Bail Slip v. The Staterep.by the Inspector of Police

Bail Slip The Appellants/Accused 1,2,5,6,7 & 10 viz., 1.Vaithi @Vaithilingam,2.Ilasu @ Ilavarasan, 3.Ramanathan,4.Rasu,5.Dhanaseelan@ Thavaseelan,6.Ramachandran were directed to be released on bail inand by order of this Court dt. 27.1.2009 made in MP 1/2009 inCrl.A.805/2008.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 10.07.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRIMINAL APPEAL NO.805 OF 20081.Vaithi @ Vaithilingam2.Ilasu @ Ilavarasan3.Ramanathan4.Rasu amended as per order of this Court dated 27.1.2009 in M.P.No.1 OF 20095.Dhanaseelan @ Thavaseelan6.Ramachandran .. Accused Nos.1,2,5,6,7 and 10/AppellantsVs.The Staterep.by the Inspector of Police,Andimadam Police Station,Periathathoor.(Crime No.93 of 2004) .. Respondent/Respondent This criminal appeal has been preferred under Section 374(2)Cr.P.C. against the judgment of the learned Principal District andSessions Judge,Perambalur made in S.C.No.174 of 2007, dated20.10.2008. For Appellant : Mr.AR.L.Sundaresan Senior Counsel for Ms.AL.Gandhimathi For Respondent: Mr.A.Saravanan,Government Advocate(Crl.Side) - - - https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT(The judgment of the court was delivered by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the First PrincipalDistrict and Sessions Judge, Perambalur made in S.C.No.174 of 2007,whereby appellants herein(A1,A2,A5,A6,A7 and A10) along with fiveothers stood charged, tried and found guilty under Section 148 IPCand sentencing them to undergo two years R.I. and also charged underSection 302 IPC and awarded life imprisonment and to pay a fine ofRs.10,000/- and in default to undergo six months S.I. and also thefirst accused stood charged and found guilty under Section 341 IPCand sentencing him to undergo six months R.I. and to pay a fine ofRs.500/- in default to undergo three months S.I.and the fifthaccused stood charged and found guilty under Section 323 IPC andsentencing him to undergo six months R.I., and to pay a fine ofRs.500/- in default to undergo three months S.I. and with the furtherdirection to run the sentences concurrently by each accused The trialcourt made an order of acquittal for A3, A4,A8,A9 and A11.2.The short facts necessary for the disposal of this appealcan be stated as follows: a)PW1 is the native of Periathathur. PW4 is the sister andPW6 is the mother of the deceased. All the appellants belonged to apolitical party. The deceased also was originally in that party andsubsequently he joined another political party, by which, all theaccused persons developed enmity against him. They had the commonobject of murdering him and in furtherance of the same, on the dateof occurrence i.e. on 26.2.2004 at about 7.30 p.m., when Pws.1,2 and11 were proceeding with the deceased, they intercepted the victim andit was at that time A1, attacked the deceased with an Aruval on hishead, while all other accused cut him with Veecharuvalindiscriminately thereby causing the death instantaneously. In thecourse of the same transaction, A5 slapped PW1 on the right cheek.After hearing the distressing cry, all the accused left the place ofoccurrence and Pws.1,2 and 11 proceeded to the house of the deceasedand informed PW4 sister and PW6 mother of the deceased. P.Ws.4 and 6went to the place of occurrence next day morning i.e. On 27.2.2004and found the dead body.b) PW1 went to the respondent police station on 27.2.2004at about 10.30 a.m. where PW.15 ,Sub Inspector of Police was on duty.He gave a complaint and made his signature which is marked as Ex.P.1and on the strength of which, a case came to be registered in CrimeNo.93/2004 under Sections 147,148,341,323,506(ii) and 302 IPC. Thecomplaint given by PW1 was marked as Ex.P.10 and Ex.P.11 is FirstInformation Report . Both the documents were sent to the JudicialMagistrate Court concerned. c)P.W.16 took up the investigation, proceeded to the spotand made an inspection in the presence of the witnesses. He prepared https://hcservices.ecourts.gov.in/hcservices/ Ex.P.13, the observation mahazar and Ex.P.12, the rough sketch. Herecovered bloodstained earth and sample earth from the place ofoccurrence under a cover of mahazar Ex.P.14. He also examined thewitnesses and recorded their statements.He conducted inquest on thedead body of the deceased in the presence of the witnesses andpanchayatdars and prepared Ex.P.15, the inquest report. Then, thedead body was sent for the purpose of autopsy. d)P.W.10, the Doctor attached to the Government Hospital,Jayamkondam, on receipt of the requisition, has conducted autopsy onthe dead body of the deceased and has issued Ex.P.3, the post-mortemcertificate, wherein he has opined that the deceased would appear tohave died of shock and haemorrhage due to the injuries sustained. e)P.W.16 caused the arrest of A1,A2,A3,A4 and A5 on29.2.2004. A1 came forward to give confession statement voluntarily.It was recorded in the presence of two witnesses. The admissible partof which is marked as Ex.P.17. Pursuant to which, the first accusedproduced M.Os.7 to 11 which were recovered under a cover of MahazarEx.P.18. Pending investigation, M.O.12 a Tata Sumo was recoveredunder Ex.P.19 Mahazar. They were sent to judicial remand.f) PW17, Inspector of Police took up further investigation.All the material objects were sent for chemical analysis by theForensic Department and the dead body was also sent for chemicalanalysis He has also recorded the evidence of witnesses. On completion of investigation, theinvestigator filed final report.3.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 17 witnessesand also relied on 19 exhibits and 12 M.Os. 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, which they flatly denied asfalse. No defence witness was examined. The court below heard thearguments advanced on either side and took the view that theprosecution has proved the case beyond reasonable doubt and found theaccused/appellants guilty as per the charge of murder and awardedlife imprisonment, which is the subject matter of challenge beforethis court. 