{"id":76709,"date":"2006-11-09T00:00:00","date_gmt":"2006-11-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bose-vs-state-through-the-on-9-november-2006"},"modified":"2015-11-03T12:27:51","modified_gmt":"2015-11-03T06:57:51","slug":"bose-vs-state-through-the-on-9-november-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bose-vs-state-through-the-on-9-november-2006","title":{"rendered":"Bose vs State Through The on 9 November, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
Bose vs State Through The on 9 November, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\n\nDATED : 09\/11\/2006\n\n\nCORAM:\n\nTHE HONOURABLE MR.JUSTICE S.R.SINGHARAVELU\nand\nTHE HONOURABLE MR.JUSTICE K.N.BASHA\n\n\nCriminal Appeal Nos.572 of 2004,\nCriminal Appeal Nos.572 of 2004, 578 and 940 of 2004\nand Criminal Appeal (MD) No.111 of 2004\n\n\nBose\t\t\t...\t\tAppellant in C.A.No.572 of 2004\n\t\t\t\t\tAccused No.5\n\nMari\t\t\t...\t\tAppellant in C.A.No.578 of 2004\n\t\t\t\t\tAccused No.6\n\nMurugan\nRamalingam\nKamaraj\nMurugan alias Kotti Murugan\t... \tAppellants in C.A.No.940\/2004\n\t\t\t\t\tAccused Nos.1, 3, 4 & 7\n\nManilu alias Malin\t\t...\tAppellant in C.A.(MD) No.\n\t\t\t\t\t111 of 2004\/Accused No.2\n\n\nvs.\n\n\n$State through the\nInspector of Police of Police,\nTheppakulam  Police Station,\nMadurai District.\n(Crime No.512 of 2001)\t\t... \tRespondent in all the appeals\n\t\t\t\t\tComplainant\n\n\t\t\t\t\t\t\t\t\nPrayer\n\nCriminal Appeals against the common judgment dated 24.03.20a04 in\nS.C.No.220 of 2002 on the file of the Additional District and Sessions Court,\nFast Track Court No.III, Madurai.\n\n\n!For Appellant in \t\t ...\tMr.Gopalakrishna\nC.A.No.572 of 2004 (A-5)       \t\tLakshmana Raju\n\n\n^For Appellant in \t\t ...\tMr.S.U.Kanagarajan\nC.A.No.578 of 2004 (A-6)\n\nFor Appellants in\t\t ...\tMr.P.Ezhilnilavan\nC.A.No.940 of 2004\n(A-1 and A-3)\t\t\t\n\nFor Appellants in\t\t ...\tMr.S.Ashok Kumar,\nC.A.No.940 of 2004\t\t\tSenior Counsel for\n(A-4 and A-7)\t\t\t     \tM\/s.A.K.Ramasamy\n\t\t\t\t\tand R.Manoharan\n\nFor Appellant in\t\t ...\tMr.T.Lajapathi Roy\nC.A.(MD) No.111 of 2004\t\n(A-2)\n\n\nFor respondent\tin all the \t ...\tMr.A.Balaguru\nAppeals\t\t\t        Addl. Public Prosecutor\n\n\n:COMMON JUDGMENT\n\n\nK.N.BASHA, J.\n<\/pre>\n
\t\tThe above appeals arising out of the common judgment passed by the
\nlearned Additional District and Sessions Judge, Fast Track Court No.III,
\nMadurai, in S.C.No.220 of 2002 dated 24.03.2004.  The appellants who have
\nsuffered conviction and sentence have come forward with these appeals
\nchallenging their conviction and sentence convicting each of them under Section
\n302 I.P.C. and sentencing each of them to life imprisonment and to pay a fine of
\nRs.500\/-, in default, to undergo 6 months rigorous imprisonment and convicting
\neach of them under Section 148 I.P.C. and sentencing them to undergo 6 months
\nrigorous imprisonment and convicting each of them under Section 506 (ii) I.P.C.
\nand sentencing them to one year rigorous imprisonment and all the sentences
\nordered to run concurrently.\n<\/p>\n
\t\t2. The facts of the case, as projected by the prosecution, are as
\nfollows :\n<\/p>\n
\t\t(i) One Perumal is the deceased.  PWs.1 and 2 are the son and son-
\nin-law of the deceased.  PW.3 is his wife. Most of the accused have been working
\nas Scavengers in Madurai Corporation.  The deceased is said to be a money lender
\nand it is claimed by the prosecution that he has advanced loan to the accused.
