BAIL SLIPThat v. State by the Inspector of Police E-1, Mylapore Police StationMylapore, Chennai-41

BAIL SLIPThat the Appellant 2 to 8 and 11 namely(1) Francis,(2)Raja, (3)Senthil, (4) Kupusali @ Suresh, (5) Sekar @ Kozhi Sekar (6) MasalaBabu (7) Sugumar (8) Jeeva was directed to be released on bail bythe order of this Court dated. 24.07.2007 and 13.08.2007 and made inMP.1/2007 and Mp.2/2007 in Crl.A.No.577/07.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 12.11.2009CORAMTHE HONOURABLE MR. JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR. JUSTICE V.PERIYA KARUPPIAHCRL.A.No.577/20071.Francis2.Raja3.Senthil4.Kupusali @ Suresh5.Sekar @ Kozhi Sekar6.Masala Babu7.Sugumar8.Jeeva..Appellants/A2 to 8 and 11VsState by the Inspector of Police E-1, Mylapore Police StationMylapore, Chennai-41...Respondent[Cr.No.843/2003]Appeal filed u/s.374[2] Cr.P.C., filed against the Judgment andorder of conviction and sentence passed in SC.No.334/2005 dated6.7.2007 by the learned Additional District and Sessions Judge,FastTrack Court No.IV, Chennai and to set aside the same.For Appellants:Mr.R.Shunmugasundaram, SC forMr.R.Vinayaga VishnuFor Respondent:Mr.Babu Muthu Meeran, Addl. Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT[Judgment of the court was delivered by M.CHOCKALINGAM, J.]Challenge is made to the Judgment of the learned AdditionalDistrict and Sessions Judge, FTC-IV, Chennai made in SC.No.334/2005dated 06.07.2007 whereby the appellants along with A1[since deceased]and A9,A10 and A12 stood charged, tried and the appellants were foundguilty for the offence u/s.147,148,302 read with 120-B and 506[ii]IPC and on trial, they were found guilty of the charges and wereawarded with punishments as follows:-AccusedConvictionSentence awardedA2 to A8 and A11U/s.147 and 148 IPCEach of the accusedwere sentenced toundergo 2 yearsrigourous imprisonmentand to pay a fine ofRs.500/- each and indefault to undergothree months simpleimprisonment for theoffence u/s.147 and148 IPC.A2 to A8 and A11U/s.506[ii] IPCEach of the accused toundergo 7 yearsrigorous imprisonmentand to pay a fine ofRs.1,000/- each and indefault to undergothree months simpleimprisonment for theoffence u/s.506[ii]IPC.A2 to A8 and A11U/s.302 r/w 120-B IPCEach of the accusedwere sentenced toundergo lifeimprisonment and topay a fine ofRs.1,000/- each and indefault to undergothree months simpleimprisonment for theoffence u/s.302 r/w120-B IPC.The trial Judge ordered the sentences to run concurrently.After framing of the charge and before commencement of the trial, A1died and hence, the charge as against A1 stood abated. Insofar as https://hcservices.ecourts.gov.in/hcservices/ A8,A9 and A12, the court recorded an order of acquittal.2.Short facts necessary for the disposal of the appeal can bestated as follows:-[a]P.W.1 is the father of the deceased Kathirvan and P.W.16 isthe second wife of P.W.1. Apart from the said Kathiravan, P.W.1 hasgot 3 sons and a daughter and all are residents of Pallaku Maanagarat Mylapore, Chennai. One Balaji, the brother of A1, was done todeath by Deepan, one of the sons of P.W.1 on 10.05.2003 andsubsequently, he was arrested and a case was also registered. Thus,A1 and his associates who are ranked as other accused, were onenmical terms with the said Kathiravan and his family members. Onthe day of occurrence, i.e., 12.05.2003 at about 4.30 p.m. whenP.Ws.1 and 16 were sitting outside the house of P.W.16, situated infront of the Beef Stall run by the deceased Kathiravan, all theaccused armed with deadly weapons like aruvals and knives, enteredinto the Beef stall, pulled the deceased Kathiravan outside and beganto cut him indiscriminately. This occurrence was witnessed by P.Ws.1to 3 and 16. After hearing the distressing cry of the deceased,neighbours gathered and so, all the accused fled away from the scenewith weapons. Immediately, P.W.1 accompanied by others, took theseverely injured