Criminal Appeal No. 983 of 2007 · High Court · 2008

Bail SlipThe Appellant/ Accused No.6 namely B. Raja was directed torelease on bail as per order of this Court dated 21.11.2008 andmade in Crl.M.P.No.1 of 2007 in Crl.Appeal No.981 of 2007 on thefile of this Court.The Appellants/ Accused Nos. 3,4,5&7 namely Dharmaraj @ Dharma(A3), Dilli Babu @ Balu (A4),Venkatesan (A5), Rajesh (A7) wasdirected on bail as per order of this Court dated 22.11.2007 andmade in Crl.M.P.No.1 of 2007 in Crl.A.No.983 of 2007 on file ofthis Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 26-11-2008CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE S.RAJESWARANCRL.A.Nos.952, 981 and 983 of 2007Jalakandeswaran @ Eswaran.. Appellant in CA 952/2007B.Raja.. Appellant/ Accused 6 in CA 981/20071.Dharmaraj @ Dharma2.Dilli Babu @ Balu3.Venkatesan4.Rajesh.. Appellants/Accused 3,4,5&7 in CA 983/2007vsState rep. ByInspector of PolicePoonamallee Police StationPoonamalleeCrime No.411 of 2006.. Respondent/ Complainant in all appealsCriminal appeals preferred under Sec.374(2) of the Code ofCriminal Procedure against the judgment of the Additional Districtand Sessions Judge, F.T.C. No.3, Poonamallee, made in S.C.No.151 of2007 dated 28.9.2007. https://hcservices.ecourts.gov.in/hcservices/ For Appellants: Mr.N.Manoharan Amicus Curiae for A-2 in CA 952/2007 Mr.T.V.Ganesh for A-6 in CA 981/2007 Mr.R.Vijayaraghavan for A-3 to A-5 & A-7in CA 983/2007For Respondent: Mr.P.Kumaresan Additional PublicProsecutorCOMMON JUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)This judgment shall govern all these three appeals,C.A.No.952/2007 by A-2, C.A.No.981/2007 by A-6 and C.A.No.983/2007by A-3 to A-5 and A-7.2.These appeals have arisen from the judgment of theAdditional Sessions Division, Fast Track Court No.III, Poonamallee,made in S.C.No.151 of 2007 whereby these appellants along with A-1stood charged and tried under Sections 147, 148, 302 read with 149and 307 read with 149 of IPC. On trial, A-2 to A-7 were foundguilty under Sections 148, 307 read with 149 and 302 read with 149of IPC and awarded life imprisonment along with a fine of Rs.5000/-and default sentence under Sec.302 read with 149 IPC, 10 yearsRigorous Imprisonment along with a fine of Rs.2000/- and defaultsentence under Sec.307 read with 149 IPC and 1 year RigorousImprisonment under Sec.148 IPC, and the trial Court has made anorder of acquittal of A-1 of all the charges.3.The short facts necessary for the disposal of these appealscan be stated as follows:(a) P.W.2 is a resident of New Colony, Porur. The deceasedEdwin Jacob was his son. He was taking Karate classes under A-2.The deceased Edwin Jacob fell in love with the sister of A-1.Despite the objections raised by the family of A-1, he married her.Thereafter, the relationship between the spouses got strained, andhe deserted her. Despite the request of A-1, he did not take herback, and hence they were on inimical terms. Then, on the requestof A-1, his friend A-2 and his associates, the other accused,planned to finish him off. On 4.3.2006 at about 6.00 P.M., EdwinJacob, and his friend P.W.3 Munirathinam, proceeded to KarateSchool at Pariwakkam. When the classes were going on, they werewitnessing for a while. A-7, who was already available there atthat time, went in a motorbike and brought A-3 and A-4. They weretalking with each other for sometime. Then, leaving A-2, thedeceased and P.W.3, all of them left the place. https://hcservices.ecourts.gov.in/hcservices/ (b) At about 10.00 P.M., the deceased Edwin Jacob, P.W.3 andA-2 proceeded in a motorbike. When they were just proceeding inthe main road, A-2 informed the deceased to go on the right sidetowards Mettupalayam. Edwin Jacob questioned why they should gothere. Then A-2 replied that they have got a marriage festival,and he was to attend the same. Accordingly, on the instructions ofA-2, Edwin Jacob took the motorbike towards Mettupalayam. Whenthey were just proceeding for a short while, they found anothermotorbike, and the light was also burning. A-2 told the deceasedthat it looked like his bike, and hence he asked him to stop thevehicle. Accordingly, the motorbike in which all the three weretravelling, was stopped. Immediately, A-3 and A-4 were foundrunning. They began to attack P.W.3, and P.W.3 who sustainedsevere bleeding injuries, was running from the place. After ashort distance, he turned back and