C.S.KARNANCRIMINAL APPEAL Nos.626 and 636 OF 20081.Francis Xavier @ Francis2.Vigneshwar @ Vikki v. State represented byInspector of Police

BAIL SLIPThe Appellant/Accused namely (Anandha Babu @ Anandhan) wasdirected to be released on bail made in MP.1 of 2008 in Crl.AppealNo.636 of 2008 on the file of the High Court, Madras. IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 22.07.2009 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRIMINAL APPEAL Nos.626 and 636 OF 20081.Francis Xavier @ Francis2.Vigneshwar @ Vikki ...Appellant in Crl.A.No.626/08Anandha Babu @ Anandhan ...Appellant in Crl.A.No.636/08 Vs.State represented byInspector of Police,B.2 R.S.Puram Police Station,Coimbatore(Crime No.689 of 2003) .. Respondent in both the appealsThese criminal appeals have been preferred under Section374(2) Cr.P.C. against the judgment of the learned AdditionalDistrict and Sessions Court (Fast track Court No.2) Coimbatore madein S.C.No.44 of 2004 dated 25.7.2008. For Appellant in Crl.A.626/08: Mr.V.Gopinath Senior Counsel for Mr.G.KarthikeyanFor Appellant in Crl.A.No.636/08: Mr.V.BharathidasanFor Respondent: Mr.N.R.Elango, APP JUDGMENT(The judgment of the court was delivered by M.CHOCKALINGAM, J.) This Judgment shall govern two appeals viz., Crl.A.No.626/08 byA1 and A2 and Crl.A.No.636 of 2008 by A3 https://hcservices.ecourts.gov.in/hcservices/

2. Challenge is made to the judgment of the Additional Districtand Sessions Court (Fast Track Court No.2) Coimbatore made inS.C.No.44 of 2004, whereby the accused 1 and 2/appellants 1 and 2,tried, stood charged and found guilty under Section 341 IPC andawarded one month S.I. with a fine of Rs.100/- in default to undergoone week S.I. and under Section 302 read with 34 IPC and awarded lifeimprisonment with a fine of Rs.2,000/-(each) in default to undergothree years S.I. and the sentences are ordered to run concurrentlyand the third accused tried, stood charged and found guilty underSection 302 read with 109 IPC and awarded life imprisonment with afine of Rs.2000/- in default to undergo three years S.I. 3.The short facts necessary for the disposal of thisappeal can be stated as follows: a)P.W.1 is the wife of the deceased. PW3 is the father ofPW1. PW1 and her husband were previously carrying on fruit vendingbusiness where the first accused was employed. After leaving his job,he has commenced his own business in fruit vending just opposite tothe shop of the deceased. This has got the business rivalry and theywere inimical with each other and often they were quareling. On30.6.2003 at about 10.30 hours, the deceased took his wife PW1 alongwith a child in a two wheeler and went to the house of PW3 and whenthey reached the junction of PCP Road and Syrian church road, justopposite to the grocery shop of PW7, all the three accused way-laidthe deceased when he was in his vehicle. A1 and A2 caught hold of theshirt of the deceased and immediately PW1 along with the child felldown. The deceased stopped his two wheeler and questioned the conductof the accused. Subsequently, A1 took the knife and stabbed thedeceased on his left ear and also at the back. A2 attacked at theleft arm and wrist. The third accused who was standing nearby the twowheeler of the accused persons. This was witnessed by PW3 who wasjust crossing the place. This was also witnessed by Pws.2 and 4 also.After hearing the distress cry,a group of people gathered andthereafter the accused fled away from the place of occurrence. b)Pws.1 and 3 took the injured to Senthil Nursing Home andsince there was no doctor available, they took him to the GovernmentHospital at about 11.30 hours, PW13, doctor who was on duty, onmedical examination, declared the deceased dead. He gave anintimation to the respondent police station which is marked asEx.P.9.c)On 30.6.2007 at about 23 hours, PW.18 Sub Inspector ofPolice attached to P2, R.S.Puram Police Station reached the hospital,recorded the statement of PW1 which is marked as Ex.P.1, on thestrength of which, he registered a case on 1.7.2003 at about 1.30a.m. in Crime No.689 of 2003 under Section 302 IPC. Ex.P.12 FIR wasdespatched to the Court. https://hcservices.ecourts.gov.in/hcservices/ d)PW.19,Deputy Superintendent of Police, on receipt of thecopy of FIR, proceeded to the spot,made an inspection at about 3 a.m.and prepared Observation Mahazar Ex.P.13 and also drew rough sketchEx.P.14. He recovered M.Os. from the place of occurrence includingblood stained earth (M.O.12), sample earth (M.O.13), two wheelerbearing registration No.TCT 8760 under the cover of Mahazar Ex.P.15.He has also photographed the place of occurrence and they were markedas M.O.9 and 10 series are Photos and negatives respectively. PW19conducted inquest on the dead body in the CMC Hospital ,Coimbatore inthe presence of panchayators and witnesses and prepared Ex.P.17inquest report. Then the dead body was sent for postmortem.e)P.W.14, the Doctor attached to the Department of ForensicMedicine, Coimbatore, medical College and Hospital, Coimbatore, onreceipt of the requisition, has conducted post-mortem on the deadbody of the deceased and has issued Ex.P.10, the post-mortemcertificate, wherein he has opined that the deceased would appear tohave died of shock and hemorrhage due to multiple injuries.f)Pending investigation, A1 to A3 were arrested. They gaveconfession statement voluntarily and recorded in the presence ofwitnesses and admissible part of which are marked as Ex.P.18, 19 and20 