(The Judgment of the Court was made by M. JEYAPAUL, J.) The appellants are accused in Sessions Case No.195 of 2007 on the file of the Additional Sessions Judge cum Fast Track Court No.2, Poonamallee, and they have preferred this appeal challenging the conviction and sentence imposed on them by judgment dated 6.2.2009 in the case.
2. There are seven accused in the case. The learned Additional Sessions Judge found A.1 to A.3 guilty of the charges under Sections 148, 341, 302 r/w 149 IPC and convicted and sentenced each of them to undergo one year Rigorous Imprisonment for the offence under
Section 148 IPC; convicted and sentenced each of them to undergo three weeks Rigorous Imprisonment for the offence under
Section 341 IPC; and convicted and sentenced each of them to undergo Life Imprisonment and to pay a fine of Rs.5,000/- each, in default, to undergo six months Rigorous Imprisonment for the offence under
Section 302 r/w 149 IPC and ordered the sentences to run concurrently and at the same time, the learned Additional Sessions Judge found A.4 to A.7 not guilty and acquitted them of all the charges.
3. On the side of the prosecution, as many as 23 witnesses were examined and 67 documents and 14 material objects were marked.
4. The sum and substance of the case of the prosecution, as unfolded by the witnesses, reads as follows:-
P.W.1 Rajendiran is the maternal uncle of the deceased Murugan. P.W.3 Dhandapani and P.W.4 Kannan are the brothers of P.W.1 Rajendiran. P.W.6 Sundararaman is the grandfather of the deceased Murugan. A case as against A.1 Karthick @ Karthigeyan was booked for robbery at Koyambedu Police Station as on 6.3.2002. P.W.11 Sub Inspector Subbaiah took steps to arrest A.1 Karthick @ Karthigeyan.
Two days prior to the occurrence, i.e. on 9.6.2002, in the absence of Murugan at his residence in Mettu Kuppam, A.1 Karthick @ Karthigeyan came to his house and enquired about the whereabouts of Murugan from his grandfather P.W.6 Sundararaman. When Murugan arrived at the house, P.W.6 Sundararaman enquired Murugan as to why A.1 Karthick @ Karthigeyan was in search of him.
Murugan informed P.W.6 Sunderraman that there was some scuffle when he and A.1 Karthick @ Karthigeyan played cricket and A.1 Karthick @ Karthigeyan was under the impression, on account of such dispute, that it was he who informed the police about his involvement in the aforesaid robbery case registered by Koyambedu Police Station. As he was quite angry against Murugan, A.1 Karthick @ Karthigeyan had come in search of him, he informed his grandfather P.W.6 Sundararaman.
P.W.1 Rajendiran is a real estate broker. On 11.6.2002, at about 10.00 p.m., he was coming down to his house through Sri Devi Kuppam Main Road by a motorcycle. Murugan, who was working in a private company, having finished his work, was proceeding to his house just in front of him by a motorcycle. Both of them were proceeding towards Ganga Nagar II Main Road. At that time, A.1 Karthick @ Karthigeyan, having disclosed that Murugan was the root cause for associating Karthick @ Karthigeyan in a criminal case, proclaimed to do away with his life. Murugan, having been gripped by fear, got down from his motorcycle and started running towards western side. A.2 Muthu and A.3 Vijai @ Aruppu Vijai also chased Murugan by motorcycle. Murugan was waylaid at II Cross Street. P.W.1 Rajendiran followed Murugan and witnessed the occurrence. Five persons, including A.4 Raji @ Tambaram Raji and A.7 Sankar, delivered cuts on Murugan indiscriminately. Murugan unable to bear the attack, fell to the ground. P.W.1 Rajendiran cried aloud and sought for help. All the five accused sped away from the scene of occurrence.
