scene and have the fortuitous opportunity of witnessing the occurrence and in the process of hurling of stones, though he was also available in the vicinity, he also did not sustain any sort of a scathing injury on his person.
16. The version, as above, projected by P.Ws. 1 to 3, as earlier stated, is contrary and materially contradictory to the version, as focussed in the earliest version in Exhibit P. 1. The shifting of the place of occurrence to the lane, adjacent to the house of the deceased on the east is not without significance. If the prosecution projects that the occurrence had happened in front of the temple, then there was necessity to cite a witness of independent origin available in the vicinity to the temple, when especially the time and day of the occurrence was the day of celebration of Tamil New Year’s festival in the temple and such being the situation, the prosecution would be impelled to come forward with an explanation for the non-examination of natural witness in the locality, who had the fortuitous opportunity of witnessing the occurrence.
17. Another intriguing factor is that if we examine the evidence of the doctor, P.W. 8, we find that P.W. 2 had on his person as many as three injuries as revealed by Exhibit P. 9 copy of the accident register. He had not at all come forward with an explanation as to how he came by the injuries, especially when we took into account that in the process of hurling of stones by the accused, as already stated, neither he nor his brother P.W. 1 was injured. It is quite interesting to note from what he has stated to the doctor, P.W. 8, that he was assaulted with stick by known persons near the temple. It is here we have to take into account the defence version, as respects the place of occurrence. Accused 1 would assert in Exhibit P. 14 he gave to P.W. 11 that the occurrence took place near the temple and he was assaulted with a stick by specified individuals, that is to say, the prosecution party. Exhibit P. 10 is the copy of the accident register, which reveals that he had four injuries on his person on various portions of his person, namely, parietal region, dorsum of hand, middle lateral portion of left fore arm and lateral aspect of right shoulder. The injuries are either contusions or laceration. The prosecution would resort to explain the injury on the head of accused 1, by making P.W. 2 to say that he gave a hit on his head, when he was engaged in hitting P.W. 1 by means of a stick near the temple. The other injuries found on his person had not at all been explained. It is to be noted here that the candid admission made by P.W. 1 in his cross-examination is that before ever, he along with the deceased, his brother P.W. 2 and his mother Thillaiammal, went to the police station he saw accused 1 in the police station, giving a complaint Exhibit P. 14 It is the case of the prosecution that P.W. 1 alone gave Exhibit P. 1 at the earliest point of time before even accused 1 gave the complaint. In unguarded moments, somehow or other, the truth had come out in the form of a candid admission by P.W. 1, in the course of cross-examination. Why we point out all these aspects is that the prosecution had not come forward with the true origin and genesis of the occurrence and had made assiduous attempt in projecting a version before Court, divorced of reality of the situation, thereby making this Court not possible to sift truth from falsehood.
18. We may also point out here the calculated attempt made by the prosecution to make it appear that a lethal weapon had been used in the commission of the heinous crime of murder of the deceased. From Exhibit P. 7, we are able to decipher that crowbar had been introduced by interlineation in the column relatable to the alleged use of weapons for causing injuries. Further, Exhibit P. 7 is not the original; but its triplicate. The accident register is usually prepared in triplicate; the original being sent to Court, the duplicate being retained by the investigating agency and the triplicate by the Medical Officer himself, who issued copy of the accident register. It is also usual to prepare copies of the accident register with carbon copies underneath the original and the triplicate by writing on the original by means of a ball-point or pencil. Unusual it is to find the triplicate copy of the accident register, namely, Exhibit P. 7 being written in ink with all sorts of interlineations, not only with regard to the weapons alleged to have been used in the commission of the crime; but also in nothing down the injuries. The marking of the triplicate, with all such corrections and interlineations make us feel that all is not well with the prosecution in projecting the true version as respects the manner of occurrence and the usage of weapon in the commission of the crime.
19. The manner of occurrence, we feel, is highly artificial. Where was the occasion for the deceased to go and take the custody of the cattle from P.W. 2 for tethering the same to the peg or hook in the lane, except for the purpose of his receiving a hit on his right flank and two hits on his head at the hands of accused 2 by means of a crowbar ? Is it not possible for P.W. 2 to have tethered the cattle brought from the backyard by himself to the peg or hook there ?
