Mani v. The State

sessions case. All of them stood charged for committing an offencepunishable under Section 302 IPC r/w section 34 IPC, found guiltyof and convicted for the offence with which they stood charged andsentenced to undergo life imprisonment besides payment of a sum ofRs.1,00,000/- as fine by each one of them. Challenging thejudgment of the trial court dated 28.10.2009 in respect of theconviction recorded as well as the sentence, they have come forwardwith the present appeals.2. The summary of the prosecution case, in brief, ascould be ascertained from the oral and documentary evidence adducedon the side of the prosecution is as follows:-i) P.W.1-Arumugam, P.W.2-Kaliappan and P.W.3-Chinnaponnuare respectively the father, brother and mother of deceasedKalaiarasan @ Raja. P.W.7 - Panner @ Pannerselvam was a friend ofthe deceased Kalaiarasan @ Raja and at the relevant period he wasemployed as a maesthry (Supervisor) in Sambandam Siva Spinning Millat Atthanurpatti. The deceased who went out of the house on31.08.2008 did not return home till late night. P.W.5-Easwaran wasemployed as a cleaner in a bus belonging to Sambandam Siva SpinningMill. He saw the deceased Kalaiarasan @ Raja at about 2.00 a.m on01.09.2008 making enquiries with the watchman Mani and Shanmugam(A1 and A2) as to whether his friend Panneerselvam was available inthe mill and the accused 1 and 2 replying in the negative. Thedeceased Kalaiarasan @ Raja, who left the said place, came againafter loitering here and there for about an hour and abused A1 andA2 in filthy language and at that point of time, A3 - Chinnappanalso came to that place. As the act of abusing on the part of thedeceased became intolerable, all the three accused hit him withhands. The deceased was found intoxicated at that point of timeand hence on being attacked by accused 1 to 3, he fell down on theground. Thereafter, the accused 1 to 3 dragged him to a place nearMicro bus stop and left him at that place. P.W.6-Rajasekaran alsosaw the deceased lying outside the mill gate and groaning. Onenquiry he was informed by A1 and A2 that the deceased wanted toknow from them whether Pannerselvam was in the Mill to which theyreplied in the negative and informed him that his shift was overand he had gone home; that pursuant to the said reply the deceasedquarrelled with them and that hence the accused 1 and 2 attackedthe decased. ii) Meanwhile, at about 2.30 a.m on 01.09.2008, P.W.7-Panneerselvam received a phone call from A1-Mani and was informedthat the deceased Kalairasan @ Raja came to the Mill in search ofP.W.7 and quarrelled with A1 when he informed the deceased thatP.W.7-Panneerselvam had left the mill. Pannerselvam, in turninformed P.W.2-Kaliappan and P.W.3-Chinnaponnu over phone and thenP.W.3-Chinnaponnu in person. The said information was passed on byP.W.3 to her husband (P.W.1) when he returned home at 04.00 a.m on01.09.2008, who had gone to the field for irrigating it. P.W.1 wentin search of the deceased Kalaiarasan @ Raja and at 5.00 a.m hefound the dead body of the deceased lying with bleeding injuries ata distance of about 50 feet on the west from the gate of Sambandam https://hcservices.ecourts.gov.in/hcservices/ Siva Spinning Mill. Immediately he informed P.W.2, P.W.3 and P.W.7over phone, pursuant to which all of them, along with otherrelatives of P.W.1, came to the place wherein the dead body of thedeceased was found lying. P.W.1 and P.W.7 - Panneerselvam also metP.W.5 - Easwaran at about 6.30 a.m, whereupon P.W.5-Easwaraninformed them of what he saw. Thereafter, P.W.1 went to Vazhapadipolice station and lodged Ex.P1 - complaint. iii) Based on the said complaint, Ex.P8 - firstinformation report was prepared and a case was registered asCr.No.771/2008 by P.W.15 - Thangavel, Inspector of police underSection 174 of Cr.P.C and he himself took up the case forinvestigation. P.W.15 visited the place of occurrence and preparedEx.P2 - Observation Mahazar and Ex.P9 - Rough sketch in thepresence of the witnesses P.W.4 - Dhanapal and Pachakutti Raja. Inthe presence of panchayatdars, P.W.15 conducted inquest andprepared Ex.P10-inquest report. After completing the inquest, thebody was sent to the hospital for autopsy through P.W.14-Ramakrishnan, Head Constable along with Ex.P4-requisition letter.P.W.12-Dr.Panneerselvam conducted autopsy and issued Ex.P5-postmortem certificate, wherein he noted