Ramesh v. State

Bail SlipThe accused are directed to be released on bail as per order of theHigh Court dated 09.11.2006, made in MP.No.1 of 2006 in Crl.A.No.515/06on the file of the High Court, Madras.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 11.06.2008CORAMTHE HONOURABLE MR. JUSTICE P.D.DINAKARANANDTHE HONOURABLE MR. JUSTICE K.N.BASHACRL.A.No. 515 OF 2006Ramesh.. Appellant/A-1VsState by the InspectorRailway PoliceJolarpet,Vellore District.[Crime No.315/2004].. Respondent/ComplainantAppeal filed under section 374[2] Cr.P.C., against the Judgmentdated 23.03.2006 of the learned Additional District and Sessions Judge,[Fast Track Court], Tirupattur, Vellore District in SC.No.384/2005.For Appellant:Mr.R.Shunmugasundaram,SC forMr.L.BaskaranFor Respondent:Mr.N.R.Elango,APPJUDGMENT[Judgment of the Court was delivered by K.N.BASHA, J.]The appellant who has been arrayed as A-1 has come forward withthis appeal challenging the conviction and sentence in Judgment dated23.03.2006 passed by the learned Additional District and Sessions Judge,Fast Track Court, Tirupattur, Vellore District made in SC.No.384/2005convicting the appellant under section 302 r/w 34 IPC and sentencing himto undergo life imprisonment and also imposing a fine of Rs.5,000/- indefault to undergo six months simple imprisonment. https://hcservices.ecourts.gov.in/hcservices/