\nIt is stated by PW.3, wife of the deceased that on 11.06.2001, the deceased
\ncalled her for getting the repayment of loan from Bose (A-5). Both the deceased
\nand PW.3 went to one Sugar Cane Factory. There they met A-5 which resulted in a
\nwordy quarrel between the deceased and A-5.  The deceased and PW.3 frightened
\nand returned home.\n<\/p>\n
\t\t(ii) On the fateful day of occurrence, i.e. on 12.06.2001 at 7.00
\na.m. while PW.3 was chatting in the opposite house, A-1 came to the house of the
\ndeceased and took the deceased in his cycle.  PW.3 enquired PW.1, her son, as to
\nwhat purpose A-1 is taking the deceased.  PW.1 informed that the deceased
\ninformed him that he has to receive the dues from the persons working in the
\nSewage Water Pumping Station (for short “pumping station”) at KeelasanthaiPettai
\nand therefore  he is going along  with A-1 as a pillion rider while A-1 was
\npeddling the cycle.  PW.3 stated to PW.1 and PW.2 that even on the previous day
\nthere was a quarrel and therefore requested both PWs.1 and 2 to go and bring
\nback the deceased.\n<\/p>\n
\t\t(iii) PWs.1 and 2 left the house in a motor cycle to
\nKeelasanthaiPettai Pumping Station and reached the Pumping Station at 7.15 a.m.
\nWhile PWs.1 and 2 went inside the pumping station they found A-1 stabbing the
\ndeceased with a knife on his stomach.  A-2 cut the deceased with a knife on his
\nhead.  A-3 attacked the deceased with a knife on his right fore arm and hip and
\nalso on other parts.  A-4, A-5, A-6 and A-7 cut the deceased with knife
\nrepeatedly.  PWs.1 and 2 raised hue and cry.  The people who were working in the
\nPumping Station rushed to the scene and the accused ran away with weapons by
\nthreatening PWs.1 and 2 and others with dire consequences.  Therefore, PWs.1 and
\n2 went inside and found the deceased lying dead with pool of blood.  PW.2, son-
\nin-law of the deceased requested PW.1 to go to the police station to give a
\nreport and PW.2 was waiting at the scene.\n<\/p>\n
\t\t(iv) PW.1 went to Theppakulam Police Station and gave a written
\nreport at 7.45 a.m. to PW.24, Inspector of Police.  PW.24 on receipt of the same
\nregistered a case in Crime No.512 of 2001 under Sections 147, 148, 341 and 302
\nI.P.C.  Ex.P.17 is the Express First Information Report.\n<\/p>\n
\t\t(v) PW.24 went to the scene of occurrence and prepared the
\nobservation mahazar, Ex.P.18 and Rough Sketch, Ex.P.19 in the presence of PW.6
\nand another.  He held inquest on the dead body of the deceased. Ex.P.20 is the
\ninquest report.  He has sent the body for post-mortem through a Constable.  He
\nrecovered from the scene blood stained earth, M.O.13 and sample earth, M.O.14
\nunder Ex.P.21.  He also examined PWs.1 to 6 and others.\n<\/p>\n
\t\t(vi) PW.23, Head Constable handed over the dead body to the Doctor,
\nPW.11.  The Doctor, PW.11 conducted post-mortem at 1.00 p.m. on 12.06.2001.  He
\nfound the following injuries :\n<\/p>\n
(1)Oblique cut injury on the right side of neck 4 cm below the angle of mandible
\n7 cm X 4 m X cervical bone deep.\n<\/p>\n
(2)Two antero posterior cut injuries on the left parietal area 1 cm and 3 cm
\nlateral to midline each measuring 9 cm X 1 cm X bone deep and 8 cm X 1 cm X bone
\ndeep respectively, separated by 2 cm
\n(3)Two stab injury on the right lateral abdomen, 5 cm below the costal margin,
\none below the other, separated by 1.5 cm each measuring 5 cm X 1.5 cm X entering
\ninto abdominal cavity through which loops of intestine protruding out.
\n(4)Oblique stab wound on front of right side of abdomen, 3 cm medial to wound
\nNos.3, 4.5 cm X 1.5 cm X entering into abdominal vacity through which loops of
\nintestine protruding out.\n<\/p>\n
(5)Oblique stab wound right abdomen in 3.5 cm X 1 cm X 5 cm along with muscle
\nplane.  Direction downwards and backwards ends as a point.
\n(6)Oblique stab wound on the left right lateral abdomen, 5 cm above iliac crest
\n3.5 cm X 1 cm X 4 cm along the muscle plane.  Direction downwards and backwards.\n<\/p>\n
(7)Oblique stab injury on the left side of neck, 4 cm below the angle of
\nmandible, measuring 3.5 cm X 1 cm X 5 cm along the muscle plane.  Direction
\ndownwards and backwards.\n<\/p>\n
(8)Three oblique stab wound on the left side of front of abdomen, 3 cm X 1cm X
\nentering into abdominal cavity each and separated by 3 cm in the front and 6 cm
\nat the outer aspect.\n<\/p>\n
(9)Oblique stab injury below right ear 3.5 cm X 1 cm X 4 cm along the muscle
\nplane.  Direction – downwards and laterally, one end is curved, other end
\npointed, margins regular.\n<\/p>\n
(10)Antero posterior cut injury on the right fronto-tempero-parietal area 13 cm
\nX 1.5 cm X bone deep.\n<\/p>\n
(11)Oblique cut injury mid-occipital area and behind the right ear lobe 6 cm X
\n1.5 cm X bone deep.\n<\/p>\n
(12)Oblique cut injury right occipital area and behind the right ear lobe 6 cm X
\n1.5 cm X bone deep.\n<\/p>\n
(13)Oblique cut injury 4 m x 1 cm X bone deep, 1 cm below and behind right ear
\nlobe.\n<\/p>\n
(14)Oblique cut injury on the right side of chin including the lower lip 5 cm X
\n1 cm X bone deep.\n<\/p>\n
(15)Oblique cut injury on the left cheek, 3 cm in front of left ear, 6 cm X 2 cm
\nx muscle-deep.\n<\/p>\n
(16)Vertically oblique cut injury on the left side of neck and the lower part of
\nleft ear lobule 8 cm X 1 cm X muscle deep and cutting the left ear lobule
\n(17)Oblique cut injury extending from left side of supra-sternal notch to the
\nleft anterior axillary line, measuring 19 cm X 3 cm X bone deep.