witnessed A-2 to A-7 armed withdeadly weapons attacking Edwin Jacob. Then he immediately left theplace and proceeded to the hospital of P.W.4, the Doctor, where hehad the treatment. He was medically treated by P.W.4 at 11.00 P.M.The accident register copy is marked as Ex.P2. Since P.W.2's sondid not come, he was making a search. Next morning, he wasinformed that P.W.3 was taking treatment in the hospital of P.W.4.Then he went over to the hospital, and P.W.3 informed P.W.2 thathimself and his son were attacked by the accused. (c) While the matter stood thus, on 5.3.2006 in the morninghours, P.W.1, the Village Administrative Officer (VAO), wasinformed by his Assistant by phone that near the Meikkal poramboke,a male body was found. Immediately P.W.1 proceeded to the placeand found the dead body. He prepared Ex.P1, the report, and wentto the respondent police station where P.W.11, the Inspector ofPolice, was actually on duty, to whom he gave Ex.P1 report, on thestrength of which a case came to be registered in Crime No.411 of2006 under Sec.302 of IPC. The printed FIR, Ex.P20, was despatchedto the Court. (d) P.W.11 took up investigation, proceeded to the spot, madean inspection and prepared an observation mahazar, Ex.P11, and arough sketch, Ex.P21. Then, he conducted inquest on the dead bodyof Edwin Jacob in the presence of witnesses and panchayatdars andprepared an inquest report, Ex.P22. The dead body was sent to thehospital along with a requisition Ex.P3, for the purpose ofpostmortem.(e) P.W.5, the Professor, Department of Forensic Medicine,Government Kilpauk Medical College, on receipt of the requisition,conducted autopsy on the dead body of Edwin Jacob and has issued apostmortem certificate, Ex.P4, wherein he has opined that thedeceased would appear to have died of cranio-cerebral injuries dueto multiple cut wounds. (f) Pending the investigation, the Investigating Officerarrested A-2, A-3, A-4, A-5, A-6 and A-7 on 6.3.2006. A-2 gave aconfessional statement which was recorded by him. The admissiblepart is marked as Ex.P12 pursuant to which he produced M.O.9 https://hcservices.ecourts.gov.in/hcservices/ motorbike, which was recovered under a cover of mahazar. A-3 gavea confessional statement voluntarily, and Ex.P14 is the admissiblepart. He also produced an iron rod, M.O.7, which was recoveredunder a cover of mahazar. A-4 gave a confessional statement, whichwas recorded, and the admissible part is Ex.P15. Then, A-4produced M.O.5 knife, which was recovered under a cover of mahazar.A-5 also gave a confessional statement which was recorded, and heproduced M.O.6 knife, which was recovered under a cover of mahazar,Ex.P17. They were all sent for judicial remand. The InvestigatingOfficer altered the case into Sections 147, 148, 120-B, 180, 307and 302 of IPC. The express report, Ex.P23, was sent to the Court.(g) On requisition made by the Investigating Officer, the testidentification parade was conducted by P.W.6, the JudicialMagistrate No.II, Poonamallee, and P.W.3 identified A-2 to A-7.The identification parade proceedings are marked as Ex.P8. All thematerial objects were subjected to chemical analysis which resultedin two reports Exs.P9, the chemical analyst's report, and Ex.P10,the serologist's report. P.W.12, the Inspector of Police, took upfurther investigation and on completion of investigation, filed thefinal report.4.The case was committed to Court of Session, and necessarycharges were framed. In order to substantiate the charges, theprosecution marched 12 witnesses and also relied on 23 exhibits and10 material objects. On completion of evidence on the side of theprosecution, the accused were questioned under Sec.313 of Cr.P.C.,which they flatly denied as false. No defence witness wasexamined. The lower Court heard the arguments advanced, perusedthe materials available and took the view that the prosecution hasproved the case in respect of all the charges against A-2 to A-7and hence found them guilty and awarded the punishment as referredto above. Hence these appeals at the instance of the appellants.5.Advancing arguments on behalf of the respective appellants,the learned Counsel made the following submissions:(i) The occurrence has taken place at 10.00 P.M. on 4.3.2006.The only eyewitness, according to the prosecution, was P.W.3.Admittedly, P.W.3 was a friend of the deceased. The prosecutionwould claim that he was also injured