P.W.1 Rajendiran informed P.W.3 Dhandapani and P.W.4 Kannan, who are his brothers, over phone as to the attack launched on Murugan. P.W.3 Dhandapani and P.W.4 Kannan descended on the scene of occurrence. P.W.4 Kannan accompanied by P.W.1 Rajendiran and P.W.3 Dhandapani took the injured Murugan to K.M.C. Hospital, Chennai. P.W.16 Dr. Suseela admitted the injured Murugan on 11.6.2002 at about 22.35 hrs. and examined him and found the following injuries -
" L/E (1) Fresh lacerated Multiple cut wounds seen over the right frontal region and occipital region on the scalp.
P.W.1 Rajendiran after the demise of Murugan, proceeded to Maduravoyal Police Station at about 1.00 a.m. on 12.6.2002 and lodged Ex.P1 Complaint to P.W.19 Inspector Thanigaivel. P.W.19 Inspector Thanigaivel registered a case in Crime No.439/02 under
Sections 147,148,341 and
302 IPC. He prepared Ex.P30 Printed F.I.R. and despatched the same to the learned Judicial Magistrate and the Higher Officials concerned. He proceeded to the scene of occurrence and prepared Ex.P13 Observation Mahazar in the presence of P.W.9 Aithan and another witness and he also drew Ex.P31 Rough sketch reflecting the scene of occurrence. P.W.22 Photographer Bala was engaged to take photographs of the scene of occurrence. P.W.19 Inspector Thanigaivel seized M.O.4 Bajaj Kawasaki motorcycle under Ex.P14 Sezirue Mahazar in the presence of the aforesaid witnesses. He also seized M.O.5 Blood stained earth and M.O.6 Sample earth under Ex.P15 Seizure Mahazar in the presence of the same witnesses.
On 12.6.2002, at about 9.00 a.m., P.W.19 Inspector Thanigaivel proceeded to Government General Hospital , Chennai, and conducted inquest on the dead body of Murugan in the presence of panchayatars and witnesses and prepared Ex.P43 Inquest Report.
P.W.17 Dr.Selvakumar having received requisition from P.W.19 Inspector Thanigaivel commenced post-mortem examination at 3.00 p.m. on 12.6.2002 and found the following injuries on the dead body of Murugan.
"INJURIES:
1) Oblique chop wound 6 x 1cm x muscle deep seen over right side of face. Upper end 3 cm outer to outer angle of right eye. Lower end 1.5 cm outer to angle of mouth on right side.
2) Curved chop wound 12 x 1.5 cm x bone deep seen over right side of head involving the right temporal region of scalp 2 cm above the right ear.
3) Horizontal chop wound 11 x 1cm x bone deep seen over right side of head in the right parietal region of scalp. On dissection: Cut fracture 10cm long seen along the direction of the wound in the right parietal bone.
4) Chop wound 9 x 1cm x bone deep seen over right side of head in the right frontal region of scalp. On dissection: Cut fracture 7cm long seen along the direction of wound in the right side of frontal bone.
5) Curved chop wound 12 x 2cm x bone deep seen over vault of head involving the mid parietal region of scalp.
On the left side it is 9cm above the upper end of left ear.
On the right side it is 3 cm to the right of midline.
On dissection: Cut fracture 10cm long seen along the direction of wound over left and right parietal bones.
6) Oblique chop wound 14x3 cm x bone deep seen over left side of head and face extending from left side ala of nose to upper part of left ear. The underlying muscles and soft tissues were found severed. The zygomatic process on the left side fractured exposing the outer aspect of left eye ball.
7) Chop wound 11 x 4cm x bone deep seen on front of lower one-third of left forearm. The cut surface exposes the severed ends of muscles, vessels, nerves and the severed ends of lower one-third of left ulna.
8) Chop wound 11 x 3cm x bone deep seen over front of lower one-third of right forearm. All the muscles, tendons, vessels and nerves are completely severed except a tag of skin attached to it. The lower one-third of both bones of right forearm are found severed.
9) Oblique chop wound 6 x 2cm x muscle deep seen on back of right shoulder.