Kathiravan to the Government Hospital, Royapettah,where he was declared dead by the doctor, P.W.14, attached to thesaid hospital and Ex.P.4 is the copy of the Accident Register and thesame is also marked as Ex.D.1. [b] On receipt of intimation, P.W.17, the Inspector of Police[Law and Order], who was on duty attached to the respondent police atthe relevant point of time, went to the hospital at about 5.15 p.m.,recorded the complaint from P.W.1 under Ex.P.1 and came back to thepolice station at 6.00 p.m. and on the strength of Ex.P.1-complaint,a case came to be registered in Cr.No.843/2003 for the offenceu/s.147,148,341,324,326,302 and 506[ii] IPC and the Express FIR,Ex.P.7 reached the court at 9.30 p.m. [c]P.W.17, in continuation of his investigation, proceeded tothe scene of occurrence at about 6.30 p.m.; prepared an ObservationMahazar [Ex.P.8] and a rough sketch [Ex.P.9] in the presence ofwitnesses. He also recovered M.O.11-blood stained earth; M.O.12-sample earth under a cover of the mahazar-Ex.P.10. He also recoveredSoda Bottle pieces [M.O.13 series] in the presence of the samewitnesses under a cover of Mahazar, Ex.P.11. He also examined thewitnesses in the scene and recorded their statements. [d]P.W.17, the investigating officer went to the mortuary andheld inquest on the dead body of the deceased at about 7.00 a.m. on13.05.2003 in the presence of witnesses and panchayatdars andprepared Ex.P.12-Inquest Report. He recorded the statements of thewitnesses at the hospital and also sent the dead body of Kathiravan https://hcservices.ecourts.gov.in/hcservices/ for postmortem.[e]P.W.13, the doctor attached to the Government Hospital,Royapettah received a requisition from P.W.17, the Inspector ofPolice and conducted autopsy on the dead body of the deceasedKathiravan on 13.05.2003 at 10.30 a.m. and issued Ex.P.3-PostMortem Certificate wherein the doctor had opined that the deceasedKathiravan would appear to have died of shock and haemorhage due tomultiple injuries sustained by him.[f]In continuance of the investigation, P.W.17, the Inspector ofPolice made the following arrests of some of the accused and some ofthem surrendered before the courts concerned, the details of whichare as follows:-Rank oftheaccused Date ofArrestDate ofSurrenderPlace ofSurrenderAdmissiblepart of theConfessionalStatementMaterialObjectsrecoveredA1 andA2-13.05.2003VMetropolitanMagistrate,Egmore,Chennai.Not marked2 Knivesrecoveredunder thecover ofMahazars,Exs.P.17 &18A3-23.05.2003DistrictMunsif court,ThiruvottriyurEx.P.22KniferecoveredunderEx.P.23A4 & A5-14.05.2003XIVMetropolitanMagistrate,George Town,ChennaiNot markedKnife fromA4-Mahazarnotmarked.Knife fromA5 underEx.P.19.A6-14.05.2003JudicialMagistrateNo.2,KanchipuramNot markedKniferecoveredunderEx.P.21.A7-06.07.2003JudicialMagistrateNo.5, Egmore,ChennaiNot markedNot known https://hcservices.ecourts.gov.in/hcservices/ Rank oftheaccused Date ofArrestDate ofSurrenderPlace ofSurrenderAdmissiblepart of theConfessionalStatementMaterialObjectsrecoveredA8 toA1013.5.2003--Ex.P.13 [A8]M.Os.5,9&2recoveredunderEx.P. 14 A11-19.05.2003JudicialMagistrate,No.5, VelloreEx.P.20Mahazarnot markedA1218.5.2003--Ex.P.15M.O.10 –YamahaBike[Mahazarnotmarked]All the material objects recovered from the place of occurrence; fromthe dead body of the deceased Kathiravan and the material objectsrecovered pursuant to the confessional statements of the accused wereall subjected to chemical analysis along with a requisition whichresulted in Chemical Analyst Report and Serologist Report, viz.,Exs.P.5 and 6 respectively.[g]On completion of investigation and filing of the finalreport, the case was committed to Court of sessions; necessarycharges were framed. In order to substantiate the charges, theprosecution examined 17 witnesses [P.Ws.1 to 17], marked 23 exhibits[Exs.P.1 to 23] and produced 13 material objects [M.Os.1 to 13]. 