\n(18)Oblique cut injury o the inner aspect of right hand 6 cm X 2.5 cm X bone
\ndeep.\n<\/p>\n
(19)Oblique cut injury on the outer aspect of right wrist 5 cm X 3 cm X bone
\ndeep above downwards.\n<\/p>\n
(20)Cut wound on the back of the base of right index finger 2 cm X .5 cm X bone
\ndeep.\n<\/p>\n
(21)Three incised wounds on the front of left chest 1 cm below the middle of
\nleft clavicle each measuring 1.5 cm x .25 cm X skin deep, 1.5 cm X .25 cm X skin
\ndeep and 2 cm X .25 cm X skin deep separated by 1 cm and 1.5 cm.
\n(22)Incised wound on the back of right wrist 2.5 cm X .25 cm  X muscle deep with
\ntailing upwards.\n<\/p>\n
(23)Incised wound on the back of right thumb 5 cm X .25 cm X skin deep with
\ntailing upwards.\n<\/p>\n
(24)Oblique incised wound on the outer aspect of right upper arm 3.5 cm X .25 cm
\nX skin deep with tailing downwards.\n<\/p>\n
(25)Oblique incised wound on the back of right side of abdomen 5 cm X .25 cm X
\nskin deep tailing outwards.\n<\/p>\n
(26)Oblique incised wound at the back of left hand and wrist 5 cm X .25 cm X
\nskin deep.\n<\/p>\n
(27)Oblique incised wound on the front of left side of neck close to midline 2
\ncm X .25 cm X skin deep with tailing outwards.\n<\/p>\n
Ex.P.5 is the Post-Mortem Certificate.  The Doctor, PW.11, is of the opinion
\nthat the deceased would appear to have died of shock and haemorrhage due to
\nexternal injuries 1 to 4 and its corresponding internal injuries and cumulative
\neffects of all the other injuries, 6 to 8 hours prior to post-mortem.\n<\/p>\n
\t\t(vii) PW.24, in continuation of his investigation, arrested A-1 on
\n12.06.2001, in pursuance of his admissible portion of the confessional statement
\nhe recovered knife, M.O.2.  He remanded A-1 to judicial custody.  He arrested A-
\n5 near Madurai Corporation Office and in pursuance of his admissible portion of
\nconfessional statement, he recovered aruval, M.O.1.  He remanded A-5 for
\njudicial custody.  On 13.06.2001, he examined the constable who has taken the
\nFirst Information Report and the body for post-mortem and also examined the
\nDoctor who has conducted post-mortem and recorded their statements.  He
\nrecovered M.O.9, yellow colour towel, Shirt, M.O.10, Trouser, MO.11 and M.O.12,
\nfrom the body of the deceased.  On 14.06.2001, A-2 and A-4 surrendered before
\nthe Magistrate Court.  On 18.06.2001, A-3 surrendered before the Magistrate
\nCourt.  On 18.06.2001 remanded A-2 and A-4 for police custody and on 23.08.2001
\nhe has taken them under police custody and in pursuance of the admissible
\nportion of the confessional statement, he recovered the knives, MOs.3 to 5 and
\nthereafter he remanded them for judicial custody.\n<\/p>\n
\t\t(viii) On 05.09.2001, he arrested A-6 and in pursuance of his
\nadmissible portion of the confessional statement recovered two knives, MOs.6 and
\n7 and thereafter remanded him for judicial custody. On 11.09.2001 he has given a
\nrequisition, Ex.P.15, for conducting Identification parade.  On 14.09.2001, The
\nJudicial Magistrate No.III, Madurai, P.W.21, conducted identification parade at
\nthe Central Prison.  Again, he examined PWs.1 and 2.  He also examined the
\nJudicial Magistrate.  He received the report of the identification parade,
\nEx.P.14 on 03.10.2001.  After examining some more witnesses he sent the material
\nobjects to the Judicial Magistrate with a requisition to send the same for
\nchemical examination under Ex.P.22 and Ex.P.23.  He received the Chemical
\nExamination Report, ExP.24 and Serologist Report, Ex.P.25 and also the Post-
\nMortem Certificate, Ex.P.5.  After completing the investigation in this case
\nagainst all the accused, PW.24 filed charge sheet under Sections 147, 148, 324,
\n341 and 302 r\/w 149 I.P.C.\n<\/p>\n
\t\t3. The prosecution in order to bring home the charges against the
\naccused examined PWs.1 to 24, filed Exs.P.1 to P.25 and marked M.Os.1 to 14.\n<\/p>\n
\t\t4. The accused were questioned under Section 313 of the Code of
\nCriminal Procedure in respect of the incriminating circumstances appearing
\nagainst them through the evidence adduced by the prosecution.  All the accused
\ndenied each and every incriminating circumstances and they said that they have
\nbeen falsely implicated in this case.  They have also marked Exs.D.1 to D.4 to
\nsubstantiate their case to the effect that some of the accused were working at
\nthe time of the occurrence in their office.\n<\/p>\n
\t\t5. Mr.S. Ashok Kumar, learned Senior Counsel appearing for  A-4 and
\nA-7, the appellants in Crl.A.No.940 of 2004, contended that the prosecution case
\nis suffering from infirmities and inconsistencies and the prosecution miserably
\nfailed to prove its case against the accused.  The learned Senior counsel taken
\nus meticulously through the materials available on record and made the following
\nsubmissions :\n<\/p>\n
(1)The motive alleged by the prosecution is totally false.  PW.3, wife of the
