IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.06.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRIMINAL APPEAL Nos.586 & 682 of 2007 1. Paneer Selvam @ Paneer (A1) 2. Arul Kumar @ Arul(A3) 3. Manikandan @ Mani (A4) 4. Vijaykanth(A5) .. Appellants in Crl.A.586/2007 5. Sivakumar @ Siva(A2) .. Appellant in Crl.A.682/2007 Vs. State by Inspector of Police, B-9, Saravanampatti Police Station, Coimbatore. .. Respondent in both the Appeals. These criminal appeals have been preferred under Section 374 Cr.P.C. against the judgment of the learned Additional District Sessions Judge, Fast Track Court No.III, Coimbatore made in S.C.No.242 of 2006 dated 14.6.2007. For Appellants in Crl.A.No.586/2007 : Mr.Ramesh Kumar Chopra For Appellant in Crl.A.No.682/2007 : Mr. A.R.Suresh For Respondent : Mr.N.R.Elango, APP COMMON JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) This judgement shall govern these two appeals viz., Crl.A.No.586/2007 filed by A1, A3 , A4 & A5 and Crl.A.No.682/2007 filed by A2, whereby these appellants stood charged, tried and found guilty as follows: ACCUSED CHARGES FINDINGS SENTENCE A1 S.120(b)IPC Guilty 2 years R.I. A1 S.147 IPC Not Guilty ...
A1
S.148 IPC
Guilty
3 years R.I.
A1
S.302 IPC
Guilty
Life imprisonment along with fine of Rs.1000/- i/d three months R.I.
A2
S.120(b) IPC
Guilty
2 years R.I.
A2
S.147 IPC
Guilty
2 years R.I.
A2
S.302 r/w 109 and 120(b)IPC
Guilty u/s
302 IPC
Life imprisonment along with fine of Rs.1000/- i/d three months R.I.
A3
S.120(b) IPC
Guilty
2 years R.I.
A3
S.147 IPC
Guilty
2 years R.I.
A3
S.302 r/w 109 and 120(b)IPC
Guilty u/s
302 IPC
Life imprisonment along with fine of Rs.1000/- i/d three months R.I.
A4
120(b) IPC
Guilty
2 years R.I.
A4
S.147 IPC
Not Guilty
….
A4
S.148 IPC
Guilty
3 years R.I.
A4
S.302 IPC
Guilty
Life imprisonment along with fine of Rs.1000/- i/d three months R.I.
A5
S.120(b) IPC
Guilty
2 years R.I.
A5
S.147 IPC
Not Guilty
….
A5
S. 148 IPC
Guilty
3 years R.I.
A5
S.302 IPC
Guilty
Life imprisonment along with fine of Rs.1000/- i/d three months R.I.
The sentences are ordered to run concurrently.
2.The short facts necessary for the disposal of these appeals can be stated as follows:
(a) The deceased Babu, P.W.2- Alagendran and A1 to A5 were friends and all are residing in the same place. One year prior to the date of occurrence, on a festive occasion of Mariamman temple at Chokkan garden, the deceased Babu stamped the leg of the first accused while dancing, for which, all the accused beat the deceased Babu. Hence, the relationship between the accused and the deceased became strained. On 27.2.2006 at about 5.30 p.m., P.W.1 and the deceased went to Autokaran wine shop and consumed liquor and when they came out, they saw A1 crossing them and on seeing him, the deceased Babu kicked A1. A1 got angry, scolded him and left the place. Thereafter, P.W.1 and the deceased went to a tea stall and they had tea. At that time, A2 came there and told the deceased that regarding the earlier incident, the matter has to be solved between the deceased and A1 and on saying so, A2 took the deceased Babu along with him. P.W.1, entertaining suspicion, accompanied them. When they came near the occurrence place, A1 armed with aruval stabbed the deceased Babu at difference parts of the body and A4 got the knife from A1 and stabbed the deceased and A5 also snatched the knife from A4 and stabbed the deceased. The occurrence was witnessed by P.Ws. 1 to 4. When they raised alarm, all the accused fled away from the place of occurrence.