3.When the accused were questioned u/s.313 Cr.P.C., as to theincriminating circumstances found in the evidence of the prosecutionagainst them, they denied them as false and D.Ws.1 and 2 wereexamined and Exs.D.1 and 2 were marked. Hearing the argumentsadvanced on either side and also considering the incriminatingmaterials against the accused, the trial court took a view that theprosecution has proved its case beyond reasonable doubt against theappellants/accused except A8,A9 and A12 and thus, rendered thejudgment of conviction and sentence as stated supra. As against thesaid conviction and sentence, the appellants/accused have preferredthe above appeal.4.Advancing the arguments on behalf of the appellants,Mr.R.Shunmugasundaram, the learned senior counsel would submit thatthe prosecution has miserably failed to prove its case. It iscontended that the occurrence had taken place on 12.05.2003 at about4.30 p.m. when the deceased was in his Beef stall and all the accusedwho are arrayed as A1 to A12 armed with deadly weapons went over https://hcservices.ecourts.gov.in/hcservices/ there, pulled the deceased out of the stall and attacked himindiscriminately and caused his death instantaneously. In order tosubstantiate the entire charge against the accused, the prosecutionrested its case on the direct evidence, viz., P.Ws.1 to 3 and 16 andout of these witnesses, P.Ws.2 and 3 have categorically deposed atthe time of cross-examination that whatever they deposed at the timeof chief examination, were all tutored by the police and so far asP.Ws.1 and 16 are concerned, they claim that there were the actualwitnesses to the occurrence. But, the learned senior counselsubmitted that clear evidence is available on record indicating thatthey could not have seen the occurrence at all. P.W.1 would claimthat while he was sitting in front of the Beef stall, the occurrencehad taken place and P.W.1 would further claim that immediately afterthe occurrence, he along with his wife-P.W.16, took the deceasedKathiravan to the Government Hospital, Royapettah, where he wasdeclared dead. On the contrary, P.W.16 has categorically deposedthat she did not go to the hospital along with P.W.1. Thus, it wouldbe quite clear that neither P.W.1 nor P.W.16 could have taken thedead body of the deceased to the hospital immediately after theoccurrence was over.5.Added further, the learned senior counsel would submit thatP.W.13-the doctor attached to the said hospital, who declared thedeceased as dead has given Ex.P.4-Accident Register in that regardand the same is also marked as Ex.D.1. In the said AccidentRegister, it is stated that the dead body of the deceased wasactually brought forth by two persons from public, viz., Annaduraiand Ramesh. A perusal of the document would clearly indicate thefact that neither of them, viz., P.Ws.1 and 16, could have takenKathiravan to the hospital. Further, the defence had examined thesaid Annadurai and Ramesh as D.W.1 and D.W.2 respectively, who havecategorically deposed that the dead body of the deceased Kathiravanwas found unattended in the street and that they took the dead bodyto the hospital and thus, from their evidence, it would be quiteclear that when they took the dead body to the hospital, neitherP.W.1 nor P.W.16 was present. It was also not the evidence of P.Ws.1and 16 that immediately after the occurrence was over and afterwitnessing the same, they left the place. But, P.W.1 would add thatimmediately after the occurrence, he took the dead body to thehospital. All would go to show that P.Ws.1 and 16 could not havebeen present at the scene of occurrence at all.6.The learned senior counsel would further contend that so faras the recoveries of the material objects are concerned, they areactually planted in order to strengthen the case of the prosecution.The prosecution showed two witnesses in the list of witnesses forrecovery, viz., P.W.12 and other person. However, P.W.12 did notsupport the