2.There are two accused in this case, viz., A-1 and A-2 and A-2 hasbeen acquitted by the learned Trial Judge as the learned Judgedisbelieved the prosecution case in respect of A-2.3.The occurrence in this case is shown to have taken place on12.10.2004 at 8.00 p.m. in the train bearing No.6089 proceeding fromChennai to Jolarpet as A-1 poured petrol on the deceased Elumalai and A-2 fired the match box and threw the same on the deceased and as aresult, the deceased got down from the train with burn injuries and ranto some distance and fell down.4.The prosecution in order to bring home the charges against theaccused examined P.Ws.1 to 25, filed Exs.P.1 to 40 besides markingM.Os.1 to 26.5.The brief facts of the case as unfolded during the course oftrial through the evidence adduced by the prosecution are as follows:-[a]The deceased was working as a Constable at Katpadi RailwayProtection Force. A-2 was working as a Constable at Assam CentralReserved Police. P.W.4 is the wife of the deceased. P.W.5 is the uncleof the deceased. The prosecution version is to the effect that thedeceased was having illicit intimacy with A-2's wife. P.Ws.6 to 10 whohave been examined to speak about the motive have turned hostile. [b]P.Ws.1 to 3 are the eyewitnesses to the occurrence. P.W.1claimed that he knows both A-1 and A-2 and the deceased. On 12.10.2004at 8.30 p.m., both P.W.1 and the deceased got into the train at Katpadistation. A-1 was also found in the train. At that time, A-1 pouredpetrol on the deceased Elumalai and the deceased ran away from the scenefollowed by the accused. P.W.2 stated that on the date of occurrence,i.e., 12.10.2004, he was also travelling in the same train. P.W.2implicated only A-2 for setting fire on the deceased by firing the matchbox and he has not implicated A-1. P.W.3 who was also cited as aneyewitness neither implicated A-1 nor A-2.[c]P.W.19, the Sub-Inspector of Police attached to RailwayProtection Force also stated that on 12.10.2004 he has seen the deceasedsitting in the train bearing No.6089 at 8.25 p.m. He heard from a TVreporter that someone has committed suicide and he went and searched.But, he was not able to trace the body. He was also informed by onereporter that a person was burning near Goodshedyard.[d]P.W.4 the wife of the deceased stated that the deceased leftfrom his house on 11.10.2004 for his duty in the train. As he has notreturned back on 13.10.2004, she has informed her father-in-law andmother-in-law and thereafter they went to Katpadi Police Station and ontheir way, she found the dead body of the deceased with burn injuries.She identified the body of the deceased. https://hcservices.ecourts.gov.in/hcservices/ [e]P.W.25 the Inspector of Railway Protection Force receivedmessage about the occurrence on 13.10.2004 at 6.00 a.m. and alsoreceived the message that the deceased Elumalai has not reached Jolarpetafter travelling in the train bearing No.6089. At 9.00 p.m. he receiveda message that the deceased was lying near the railway track. He wentto the scene of occurrence and arranged for taking photographs of thebody. He registered a case in Crime No.315/2004 for suspicious death.Ex.P.28 is the Express First Information Report [FIR]. He preparedEx.P.1-the Observation Mahazar and Ex.P.29-the rough sketch. He heldinquest on the dead body of the deceased in the presence of witnessesand Ex.P.30 is the Inquest Report. He examined the witnesses.[f]On 13.10.2004, he has recovered a Revolver, cap, Handkerchiefand a badge containing the name of the deceased. He has also recovereda cell phone on the same day at 11.15 a.m. On 14.10.2004 at 11.30 a.m.,he has recovered 380 Revolver and 11 bullets near the body of thedeceased and he has sent the body for postmortem.[g]The doctor, P.W.13, attached to the Government Medical CollegeHospital, Vellore, conducted the postmortem on the dead body of thedeceased on 13.10.2004 at 2.45 p.m. as per the requisition underEx.P.10. He found the following injuries:-"APPEARANCES FOUND AT THE POST-MORTEM:-No external injuries seen. Body in a pugilisticattitude. 100% III degree burns except both feet andsole. Body was found to have blackened, charred burntarea all over the body except both feet and sole.Stingeing of scalp hair present. On exploration of theburnt area the tissues underneath the blackened androaster upto a long [nc] including sub-cutaneoustissues, muscles and bones. [third Degree burns]."Ex.P.11 is the Postmortem Certificate wherein the doctor has opinedthat the deceased would appear to have died of hypovolemic shock due to100% burns about 6-20 hours prior to autopsy.[h]P.W.25, the Inspector, also examined P.Ws.1 to 3, the allegedeyewitnesses and thereafter, altered the section from 174 Cr.P.C., toone under section 302 IPC. Ex.P.31 is the altered FIR and he has sentthe same to the higher police officials and to the Court concerned. Hehas also examined the doctor, P.W.13 who has conducted the postmortemand other witnesses. A-2 surrendered before P.W.25. In pursuance ofthe admissible portion of the confession of A-2 under Ex.P.32, he hasrecovered the petrol tin on 24.10.2004 at Kudiyatham Road. He hasarrested A-1 in the presence of witnesses and thereafter brought boththe accused, A-1 and A-2 to the Police Station on 24.10.2004. Herecovered the Railway warrant counterfoil-Ex.P.34, Leave Certificate- https://hcservices.ecourts.gov.in/hcservices/ Ex.P.35, Reservation Ticket-Ex.P.36 series and thereafter, the accusedwere remanded to judicial custody on 25.10.2004. He has givenrequisition to P.W.12, the learned Judicial Magistrate No.3, to recordthe statement from P.Ws.1 to 3 under section 164 Cr.P.C. and also toconduct the Identification Parade.[i]P.W.12, the learned Judicial Magistrate No.3, Vellore,conducted the Identification Parade on 02.11.2004 after following theprocedure. A-1 and A-2 were produced and P.W.1 identified A-1 and notA-2 and P.W.2 identified A-2 and not A-1. Ex.P.8 is the report of theIdentification Parade. After examining the other witnesses and afterreceiving the Postmortem Certificate etc., and after completion ofinvestigation, the Investigating Officer filed the charge sheet undersection 120[b], 302 r/w 34 IPC against the accused.6.When the accused were questioned under section 313 Cr.P.C., inrespect of the incriminating circumstances appearing against them theyhave come forward with the version of total denial. They have notchosen to examine any witnesses on their side but marked only onedocument, viz., Ex.D.1.7.Mr.R.Shunmugasundaram, learned Senior Counsel appearing forthe appellant/A-1 contended that the prosecution has not come forwardwith clear and cogent evidence implicating the accused and put forwardthe following contentions:-[1]P.Ws.1 to 3 the alleged eyewitnesses areunbelievable and their evidence is contrary to eachother.[2]P.W.1 the alleged eyewitness has notimplicated A-2 and he implicates only A-1, P.W.2implicates only A-2 and not A-1. P.W.3 on the otherhand neither implicated A-1 nor A-2. Inspite of thesame, they have not been treated as hostile by theprosecution. Though P.W.1 implicated A-1, he hasadmitted in his cross-examination that the accused werenot known to him earlier.[3]P.W.1's identification of A-1 at the time ofIdentification Parade cannot be relied on as per theadmission of P.W.1 in his cross-examination that he hasalready seen the photographs of A-1 and A-2 through thenewspaper and TV and he has also admitted that he hasnot given any identifying features of A-1 and A-2 to thepolice during the course of his examination or stated inhis statement recorded under section 164 Cr.P.C. https://hcservices.ecourts.gov.in/hcservices/ [4]P.W.2 categorically admitted in his cross-examination that the police shown both the accused tohim at the Police Station and therefore, theidentification of A-2 by P.W.2 at the IdentificationParade cannot be relied.[5]The learned Trial Judge disbelieved theprosecution case in respect of A-2 and acquitted him andon the very same materials convicted the appellant/A-1without assigning any valid reasons. The trial Courtalso disbelieved the arrest and recovery in respect ofthe co-accused/A-2 and as such, the conviction of A-1 isnot justified.[6]The appellant/A-1 was illegally detained bythe police and only after seeing the telegram, Ex.D.1,the Investigating Officer produced A-1 before the Courtand after showing him as an accused.[7]Apart from the evidence of P.Ws.1 to 3, thereis no other clinching or incriminating circumstancesavailable on record against the appellant/A-1 and eventhe evidence of P.Ws.1 to 3 is unreliable.[8]The prosecution also miserably failed to provethe alleged motive as the witnesses P.Ws.6 to 10 whohave been examined to speak about the motive have turnedhostile."8.Per contra, Mr.N.R.Elango, the learned Additional PublicProsecutor contended that the prosecution has come forward with theclear and cogent evidence implicating the appellant/A-1 through theevidence of P.W.1. It is submitted that P.W.1 has also identified A-1at the time of Identification Parade. The learned Additional PublicProsecutor further contended that motive is immaterial in view of theavailability of the direct evidence through P.W.1 who is an eyewitnessto the occurrence. It is contended that though there are certaininfirmities in the prosecution case, those infirmities had not at allaffected the main case of the prosecution implicating the appellant/A-1in this case. Therefore, it is submitted that the prosecution hasproved its case beyond reasonable doubt against the appellant/A-1 in allaspects.9.We have given our careful and anxious consideration to therival contentions put forward by either side and also thoroughlyscrutinised the evidence available on record and perused the impugnedJudgment of conviction. https://hcservices.ecourts.gov.in/hcservices/