at the time of the occurrence.According to P.W.3, he went along with the deceased to KarateSchool, and he was talking to A-2, and the other accused werepresent, and A-3 to A-7 left the place. He would further add thatthereafter, he was proceeding with the deceased and A-2 in amotorbike, and on the way they stopped at a particular place whereall the other accused were present except A-1, and they attackedhim first, and immediately he got frightened, and with the bleedinginjuries he was running. After a short distance, he turned back tosee A-2 to A-7 who were attacking the deceased with deadly weapons,and immediately he proceeded to the hospital of P.W.4 where he gotadmitted and had treatment for a period of three days. The evidenceof P.W.3 was thoroughly unreliable, and the lower Court should haverejected his evidence in toto. https://hcservices.ecourts.gov.in/hcservices/ (ii) According to P.W.3, he was cut by 3 or 4 persons, and hegot bleeding injuries, and he was running. The first circumstanceis that naturally he could not have waited there and witnessed theoccurrence. Secondly, it admitted by him that it was about 10.00P.M., and the occurrence has taken place in utter darkness, andthere was no light. Under the circumstances, he could not haveseen the occurrence at all. (iii) When P.W.3 went to the hospital of P.W.4, the earliestdocument in the instant case is Ex.P2 wherein he has given thestatement that originally 3 or 4 persons attacked him, and theywere unknown persons, and it has been recorded thrice, andsubsequently it has been altered as known persons. Further, he hascategorically stated that all these persons who attacked him, andthe deceased were also not known to him previously, and hence hecould not have seen them. (iv) According to P.W.3, he was proceeding in MettupalayamRoad, and at a particular place, the occurrence has taken place.The sketch prepared by the Investigating Officer, does not indicateMettupalayam Road at all or the place of occurrence also. (v) There is lot of discrepancy found in Ex.P2. The place ofoccurrence is shown by interpolation as near Balaji Distilleriesand Palavakkam Granite Company. It is pertinent to point out thateither the Granite Company or Balaji Distilleries is not foundeither in the observation mahazar or in the sketch at all. (vi) Added circumstance is the evidence of P.W.1, who was theVAO of that place. According to him, the place where the dead bodywas found namely Balaji Distilleries, is situated about 2 ½kilometers away and the Granite Company is situated about 300 to400 meters away, and thus it would be indicative of the fact thatthe place of occurrence is also not as found in the FIR or in theearliest document, Ex.P2. (vii) Apart from the above, in Ex.P2, all interpolations andcorrections have been made. Further, it was P.W.1, who went overto the place and who gave the information to police; but, the namesof the accused are not stated. Though it is claimed by the policeand also by P.W.3 that when he was taking treatment in the clinicof P.W.4, the police approached him on 5.3.2006, and recorded hisstatement. If to be so, there was all possibility for P.W.3 totell all the names of the accused; but, he has not given the namesof the accused at all. All these would go to show that theevidence of P.W.3 could not in any way fix the appellants as theassailants or they were involved in the crime in question. (viii) Added circumstance is that once P.W.3 was unable to saywho were the assailants at the spot, the identification paradeconducted subsequently would be of no significance in law and couldnot be given any evidentiary value. Thus, the prosecution was ableto prove that Edwin Jacob was actually murdered, and P.W.3 was alsoinjured; but, it has miserably failed to prove the participation of https://hcservices.ecourts.gov.in/hcservices/ the appellants in the crime. But, the lower Court has givenunnecessary weight and importance to the evidence of P.W.3 since hewas shown as an injured person. In the face of such evidence withall these inconsistencies, doubts and suspicions and in view of thefact that the prosecution has miserably failed to prove its case,the appellants are entitled for acquittal.6.The Court heard the learned Additional Public Prosecutor onall the above contentions and paid its anxious consideration on thesubmissions made.7.It is not in controversy that one Edwin