P.Varatharajan v. State rep. by Inspector of Police,Kanchi Taluk Police Station,Kanchipuram District.(Crime No.640/2006)

B A I L S L I PThe Appellant/accused viz., P. Varatharajan was released onbail as per order dated 25th April 2007 in Criminal M.P.No.1 of 2007in Criminal Appeal No.356 of 2007 on the file of this High Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 06.01.2009 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE M.VENUGOPALCRIMINAL APPEAL NO.356 OF 2007P.Varatharajan ..AppellantVs.State rep. byInspector of Police,Kanchi Taluk Police Station,Kanchipuram District.(Crime No.640/2006) ..Respondent This criminal appeal has been preferred under Section 374Cr.P.C. against the judgment of the learned Additional SessionsJudge, Fast Track Court No.II, Kancheepuram made in S.C.No.651 of2006, dated 22.3.2007. For Appellant : Mr.V.Gopinath, SC for Mr.L.Mahendran For Respondent: Mr.P.Kumaresan, APP JUDGMENT(The judgment of the Court was delivered by M.CHOCKALINGAM, J.)Challenge is made to the judgment of the Additional SessionsDivision, Fast Track Court No.II, Kancheepuram made in S.C.No.651 of2006, whereby the appellant herein shown as A-2 along with threeothers stood charged under Section 302 r/w S.34 IPC, tried and A-2 https://hcservices.ecourts.gov.in/hcservices/ alone was found guilty under Section 302 IPC and was sentenced toundergo life imprisonment and to pay a fine of Rs.1000/-, in defaultto undergo 6 months S.I., while A-1, A-3 and A-4 were found notguilty and acquitted of the charge levelled against them.2.The short facts necessary for the disposal of this appeal canbe stated as follows:a)The deceased Gopal is the son of P.W.8 through his secondwife. P.W.1 is the son of P.W.8 through his first wife. There wasprevious enmity between the family of P.W.8 and the accused. On12.5.2006, a Bull, belonging to the family of P.W.1, entered intothe garden of the accused and was grazing. The accused abused P.W.1and there was a quarrel. The villagers intervened and pacified thesituation. On the same day, i.e. on 12.5.2006, P.W.1 along with thedeceased went to the field for watering and after watering was over,they were sleeping near the pumpset room on that night. At about1.00 a.m. on 13.5.2006, P.W.1 heard the barking sound of the dog andimmediately, he woke up. He witnessed all the four accused armedwith deadly weapons and immediately, he ran away from the place andrushed to P.W.7, the neighbour and informed him. P.W.7, in turn,informed him to go to the village and inform to the villagers.Accordingly, P.W.1 went to the villagers and informed to P.W.2 andall others. P.W.2 rushed to the place and she found that A-2attacking her son with the knife. On seeing her, all the accusedfled away from the place of occurrence.b)Immediately, P.W.2 and others took the severely injured tothe Government Hospital, Kancheepuram at about 2.00 a.m. He wasadmitted by P.W.15, the Doctor, who examined him and has issuedEx.P.10, the accident register. Thereafter, the severely injured wastaken to the Government General Hospital, Madras. P.W.1 proceeded tothe respondent police station and gave Ex.P.1, the complaint toP.W.18, the Sub Inspector of Police. On the strength of Ex.P.1,P.W.18 registered a case in Crime No.640 of 2006 under Sections 324and 307 IPC. Ex.P.13, the F.I.R. was despatched to the Court.c)P.W.19, the Inspector of Police, on receipt of the copy ofthe F.I.R., took up the investigation, proceeded to the spot andmade an inspection in the presence of the witnesses. He prepared theobservation mahazar and Ex.P.14, the rough sketch. He examined thewitnesses and recorded their statements. On 15.5.2006, the severelyinjured, who took treatment at the Government General Hospital,Chennai, died and on intimation, the case was altered to Section 302IPC and Ex.P.15, the alteration report was sent to the Court. P.W.19proceeded to the Government General Hospital and conducted inqueston the dead body of the deceased in the presence of the witnessesand panchayatdars and prepared Ex.P.16, the inquest report. Then,the dead body was sent for the purpose of autopsy. d)P.W.13, the Doctor attached to the Madras Medical College, onreceipt of the requisition, has conducted post-mortem on the deadbody of the deceased and has issued Ex.P.9, the post-mortem https://hcservices.ecourts.gov.in/hcservices/ certificate, wherein he has opined that the deceased would appear tohave died of head injury.e)Pending investigation, P.W.19 arrested all the accused on16.5.2006 and A-2 came forward to give confessional statementvoluntarily, which was recorded in the presence of the witnesses,the admissible part of which was marked as Ex.P.17. Pursuant to thesame, A-2 produced M.O.1, knife, which was recovered under a coverof mahazar. The accused were sent for judicial remand. All thematerial objects recovered were subjected to chemical analysis bythe Forensic Science Department and the reports were received. Oncompletion of the investigation, the Investigating Officer has filedthe final report. 