10) Multiple linear abrasions seen on back of upper part of right chest over an area of 8 x 6cm. 11) Laceration 2 x 1 x 0.5cm seen over right treat toe. 12) Laceration 1 x 0.5 x 0.5cm seen on front of right foot 5cm behind the tip of great toe. 13) Reddish brown abrasion 1 x 0.5 cm seen on back of left forearm upper one-third. 14) On dissection of head: Dark red contusion measuring 19 x 14 x 0.5cm seen over frontal, both parietal, both temporal and occipital regions of scalp. Thin film of sub dural haemorrhage seen all over the brain surface. Extensive sub arachnoid haemorrhage seen over left cerebral hemisphere. Ventricles filled with blood stained fluid. HEART: Chambers empty Coronaries patent. LUNGS: Pale. HYOID BONE: Intact STOMACH: Empty Mucosa-nil abnormal BLADDER: Empty All other internal organs were found pale." He opined that the deceased Murugan died of HEAD INJURY. The final opinion was marked as Ex.P27. P.W.19 Inspector Thanigaivel seized M.O.11 Waist cord, M.O.12 Blood stained underwear and M.O.13 Full hand shirt seized
from the dead body of Murugan and produced before him by Head Constable Jaikodi under Form 95 Ex.P44. P.W.4 Kannan entrusted M.O.14 Blood stained Pants to P.W.19 Inspector Thanigaivel for the purpose of investigation and the same was recovered under Form 95 Ex.P45. P.W.19 Inspector Thanigaivel examined the witnesses present over there and recorded their statements.
On 17.6.2002, P.W.19 Inspector Thanigaivel came to know that A.1 to A.3 surrendered before the learned Judicial Magistrate-II, Kanchipuram. P.W.19 Inspector Thanigaivel submitted a requisition to the learned Chief Judicial Magistrate, Chenglepet, for conducting a test identification parade for A.2 Muthu and A.3 Vijai @ Aruppu Vijai.
P.W.15 Mr. Sampath, Judicial Magistrate, Poonamallee, held test identification parade on 25.6.2002 after observing all formalities for A.2 Muthu and A.3 Vijai @ Aruppu Vijai. P.W.1 Rajendiran could not identify A.2 Muthu and A.3 Vijai @ Aruppu Vijai in the first formation but, could identify A.2 Muthu alone in the second formation. He identified A.2 Muthu and A.3 Vijai @ Aruppu Vijai in the third formation. The proceedings of the test identification parade, conducted by P.W.15 Mr. Sampath, Judicial Magistrate, was marked as Ex.P22.
On 25.6.2002, A.1 Karthick @ Karthigeyan was taken into police custody for 7 days by P.W.19 Inspector Thanigaivel. In the presence of P.W.7 Govindaraj and P.W.20 Manivannan, the Village Menial and the Village Administrative Officer respectively, A.1 Karthick @ Karthigeyan was enquired by P.W.19 Inspector Thanigaivel at about 7.00 a.m. on 27.6.2002 and A.1 Karthick @ Karthigeyan gave voluntarily a confession statement. The entire confession statement was marked as Ex.P32 by the trial Court. On the basis of confession statement, A.1 Karthick @ Karthigeyan located M.O.1 Patta knife from Sri Devi Kuppam pond and the same was recovered under Ex.P33 Mahazar. At about 10.45 a.m. on the very same day, at the instance of A.1 Karthick @ Karthigeyan, M.O.7 Jeans Pants and M.O.8 T-Shirt, which were found in a gunny bag in a bush on the southern side of the house of Narayanasamy, were recovered under Ex.P34 Recovery Mahazar.
P.W.15 Mr. Sampath, Judicial Magistrate, again conducted test identification parade on 28.6.2002 for A.6 Ramu @ Sathya Raghuram and A.7 Sankar. The relevant test identification parade proceedings conducted by P.W.15 Mr. Sampath, Judicial Magistrate, was marked as Ex.P24.
