{"id":50824,"date":"2007-01-03T00:00:00","date_gmt":"2007-01-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/v-k-rakesh-vs-state-rep-on-3-january-2007"},"modified":"2014-07-17T12:40:10","modified_gmt":"2014-07-17T07:10:10","slug":"v-k-rakesh-vs-state-rep-on-3-january-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/v-k-rakesh-vs-state-rep-on-3-january-2007","title":{"rendered":"V.K.Rakesh vs State Rep. on 3 January, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
V.K.Rakesh vs State Rep. on 3 January, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n           IN THE HIGH COURT OF JUDICATURE AT MADRAS\n                              \n                      DATED: 03.01.2007\n                              \n                            CORAM\n                              \n           THE HONOURABLE MR. JUSTICE R.REGUPATHI\n                              \n               Criminal Appeal No.141 of 1999\n                              \n                              \nV.K.Rakesh                        .. Appellant\/1st accused\n\n\n                         Vs.\n\n\nState rep., by the\nInspector  of Police,\nPalloor Police Station,\nMahe, Pondicherry State.           ..Respondent\/Complainant\n\n\n\n      Criminal  Appeal  filed against  the   judgment  dated\n05.02.1999  in  S.C.No.27  of  1998  on  the  file  of    II\nAdditional Sessions Judge, Pondicherry.\n\n          For appellant     :  Mr.T.Sudanthiram, S.C., for\n                               Mr.C.B.Muralikrishnan\n\n          For respondent    :  Mr.M.R.Thangavel,\n                               Government Advocate (Pondicherry)\n\n\n\n\n                         JUDGMENT\n<\/pre>\n
      The  above  appeal is preferred by the appellant-first<\/p>\n
accused  against the judgment dated 05.02.1999 in  S.C.No.27<\/p>\n
of  1998  on  the  file  of  II Additional  Sessions  Judge,<\/p>\n
Pondicherry.\n<\/p>\n
      2.  The  petitioner is the first accused in the  case.<\/p>\n
Among  nine accused, the  appellant, on conclusion of trial,<\/p>\n
was  convicted for an offence punishable under Section 3  of<\/p>\n
the  Explosive  Substances  Act and   sentenced  to  undergo<\/p>\n
rigorous  imprisonment for three years  and to pay a fine of<\/p>\n
Rs.1000\/-,  in  default, to undergo simple imprisonment  for<\/p>\n
one  month.   He  was also convicted for the  offence  under<\/p>\n
Section 324 IPC (3 counts) and sentenced to undergo rigorous<\/p>\n
imprisonment  for  six  months  under  each  count  and  the<\/p>\n
sentence of imprisonment passed under Section 324 IPC  shall<\/p>\n
run concurrently with the sentence passed under Section 3 of<\/p>\n
Explosive  Substances  Act, 1908 and  the  default  sentence<\/p>\n
shall run consecutively.\n<\/p>\n<\/p>\n
      3.  Accused  2  to 9 were acquitted of   the   charges<\/p>\n
framed against them.\n<\/p>\n<\/p>\n
      4. The case of the prosecution is that PWs 1 to 3  are<\/p>\n
belong  to  R.S.S. Party and  the accused belong  to  C.P.M.<\/p>\n
Party.   Earlier,  one of the CPM party cadre  was  done  to<\/p>\n
death   and  on account of political animosity  between  two<\/p>\n
groups,  on  09.05.1996  at about 7.30  p.m.,   PWs.1  to  3<\/p>\n
while proceeding to a place, where they usually assemble for<\/p>\n
conducting exercises,  the accused emerged out from two cars<\/p>\n
near  the lane leading to  the place “Saaga” and alleged  to<\/p>\n
have  hurled  country bombs and caused explosion,  in  which<\/p>\n
Pws.1  to  3  sustained simple injuries,  resulting  in  the<\/p>\n
registration of the case.\n<\/p>\n<\/p>\n
      5.  The  learned counsel for the appellant-A1  submits<\/p>\n
that  the  reasons  assigned for acquitting  A2  to  A9  are<\/p>\n
equally   applicable   to  the  appellant   herein.    While<\/p>\n
acquitting  the accused, the learned trial Judge  has  given<\/p>\n
his reasons,  which read  as follows:\n<\/p>\n<\/p>\n
     “The  evidence  of PWs 1 to 3  do not   in  any<\/p>\n
     way  mention any  overt act of A2 to A9.   They<\/p>\n
     only  state  that A2 to A9 were present   along<\/p>\n
     with  A1  and  A1 threw bomb.  As  pointed  out<\/p>\n
     earlier,  the presence of A2 to A9 in the  cars<\/p>\n
     as  spoken  to by PWs 1 to 3 cannot  be  relied<\/p>\n
     upon.   More over, PWs 1 to 3 have stated  that<\/p>\n