3.The case was committed to the Court of Sessions and necessarycharges were framed. In order to substantiate the charges levelledagainst the accused, the prosecution examined 19 witnesses and alsorelied on 18 exhibits and 2 M.Os. On completion of the evidence onthe side of the prosecution, the accused were questioned underSection 313 Cr.P.C. as to the incriminating circumstances found inthe evidence of prosecution witnesses, which they flatly denied asfalse. No defence witness was examined. The trial court, afterhearing the arguments advanced on either side, took the view thatthe prosecution has proved the case beyond reasonable doubt insofaras A-2 and found him guilty under Section 302 IPC and awarded lifeimprisonment along with fine and default sentence, while it hasrecorded an order of acquittal of A-1, A-3 and A-4. Hence thisappeal at the instance of the appellant.4.Advancing arguments on behalf of the appellant, the learnedSenior Counsel, inter-alia, would submit that the occurrence,according to the prosecution, has taken place at about 1.30 a.m. on13.5.2006; that P.W.1 has claimed that he was sleeping along withthe deceased and at about 1.00 a.m. on 13.5.2006, he heard thebarking sound of the dog and he woke up, but he never stated thatthe deceased, who was lying by the side, woke up; that according toP.W.1, he saw all the four accused armed with deadly weapons andimmediately, he ran away from that place and he informed to P.W.7,the neighbour, who in turn, asked him to go to the village andinform to the villagers and accordingly, P.W.1 went to the villageand informed to P.Ws.2 to 6 and he went to the place of occurrencelater; that according to P.W.2, on receipt of the information fromP.W.1, she rushed to the place of occurrence and found all the fouraccused and it was A-2 who attacked her son, namely the deceased,with the knife; that on seeing her, all the accused persons fledaway from the place of occurrence; that though the prosecution hasexamined P.W.2 as the only eyewitness, from the available materials,it was noticed that P.W.2 could not have been the eyewitness at all;that the name of P.W.2 was not at all mentioned in the F.I.R.; thatas per the statement recorded by the Investigator from P.W.1 at theearliest, P.W.1 rushed to P.W.7 and informed him and thereafter, hewent to the village and informed to P.Ws.3 to 6; that he neverwhispered that he informed to P.W.2 at all; that when the mattercame before the court, this development was made; that the https://hcservices.ecourts.gov.in/hcservices/ Investigator was unable to say as to when the statement of P.W.2,the so-called eyewitness was recorded; that the statement of thesaid witness under Section 161 Cr.P.C. has reached the court only on18.8.2006, i.e. after a few months and thus, introduction of P.W.2as eyewitness was only an afterthought in order to supply theevidence to suit the prosecution case and thus, it would be quiteclear that P.W.2 could not have seen the occurrence at all.5.Added further the learned Senior Counsel that even accordingto the prosecution, the severely injured Gopal was taken to theGovernment Hospital, Kancheepuram and was admitted by P.W.15, theDoctor and it was P.W.1 who accompanied the severely injured to thehospital and admitted him. Ex.P.10, the accident register, has comeinto existence at 2.00 a.m., i.e. within an hour from the time ofoccurrence, wherein it has been clearly stated by P.W.1 that fourunknown persons have attacked the deceased and hence P.W.1 could nothave been in the place of occurrence at all; that all put togetherwould clearly indicate that the prosecution has miserably failed toprove its case, but the trial court has taken an erroneous view;that the other part of the evidence as to the arrest, confessionalstatement and the recovery were all creation in order to suit theprosecution case, but in vain; that the same reasons, which areapplicable for an order of acquittal of A-1, A-3 and A-4, areequally applicable to A-2/the appellant herein and hence thejudgment of the trial court has got to be set aside and theappellant herein is entitled for acquittal in the hands of thiscourt.6.The court heard the learned Additional Public Prosecutor onthe above contentions and has paid its anxious consideration on thesubmissions made. 7.It is not in controversy that Gopal, the son of P.W.2,following an incident that took place at about 1.30 a.m. on13.5.2006, was taken to the Government Hospital, Kancheepuram andthereafter, he was taken to the Government General Hospital, Madras,where he died. Following the inquest made by the InvestigatingOfficer, the dead body was subjected to post-mortem by P.W.13, theDoctor, who has deposed before the court as a witness