\ndeceased, stated that there was a quarrel between the deceased and A-5 a day
\nprior to the occurrence in respect of the demand of the dues to the deceased.
\nIt is also the prosecution case that only while the deceased went to pumping
\nstation to getting the repayment of loans, the occurrence is said to have taken
\nplace. But PW.24, Investigating Officer, categorically stated that A-5 has not
\nreceived any loan from the deceased and further his investigation revealed that
\nthe deceased was not a money-lender.\n<\/p>\n
(2)The First Information Report in this case is surrounded by suspicious
\ncircumstances.  The case of PW.1 is that he along with P.W.2 left the house by
\nmotor bike and they witnessed the occurrence at the pumping station at 7.15 a.m.
\nand there he was requested by PW.2 to give a report to the police. The report,
\nEx.P.1 was given to PW.24 at 7.45 a.m. PW.1 has given a written report.  PW.1
\nfurther stated that he has narrated about the occurrence to the Inspector of
\nPolice (P.W.24) and he has not aware whether the Inspector reduced the same into
\nwriting.  He further stated that he has written the report in the police
\nstation, whereas PW.24 stated that PW.1 handed over a written report.  The First
\nInformation Report was handed over to the Head Constable, PW.12, at 8.00 a.m.
\nand the same reached the Magistrate Court at 1.00 p.m. on 12.06.2001.  PW.22
\nadmitted that it would take only half an hour to reach the Magistrate Court.
\nTherefore, it is very clear that PW.22 could not have received the First
\nInformation Report at 8.00 a.m. and the First Information Report must have been
\nprepared belatedly after due concoction.  There is also corrections and
\nInterpolations in the First Information Report.\n<\/p>\n
(3)Pws.1 and 2 could not have witnessed the occurrence. The claim of PW.1 that
\nhe was witnessing the attack on the deceased for 10 minutes is highly
\nartificial.  In Ex.P.1, the report, given by him has not stated that he along
\nwith PW.2 went and saw the deceased lying dead. PW.1 also admitted that he has
\nnot spoken to anyone in the pumping station except PW.2.  PW.1 also not stated
\nat what time PW.3 asked him to go and see his father, the deceased.  PW.2
\nadmitted that he has informed about the occurrence first time only to the
\npolice.  He has not asked PW.1 to take the motor bike to give the report.  PW.2
\nalso stated that all the accused attacked the deceased at the same time and
\ntherefore, it is impossible to state the overt act against each and every
\naccused.\n<\/p>\n
(4)The evidence of PW.3 also unacceptable and unbelievable.  PW.3, in spite of
\nclaiming that there was a quarrel between the deceased and A-5 on the previous
\nday, not prevented the deceased from going along with A-1.  PW.3 further stated
\nthat PW.2 informed her that A-1 to A-3 and two unidentified persons cut the
\ndeceased and ran away.\n<\/p>\n
(5)P.W.24 admitted in his cross-examination that he has not mentioned in the
\ninquest report that Pws.1 and 2 are eye-witnesses.\n<\/p>\n
(6)The identification parade was conducted on 16.09.2001 by P.W.21, i.e. three
\nmonths after the occurrence.  PW.1 categorically admitted that he has seen all
\nthe accused earlier and he has seen A-6 earlier to the occurrence while he was
\ndoing scavenger work in his Ward.  Further, PW.1 admitted that he has also seen
\nA-6 talking with his father, the deceased.  PW.1 also admitted that he has seen
\nA-7 for three four times while he was working at the pumping station.  It is
\nalso specifically admitted by PW.1 that he has not stated anything about A-7
\ntill the identification parade. Therefore, no value could be attached to the
\nidentification parade.\n<\/p>\n
(7)PW.1 categorically admitted in his cross-examination that after the
\noccurrence there was picketing for one hour after the occurrence to ascertain
\nthe assailants and therefore the assailants were unknown to PWs.1 and 2.\n<\/p>\n
(8)PW.23, Head Constable, admitted that at 7.00 a.m. there was picketing and he
\nwas present along with the Inspector and other police officials.  The picketing
\nwas going on from 7.00 a.m. to 2.00 p.m.  It is also admitted by PW.23 that
\nPhotographer also taken photographs of blood stained pamphlets near the body of
\nthe deceased.  PW.24, the Investigating Officer, admitted that he went to the
\nscene of occurrence at 7.15 a.m. and there was a picketing in respect of this
\ncase.  He also found the pamphlets at the scene.  The Hand-writing experts also
\ncame there and taken the pamphlets and gave the same to him but he has not sent
\nthose pamphlets to the Court.  Therefore, it is clear that the assailants were
\nnot known to the police for a long time and the present accused persons have
\nbeen implicated falsely. This aspect also assumes importance in view of the
\ndelay in First Information Report reaching the Court and that the occurrence
\ncould not have been taken place in the manner as alleged by the prosecution.
