High Court · 2009

Bail SlipThe Appellant/Accused viz., Sivakumar @ Siva, S/o.Ramasamy wasdirected to be released on bail as per order of this Court dated21.08.2007 and made in Crl.M.P.No.1/07 in Crl.A.No.682/2007 on thefile of this Court.Bail SlipThe Appellant/Accused viz., Panneer Selvam @ Panneer,S/o.Natchimuthu was directed to be released on bail as per order ofthis Court dated 28.11.2007 was made in Crl.M.P.No.2/07 in Crl.AppealNo.586/2007 on the file of this Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 29.06.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRIMINAL APPEAL Nos.586 & 682 of 20071. Paneer Selvam @ Paneer (A1)2. Arul Kumar @ Arul(A3)3. Manikandan @ Mani(A4)4. Vijaykanth(A5).. Appellants in Crl.A.586/20075. Sivakumar @ Siva(A2).. Appellant in Crl.A.682/2007Vs.State by Inspector of Police,B-9, Saravanampatti Police Station,Coimbatore... Respondent in both the Appeals. These criminal appeals have been preferred under Section 374Cr.P.C. against the judgment of the learned Additional DistrictSessions Judge, Fast Track Court No.III, Coimbatore made inS.C.No.242 of 2006 dated 14.6.2007. For Appellants in Crl.A.No.586/2007 : Mr.Ramesh Kumar Chopra For Appellant in Crl.A.No.682/2007 : Mr. A.R.SureshFor Respondent : Mr.N.R.Elango, APP https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT(The judgment of the Court was made by M.CHOCKALINGAM, J.)This judgement shall govern these two appeals viz.,Crl.A.No.586/2007 filed by A1, A3 , A4 & A5 and Crl.A.No.682/2007filed by A2, whereby these appellants stood charged, tried and foundguilty as follows:ACCUSEDCHARGESFINDINGSSENTENCEA1S.120(b)IPCGuilty2 years R.I.A1S.147 IPCNot Guilty...A1S.148 IPCGuilty3 years R.I.A1S.302 IPCGuiltyLife imprisonment alongwith fine of Rs.1000/-i/d three months R.I.A2S.120(b) IPCGuilty2 years R.I.A2S.147 IPCGuilty2 years R.I.A2S.302 r/w 109and 120(b)IPCGuilty u/s302 IPCLife imprisonment alongwith fine of Rs.1000/-i/d three months R.I.A3S.120(b) IPCGuilty2 years R.I.A3S.147 IPCGuilty2 years R.I.A3S.302 r/w 109and 120(b)IPCGuilty u/s302 IPCLife imprisonment alongwith fine of Rs.1000/-i/d three months R.I.A4120(b) IPCGuilty2 years R.I.A4S.147 IPCNot Guilty....A4S.148 IPCGuilty3 years R.I.A4S.302 IPCGuiltyLife imprisonment alongwith fine of Rs.1000/-i/d three months R.I.A5S.120(b) IPCGuilty2 years R.I.A5S.147 IPCNot Guilty....A5S. 148 IPCGuilty3 years R.I.A5S.302 IPCGuiltyLife imprisonment alongwith fine of Rs.1000/-i/d three months R.I.The sentences are ordered to run concurrently. 2.The short facts necessary for the disposal of these appealscan be stated as follows: https://hcservices.ecourts.gov.in/hcservices/ (a) The deceased Babu, P.W.2- Alagendran and A1 to A5 werefriends and all are residing in the same place. One year prior to thedate of occurrence, on a festive occasion of Mariamman temple atChokkan garden, the deceased Babu stamped the leg of the firstaccused while dancing, for which, all the accused beat the deceasedBabu. Hence, the relationship between the accused and the deceasedbecame strained. On 27.2.2006 at about 5.30 p.m., P.W.1 and thedeceased went to Autokaran wine shop and consumed liquor and whenthey came out, they saw A1 crossing them and on seeing him, thedeceased Babu kicked A1. A1 got angry, scolded him and left theplace. Thereafter, P.W.1 and the deceased went to a tea stall andthey had tea. At that time, A2 came there and told the deceased thatregarding the earlier incident, the matter has to be solved betweenthe deceased and A1 and on saying so, A2 took the deceased Babualong with him. P.W.1, entertaining suspicion, accompanied them. Whenthey came near the occurrence place, A1 armed with aruval stabbedthe deceased Babu at difference parts of the body and A4 got theknife from A1 and stabbed the deceased and A5 also snatched the knifefrom A4 and stabbed the deceased. The occurrence was witnessed byP.Ws. 1 to 4. When they raised alarm, all the accused fled away fromthe place of occurrence. (b) Immediately, the matter was informed to the relatives. Theseverely injured Babu was taken in the auto of P.W.14 and he wastaken to different hospitals and final, he was taken to Kovai MedicalCentre where the doctor declared him dead. Immediately, intimationwas given to the respondent Police Station. P.W.22, Sub- Inspector ofPolice, proceeded to the Hospital and recorded the statement of P.W.1which was marked as Ex.P1. On the strength of Ex.P1, he registered acase in Crime No.268/2006 under Section 302 I.P.C. The expressF.I.R., Ex.P13 was despatched to Court.