(The judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to the judgement of the Additional District and Sessions Division, Fast Track Court-V, Chennai, made in S.C.No.427 of 2008 whereby the appellants five in number, stood charged, tried and found guilty under sections 302 r/w 34 IPC and 324 IPC (4 counts) and awarded life imprisonment each and one year rigorous imprisonment each respectively along with fine and default sentences. The sentences are ordered to run concurrently.
2. The short facts necessary for the disposal of this appeal can be stated as follows:
(a) P.W.1 is the complainant. P.Ws. 2 and 3 came from Andhra Pradesh to eke their livelihood. They along with others were staying in Venkateshwara Kalyanamandapam, New Washermenpet, Chennai.. They were brought for the work of loading and unloading of goods in Chennai Port. About 28 persons were staying there. Out of 28 persons, 8 persons were in one group, wherein P.W.1 was in that group and 20 others were in another group. On the date of occurrence, that was on 20.7.2008 at about 9.00 to 10.00 p.m., when A1 was lying in the first floor and P.W.1 was sitting by his side, the deceased Srinivasan came there and slapped A1. All the accused questioned about the same. The deceased felt sorry for the same but the accused persons were not satisfied. They took the wooden clubs and attacked him. When P.Ws.1 to 3 intervened, they were also assaulted by the accused. All the accused dragged the deceased to the nearby water tank and attacked him indiscriminately. The same was informed to the Supervisor of the Kalyanamandapam. The Supervisor along with others took the deceased to the Apollo Hospital. Since they could not meet the expenses, they took him to the Government Hospital, where P.W.8 doctor was on duty. The deceased was admitted at about 11.55 p.m.
(b) P.W.1 after leaving him in the hospital, proceeded to the respondent Police station and he gave Ex.P1 complaint. Since he gave an oral complaint in telugu, he took the assistance of P.W.6 who knew telugu. P.W.6 translated the same. The oral complaint was actually reduced into writing which was marked as Ex.P1. On the strength of Ex.P1 complaint, a case came to be registered by P.W.16 Sub Inspector of Police of the Respondent Police Station in Crime No.299/2008 under
sections 324,307 and
506(2) IPC The express F.I.R. Ex.P25 was despatched to Court. The same reached the Magistrate at 11.00 a.m. on 21.7.2008.
(c) Following the same P.W.17, Inspector of Police on receipt of the copy of the F.I.R., took up investigation, went to the spot, made an inspection in the presence of witnesses and panchayatdars and prepared the observation mahazar, Ex.P26 and drew a rough sketch, Ex.P.27. He recovered the material objects M.Os.4 and 5 bricks and granite stones respectively under a cover of mahazar.
(d) Pending investigation, a message was received from the Hospital that Srinivasan died at about 6.40 a.m. Then, the case was altered to
section 302 IPC and the amended F.I.R. Ex.P29 was despatched to Court. The inquest was conducted by the Investigating Officer in the presence of witnesses and panchayatdars and prepared Ex.P.30 inquest report. The dead body was subjected to post mortem. P.W.13 doctor conducted autopsy on the dead body of the deceased and gave his opinion in Ex.P23 post mortem certificate wherein he has opinion that the deceased would appeared to have died out of multiple injuries sustained by him. Pending investigation, the accused were arrested and they gave confessional statement pursuant to which the material objects, weapon of crime-wooden clubs were recovered. They were sent for judicial remand.
(e) P.Ws. 2 and 3 were examined by P.W.10 doctor and he issued accident register copy Exs.P 7 and 8 respectively which were marked. 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 18 witnesses and relied on 41 exhibits and 7 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 witnesses were examined on the side of the defence. The trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable and rendered the judgement 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 would submit that according to the prosecution, the occurrence has taken place at 10.00 p.m. on 20.7.2008 in which P.Ws. 1 to 3 were injured apart from the deceased. The deceased was originally taken to Apollo Hospital by the Supervisor of the Kalyana Mandapam and thereafter, to the Government Hospital where he succumbed to injury at about 6.45 a.m. on 21.7.2008. Though the prosecution examined P.Ws. 1 to 3 as injured witnesses, no medical evidence was produced in so far as P.W.1 was concerned. The claims of the prosecution was that P.W.1 was by name Ramakrishnan and it was he who went to the Police Station and gave Ex.P1 report. P.W.16, Sub-Inspector of Police would also claim that it was P.W.1 who came there and gave the report in telugu and with the assistance of P.W.6, it was translated to Tamil. But at the time of cross examination P.W.1 has categorically admitted that he was not Ramakrishnan at all. Hence, it would be quite clear that Ex.P.1 could not have come into existence at the instance of P.W.1. and the same is doubtful. This would also indicate that P.W.1 could not have been in the place of occurrence at all.
4. Added further learned counsel, the earliest document which has come into existence is the accident register copy of the deceased which was marked as Ex.P4. P.W.8 is the doctor who categorically examined the deceased. A perusal of Ex.P4 would clearly indicate that the deceased died due to falling from the height of 15 feet. One injury was noticed and it was contusion over occipital region. The prosecution had no explanation to offer to the contents found in the document, Ex.P4. Thus, it would clearly indicate that he did not sustain any injury at the instance of anybody else but due to falling from the higher place. Further, it is further seen that though the prosecution claimed that the case was registered by P.W.16 Sub Inspector of Police at about 2.00 a.m., it has reached the Metropolitan Magistrate at 11.00 a.m. Thus, there was a delay of 9 hours. The prosecution had no explanation to offer for this delay. The inordinate delay remains unexplained.