\nTherefore, the entire case surrounded by suspicious circumstances.\n<\/p>\n
\t\t6. Mr.Gopalakrishna Lakshmana Raju, learned counsel appearing for A-
\n5\/appellant in Crl.A.No.572 of 2004, Mr.S.Kanagarajan, learned counsel appearing
\nfor A-6\/ Appellant in Crl.A.No.578 of 2004, Mr.P.Eshilnilavan, learned counsel
\nappearing for A-1 and A-3\/Appellants in Crl.A.No.940 of 2004 and Mr.T.Lajapathi
\nRoy, learned counsel appearing for A-2\/Appellant in Crl.A.111 of 2004, while
\nadopting the arguments of Mr.S. Ashok Kumar, learned Senior counsel, submitted
\nsome more points.  It is contended by them that on the date of occurrence the
\naccused were working in their respective office.  It is pointed out by them that
\nPW.19, Sanitary Inspector, stated that A-6 was working from 11.06.2001 to
\n04.09.2001 and the Attendance Register is marked as Ex.D.1  PW.20, the Health
\nInspector, stated that on 12.06.2001 at 6.30 a.m., A-5 came for his work.  It is
\nfurther pointed out by the learned counsel that PW.24, the Investigating
\nOfficer, has not produced the attendance Register and Muster Roll as the same is
\nagainst the prosecution case.  It is further submitted by the learned counsel
\nfor the Appellants that PW.7, though, turned hostile has clearly stated that on
\nhearing the hue and cry, he found one person lying with blood stained injuries
\nafter reaching the scene and thereafter he gave the telephonic message to the
\npolice at 7.10. a.m. itself.  Therefore, the prosecution has suppressed the
\nearliest report.\n<\/p>\n
\t\t7. Per contra, the learned Additional Public Prosecutor contended
\nthat the prosecution has come forward with a clear and cogent version.  It is
\nalso submitted that the evidence of Pws.1 and 2, eye-witnesses, are quite
\nnatural and there are no infirmities in their evidence.  It is further submitted
\nthat the evidence of Pws.1 and 2, eye-witnesses, is also corroborated by the
\nmedical evidence.  The learned Additional Public Prosecutor further contended
\nthat though there are some lapses on the part of the investigation, on that
\nscore the entire prosecution case cannot be rejected.  It is also pointed out by
\nthe learned Additional Public Prosecutor that inconsistencies found in the
\nevidence of Pws.1 to 3 not affected the main case of the prosecution.  The
\nlearned Additional Public Prosecutor further contended that there is no delay in
\ngiving the report to the police as the occurrence said to have taken place at
\n7.15 a.m. and the report was given at 7.45 a.m.  The learned Additional Public
\nProsecutor lastly contended that the involvement of the accused also proved by
\nthe recovery of weapons in pursuance of their admissible portion of the
\nconfession.\n<\/p>\n
\t\t8. We have given our careful and thoughtful consideration to the
\nrival contentions made by both sides.\n<\/p>\n
\t\t9. The prosecution heavily placed reliance on the evidence of Pws.1
\nand 2, eye-witnesses, in this case.  PW.3, wife of the deceased, has spoken
\nabout the motive for the occurrence.  The fact remains all these witnesses,
\nPws.1 to 3 are closely related to the deceased as they are the son, son-in-law
\nand wife of the deceased and therefore they are interested witnesses.  Such
\nbeing the position, this Court has to scrutinize their evidence with great care
\nand caution.\n<\/p>\n
\t\t10. The motive part of the prosecution was mainly spoken by PW.3,
\nwho is the wife of the deceased.  PW.3 stated that a day prior to the date of
\noccurrence, i.e., on 11.06.2001, the deceased called her that he has to get the
\nrepayment of loans given to A-5 and thereafter they went to the sugar cane
\nfactory and demanded A-5 to pay the dues which resulted in wordy quarrel between
\nthe deceased and A-5.  The deceased and PW.3 frightened and returned to their
\nhouse.\n<\/p>\n
\t\t11. It is further claimed by PW.3 that on the date of occurrence