as many as fifteenabrasions over various parts of the body and contusion over bothsides of scrotum. P.W.12 incorporated his opinion in Ex.P5 thatthe deceased died of shock and haemorrhage due to multiple injuriessustained by him and the death occurred between 18 to 24 hoursprior to autopsy. On examination of the viscera sent to theForensic Sciences Department, Regional Forensic Science Laboratory,Ex.P13 - Viscera report was sent to the court to the effect that nopoison was detected in the stomach, intestine and its contents,liver and kidney, brain, blood and preservative. Similarly, theblood stained earth and the control earth taken from the scene ofoccurrence under cover of Mahazar-Ex.P3 and the wearing apparelsand the waist cord removed from the dead body at the time ofpostmortem examination (M.Os.1 to 6) were also sent to the forensiclab for chemical examination. The same was examined by P.W.13-Manickam, Scientific Assistant and a report was issued under Ex.P6to the effect that no blood was detected in M.Os.1 to 3, whereasblood stains were detected in M.Os.4 to 6, namely lungi, jatti andthe waist cord. The said blood stains were found to be human bloodbelonging to 'A' group, as per Ex.P7-Serological report. After thereceipt of report of the Medical Officer who conducted autopsy, thecase was altered into one for an offence punishable under Section302 r/w 34 IPC, for which Ex.P11-Alteration report was prepared andsent by the Investigating officer to the Magistrate. During thecourse of investigation, P.W.15 arrested A1-Mani at 2.30 p.m on03.09.2008 and A2 and A3 at 4.30 p.m on the same day and recordedtheir confession statements in the presence of P.W.8-Selvam and oneNatarajan. P.W.10-Venkatachalam and P.W.11-Ponnudurai are thepersons who are employed as watchman and Manager respectively inSambandam Siva Spinning Mill. From the said witnesses also,P.W.15, the Investigating Officer, collected information regardingthe fact that the accused 1 to 3 were the persons who were on nightduty on the date of occurrence. https://hcservices.ecourts.gov.in/hcservices/

3. On completion of investigation, the Inspector ofPolice, Vazhapadi police station (P.W.15), submitted a final reportalleging commission of an offence punishable under Section 302 r/w34 IPC on the part of the appellants herein, who figured as accused1 to 3 in the said case. The learned Judicial Magistrate No.6,Salem took it on file as PRC No.12/2009 and committed the same tothe Principal Sessions Judge, Salem for trial. The same was takenon file as S.C.No.202/2009 by the learned Principal Sessions Judge,Salem and made over to the Additional District and Sessions Judge(Fast Track Court No.1), Salem for disposal according to law. 4. The Additional district and Sessions Judge (Fast TrackCourt No.1), Salem framed a charge against all the three accusedfor the offence punishable under section 302 r/w section 34 IPC.As the accused pleaded not guilty, the trial court conducted trial,in which the prosecution examined fifteen witnesses as P.Ws.1 to 15and marked Ex.P1 to P13 and produced six material objects as M.Os.1to 6 in order to prove the prosecution case. 5. After completion of recording of the evidence adducedon the side of the prosecution, the incriminating materials foundtherein were pointed out to the appellants herein/A1 to A3 and theywere questioned under Section 313(1)(b) of Cr.P.C. regarding suchincriminating materials found in the evidence adduced on the sideof the prosecution. They denied them as false. No witness wasexamined and no document was marked on the side of theaccused/appellants herein.6. The trial court, after considering the evidencebrought before it and also the answers given by the accused intheir examination under Section 313(1)(b) of Cr.P.C in the light ofthe arguments advanced on either side, found all the accused A1 toA3 (appellants herein) guilty of the offence under Section 302 r/wsection 34 IPC with which they stood charged, convicted them forthe said offence and sentenced them as indicated supra. 7. Challenging the conviction and the sentence imposed,the appellants herein have come forward with these appeals onvarious grounds set out in the appeal petitions.8. The submissions made by Mr.AR.L.Sundaresan, learnedsenior counsel representing the counsel on record for appellant inCrl.A.No.761/2009, by Mr.S.Sivakumar, learned counsel for theappellants in Crl.A.No.733 of 2009 and by Mr.M.Babu Muthu Meeran,learned Additional Public Prosecutor representing the State wereheard. The materials available on record were also perused. 