Criminal Appeal No. 711 of 2008 · High Court · 2009

Bail SlipThe Appellant/ Accused No.4 Viz R. Marimuth S/o Palainpandi wasdirected to be released on bail as per the order of the Court dated30.9.2008 in crl M.P.No.1 of 2008 in Crl.A.No.711 of 2008.The Appellant/Accused No.5 Viz S. Manikandan, S/o Subramani wasdirected to be released on bail as per the order of the Court dated4.01.2008 in Crl M.P.No.1 Of 2007 in Crl.A.No.1151 of 2007.The Appellant/Accused No.6 Viz Jeyachandran, S/o Vivekanathanwas directed to be released on bail as per the order of the Courtdated 11.09.2007 in crl.M.P.No.1/2007 in Crl. A.No.794 of 2007.IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.07.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRIMINAL APPEAL Nos.711 of 2008 , 794 and 1151 of 2007 Marimuthu.. Appellant in C.A.No.711/2008/Accused No.4 Manikandan.. Appellant in C.A.No.1151/2007/Accused No.5 Jeyachandran.. Appellant in C.A.No.794/2007/Accused No.6 Vs.State byInspector of Police,Vadavalli Police Station,Coimbatore.(crime No.478 of 2006).. Respondent in all the appeals/Complainant https://hcservices.ecourts.gov.in/hcservices/ These appeals are preferred under Section 374 Cr.P.C against theorder of the learned Additional District and Sessions Judge, FastTrack Court No.2 at Coimbatore made in S.C.No.14 of 2007 dated25.6.2007.For Appellant inCrl.A.No.711/2008 : Mr. S.Nambi ArooranFor Appellant inCrl.A.No.1151/2007 : Mr. R.Sankarasubbu for Mr.RajanikanthFor Appellant inCrl.A.No.794/2007 : Mr. ShanmughavelayuthamSenior Counsel for Mr.P.RamrajFor Respondent : Mr.N.R.Elango,A.P.P.- - - -COMMON JUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM. J.)These three criminal appeals concentrate in challenging theJudgment of the Additional Sessions Division, Coimbatore in S.C.No.14of 2007 whereby the appellant/A6 in Crl.A.No.794/2007, theappellant/A5 in Crl.A.No.1151/2007 and the appellant/A4 inCrl.A.No.711/2008 along with three other accused/A1 to A3 stoodcharged tried and found guilty and awarded punishments as follows:ACCUSEDCHARGESFINDINGPUNISHMENTA-1 to A6148 IPC.Guilty1 year R.I.along with fineof Rs.500/- i/d3 months S.I.eachA-1 324 IPCGuilty1 year R.I alongwith fine ofRs.500/- i/d 3months S.I.A-2324 r/w 149 IPCGuilty1 year R.I.along with fineof Rs.500/- i/d3 months S.I.A-1 & A-2341 r/w 149 IPCGuilty1 months R.I.along with fineof Rs.100/- i/d1 week S.I. each https://hcservices.ecourts.gov.in/hcservices/ ACCUSEDCHARGESFINDINGPUNISHMENTA-1 & A-2302 IPCGuiltyLifeImprisonmentalong with fineof Rs.1000/- i/done year R.I.eachA-3 to A-6341 r/w 149 IPCGuilty1 month R.I.along with fineof Rs.100/- i/d1 week S.I. eachA-3 to A-6302 r/w 149 IPCGuiltyLifeImprisonmentalong with fineof Rs.1000/- i/done year R.I.The sentences are ordered to run concurrently.2. The short facts necessary for the disposal of these appealscan be stated thus:(a) P.W.1 is the brother and P.W.2 is the relative of thedeceased Mayakumar. They were residents of Tuticorin. During therelevant time, Mayakumar was employed at K.G. Mill and he used to gofor work during day time and during night time he was working as aWatchman in Krishna School. P.W.1 was also staying in the room whereMayakumar was staying. Mayakumar had illicit intimacy with oneKumudha. This came to the knowledge of Jaya, wife of Mayakumar, dueto which, often there was quarrel between them. At one stage,Mayakumar took Kumudha and went to his native place Pudupatti. Oncoming to know about the same, Jaya, wife of Mayakumar gave acomplaint in the All Women Police Station, Srivaikundam which wastreated as C.S.R.S.No.56/2006. P.W.10 Sub-Inspector conductedenquiry and Mayakumar gave assurance that he would live with her andhence, the enquiry was closed. The said proceedings was marked asEx.P15. Contrarily, Mayakumar filed a divorce O.P. before the CivilForum, Tuticorin. Summons were served upon Jaya, wife of Mayakumar.On 28.7.2006 at 8.00 a.m., Mayakumar went for his work at K.G. Mills.On that day, Jaya wife of Mayakumar went to K.G. Mills and wasstanding in front of the Mill from morning till evening. P.W.16,Security Guard, inquired her, for that, she replied that her husbandwas working inside the Mill and that she was waiting for him. Sometime later, Mayakumar came out in a cycle. Jaya caught hold of hisshirt and quarreled with him. At that time, P.W.1 and P.W.2intervened and pacified them. She gave a complaint Ex.P25 atVadavalli Police Station which was enquired by P.W.18. SinceMayakumar informed that a divorce case was pending before the CivilForum at Tuticorin, P.W.18 told them that they should get remedy https://hcservices.ecourts.gov.in/hcservices/ before the Court of Civil law. While leaving the place, Jaya made achallenge that she would see to him.