IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.01.2007
CORAM
THE HONOURABLE MR. JUSTICE R.REGUPATHI
Criminal Appeal No.141 of 1999
V.K.Rakesh .. Appellant/1st accused
Vs.
State rep., by the
Inspector of Police,
Palloor Police Station,
Mahe, Pondicherry State. ..Respondent/Complainant
Criminal Appeal filed against the judgment dated
05.02.1999 in S.C.No.27 of 1998 on the file of II
Additional Sessions Judge, Pondicherry.
For appellant : Mr.T.Sudanthiram, S.C., for
Mr.C.B.Muralikrishnan
For respondent : Mr.M.R.Thangavel,
Government Advocate (Pondicherry)
JUDGMENT
The above appeal is preferred by the appellant-first
accused against the judgment dated 05.02.1999 in S.C.No.27
of 1998 on the file of II Additional Sessions Judge,
Pondicherry.
2. The petitioner is the first accused in the case.
Among nine accused, the appellant, on conclusion of trial,
was convicted for an offence punishable under Section 3 of
the Explosive Substances Act and sentenced to undergo
rigorous imprisonment for three years and to pay a fine of
Rs.1000/-, in default, to undergo simple imprisonment for
one month. He was also convicted for the offence under
Section 324 IPC (3 counts) and sentenced to undergo rigorous
imprisonment for six months under each count and the
sentence of imprisonment passed under Section 324 IPC shall
run concurrently with the sentence passed under Section 3 of
Explosive Substances Act, 1908 and the default sentence
shall run consecutively.
3. Accused 2 to 9 were acquitted of the charges
framed against them.
4. The case of the prosecution is that PWs 1 to 3 are
belong to R.S.S. Party and the accused belong to C.P.M.
Party. Earlier, one of the CPM party cadre was done to
death and on account of political animosity between two
groups, on 09.05.1996 at about 7.30 p.m., PWs.1 to 3
while proceeding to a place, where they usually assemble for
conducting exercises, the accused emerged out from two cars
near the lane leading to the place “Saaga” and alleged to
have hurled country bombs and caused explosion, in which
Pws.1 to 3 sustained simple injuries, resulting in the
registration of the case.
5. The learned counsel for the appellant-A1 submits
that the reasons assigned for acquitting A2 to A9 are
equally applicable to the appellant herein. While
acquitting the accused, the learned trial Judge has given
his reasons, which read as follows:
“The evidence of PWs 1 to 3 do not in any
way mention any overt act of A2 to A9. They
only state that A2 to A9 were present along
with A1 and A1 threw bomb. As pointed out
earlier, the presence of A2 to A9 in the cars
as spoken to by PWs 1 to 3 cannot be relied
upon. More over, PWs 1 to 3 have stated that
they identified the accused in the street lamp
at the junction of the two lanes (marked as
No.4 in the rough sketch Ex.P19 and a part of
the wooden lamp post is seen in the
photograph). In the evidence, PW16
categorically admits that the light was not
burning when he went to the scene of occurrence
and he had to use a torch for preparing
observation mahazar at it was dark.
Moreover, the occurrence happened at 7.30 p.m.
During the month of June Sun set at 6.40 p.m.,
and kin the mountain terrain where there will
trees and it would be dark. Therefore, the
evidence of PWs 1 to 3 and 4 that A2 to A7 were
present along with A1 is highly improbable and
cannot be relied upon. Hence, the prosecution
has not established that A1 to A7 were present
at the time of incident and has actively taken
part in the bomb throw or has adduced any
evidence for their active involvement in the
crime”
6. The learned counsel for the appellant submits that
in the FIR it has been stated that A1 to A7 have hurled
bomb, resulting in the occurrence. Overt-acts have been
attributed uniformly against all the accused and on
conclusion of the investigation, the version of the
prosecution is also the same. It is again the same while
framing of the charges against all the accused.
7. The appellant happened to be an elected member of
the Panchayat and at the time of the trial, PWs 1 to 3 have
given evidence as if it is only the appellant, who has
hurled the bomb resulting in such injuries. In the evidence
it has been positively asserted about the identity of the
accused persons at the scene of occurrence. But, their
names are not mentioned in the First Information Report.
Even before the Medical Officer, who has treated PWs 1 to
3, it has been stated that the accused are unidentified
persons. The Investigating Officer, admitted in his
evidence that there was no light in the scene of occurrence.
The occurrence had taken place at 7.30 p.m. The accused are
alleged to have taken a narrow lane with a width of 1 1/2′
to reach the place of occurrence and under such
circumstances, it is impossible to identify the accused and
attribute overt-acts to each of them. In the case on hand,
though it is the case of the prosecution that all the
accused have hurled bomb, now they have concentrated only
on the appellant/A.1 as he happened to be the elected
member of the Panchayat.
8. The learned counsel for the appellant has relied on
the decision of the Supreme Court reported in 2004 Supreme
Court Cases (Criminal) 569 (NARAIN VS. STATE OF
MADHYAPRADESH), wherein in paras 8 and 11 it has been
observed as follows:
“8. As a rule of universal application, it cannot
be said that when a portion of the prosecution
evidence is discarded as unworthy of credence,
there cannot be any conviction. It is always open
to the court to differentiate between an accused
who has been convicted and those who have been
acquitted. (See Gurcharan Singh Vs. State of
Punjab and Sucha Singh Vs. State of Punjab) The
maxim “falsus in uno, falsus in omnibus” is
merely a rule of caution. As has been indicated
by this Court in Sucha Singh case in terms of
felicitous metaphor, an attempt has to be made to
separate the grain from the chaff, truth from
falsehood. When the prosecution is able to
establish its case by acceptable evidence, though
in part, the accused can be convicted even if the
co-accused have been acquitted on the ground that
the evidence led was not sufficient to fasten
guilt on them. But where the position is such
that the evidence is totally unreliable, and it
will be impossible to separate the truth from
falsehood to an extent that they are inextricably
mixed up, and in the process of separation an
absolutely new case has to be reconstructed by
divorcing essential details presented by the
prosecution completely from the context and
background against which they are made, conviction
cannot be made.
