(Judgment of the Court was delivered by R.SUBBIAH, J.) There were five accused before the trial court, of whom, the appellant in Crl.A.No.462 of 2008, was the first accused and the appellants in Crl.A.No.491 of 2008 were arrayed as accused Nos.2 to 5. All the appellants took their trial in S.C.No.104/2006 on the file of the Additional Sessions Judge (Fast Track Court-I) Tirunelveli. The appellants were found guilty of the offences punishable under Sections 148, 341 and 302 IPC., and sentenced to undergo rigorous imprisonment for three years under Section 148 I.P.C., and to undergo simple imprisonment for one month under Section 341 IPC and to undergo imprisonment for life under section 302 I.P.C., and to pay a fine of Rs.1,000/- each in default to undergo rigorous imprisonment for three months.
2.The summary of the prosecution case, as put-forth , is concisely narrated below:
a)On 12.01.2003 at about 10 p.m. while the deceased was inside the City wine shop, at Palliyadi, all the appellants/accused came there with deadly weapons and indulged in a quarrel with the deceased by shouting at him with regard to the collection of loans with interest, questioning as to how could he support the persons who are not paying the interest to them on the loan amount. Further, they challenged him by uttering harsh words and pulled the deceased by holding his shirt. The employees of the shop intervened and asked them to go out of the shop. By 10.35 p.m. while the deceased was proceeding on a two wheeler SUZUKI SAMURAI bearing number TN 74 B 7724 belonging to one Jaya Kumar along with his brother in law by name S.J.Edwin Joss, examined as P.W.14, the appellant/accused waylaid them near Thittamelkonam Government Elementary School and shouted at the deceased, questioning would he be supporting the persons who are not paying the interest payable to them and was he thinking that he was a powerful man. By saying so, the first accused made an attempt to attack the deceased with his knife. When the deceased warded off the attack, the knife caused a grievous injury on his left hand. At the same time, the second accused attempted to attack with a knife and when the deceased warded off the same, he sustained a cut injury on his left hand palm. Thereafter, A-3 inflicted a cut injury on the right side of the head and immediately A-2 and A-3 pushed the deceased to a wall nearby a water pump and caught hold of the deceased, the first accused attacked the deceased with the knife on the back side of his head. A-2 pushed down the deceased. Simultaneously, all the other accused, attacked the deceased with the iron rod indiscriminately. Due to the injuries sustained, the deceased died on the spot. The accused threatened P.W.14 who accompanied the deceased and ran away from the scene of occurrence.
b)On 13.01.2003, P.W.14 went to Thuckalay Police Station and lodged a complaint at 8.30 a.m. P.W.16 (Sub-Inspector of Police of Thuckalay Police Station), on the basis of the complaint, Ex.P.11 given by P.W.14 registered a case in Crime No.40/2003 for the offences punishable under
Sections 147,148,341 and
302 IPC. Ex.P.15 is the printed First Information Report. The said First Information Report was sent to the Judicial Magistrate, Padmanabhapuram through P.W.17 and same was forwarded to the superior officials in the Department.
c)On 13.01.2003, P.W.20, the Investigating Officer, (in charge) on receipt of the information over phone from P.W.16 went to the scene of occurrence at 9.30 a.m. and prepared an Observation Mahazar and a Rough Sketch of the scene which are marked as Exs.P.1 and 21 respectively and recovered the bloodstained earth, sample earth, bloodstained hair and bloodstained piece of brick and other articles and sample stone, marked as M.Os.1 to 6 under cover of a mahazar Ex.P.2 and the two wheeler M.O.7 bearing registration No.TN-74-B-7724 under cover of mahazar Ex.P.3. P.W.20 conducted inquest over the dead body of the deceased at 10.30 a.m. in the presence of panchayatdars and recorded the statements of Edwin Jose, Gopi, Alwin, Selvin and other witnesses. Ex.P.22 is the Inquest Report. He caused photos of the deceased to be taken through P.W.12 and M.Os.13 and 14 are the photographs and negatives thereof. Thereafter, the body was forwarded through P.W.18, the Head Constable for the purpose of conducting post mortem.