9. As rightly pointed out on behalf of the appellants,the case of the prosecution mainly depends on the credibility ofthe evidence of P.W.5, who is projected as the eye witness for thealleged attack on the deceased Kalaiarasan @ Raja made by theappellants (A1 to A3). In addition to P.W.5-Easwaran, P.W.6- https://hcservices.ecourts.gov.in/hcservices/ Rajasekaran, another watchman of Sambandam Siva Spinning Mill inwhich the accused are employed, is also projected to be an eyewitness. But a careful analysis of the testimony of P.W.6 revealsthe evidence adduced through P.W.6 is nothing but hearsay which hasgot to be eschewed as not admissible. The learned AdditionalPublic Prosecutor made a meek attempt to show that the evidence ofP.W.6 shall be admissible as res gestae. P.W.6 in his testimonyhas not stated in clear terms without ambiguity that he witnessedthe act of the accused persons in either attacking the deceased ordragging him to the nearby bus stop after attacking him. In fact hehas not at all stated that he witnessed anybody attacking thedeceased. On the contrary, his evidence is to the effect that whenhe came to the mill gate at about 2.30 a.m on 01.09.2008, he saw aperson lying on the ground in such a posture his back touching theground and face facing upwards and raising noise; that on enquirywith A1 and A2, he was informed that the said person wasKalaiarasan @ Raja of Atthanurpatti; that the deceased came to themill gate and asked whether Panneerselvam was there in the mill;that on hearing the answer in the negative he quarrelled with A1and A2 and that pursuant to the same accused 1 and 2 (Mani andShanmugam) assaulted him. It is his further evidence that hesuggested that the police could be informed but A1 and A2 said thatthe family members were informed and they would come and take himhome. The above said evidence of P.W.6 does not directly implicateany one of the accused as having either assaulted the deceased ordragged him to the nearby bus stop. Therefore, as rightlycontended on behalf of the appellants, the evidence of P.W.6 servesno useful purpose for the proof of the prosecution version that itwere the appellants who caused the injuries to the deceased leadingto his death. It should be pertinent to note that P.W.6 does notspeak about any overt act on the part of, and not even the presenceof A3. Therefore, the evidence of P.W.6 has got to be eschewed asthe same does not implicate any one of the accused. 10. So far as the testimony of P.W.5 is concerned, itscredibility is doubtful in the light of the evidence of P.W.11 -Ponnudurai, who was working as a Manager in Sambandam Siva SpinningMill. Of course P.W.11 was treated hostile by the prosecution andcross-examined on the side of the prosecution. From the cross-examination of P.W.11 by the Public Prosecutor, it is obvious thatP.W.11 was examined only to depose that he heard about theincident. Even the said fact of hearing about the incident andgiving a statement to that effect has been denied by P.W.11. Theonly point on which he was cross-examined by the Public Prosecutoris that he was speaking against the statement given to theInvestigating Officer to the effect that he heard about theoccurrence in which the accused persons, after assaulting thedeceased, dragged him to a place near the Mill on the west and laidhim there. When a witness is sought to be contradicted withreference to his statement recorded under section 161(3) of Cr.P.Cbesides drawing his attention to such a previous statement beforethe same could be proved, such statement should be proved by otherevidence. In this case the prosecution stopped with putting asuggestion to P.W.11 that he had given such a statement and was https://hcservices.ecourts.gov.in/hcservices/ deposing contra to such statement. The prosecution has notproceeded further to prove such a statement through theInvestigating Officer. Under such circumstances, we can't holdthat P.W.11 has been successfully contradicted with reference tohis earlier statement, namely statement recorded under section 161(3) Cr.P.C. Therefore, the contention that the said witness is anunreliable witness shall not be available to the prosecution. 