\ni.e. on 12.06.2001 at 7.00 a.m., she was chatting in the opposite house and at
\nthat time A-1 came to her house and took the deceased and she asked her son,
\nPW.1, the reason for A-1 taking the deceased in his cycle, PW.1 said to have
\nreplied that the deceased was going along with A-1 for getting the repayment of
\nloan at pumping station and thereafter PW.3 stated that even on the previous day
\nthere was a quarrel and therefore, she was having fear and requested Pws.1 and 2
\nto go and bring back the deceased immediately.  It is the case of the
\nprosecution that only thereafter Pws.1 and 2 left for pumping station in a motor
\nbike.  This version of PW.3 is falsified by the evidence of PW.24, Investigating
\nOfficer, in this case.  PW.24 categorically admitted in his cross-examination
\nthat his investigation not disclosed that A-5 received any loan from the
\ndeceased.  It is further admitted by PW.24 that his investigation also not
\nrevealed that the deceased was doing money lending business and no records were
\nseized on that aspect.  Added to these versions, it is also pertinent to be
\nnoted that PW.3 during her examination by the police has not stated that on the
\ndate of occurrence she saw the first accused taking the deceased in his cycle
\nand enquired about the reason from PW.1 and after PW.1 informing that the
\ndeceased was going to receive the repayment at pumping station and further she
\nhas stated to PW.1 that she was having fear and directed Pws.1 and 2 to bring
\nback the deceased immediately.  This vital infirmity in the evidence of PW.3
\ncoupled with the evidence of PW.24 not only falsified the motive put forward by
\nthe prosecution but also the reason for Pws.1 and 2, to leave the house in the
\nmotor bike and to go to the pumping station to bring back the deceased and
\nthereafter alleged to have witnessed the occurrence.\n<\/p>\n
\t\t12. The above contradictions elicited from PW.3 and PW.24, the
\nInvestigating Officer, make it crystal clear that PW.3 has come forward with a
\nversion of informing Pws.1 and 2 that she is having fear and thereafter
\nrequesting them to go and fetch the deceased immediately only for the first time
\nbefore the Court.  These infirmities raise serious doubt about Pws.1 and 2 going
\nto the pumping station and thereafter witnessing the alleged occurrence.\n<\/p>\n
\t\t13. Now, let us consider the evidence of the eye-witnesses, Pws.1
\nand 2.  PW.1 is a school student aged about 19 years at the time of giving the
\nevidence and he must be aged about 17 years at the time of the occurrence as his
\nevidence was recorded on 05.11.2003.  PW.2, who is the son-in-law of the
\ndeceased is a responsible person comparing to PW.1.  The version of PW.2 that
\nafter the occurrence he asked PW.1 to go to the police station and to give a
\nreport is itself raises serious doubt.\n<\/p>\n
\t\t14. PW.1 claimed that he gave a written report to PW.24 under
\nEx.P.1.  It is highly unbelievable that PW.1 who is not a matured person to give
\na written report to the police as he was only a school student at that time and
\nfurther if he has witnessed the occurrence he would be in shock and tension
\nafter seeing the attack on his father.  PW.24 also stated in his chief
\nexamination that PW.1 has given a written report, Ex.P.1.  He further admitted
\nin his cross-examination that the report, Ex.P.1, was brought by P.W.1 to the
\npolice station.  On the other hand, PW.1 claimed in his cross-examination that
\nhe has written the report only at the police station.  There is further
\ncontradiction in the evidence of PW.1 that PW.1 also stated in the cross that he
\nhas narrated the occurrence to PW.24 and he was not remembering whether PW.24,
\nInspector of Police recorded the same or not.  It is claimed by PW.1 in his
\ncross that PW.24, Inspector of Police, only gave a paper for writing the report.