prosecution case and the prosecution ought to haveexamined the other witness but failed to do so. Hence, the allegedconfessions and recoveries of material objects from the accused https://hcservices.ecourts.gov.in/hcservices/ automatically fails and that part of the evidence was not availablefor the prosecution to fasten the guilt on the accused and it can bewell stated that the prosecution has miserably failed to prove itscase. On the contrary, the learned Trial Judge has taken anerroneous view accepting the evidence as put forth by the prosecutionat the time of chief examination and forgetting the creditability ofthe evidence given at the time of cross examination and hence, theJudgment of the trial court has got to be set aside and theappellants/accused are entitled for acquittal in the hands of thiscourt.7.Heard the learned Additional Public Prosecutor on the abovecontentions and the court paid its anxious consideration on thesubmissions made on either side.8.It is not in controversy that one Kathirvan, following anincident that took place on 12.05.2003 at about 4.30 p.m., was takento the Government Hospital, Royapettah where P.W.14, the doctor whoexamined Kathirvan, declared him dead and after following theprocedural formalities, P.W.17, the Inspector of Police, sent thedead body for Postmortem and the dead body was subjected topostmortem by P.W.13, the doctor attached to Government Hospital,Royapettah, who has given a categorical opinion that the deceaseddied out of shock and haemorrhage due to multiple injuries sustainedby him and the fact that the deceased Kathiravan died out ofhomicidal violence was not disputed by the appellants/accused andother accused before the trial court and accordingly, the trial courtdid not feel any impediment in recording so and hence, it has got tobe affirmed.9.In order to substantiate that it was the accused persons,armed with deadly weapons, pulled the deceased out of his Beef stalland attacked him with knives and aruvals indiscriminately and causedhis instantaneous death, the prosecution marched P.Ws.1 to 3 and 16as eyewitnesses. As rightly pointed out by the learned seniorcounsel for the appellants, the evidence of P.Ws.2 and 3 has got tobe rejected since both of them have categorically deposed duringcross-examination that whatever they deposed in the chiefexamination, was a tutored one by the police. Hence, their evidencewould be of no use for the prosecution. Insofar as P.Ws.1 and 16,they have claimed themselves to be the eyewitnesses to theoccurrence. But their evidence, if scrutinised carefully, casts adoubt in the minds of the court. P.W.1 is the father and P.W.16 isthe step-mother of the deceased Kathiravan and naturally they cannotbe expected to speak contra. Both have deposed during the chiefexamination that they have witnessed the occurrence. Since they arenot only interested witnesses but also related witnesses, this court,before accepting their evidence, must exercise the careful scrutinytest and if such test is applied, this court is afraid whether it canaccept their evidence. P.W.1 has claimed that he was very well https://hcservices.ecourts.gov.in/hcservices/ available along with P.W.16 when the occurrence had taken place.But, P.W.1 would further add that immediately after the occurrence,he took the dead body along with P.W.16 to the hospital and it is nothis case that either P.W.16 or himself left the place of occurrenceafter the occurrence was over. On the contrary, P.W.16 hascategorically deposed during the cross-examination that she neverwent to the hospital with her husband, P.W.1 and thus, it is highlydoubtful whether P.W.1 or P.W.16 could have gone to the hospitalalong with the dead body of the deceased.10.Added circumstance which would indicate that neither P.W.1nor P.W.16 could have seen the occurrence at all is the evidence ofP.W.14, the doctor who attended the dead body of the deceased