11. Further, it is trite law simply that it does not meanthat the evidence a witness, in its entirety, cannot be relied onby the court because a witness treated hostile and cross-examinedby the prosecution. That part of his evidence, which according tothe court, is trustworthy, can very well be relied on. Similarly,it cannot be said that the evidence of a witness treated hostile bythe prosecution cannot be relied on by the accused. Cross-examination of such witnesses by the deceased shall not be confinedto the purpose for which he is called as a witness for theprosecution. Relevant questions, outside scope of the purpose forwhich he was called as a witness for the prosecution, can always beput to such witness by the defence counsel. That is why, thehostile witnesses are offered to be cross-examined by the defencecounsel after they are cross-examined by the prosecution. In thisregard, the evidence of P.W.11 assumes greater importance. 12. It is not in dispute that P.W.1 was the Manager inSambandam Siva Spinning Mill at the relevant point of time. As amanager, he knew the procedure that was being followed in the millregarding the despatch of the buses and their return in between theshifts. He has stated in clear terms that within half an hourafter end of each shift, the buses with the workers would bedespatched from the mill to various places; that such buses, afterdropping the workers at various places, would reach the terminalpoint and would be sheltered there at the terminal and that thebuses would come back to the mill just 15 minutes prior to thestart of the next shift. It is his further evidence that the busesof the mill shall be available in the mill premises at the maximumof 45 minutes to one hour. As per his evidence, the said period of45 minutes to one hour shall be spread over the last lap of theearlier shift and the first lap of the succeeding shift. It isobvious from his evidence that the first, second and third shiftsstarts at 7.00 a.m, 3.00 p.m and 11.00 p.m respectivelty and thatfrom 11.30 p.m on 31.08.2008 till 6.00 a.m on 01.09.2008, the buseswere not there in the mill. P.W.5 is not able to tell theregistration number of the bus in which he worked as a cleaner. Nodocument has been obtained from the mill during investigation toshow that P.W.5 was employed as a bus cleaner in the said mill.Therefore, it is quite obvious that neither the bus driver nor thecleaner would have been in the mill premises from 12.00 midnight31.08.2008/01.09.2008 till 06.00 a.m on 01.09.2008. 13. Even if it is assumed that P.W.5 - Easwaran couldhave been there in the mill premises between 2.00 a.m and 6.00 a.mon 01.09.2008, he does not implicate the appellants/accused to havecaused the death of the deceased Kalaiarasan @ Raja. The evidence https://hcservices.ecourts.gov.in/hcservices/ of P.W.5 is to the effect that, at the first instance at about 2.30a.m. on 01.09.2008 the deceased Kalaiarasan @ Raja came to the millgate and asked whether Panneerselvam was there; that on hearingthe answer given by A1 - Mani and A2 - Shanmugam in the negative,he left that place and came back after a lapse of an hour and thatwhen he came for the second time he was found shabby and untidy.It is his further evidence that the deceased started abusingaccused 1 and 2 in a filthy language when he met them for thesecond time and again asked the very same question which invitedthe very same answer; that unable to tolerate the abusing language,A1 and A2 along with A3 who came to that place during the course ofthe transaction, assaulted the deceased Kalaiarasan @ Raja withhands, dragged him to a nearby place and made him lay there. Theinjuries found on the dead body of deceased Kalaiarasan @ Raja donot correspond to the alleged assault made by the accused persons.It is neither the case of the prosecution nor the evidence of P.W.6that any one of the accused used any weapon. The abrasions foundon various parts of the body and the contusion found on both sidesof the scrotum and abdomen as evidenced by Ex.P5 – Postmortemcertificate, cannot be related to the alleged assault with hands.More particularly, the contusion on both sides of scrotum could nothave been caused by any one of the accused, as P.W.5 does not speakabout kicking on the abdomen or squeezing the scrotum. It is theopinion of the Medical officer that the death occurred due to shockand haemorrhage caused by the abrasions found on various parts ofthe body. As many as 15 abrasions and contusions on both sides ofscrotum and abdomen were noted by P.W.12. For a betterappreciation the injuries noted in Ex.P5-Postmortem certificate isreproduced here under. 