respectively. Pursuant to the confession statement, A1 producedM.O.1, knife, M.O.14 shirt and M.O.15 pant. They were recovered underthe cover of Mahazar. Equally, A2 produced M.O.2 knife, M.O.16 shirtand M.O.17 pant which were also recovered under the cover of Mahazar.A3 also gave confession statement . All the three accused sent tojudicial remand and thereafter all the M.Os. were sent for chemicalanalysis. Accordingly, the analysis report also received by the Courtand on completion of the investigation, Investigator filed the finalreport.4.The case was committed to the Court of Sessions andnecessary charges were framed. In order to substantiate the chargeslevelled against the accused, the prosecution examined 19 witnessesand also relied on 31 exhibits and M.Os.17. On completion of theevidence on the side of the prosecution, the accused were questionedunder Section 313 Cr.P.C. as to the incriminating circumstances foundin the evidence of prosecution witnesses. The accused flatly deniedthe same as false. On the side of defence, one Irudayaraj wasexamined as DW1. The trial court, after hearing the argumentsadvanced and scrutinizing the materials available, took the view thatthe prosecution has proved the case beyond reasonable doubt, foundthem guilty and awarded punishment as referred to above. Hence thisappeal has arisen at the instance of accused 1 to 3/appellantsherein. 5. Advancing arguments on behalf of the appellants 1 and 2,learned Senior counsel would submit that the occurrence had taken https://hcservices.ecourts.gov.in/hcservices/ place at 10.30 p.m. on 30.6.2003. The prosecution had examinedPws.1,2,3,4 and 5 as eye witnesses. It is true that all the eyewitnesses have supported the case of the prosecution at the time ofchief examination. At the time of cross-examination, they have givenup their entire evidence recorded, but they have not treated ashostile. The cross examination of the witnesses, if scrutinized,would clearly indicative of the fact that the entire prosecution casehas been given up. On intimation given by doctor, the police Officerwent to the CMC Hospital and recorded the statement of PW1 and thesame is marked as Ex.P.1. It is further claimed that the name of theaccused were mentioned in Ex.P.1, but PW1 has categorically deposedthat immediately after the occurrence, the deceased was taken toSenthil Nursing Home and since the doctor was not available, theywent to Government Hospital where the police officer came andrecorded the statement of PW1 which was to the effect that theaccused persons were not known to her and further added that the suchan evidence was given in chief examination under threat and coercionand further she has added that at the time of cross examination, shehas categorically deposed that she could not identify the accusedpersons who were involved in the crime. Under such circumstances,the evidence of PW1 is of no use to the prosecution case. 6. Inso far as PW2 was concerned, he was a boy of 16 yearsold. According to PW2, he was employed in the shop of P.W.7. On thedate of occurrence PW3 was carrying on his business at about 10.00p.m.,though at the time of chief examination he has categoricallydeposed that he was inside the shop and immediately all the accusedran away from the place of occurrence,he came out of the shop and sawPW1 along with her child . Under such circumstances, he did not giveany evidence in favour of the prosecution. In so far as PW3 wasconcerned, he has categorically deposed in cross examination that hecame to know the incident only from a lady and went to the scene ofoccurrence and therefore, insofar as PW3 was concerned, he came tothe place of occurrence at about 12 O' clock and not at the time ofoccurrence. Equally Pws.4 and 5 also stated in the same line .In sofar as PW7 was concerned, he stated that he left the grocery shop at9 a.m. but PW.2 returned only at 2'O clock. Thus, all would go toshow that none of the witnesses could have seen the occurrence atall. Added further, that if these evidences cannot have anyconsequences, then the remaining part was recovery of M.Os. Insofaras M.Os. recovered from A1 and A2 are concerned, pursuant to theconfession statement which speak about the heinous crime. In a caselike this, mere recovery of Mos. by itself would not suffice toconvict the accused which would bring home the guilt of the accusedaan hence the prosecution had nothing to offer. It is not the casewhere the prosecution had rested its case not on circumstantialevidence, but on direct evidence. All the witnesses have notsupported the case of the prosecution at the time of cross-examination and hence the trial Court has not looked into the aboveaspects, Under such circumstances, the lower court should have https://hcservices.ecourts.gov.in/hcservices/ acquitted the accused, but had taken an erroneous view and hence itis a fit case where the judgment of the trial Court has got to be setaside. 