(b) On 29.7.2006 Mayakumar went for his job and returned by10.00 p.m. and slept along with P.W.2. At about 11.00 p.m.,on hearing the knock of the door, P.W.2 opened the door and saw A1and A2 along with four others. A1 asked P.W.2, where his brother-in-law was, at that time, Mayakumar also woke up and came out of thehouse. On seeing him, A1 asked him "Why are you beating my sister?",saying so, he attacked the deceased with aruval on his shoulder,then the accused dragged the deceased to the nearby bush and A1 andA2 attacked him severely on different parts of the body and whenP.W.2 intervened, it was A2 who cut him and A2 also sustainedinjuries. When A3 made a cut, the aruval fell down and in thatprocess, A1 sustained injuries. When there was distress cry, all theaccused fled away from the place of occurrence. P.Ws. 1 and 2 were infear and hence, they went inside the house and did not come outthroughout the night and only on the next day morning P.W.1 gave acomplaint Ex.P.1 to P.W.20. (c) On the strength of the complaint Ex.P1 given by P.W.1, acase came to be registered in Crime No.478/2006 under section 302I.P.C. The express F.I.R. Ex.P30 was dispatched to Court and the copywas served on to P.W.21 Inspector of Police of that circle. P.W.21Investigating Officer, took up investigation, proceeded to the spot,made an inspection in the presence of witnesses and panchayatdars,prepared the observation mahazar Ex.P31 and also drew a rough sketchEx.P32. He conducted inquest on the dead body of the deceased andprepared Ex.P33 inquest report. He also recovered all the materialobjects from the place of occurrence including the blood stainedearth and sample earth. Thereafter, the dead body was subjected topost mortem. (d) P.W.9, doctor attached to the Government Hospital,Coimbatore conducted autopsy on the dead body of the deceasedMayakumar and issued post mortem certificate Ex.P.14 wherein he hasgiven opinion that the deceased would appear to have died of shockand haemorrhage due to multiple injuries sustained on him.Thereafter, P.W.9. doctor examined P.W.2 and gave the woundcertificate Ex.P6. (e) Pending investigation, it was A3 who was first arrested on2.8.2006. He gave confessional statement and the admissible partwas marked as Ex.P35 pursuant to the confession, he produced M.O.8shirt which was recovered under a cover of mahazar. Further, heidentified A4 to A6 and they were all arrested. A6 gave confessionstatement and the admissible part was marked as Ex.P36. He alsoproduced shirt M.O.10 and iron rod M.O.4 which was also recoveredunder a cover of mahazar. A4 gave confessional statement and theadmissible part of the same was marked as Ex.P38 and he produced the https://hcservices.ecourts.gov.in/hcservices/ shirt and iron rod and the same were recovered under a cover ofmahazar-Ex.P18. A5 and A6 gave confessional statement and A5 producedshirt and iron rod which were recovered under a cover of mahazarEx.P.19. Thereafter, all the accused were sent for judicial remand.(f) Identification parade was conducted by P.W.19 JudicialMagistrate pursuant to the orders of the Chief Judicial Magistrateof that said place. So far as A3 to A6 were concerned, they wereidentified by P.Ws.1 to 3. The proceedings of the identificationparade was marked as Ex.P29. (g) A2 was arrested on 9.8.2006. He gave confessional statementvoluntarily and the admissible part was marked as Ex.P20. He producedM.O.1 aruval. Following the same, A1 was arrested. He gaveconfessional statement and the admissible part was marked as Ex.P22.Pursuant to which M.O.2 aruval was recovered. The accused were sentfor judicial remand. All the material objects were subjected tochemical analysis by the Forensic Department which resulted in tworeports and they were also placed before the Judicial MagistrateCourt. On completion of the investigation, the investigating officerfiled a final report. (h) The case was committed to the Court of Sessions. Necessarycharges were framed. In order to substantiate the charges leveledagainst the accused, the prosecution examined 21 witnesses and reliedon 39 exhibits and marked 15 material objects. 