d)P.W.15, the Medical Officer, on receipt of the requisition from the Investigating Officer, conducted post mortem on 13.01.2003 at 4.25 p.m. and issued Ex.P.12, the Post Mortem Certificate, wherein, he noted the following injuries:
"Injuries:1.Incised wound 5cm proximal to left wrist joint extending from the anterior aspect of forearm to the dorsal aspect 7x3x3 cm oblique. 2.Incised wound in the left palm oblique 7x1cmx3cm from the back of index finger to little finger. 3.Incised wound in the left parietal region of scalp 10cmx8cmx4cm chippuy the skull bone exposing the brain matter semilunar oblique in direction extending to the right parietal region. 4) Abrasion right side of chest vertical 8x1cm extending from below the clavicle to the mammary area. 5) Abrasion right arm dorsal aspect 7cmx1cm vertical 6)Abrasion right hypo chondiam oblique 7cm x 1cm vertical. 7) Abrasion right infra ancillary area transverse 7cmx1cm.
8)Abrasion on Kidney shaped - lateral aspect of right knee 4cmx3cm9) Incised wound in the upper third of right fore arm, dorsal aspect 6cm x 3cmx3cm oblique on opening the wound irregular of ulna 3cm deep to wound. 10)Incised wound in the left scapular area oblique 4xcx1cm 11)Three cm below injury to oblique abrasion 6cmx1/2cm 12) 6cm below injury oblique abrasion 10cmx1/2cm right side
13) corresponding to it on left side abrasion 10cmx1/2cm transverse. 14)Abrasion in the right infra scapular area 7cmx1/2cm oblique abrasion 30cmx1/2cm oblique extending from the left shoulder to right loin region, middle third of this deepened to form a incised wound 8cmx1cmx1cm. On opening wound the wound, P.W.15 found the muscles having been cut, exposing the fracture radius and ulna. There were irregular complete fracture.
Internal examination:
Heart we.300gms 50 gms of clotted blood in the left ventricle. Lungs Right 500 gm Left 450 C.S. Pale stomach 200 gms 50gms of partially digested food. Liver wt.1300 gms C.s pale. Spleen wt. 125Gm c/s.pale. Kidneys each 125 gm c/s.pale. Hyoid bone preserved for APE viscera for chemical analysis report". The doctor opined that the deceased would appear to have died of multiple injuries and due to shock and haemorrhage.
e)On 14.01.2003, P.W.21, the Investigating Officer took up further investigation. On 16.01.2003 at 11.30 p.m., he arrested the second accused at Palliyadi Junction in the presence of P.W.9 and one Britte. The second accused made a voluntary confession statement, the admissible portion thereof being Ex.P.4 and subsequent to such statement, M.Os.8 to 12 came to be recovered under a cover of mahazar Ex.P.5. The second accused was produced before the Magistrate for judicial custody.
f)The recovered material objects were despatched to the Court along with a requisition under Ex.P.7 to send the same for forensic examination. Exs.P.9 and 10 are chemical analysis and serological reports respectively.
g)On 24.01.2003, P.W.21, the Investigating Officer, arrested the third accused at Musadi within the jurisdiction of Karungal Police Station in the presence of Manikandan and Balamurali and recorded the voluntary confession statement made by the third accused. Thereafter, the accused was produced before the Magistrate for judicial custody. Subsequently on 04.02.2003 he sent a requisition for identification parade for fifth accused.
h)On 10.02.2003 at 7.30 a.m. P.W.21, the Investigating Officer arrested the fourth accused at Kulasekaram Convent Junction. Thereafter on 13.02.2003, an identification parade was conducted in the presence by the Judicial Magistrate at Palayamkottai Central Prison. On 20.02.2003, the investigating officer recorded the statement of P.W.10 and one Rama.
i)P.W.21, the Investigating Officer, after examining the witnesses and receiving medical and forensic opinions concluded the investigation and laid the final report against the accused 2-5. Till the date of the filing of the charge sheet, the first accused was not arrested. Hence, the final report has been filed as against the first accused, as absconding accused along with the other accused who have already been arrested and remanded. The reason given by P.W.21, Investigating Officer for the absence of A-1, namely Mookiah @ Sahayarajan (i.e.appellant in C.A.No.462 of 2008) is that A-1 was in the army service. Therefore, he found it difficult to secure from army. But he reported the matter to the Superintendent of Police, obviously for taking steps through legal means to get him arrested. There is no evidence available on record as to what steps, the higher officials of the respondent police has taken to secure him. However, the evidence is clear that A-1 was before the Court on the day when the charge was found. Indisputably, A-1 before the trial Court denied the charge framed against him and pleaded innocence along with the other accused.
