THE HONOURABLE MR.JUSTICE S.BASKARAN
1. Ramesh 2.Vellaian Criminal Appeal No.592 of 2012 ---
3.Suresh ... Appellants/A-1 to A-3 vs.
State rep. By Inspector of Police Palacode Police Station Crime No.435 of 2009 Dharmapuri District ... Respondent/Complainant Criminal Appeal filed against the judgment dated 14.08.2012 passed in S.C.No.91 of 2011 on the file of Additional District and Sessions Judge, Dharmapuri.
For appellant : Mr.R.John Sathyan For Respondent : Mr.E.Raja, Additional Public Prosecutor JUDGMENT The appellants are accused 1 to 3 in S.C.No.91 of 2011 on the file of Additional District and Sessions Court, Dharmapuri. They stood charged for offence punishable under Section 302 IPC. By judgment dated 14.08.2012, the trial court convicted them for the offence under Section 304(2) of IPC and sentenced to undergo RI for the period of 4 years and to pay a fine of Rs.1000/-, in default to undergo RI for the period of 6 months. Aggrieved over the finding of the trial court, the appellants have come forward with this appeal seeking to set aside the finding of the trial court and the conviction and sentence imposed on them.
2. The case of the prosecution is as follows:-
(a) The appellants/A-1 to A-3 are close associates. The 1st accused has married one Saraswathy. The deceased Muniraj had illicit contact with the wife of the 1st accused. Hence, there was a previous enmity between the 1st accused and deceased Muniraj. On 08.08.2009 at about 10.30 a.m., due to the above said previous enmity, the accused 1 to 3, with intention to cause the death of deceased Muniraj, pushed Muniraj into the railway track, while the train from Hosur to Dharmapuri was running and Muniraj died on the spot due to the shock and haemorrhage and due to the injury on his vital organ.
(b) According to P.W.1-Station Master while he was working in Dharmapuri Railway Station, on 08.08.2009 at 12 noon he received a phone call from Palacode Station Officer that a male dead body is lying in 90/400-
500 km., between Palacode and Marandahalli. He has given a written intimation to the Sub Inspector, Dharmapuri Railway Police Station. The said written Intimation is Ex.P.1. P.W.2 is the Palacode Station Master. P.W.3 Sellaraj is the Key Man of the Gang at Dharmapuri Railway Station. According to P.W.3, on 08.08.2009, when he was in duty from morning 7 am, at K.M.90/400-500, Passenger Train crossed the said place by 10 a.m., and he saw a crowd standing and when he visited the said spot, he has seen a male dead body and therefore, he informed Palacode Station Master through phone.
(c) According to P.W.4 on 08.08.2009, when he was at Kuppankottai, he met Muniraj and they were talking for a while. At that time, all the 3 accused came there in a motor cycle and they had conversation with the deceased Muniraj. Muniraj asked him to take the cycle and to keep it in his house, however, he replied that he is going by walk. At that time A-1 Ramesh assaulted the deceased Muniraj and on seeing the same, he starting moving from that place. However, again when he came to that place, he saw A-2 Vellaiyan beating the deceased Muniraj with slipper and when he enquired about the same, they replied that it is not necessary for him to know the same. P.W.4 further stated that he thereafter, came with one Madesh to Vazhaithottam, but all the 3 accused and Muniraj were found missing there. He along with Madhesh searched for them and seen accused 1 to 3 wriggling the deceased Muniraj hands on the bridge near the 1st accused mother-in- law's house and they made Muniraj to stand in a hut. P.W.4 in his evidence further spoken that he asked Muniraj to come along with him in his motor cycle, to go to village and meet village elders and to resolve the issue, however, Muniraj refused to come along with P.W.4, but proceeded to flag post near railway track and started running towards the railway track and A-2 and A-3 followed Muniraj and after some time, A-3 informed him that Muniraj died and that time he came to know that Muniraj died.