Jacob, the son ofP.W.2, was done to death in an incident that has taken place in thenight hours of 4.3.2006, and P.W.3 was also injured in thatoccurrence. Following the inquest made by the InvestigatingOfficer, P.W.11, the dead body was subjected to postmortem byP.W.5, the Doctor, who has given his categorical opinion as awitness before the Court and also by issuing a certificate, Ex.P4,that Edwin Jacob died out of cranio-cerebral injuries due tomultiple cut wounds. The fact that he died out of homicidalviolence was not in controversy before the trial Court. Hence theprosecution was successful enough in establishing the fact thatEdwin Jacob died on account of homicidal violence.8.In order to substantiate the involvement of all the accusedpersons and that in pursuance of the common object to murder EdwinJacob, all have constituted an unlawful assembly, and they armedwith deadly weapons proceeded and not only attacked P.W.3, causedgrievous injuries and attempted his life, but also caused the deathof Edwin Jacob, the prosecution rested its entire case on the soletestimony of P.W.3. It is trite law that in a given case likethis, when the prosecution case rests upon the sole testimony of awitness, the Court must exercise all its care and caution beforeaccepting the evidence. Now, at this juncture, the learnedAdditional Public Prosecutor brought to the notice of the Courtthat P.W.3 was not only an occurrence witness, but also an injuredwitness. It is also settled proposition of law that in a givencase when an occurrence witness happened to be an injured witness,the Court should not discard his testimony, unless and until strongcircumstance is noticed or reason is brought about. The Court isthoroughly mindful of the settled position of law. Even after theapplication of the position of law, this Court is afraid whether itcan accept the evidence of P.W.3 to sustain a conviction in thepresent case since this Court is able to see all the infirmities inthe evidence of P.W.3. 9.According to P.W.3, he accompanied the deceased and A-2 inthe same motorbike, and when they were proceeding in MettupalayamRoad, at a particular place they stopped the motorbike, and at thattime, they got down from the bike, and A-3 to A-7 armed with deadlyweapons, attacked him, and immediately he went away from the place.It is the further evidence of P.W.3 that with bleeding injuries, hewas running, and after a short while, he turned back to see theaccused persons who were attacking the deceased with deadly https://hcservices.ecourts.gov.in/hcservices/ weapons. The first and foremost thing which strikes anybody's mindis that the occurrence has taken place in utter darkness at about10.00 P.M. P.W.3 has categorically admitted in the cross-examination that there was no light at all, and these accusedpersons were not known to him also. Therefore, he could haveneither seen the assailants at all nor identified them later. 10.Besides the above, when number of persons attacked P.W.3with deadly weapons like iron rod and knife, and he was runningwith bleeding injuries, it would be highly unnatural that he stayedthere, turned back and saw the occurrence which was going on andthat too in utter darkness. So long the prosecution has notexplained how P.W.3 could have seen the occurrence and that toowhen all the accused persons were not known to him previously, thecase of the prosecution projected through P.W.3 could not beaccepted. 11.Above all, P.W.3 went to the clinic of P.W.4, the Doctor,where he was taking treatment from 11.00 P.M. on 4.3.2006 for aperiod of three days i.e., till 7.3.2006. Immediately on reachingthere, he informed to the Doctor as to the time and place ofoccurrence and also the assailants. According to him ,it was only3 or 4 persons. Added further, originally the Doctor has mentionedin the accident register copy, Ex.P2, as unknown persons.Thereafter, it has been corrected as known persons in two places.That apart, it could also be seen that the place of occurrence isnoted in Ex.P2 by P.W.4, the Doctor, as informed by P.W.3. What isfound in Ex.P2 was shown as the place of occurrence which was nearGranite Factory and also Balaji Distilleries. From the evidence ofP.W.1, the VAO of the said place, it could be seen that BalajiDistilleries is situated about 2 ½ kilometers from the place wherethe dead body was found, and also the other one Granite Factory issituated