Animadverting upon the order dated 18.4.2006, passed by the learned Additional Sessions Judge cum IV Fast Track Court, Chengalpattu at Poonamallee in S.C.No.72 of 2003, this criminal revision is focussed.
2. Broadly but briefly, narratively but precisely,the relevant facts which are absolutely necessary and germane for the disposal of this revision would run thus:
(a) The police laid the police report in terms of
Section 173 Cr.P.C. against A1 to A3 for the following offences:
Respondents 1 and 2 were charged for the offence u/s 302 r/w 34 IPC and respondent 3 was charged for the offence u/s 302 r/w 109 IPC.
(b) Inasmuch as the accused pleaded not guilty, the learned Sessions Judge proceeded with the trial. On the prosecution side P.Ws 1 to 23 were examined, Exs.P1 to P38 were marked and M.Os.1 to 11 were marked. On the defendants' side no oral or documentary evidence was adduced. Ultimately the trial Court acquitted the accused of all the offences, with which, they were charged.
(c) Being aggrieved by and dissatisfied with the judgment of acquittal, the father of the deceased, Pulliah, who was P.W.8 in the prosecution case, filed thi revision challenging and impugning the acquittal on various grounds, the gist and kernel of them would run thus:
4. The lower Court ignoring the oral evidence of P.Ws.1 to 23 and also Exs.P1 to P38 and M.Os.1 to 11 simply acquitted the accused unjustifiably. The evidence of P.W.2, the independent witness being the neighbour of the deceased, was not taken into consideration. Even though P.Ws.3, 4 and 13 spoke about the abscondance of the accused since the date of occurrence on 09.02.2002, the lower Court did not give importance to such a piece of evidence. P.W.5, the Doctor categorically stated that A2 told her about his complexity in perpetrating the crime, but the lower Court did not take into consideration such evidence in proper prescriptive. The injury sustained by A1 while committing murder was clearly proved by the prosecution, but even then the lower Court simply ignored it. The Mahazar witnesses spoke about the recoveries of blood stained earth, weapon of offence and various other materials etc., but that was not considered by the lower Court. P.Ws.2 and 9 identified the accused during identification parade, but that was also ignored by the trial Court. The evidence of P.W.16 formed part of the circumstantial evidence and its significance was not appreciated by the lower Court. The post mortem report also clearly supported the prosecution case. Accordingly, the trial Court ignoring the clinching evidence adduced by the Prosecution, simply acquitted the accused warranting interference by this Court and accordingly, the revision petitioner prays for interfering with the order of acquittal and for setting aside the same and to pass suitable orders.
5. Heard both sides.
6. The points for consideration are as to:
(1) Whether the lower Court was perverse in applying the law relating to circumstantial evidence?
(2) Whether the lower Court unjustifiably ignored the evidence of P.W.16 and also the evidence of P.Ws.2 and 9 and other Mahazar witnesses who spoke about recoveries of M.Os.7 and 8, the weapons of offence and also the evidence of parents of the deceased and other clinching evidence?
(3) Whether interference of this Court is required?
7. The learned counsel for the revision petitioner placing reliance on the grounds of revision would canvass the case of the revision petitioner to the effect that the revision petitioner's son was brutally murdered by A1 and A2 at the behest of A3 and that the police also took steps to gather evidence and produce before the trial Court, for nothing but to be rejected by the trial Court unjustifiably.
8. Whereas the learned counsel for the respondents/accused would by inviting the attention of this Court to various portions of evidence would highlight that absolutely there is no shred or shard, iota or miniscule, scintilla or speck of evidence to drive home the guilt of the accused and in such a case, the lower Court was justified in acquitting the accused and no interference is required.
9. Under these circumstances, it is just and necessary to analyse the various portions of the evidence adduced before the lower Court for the purpose of finding whether the lower Court was justified in acquitting the accused or not.
10. The long and short of the prosecution case is that on 09.02.2002, at about 10.30 p.m. while the accused was riding the motor cycle bearing Registration No.TN 10 C 5227 belonging to P.W.7, along Annai Sathya Main Road in Valasaravakkam area, A1 and A2 at the behest of A3 waylaid him and brutally attacked him with M.Os.7 and 8 and done him to death at the spot itself and got absconded due to previous enmity that the deceased father, P.W.8 had illicit intimacy with the mother of A1 and A2 and wife of A3.