(d) P.W.5 in his evidence stated that on the day of occurrence when he was sitting in Anjenayar temple, P.W.4 and Madhesh informed him that A-1 to A-3 is assaulting Muniraj and thereafter P.W.4 and Madhesh proceeded in their motor cycle and he followed them in bicycle but he found nobody in the place, where P.W.4 stated about the assaulting of Muniraj. Thereafter, on coming to know that Muniraj is being assaulted by the accused in Vazhaithottam, he proceeded there and seen A-2 holding Muniraj's shirt. It is further stated that when he enquired regarding the same, it was informed that Muniraj is having illicit relationship with A-1's wife and at the same time, Muniraj started running towards railway track and all the 3 accused followed Muniraj and Muniraj fell down before the train and died.
(e) P.W.6 in his evidence stated that on the day of occurrence at 10 a.m., P.W.4 contacted him through cellphone and informed about the assault made by all the 3 accused on Muniraj and he along with P.W.4 went to Kuppankottai Bus stop, but found none there and P.W.4 asked him to come to Vazhaithottam where he found all the 3 accused holding Muniraj and when he enquired about the occurrence, they replied that it is not necessary for him.
P.W.6 further stated that he asked Muniraj to come along with him in motor cycle, but he refused and thereafter started running towards railway track and A-3 ran for a while and stopped, thereafter, he was informed by P.W.4 that Muniraj died, but he did not go and see the dead body. P.W.7 is the mahazar witness.
(f) P.W.11 Head Constable of Railway Police stated that on 08.08.2009, the station master of Dharmapuri Railway Station gave a written complaint stating that a male body aged about 28 years was seen between Palacode Railway Station and Marandahalli Railway Station at 90/400-500 km Thereafter, P.W.11 went to the spot and the Special Sub Inspector of Police attached to Salem Railway Police P.W.12 Shanmugam also came to the spot and he informed P.W.14-Baby, the Inspector of Railway Police, about the same. Thereafter P.W.15 Inspector of Police, Palacode, came to the spot and directed him to hand over the body of the deceased to the Government Hospital, Dharmapuri, for post mortem and accordingly, he took the body found in the railway track to the Government Hospital, Dharmapuri, and after post mortem was conducted on 09.08.2009, handed over the body to the relatives of the deceased and seized M.O.1 and M.O.2 dress material from the body of the deceased and handed over the same to the Inspector-Railway Police.
(g) The Special Sub Inspector of Railway Police, Salem, who deposed as P.W.12 stated that while he was on duty on 08.09.2009, he was informed by Woman Sub Inspector Karthikeyani over phone that a body of 28 years old male was found in between Palacode and Marandahalli 90/400-500 km and accordingly, he met the Dharmapuri Railway station Manager-P.W.1- Madhappan, at 14.15 hours and received the complaint and registered a case in Dharmapuri Police Station Crime No.101/2009 under Section 174 Cr.P.C., and took up the case for investigation. After examining the witnesses and coming to the conclusion that it was the case of murder, he informed P.W.14- Baby, Inspector of Police over phone and submitted his special report Ex.P.5 and arrested him, in further investigation, registered the case in Crime No.435 of 2009 under section 174 Cr.P.C., and produced the said FIR as Ex.P.4. P.W.11 has taken the body of the deceased from the occurrence spot to General Hospital, Dharmapuri, for post mortem on 08.08.2009 and on the next day, P.W.13 Dr.Balamurugan conducted post mortem on the body of the deceased. According to P.W.13 Dr.Balamurugan, on 09.08.2009, a male body was brought for post mortem in Ex.P.6 requisition letter and accordingly, he commenced post mortem at 10.30 a.m., He found the following injuries on the dead body.
“External Injuries:-
(1) Crush injury involving whole skull with mandible fracture. Base of skull present. Right eye crushed.
(2) Laceration over Left side of chin 2 x 1 ½ cm.
(3) Right elbow abnormal mobility.
(4) Abrasion with contusion over (L)elbow.
(5) Abrasion 20 x 10 cm (L) kiwer chest
(6) 20 x 20 cm abrasion over (R) Back of chest.
(7) 10 x 10 cm abrasion over upper abdomen.
(8) Abrasion with contusion (L) scrotum 3 x 3 cm
(9) contusion 8 x 8 cm(P) Thigh.
