both appeals Criminal appeals preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the III Additional Sessions Judge, Puducherry, made in S.C.No.62 of 2008 dated 11.8.2009.
For Appellants : Mr.V.Gopinath Senior Counsel for Mr.L.Mahendran in CA 558/2009 Mr.B.Sriramulu Senior Counsel for Mr.J.Suresh in CA 640/2009 For Respondent : Mr.T.Murugesan Senior Advocate and Public Prosecutor for Pondicherry COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern these two appeals namely C.A.No.558 of 2009 by A-1 to A-3 and C.A.No.640 of 2009 by A-4, A-12 and A-14.
2.These appellants along with 15 others ranked as A-5 to A-11, A-13 and A-15 to A-21, stood charged and on trial, found guilty as follows, while the other accused were acquitted of all the charges levelled against them.
ACCUSED CHARGES FINDING PUNISHMENT A-1 to A-21 148 IPC A-1, A-2, A-3, A-4, A-12 & A-14 guilty Two years Rigorous Imprisonment with a fine of Rs.1000/- and default sentence A-1 to A-21 341 r/w 149 IPC A-1, A-2, A-3, A-4, A-12 & A-14 guilty One month Simple Imprisonment A-1 to A-21 307 r/w 149 IPC A-1, A-2, A-3, A-4, A-12 & A-14 guilty 10 years Rigorous Imprisonment with a fine of Rs.1000/- and default sentence A-1 to A-21 302 r/w 149 IPC A-1, A-2, A-3, A-4, A-12 & A-14 guilty Life imprisonment with a fine of Rs.1000/- and default sentence
3.Short facts necessary for the disposal of these appeals can be stated as follows:
(a) P.W.1, the deceased Jayasankar and P.Ws.2 and 3 all belonged to Pudukuppam Village. The accused party also belonged to the said place. In the said village, North Street Panchayat and South Street Panchayat were in the warpath due to the difference of opinion on many counts. On the date of occurrence namely 21.4.2006 at about 7.30 A.M., the deceased accompanied by P.W.1 was proceeding to Puthu Amman Temple, and on the way, they were waylaid by all the accused persons who were armed with deadly weapons. At that time, it was A-1 who attacked the deceased with a knife, and the same was warded off by him in which course he sustained injuries and fell down. Then P.W.2 intervened. At that time, he was attacked by A-2. Immediately both the deceased and P.W.2 in order to escape, jumped into the land and were just running. But, they were chased by all the accused. Since it was the river bank, the deceased could not run further, and finally with the injury he fell down. Immediately, A-2 and all other accused attacked him indiscriminately. In order to further escape, they ran towards the river side and fell down in the river.
(b) When P.W.1 and D.W.1 were proceeding on the way, they found the deceased actually floating in the river and P.W.2 coming out of the river. Immediately both of them took P.W.2 and the deceased to Mahatma Gandhi Hospital. Then P.W.2 was given initial treatment, and both were referred to the General Hospital, Puducherry. Thereafter, an intimation was given to the police which is marked as Ex.P38. Jayasankar was declared dead by P.W.14, the Doctor, attached to the General Hospital, and the death intimation is marked as Ex.P37. Then P.W.2 was given further treatment, and the wound certificate for P.W.2 is marked as Ex.P39.
(c) P.W.1 appeared before P.W.17, the Sub Inspector of Police, attached to the respondent police station, and gave Ex.P1, the complaint, on the strength of which a case came to be registered in Crime No.120 of 2006 under
Sections 147,148,341,307,302 and
323 r/w 149 IPC. The printed FIR, Ex.P45, was despatched to the Court.
(d) On receipt of the copy of the FIR, P.W.19, the Inspector of Police of the Circle, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P35. Then he caused the scene of occurrence to be photographed. He went to the mortuary, conducted inquest in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P36. He gave a requisition to the hospital authorities for the purpose of autopsy.
(e) P.W.15, the Specialist G-II & Head, Department of Forensic Medicine, General Hospital, Pondicherry, on receipt of the said requisition, conducted autopsy on the dead body of Jayasankar and has issued a postmortem certificate, Ex.P40, with his opinion that the deceased would appear to have died of shock and haemorrhage due to multiple injuries.