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 and they denied them asfalse. No defence witness was examined. The lower Court heard thearguments advanced on either side, considered the materials availableon record and the submissions made on either side and took a viewthat the prosecution has proved its case beyond reasonable doubt andfound the appellants guilty along with the three other accused andrendered the judgment of conviction and sentence as referred to abovewhich was challenged by the appellants/A4to A6 in these appeals.3. Advancing the argument on behalf of the appellantsMr.Shanmughavelayutham, learned Senior counsel inter alia made thefollowing submissions. (a) In the instant case, the specific case of the prosecution isthat the occurrence had taken place at 11.00 p.m. on 29.7.2006. P.Ws.1 to 3 are the eye witnesses. P.W.1 is the brother and P.Ws.2 & 3 arethe close relatives of the deceased. They have actually seen theheinous crime of murder of Mayakumar but have given a report to thepolice station which is situate nearby to the place of occurrenceonly the next morning at 6.30 a.m. There was a huge delay in givingthe report. The explanation which was tendered before the trial Courtis that they were under the grip of fear and hence, they did not go https://hcservices.ecourts.gov.in/hcservices/ to the Police station which is unbelievable and unacceptable. (b) The learned counsel further submitted that according to theprosecution, P.W.1 went to the police station at about 6.30 a.m. andgave a report Ex.P1 to P.W.20 Sub Inspector of Police. Ex.P1 wouldclearly indicate the names of A1 and A2 along with other fourpersons, but the names of the other four persons were not mentioned.The case was also registered under section 302 I.P.C. and theevidence of P.W.20 would clearly indicate that when Ex.P1 wasprepared, only two accused names were mentioned and the other fouraccused names were not mentioned. He has also categorically deposedthat it was surprise to him to look into the F.I.R. where the namesof all the six persons were mentioned, when originally only the namesof A1 and A2 were mentioned and the names of other four persons werenot mentioned. Had it been true that originally six accused nameswere mentioned in the F.I.R., the other provisions of sectionsviz., 149, 147 would have been added, but not done so.(c) The learned Senior counsel pointing to the evidence of theInvestigating Officer would submit that the Investigating Officer hascategorically admitted that when he received Ex.P1- copy of theF.I.R. the names of only two accused were found and the otheraccused names were not found there but the FIR copy which was shownto him before the Court contains all the six names which was asurprise to him and he could not explain how it happened. LearnedSenior counsel further pointed out that in the FIR originally, thenames of two accused/A1 and A2 were mentioned and the names of A4,A5 and A6 apart from A3 are later introduced. The prosecution hadno explanation to offer as to how the names got introduced in theF.I.R. On the contrary, the evidence of P.W.20 and P.W.21 would putan end to the prosecution case in respect of these appellants. (d) Added further learned counsel, in the instant case,identification parade was conducted. When P.Ws. 1 to 3 and theaccused came for the first time, no identification parade wasconducted. Only on the second time, identification parade wasconducted. Though the witnesses were summoned, no proper explanationwas tendered by the prosecution why on the first occasion,identification parade was not conducted. Actually, the firstoccasion was utilised by the Investigation Officer to identify theaccused by the witnesses. Added further, in so far as theidentification proceedings is concerned, they cannot be given anyevidentiary value for the simple reason that when identificationparade conducted in respect of A3 to A6, A3 was shown as A1, A4 wasshown as A2, A4 was shown as A3. Therefore, this identificationparade would be only as against the prosecution case.