(10) ® Ankle jt abnormal mobility X with 5x 5 cm contusion.
(11) (L) Lower limb crushed and amputated below knee.
Internal Injuries:-
Skull: Base of skull present. Vault-absent. Brian and Meninges -absent. Moxilla and mandible present-both sides. Hyoid bone- present. Ribs Fracture present Both sides. Heart-4 x 3 x11 cm laceration X anterior wall. Lungs-BIL multiple laceration present. Liver-torn. Spleen-lacerated. Kidney -L-lacerated R-pale in c/s.Stomach- around 100 ml of partially digested rice particles. Bladder-empty. Pelvic bone fractured. ® Oleeravon fracture present.
P.W.13 doctor stated that the person died 24-36 hours prior to post mortem and the death would have caused due to excessive bleeding and shock caused due to the severe injuries found all over his body. All the injuries on the body of the deceased were ante mortem and injuries could have been caused due to dashing with the train. He also produced Ex.P.7-Bone case report, Ex.P.8- Viscera report, Ex.P.9-Biological report, Ex.P.10-Serology report and Ex.P.11- Post Mortem Certificate.
(h) The Inspector of Police, who deposed as P.W.14 stated that after receiving the special report Ex.P.5 submitted by P.W.12, the Sub Inspector of Police visited the occurrence spot at 90/400-500 km, prepared observation mahazar Ex.P.12 and recovered blood stains M.O.3 series and seizure mahazar Ex.P.13. P.W.14 further stated he conducted inquest on the body of the deceased in the presence of Panchayatdars and the inquest report prepared by him is Ex.P.14. After examining witnesses and coming to conclusion that the deceased would have been murdered, he altered the penal provision from Section 174 Cr.P.C., to 302 IPC and the alteration report submitted by him is Ex.P.15. Thereafter, as per the orders of Dharmapuri Railway Superintendent of Police, he handed over the investigation to Palacode Police on 09.08.2009.
(i) The then Palacode Inspector of Police who deposed as P.W.14 stated that he received the case file relating to Dharmapuri Railway Police Station Crime No.101 of 2009. As per his evidence, he prepared Ex.P.16 Memo and Ex.P.17-FIR and thereafter visited the occurrence spot and examined the witnesses. He gave Ex.P.18 requisition letter to the court requesting to send the internal organs of the deceased for chemical analysis and on that basis Ex.P.19 requisition was issued by the court to send the same for chemical analysis. In the mean while, one of the accused viz., Vellaiyan (A-2) surrendered before the court and on completion of enquiry, P.W.15 filed charge sheet against the accused under Section 302 IPC. On the basis of the above material, the trial court framed the charge against the accused as stated in its judgment and the same was denied by the accused 1 to 3. In order to prove the case, the prosecution examined P.W.1 to 15 and produced Exhibits P.1 to P.19 and M.Os.1 to 4. On the side of the defence, no witnesses were examined and no document is produced. On the basis of the evidence placed before the court, the accused were found guilty for the offence under Section 304(2) IPC and not under section 302 IPC and accordingly, they were convicted as stated above. Aggrieved over the said finding, the accused have come forward with this appeal contending that the finding of the trial court is not proper and the same is unsustainable.
3. According to the counsel for the defence, the trial court, on the available materials, should have concluded that the accused neither had the intention nor the knowledge that the deceased will meet his death, hit by the train. The evidence of P.W.6 was not properly considered and his evidence will prove that the intention of the accused was only to settle the dispute in Panchayat and not to kill the deceased. The trial court also failed to appreciate the fact that the deceased escaping from the accused, so as to avoid facing embarrassment in the village panchayat, dashed against the train and as such, the accused are not responsible for the death of the deceased.
4. The persons who have been named as eyewitnesses were not examined by the prosecution. The trial court failed to appreciate the evidence in proper manner resulting in the impugned judgment which according to the appellant is unsustainable and liable to be set aside. Hence, the appellant has come forward with this appeal.