(f) When the investigation was further proceeded, the Investigator came to know that A-1 to A-4 and A-16 surrendered before the Judicial Magistrate No.I, Puducherry. He filed a memo for police custody, and it was ordered. During police custody, they gave confessional statements, which were recorded. The admissible parts are marked as Exs.P4 to P8 respectively. Pursuant to the same, A-16 produced a knife, M.O.17, which was recovered under a cover of Ex.P46, mahazar. They were sent for judicial remand.
(g) The Investigator also came to know that A-5, A-11, A-13, A-14, A-15, A-17, A-18, A-19 and A-20 surrendered before the Court, and he took them on police custody. At the time of interrogation, A-12 gave a confessional statement, and the admissible part is marked as Ex.P48. Pursuant to the same, he produced M.O.19, knife, which was recovered under a cover of Ex.P51, mahazar. A-13 gave a confessional statement, the admissible part of which is marked as Ex.P47. Pursuant to the same, he produced a knife, M.O.20, which was recovered under Ex.P52, mahazar. The confessional statement given by A-14 was recorded, the admissible part of which is marked as Ex.P49. He produced a knife, M.O.18, which was recovered under a cover of mahazar, Ex.P50. A-20 gave a confessional statement which was recorded, and the admissible part of the same is marked as Ex.P20. The knife, M.O.21, produced by him was recovered under a cover of mahazar, Ex.P54. These 10 accused were sent for judicial remand.
(h) A-9, A-10 and A-21 were arrested on 16.5.2006. They were sent for judicial remand. On 11.9.2006, A-7 and A-8 were arrested and were sent for judicial remand. All the material objects were subjected to chemical analysis by the Forensic Sciences Department pursuant to the requisition made through the concerned Court, which brought forth Ex.P41, the chemical analyst's report. The further investigation was taken up by P.W.20. On completion of investigation, the Investigator filed the final report.
4.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 20 witnesses and also relied on 56 exhibits and 21 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which they flatly denied as false. The defence examined one witness as D.W.1. On completion of evidence on both sides, the trial Court heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt insofar as A-1 to A-4, A-12 and A-14, the appellants herein, and hence found them guilty and awarded punishment as referred to above. Insofar as the other accused, the trial Court rejected the case of the prosecution and made a judgment of acquittal. Hence these appeals at the instance of the appellants.
5.Advancing arguments on behalf of the respective appellants both the learned Senior Counsel Mr.B.Sriramulu and Mr.V.Gopinath inter alia would submit that the prosecution has miserably failed to prove its case and thus the trial Court has taken an erroneous view; that the prosecution has marched P.Ws.1 and 2 as eyewitnesses; that from the evidence of P.W.1 in the chief-examination, it would be quite clear that he was not an eyewitness at all; that he has also further deposed both in the chief-examination and also in the cross-examination that after seeing the deceased floating in the river and also P.W.2 coming out of the river side, he went to South Street Panchayat and had consultation with all the members of the Panchayat, and thereafter, Ex.P1 was prepared; that he has also further candidly admitted that only on the suggestion made by the Panchayatdars, the names of all the accused are mentioned in Ex.P1; and that it would be quite clear that Ex.P1 was only a fabricated one on the strength of which a case came to be registered.
6.The learned Senior Counsel would further add that as claimed by the Investigator, the occurrence has taken place at about 7.30 A.M., and Ex.P1 was recorded at about 9.30 A.M., and the case came to be registered by the respondent at about 10.00 A.M.; but, the FIR has reached the Court at about 9.00 P.M.; that if to be so, the prosecution has to come with a reasonable or acceptable explanation how such an inordinate delay was caused; but the prosecution has not even examined the Constable who took the FIR to the Court; that the inquest is claimed to have been conducted at about 3.00 P.M.; that even in the inquest report, the names of the accused persons who were ranked as A-1 to A-21 before the trial Court and against whom charges were framed are not actually mentioned; that the FIR has reached the Court at about 9.00 P.M.; that this inordinate delay would clearly indicate that the FIR could have come into existence after the preparation of the inquest report; that even the inquest report has reached the Court on 24.4.2006 after a period of three days; and that there was no reason adduced by the prosecution how such an inordinate delay has occurred in despatching the FIR to the Court.