On 29.6.2002, A.2 Muthu, who was taken into police custody by P.W.19 Inspector Thanigaivel, gave voluntarily a confession statement in the presence of P.W.7 Govindaraj and P.W.20 V.A.O. Manivannan. He took P.W.19 Inspector Thanigaivel along with P.W.7 Govindaraj and P.W.20 V.A.O. Manivannan to Sri Devi Kuppam Mosque where M.O.2 another Patta knife was recovered under Ex.P37 Recovery Mahazar. The signature of P.W.20 V.A.O. Manivannan, found in the confession statement of A.2 Muthu was marked as Ex.P35.
A.3 Vijai @ Aruppu Vijai, who was also taken into police custody, gave voluntarily a confession statement. The signature of P.W.20 V.A.O. Manivannan, found in the confession statement of A.3 Vijai @ Aruppu Vijai was marked as Ex.P36. At the instance of A.3 Vijai @ Aruppu Vijai, M.O.3 Patta knife was recovered from a thorny bush at Rukmani Nagar in the presence of the aforesaid witnesses, under Ex.P38 Recovery Mahazar. A.1 to A.3, thereafter were remanded back to judicial custody. The Material Objects also were sent to the Court for the purpose of examination.
P.W.19 Inspector Thanigaivel arrested the other accused, namely, A.6 Ramu @ Sathya Raghuram and A.7 Sankar on different dates and remanded them to judicial custody.
P.W.23 Inspector Kannabiran continued the investigation, examined the witnesses and recorded their statements. He has spoken to Ex.P61 Biology Report, Ex.P62 Serology Report, Ex.P63 another Biology Report and Exs.P64 to P66 Serology Reports received from the chemical examiner. He having completed the investigation, laid the final Report as against all the seven accused under
Sections 147,148,341 and
302 IPC on 14.8.2002.
5. The incriminating portions found in the testimonies of the aforesaid prosecution witnesses were put in the form of Questionnaire to A.1 to A.7. They responded saying that the witnesses have spoken falsehood and that they were not involved in the crime alleged against them. Neither oral nor documentary evidence was let in on the side of defence.
6. The trial Court having disbelieved the version of the prosecution as regards the charges framed against A.4 to A.7, recorded a judgment of acquittal with respect to all the charges framed as against them. A.1 to A.3 were convicted under
Sections 148,341 and
302 r/w 149 IPC and sentenced as stated earlier.
7. It is the case of the prosecution that on 11.6.2002 at about 10.15 p.m. all the seven accused armed with patta knives and wooden logs, attacked Murugan indiscriminately having waylaid him and committed rioting and murder.
8. P.W.1 Rajendiran is found to be the sole star witness in this case. He is the only eye witness, who witnessed the occurrence of murder, as per the prosecution case. If the evidence of P.W.1 Rajendiran fails to inspire confidence, the whole case of the prosecution would fall to the ground.
9. The learned counsel appearing for the appellants would submit that the evidence of P.W.1 Rajendiran is found not trustworthy. He being a close relative of the deceased Murugan, has come out with prevaricating statements before the Court. Two scene of occurrences are projected by the prosecution. In Ex.P1 Complaint, P.W.1 Rajendiran has come out with a version that six accused participated in the occurrence. But, quite unfortunately P.W.23 Inspector Kannabiran filed a Final Report that seven accused committed various offences. P.W.1 Rajendiran, surprisingly, during the course of testimony could implicate only five persons. It is his further submission that P.W.1 could not specifically state whether A.1 to A.3 were armed with weapons. The prosecution has introduced a new theory that A.6 and A.7 were found armed with wooden logs, quite against the version of P.W.1 Rajendiran both in Ex.P1 Complaint and also in his testimony before the Court. P.W.1 Rajendiran was not stable and consistent as far as the identification of A.2 Muthu and A.3 Vijai @ Aruppu Vijai at the first and second formations. He would also submit that the recovery part of the case of the prosecution cannot be believed inasmuch as P.W.1 Rajendiran does not speak about the weapons possessed by A.1 to A.3 at the time of occurrence. It is also submitted that the admissible portions found in the confession statements of A.1 to A.3 were not specifically marked through the relevant witnesses. In view of the above, he would submit that the entire case of the prosecution which materially hinges on the evidence of P.W.1 Rajendiran is liable to be rejected.
