High Court · 2009

B A I L S L I P1. The Appellants/Accused namely (1) S. Kumar (A1) and2) Sundaravadivel (A2) are released on bail in and by the order ofthis Court dated 20.4.2009 and made in MP.No.1/09 in Crl.AppealNos.860 and 841/08 respectively.2. The Appellants/Accused namely (1) Balakrishnan A3,2) Anbalagan A4, 3) Veeramani A5, are released on bail in and by theorder of this Court dated 13.4.2009 and made in Crl.MP.No.1/09 inCrl.Appeal No.778/08.IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13.07.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRIMINAL APPEAL NOS.860, 841 and 778 OF 2008S.Kumar.. Appellant/A1 in Crl.A.No.860/2008Sundaravadivel.. Appellant/A2 in Crl.A.No.841/2008 BalakrishnanAnbalaganVeeramani .. Appellants/A3,A4 & A5 respectively in Crl.A.No.778/2008Vs.State represented byInspector of Police,Jayakondam Police Station,Perambalur.(Crime No.171/05).. Respondent in all the appealsThese appeals are preferred under Section 374 Cr.P.C againstthe order of the learned Principal Sessions Judge, Perambalur, madein S.C.No.29 of 2007 dated 22.10.2008.For Appellant/A1in C.A.No.860/2008 : Mr. P.Tamilavel https://hcservices.ecourts.gov.in/hcservices/ For Appellant/A2in C.A.No.841/2008and for Appellant/A3in C.A.No.778/2008 : Mr. V.RajamohanFor Appellant/A4 & A5in C.A.No.778/2008 : Mr.R.SankarasubbuFor Respondent : Mr.N.R.Elango,A.P.P. (All Crl Appeals)- - - - COMMON JUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM. J.)Crl.A.No.860 of 2008 was filed by the first accused,Crl.A.No.841 of 2008 was filed by the second accused andCrl.A.No.778 of 2008 was filed by the third, fourth and fifthaccused. This judgment shall govern these three appeals.2. These appellants along with two other accused who were shownas A5 and A6 stood charged, tried and found guilty as follows:AccusedChargesFindingsSentenceA-1 to A-5148 IPC GuiltyTwo yearsrigorousimprisonmenteachA-1 to A-5449 IPCGuiltyTwo yearsrigorousimprisonmenteachA-1 to A-5302 IPCGuiltyLifeImprisonmenteachA-1 to A-5 & A-7120(b)IPCNot GuiltyA-1 to A-5147 IPCNot GuiltyA-6449 r/w 109 IPCNot GuiltyA-6302 R/W 109Not Guilty https://hcservices.ecourts.gov.in/hcservices/

3. The short facts necessary for the disposal of these appeals canbe stated as follows:(a) P.W.1 is the father of the deceased. The deceased, aged 19years was doing his 10th standard. P.W.1 desired to sell his land. Hesold the same to his nephew one Chinnadurai. Equally, his niece oneRani wished to purchase the land from P.W.1. Despite her request,P.W.1 sold the land to Chinnadurai. On instigation of Rani, theaccused questioned P.W.1, how he could sell the land to ChinnaduraiP.W.1 in turn informed that it was his land and he would sellaccording to his wish. At that time, the deceased joined with hisfather and informed the accused that since the advance was obtainedfrom Chinnadurai earlier, his father was proper in selling the landto Chinnadurai and thus, there arose animosity between the accusedparty and the deceased. (b) P.W.16 owned a TATA Sumo car. The 4th accused was employedas his driver. Terminating his service, P.W.16 employed P.W.21Karaikalan as his driver. The accused were aggrieved over thesame and on that account, they attacked P.W.21 in a public place. Oncoming to know about the same, the deceased questioned the accusedstating if they were really aggrieved, they should have attackedthe owner of the van and not the driver. The accused were enragedover the same. All of them were waiting for a chance. On the date ofoccurrence that is on 14.4.2005 at 10.30 p.m., when P.Ws.3, 4and the deceased went to witness a film at kala theatre, at thattime, all the accused armed with weapons like aruval went inside thetheatre and indiscriminately cut the deceased Ilavarasan and thecaused his death. It was witnessed by P.Ws.3 and 4. On information,P.W.1 went to the theatre and found his son dead. Then, heimmediately proceeded to the respondent Police Station where P.W.27Inspector of Police was on duty and gave a complaint Ex.P1, on thestrength of which, a case came to be registered in Crime No.171/2005under section 147, 148, and 302 of IPC and the express F.I.R.Ex.P.27 was despatched to Court.