about 300 to 400 meters from the place where the dead bodywas found. When the sketch and the observation mahazar prepared bythe Investigating Officer in the presence of two witnesses andplaced before the trial Court, are looked into, neitherMettupalayam Road nor Granite Factory nor Balaji Distilleries isnoticed. Thus, it would be highly doubtful whether such anoccurrence could have taken place as put forth by the prosecutionand also as focused before the trial Court through the evidence ofP.W.3. All would cast a doubt whether such an occurrence couldhave taken place as put forth by P.W.3.12.In the instant case, the prosecution has much relied on theidentification parade conducted by P.W.6, the Judicial Magistrate,and also the contents of the proceedings found in Ex.P8. ThisCourt is of the considered opinion that this document requiresrejection since no evidentiary value could be attacked to the same.As stated above, since P.W.3 could not have seen the assailants atthe time and place of occurrence, the identification made by himwas of no significance at all. In a given case like this,identification parade are conducted only by way of supportive pieceof evidence. It does not constitute substantive piece of evidence,but it has got to be used as corroborative of the statement in https://hcservices.ecourts.gov.in/hcservices/ Court since the evidence of the witness who was taken foridentification parade, is the main evidence, and it is also thedirect evidence. In the instant case, even according to P.W.3, hedid not know the assailants earlier and also he did not see them indarkness. Thus, the identification parade subsequently conductedwas of no significance at all, and no evidentiary value could beattached as rightly pointed out by the learned Counsel for theappellants, and the Court has to necessarily agree with them. 13.Now, the remaining part of the evidence was the recovery ofthe material objects. It is true that recovery has been madefollowing the confessional statements of A-2, A-3 and A-4. Inrespect of A-6 and A-7 there was no confessional statement at all.As far as A-4 was concerned, according to the prosecution, theadmissible part of the confessional statement given by A-4, ismarked as Ex.P15, pursuant to which M.O.5 knife, has been recoveredfrom him. When the FIR along with the documents and records wereplaced before the Judicial Magistrate, it was returned by him sincethe description was found to be discrepant. Even assuming thatthere was recovery of weapon of crime, the same by itself would notsuffice to sustain a conviction. As narrated above, the evidenceadduced by the prosecution was completely shrouded with suspicion,and sustaining a conviction, in the considered opinion of thisCourt, on the evidence of P.W.3, which was completely filled withsuspicion, would be highly unsafe. For the above reasons, itcannot be stated that the prosecution has brought home the guilt ofthe accused. Hence the judgment of the lower Court has got to beset aside, and they are entitled for acquittal. 14.In the result, all these criminal appeals are allowedsetting aside the judgment of conviction and sentence passed by thelower Court. The appellants/A-2 to A-7 are acquitted of thecharges levelled against them. The bail bonds executed by A-3 toA-7, shall stand terminated. The fine amounts if any paid by them,will be refunded to them. A-2 is directed to be released forthwithunless his presence is required in connection with any other case.Mr.N.Manoharan, Amicus Curiae for A-2 in C.A.952/2007, isentitled to get remuneration from the Tamil Nadu State LegalServices Authority. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.nsv/ https://hcservices.ecourts.gov.in/hcservices/ To:1. The Judicial Magistrate No.1Poonamallee2. thro the Chief Judicial MagistrateTiruvallur3. The SuperintendentCentral Prison, Puzhal, Chennai4.The Additional Districtand Sessions Judge Fast Track Court No.III, Poonamallee5.The Inspector of Police Poonamallee Police Station Poonamallee Crime No.411 of 20066. The Public Prosecutor High Court, Madras.7. The SecretaryTamilnadu State Legal Services AuthorityMadras8. The District CollectorTiruvellore9. The Director General of PoliceChennai-4.2 ccs to Mr.T.V. Ganesh, Advocate, SR. 663482 ccs to Mr.N. Manokaran, Advocate, SR. 663431 cc to Mr.R. Vijayaraghavan, Advocate, SR. 66157CRL.A.Nos.952, 981 and983 of 2007SSN (CO)kk 3/12