11. The learned counsel for the respondents/accused would submit correctly that in a case of circumstantial evidence, motive part of the crime gets prominence even though normally motive part of the crime alone is not the decisive factor. According to him during trial, P.W.8 as well as P.W.11 the parents of the deceased had given a go bye to the motive part of the crime by pointing out nothing about the alleged illicit intimacy between P.W.8 and the wife of A3. Whereas P.W.8 would come forward with a different version that there was some financial dealings between himself and the family of the accused and that alone actuated and accentuated, propelled and impelled the accused to make short work of his son, the deceased Muralimohan. As such it is clearly and pellucidly clear that the prosecution laid the police report by incorporating one motive, namely the father of the deceased P.W.8, had illicit intimacy with wife of A3 and that was the bed rock of the enmity. But during trial, the prosecution witness namely P.W.8 as well as P.W.11, the wife of P.W.8 had given a go bye to the said motive and in such a case, it has been held that absolutely the prosecution failed to prove the motive part of the crime in this case beyond reasonable doubt. The prosecution through P.W.16 attempted to put forth the case as though while P.W.16 was riding his motor cycle nearby the place of occurrence, he accidentally came across the motor cycle driven by A2 with A1 as pillion rider with bleeding hand soon after occurrence on 09.02.2002, and on seeing A1, P.W.16 allegedly questioned him about it, for which A1 replied as though he had an entanglement with deceased Muralimohan and in that process he sustained injury.
12. The learned counsel for the accused would invite the attention of this Court to various portions of the evidence and point out as to how the evidence of P.W.16 is totally an unreliable one and by no stretch of imagination, it could be taken as evidence which could be relied on for the purpose of recording conviction as against the accused. P.W.16 would detail and delineate that after allegedly having seen A2 coming along with A1 on the motor cycle on 09.02.2009, and also having ascertained as above from A1 about the presence of the blood on his hand, he (P.W.16) simply left for Nellore at 04.00 a.m. on 10.02.2002 itself so as to attend his sister's son's marriage without informing anyone about the occurrence and that he returned only on 18.02.2002, so to say 8 days after the date of occurrence and on learning that Muralimohan was murdered, he went to police and narrated his experience with A1.
13. The learned counsel for the accused would convincingly submit that if really P.W.16 had come across A1 and A2 soon after the occurrence and if he really ascertained from A1 about such alleged entanglement between A1 and deceased, certainly he being the relative of the deceased family would have informed the family members of the deceased before allegedly going to Nellore. In fact, P.W.7 during cross examination would candidly and concisely reply to the defence lawyer's question that on 10.02.2002 during the funeral ceremony of Muralimohan, P.W.16 was very much present along with A3 and others. As such the learned counsel for the respondents would correctly develop his argument that when P.W.7 categorically deposed that P.W.16 was very much available on 10.02.2002 itself at the funeral ceremony of deceased Muralimohan, the question of P.W.16 being at Nellore and returning back from there on 18.02.2002 etc., is nothing but a cock and bull story dished out by P.W.16 with the help of the police.
14. On the revision petitioner's side, nothing fruitful has been highlighted about this discrepancy by explaining this serious defect in the prosecution case. In my opinion the evidence of P.W.16 was relied upon by the prosecution to prove the incriminatory circumstances, but that is turned out to be not a reliable piece of evidence in view of my discussion supra.
15. On the prosecution side, evidence of P.W.5, the Doctor was relied on coupled with Ex.P2 the Accident Register, wherein the Doctor P.W.5 recorded the history narrated by the injured A1, when A1 was produced before the Doctor by two constables with memo.
16. The learned counsel for the revision petitioner would submit that such recording of the findings by the Doctor who is an independent witness about the narration of occurrence by A1 is an admissible piece of evidence and that could be relied upon for conviction.
17. At this juncture, my mind is redolent and reminiscent of the decision of the Hon'ble Apex Court reported in REHMAT VS. STATE OF HARYANA(1997 CRL.L.J.764), an excerpt from it would run thus:
"10. There is also another aspect which goes in favour of the appellant. Admittedly Padam Singh (P.W.4) along with Vijay Singh had first gone to the Primary Health Centre for medical help but he did not disclose the name of the assailant to the Doctor. Ordinarily, in a medico legal case, the doctor is supposed to write down the history of the injured but admittedly in this case, medical papers of Padam Singh (PW4) do not indicate the name of the assailant. The names were disclosed only at the time when the complaint was recorded by SI Narain Singh at about 9.00 p.m. which was treated as a formal FIR. The learned counsel for the appellant, therefore, rightly urged that the appellant was later on implicated in the present crime at the instance of the complainant and his friends. It may also be stated that the prosecution case even otherwise appears to us improbable because Padam Singh (PW4) claims to have got up early in the morning and saw the appellant running from the side of his room at about 3.30 a.m.In these circumstances, it is not possible to sustain the conviction of the appellant under Sections 307/
393 of the Indian Penal Code.