(c) P.W.23, the Inspector of Police, took up investigation. Heproceeded to the spot, made and inspection and prepared theobservation mahazar and drew a rough sketch Ex.P21. He conductedinquest on the dead body of Babu in the presence of witnesses andpanchayatdars and prepared Ex.P15- inquest report. The dead body wassubjected to post mortem and P.W.20 doctor conducted autopsy on thedead body of the deceased and gave his opinion in Ex.P11 post mortemcertificate wherein he has opined that the deceased would appear tohave died due to multiple stab injuries sustained by him. (d) Allthe accused were arrested. A1 gave confessional statement and theadmissible part of the confession made by A1 was marked as Ex.P8. Healso produced M.O.1 knife which was recovered under a cover ofmahazar. All the accused were sent for judicial remand. All thematerial objects recovered from the place of occurrence, from thedead body of the deceased and M.O.1 recovered from the accused weresubjected to chemical analysis which resulted in the chemical reportand the serologist report and they were also placed before theconcerned Judicial Magistrate Court. On completion of theinvestigation, the investigating officer filed a final report.(e) The case was committed to the Court of Sessions. Necessarycharges were framed. In order to substantiate the charges, theprosecution marched 23 witnesses and relied on 21 exhibits and 5material objects. On completion of the evidence on the side of the https://hcservices.ecourts.gov.in/hcservices/ prosecution, the accused were questioned under 313 Cr.P.C. and theydenied them as false. No defence witness was examined and nodocuments were marked. The trial Court heard the arguments advancedon either side and took a view that the prosecution has proved itscase beyond reasonable doubt and rendered the judgement of convictionand sentence as stated above, which is the subject matter ofchallenge before this Court. 3. Advancing the argument on behalf of the appellants learnedcounsel would submit, according to the prosecution, the occurrencehas taken place on 27.2.2006 at 8.00 p.m. Though P.Ws.1 to 4 wereshown as eye witnesses, P.W.3 and P.W.4 have turned hostile. P.Ws. 1and 2 have spoken about the prosecution story.4. Learned counsel further submitted that according to P.W.1,both himself and the deceased went to Autokaran Wine shop and tookliquor and they came out of the shop. At that time, A1 came there andon seeing him, the deceased kicked him. A1 left the place with anger.Then, P.W.1 and the deceased Babu proceeded in a cycle to a tea stalland had tea. A2 came there and took the deceased to the scene ofoccurrence under the guise of pacifying the entire affairs between A1and the deceased. P.W.1 also accompanied him. At that time, theoccurrence has taken place. Learned counsel would further add thata reading of the earliest document Ex.P1- report would not indicatethe names of A4 and A5 and no overt act was shown against them. Thus,it is quite clear that A4 and A5 could not have been in the place ofoccurrence at all. Ex.P1 refers to the names of A1 and A2 only andit does not speak about the name of A3 but would state that a blackperson with curly hair. As far as A3 was concerned, noidentification parade was conducted and it does not refer tothe presence of P.W.2 at all. P.W.3 and P.W.4 have turned hostile.The learned counsel would further add, it is highly doubtful whetherP.W.1 could have seen the occurrence. According to P.W.1, he and thedeceased went inside the wine shop and both had liquor but he hascategorically stated in the cross examination that he did not haveliquor at all along with the deceased and the statement made in Ex.P1report was false. The learned counsel would add that even the postmortem doctor has categorically opinion that there is nothing toindicate that the deceased consumed alcohol. 5. Added further learned counsel, all the answers given by P.W.1at the time of cross examination would indicate that he could nothave been present at the time of occurrence. P.W.1 has stated that hedid not give the names of the accused in Ex.P1 report but their namesare found. All would go to show that P.W.1 would not have seen theoccurrence at all. Only after the occurrence had taken place, P.W.1would have been informed about the occurrence and then, he wouldhave gone to the place of occurrence and after seeing the dead body,he has given the false report. Even the medical opinion canvassed bythe prosecution through the post mortem doctor that Babu died ofhomicidal death will not help the prosecution case to bring home theguilt of the accused. https://hcservices.ecourts.gov.in/hcservices/