1."Abrasions dark brown in colour seen over:- (a)1.5 x 0.5 cm over right frontal region and itlie 6.5 cm above mid eyebrow (b) 2 x 0.5 cmright side temple and it lies 2 cms abovezygomatic prominence (c) 3 x 2 cm left forehead2.5 cm above left eyebrow (d) 7 x 3.5 cm lefttemple extends upto cheek (e) 2 x 2 cms leftwrist (f) a grazed abrasion over outer aspect ofright thigh 15 x 14 cms (g) a grazed abrasionback of lower 3rd of left leg 12 x 5 cms (h) 5.5x 1.75 cm outer aspect right knee (i) 12 x 4 cmsinner aspect of lower 3rd right thigh to rightleg (j) 7 x 2 cms upper 3rd of left leg (k) 2 x2, 3 x 2 cms front of right knee (l) Grazedabrasion upper 3rd of left thigh to left hip andlower 3rd of left thigh 21 x 12 cms (m) 6 x 4cms left side lower abdomen (n) 1 x 1 cm leftflanks (o) 3 x 2 cm front of upper 3rd of leftthigh a dark blackish discolouration over lowerpart of abdomen it extends upto it flanks 44 x15 cms.3.Contusion over both sides of scrotum 4 x 4 x0.25 cm dark red blood clots seen above the https://hcservices.ecourts.gov.in/hcservices/ abdomen muscles."Any one of the above said injuries is not of serious naturesufficient to cause death. On the other hand, the opinion ofP.W.12 seems to be that all above said injuries found on the deadbody combined together led to the death of the deceased due toshock and haemorrhage. 14. Assuming that the cumulative effect of injuries, ledto the death of the deceased due to shock and haemorrhage, the nextquestion that arises for consideration is whether those injurieswere proved to be caused by the accused persons. The evidence ofP.W.5, the lone eye witness, does not lend any help to theprosecution to show that those injuries were caused by theappellants/accused. In his cross-examination, P.W.5 has stated thatwith gaps of half an hour, the deceased came to the mill gate forabout 5 or 6 times and he could not say what happened to him duringthese gaps. It is also his evidence that he was not aware of theplaces to which the deceased had gone and where and how he gotinjuries during those gaps. Therefore, it is quite probable thatthe deceased could have been attacked by somebody else and thuscould have sustained the injuries noted by the Medical officer, whoconducted autopsy. In this regard, the evidence of the prosecutionwitnesses as to the conduct of the deceased also become relevant.P.W.5 in his evidence has made it clear that the deceased was foundunder the influence of alcohol and he quarrelled with the accusedusing filthy words. He has gone to the extent of stating that thedeceased was found in such a condition that he was completely underthe influence of alcohol and was not capable of understanding whathe was doing. The said part of the evidence of P.W.5 standscorroborated by P.W.6 and P.W.7. It is the further evidence ofP.W.5 that, when he asked the accused as to why they had notinformed the police, they replied that the deceased, after comingout of the influence of alcohol, would get up and leave that place.The evidence of P.W.6 is to the effect that when he suggested thatthe police could be informed, the accused answered that P.W.7 wasinformed and the family members of the deceased would come and takehim home. The evidence of P.W.7 is to the effect that he wasinformed by A1 over phone that the deceased went to the mill gateand picked up quarrel with A1-Mani. It is his further evidencethat when the same was informed by him to P.W.2, the brother of thedeceased, he did not take it seriously and on the other hand,informing P.W.7 that it had been the routine affair of the deceasedto behave in such a manner, he refrained from taking any steps togo the place of occurrence and bring the deceased home. P.W.7 hasalso stated that P.W.3, the mother of the deceased also did nottake care to send anybody at once to bring her son, when heinformed her of the telephonic message he received from A1.15. Though P.Ws.1 and 2 would deny that the deceased hadgot the habit of drinking, P.W.3's evidence lend support to thecontention raised on behalf of the appellants/accused. It is herevidence that P.W.7-Panneerselvam informed her over phone that thedeceased was causing problem in the mill; that she