\nApart from these suspicious circumstances regarding the report, Ex.P.1,  there
\nare also corrections and interpolations found in Ex.P.1, report as admitted by
\nPW.1.  PW.1 further admitted that Hand-writing between Ex.P.1, report and his
\nsignature in the Identification Parade report also varied.\n<\/p>\n
 \t\t15. PW.24, Investigating Officer also admitted about the corrections
\nmade in the report, Ex.P.1.  In Ex.P.1, it is also not stated by PW.1 that he
\nwas asked by PW.2 to give a report to the police.  Added to these infirmities,
\nit is found in Ex.P.1 that place of residence of A-3 and A-4 also mentioned but
\nP.W.1 has admitted in his cross that he was not aware about the father’s name of
\nA-3 and A-4 and their place of residence.  PW.1 claimed that he knows all the
\naccused even prior to the date of occurrence, but he has not mentioned the names
\nof A-6 and A-7 and their overt acts.  It is further relevant to note that PW.1
\nhas seen A-6 while he was working in his Ward and also seen A-6 talking with his
\nfather, the deceased.  PW.1 also admitted in cross that he has seen A-7 three or
\nfour times and he has also aware A-7 was working in the pumping station and he
\nhas also aware about their identification.  But the fact remains as already
\nstated, PW.1 not only written the names of A-6 and A-7 but also not given the
\ndescription of identification of A-6 and A-7 in Ex.P.1.  Therefore, there is
\nserious doubt about the genuineness of the report, Ex.P.1, rendering the entire
\nprosecution case as highly doubtful and raises serious doubt about the
\ncredibility of the evidence of the eye-witnesses Pws.1 and 2.\n<\/p>\n
\t\t16. PW.1 or PW.2 not lifted the deceased after the occurrence.  PW.1
\nstrangely not requested PW.2 to accompany with him to give the report.  If the
\nversion of Pws.1 and 2 is true that both of them have been threatened by the
\naccused, it is inherently impossible for PW.1 to go to the police station alone.
\nThe conduct of PW.1 also unnatural and unbelievable that soon after the
\noccurrence he has not thought it fit to go and inform about the occurrence to
\nhis mother.  Though PW.1 claimed in his evidence that one of the accused cut the
\ndeceased with aruval, he has not mentioned in the report, Ex.P.1 about the
\naccused using the aruval at the time of occurrence.  Added to all these
\ninfirmities, it is admitted by PW.1 in his cross-examination that he used to go
\nto school at 6.30 a.m. itself but PW.1 claimed that on the date of occurrence he
\nhas not attended the school as it happened to be a holiday.  PW.24 admitted in
\nhis cross-examination that he has not enquired whether PW.1 was studying in the
\nschool and whether the school was functioning on the date of occurrence.
\nTherefore there is serious doubt about the presence of PW.1 at the time of
\noccurrence.\n<\/p>\n
\t\t17. The evidence of P.W.2, yet another eye-witness also surrounded
\nby suspicious circumstances, as already stated. PW.2, being a responsible
\nperson, as he has admitted that he was sent by his mother-in-law, PW.3, along
\nwith PW.1 only to fetch the deceased as P.W.3 expressed fear.  But curiously
\nafter the occurrence neither he went to the police to give a report nor went to
\nthe house to inform about the occurrence to PW.3, his mother-in-law.  His
\nconduct of not going to the police station immediately after the occurrence
\nraises serious doubt about his presence in the scene of occurrence.  It is
\nfurther relevant to note that he was also threatened by the accused with dire
\nconsequences.   But strangely it is stated by him that he was remaining at the
\nscene after the occurrence.  PW.2 has not stated during his examination by the
\npolice that he was threatened by the accused.  The conduct of PW.2 by not
\ninforming anyone about the occurrence till he was examined by the police also
\nthrows considerable doubt about the veracity of his version.  PW.2 further
\nadmitted in his cross that he has parked the motor cycle outside the pumping
\nstation gate and the place of occurrence was not visible from that place.  It is
\nalso claimed by PW.2 that they went inside only for 5 feet and they have not
\nproceeded further as all the accused were armed with weapons.  It is further
\nadmitted by PW.2 that even at that time he has not called the people outside
\nthough the occurrence took place 6 to 7 minutes and as they raised hue and cry
\nnearly 10 persons gathered at the scene and he has not able to state what
\nhappened to that 10 persons after the occurrence.  It is also admitted by P.W.2
\nthat he has not informed PW.1 after giving the report to go and inform his
\nmother-in-law, PW.3. Added to these admissions, it is categorically admitted by
\nPW.2 that all the accused attacked the deceased at the same time.  If such being
\nthe position, it is impossible and improbable for PW.2 to state the specific
\novert act against each of the accused.\n<\/p>\n
\t\t18. There is variations regarding the scene of occurrence between
\nthe evidence of PWs.1 and 2.  The materials available on records disclosed that
\nthere are 5 wells in the pumping station.  PW.1 stated that the occurrence took
\nplace near the back side well of the pumping station whereas PW.2 admitted in
\nhis cross-examination that the occurrence took place on the left side of the
\nfirst well of the pumping station.  But the fact remains even PW.2 stated to the
\npolice during his examination that the occurrence said to have taken place on
\nthe back side well of the pumping station.  If the version of PWs.1 and 2 is
\ntaken, as per their earlier statement, that the occurrence is taken place on the
\nback side of the pumping station, the undisputed fact remains that both PWs.1
\nand 2 could not have witnessed the occurrence as it is categorically admitted by
\nPW.2 that he has parked the motor bike outside the gate and they went inside
\nonly for 5 feet.  A perusal of observation mahazar, Ex.P.18, also shows that the
\nbody of the deceased was found 60 feet away from the main gate on the left hand
\nside of the well.  A perusal of the rough sketch, Ex.P.19, shows that the
\nInvestigating Officer, PW.24, has not noted about the blood stains found on the
\nfloor.  Therefore, there are contradictory versions in the evidence of P.Ws1.