3.In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 21, marked Exs.P.1 to 23 and produced M.Os.1 to 22.
4.The learned trial Judge, with reference to the incriminating materials adduced by the prosecution, questioned the accused under
Section 313 Cr.P.C, for which, they pleaded innocence. No oral and documentary evidence was let in by the defence. The learned trial Judge, after assessing the materials placed and considering the arguments advanced on both sides, convicted and sentenced the appellants/accused as stated supra.
5.Aggrieved by the conviction and sentence, the present appeals are preferred.
6.Mr.T.Lajapathi Roy, learned counsel for the appellant in Crl.A.No.462 of 2008, contended that the case put forth by the prosecution consists of two parts. First part, namely, there was a wordy quarrel between the appellants and the deceased at the City Wine Shop, at 10 p.m. and the second part of the occurrence namely, the act of attacking the deceased with weapons said to have been taken place at 10.45 p.m. near the Thittimelkonam Government Elementary School.
7.It is further submitted that in order to prove the case of the prosecution totally 21 witnesses were examined. P.W.1 is the owner of the wineshop. P.Ws.2 to 5 were working as employees of the wine shop who were examined on the side of the prosecution to speak about the wordy quarrel and the alteration that took place between the deceased and the accused. But all those witnesses (i.e. P.W.1 to P.W.5) turned hostile before the trial Court. Similarly, P.Ws.6 and 7 who were examined to speak about the motive part of the case also turned hostile. P.W.14 is the only witness who supported the entire prosecution case who is none other than the brother in law of the deceased. P.W.14 lodged a written complaint on 13.01.2003 at Thuckalay Police Station at 8.30 a.m. (i.e.) 9 and half hours after the occurrence. In that written complaint (ExP.11), he had stated that on 12.01.2003 while he was going along with the deceased near Thittimelkonam Government Elementary school, the accused waylaid and attacked the deceased with deadly weapons and caused his death. But he has not stated anything about the first part for the occurrence which is said to have taken place in the wine shop, though he has deposed in his evidence that he was present when the wordy quarrel took place between the accused and the deceased inside the wine shop.
8.Further, P.W.14 in his chief examination, has stated that he ran away from the place of occurrence since the accused had threatened him after murdering the deceased. But he has not chosen to give a complaint to the police immediately. But the written complaint was lodged only on the next day morning at 8.30 a.m. This conduct of P.W.14 as described in the prosecution case creates a grave doubt about the presence of P.W.14 at the scene of occurrence. In the normal reaction of P.W.14 being the brother in law of the deceased, could have been to remove the victim to the hospital and to lodge a complaint with the police. But P.W.14 lodged the complaint only on the next day morning by way of written complaint is totally unbelievable and his evidence would go to show that he might not have been present at the place of occurrence.
9.Further, in his cross examination, he had stated that the petition (Ex.P.11) was prepared by one Babu on his dictation but the said Babu was not examined as a witness by the prosecution. P.W.20, in his cross examination has stated that at the time of lodging the FIR, P.W.14 did not inform him that the complaint was written by the said Babu. Therefore, this contradiction found in the evidence between P.W.14 and P.W.20, shows that there should have been a complaint, lodged prior to the registration of FIR on the basis of Ex.P.11 and that complaint is now suppressed.
10.In the evidence of P.W.14, he had stated that on 12.01.2003 he went to his sister's house to bring the sister's children from the school. After bringing the children from the school, he went along with the deceased (sister's husband) since the deceased had called him to see his friend. While going so, they entered into the wine shop where the alleged first part of the incident has taken place. This statement made by P.W.14 in his evidence does not find a place in the FIR and the said statement would go to show that P.W.14 is not speaking the truth before the Court because on 12.01.2003 was being a Sunday. Therefore, the question of bringing the children from the school does not arise and so this part of the story is a false one.