     they  identified the accused in the street lamp<\/p>\n
     at  the  junction of the two lanes  (marked  as<\/p>\n
     No.4  in the rough sketch Ex.P19 and a part  of<\/p>\n
     the   wooden   lamp  post  is   seen   in   the<\/p>\n
     photograph).     In    the    evidence,    PW16<\/p>\n
     categorically  admits that the  light  was  not<\/p>\n
     burning when he went to the scene of occurrence<\/p>\n
     and  he  had  to  use  a  torch  for  preparing<\/p>\n
     observation   mahazar   at    it   was    dark.<\/p>\n
     Moreover, the occurrence happened at 7.30  p.m.<\/p>\n
     During the month  of June Sun set at 6.40 p.m.,<\/p>\n
     and  kin the mountain terrain where there  will<\/p>\n
     trees  and  it  would be dark.  Therefore,  the<\/p>\n
     evidence of PWs 1 to 3 and 4 that A2 to A7 were<\/p>\n
     present along with A1 is highly improbable  and<\/p>\n
     cannot  be relied upon.  Hence, the prosecution<\/p>\n
     has  not established that A1 to A7 were present<\/p>\n
     at  the time of incident and has actively taken<\/p>\n
     part  in  the  bomb throw or  has  adduced  any<\/p>\n
     evidence  for their active involvement  in  the<\/p>\n
     crime”<\/p><\/blockquote>\n<\/p>\n
      6. The learned counsel  for the appellant submits that<\/p>\n
in  the  FIR  it has been stated that A1 to A7  have  hurled<\/p>\n
bomb,  resulting  in the occurrence.  Overt-acts  have  been<\/p>\n
attributed  uniformly   against  all  the  accused  and   on<\/p>\n
conclusion  of  the  investigation,  the  version   of   the<\/p>\n
prosecution is also the same.  It is again  the  same  while<\/p>\n
framing of the charges against all the accused.<\/p>\n
      7.  The appellant happened to be an elected member  of<\/p>\n
the  Panchayat and at the time of the trial, PWs 1 to 3 have<\/p>\n
given  evidence   as  if it is only the appellant,  who  has<\/p>\n
hurled the bomb resulting in such injuries.  In the evidence<\/p>\n
it  has been positively asserted about the  identity of  the<\/p>\n
accused  persons  at  the scene of occurrence.   But,  their<\/p>\n
names  are  not  mentioned in the First Information  Report.<\/p>\n
Even before the Medical Officer, who  has treated  PWs 1  to<\/p>\n
3,  it  has  been  stated that the accused are  unidentified<\/p>\n
persons.   The  Investigating  Officer,   admitted  in   his<\/p>\n
evidence that there was no light in the scene of occurrence.<\/p>\n
The occurrence had taken place at 7.30 p.m.  The accused are<\/p>\n
alleged to have taken a narrow lane with a width of  1  1\/2′<\/p>\n
to   reach   the   place  of  occurrence  and   under   such<\/p>\n
circumstances, it is impossible to identify the accused  and<\/p>\n
attribute overt-acts to each of them.  In the case on  hand,<\/p>\n
though  it  is  the  case of the prosecution  that  all  the<\/p>\n
accused   have hurled bomb, now they have concentrated  only<\/p>\n
on  the  appellant\/A.1  as he happened  to  be  the  elected<\/p>\n
member of the Panchayat.\n<\/p>\n<\/p>\n
      8. The learned counsel for the appellant has relied on<\/p>\n
the  decision of  the Supreme Court reported in 2004 Supreme<\/p>\n
Court   Cases   (Criminal)  569   (NARAIN   VS.   STATE   OF<\/p>\n
MADHYAPRADESH),  wherein in paras  8  and  11  it  has  been<\/p>\n
observed as follows:\n<\/p>\n
     “8.  As a rule of universal application, it cannot<\/p>\n
     be  said  that  when a portion of the  prosecution<\/p>\n
     evidence  is  discarded as unworthy  of  credence,<\/p>\n
     there cannot be any conviction.  It is always open<\/p>\n
     to  the  court to differentiate between an accused<\/p>\n
     who  has  been convicted and those who  have  been<\/p>\n
     acquitted.  (See  Gurcharan  Singh  Vs.  State  of<\/p>\n
     Punjab  and Sucha Singh Vs. State of Punjab)   The<\/p>\n
     maxim  “falsus  in  uno, falsus   in  omnibus”  is<\/p>\n
     merely  a  rule of caution.  As has been indicated<\/p>\n
     by  this  Court in Sucha Singh case in   terms  of<\/p>\n
     felicitous  metaphor, an attempt has to be made to<\/p>\n
     separate   the  grain from the chaff,  truth  from<\/p>\n
     falsehood.   When  the  prosecution  is  able   to<\/p>\n
     establish its case by acceptable evidence,  though<\/p>\n
     in  part, the accused can be convicted even if the<\/p>\n