4.Advancing arguments on behalf of the appellants, thelearned counsel would submit that the prosecution came forward with acase that the occurrence had taken place on 26.2.2004 at 7.30 p.m. Inorder to substantiate the charges levelled against the appellants andother accused that with the common object of murdering the victimVenkatesan and in furtherance of the same, all of them way-laid thedeceased at the scene of occurrence at 7.30 p.m. on 26.2.2004. Theoccurrence was actually witnessed by Pws.1,2 and 11. It is pertinentto point out that three witnesses have been turned hostile before thetrial Court. PW1 had not even spoken to the fact that he who gave acomplaint and even the complaint was marked through the policeofficial and thus the prosecution could not get the evidence of https://hcservices.ecourts.gov.in/hcservices/ anyone of the eye witness. The prosecution had also relied on theconfession alleged to have been given by A1, when he was arrestedalong with other accused. Though both the witnesses examined by theprosecution in respect of the alleged arrest and recovery have turnedhostile, what was available before the lower court was only themedical evidence.5. It is true that from the medical evidence, it wouldbe quite clear that the deceased died out of homicidal violence andthe prosecution was successful enough in proving the particular fact.But, insofar as the other parts were concerned, the prosecution hadnot proved its case. Added further, the occurrence had taken place at7.30 p.m. on 26.2.2004, Pws.1,2 and 11, though claimed to be eyewitnesses have not gone to the police station after seeing theheinous crime. They have only informed PW4, the sister and PW6, themother of the deceased. Moreover, Pws.4 and 6 have not gone to thescene of occurrence immediately, but they went to the spot next daymorning i.e.on 27.2.2004. Though PW1 has actually seen the occurrenceand also sustained injury by A5 at the spot, he has not proceeded tothe police station, but has given a complaint on the next day morningat 10.30 a.m. i.e. after a period of nearly 12 hours. All would go toshow that these witnesses could not have been come in the place ofoccurrence and hence the prosecution miserably failed in its attemptto prove the case. The trial Court, without looking anyone of theaspects of the matter, has taken an erroneous view that theprosecution had proved the case beyond reasonable doubt. Hence, theappellants are entitled for acquittal. 6.The court heard the learned Government Advocate(Crl.Side) on the above contentions and has paid its anxiousconsideration on the submissions made. 7.It is not in controversy that Venkatesan, the Son of ofP.W.6 was done to death in an incident that took place at the timeand place of occurrence as put forth by the prosecution. Followingthe inquest made by the Investigating Officer, the dead body wassubjected to post-mortem by P.W.10, the Doctor, who has given hiscategorical opinion before the court as a witness and also throughhis post-mortem certificate that the deceased died out of shock andhaemorrhage due to the injuries sustainedand hence the deceased diedout of homicidal death was never disputed by the appellants beforethe trial Court and thus it can be recorded that the prosecution hadsuccessful enough in proving the fact that the deceased Venkatesandied out of homicidal violence. 8. In order to substantiate the charges levelledagainst the appellants and other accused, the prosecution had restedits case on direct evidence by marshalling three eye witnesses Pws1,2and 11.Unfortunaely,all the three eye witnesses have turned hostile.Thus, the prosecution could not have an advantage of their evidence.Next, the prosecution relied on the recoveries that were alleged tohave been made from A1, viz.,M.O.7 to 11 pursuant to the confessionmade by him in the presence of the witnesses examined. The arrest, https://hcservices.ecourts.gov.in/hcservices/ confession and recovery have also failed and the witnesses have notspoken to the case of the prosecution. Thus, the prosecution has alsofailed in its attempt to prove those facts. What was prevailing forthe prosecution was the evidence of P.W.10 the post mortem doctor whohas opined that the deceased died out of homicidal violence and thesaid fact was not in dispute and thus the prosecution could not bringforth any relevant fact which would indicate the nexus of the crimewith the accused. It is quite unfortunate that the trial court haspassed an order of conviction and sentence of life imprisonment in acase of weaker or feeble evidence or lack of evidence is noticed. Itis a case of bereft of evidence. Under such circumstances, thisCourt has no option than to set aside and the judgment of the trialCourt and the same has got to be made undone by upsetting thejudgment of the trial Court. 9. In the result, the criminal appeal is allowedsetting aside the judgment of conviction and sentence of theappellants herein by the court below. The appellants/A1,2,5,6,7 and10 are acquitted of the charges levelled against them. Bail bond, ifany, executed by the appellants shall stand cancelled. The fineamount, if paid, shall be refunded to them.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarVJYTo1.The Principal District and Sessions Judge, Perambalur.2.The Inspector of Police, AndimadamPolice Station3.The Additional Public Prosecutor, High Court, Madras.4.The Judicial Magistrate,Jayankondam. https://hcservices.ecourts.gov.in/hcservices/

5.The Chief Judicial Magistrate,Perambalur.6.The Superintendent,Central Prison,Trichirapalli.7.The District Collector,Perambalur.8.The Director General of Police,Chennai.Copy to: The Section Officer, Crl.Section, High Court,Madras.+1cc to Ms.AL.Ganthimathi, Advocate Sr 30714VSV(CO)km/23.7.CRL.A.No.805 of 2008