6. Added further learned counsel, the prosecution relied on thealleged recovery of M.O.1- knife, following the confession statementgiven by A1. It is settled principle of law that the recovery ofweapon of crime alone would not be suffice to sustain conviction.Under such circumstances, the lower Court has taken an erroneous viewand found the accused guilty. Hence, it has got to be set aside bythis court and the appellants are entitled for acquittal in the handsof the Court.7. The Court heard the learned Additional Public Prosecutor onthe above contentions and paid its anxious consideration of thesubmissions made.8. It is not in controversy that one Babu, following theincident that had taken place at 8.00 p.m. on 27.2.2006 was taken tothe hospital where he was declared dead and following the inquestmade by P.Ws. 23 investigating officer, the dead body was subjectedto post mortem. P.W.20 doctor gave categoric opinion that thedeceased would appear to have died due to multiple stab injuriessustained by him. The said fact was never disputed by the appellantsbefore the trial Court. Hence, it could be recorded so.9. In order to substantiate that at the time of occurrence itwas A2 and A3 facilitated the crime of murder by catching hold of thedeceased Babu and A1, A4 and A5 stabbed the deceased Babu, theprosecution marched 4 witnesses but a perusal of the testimony ofP.Ws. 3 and 4 would clearly indicate that they exposed hostileattitude. Thus, the witnesses available for the prosecution areP.Ws.1 and 2 only. A reading of the earliest document Ex.P1 wouldindicate that the presence of P.W.2 at the time of occurrence was notfound. The scrutiny of evidence of P.W.1 would show that heaccompanied the deceased, went to the autokaran wine shop and hadbrandy and when they came out of the shop,they saw A1 and it was thedeceased who kicked A1 and A1 got angry but he left the place andthereafter, P.W.1 and the deceased Babu proceeded to a tea stall andhad tea and A2 came there and took the deceased with him to the placeof occurrence and following the same, the incident had taken place atthe scene of occurrence. 10. As rightly pointed out by the learned counsel for theappellants, a careful scrutiny of the evidence of P.W.1 throws thefollowing doubts in the mind of the Court which in the opinion of theCourt are reasonable doubts which are not clarified by theprosecution. 11. According to P.W.1, he accompanied the deceased to liquorshop and had liquor but at the time of cross examination he hasstated neither he nor the deceased had liquor and he did not haveliquor with the deceased and the averment in Ex.P1 would be nothingbut false. Hence, it cast a doubt whether P.W.1 could haveaccompanied the deceased and witnessed the occurrence. Further,P.W.20 the post mortem doctor deposed that nothing was found in thestomache to indicate consumption of alcohol by the deceased. The https://hcservices.ecourts.gov.in/hcservices/ other point raised by the learned counsel is that P.W.1 hascategorically admitted that when he went to the police station andgave Ex.P1 report, he did not give the names of the accused but thenames of A1 and A2 were actually found in Ex.P1 report. Further, theprosecution came forward to speak about 5 accused persons butP.Ws.1 and 2 have categorically spoken that A4 and A5 were present atthe time of occurrence but in Ex.P1 report there is no indicationabout the presence of A4 and A5. Further, when the evidence of P.W.1was carefully scrutinised, it does not stand the scrutiny test,since, in the opinion of the Court, when reasonable doubts areavailable, duty is cast upon the prosecution to explain the same butthe prosecution miserably failed to do so. In the absence of suchreasonable doubts which remains not clarified, even before thisCourt, the Court is afraid whether it could sustain the conviction asdone by the lower Court. Hence, benefit of doubts must be given tothe appellants/accused to which they are entitled to. The Court is ofthe considered opinion that it would be unsafe to sustain theconviction on the evidence brought forth by the prosecution. Thelower court, without considering all the above aspects, haserroneously found the appellants guilty and hence, the judgment ofthe lower court has got to be made undone only by upsetting the same. 12. Accordingly, this criminal appeals are allowed, settingaside the conviction and sentence imposed on the appellants by thecourt below. The appellants are acquitted of the charges levelledagainst them. The bail bonds if any executed by the appellants shallstand terminated and the fine amounts if any paid by them is orderedto be refunded to them.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvsiTo1.The Additional District Sessions Judge, Fast Track Court No.III Coimbatore2. -do- Through The Principle Sessions Judge, Coimbatore.3. The Judicial Magistrate No.II, Coimbatore.4. -do- Through The Chief Judicial Magistrate, Coimbatore.5. The Superintendent, Central Prison, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/

6. The Inspector of Police, B-9, Saravanampatti Police Station, Coimbatore. 7. The Public Prosecutor, High Court,Madras. 8. The Director General of Police, Coimbatore.9. The District Collector, Coimbatore.CRL.A.Nos.586 & 682 of 2007PKB(CO)RVL 17.07.2009