5. According to the prosecution, the accused were all friends and the deceased Muniraj also belonged to the same village and known to each other and the deceased was allegedly having illicit relationship with the wife of the 1st accused and to take action against the victim for the same, all the 3 accused got together, caught hold of the deceased on 08.08.2009, thrashed the accused with hands and pushed him before the on coming train knowingly that the victim will be killed by their act and as such the victim died due to run over by the train as evidenced by the post mortem certificate. The accused is stated to have committed the death of the victim as such, the prosecution has framed the charge that the accused have committed offence under Section 302 IPC and they are liable to be punished for the same. However, the trial court has further concluded that the offence under Section 302 IPC is not made out, as the victim escaped from the clutches of the accused and as he ran away to escape and the accused chased them, the victim dashed against the on coming train resulting in the death, as a result, the act alleged to have committed is an offence under Section 304 IPC.
6. The learned counsel for the appellant contended that the finding of the trial court that the accused knowing that if they chased the deceased and forced to dash against the running train, it will cause death, thereby, the charge against the accused under Section 304 IPC is not proper and no material to prove the same.
7. Thus it is to be seen (i) whether the above said contention of the counsel for the appellant is just and proper and (ii) whether the prosecution has proved beyond doubt that only due to the accused chasing the victim, knowing well that it may result in the accused dashing against the on coming train, have to be seen.
8. According to the prosecution, the deceased Muniraj was having illicit affair with the wife of the 1st accused/Ramesh and due to that, enmity existed between the 1st accused and the deceased Muniraj, in order to question the deceased regarding the illicit affair, on 08.08.2009, the 1st accused along with his friends A-2 caught hold the shirt of the deceased Muniraj, A-1 and A-3 caught hold the hip of Muniraj. In order to escape from the accused, the deceased Muniraj ran away from them. Thereafter, it is stated A-1 with the help of A-2 and A-3, pushed down Muniraj into the running train between Palacode and Marandahalli railway station km 90/400, resulting in his death. Thus the prosecution case is that the victim was thrown in front of the train by the accused on the fateful day.
9. According to P.W.3 gang man, on 08.08.2009, while he was on duty on 08.08.2009, from 7 a.m to 17 hours, at about 10 a.m., near km. 90/400- 500 he saw a group of people and as he went there, he saw a male body on the track and immediately he informed Palacode station master who deposed as P.W.2. According to P.W.2, while he was on duty at Palacode Railway station, the gang man P.W.3 Selvaraj informed him about seeing a male body in the railway bridge at km 90/400-500 and he in turn informed P.W.1 Dharmapuri Railway Station Master viz. Madhappan about the same. P.W.1 stated that on 08.08.2009, while he was on duty at Dharmapuri Railway Station, at 12 noon, he was informed by P.W.2 over phone that a male body was found at k.m.90/400-500, and immediately, he gave information to Sub- Inspector, Dharmapuri Railway Police in writing and the said written communication is produced as Ex.P.1. P.W.11 Head Constable of the Dharmapuri Railway Police Station stated that on 08.08.2009, on receipt of the written complaint from P.W.1 he reached the occurrence spot at km 90/400-500 and informed the Special Sub Inspector-P.W.12 Shanmugam about the male body lying in the track in the above said spot. The said Special Sub Inspector of Police P.W.12 stated that on receipt of intimation from Karthikeyani, Woman Sub-Inspector, Salem Railway Police Station, regarding a male body lying on km 90/400-500, he reached the occurrence spot at 14-15 hours, conducted enquiry and submitted Ex.P.5 Special report to P.W.14 Inspector of Police.
10. As stated earlier, the P.W.14-Inspector of Police on preparing mahazar, rough sketch etc, altered the case from 174 Cr.P.C., into one under Section 302 IPC and handed over the investigation to P.W.15 Inspector of Police. Thus, as per the charge framed against the accused, due to illicit relationship of the victim with the wife of the 1st accused, all the 3 accused caught hold of the accused on 08.08.2009, pushed him between the train Engine and 1st bogie resulting in his death.
11. As contended by the learned counsel for the appellants/accused, the above said allegation of pushing the deceased into an on coming train is not established by prosecution with enough material and in such circumstances, now it is to be seen as to whether the the finding of the trial court is to be set aside as argued by the learned counsel for the appellants/accused.