11.Learned counsel for the appellants further contended that the presence of P.W.14 neither in the wine shop nor in the place of occurrence is totally doubtful. Further, no independent witness was examined to corroborate the evidence of P.W.14. Though, P.W.14 had stated in his evidence to the effect that other accused had attacked the deceased with iron rods indiscriminately, P.W.15, the Medical Officer who conducted autopsy on the body of the deceased in his evidence stated that there was no swelling on the body of the deceased. Thus, by inviting the attention of this Court to the evidence of P.W.15, the Medical Officer, learned counsel for the appellants contended that had the deceased been attacked with iron rods, there would have been swelling all over the body. Therefore, this piece of evidence of P.W.14 also fortifies the defence case of the appellants that P.W.14 would not have witnessed the occurrence as stated by him.
12.Further, by inviting the attention of this Court to the evidence of P.W.9 who was examined as a witness for arrest of the second accused and recovery of the weapons submitted that all the weapons including the knives alleged to have been used by the appellants could not have been recovered from the same place and such evidence should be an invented one. Therefore, this piece of evidence relating to the composite recovery of incriminating weapons would cause a feeling of uncertainty about this part of the prosecution case. In this regard, learned counsel for the appellants has also relied upon a judgment reported in 1999(3) Gujarat L.R.2613 (State of Gujarat Vs. M.P.Jadeja). Thus, the learned counsel for the appellants submitted that the presence of P.W.14, was not proved by the prosecution beyond reasonable doubt and when all other witnesses turned hostile, the conviction and sentenced passed by the trial Court based on the uncorroborative evidence of P.W.14 is not sustainable in law and as such, the conviction and sentence passed by the learned trial Judge is liable to be set aside.
13.Learned counsel for the appellants 2 to 5 adopted the arguments advanced by the learned counsel for the first appellant.
14.Per contra, learned Additional Public Prosecutor contended that even in the earliest FIR, Ex.P.11, P.W.14 has clearly stated that the deceased was attacked by A-1 to A-3 and others wherein the names of A-1 to A-3 were also clearly mentioned. Further, the evidence of P.W.14 had clearly stated that since he was threatened by the accused, he ran away from the place of occurrence. Further, he had clearly stated if he informed the occurrence to his sister, she would become panic and therefore, without informing her, he preferred a complaint on the next day morning. Thus, the learned Additional Public Prosecutor contended that the conduct of P.W.14 is natural in the back ground of the circumstance.
15.Learned Additional Public Prosecutor also submitted that A-4 and A-5 were identified by P.W.14 in the identification parade and the serological report would also show that the weapons contained human blood. Therefore, he submitted that the prosecution proved its case beyond reasonable doubt and prayed for confirmation of the conviction and sentence passed by the trial Court.
16.We have perused the materials available on record and considered the submissions made on either side.
17.On a careful scrutiny of the case of the prosecution, we found that as pointed out by the learned counsel for the appellant, the occurrence consists of two parts. Initially, there was a wordy quarrel between the deceased and the accused in the City wine shop at 10 p.m. and in continuation thereof while he was travelling in the two wheeler, the accused waylaid and attacked with weapons at 10.45 p.m. Further, P.Ws.1 to 5 were examined to speak about the first part of the occurrence, but they all turned hostile. Simultaneously, P.Ws.6 and 7 who were examined to speak about the motive part also turned hostile. The only evidence relied upon by the Trial Court to convict the accused, is the evidence of P.W.14.
18.Now, the question that has to be considered in this appeal is as to whether the evidence of P.W.14 is reliable and acceptable to convict the accused Nos.1 to 5.