10. The learned Additional Public Prosecutor would submit that P.W.1 Rajendiran, who is not only related to deceased Murugan, but also related to A.1 Karthick @ Karthigeyan, has categorically deposed about the presence of A.1 to A.3 at the time of occurrence. He has also stated that it was only A.1 to A.3 along with other accused waylaid Murugan and attacked him indiscriminately and caused his death. The trial Court has rightly returned a verdict of conviction as against A.1 to A.3, he would contend.
11. The evidence of P.W.1 Rajendiran has to be thoroughly analysed by this Court to determine whether the testimony of P.W.1 Rajendiran inspires confidence. P.W.1 Rajendiran has deposed before the Court that he was coming to the house having finished off real estate broker work at about 10.00 p.m. on 11.6.2002. At that point of time, Murugan, who is none other than his sister's son, was proceeding in front of him in a motorcycle having completed his work in the private company he worked. When he was following Murugan, A.1 Karthick @ Karthigeyan, having proclaimed to do away with the life of Murugan as he had betrayed him before the police officials, chased him along with A.2 and A.3 and waylaid him. Totally five persons including A.4 and A.7, but excluding A.5 and A.6, delivered cuts on Murugan indiscriminately and caused injuries. He identifies M.Os.1 to 3 as that of the weapons used by the accused at the time of occurrence.
12. It is relevant to refer to Ex.P1 Complaint lodged by P.W.1 Rajendiran in which he has stated that Murugan and himself were proceeding in different motorcycles to their respective houses. The version found in the complaint would indicate that P.W.1 Rajendiran and Murugan started simultaneously from a particular location, of course, in different motor cycles. But in the testimony before the Court, P.W.1 Rajendiran has stated that Murugan, who was going in front by motorcycle was spotted, by him. In the First Information Report, of course, P.W.1 Rajendiran has stated that A.1 Karthick @ Karthigeyan along with five others armed with patta knife attacked Murugan indiscriminately on his head, back side, hands and face. But in the testimony, P.W.1 Rajendiran has not stated specifically that A.1 to A.3 were armed with any of the weapons and they inflicted cut injuries on the person of Murugan. In generic term, he has stated that five persons including A.4 and A.7 delivered cuts on Murugan indiscriminately. The testimony of P.W.1 Rajendiran gives rise to the doubt as to whether A.1 to A.3 were armed with weapons as stated in the First Information Report. P.W.1 Rajendiran also has not specifically stated that A.1 to A.3 delivered cuts on Murugan indiscriminately.
13. P.W.1 Rajendiran, the alleged ocular witness in this case, would state that he also accompanied P.W.3 Dhandapani and P.W.4 Kannan to the hospital taking injured Murugan. In Ex.P25 Copy of the Accident Register, P.W.16 Dr. Suseela has noted down that she was informed by P.W.4 Kannan that the occurrence took place at Meenakshi Nagar. It is the case of the prosecution that the occurrence took place at Ganga Nagar and not at Meenakshi Nagar. The copy of Accident Register would disclose that there is a material alteration as regards the number of persons who allegedly attacked Murugan. It is found that P.W.16 Dr. Suseela had noted that she was informed that one known person with knife attacked Murugan and thereafter the word 'one' was altered as 'five'. If at all five known persons with knives attacked the injured Murugan, there would have been no occasion for the investigating agency to go in for test identification parade.
14. P.W.1 Rajendiran could not identify A.2 Muthu and A.3 Vijai @ Aruppu Vijai in the first formation of the test identification parade conducted by P.W.15 Mr. Sampath, Judicial Magistrate, Poonamallee. In the second formation, he could identify only A.2 Muthu. Only in the third formation, he could identify A.2 Muthu and A.3 Vijai @ Aruppu Vijai. It is found that P.W.1 Rajendiran was not consistent in identifying A.2 Muthu and A.3 Vijai @ Aruppu Vijai in the Test Identification Parade.