\nand 2 even regarding the exact place of occurrence rendering their evidence
\nunbelievable and unacceptable.\n<\/p>\n
\t\t19. PW.2 also not stated to the police that he went to the scene of
\noccurrence in a motor cycle and soon after reaching the scene he has witnessed
\nthe occurrence.  PW.2 further admitted that he is aware that A-7 was working in
\nthe pumping station but he has not stated so before the police during his
\nexamination.  Therefore we have no hesitation to hold that PWs.1 and 2 are
\nunreliable and untrustworthy witnesses as their evidence not at all inspires the
\nconfidence of this Court.\n<\/p>\n
\t\t20. The Identification Parade conducted in this case also not
\nhelpful to advance the case of the prosecution.  The occurrence is said to have
\ntaken place on 12.06.2001 and the identification parade was conducted only on
\n16.09.2001 nearly three months after the occurrence.  Added to this, the purpose
\nof conducting identification parade is to identify A-6 and A-7 and in view of
\nthe admitted version both PWs.1 and 2 that they knew A-6 and A-7 even before the
\noccurrence and as such no value could be attached to the identification parade
\nand the same is a futile exercise.\n<\/p>\n
\t\t21. The yet another infirmity in the case of the prosecution is that
\nmost of the accused were admittedly working at their work spot on the fateful
\nday of occurrence.  It is stated by PW.19, Sanitary Inspector, that A-6 was
\nworking from 11.06.2001 to 04.09.2001 and the Attendance register and muster
\nroll is marked as Ex.D.1, to show that A-6 was working at the time of the
\noccurrence.\tPW.20, Health Inspector, also stated that A-5 was working at the
\npumping station at 6.30 a.m. on 12.06.2001.  PW.24 also admitted that he has
\nfound that  A-5 was working on the date of occurrence from 6.00 a.m. as per the
\nattendance register.  But he has not recovered the attendance register and as
\nsuch this Court has to draw adverse inference against the case of the
\nprosecution for withholding the material documents under Section 114 (g) of the
\nIndian Evidence Act.\n<\/p>\n
\t\t22. The yet another distributing feature in this case is that
\nadmittedly there was a picketing soon after the occurrence with a demand to find
\nout the assailants.  P.W.1 categorically admitted in his cross-examination that
\nhe has found pamphlets at the scene.  PW.23, Head Constable, categorically
\nstated in his cross-examination that there was a picketing from 7.00 a.m. to
\n2.00 p.m. on the date of occurrence in respect of this case.  It is also
\nadmitted by him that photographers came and took the photographs of the body of
\nthe deceased and bloodstained pamphlets. PW.24, the Investigating Officer, also
\nadmitted in his cross-examination that the police might have received the
\ntelephonic message at 7.15 a.m. itself and there was a picketing in respect of
\nthis case.  PW.24, also admitted that while he went to the scene of occurrence
\nhe found the pamphlets and the Hand-writing experts were also present at the
\nscene.  PW.24 also went to the extent of admitting that he has even furnished
\nwith the pamphlets and other materials in respect of the occurrence.  But he has
\nnot send the same to the Court.  Coupled with these admitted facts, the delay in
\nthe First Information Report reaching the Magistrate Court raises a very serious
\ndoubt about the genesis and origin of the occurrence.  Therefore, it is crystal
\nclear that the prosecution has not come forward with a true version.\n<\/p>\n
\t\t23. Therefore, in view of the above said infirmities,
\ninconsistencies and improbabilities found in the prosecution case and on the
\nreasons stated above, the appeals are allowed.  The conviction and sentence
\nimposed on the appellants by the learned Additional District and Sessions Judge
\n(Fast Track Court No.III), Madurai, are set aside.  Fine amount paid, if any, is
\ndirected to be refunded.\n<\/p>\n
gg<\/p>\n
To<\/p>\n
1)The Additional District and Sessions Judge, Madurai.\n<\/p>\n
2) – Do – thro’ The Principal Sessions Judge, Madurai.\n<\/p>\n
3)The Superintendent, Central Prison,<\/p>\n
4)The District Collector, Madurai.\n<\/p>\n
5)The Director General of Police, Chennai -4.\n<\/p>\n
6)The Inspector of Police, Theppakulam Police Station,
\nMadurai.\n<\/p>\n
7)The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Bose vs State Through The on 9 November, 2006 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 09\/11\/2006 CORAM: THE HONOURABLE MR.JUSTICE S.R.SINGHARAVELU and THE HONOURABLE MR.JUSTICE K.N.BASHA Criminal Appeal Nos.572 of 2004, Criminal Appeal Nos.572 of 2004, 578 and 940 of 2004 and Criminal Appeal (MD) No.111 of 2004 […]<\/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-76709","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nBose vs State Through The on 9 November, 2006 - 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\/bose-vs-state-through-the-on-9-november-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bose vs State Through The on 9 November, 2006 - 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