11.The genesis of the incident, the place of
incident and the manner in which the incident took
place was found not to have been established by
cogent and credible prosecution evidence.
Therefore, on the peculiar facts of the case and
the nature of evidence tendered by the prosecution
there is no scope for taking a different view so
far as the appellant is concerned and treat the
case against him alone to have been substantiated
beyond reasonable doubt. The conclusion arrived
at in respect of other accused persons was equally
applicable so far as the appellant is concerned.”
9. The learned counsel for the appellant has also
relied on the decision of this Court reported in 2002 I Law
Weekly (Criminal 416 ( P.Jothi and two others Vs. State by
Inspector of Police etc) especially para 18, wherein it
has held as follows:
“The investigating officer has categorically
admitted that on account of the election dispute
between the two groups, he had not examined any
one outside the two factions. In our considered
opinion, the Investigating Officer would have
done better if he had examined atleast one
person, who is totally unconnected with the two
groups especially, when the occurrence had taken
place in a public road. It may be true that
Pws.1, 3, 5, 6 and 7 had consistently stated
that A3 and A4, each caught hold of one hand of
the deceased and the accused Manimurugan (since
deceased) fatally stabbed on the chest and head
of the deceased. But in view of several
suspicious circumstances starting from the truth
of Ex.P1, we evaluated the oral evidence of
these witnesses to find out whether they pass
the test of reliability. As already stated, we
are in entire agreement with the finding of the
learned Sessions Judge that the witnesses
projected by the prosecution are partisan
witnesses and they appear to be very keen to
implicate everyone in the opposite camp in the
crime. Under these circumstances, caution
should be in the mind of the Court, as held by
the Apex Court as well as by this Court in so
many judgment, while evaluating the evidence of
such witnesses. We are unable to remove the
chaff from the grain from the evidence of these
witnesses. When their evidence had been
disbelieved to acquit A1, A2 and A6, we do not
find any compelling circumstance or substantial
material in their evidence which could be carved
out to be used against A3 to A5. The presence
of A6 at the scene of occurrence had been
rightly doubted by the learned Sessions Judge.
In Ex.P1, his name is not found mentioned as an
eye witness. If the evidence of PW6 is true,
then his clothes would have definitely become
bloodstained. When the Investigation Officer
had taken much care to recover the blood-stained
clothes of PWs 3 and 5, nothing had been
recovered from PW6. PW6’s evidence is that
after his brother was fatally attacked, he put
him on his lap and inasmuch as the deceased has
sustained profusely bleeding injuries, the
clothes of PW6 would not have escaped from
becoming blood-stained.”
10. Per contra, the learned Special Public Prosecutor
for Pondicherry submits that though all the accused have
been implicated during the course of investigation, the
trial Judge, considering the materials available on record
and the evidence of PWs 1 to 3, has reached a conclusion to
convict the appellant. Though A2 to A9 have been
acquitted, the appellant could be convicted based on the
available materials through the evidence of PWs 1 to 3.
11. `I have heard the submissions made by both the
learned counsel and perused the materials on record.
12. Initially the case has been taken on file against
nine accused. Admittedly, all the nine accused belong to
CPM party and Pws. 1 to 3 belong to rival party viz., RSS.
Animosity between two groups is also an admitted factor. No
independent witness has been examined by the prosecution.
The occurrence had taken place at 7.30 p.m. during night
time. The factum of availability of light at the scene of
occurrence has not been mentioned in the First Information
Report. On the other hand, it is the admitted case of the
Investigating Officer that there was no light at the scene
of occurrence at the time of the alleged occurrence. During
the course of investigation, the material objects were
subjected to Forensic test and the Expert opined in Ex.P.20
is that the samples “do not contain any explosive
residues”. While acquitting the accused A2 to A9, the
trial Judge has given convincing reasons. On perusal of the
reasonings, I find that such reasons are equally
applicable to the appellant also. The main allegation
against the appellant/A.1 is that he hurled bomb at the
victims. To substantiate the same, there is no supporting
evidence from the Forensic Expert. Though it is alleged
that PWs 1 to 3 sustained injuries in the alleged
occurrence, even at the earliest point of time, they have
intimated to the Medical Officer that the accused are
unidentified persons. On the contrary, in their evidence,
they have positively stated that the accused especially,
the appellant is a known person. I am of the considered
view that the evidence of PWs 1 to 3 is partisan and
unacceptable. The precedent relied on by the learned
counsel for the appellant is equally applicable to the case
on hand. In such circumstances, I do not find any reason to
sustain the conviction of the appellant-A1 and therefore,
the conviction and sentence passed against the appellant is
set aside and the appellant-A1 is not found guilty of the
offences charged and accordingly, he is acquitted of the
offences charged. Accordingly, the appeal is allowed. The
bail bonds of the appellant shall stand discharged. The
fine amount, if any, paid by the appellant/A.1 shall be
refunded to him.
raa
To
II Additional Sessions Judge,
Pondicherry.