5. Added further learned counsel, P.Ws.2 and 3 were examined by the doctor at about 12.55 p.m. on 21.7.2008 Their statements were recorded by P.w.10 doctor in Ex.P7 and P8 accident register respectively in which they have categorically stated that they were attacked by 5 unknown person. But the F.I.R. at the earlier at 2.00 a.m. in which the names of the assailants, 5 in number, were clearly mentioned. Thus, it would go to show that the police was unable to fix the accused till P.Ws.2 and 3 were actually examined by P.W.10 doctor whose statement was recorded in Exs.P7 and P.8.
6. The learned counsel would further submit that it is pertinent to point out that the investigator has claimed that the eye witnesses were examined between 2.00 to 6.00 a.m. under
section 161 Cr.P.C. but this statement has reached the Court on the next day that was on 22.7.2008. Further, though the investigator has claimed that the material objects were recovered following the confessional statement recorded from the accused, P.Ws.1 to 3 have stated that the wooden clubs were found available in the place of occurrence and they were recovered by the police immediately. All would go to show that the recovery and the confessional statement cannot but be false. The prosecution in all the records have mentioned the assailants as unknown persons but in the earliest document, F.I.R., the names of the accused were mentioned which would go to show that the prosecution has miserably failed to prove its case beyond reasonable doubt. The trial court has taken an erroneous view and convicted the accused. The prosecution has not brought home the guilt of the accused/appellants. Hence, the accused/appellants are entitled for acquittal.
7. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.
8. It is not in controversy that one Srinivsasn was taken to Apollo Hospital and thereafter to the Government Hospital where he was admitted by P.W.8 doctor and despite treatment given to him during the night hours on 20.7.2008, he died on next day morning that was on 21.7.2008. On the death of Srinivasan, the case which was registered under
section 307 IPC was altered to
section 302 IPC. P.W.17 investigator, after conducting inquest on the dead body of the deceased prepared the inquest report Ex.P.30. and made a requisition for conduct of post mortem. P.W.13 doctor conducted post mortem and gave his opinion as witness before the Court and also through the contents of the post mortem certificate that the deceased died of multiple injuries sustained by him. Thus, it would be quite clear that Srinivasan met unnatural death due to the incident that had taken place on 20.7.2008 at 10.00 p.m and the prosecution was successful enough to prove the same.
9. Insofar as the charges levelled against the appellants are concerned, on scrutiny of the material available, the Court is afraid whether it could sustain the judgment of conviction rendered by the trial Court. The prosecution marched three witnesses P.Ws. 1 to 3 as eye witnesses and they are not only eye witnesses but as injured witnesses. Insofar as P.W.1 was concerned, no medical opinion was canvassed or documentary evidence was placed before the Court. The consistent claim of the prosecution was that P.W.1 by name Ramakrishnan gave Ex.P1 complaint to P.W.16 Sub Inspector of Police, on the strength of which, a case came to be registered by the respondent Police but at the time of cross examination, P.W.1 has categorically stated that he was not Ramakrishnan. This part of the evidence of P.W.1 coupled with non-production of the medical evidence as to the alleged injuries sustained by him would cast a doubt whether he could have been at the place of occurrence or he could have been injured at the time of incident as claimed by the prosecution. It is highly doubtful whether Ex.P1 itself would have come into existence on the basis of the report given by P.W.1 as putforth by the prosecution.
10. Further, the case came to be registered at about 2.00 a.m. in which the names of 5 assailants are mentioned therein. But the investigator would claim that he examined all the witnesses between 2 and 6 a.m. and their statements were recorded under
section 161 Cr.P.C The statements recorded was also to the effect that the names of all the five assailants were noted therein. It is a matter of surprise to note that P.Ws. 2 and 3 who were medically examined by P.W.8 doctor at 12.55 p.m. on 21.7.2008 have mentioned to the doctor that they were attacked by 5 unknown person. Therefore, a reasonable doubt would automatically arise whether P.Ws.2 and 3 were examined by the investigator as claimed by him between 2 a.m. and 6.00 a.m on 21.7.2008. There is no reason for them to inform to the doctor that they were attacked by unknown person. It is quite clear that till the time they were examined by the medical person, the assailants were not known.
11. Insofar as P.W.1 is concerned, it is doubtful whether he could have been in the place of occurrence. P.Ws. 2 and 3 had stated to P.W.8 doctor that all the five persons who attacked them were unknown, hence, it is doubtful how the names of five persons came in Ex.P1 complaint. As could be seen from the available materials the deceased died at 6.40 a.m. on 21.7.2008 and the case which was originally registered under
section 307 IPC at 2.00 a.m. has reached the Metropolitan Magistrate at 11.00 a.m. There was a delay of 9 hours which is inordinate and one would naturally expect the prosecution to explain the same but the prosecution had no explanation to offer. The non-explanation of the inordinate delay of 9 hours coupled with the circumstances cited supra, would clearly indicate that the prosecution story is doubtful.
12. In the instant case, it was claimed by the prosecution that the accused persons were staying in the same place and they knew each other already. It is further to be pointed out that the investigator would claim that the wooden clubs were recovered pursuant to the confessional statement recorded from the accused but the prosecution witnesses would depose that the wooden clubs were available at the place of occurrence. Therefore, the claim of the investigator that they were recovered pursuant to the confession cannot but be false. All would go to show that the prosecution has not successfully proved the case. The prosecution has not brought home the guilt of the accused but the trial court has taken an erroneous view and found the accused guilty. This Court is of the considered opinion that the accused are entitled for acquittal and the judgment of the trial Court has got to be made undone by upsetting the same.
13. Accordingly, the judgment of conviction and sentence passed by the trial Court is set aside. The appellants are acquitted of the charges levelled against them. They are directed to set at liberty forthwith unless their presence are required in connection with any other case. Fine amount, if any paid by the appellants, shall be refunded to them.