requested P.W.7- https://hcservices.ecourts.gov.in/hcservices/ Panneerselvam to go to the mill and find out what was going onthere and that P.W.7 replied that they could wait till morning asthe deceased could be under the influence of alcohol and thuspicking up quarrels. She does not deny the drinking habit of thedeceased.16. P.W.12-Dr.Panneerselvam, who conducted autopsy, hasnoted in Ex.P5-Postmortem report that 150 grams of partly digestedfood was found in the stomach and that it contained no significantodour. Ex.P13-Viscera report is also silent in this regard. InEx.P5-Postmortem report, it has been noted that no significantsmell emanated from the contents of the stomach. Ex.P13-VisceraReport also rules out presence of poison. On the other hand, bothExs.P5 and P13 are silent about the presence of alcohol in thestomach. Pointing out the same, the learned Additional PublicProsecutor contended that the defence theory of death due toexcessive consumption of alcohol should be ruled out as improbableand that the only cause of death was shock and haemorrhage due tothe injuries found on the body of the deceased. Of course it istrue that Ex.P5 and Ex.P13 do not contain any finding to the effectthat the deceased had consumed alcohol. But, at the same time, theydo not rule out such consumption of alcohol by the deceased priorto his death. P.W.12 - Dr.Panneerselvam has given an explanationthat traces of alcohol could not be detected after a lapse of 10 to12 hours after death. Even according to the prosecution version,the deceased was found completely intoxicated and he had lost hispower of rational thinking to the extent of not being conscious ofwhat he was doing. 17. It is the further case of the prosecution that theappellants/A1 to A3 assaulted the deceased between 2.30 and 4.30a.m on 01.09.2008 and that the dead body of the deceased was foundby P.W.1 at about 5.00 a.m. If it is true, the death would haveoccurred between 2.30 a.m and 5.00 a.m on 01.09.2008. As per theevidence of P.W.12 and his opinion regarding the time of deathincorporated in Ex.P5-Postmortem report, death occurred between 18to 24 hours prior to autopsy. Autopsy was conducted at 14.45 hours(2.45 p.m) on 01.09.2008. It will take us to 2.45 p.m to 8.45 p.mon 31.08.2008 as the time of death of the deceased. In the absenceof any other evidence, we cannot simply presume that the time ofdeath could have been wrongly assessed by doctor who conductedautopsy. Moreover, when the postmortem report and the evidence ofdoctor who issued it, are contra to the prosecution theoryregarding the time of death, the prosecution should have adducedevidence capable of nullifying that part of evidence of P.W.12 orat least the prosecution should have put clarificatory questions toP.W.12. In case the prosecution thinks that the time of death waserroneously noted, either deliberately or innocently, the saidwitness (P.W.12) could have been cross-examined with the permissionof the court to discredit such part of his evidence. No such thingwas done in this case on the part of the prosecution to show thatthe time of death of the deceased, as noted in the postmortemreport, is wrong. Under such circumstances, this court findssubstance and force in the contention raised on behalf of the https://hcservices.ecourts.gov.in/hcservices/ appellants that the family members of the deceased were not awareof the time of death and cause of death of the deceased and thatthe case was foisted against the appellants on suspicion becausethe dead body was found at a place near Sambandam Siva SpinningMill in which the accused were employed at the relevant period. 18. As rightly pointed out on behalf of the appellants,there are materials in the evidence of the prosecution itselfimprobablising the prosecution theory or at least creating areasonable suspicion. The case was registered under section 174(3)Cr.P.C based on Ex.P1-complaint. The first information report isEx.P8. A1-Mani alone has been shown to be the suspected accused inEx.P8. Material contradictions on vital aspects, viz. regardingthe time of registration of the case and the time at which thepolice came to the place wherein the dead body was lying, are foundin the evidence adduced on the side of the prosecution. P.W.1would state in his evidence that he went to the police station at7.30 a.m. But he did not lodge any complaint till 9.30 a.m on01.09.2008 since