12. P.W.1 to P.W.3 have not stated anything about the details of the train in which the victim got struck. P.W.16-the Inspector of Police also not stated anything about train which allegedly hit the victim resulting in his death. P.W.4 Arivazhagan stated that he is living in Kalkudapatti and knew the deceased as well as the accused who belonged to his village. While he was talking with the deceased Muniraj, all the 3 accused came in a motor cycle and were talking with Muniraj. At that time, 1st accused Ramesh assaulted the deceased Muniraj and subsequently 2nd accused assaulted the deceased with his chappals and that he questioned them. The 1st accused told about the illicit relationship the deceased had with his wife and thereafter, he went away to fetch village elders to settle the issue along with P.W..6. When he returned back, he found all the three accused dragging Muniraj near the residence of the mother-in-law of the 1st accused.
Thereafter, the deceased Muniraj was detained in a hut by all the three accused. While all of them were talking, the deceased ran towards the train and the 2nd and 3rd accused ran behind Muniraj, but A-3 returned and informed that Muniraj died. Subsequently all the three accused went away from the occurrence spot. P.W.4 stated that he remained in the spot on the intimation given by Madhesh and villagers came to the spot. Similarly P.W.5 Madhayan stated that while he was sitting near Anjenayar Temple with P.W.6- Madhesh, P.W.4 Arivazhagan came there and informed him that the accused are beating up Muniraj very badly and immediately he went there with P.W.6 and P.W.4 and no one was found in that place. Subsequently, he was informed by somebody that the deceased was beaten up at Vazhaithottam and he found there the 2nd accused holding the deceased Muniraj tying his shirt. When he was enquiring about the same, the deceased Muniraj escaped from Vellaiyan(A-1) and all the three accused chased him, at that time, the deceased fell before train and got hit and killed. Thus according to P.W.5, the deceased was held by A-2 and he escaped from them and ran away and got struck in the train and resulted in the death.
13. Likewise, P.W.6 deposed that one day while he was at home, around 10 a.m., he was informed by P.W.4 over phone that the accused was beating up Muniraj due to the illicit relationship with A-1's wife and immediately he went to Kuppankottai spot and found neither the accused nor the deceased there. Thereafter, he was taken by P.W.4 Arivazhagan to Vazhaithottam and he saw the accused bringing deceased Muniraj. When he asked him the details, he was informed by the accused that the issue can be sorted out in the Panchayat. A-2 was holding Muniraj by his shirt and at that time, Muniraj escaped from A-2 and A-1 stood half way. P.W.6 stated that he did not know about the other accused and subsequently, he was informed by P.W.4 that Muniraj died. Thus P.W.4 to 6 have stated about seeing the accused beating up the deceased on the occurrence day, alleging that he had illicit relationship with the 1st accused.
14. It is evident from the above said witnesses deposition that the deceased escaped from the accused and he was run over by train. The learned counsel for the appellants/accused pointed out that there was nothing in the evidence of P.Ws.3, 5 and 6 about the accused deliberately chasing victim towards the train knowingly that he will be run over by the train resulting in death. Further P.W.6 has stated that A-1 Ramesh stopped half way through and did not know what happened to A-2 and he did not say anything about A-2 chasing the deceased. Further P.W.6 stated in his cross examination as follows:-
“ vjphpfs; Kdpuh$pia gpoj;Jf; bfhz;oUe;j ,Ue;j ,lj;jpw;Fk; uapy;nt jz;lthsj;jpw;Fk; Rkhh; 40 mo Jhuk;
,Uf;Fk; vd;why; rhpjhd;/ ,J rk;ke;jkhf Chpy; g";rhaj;J ngrpdhy; mtkhdk; MfptpLk; vd;W Kdpuh$; bts;isad;