     co-accused have been acquitted on the ground  that<\/p>\n
     the  evidence   led was not sufficient  to  fasten<\/p>\n
     guilt  on  them.  But where the position  is  such<\/p>\n
     that  the  evidence is totally unreliable, and  it<\/p>\n
     will  be  impossible to separate  the  truth  from<\/p>\n
     falsehood  to an extent that they are inextricably<\/p>\n
     mixed  up,  and  in the process of  separation  an<\/p>\n
     absolutely  new  case has to be  reconstructed  by<\/p>\n
     divorcing  essential  details  presented  by   the<\/p>\n
     prosecution   completely  from  the  context   and<\/p>\n
     background against which they are made, conviction<\/p>\n
     cannot be made.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
     11.The  genesis  of  the incident,  the  place  of<\/p>\n
     incident and the manner in which the incident took<\/p>\n
     place  was  found not to have been established  by<\/p>\n
     cogent    and   credible   prosecution   evidence.<\/p>\n
     Therefore, on the peculiar facts of the  case  and<\/p>\n
     the nature of evidence tendered by the prosecution<\/p>\n
     there  is no scope for taking a different view  so<\/p>\n
     far  as  the appellant is concerned and treat  the<\/p>\n
     case  against him alone to have been substantiated<\/p>\n
     beyond  reasonable doubt.  The conclusion  arrived<\/p>\n
     at in respect of other accused persons was equally<\/p>\n
     applicable  so far as the appellant is concerned.”<\/p><\/blockquote>\n<\/p>\n
      9.  The  learned  counsel for the appellant  has  also<\/p>\n
relied on the decision of this Court reported in 2002 I  Law<\/p>\n
Weekly  (Criminal 416 ( P.Jothi and two others Vs. State  by<\/p>\n
Inspector  of Police etc)  especially  para 18, wherein   it<\/p>\n
has held as follows:\n<\/p>\n<\/p>\n
     “The  investigating  officer  has  categorically<\/p>\n
     admitted that on account of the election dispute<\/p>\n
     between  the two groups, he had not examined any<\/p>\n
     one outside the two factions.  In our considered<\/p>\n
     opinion,  the Investigating Officer  would  have<\/p>\n
     done  better  if  he  had examined  atleast  one<\/p>\n
     person, who is totally unconnected  with the two<\/p>\n
     groups especially, when the occurrence had taken<\/p>\n
     place  in  a public road.  It may be  true  that<\/p>\n
     Pws.1,  3,  5,  6 and 7 had consistently  stated<\/p>\n
     that A3 and A4, each caught hold of one hand  of<\/p>\n
     the  deceased and the accused Manimurugan (since<\/p>\n
     deceased) fatally stabbed on the chest and  head<\/p>\n
     of   the  deceased.   But  in  view  of  several<\/p>\n
     suspicious circumstances starting from the truth<\/p>\n
     of  Ex.P1,  we  evaluated the oral  evidence  of<\/p>\n
     these  witnesses to find out whether  they  pass<\/p>\n
     the test of reliability.  As already stated,  we<\/p>\n
     are  in entire agreement with the finding of the<\/p>\n
     learned   Sessions  Judge  that  the   witnesses<\/p>\n
     projected   by  the  prosecution  are   partisan<\/p>\n
     witnesses   and they appear to be very  keen  to<\/p>\n
     implicate everyone in the opposite camp  in  the<\/p>\n
     crime.    Under  these  circumstances,   caution<\/p>\n
     should  be in the mind of the Court, as held  by<\/p>\n
     the  Apex Court as well as  by this Court in  so<\/p>\n
     many judgment, while evaluating  the evidence of<\/p>\n
     such  witnesses.  We are unable  to  remove  the<\/p>\n
     chaff  from the grain from the evidence of these<\/p>\n
     witnesses.    When  their  evidence   had   been<\/p>\n
     disbelieved to acquit A1, A2 and A6, we  do  not<\/p>\n
     find  any compelling circumstance or substantial<\/p>\n
     material in their evidence which could be carved<\/p>\n
     out  to  be used against A3 to A5.  The presence<\/p>\n
     of  A6  at  the  scene  of occurrence  had  been<\/p>\n
     rightly  doubted by the learned Sessions  Judge.<\/p>\n
     In  Ex.P1, his name is not found mentioned as an<\/p>\n
     eye  witness.  If the evidence of PW6  is  true,<\/p>\n
     then  his  clothes would have definitely  become<\/p>\n
     bloodstained.   When  the Investigation  Officer<\/p>\n
