These criminal appeals are preferred under Section 374(2) Cr.P.C against the judgment of the learned Additional District and Sessions Judge, Fast Track Court, Tirupathur, Vellore District made in S.C.No.209 of 2008 dated 30.4.2009.
This judgment shall govern these two appeals viz., Crl.A.No.242/2009 filed by A1 and Crl.A.No.570/2009 filed by A2. The first accused stood charged under
<act id=4LGxPokB_szha0nWDtBn section=302>section 302 </act>r/w 34 IPC and the second accused stood charged under
<act id=4LGxPokB_szha0nWDtBn section=302>section 302 </act>IPC. They were tried and found guilty of the charge by the Additional District and Sessions Division,(Fast Track Court) Thiruppathur, Vellore District in S.C.No.209/2008 and awarded life imprisonment each.
2. The short facts necessary for the disposal of this appeal can be stated as follows:
(a) P.W.2 was employed in the Armed Division as Supervisor for sending army wagons from one place to the other through Railways. During the relevant time, the deceased Bhaskar Rao was employed as a security under P.W.2 and A1 and A2 were employed as Assistant Securities. On the date of occurrence i.e., on 18.10.2007, A1 and A2 along with the deceased Bhaskar Rao were sent as security for the army wagon and actually when the wagon was crossing Jollarpet, P.Ws. 4 and 5 who were vendors in the Railway Station found A1 and A2 quarrelling with the deceased and A1 and A2 attacked him on his head. They also noticed that the deceased Bhaskar Rao fell down.
(b) When the Village Administrative Officer, P.W.1 Jollarpet was in his office at 8.00 a.m. on 19.10.2007, he was informed by his assistant that a dead body of a male was found in the railway track. P.W.1 along with his assistant went to the spot and found the dead body of the male. The wagons of the army were found parked just 150 feet from the place where the dead body was found. He also noticed the blood stains in the wagon. The dead body was identified by P.W.2 and other relatives of Bhaskar Rao.
(c) P.W.1 immediately proceeded to the Railway Police Station, where he gave a complaint, Ex.P1 to P.W.11, Sub Inspector of Police. On the strength of Ex.P1, P.W.11 registered a case in Crime No.499/2007. On receipt of the copy of the F.I.R, P.W.12, took up investigation, proceeded to the spot, made an inspection and prepared the Observation Mahazar, Ex.P2 and also recovered the material objects namely blood stained earth, M.O.1 and sample earth, M.O.2 and the other material objects. He prepared a sketch Ex.P.14. He conducted inquest on the dead body and prepared the inquest report. Pursuant to the requisition made, the dead body was subjected to post mortem.
(d) P.W.6, the doctor attached to Government Hospital, Tiruppathur conduct autopsy and gave the opinion in the post mortem certificate, Ex.P11 that the deceased died due to the injuries sustained by him on his head.
(e) Further investigation was taken up by P.W.13. Pending investigation, A1 and A2 surrendered before P.W.1 Village Administrative Officer on 18.12.2007. A2 voluntarily gave confessional statement. The same was recorded by P.W.1 in the presence of his assistant. The said confessional statement was marked as Ex.P4. Both the accused were taken to the Police Station by P.W.1 and they were produced along with Ex.P4 and the report of P.W.1.
(e) On arrest, P.W.13 enquired them. The accused came forward to give confessional statement and the same was recorded. The admissible part of the confessional statement of A1 was marked as Ex.P7 and that of A2 was marked as Ex.P6. Thereafter, they produced iron rod which was marked as M.O.11 The same was recovered under a cover of mahazar Ex.P8. Both of them were sent for judicial remand. All the material objects were sent to analysis and the reports, Exs.P20 & P21 serologist report and chemical reports respectively were received and placed before the Court. On completion of the investigation, the investigating officer, filed a final report.
(f) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges, the prosecution examined 13 witnesses and relied on 21 exhibits and 11 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under
section 313 Cr.P.C. and they denied them as false. No defence witness was examined. The Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and found the accused guilty of the charges and rendered the judgment of conviction and sentence as referred to above. Hence, this appeal at the instance of the appellants.
3. Advancing the arguments on behalf of the appellants, the learned counsel, Mr.Abudukumar Rajarathinam would submit that in the instant case, the prosecution mainly relied on the evidence of P.Ws.4 and 5, the occurrence witnesses. They were vendors of eatables in Jollarpet Railway station. Both of them would claim that they witnessed A1 and A2 who attacked the deceased on his head and the deceased also fell down. Naturally, one would expect both of them to bring to the notice of the Stationmaster or to the railway Police but they have not done so. The investigator would claim that at the time of interrogation, they gave statement that they witnessed the occurrence. The statement was recorded on 28.1.2008, that was, after one month and ten days after the arrest of the accused /A1 and A2 by the investigator. Thus, both these circumstances would clearly indicate that P.Ws.4 and 5 could not have seen such an occurrence and their statement was subsequently introduced in order to suit the prosecution story and to strengthen the same. The trial Court has also accepted the extra judicial confessional alleged to have been given by A2 to P.W.1 on 18.12.2007.
4. The prosecution would claim that A2 appeared before the Village Administrative Officer, at that time, A1 also accompanied him and the extra judicial confession was recorded by P.W.1 which was marked as Ex.P4. Surprisingly, when P.W.1 was cross examined, he has completely given up the document. He has categorically admitted that Ex.P4 was not the document prepared by him and he did not know who wrote the same. Thus, the evidence of P.W.4 cannot be given any evidentiary value. Hence, the arrest, confessional statement which followed cannot be given any effect at all.