gpoapypUe;J tpyfp Xor; brd;whh; vd;why; rhpjhd;/ mwptHfd; brhy;yp jhd; Kdpuh$; ,we;j tptuk; vdf;F bjhpa[k;/ vjphpfs; epd;Wf; bfhzoUe;j ,lj;jpw;Fk; uapy;nt jz;lthsj;jpw;Fk; Rkhh; 10 mo gs;skhf cs;sJ vd;why; rhpjhd;/ Kdpuh$pia vjphpfs; gpoj;jpUe;j nghJ mjw;F Kd;g[ mth;fSf;Fs; vd;d ele;jJ vd;W vdf;F bjhpahJ vd;why; rhpjhd;/ ”
It is therefore clear that the deceased escaped from the clutches of the accused who were holding him and ran away and dashed against the on going train which according to the learned counsel for the appellants/accused, is only an accident. Similarly, P.W.5-Madhayan stated in his cross examination as follows:-
“vjphpfs; Kdpuhi$ gpoj;Jf; bfhz;oUe;j ,lj;jpypUe;J uapy;nt jz;lthsj;jpw;Fk; Rkhh; 50 Kjy; 60 mo Jhuk; ,Uf;Fk; vd;why; rhpjhd;/ Kdpuh$; bts;isad rl;il gpoj;jjypUe;J cUtpf; bfhz;L Xodhh;/ Xo ngha; uapy; mog;gl;lhh; vd;why; Kdpuh$; Xodhh; gpd;dhnyna vjphpfSk; Xodhh;fs; Kdpuh$; uapy; mog;gl;Ltpl;lhh;”
Thus while P.W.6 stated that only A-1 ran behind the deceased, P.W.5 stated all the three accused ran behind him. However, P.W.5 and P.W.6 categorically stated that the 1st accused was holding the deceased by his shirt and he escaped from him and ran near the railway track. Therefore, it is clear at the time when the victim ran away from the accused, they were only holding him and no one pushing him or forcing him to run towards the on coming train. Further P.W.5 has stated that he only came to know about the accused beating up the deceased and he had not seen them properly. P.W.6 stated that he do not know as to what happened prior to the accused holding the deceased. Therefore, the evidence of P.W.5 and P.W.6 is not clear cut about the accused abusing the victim and chasing him towards the railway track knowingly that the victim will suffer loss of life by the act. Likewise P.W.4 Arivazhagan stated while the accused and the deceased were talking in hut, which was about 50 feet away from the railway track, the deceased ran before the train. A-2 and A-3 ran behind him and subsequently A-3 came and informed him that the deceased Muniraj had died. It is clear from the evidence of P.W.4 that while all of them were talking, the deceased escaped from the place and ran towards the train. There is nothing in the evidence of P.W.4 to 6 that the accused deliberately forced the deceased to run towards train or chased him with an intention to abuse or assault him.
15. Further P.W.4 stated in his cross examination as follows:-
“ ehd; ghh;j;Jf; bfhzoUe;j nghJ Kdpuh$; vjphpfspd iffis tpLtpj;Jf; Xodhh; vd;W brhd;dhy; mij ehd; ghh;f;ftpyiy/ Rnuc&; Kdpuh$; uapy; mog;gl;L ,we;J tpl;lhd; vd;W brhd;d gpwF jhd; Kdpuh$; ,we;Jtpl;lhh; vd;W bjhpa[k;/ “ Thus the evidence of P.W.4 to P.W.6 is not categorical about the accused assaulting the victim or forcing him to run towards the on coming train leading to his death thereby being run over by the train. Further P.W.4 stated that he remained in the occurrence spot, but has not tried to inform the family of the deceased or the police about the occurrence.
16. As stated above, P.W.5 and 6, have stated differently about the accused running behind the deceased. Thus, the evidence of P.W.4 to 6 is contrary to one another about the accused running behind the victim. Further the prosecution has not stated as to which train came at that point of time and dashed against the deceased. P.W.1-Railway Station Master of Dharmapuri stated that in the said route between 12 midnight and 10 am at about 12-15 trains will pass through and nothing is stated in Ex.P.1 about the time the deceased was run over by the train. P.W.1 also stated that as per his confession, the deceased fell between the running train and was run over by it. As stated earlier, the charge against the deceased is that they pushed the deceased between Engine and Rails and thereby he was hit by the train. As stated earlier, no material available to prove the said sequence.