19.On a careful scrutiny of Ex.P.11, we found that in the FIR, it has been stated that by P.W.14 that on 12.01.2003 he came to his sister's house at about
11. A.M. and thereafter on the same day night , the deceased who is the husband of P.W.14's sister called him to accompany him to meet his friend. On the request made by the deceased, P.W.14 accompanied the deceased for seeing his friend, while both of them were returning, the accused intercepted with deadly weapons and attacked the deceased. In the FIR, he had not stated anything about the first part of the occurrence which is said to have been taken place at the City wine shop. But before the Court he had stated that when the deceased was in city wine shop, there was a wordy quarrel and when the deceased coming back from the wine shop along with him the accused waylaid and attacked. This improved version found in the evidence of P.W.14 would clearly show that only to fall in line with the prosecution case he had developed his version as stated supra. Secondly, from his evidence, we found that though it was stated by P.W.14, he was present at the place of occurrence and he ran away from the place of occurrence, since the accused threatened him he did not take any step to inform the same immediately to his relatives or his sister or police. This conduct of P.W.14 accused as put forth in his evidence is not normal. Particularly, when the deceased is none other than the husband of P.W.14's sister, the natural tendency of a person is to come back to scene of occurrence and to remove the victim to hospital and inform the same to the relatives and police immediately. But on the contrary, P.W.14, in his evidence stated that he ran away from the scene of occurrence and he reached the place viz., Eraviputhurkadai at 3.30 a.m. from where he got into the bus and reached his native place Purakadai and informed the relatives and thereafter, next day morning at 8.30 a.m. went to the Thuckalay Police Station presented the written petition Ex.P.11. This statement of P.W.14 made in his evidence appears to be totally unnatural especially in the circumstance when he admitted in the cross examination that enroute to his native place there was a police station at Marthandam. The reason assigned by P.W.14 for not informing about the occurence to the wife of the deceased who is his sister for his imaginary reason is that if he informed the attack, she would have got panic is totally unbelievable.
20.Similarly, the submission made by the learned counsel for the appellants that based on the evidence made by P.W.14 in his cross examination, originally a complaint was drafted by Babu to P.W.14 creates a doubt in the minds of this Court about the existence of the present FIR, especially in the circumstance, when no effort was taken by the prosecution to examine the said Babu as a prosecution witness. That apart, the evidence of P.W.15, the Medical Officer to the effect that there was no swelling on the body, would also fortify the submission put forth by the learned counsel for the appellants had there been an attack by iron rods by other accused, there would have been swelling all over the body.
21.It is pertinent to take note of the vital fact that P.W.14 in his petition, had come for-ward with a different version that along with A1 to A3 and 3 more accused persons whose names, he did not know but whom he could identify, cuts the very root of the prosecution case. This version indicates that P.W.14 was not sure of the total number of the assailants who participated in the occurrence.
22.Looking at any angle, we are of the opinion that the conduct of P.W.14 as projected in his evidence is not natural and acceptable, and therefore, the submission made by the learned counsel for the appellants that the evidence of P.W.14 was fabricated to suit the present case of the prosecution cannot be brushed aside. It leads to the conclusion that the presence of P.W.14 at the scene of occurrence was not proved and this witness is purposely pressed into service on the next day to serve as an eye witness.
23.Similarly, coming to the composite seizure of the weapons, on the alleged admissible portion of the confessional statement of A-2, especially when a group of assailants had participated in the occurrence and when the weapons are not identified by any witness, we are of the view that such evidence is likely to prejudice the interest of justice. Therefore, we are accepting the submission made by the learned counsel by relying upon judgment reported in 1999 (3) Guj.L.R.2613 (State of Gujarat Vs.M.P.Jadeja) that preparation of joint panchnama of discovery in respect of incriminating material admissible under
Section 27 of the Evidence Act when more than one accused is involved, is not only inexpedient, unhealthy, but at time confusing and prejudicing the interest of both parties.
24.Therefore, we are of the considered opinion that the prosecution has miserably failed to prove their case beyond reasonable doubt. In the light of the vital contradictions as stated supra, we are of the considered view that the prosecution case as against the appellants/accused is not substantiated. Consequently, the order of conviction and sentence passed by the trial Court are set aside and all the accused are acquitted of all the charges.
25.In the result, both the appeals are allowed.
sms To The Inspector of Police, Thuckalay Police Station, Nagercoil, Kanyakumari District.