10.The prosecution heavily placed reliance on the evidence ofP.Ws.1 to 3 who are the alleged eyewitnesses in this case. At theoutset, we are constrained to state that there are infirmities andinconsistencies in the evidence of P.Ws.1 to 3 throwing serious doubtabout the veracity of the prosecution version.11.As far as P.Ws.1 and 2 are concerned, it is curiously notedthat P.W.1 implicated A-1 and not A-2 and P.W.2 implicated A-2 and notA-1. Though it is claimed by the prosecution that P.W.1 identified A-1in the Identification Parade conducted by P.W.12, the learned JudicialMagistrate No.3, Vellore and P.W.2 identified A-2 during theIdentification Parade, they have categorically admitted that both theaccused were unknown to them. P.W.1 specifically admitted in his cross-examination that he has seen the photographs of the accused through thenewspaper and TV even before conducting Identification Parade. It isalso admitted by P.W.1 that he has not stated anything about theidentifying features of A-1 neither during his examination by the policenor during his examination by the learned Judicial Magistrate undersection 164 Cr.P.c. As far as P.W.2 is concerned, he has specificallystated even in his chief examination that he has seen both the accusedin the Police Station. Therefore, it is most unsafe to place relianceon the evidence of P.Ws.1 and 2 and the conducting of the IdentificationParade after P.Ws.1 and 2 seeing the accused is a futile exercise.12.The Hon'ble Apex Court has held in BUDHSEN AND ANOTHER Vs.STATE OF U.P. Reported in AIR 1970 SUPREME COURT 1321 that:-"......7.... the Magistrates holding them are expected totake all possible precautions to eliminate any suspicionof unfairness and to reduce the chance of testimonialerror. They must, therefore, take intelligent interestin the proceedings, bearing in mind two considerations:[i]that the life and liberty of an accused may depend ontheir vigilance and caution and [ii]that justice shouldbe done in the identification. Those proceedings shouldnot make it impossible for the identifiers who, afterall, have, as a rule, only fleeting glimpses of theperson they are supposed to identify.........The persons required to identify an accused shouldhave had no opportunity of seeing him after thecommission of the crime and before identification andsecondly that no mistakes are made by them or themistakes made are negligible." https://hcservices.ecourts.gov.in/hcservices/

13.The above principle laid down by the Hon'ble Apex Court inrespect of the Identification Parade is squarely applicable to the factsof the instant case as in this case also, both P.Ws.1 and 2 already sawthe accused before conducting the Identification Parade.14.Now, coming to the evidence of P.W.3, the yet anothereyewitness in this case, it is crystal clear from the perusal of hisevidence that he has neither implicated A-1 nor implicated A-2 and hisevidence is not at all useful to advance the case of the prosecution.15.As we have already pointed out that once the evidence of theeyewitnesses P.Ws.1 to 3 have been excluded as their evidence suffersfrom serious infirmities and inherent improbabilities, we are left withno other clinching and incriminating circumstances available on recordto implicate the appellant/A-1 in this case.16.Therefore, for the aforesaid reasons, we are constrained to cometo the inevitable conclusion to the effect that the impugned Judgment ofconviction and sentence is unsustainable in law and accordingly, theconviction and sentence passed in the judgment dated 23.03.2006 by thelearned Additional District and Sessions Judge, [Fast Track Court],Tirupattur, Vellore District in SC.No.384/2005 is set aside and thecriminal appeal is allowed.17.It is reported that the appellant/A-1 is on bail. Hence,thebail bond, if any, executed by him, shall stand terminated. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarapTo1.The Additional District and Sessions Judge, [Fast Track Court], Tirupattur, Vellore District.2.The InspectorRailway PoliceJolarpet,Vellore District. https://hcservices.ecourts.gov.in/hcservices/

3.The Public ProsecutorHigh Court, Chennai.4. The Judicial Magistrate II,Thiruppatur.5.The Chief Judicial Magistrate,Vellore.6. The Principle Sessions Judge,Vellore.7. The Superintendent,Central Prison, Vellore.1 cc To Mr.L.Baskar, Advocate, SR.28693.Crl.A.No.515/2006 SCD(CO)RVL 25.06.2008