(b) Immediately, the matter was informed to the relatives. The severely injured Babu was taken in the auto of P.W.14 and he was taken to different hospitals and final, he was taken to Kovai Medical Centre where the doctor declared him dead. Immediately, intimation was given to the respondent Police Station. P.W.22, Sub- Inspector of Police, proceeded to the Hospital and recorded the statement of P.W.1 which was marked as Ex.P1. On the strength of Ex.P1, he registered a case in Crime No.268/2006 under Section 302 I.P.C. The express F.I.R., Ex.P13 was despatched to Court.
(c) P.W.23, the Inspector of Police, took up investigation. He proceeded to the spot, made and inspection and prepared the observation mahazar and drew a rough sketch Ex.P21. He conducted inquest on the dead body of Babu in the presence of witnesses and panchayatdars and prepared Ex.P15- inquest report. The dead body was subjected to post mortem and P.W.20 doctor conducted autopsy on the dead body of the deceased and gave his opinion in Ex.P11 post mortem certificate wherein he has opined that the deceased would appear to have died due to multiple stab injuries sustained by him. (d) All the accused were arrested. A1 gave confessional statement and the admissible part of the confession made by A1 was marked as Ex.P8. He also produced M.O.1 knife which was recovered under a cover of mahazar. All the accused were sent for judicial remand. All the material objects recovered from the place of occurrence, from the dead body of the deceased and M.O.1 recovered from the accused were subjected to chemical analysis which resulted in the chemical report and the serologist report and they were also placed before the concerned Judicial Magistrate Court. On completion of the investigation, the investigating officer filed a final report.
(e) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges, the prosecution marched 23 witnesses and relied on 21 exhibits and 5 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under 313 Cr.P.C. and they denied them as false. No defence witness was examined and no documents were marked. The trial Court heard the arguments advanced on either side and took a view that the prosecution has proved its case beyond reasonable doubt and rendered the judgement of conviction and sentence as stated above, which is the subject matter of challenge before this Court.
3. Advancing the argument on behalf of the appellants learned counsel would submit, according to the prosecution, the occurrence has taken place on 27.2.2006 at 8.00 p.m. Though P.Ws.1 to 4 were shown as eye witnesses, P.W.3 and P.W.4 have turned hostile. P.Ws. 1 and 2 have spoken about the prosecution story.
4. Learned counsel further submitted that according to P.W.1, both himself and the deceased went to Autokaran Wine shop and took liquor and they came out of the shop. At that time, A1 came there and on seeing him, the deceased kicked him. A1 left the place with anger. Then, P.W.1 and the deceased Babu proceeded in a cycle to a tea stall and had tea. A2 came there and took the deceased to the scene of occurrence under the guise of pacifying the entire affairs between A1 and the deceased. P.W.1 also accompanied him. At that time, the occurrence has taken place. Learned counsel would further add that a reading of the earliest document Ex.P1- report would not indicate the names of A4 and A5 and no overt act was shown against them. Thus, it is quite clear that A4 and A5 could not have been in the place of occurrence at all. Ex.P1 refers to the names of A1 and A2 only and it does not speak about the name of A3 but would state that a black person with curly hair. As far as A3 was concerned, no identification parade was conducted and it does not refer to the presence of P.W.2 at all. P.W.3 and P.W.4 have turned hostile. The learned counsel would further add, it is highly doubtful whether P.W.1 could have seen the occurrence. According to P.W.1, he and the deceased went inside the wine shop and both had liquor but he has categorically stated in the cross examination that he did not have liquor at all along with the deceased and the statement made in Ex.P1 report was false. The learned counsel would add that even the post mortem doctor has categorically opinion that there is nothing to indicate that the deceased consumed alcohol.
5. Added further learned counsel, all the answers given by P.W.1 at the time of cross examination would indicate that he could not have been present at the time of occurrence. P.W.1 has stated that he did not give the names of the accused in Ex.P1 report but their names are found. All would go to show that P.W.1 would not have seen the occurrence at all. Only after the occurrence had taken place, P.W.1 would have been informed about the occurrence and then, he would have gone to the place of occurrence and after seeing the dead body, he has given the false report. Even the medical opinion canvassed by the prosecution through the post mortem doctor that Babu died of homicidal death will not help the prosecution case to bring home the guilt of the accused.