     had taken much care to recover the blood-stained<\/p>\n
     clothes  of  PWs  3  and  5,  nothing  had  been<\/p>\n
     recovered  from  PW6.  PW6’s  evidence  is  that<\/p>\n
     after  his brother was fatally attacked, he  put<\/p>\n
     him  on his lap and inasmuch as the deceased has<\/p>\n
     sustained   profusely  bleeding  injuries,   the<\/p>\n
     clothes  of  PW6  would not  have  escaped  from<\/p>\n
     becoming  blood-stained.”<\/p><\/blockquote>\n<\/p>\n
      10.  Per contra, the learned Special Public Prosecutor<\/p>\n
for  Pondicherry submits that though all the   accused  have<\/p>\n
been   implicated   during the course of investigation,  the<\/p>\n
trial  Judge, considering the materials available on  record<\/p>\n
and the evidence of PWs 1 to 3, has  reached a conclusion to<\/p>\n
convict   the  appellant.   Though   A2  to  A9  have   been<\/p>\n
acquitted,  the appellant could be convicted  based  on  the<\/p>\n
available materials through the evidence of PWs 1 to 3.<\/p>\n
      11.  `I  have heard the submissions made by  both  the<\/p>\n
learned counsel and perused the materials on record.<\/p>\n<\/p>\n
     12. Initially the case  has been taken on file  against<\/p>\n
nine  accused.   Admittedly, all the nine accused belong  to<\/p>\n
CPM  party and  Pws. 1 to 3 belong to rival party viz., RSS.<\/p>\n
Animosity between two groups is also an admitted factor.  No<\/p>\n
independent  witness has been examined by  the  prosecution.<\/p>\n
The  occurrence  had taken place at 7.30 p.m.  during  night<\/p>\n
time.   The factum of availability of light at the scene  of<\/p>\n
occurrence  has not been mentioned in the First  Information<\/p>\n
Report.  On the other hand, it is the admitted case  of  the<\/p>\n
Investigating Officer that there was  no light at the  scene<\/p>\n
of occurrence at the time of the alleged occurrence.  During<\/p>\n
the  course  of  investigation, the  material  objects  were<\/p>\n
subjected to Forensic test and the Expert opined in  Ex.P.20<\/p>\n
is   that  the   samples  “do  not  contain   any  explosive<\/p>\n
residues”.   While  acquitting the accused  A2  to  A9,  the<\/p>\n
trial Judge has given convincing reasons.  On perusal of the<\/p>\n
reasonings,   I   find  that  such  reasons    are   equally<\/p>\n
applicable  to  the  appellant also.   The  main  allegation<\/p>\n
against  the  appellant\/A.1 is that he hurled  bomb  at  the<\/p>\n
victims.   To substantiate the same, there is no  supporting<\/p>\n
evidence  from  the Forensic Expert.  Though it  is  alleged<\/p>\n
that   PWs  1  to  3   sustained  injuries  in  the  alleged<\/p>\n
occurrence,  even at the earliest point of time,  they  have<\/p>\n
intimated  to  the   Medical Officer that  the  accused  are<\/p>\n
unidentified  persons.  On the contrary, in their  evidence,<\/p>\n
they  have  positively stated  that the accused  especially,<\/p>\n
the  appellant  is a known person.  I am of  the  considered<\/p>\n
view  that  the  evidence of PWs 1 to  3  is   partisan  and<\/p>\n
unacceptable.     The  precedent relied on  by  the  learned<\/p>\n
counsel for the appellant is equally applicable to the  case<\/p>\n
on hand.  In such circumstances, I do not find any reason to<\/p>\n
sustain  the  conviction of the appellant-A1 and  therefore,<\/p>\n
the conviction and sentence passed against the appellant  is<\/p>\n
set  aside and the appellant-A1 is not found guilty  of  the<\/p>\n
offences  charged and accordingly, he is acquitted   of  the<\/p>\n
offences charged.  Accordingly, the appeal is allowed.   The<\/p>\n
bail  bonds  of  the appellant shall stand discharged.   The<\/p>\n
fine  amount,  if  any, paid by the appellant\/A.1  shall  be<\/p>\n
refunded to him.\n<\/p>\n
raa<\/p>\n
To<\/p>\n
II Additional Sessions Judge,
\nPondicherry.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court V.K.Rakesh vs State Rep. on 3 January, 2007 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-50824","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nV.K.Rakesh vs State Rep. on 3 January, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/v-k-rakesh-vs-state-rep-on-3-january-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"V.K.Rakesh vs State Rep. on 3 January, 2007 - 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