(c) P.W.27 Investigating Officer took up investigation. Heproceeded to the spot, made an inspection and prepared theobservation mahazar Ex.P.28 and also drew a rough sketch Ex.P29. Heconducted inquest on the dead body of the deceased in the presenceof panchayatdars and prepared Ex.P.31 inquest report. Thereafter,the dead body was subjected to post mortem. P.W.20 doctor whoconducted autopsy on the dead body of Ilavarasan has given hiscategoric opinion in Ex.P.18 that the deceased would appear to havedied of shock and haemorrhage due to the injuries sustained to thevital organs. The Investigation Officer examined P.W.6, the ownerof the theatre, P.W.7 operator and also the employees of thetheatre and recorded their statements. He recorded the statement ofother witnesses also. (d) Pending investigation, the Investigating Officer arrestedA3 and he came forward to give confessional statement, pursuant to https://hcservices.ecourts.gov.in/hcservices/ which he produced M.O.3 aruval and also TATA Sumo van and the samewere recovered. Pending investigation, the Investigating Officercame to know that A1, A2, A4 and A5 surrendered before the JudicialMagistrate Court. He made an application for police custody and thesame was also ordered. The accused came forward to give confessionalstatement and the same were recorded, pursuant to which, theyproduced the weapons of crime which were also recovered under acover of mahazar and all the material objects were subjected tochemical analysis by the Forensic Department on the request made bythe Investigating Officer through the concerned Court. The chemicalreport ExP26 and the serologist report Ex.P42 were obtained by theJudicial Magistrate Court. On completion of the investigation, theInvestigating Officer filed a final report.(e) The case was committed to the Court of Sessions. Necessarycharges were framed. In order to substantiate the charges levelledagainst the accused, the prosecution examined 27 witnesses andrelied on 42 exhibits and 19 material objects. On completion of theevidence on the side of the prosecution, all the accused werequestioned under section 313 Cr.P.C. as to the incriminatingcircumstances found in the evidence of the prosecution and theydenied them as false. No defence witness was examined. The lowerCourt heard the arguments advanced on either side and took a viewthat the prosecution has proved the case beyond reasonable doubt andrendered the judgment of conviction and sentence as referred toabove. Hence, these appeals at the instance of the appellants.4. Advancing the arguments on behalf of the appellants, learnedcounsel inter alia made the following submissions.5. The case of the prosecution was due to previous enmity allthe accused/appellants along with A6 and A7 in furtherance of commonobject went inside the theatre when the deceased along with P.Ws.3 and 4 were witnessing a film and attacked the deceasedindiscriminately by deadly weapons and caused his deathinstantaneously and fled away from the place of occurrence. In thisregard, two eye witnesses were examined viz., P.Ws. 3 and 4 but theyhave turned hostile and did not support the prosecution case atall. The other witnesses examined were the owner of the theatre,operator and the person who used to check and issue tickets. It ispertinent to point out that the occurrence has taken place at 10.30p.m. inside the theatre and it could have been seen by number ofpersons. Apart from that, according to the prosecution, thedeceased accompanied by P.Ws. 3 and 4 went to watch a film but noindependent witness was examined. The two eye witnesses, viz.,P.Ws. 3 and 4 have turned hostile. As such, the prosecution hasmiserably failed to prove the overt act attributed to the accused.Added further learned counsel, in the instant case, so far as therecovery was concerned, though the prosecution examined P.Ws.17 and19 as witnesses for recovery, confession, they have turned hostile https://hcservices.ecourts.gov.in/hcservices/ and even the Village Administrative Officer Ex.P18 who was examinedby the prosecution in this regard has spoken that after the accusedwere taken to the police station, his signature was obtained in theconfession statement and in the recovery mahazars. Thus, it isquite clear that the prosecution could not bring home the fact ofarrest, recovery and confessional statement. Therefore, that part ofthe evidence did not support the case of the prosecution.6. The other part which was available is the medical opinioncanvassed. Ilavarasan was done to death inside the theatre but theprosecution had no evidence to offer in that regard. Under suchcircumstances, the trial Court was erroneously carried away by theevidence adduced by P.W.1 which was to the effect that due toprevious enmity the accused have caused the dead of the deceased whowas 19 years old, though the prosecution had not proved the case inany manner known to law. Thus, the trial Court should have acquittedthe accused/appellants but failed to do so. Hence, the appellantsare entitled for acquittal in the hands of this Court.7. The Court heard the Additional Public Prosecutor on theabove