according to his testimony, there was only onepolice man available in the police station at that point of time.It is his further evidence that after 7.00 a.m he went to theresidence of the Secretary of a political party of the Panchayatunion, came back to the police station along with him and waswaiting there till 9.30 a.m for the arrival of the Inspector ofPolice; that the complaint was prepared at the police station andhe handed it over to the Inspector of Police at 10.00 a.m on01.09.2008 and that thereafter, the Inspector of Police came to thespot at 11.00 a.m. The testimony of P.W.2, another son of P.W.1,in this regard is contra to the testimony of P.W.1. He would saythat the police examined him at 9.00 a.m on 01.09.2008 at the placeof occurrence. P.W.3 is none other than the wife of P.W.1. In herchief examination, she has stated that the police came to the spotat 11.00 a.m. But her evidence in the cross examination is to theeffect that the blood stained earth and the sample earth werecollected from the place of occurrence under cover of a mahazar at8.00 a.m on 01.09.2008. P.W.9 also has stated in his evidence thatpolice came to the place of occurrence at 9.00 a.m and theyexamined the persons present therein before 10.00 a.m. Apart fromthe conflicting versions of the above said witnesses regarding thetime at which the police arrived at the spot and startedinvestigation, a vital defect is found in Ex.P1 - complaint andEx.P8 - First Information Report. Time of registration of the casehas been corrected to 10.30 a.m in both the documents. P.W.15, theInvestigating Officer has stated in his evidence that he receivedthe complaint at 11.00 a.m. As per the prosecution version, P.W.15himself received the complaint and registered the case. As such,the above said contradiction gives rise to a suspicion that thetime of registration of the case was corrected from 11.00 a.m to10.30 a.m for the reasons best known to the prosecution.19. Though A1 - Mani was shown to be a suspected accusedas per Ex.A8 - First Information Report, no allegation of attack byA1 has been made in the complaint. It is the evidence of P.W.5 -Easwaran that before going to the police station, P.W.1 along with https://hcservices.ecourts.gov.in/hcservices/ P.W.7 met him and he informed P.W.1 that he saw A1 to A3 assaultingthe deceased and dragging him to the nearby bus stop to lay himthere. If it is true, then the same would have found a place inEx.P1 - complaint. But the complaint does not refer to any suchinformation furnished by P.W.5 to P.W.1. Therefore, the contentionraised on behalf of the appellants that the information that thedeceased was lying dead reached the police much earlier and thatEx.P1 - complaint was brought into existence after conducting apreliminary investigation, cannot be brushed aside as untenable.Though evidence has been adduced to the effect that A1 to A3 onarrest gave confession statement, they are not relied on by theprosecution as the same are inadmissible as they did not lead todetection of any new fact. 20. All the accused are said to be arrested only afterthe alteration of the case into one for offences punishable undersections 323 and 302 IPC from Section 174(3) Cr.P.C. TheAlteration Report prepared by P.W.15, the Investigating Officer hasbeen marked as Ex.P11. P.W.5-Easwaran and P.W.6-Rajasekaran arethe persons who are alleged to have furnished the informationregarding the alleged assault made on the deceased by the accusedpersons. Though P.W.5 would mention the names of all the threeaccused as the persons who attacked the deceased, P.W.6 would nameA1-Mani and A2-Shanmugam alone to be the assailants. If suchinformation was furnished by P.W.5 and 6, in either case thealteration report would have contained the names of the accused 2and 3 also. But in Ex.P11-Alteration Report, their names are notfound. 