7.The court heard the learned Additional Public Prosecutoron the above contentions and has paid its anxious consideration onthe submissions made.8.It is not in controversy that the husband of PW1, wasactually done to death following the incident that had taken place at10.30 p.m. on 30.6.2003. He was taken to Senthil Nursing Home andthereafter to Government Hospital wherein he was declared dead. Afterthe inquest was made by the Investigating Officer, the dead body wassubjected to post-mortem by P.W.14 Doctor and the Doctor who hasgiven his categorical opinion that the deceased would appear to havedied due to shock and hemorrhage due to injuries sustained. The factthat the deceased died out of homicidal violence was never disputed by the appellants before the trial court and hence it hasgot to be recorded so. 9.In order to substantiate the fact that all the threeaccused waylaid the deceased when he was accompanied by PW1 and thechild, the prosecution has marshalled PWs.1,2,3,4 and 5 as eyewitnesses. It is true that a perusal of chief examination wouldclearly indicative of the fact that they have actually spoken infavour of the prosecution case, but as rightly pointed by the learnedcounsel for the appellants, when they were cross examined, they havecompletely given up the prosecution story. According to theprosecution, it was PW1 the wife of the deceased accompanied herhusband in two wheeler along with their child and when they werereturning, all the accused way laid them and A1 took the knife andstabbed the deceased on his left ear and also at the back, A2attacked at the left arm and wrist and the third accused was standingnearby the two wheeler. But, PW1 categorically deposed in crossexamination that the above evidence was given by her in Court incross-examination under threat and coercion. She has further addedthat her husband was immediately taken to Senthil Nursing Homeand since the doctor was not available, he was taken to GovernmentHospital where the police officer came there and to whom she gave acomplaint and that complaint was not available in court . She wouldfurther add that about fifteen persons who were assailants standingat the time of occurrence and she did not know whom they are. In theface of such evidence, it would be quite clear that the said findingcannot be recorded that it was in favour of the prosecution case.Equally, PW2 who was 16 years old boy and according to him, in hisgrocery shop he was carrying on his business and he would further addat the time of cross examination that after the occurrence he cameout of the shop. This would clearly indicative of the fact that hecould not have seen the occurrence. PW3 stated that only oninformation he went to the spot and he had not seen the occurrence. https://hcservices.ecourts.gov.in/hcservices/ PW4 has also come to the spot at 12'o clock. PW5 come to the placeafter the occurrence was over. Placing reliance on the piece ofevidence as narrated above, it cannot be stated that the prosecutionhas brought home the guilt of the accused. Learned Additional PublicProsecutor would submit that at the time of enquiry, all thewitnesses who were cross examined earlier were recalled after aperiod of 1½ years and they have given a go-bye to the prosecutioncase. It is true that after an interval of 1-1/2 years from the timeof evidence, all the witnesses were recalled . At this juncture, evenassuming, at the time of recalling the witnesses, without giving a gobye to the prosecution case, there is a possibility of treating themas hostile by the prosecution side. But,the prosecution had nottreated them as hostile, but put forward their submissions asrecorded by the trial court. It is pertinent to point out that theevidence recorded by the trial court at the time of cross examinationwas intact and the evidence is binding on the prosecution. Asnarrated above all the witnesses at the time of further crossexamination have clearly given a go bye to the entire story of theprosecution. Now placing reliance on such an evidence of thewitnesses, this Court is of the considered opinion that it would behighly unsafe to rely on the above evidences and barring thosewitnesses, what was available for the prosecution was only therecovery of Mos. It is settled principle of law that mere recovery ofweapons with reference to crime, the conviction cannot be sustainedif they have no evidence to offer. Under these circumstances, thecourt is of the considered opinion it would be highly unsafe tosustain the conviction. Hence the judgment of the trial court has gotto be made undone only by upsetting the same. 10. The judgment of conviction and sentence imposed on theappellants herein by the learned Additional District Judge and Fasttrack Court No.II, Coimbatore in SC.No.44 of 2004 are set aside, andthey are acquitted of the charges levelled against them. Theappellants/(A1 and A2) in Crl.A.No.626 of 2009 are directed to bereleased forthwith unless their presence is required in connectionwith any other case. The fine amount if any paid is ordered to berefunded to them. In so far as appellant(A3) in Crl.A.No.636 of 2008,who is on bail, is concerned, his bail bond shall stand cancelledand the fine amount if any paid is ordered to be refunded to him. 11. In the result, the appeals are allowed. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar VJY https://hcservices.ecourts.gov.in/hcservices/ To1 Additional District and Sessions Court (Fast track Court No.2) Coimbatore2.-do- Principal Sessions Judge, Coimbatore.3.The Inspector of Police, R.S.Puram Police Station, Coimbtore.4.The Additional Public Prosecutor, High Court, Madras.5.The District Collector,Coimbatore.6.The Director General of Police, Mylapore,Chennai-4.7.The Judicial Magistrate No.1, Coimbatore.8.The Chief Judicial Magistrate,Coimbatore.'9.The Superintendent, Central Prison, Coimbatore.+ 1 cc to Mr.V.Bharathidasan,Advocate,SR.33737+ 2 cc to Mr.V.Purushothaman,Advocate,SR.33524 & 34299CRL.A.NOs.626 and 636 of2008AKR(CO)EM/10.8.09