(e) Added further learned counsel, P.W.2 was not only the eyewitness but also injured witness. In the earliest document, Ex.P6Accident Register given by P.W.7 doctor who examined P.W.2 it is https://hcservices.ecourts.gov.in/hcservices/ shown that P.W.2 informed to the doctor that he sustained injurieswhen he was assaulted by six known persons with aruval at 11.00p.m on 29.7.2006. If this statement made by A2 was correct, all thesix persons names would have mentioned in the original report but itcontained only two names and the other four names were not mentioned.Therefore, two F.I.R. should have been registered and the firstF.I.R. was not before the Court. In the second F.I.R., all theaccused names were shown. Hence, the entire story of the prosecutionis false. (f) The learned counsel as the last line of argument wouldsubmit that the appellants before the Court who are shown as A4, A5and A6 were actually not on the same footing. A1 and A2 have notappealed against the judgment of the trial Court. As far as theseappellants are concerned, the prosecution has neither any evidence tooffer nor there is case as against these appellants. Under suchcircumstances, the appellants are entitled for acquittal in the handsof the Court. 4. The learned counsel appearing for the other appellantsadopted the above arguments advanced by the learned Senior counsel.5. The Court heard the learned counsel appearing for the Stateand paid its anxious consideration on the submissions made.6. It is not in controversy that following the inquest made inthe dead body of one Mayakumar, the same was subjected to postmortem. P.W.9 doctor who conducted autopsy on the dead body of thedeceased gave his categoric opinion as witness before the Court andalso in the post mortem certificate Ex.P.14 that the deceased wouldappear to have died of shock and haemorrhage due to multiple injuriessustained on him. The fact that Mayakumar died out of homicidalviolence was never disputed by the appellants at any stage of theproceedings. Hence, it could be safely recorded that Mayakumar diedout of homicidal violence.7. In order to substantiate the charges leveled against theseappellants, three in number, shown as A4, A5 and A6 along with theother three accused, the prosecution marched three witnesses as eyewitnesses. Out of these three witnesses, P.W.2 was the injuredwitness. The Court is mindful of the caution made by the Apex Courtand the settled principles of law that in a given case if the eyewitness is shown as injured the Court should not discard hisevidence unless strong circumstances or reason are noticed. In theinstance case, on scrutiny of the evidence available, the court isafraid whether it could sustain the judgment of conviction andsentence entered by the court below.8. According to the prosecution, the occurrence had taken placeat about 11.00 p.m. on 29.7.2006. The person who was actuallymurdered was the own brother of P.W.1 and the close relative of https://hcservices.ecourts.gov.in/hcservices/ P.Ws.2 & 3. According to the prosecution A1 and A2 were armed aruvaland the other accused, four in number, were actually standing bytheir side armed with iron rods. Even after seeing the cold bloodedmurder, the report was given to the police station at 6.30 a.m., thenext morning. The explanation tendered by the prosecution side thatthey were under the grip of fear, hence, they did not go to thepolice station till morning, cannot be accepted for the reason thatwhen such heinous crime has taken place, and the police station issituate nearby, a reasonable conduct of the witness is to rush to thepolice station or to seek the help of others but the witnesses wentinside the house and locked and waited till dawn and gave thecomplaint, could not be believed. P.W.2 was taken to the hospital andhe was given treatment. Ex.P6 is the accident register in thatregard which reads " Alleged to have sustained injury while beingassaulted by 6 known person with (knife) mhpths; at about 11.00 p.m.on 29.6.2007 at the above address." From this statement contained inEx.P6, it could be taken that all the six persons were known to him.According to the prosecution, P.W.1 went to the respondent policestation and gave Ex.P1 report which shows that "KUfd;.GhyfpUc&;z;d. Kw;Wk; 4 ngh;fSld; te;J.... ". Now at this juncture,the contentions putforth and critisized by the learned counsel forthe appellant are to be considered.9. As per the evidence available it would clearly indicate thatEx.P1 reached the Court at 4.00 p.m. and the Judicial Magistrate hasinitialed therein. Ex.P1 report and the F.I.R. which was actuallybefore the Court and initialed by the Magistrate are found to bedifferent. It