21. There is substance in the contention raised on behalfof the appellants that an attempt was made to shift the place ofoccurrence from the bus stop to a place abutting the mill gate andthat it ended in an utter failure. In Ex.P9-Rough sketch, theplace of occurrence is shown to be on the west of the mill gate andthe micro bus stop is shown on the east of the mill gate. P.W.1would state that the dead body of the deceased was found on thewest of the mill gate at a distance of 50 to 60 feet. However, itis the evidence of P.W.5 that the accused persons, after assaultingthe deceased with hands took him to a place near micro bus stop andlaid him there. P.W.4, one of the attestors of the observationmahazar and mahazar for collecting blood stained and sample earthfrom the place of occurrence, does not speak clearly regarding thelocation of the place of occurrence where from the blood stainedearth and sample earth were recovered under Ex.P3. P.W.4 wouldalso state that while the police were collecting the blood stainedearth, blood was dropping from the earth (uj;jk; tHpa tHpa kz;iz vLj;jhh;fs;)collected by the police. The evidence of P.W.3 is to the effectthat, apart from the place wherein the dead body was found, bloodstains were found in front of the mill gate and police collectedthe earth samples from the said place. Therefore, as rightlycontended on behalf of the appellants, an attempt was made to showthat blood was found near the mill gate apart from the placewherein the dead body was found. The alleged blood stained earthand sample earth collected by the Investigating Officer have been https://hcservices.ecourts.gov.in/hcservices/ produced as M.Os.1 and 2. When they were examined in the Forensiclaboratory no blood was detected in them, as evidenced by Ex.P6-Chemical Analysis Report. Totally six material objects were sentto the laboratory. M.Os.1 and 2 are the alleged blood stainedearth and sample earth collected from the place of occurrence.M.Os.3 to 6 are the wearing apparels removed from the dead body andthe waist cord. Blood was detected in M.Os.4 to 6 alone and not inM.Os.1 to 3, especially M.O.1. Therefore, the theory ofprosecution that the deceased was attacked by theappellants/accused near the mill gate and thereafter was dragged toa place wherein the dead body was found, has not been substantiatedby the prosecution by reliable and cogent evidence beyondreasonable doubt. 22. This court, on an independent re-appreciation ofevidence for the reasons pointed out supra comes to the conclusionthat there are many imponderables and improbabilities in theevidence of the prosecution giving rise to a strong suspicion thatan unnatural death, cause of which was not known, was sought to beconverted into a murder. The presence of P.W.5, the lone eyewitness at the time of occurrence is quite doubtful and in fact hispresence at the time of occurrence, in the mill gate has got to beruled out in the light of the evidence of P.W.11-Ponnudurai. Theevidence of P.W.6 is also not helpful to the prosecution. Undersuch circumstances, this court cannot come to any other conclusionthan one that the prosecution miserably failed to establish theguilt of the accused to the hilt in respect of the offence withwhich they stood charged and that the appellants/accused would havebeen acquitted by the Trial court, had it properly appreciated theevidence in this case. This court is unable to sustain theconviction recorded by the Trial court and the same deserves to beset aside. This court holds the conviction of all theappellants/accused 1 to 3 recorded by the court below for theoffence under section 302 IPC r/w Section 34 IPC is discrepant,infirm and hence liable to be set aside, with the result that allthe appellants are entitled to acquittal.23. In the result, both the appeals are allowed and thejudgment of the trial court relating to the conviction of theappellants for offences punishable under Section 302 r/w 34 IPC isset aside. The appellants/accused are acquitted of all theoffences with which they stood charged. In case they are in prisonthey shall be set at liberty forthwith, if their custody is notrequired in connection with any other case. Fine amount, if anypaid, shall be refunded to the appellants. Sd/- Asst. Registrar./true copy/ Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ asrTo1. The Additional District-cum-Sessions Judge (Fast Track Court-1), Salem,2. Do Through the Principal District & Sessions Judge, Salem 3. The Inspector of Police Vazhapadi Police Station, Vazhapadi, Salem4. The Superintendent, Central Prison, Salem5. The Superintendent, Central Prison Coimbaotre,6. The Public Prosecutor, High Court, Madras-600 104.7. The Director General of Police, Madras.8. The District Collector, Salem9. The District Collector, Coimbatore+ 1 cc to Mr.S.Sivakumar, Advocate Sr 19563+ 1 cc to Mrs.AL.Gandhimathi Advocate Sr 19372JUDGMENTin Crl.A.Nos.733 and 761 of 2009KK (CO)RH (8.4.10)