15. P.W.1 Rajendiran chose to identify A.6 Ramu @ Sathya Raghuram and A.7 Sankar in the identification parade separately conducted on 28.6.2002 as he having seen them in the occurrence place. But, quite unfortunately, he has chosen to exonerate A.6 Ramu @ Sathya Raghuram even during the course of chief examination. In the above facts and circumstances, we find that the testimony of P.W.1 Rajendiran that he was the eye witness to the occurrence is found to be quite doubtful. In fact his evidence in the back ground of Ex.P1 Complaint, given by him, does not inspire confidence.
16. The First Information Report can be used only for the purpose of corroboration or contradiction of the maker. Though P.W.1 Rajendiran has not lent corroboration to the version in the First Information Report with respect to the possession of weapons by A.1 to A.3, the trial Court had banked on the First Information Report, which was not corroborated by P.W.1 Rajendiran to come to a decision that A.1 to A.3 were found armed with M.Os.1 to 3 Patta knives.
17. The submission made by learned counsel for A.1 to A.3 that P.W.1 Rajendiran was closely related to the deceased Murugan cannot be simply ignored. It is true that A.1 Karthick @ Karthigeyan also was related to P.W.1 Rajendiran. But, it is found that P.W.1 Rajendiran was closely related to the deceased Murugan. The Court can rely upon the sole related witness only when the testimony of such related witness inspires confidence.
18. The occurrence had unfolded at 10.15 p.m. on 11.6.2002. Murugan died in the hospital at 11.45 p.m. on the said day. The First Information Report is said to have been lodged at 1.00 a.m. on 12.6.2002. Ex.P30 Printed F.I.R. would disclose that the distance between the Police Station and the Court is only 14 kms. Ex.P30 Printed F.I.R. has reached the Court only at 3.00 p.m. on 12.6.2002. For such an inordinate delay no explanation was offered by the Investigating officials.
19. As rightly pointed out by the learned counsel appearing for the appellants, the prosecution has come out with prevaricating versions as to the number of accused who allegedly participated in the occurrence. In the First Information Report it has been alleged that six accused attacked Murugan and caused injuries. In the Final Report, seven accused had allegedly committed the offence of murder. P.W.1 Rajendiran unfortunately restricted the number of assailants to five in his testimony before the Court. Therefore, we find that there is no consistent version as to the number of accused who actually participated in the occurrence.
20. Neither in Ex.P1 Complaint nor in the testimony before the court did P.W.1 Rajendiran speak about the wooden logs possessed by any of the accused. But, unfortunately, the investigating agency has projected a case as though two of the accused were found armed with wooden logs. The said version of the prosecution was not supported by the sole eye witness P.W.1 Rajendiran.
21. P.W.19 Inspector Thanigaivel has categorically deposed that he examined the doctor who treated privately A.1 Karthick @ Karthigeyan, who sustained injury. In all fairness, the prosecution should have come out with the nature of injury sustained by A.1 Karthick @ Karthigeyan and the circumstances under which A.1 Karthick @ Karthigeyan sustained injury by examination of the doctor who treated A.1 Karthick @ Karthigeyan privately. We are in complete dark as to how A.1 Karthick @ Karthigeyan received injury in the occurrence. P.W.1 Rajendiran would depose that he did not witness any attack launched on A.1 Karthick @ Karthigeyan. The evidence of P.W.19 Inspector Thanigaivel would go to establish that A.1 Karthick @ Karthigeyan did sustain injury and took treatment from a private doctor. Had P.W.1 Rajendiran witnessed the occurrence, he would have come out with some explanation as to the circumstances under which A.1 Karthick @ Karthigeyan sustained injury in the occurrence.