5. Insofar as A1 and A2 were concerned, according to the prosecution, they were Assistant Securities of the deceased on the date of occurrence. The investigator has not recovered any document in order to prove that fact. P.W.2 was the Supervisor under whom the deceased was employed as Security but he did not know the name of the accused/A1 and A2 who were employed in the particular wagon on that day. All would go to show that the prosecution has miserably failed to proved that both the accused persons have travelled in the wagon on the said date. Thus, the prosecution miserably failed to prove its case but the trial Court has taken an erroneous view and convicted the accused. Hence, the accused/appellants are entitled for acquittal.
6. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.
7. It is not in controversy that one Bhaskar Rao was found dead in the railway track at Jollarpet. After the case was registered by P.W.11, Sub Inspector of Police under
section 302 I.P.C, investigation was taken up by P.W.12, Inspector of Police. After conducting inquest on the dead body, the dead body was sent for autopsy. On requisition made, P.W.6, doctor conducted autopsy on the dead body and gave opinion before the court as witness and also through the contents of the post mortem certificate that the deceased would appear to have died out of shock and haemorrhage due the injuries sustained on his head. The time and cause of death as put forth by the prosecution was never questioned by the appellants before the trial Court or before this Court. Hence, no impediment was felt by this Court in recording so.
8. In order to substantiate the act of the accused that both the accused attacked Bhaskar Rao with iron rod and caused his death, the prosecution has marched P.Ws.4 and 5 as eye-witnesses and also relied on certain circumstances narrated above.
9. Insofar as P.Ws.4 and 5 are concerned, admittedly, they are eatable vendors in the Jollarpet Station. Both of them have claimed that they witnessed A1 and A2 attacking the deceased at 9.30 a.m. on 18.10.2007, when the railway wagon was dragged in the Jollarpet Station. Had they really witnessed such an occurrence, naturally, one would expect them to report the matter to the railway Police or atleast to the Station Master but they have not done so. The investigator, at the time of evidence, has made it clear that the statement of P.Ws. 4 and 5 was recorded on 28.1.2008. It is pertinent to point out that according to the prosecution, both the accused were arrested on 28.12.2007 and the statement of the witnesses P.W.4 and 5 were recorded on 28.1.2008 which would go to show that their statements were recorded one month and ten days after the arrest of the accused. The above circumstances would clearly indicate that P.Ws. 4 and 5 could not have seen such an occurrence at all. Their statements could have been recorded for the purpose of strengthening the prosecution case.
10. Further, the prosecution would claim that A2 accompanied by A1 appeared before P.W.1 on 18.12.2007 and gave extra judicial confession as found in Ex.P4. This document, in the considered opinion of the Court, cannot be accepted for more reasons than one. Firstly, P.W.1, Village Administrative Officer was a utter stranger to A1 and A2. The occurrence has taken place on 18.10.2007 and these accused/ A1 and A2, according to the prosecution appeared before the V.A.O., on 18.12.2007, that was, nearly about two months later from the date of occurrence. The prosecution has marked Ex.P4 as the confessional statement alleged to have been given by A2 to P.W.1 in the presence of the assistant of P.W.1 and at that time A2 was also present. When P.W.1 was cross examined, he has categorically admitted that Ex.P4 was not the document recorded by him. He would further add that he did not have any knowledge by whom it was written. Therefore, Ex.P4 document cannot be given any credence or it will not be of any significance at all.
11. P.Ws. 4 and 5 has categorically deposed that the accused persons were utter strangers. If to be so, identification parade should have been conducted which is a must. But the investigating agency has not taken steps in this regard. According to the investigator, the accused were arrested on 18.12.2007, on being produced by P.W.1, V.A.O. At the time of arrest, they voluntarily gave confessional statement. Pursuant to the confessional statement, they produced M.O.1, iron rod. From the evidence adduced by the prosecution in respect of the extra judicial confession alleged to have been given by A2 before P.W.1 Village Administrative Officer, it could be seen that it was not reliable and has got to be rejected. Therefore, the other things which followed cannot be given any weight at all.
12. So far as the recording of the confessional statement was concerned, the investigator, P.W.13 has deposed that A2 did not know Tamil and therefore, when he gave confessional statement, a translator was employed for the purpose. On the contrary, P.W.1 has deposed that A2 knew Tamil and he gave confessional statement in Tamil. Therefore, these discrepancies also indicate that such a document could not have come into existence at all.
13. All would go to show that the prosecution is unable to bring home the guilty of the accused either by direct or circumstantial evidence and the benefit of doubt would go to the appellants/accused. Hence, the accused are entitled for acquittal. The judgment of the trial Court has got be made undone by upsetting the same.
14. Accordingly, the criminal appeals are allowed. The judgment of conviction and sentence imposed on the appellants/A1 and A2 by the trial Court is set aside. The appellants are acquitted of the charges levelled against them. The appellants are directed to be released forthwith unless their presence is required in connection with any other case. Fine amount, if any paid by the appellants shall be refunded to them.
(M.C.J.) (V.P.K.J.) 04.12.2009 Index : Yes/No Internet : Yes/No vsi M.CHOCKALINGAM.,J. AND V. PERIYA KARUPPIAH.,J. Vsi To 1. The Additional District and Sessions Judge, Fast Track Court, Tirupathur, Vellore District. 2. The Inspector of Police, Railway Police Station, Jolarpet, Vellore District. 3. The Public Prosecutor, High Court, Chennai. CRL. APPEAL Nos.242 & 570 of 2009 04.12.2009