6. Added further learned counsel, the prosecution relied on the alleged recovery of M.O.1- knife, following the confession statement given by A1. It is settled principle of law that the recovery of weapon of crime alone would not be suffice to sustain conviction. Under such circumstances, the lower Court has taken an erroneous view and found the accused guilty. Hence, it has got to be set aside by this court and the appellants are entitled for acquittal in the hands of the Court.
7. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration of the submissions made.
8. It is not in controversy that one Babu, following the incident that had taken place at 8.00 p.m. on 27.2.2006 was taken to the hospital where he was declared dead and following the inquest made by P.Ws. 23 investigating officer, the dead body was subjected to post mortem. P.W.20 doctor gave categoric opinion that the deceased would appear to have died due to multiple stab injuries sustained by him. The said fact was never disputed by the appellants before the trial Court. Hence, it could be recorded so.
9. In order to substantiate that at the time of occurrence it was A2 and A3 facilitated the crime of murder by catching hold of the deceased Babu and A1, A4 and A5 stabbed the deceased Babu, the prosecution marched 4 witnesses but a perusal of the testimony of P.Ws. 3 and 4 would clearly indicate that they exposed hostile attitude. Thus, the witnesses available for the prosecution are P.Ws.1 and 2 only. A reading of the earliest document Ex.P1 would indicate that the presence of P.W.2 at the time of occurrence was not found. The scrutiny of evidence of P.W.1 would show that he accompanied the deceased, went to the autokaran wine shop and had brandy and when they came out of the shop,they saw A1 and it was the deceased who kicked A1 and A1 got angry but he left the place and thereafter, P.W.1 and the deceased Babu proceeded to a tea stall and had tea and A2 came there and took the deceased with him to the place of occurrence and following the same, the incident had taken place at the scene of occurrence.
10. As rightly pointed out by the learned counsel for the appellants, a careful scrutiny of the evidence of P.W.1 throws the following doubts in the mind of the Court which in the opinion of the Court are reasonable doubts which are not clarified by the prosecution.
11. According to P.W.1, he accompanied the deceased to liquor shop and had liquor but at the time of cross examination he has stated neither he nor the deceased had liquor and he did not have liquor with the deceased and the averment in Ex.P1 would be nothing but false. Hence, it cast a doubt whether P.W.1 could have accompanied the deceased and witnessed the occurrence. Further, P.W.20 the post mortem doctor deposed that nothing was found in the stomache to indicate consumption of alcohol by the deceased. The other point raised by the learned counsel is that P.W.1 has categorically admitted that when he went to the police station and gave Ex.P1 report, he did not give the names of the accused but the names of A1 and A2 were actually found in Ex.P1 report. Further, the prosecution came forward to speak about 5 accused persons but P.Ws.1 and 2 have categorically spoken that A4 and A5 were present at the time of occurrence but in Ex.P1 report there is no indication about the presence of A4 and A5. Further, when the evidence of P.W.1 was carefully scrutinised, it does not stand the scrutiny test, since, in the opinion of the Court, when reasonable doubts are available, duty is cast upon the prosecution to explain the same but the prosecution miserably failed to do so. In the absence of such reasonable doubts which remains not clarified, even before this Court, the Court is afraid whether it could sustain the conviction as done by the lower Court. Hence, benefit of doubts must be given to the appellants/accused to which they are entitled to. The Court is of the considered opinion that it would be unsafe to sustain the conviction on the evidence brought forth by the prosecution. The lower court, without considering all the above aspects, has erroneously found the appellants guilty and hence, the judgment of the lower court has got to be made undone only by upsetting the same.
12. Accordingly, this criminal appeals are allowed, setting aside the conviction and sentence imposed on the appellants by the court below. The appellants are acquitted of the charges levelled against them. The bail bonds if any executed by the appellants shall stand terminated and the fine amounts if any paid by them is ordered to be refunded to them.
vsi
To
1.The Additional District Sessions Judge,
Fast Track Court No.III Coimbatore
2.The Inspector of Police,
B-9, Saravanampatti Police Station,
Coimbatore.
3.The Additional Public Prosecutor,
High Court,
Madras