22. Coming to the recovery part of the case, firstly it is found that P.W.1 Rajendiran did not specifically speak to the possession of the patta knives by A.1 to A.3. and secondly we find that the entire confession statement of A.1 Karthick @ Karthigeyan was marked as Ex.P32. Only that portion of the information found in the confession statement which leads to the recovery of the Material Objects can be marked as it is admissible in evidence. The trial Court has unfortunately permitted the prosecution to mark the entire confession statement alleged to have been given by A.1 Karthick @ Karthigeyan before P.W.20 V.A.O. Manivannan. As far as confession statements alleged to have been given by A.2 Muthu and A.3 Vijai @ Aruppu Vijai are concerned, we find that only the signature of P.W.20 V.A.O. Manivannan found in the confession statement of A.2 Muthu was marked as Ex.P35 and the signature of P.W.20 V.A.O. Manivannan found in the confession statement of A.3 Vijai @ Aruppu Vijai was marked as Ex.P36. It is on record that P.W.7 Govindaraj, who also allegedly witnessed the alleged confession statements given by A.1 to A.3 and the recovery that ensued thereafter, turned hostile. P.W.20 V.A.O. Manivannan has spoken to only the signatures affixed by him in the confession statements of A.2 Muthu and A.3 Vijai @ Aruppu Vijai. P.W.19 Inspector Thanigaivel has also not specifically spoken to that portion of the information furnished by A.2 Muthu and A.3 Vijai @ Aruppu Vijai leading to the recovery of M.Os.2 and 3. In the absence of marking the relevant admissible portions in the confession statements of A.2 Muthu and A.3 Vijai @ Aruppu Vijai, the prosecution cannot rely upon the alleged recovery of the material objects M.Os.1 to 3. Therefore, the recovery of M.Os.1 to 3 at the instance of A.1 to A.3 was also not established by the prosecution.
23. We find that P.W.17 Dr.Selvakumar, who conducted post-mortem examination on the dead body of Murugan and issued Ex.P26 Post-mortem Certificate and Ex.P27 Final Report, found as many as nine chop wounds, one multiple linear abrasion and three lacerations on the dead body of Murugan. Having found lethal injuries on the person of Murugan, he has opined in Ex.P27 that the deceased appeared to have died on account of head injury. The prosecution could establish that Murugan died due to Homicidal Violence. But, the only ocular witness P.W.1 Rajendiran, completely depended on by the prosecution, has miserably failed to pass the test of credibility. The recovery part of the case was also not established by the prosecution. Though the prosecution could establish that Murugan died of Homicidal Death, the accused cannot be fastened with any criminal liability as there was no material to establish that it was only A.1 to A.3 who committed the ghastly crime of murder, having waylaid him.
24. In the above facts and circumstances of the case, we find that the prosecution miserably failed to bring home the guilt to the accused. The trial Court has misdirected itself and has come to a wrong decision that A.1 to A.3 committed the offences charged as against them in the absence of any material worth referring to.
25. In the result, the Criminal Appeal is allowed and the conviction and sentence imposed on the Appellants/Accused 1 to 3 in Sessions Case No. 195 of 2007 on the file of the Additional Sessions Judge, FTC No.2, Poonamallee, are set aside and the Appellants/Accused 1 to 3 are acquitted of all the charges and the fine amount paid, if any, is to be refunded to them. The Appellants/Accused 1 to 3 are directed to be released forthwith if their custody is not required in any other case.
To
1. I Addl. Dist. & Sessions Judge, Fast Track Court II, Poonamallee.
2. - do through The Prl. District & Sessions Judge, Thiruvellore.
3. The Inspector of Police, T-4 Maduravoyal Police Station, Chennai 95. 4. The Superintendent of Prisons, Central Prison, Puzhal, Chennai 66. 5. The Director General of Police, Chennai 4. 6. The District Collector, Thiruvallore. 7. The Judicial Magistrate No.I, Vellore. 8. - do through the Chief Judicial Magistrate, Vellore. 9. The Public Prosecutor, High Court, Madras. 10. The Section Officer, Criminal Section, High Court, Madras 104