anddeclared him dead and also the contents of Ex.P.4-the AccidentRegister pertaining to the deceased which also is marked as Ex.D.1 onthe side of the defence. A perusal of these documents would clearlyindicate that one Ramesh and Annadurai brought the dead body andP.W.14 has also categorically deposed that the dead body of thedeceased was brought by two persons who are from public, viz., Rameshand Annadurai and they were examined as Dws.1 and 2 respectively.From their evidence, it would be quite clear that the body of theKathiravan remained in the street unattended and under suchcircumstances, they took the dead body to the hospital in order tosave him. To further add, P.Ws.1 and 16, had they really witnessedthe occurrence, could have accompanied the dead body of the deceasedto the hospital. When Dws.1 and 2 has deposed that the body remainedunattended and so long as P.Ws.1 and 16 did not claim that they movedaway from the place of occurrence and they took the dead body to thehospital, as put forward by the prosecution, it would clearlyindicate that P.Ws.1 and 16 could not have been present in the placeof occurrence. Hence, the evidence of P.Ws.1 and 16 is shrouded withsuspicion. So long as the evidence of P.Ws.1 and 16 is not believed,it can be well stated that the prosecution has no further directevidence to strengthen its case. 11.As far as the confessions and recoveries are concerned, theprosecution did not have any evidence at all. It is true that theprosecution claimed that all the accused were interrogated and atthat time, they voluntarily gave confessional statements when theywere in the police custody and the same were recorded. According tothe investigating officer, the material objects were recoveredincluding the weapons of crime pursuant to the confessionalstatements of the accused. But, the prosecution, in order tosubstantiate the recoveries, listed 2 witnesses out of whom, one wasexamined before the court as P.W.12 and he did not support theprosecution case and the other witness was not at all examined. In agiven case, when number of witnesses are listed in order tosubstantiate the alleged confession and recovery and if one of thewitnesses examined turns hostile or did not support the prosecutioncase, a duty is casts upon the prosecution to examine the other https://hcservices.ecourts.gov.in/hcservices/ witness. But, in the instant case, since P.W.12 did not support theprosecution for the alleged recoveries, the prosecution ought to haveexamined the other witness before the trial court but not done so forthe reasons best known to them. Under such circumstance, the witnessexamined by the prosecution in respect of the alleged confessions andrecoveries, viz., P.W.12, did not get the acceptance of this courtand equally the evidence of the other part remained unproved.Therefore, the Judgment of the trial court has got be made undone byupsetting the same and the appellants are entitled for acquittal.12.Accordingly, the appeal is allowed and the judgment ofconviction and sentence against the appellants/A2 to A8 and A11passed by the learned Additional District and Sessions Judge,FastTrack Court No.IV, Chennai in SC.No.334/2005 dated 06.07.2007 is setaside.13.The bail bond executed by them shall stand terminated. Thefine amount, if any paid, shall be refunded to them. Sd/- Asst.Registrar/true copy/ Sub Asst.RegistrarapTo1. The Metropolitan Magistrate XVIII, Saidapet, Chennai.2. -do- Thro' The Chief Metropolitan Magistrate,Egmore, Chennai.3.The Additional District and Sessions Judge, Fast Track Court No.IV, Chennai.4. -do- Thro' The Principal District Judge, Chennai.5.The Inspector of Police E-1, Mylapore Police Station Mylapore, Chennai-41.6.The Public Prosecutor, High Court, Chennai.7.The Superintendent, Central Prison, Puzhal, Chennai.8. The District Collector, Chennai.9. The Director General of Police, Chennai.Crl.A.No.577 of 2007MBS(CO)EM/8.12.09