contentions and paid its anxious consideration on thesubmission made. 8. It is not in controversy that one Ilavarasan son ofKaliyaperumal was done to death in the incident that had taken placeinside the theatre at 10.30 p.m. on 14.4.2005. Following the inquestmade by Investigating Officer- P.W.27, the dead body was subjectedto post mortem. P.W.20 doctor who conducted post mortem has givenhis categoric opinion in the post mortem certificate Ex.P.18 thatthe deceased would have died out of shock and haemorrhage due to theinjuries sustained to the vital organs. The fact that Ilavarasandied out of homicidal violence was never disputed by the appellantsbefore the trial Court. Hence, there is no impediment felt by thisCourt in recording that the prosecution was successful enough toprove that the deceased Ilavarasan died out of homicidal violence. 9. In order to substantiate the fact that these accused infurtherance of common object of causing death of Ilavarasan wentinside Kala theatre at 10.30 p.m. on 14.4.2005 and attacked himwith aruval and caused his death instantaneously, the prosecutionrelied on the evidence of P.Ws. 3 and 4 as eye witnesses. Theoccurrence has taken place at 10.30 p.m. and P.Ws. 3 and 4 actuallyaccompanied the deceased. Though the place of occurrence was insidethe theatre which is a public place and number of witnesses wouldhave been present, for the reasons best known to the prosecution, noindependent witnesses were examined. P.Ws. 3 and 4 though claim thatthey knew the incident they did not come forward to speak about theoccurrence. Thus, the prosecution could not have benefit of theevidence of P.Ws 3 and 4. https://hcservices.ecourts.gov.in/hcservices/

10. Further, the prosecution wanted to rely its case much onthe recovery of material objects, the weapon of crime. It is truethat the weapons of crime were produced before the trial Court andthey were marked through the Investigating Officer and the witnessesexamined for the arrest and confession statement have turnedhostile. Equally, the other accused A1, A2, A4 and A5 surrenderedbefore the Judicial Magistrate Court on the request made by theInvestigator and in the order passed by the Court it was stated thatthey were taken to police custody at the time of interrogation andbefore the investigator they gave confessional statement and it wasrecorded, pursuant to which they produced the weapon of crime. Atthis juncture, one would expect the witnesses to speak to the fact.Village Administrative Officer has been examined as P.W.18 and hehas categorically deposed that he was called to the police stationand at that time, the accused were also present there and theconfessional statement were kept ready and his signatures wereobtained in it. Thus, it would go show that these documents wereall cooked up documents in order to strength the prosecution case.Under such circumstances, even the scientific evidence which is infavour of the prosecution is of no consequence at all. All theevidence putforth by the prosecution should have been rejected bythe trial Court. In a given case like this, the prosecution hasonly proved the fact that the death of a person is due to homicidalviolence and in the absence of any piece of evidence, the Court ofSessions i.e., the Principal Sessions Division has found theappellants guilty, which is a matter of shock and surprise to noticeby this Court. The lower court, without considering all theaspects, has erroneously found the appellant guilty and hence, thejudgment of the lower court has got to be made undone only byupsetting the same. 11. Accordingly, the criminal appeals are allowed, settingaside the judgment of conviction and sentence imposed by the lowercourt on the accused/appellants. The appellants are acquitted ofthe charges leveled against them. The bail bonds, if any executedby the appellants, shall stand terminated. vsiSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Principal Sessions Judge, Perambalur.2. Do Through The District and Sessions Judge, Parambalur.3. The Judicial Magistrate, Jayamkondam.4. Do Through The Chief Judicial Magistrate, Parambalur.5. The Officer In-charge, Dharmapuri Town Police Station, Dharmapuri.6. The Superintendent, Central Prison, Cuddalore.7. The Superintendent, Central Prison, Trichy.8. The District Collector, Perambalur.9. The Director General of Police, Mylapore, Chennai.10. The Public Prosecutor, High Court, Chennai11. The Inspector of Police, Jayakondam Police Station, Jayakondam, Perambalur District.+ 2 ccs to Mr. V. Rajamohan, Advocate SR No.30816+ 1 cc to Mr. P. Tamilavel, Advocate SR No.21206C.A.Nos.860, 841 and 778 of 2008NTK(CO)SR/22.7.2009