and alsoopined in the post-mortem certificate that the deceased would appearto have died of head injury. The fact that the deceased died out ofthe injury sustained by him was never questioned by the appellantand hence it could be recorded so. 8.In order to substantiate that it was the second accused/theappellant herein stabbed the deceased at the time of occurrence, theprosecution rested its entire case on the evidence of P.W.2, aseyewitness and also on the evidence of P.W.1 to an extent that hesaw all the accused persons at the time and place of occurrenceimmediately before the occurrence. When the evidence of these twowitnesses are scrutinized, the court is afraid whether theseevidences could be accepted by the court. The occurrence has takenplace at 1.30 a.m. on 13.5.2006. P.W.1 would claim that he wassleeping along with the deceased and he heard the barking sound of https://hcservices.ecourts.gov.in/hcservices/ the dog and woke up and found all the four accused persons armedwith deadly weapons. From the evidence of P.W.1, it would be quiteclear that all belonged to the same village and there was a quarreland their families were on inimical terms and the accused werethoroughly known to him previously. The earliest document, which hascome into existence in the instant case, is Ex.P.10, the accidentregister issued at the Government Hospital, Kancheepuram. Thedeceased was admitted by P.W.15, the Doctor at 2.00 a.m. at theGovernment Hospital, Kancheepuram and it was P.W.1 who took him theseverely injured to the hospital and admitted him for treatment. Aperusal of Ex.P.10, the accident register copy would clearlyindicate that P.W.1 has stated to P.W.15 that four unknown personsattacked the deceased and thus, it would be quite clear from theabove document that the evidence of P.W.1 that he was sleeping alongwith the deceased at the time and place of occurrence, becomeshighly doubtful. Equally, the evidence of P.W.2 is also thoroughlyunreliable for the following reasons.9.According to P.W.1, immediately on seeing all the fourpersons armed with deadly weapons, he rushed to his neighbour P.W.7and it was P.W.7 who advised him to go to the village and informedto the villagers. Accordingly, he went to the village and informedto P.Ws.2 to 6. But, at the earliest, in the F.I.R., nowhere he hasstated that he informed P.W.2, the mother of the deceased. Apartfrom that, the statement of P.W.2, the so-called eyewitness, thoughclaimed to have been recorded thereafter, reached the court only on18.08.2006 and thus, how the delay has happened was not explained.Further, at the time of inquest conducted by the InvestigatingOfficer, though she was present, she was not examined. Had it beentrue that she was the only eyewitness, there could not be anyimpediment felt by the Investigating Officer to record herstatement, but at the time of inquest, she was not examined nor herstatement was recorded. But the statement which was said to havebeen recorded from her by the Investigator has reached the courtafter a few months. All would go to show that P.W.2 could not havebeen the eyewitness at all. If the evidence of P.Ws.1 and 2 becomesunreliable, the prosecution has miserably failed to prove thefactual position. So far as the recovery of weapon of crime followedby the arrest and the medical opinion canvassed were concerned, inthe absence of any evidence, they cannot bring home the guilt of theaccused. 10.Under these circumstances, it would be highly unsafe tosustain the conviction. The trial court has believed the evidence ofP.Ws.1 and 2 and acquitted A-1, A-3 and A-4. As rightly pointed outby the learned Senior Counsel, the reasons for the acquittal of A-1,A-3 and A-4 are equally applicable to A-2 also. Under thesecircumstances, the judgment of conviction and sentence imposed on A-2 has got to be made undone only by upsetting the same. 11.Accordingly, the judgment of conviction and sentence imposedon the appellant herein/A-2 by the trial court is set aside and theappellant is acquitted of the charges levelled against him. The bailbond, if any, executed by the appellant shall stand terminated and https://hcservices.ecourts.gov.in/hcservices/ the fine amount, if any, paid shall be refunded to him. Accordingly,this criminal appeal is allowed. sd/-Asst.Registrar/true copy/Sub Asst.RegistrarvvkTo1. The Additional Sessions Judge, Fast Track Court No.II, Kancheepuram.2. The Judicial Magistrate No.II, Kanchipuram.3. -do-Through The Chief Judicial Magistrate, Chengalpattu.4. The Inspector of Police, Kanchi Taluk Police Station, Kanchipuram District.5. The Superintendent, Central Prison, Puzhal, Chennai.6. The Director General of Police, Chennai-4.7. The District Collector, Kanchipuram.8. The Additional Public Prosecutor, High Court, Madras.+ 1 c.c. to Mr. L. Mahendran, Advocate. S.R.No.562. CRL.A.NO.356 OF 2007KA (CO)GSK 12.01.2009.