17. P.W.4 to P.W.10 stated that the deceased escaped from the 2nd accused who was holding him and was informed about the death of Muniraj. None of them have stated that the deceased was run over by the train as he was chased by the accused. Even though the medical evidence P.W.13 stated that the death would have been caused by dashing against the train, there is no material before the court to show that the victim was forced by the accused to run against the on coming train leading the deceased being run over by the train. Further as to which train ran over him is not disclosed. It is further pointed out that from the evidence of P.W.6 that the accused were only holding the deceased to take him to village panchayat to sort out the issue. It is therefore clear that the prosecution has not established the fact that all the accused chased the victim towards the on coming train, knowing that it would lead to death. In such circumstances, it cannot be stated that the accused committed an offence punishable under Section 304 IPC as concluded by the trial court. The material to prove the same is lacking.
18. The prosecution relied upon the evidence of P.W.8 who recorded the confession statement of A-3 to prove their case. P.W.8 stated that while he was working as Village Administrative Officer, Palacode Village, on 16.09.2009 at about 12 noon, the 3rd accused Suresh came to his office and gave statement about the occurrence involving himself and other 2 accused and the deceased Muniraj. After taking down the statement and obtaining his signature, he produced the accused/Suresh along with his special report to the police. Disputing the same, the learned counsel for the accused contended that no such confession was given and that too by A-3 nearly one month after the alleged occurrence. It is also pointed out that the evidence of P.W.9-VAO is that Kalkudapatti village does not come under his jurisdiction and further the distance between the Palacode VAO office and Palacode Police Station is 10 feet away and he has to cross the Police station and come to his office, and as such there is no need for the Village Administrative Officer to take down the statement from A-3. He could have produced A-3 straight away in the Police Station. P.W.8 Village Administrative Officer in his cross examination also stated that the confession statement recorded by him has not been attested by any witness.
19. As pointed out by the learned counsel for the appellants/accused, in the absence of any corroborating evidence to substantiate the alleged confession of A-3, the same will not be of any use to the case of the prosecution. Considering the fact that P.W.8 is not the Village Administrative Officer for the concerned area and his office is situated away from the police station and to reach the Palacode Police station, he has to cross the police station and it is 10 feet away. However, the other circumstances as pointed out in P.W.8 evidence about the time taken by him to record the statement from the time A-3 came to his office and producing him with report in the police station, doubt arises as to whether really such confession statement could have been recorded by him.
20. Taking into consideration the said factors, it is apparent that the alleged occurrence is not proved beyond reasonable doubt and the finding of the trial court that the victim was chased towards the on coming train by the accused knowing that it will cause his death has not been proved by acceptable evidence. In such circumstances, the conclusion of the trial court that the accused have committed an offence u/s.304(2) IPC is not sustainable and the reasons given by the trial court for coming to such conclusion is not proper and as such, the finding of the trial court is liable to be set aside. The appeal has to be entertained.
21. Taking into consideration the above said factors, it is apparent that the alleged occurrence is not proved beyond any reasonable doubt and the finding of the trial court that the victim was chased towards the on going train knowing that it will cause his death is not proved by any acceptable evidence. In such circumstances, the conclusion of the trial court that the accused have committed the offence under Section 304(ii) IPC is not sustainable and the reasons given by the trial court are not proper and as such, the finding of the trial court is liable to be set aside and the appeal is to be entertained.
22. In the result, the criminal appeal is allowed. The conviction and sentence passed in Sessions Case No.91 of 2011 by the Additional District and Sessions Judge, Dharmapuri, under Section 302(ii) of IPC is set aside. The appellants are acquitted. Bail bond, if any executed by them shall stand cancelled. Fine amount, if any paid, by them, is ordered to be refunded forthwith.
nvsri 17.02.2017 To
1. The Inspector of Police, Palacode Police Station Crime No.435 of 2009., Dharmapuri District.
2. The Additional District and Sessions Judge, Dharmapuri.
3. The Public Prosecutor Office, High Court, Madras.
4. The Section Officer, Vernacular Record Section, High Court, Madras S.BASKARAN, J.
nvsri Judgment in Crl.A.592 of 2012 17.02.2017 http://www.judis.nic.in