is needless to say that a case would be registered bythe police and would be assigned crime number only on the strengthof the complaint given by a party. In the instant case, theprosecution has not given up Ex.P1. According to P.W.1, Ex.P1 wasthe report given by him. A perusal of Ex.P1 report would indicatethat the names of A1 and A2 alone were mentioned and the names of theother accused were not mentioned but the F.I.R. what is now reliedon by the prosecution shows the names of six accused. The duty iscast upon the prosecution to explain as to how the names of the otherfour accused came to be included in the F.I.R. and why they were notfound in Ex.P1 report, but the prosecution has not discharged itsduty by explaining the same. On the other hand, the evidence placedby the prosecution through P.W.20 Sub inspector of Police whoregistered the case and P.W.21 who conducted the investigation wereactually against the prosecution. 10. According to P.W.20, P.W.1 came to the police station andgave a report and the same was reduced into writing i.e., Ex.P1.Further, he was surprised to note that in the F.I.R. placed beforethe Court, the names of the other four accused were also mentioned.He could not say how and under what circumstances, they wereactually added. The evidence adduced by P.W.21 InvestigatingOfficer, further worsen the prosecution case. According to him, when https://hcservices.ecourts.gov.in/hcservices/ he got a copy of F.I.R. concerned to Ex.P1, it contained two accusednames and the other accused names were not mentioned at all, but theF.I.R. shown in Court contains six names and he did not know howthe names of the other four accused crept in. All put together wouldshow that the F.I.R. originally prepared was not produced beforeCourt and what was actually in the hands of the Sessions Court wasthe F.I.R. which was subsequently prepared and the original F.I.R.prepared by the police was suppressed and not placed before the trialcourt. 11. It has to be further pointed out that the identificationparade conducted by P.W.19 Judicial Magistrate pursuant to the orderof the Chief Judicial Magistrate was not helpful to the prosecution.P.Ws. 1 to 3 were summoned for identification parade to identify A3to A6. Identification parade of A1, A2, A3 and A4 was conducted butno where it was pertaining to A3 to A6. Under such circumstances noreliance could be placed on such identification proceedings.12. As rightly pointed out by the learned counsel for theappellants, these appellants were actually not on the same footing asthat of A1 and A2. At last, it has to be pointed out that the namesof these appellants were not available in the original Ex.P1 but itwas subsequent addition. It remains to be stated, according to theprosecution witnesses, these accused were holding iron rods. When A1and A2 attacked the deceased, these accused were all standing nearbyas passive spectator though holding iron rods which looks unnaturaland it is not a case where the court could record a finding that theaccused persons have acted in furtherance of common object. Allwould show that the prosecution miserably failed to prove its case tobring home the guilt of the appellants/A4, A5 and A6 before thisCourt. Hence, the appellants are entitled for acquittal.13.Accordingly, the criminal appeals are allowed, setting asidethe conviction and sentence imposed on the appellants/A4, A5 and A6by the court below. The appellants are acquitted of the chargesleveled against them. The bail bonds if any executed by theappellants shall stand terminated and the fine amounts if any paid bythem is ordered to be refunded to them. vsiSd/Asst. Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. THE JUDICIAL MAGISTRATE NO.II, COIMBATORE.2. THE JUDICIAL MAGISTRATE NO.VI, COIMBATORE.3. -DO-THROUGH THE CHIEF JUDICIAL MAGISTRATE, COIMBATORE.4. THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAST TRACK COURTNO.II, COIMBATORE.5. THE SUPERINTENDENT, CENTRAL PRISON, COIMBATORE.6. THE INSPECTOR OF POLICE VADAVALLI POLICE STATION COIMBATORE DISTRICT7. THE DIRECTOR GENERAL OF POLIC, MYLAPORE, CHENNAI 004.8. THE DISTRICT COLLECTOR, COIMBATORE.9. HE PUBLIC PROSECUTORE, HIGH COURT, MADRAS.+ 1 cc to Mr. P. Samvel Gunasingh, advocate SR.28527+ 1 cc to Mr. S. Rajanikanth Advocate SR.28682+1 cc tp Mr. S. Nambiarooran advocate SR.28955.Crl.Nos.711 of 2008, 794 and 1151 of 2007EV(CO)EU24.7.2009.