No doubt, history recorded by the Doctor after ascertaining the facts from the injured is a relevant piece of evidence. But in this case, A1 who sustained injuries was produced by the police after recording the confession from him and it is also a fact that in the memo of requisition given by the police also the history was found recorded and in such a case, the recording of the history by P.W.5 in Ex.P2 in this case loses its significance. Had the accused of his own accord in order to take treatment approached the Doctor for treatment and at that time, had the Doctor recorded the history, then that would be a clinching piece of evidence. But in this case, long after the occurrence the police arrested A1 and after recording the confession from him, sent him for medical examination and that too in the presence of two police constables; thereafter the history was recorded as in Ex.P2, which cannot be taken as the sole evidence for recording conviction as against A1. It might be that at the time of recording the confession by the Doctor, the police officials who accompanied the accused might not have been present, nonetheless, in the facts and circumstances Ex.P2 alone cannot be taken as the sole evidence to record conviction as against A1.
18. M.Os.7 and 8 were claimed to have been recovered by Investigating Officer. M.O.7 was recovered at the instance of A1 and M.O.8 was recovered at the instance of A2. But the evidence adduced in support of such recoveries turned out to be not worthy of being considered for conviction. P.W.14 whom the prosecution relied on to prove the recovery as per
Section 27 of the Indian Evidence Act, in no way supported the prosecution case. P.W.15 would simply state that police called him to the Police Station and there the police asked him to question the accused as to what he did. Whereupon, as per P.W.15, A1 took out a knife from the Police Station itself and handed it over to the Police.
19. It is obvious and axiomatic that such sort of evidence can never be taken as sufficient evidence to prove the recovery of M.O.7, which was alleged to have been used by A1 for perpetrating the crime. Relating to M.O.8, the prosecution relied on the evidence of P.Ws.15 and 20, but their evidence is far from satisfactory for the reason that according to P.W.23, the Investigating Officer, the confession of A2 was recorded near round tanna of Valasaravakkam, but those witness would speak otherwise. In fact, P.W.20, V.A.O. would go to the extent of deposing that after recovery of the weapon, confession was recorded etc. As such, the evidence on the prosecution side relating to recovery of M.Os.7 and 8 cannot be relied on for recording conviction as against any one of the accused.
20. Even though prosecution relied on the statements of some of the witnesses, so to say P.Ws.2, 3, 4, 9 and 13 for the purpose of fixing the responsibility at the initial stage on the accused and for arresting them, the evidence of those witnesses during trial in no way helped the Court to believe that based on such evidence alone police arrested the accused. P.Ws.2 and 9 would not in any way before the Court speak that they had seen the accused in the company of the deceased shortly before the occurrence; unless there is such an evidence, the question of ushering in the last seen theory would not be attracted. Even though the police claimed that A1 was arrested only near his house, there is nothing to indicate that before the arrest, police gathered any reliable evidence to rope him. The inquest report would not refer to any accused. The panchayatars concluded that unknown persons committed the murder. Even though, they opined suspicion was there on some persons, the names of the suspects were not found recorded therein.
21. I would also like to point out that in the inquest report, the gist and kernel of the statements of the witnesses who are examined before the Panchayatars should find a place, but that is missing and the police in future should take note of this fact and see that in the inquest report at least the summary of the statements of the witnesses who are examined before the Panchayatars is found recorded there.
22. The defence theory relating to explaining the injury on A1 was that A1 was illegally taken into custody and he was kept in police custody for a considerable time and was tortured and that the injuries on A1 were due to that only. But here there is nothing to indicate that A1 was illegally taken into custody and relating to that no telegram or representation was given to the higher officials or to the Court, for which the learned counsel for the respondents would submit that the family of the accused was not that much educated or conversant with the legal provisions to resort to such methods. Be that as it may, the accused is not duty bound to prove the defence theory beyond reasonable doubts.
23. The defence of the accused was also that at the relevant time of the incident, the deceased was riding the motor cycle of P.W.7 and he (P.W.7) might have had enemies and due to mistaken identity the deceased might have been done to death by those enemies. The defence theory as such is a far fetched one fails to carry conviction with this Court. It is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubts, but in this case, I could see no clinching piece of evidence on the prosecution side.
24. At this juncture, I like to fruitfully cite the decision of the Hon'ble Apex Court reported in AIR 1992 SUPREME COURT 2045 [ State of U.P v. Ravindra Prakash Mittal] relating to circumstantial evidence.
25. The nitty gritty, the pith and marrow of the decision is that the Court is expected to resort to disjunctive syllogistic pattern in analysing the evidence. The alternatives should be mutually exclusive and collectively exhaustive. All the alternatives should be capable of being excluded except one which points unerringly towards the guilt of the accused. Applying that theory if the evidence on record is analysed, it is clear in view of my discussion supra that no such circumstances are pointing towards the guilt of the accused and in such a case, I could see no merit in this revision. Accordingly, this criminal revision case is dismissed.
gms To
1. The Additional Sessions Judge cum IV Fast Track Court, Chengalpattu at Poonamallee
2. The Public Prosecutor, Madras