20. Admittedly, the occurrence took place during dark hours of the night. Therefore, visible factor looms large and assures importances. For the so-called eye witnesses, to introduce the course of events that had followed at the time of occurrence. But for the switching on of the bulb hanging over the window facing the lane on the east, there could have been no visible factor at all for anyone to have witnessed anything. Switching on the bulb was necessitated by a mandate being issued by the deceased to P.W. 2 to fetch the cattle from the backyard to the lane and in such process, P.W. 2 was stated to have switched on the bulb so as to enable them to have visible factor to witness the course of events that was to follow. It is also to be noted here that almost all the street lights in that street were not burning, except the one situate on the north, on the western extremity of the house of the deceased, where the east-west lane takes a turn towards south-west and the said lamp post in indicated as No. 14 in thorough sketch, Exhibit P. 17. But for the switching on the bulb situate above the window facing the lane on the east of the house of the deceased, there could have been no visible factor at all for anybody to have witnessed anything. Therefore, we are of the view that the case of the prosecution is also riddled with artificialities and inherent improbabilities, in projecting the manner of the occurrence.
21. The investigation in this case, we also feel, is rather tainted, slipshod and perfunctory. We are unable to digest, when P.W. 12 Sub-Inspector of Police would state that when he returned to the police station at 2.10 a.m. after having been engaged in investigation in another case, he happened to see the records in the case in Crime No. 151/85 and immediately he felt that the action of P.W. 11 was not proper and therefore, he registered two cases in Crime Nos. 152 and 153 of 1985, based upon Exhibits P. 1 and P. 14 for offence under Sections 147, 148, 323 and 324 I.P.C. in both the cases. We are quite astonished to hear him say that he immediately left the police station and reached the scene village at 6.00 a.m. and after inspecting the scene, he would prepare an observation mahazar, Exhibit P. 2, besides preparation of the sketch, Exhibit P. 17, as if he was engaged in the heinous crime of murder. This is the first time, we are able to come across a case registered under Section 147, 148, 323 and 324 I.P.C. getting prime attention at the hands of the public personnel like P.W. 12, in the sense of rushing to the scene of occurrence and collecting material and other available clues in proof of the case of the prosecution.
22. The hand of fabrication is also getting exposed by the inbuilt materials available on record. Exhibit P. 17 rough sketch could not at all have been prepared in the manner and time, as stated by P.W. 12. In Exhibit P. 17, it has been stated, in crystal clear a fashion, as rough sketch in Bhuvanagiri Police Station Crime No. 152/85 under Sections 147, 148, 323, 324 and 302 I.P.C. If this rough sketch had been prepared, along with Exhibit P. 2 observation mahazar, we are puzzled to note how the inclusion of Section 302 I.P.C. therein was made and this is a sure pointer that this rough sketch and the observation mahazar had been prepared long subsequent to the alteration of the case into one under Section 302 I.P.C., subsequent to the death of the deceased in the Cuddalore Headquarters Hospital, which event happened at 3.50 a.m. and long subsequent to the receipt of the death intimation, Exhibit P. 10.
23. There is one more instance, which we can also point out for exposing the hand concoction of the investigating agency. P.W. 13, Inspector of Police would categorically state, in his evidence in chief-examination, that he conducted the inquest on the body of the deceased between 12 noon and 6.30 p.m. If he had conducted the inquest during the relevant period, as revealed by the inquest report Exhibit P. 20, we are absolutely at a loss to understand as to how the Dr. P.W. 9 could have received the requisition, Exhibit P. 11 at 4.00 p.m. and commenced autopsy at 4.30 p.m. From this, we are able to infer that the records have been manipulated in such a way to suit to the exigency of the case of the prosecution and in the process of preparation of such records, the hand of concoction got automatically exposed by the mistakes they had committed unawares.
24. Further, the injuries found on the person of accused I had not been properly explained. Even the little bit of effort had by the prosecution in explaining the injury on his head through the medium of P.W. 2 faced colossal failure, as we had pointed out earlier. Therefore, we can safely take it for granted that the prosecution miserably failed to explain the injuries found on the person of accused 1. From this, the irresistible conclusion that the prosecution made assiduous attempts in suppressing the genesis and origin of the occurrence cannot be ruled out of the consideration, in the facts and circumstances of the case.
25. For all the reasons, as above, we are of opinion that the prosecution thoroughly failed in bringing home the guilt of all the accused to any offence whatever, the consequence of which is that there is no other go except to acquit all the accused by giving them the benefit of reasonable doubt.
26. In the result, the appeal as against accused 3 would get abated, pursuant to the salient provisions adumbrated under Section 394 Crl.P.C. The appeal as respects other accused shall stand allowed; the conviction and sentence imposed by the Court below on them are set aside and they are acquitted. The bail bonds, if any executed by them shall stand cancelled.
27. Order accordingly.
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