7.The learned Senior Counsel would further submit that the trial Court has relied on and accepted the evidence of P.W.2; that the evidence of P.W.2 was thoroughly unbelievable and unreliable for the reason that P.W.2 has given as many number of versions as possible; that the Investigator would claim that the statement of P.W.2 was recorded under Sec.161 Cr.P.C. on the very day; that if to be so, there was no reason why it accompanied the inquest report on 24.4.2006; that P.W.3 would claim that it was he who took P.W.2 in his vehicle as pillion rider, and then he was taken to the hospital; that the Doctor has well admitted that he has questioned P.W.2; that had it been true that P.W.2 was actually injured as spoken to by him, he should have mentioned the number of the assailants whether known or unknown; but, the wound certificate for P.W.2 which is marked as Ex.P39, would contain the word "assault", and it did not contain how many assailants, and whether they are known or unknown; that it is pertinent to point out that P.W.2 was conscious; that if to be so, he should have mentioned the names, but not done so; and that under the circumstances, it becomes doubtful whether P.W.2 could have sustained injuries as put forth by the prosecution.
8.Added further the learned Senior Counsel that at the time when P.W.2 was examined by the Investigator and his statement was recorded under Sec.161 Cr.P.C., he has attributed overt acts that A-1 attacked the deceased, and A-2 attacked him; that he has further added that all the other accused attacked both; that when he was examined before the Court, he has identified only six of the accused who were found guilty by the trial Court i.e., A-1 to A-4, A-12 and A-14; that in such a situation, though P.W.2 was a sole witness and he claimed to be an injured witness, the evidence becomes shaky in view of the discrepancies at different stages; and that barring the evidence of P.W.2, the prosecution had no further evidence to offer.
9.Added further the learned Senior Counsel that according to P.W.2, at the time of cross-examination, only six persons attacked the deceased and himself and no more; but, the Investigator would claim that at the time of arrest of the accused, 9 bloodstained knives produced by them were recovered, and they were all sent for analysis; that if really six persons have attacked P.W.2 and the deceased, the prosecution is unable to account for the 9 bloodstained knives; and that this would also indicate that the prosecution has not put forth its true case before the Court.
10.The learned Senior Counsel would further add that the inquest report though claimed to be prepared on the very day at about 3.00 P.M., it has reached the Court after three days; that the prosecution had no explanation to offer; that in view of the fact that the FIR itself is not only shown to be, but also admittedly a fabricated version, the entire edifice of the prosecution is collapsed, and there is no question of further improving the case; that the evidence available before the trial Court did not fix any one of the assailants, and it also did not point out either the culpability of 21 or 6 or any one of the accused for the matter; that the trial Court has disbelieved the same evidence in respect of the other accused in whose favour acquittal was ordered; that the same parameters are applicable to these appellants also; that under the circumstances, the prosecution has miserably failed to prove its case, and hence they are entitled for acquittal in the hands of this Court.
11.The Court heard the learned Additional Public Prosecutor on all the above contentions. The Court paid its anxious consideration on the submissions made and had a thorough scrutiny of the entire materials available.
12.It is not in controversy that one Jayasankar following an incident that had taken place at about 7.30 A.M. on 21.4.2006, at the place of occurrence was taken to Mahatma Gandhi Hospital, Puducherry, and then to the General Hospital where he was declared dead by P.W.14, the Medical Person. Following the registration of the case and the receipt of the copy of the FIR, P.W.19 the Inspector of Police, conducted inquest on the dead body. Pursuant to the requisition made, P.W.15, the Doctor, has conducted postmortem and has given an opinion before the Court as a witness and also through the contents of the postmortem certificate that the deceased would appear to have died of shock and haemorrhage due to multiple injuries sustained by him. The fact that he died out of homicidal violence was not a subject matter of controversy at the instance of the appellants before the trial Court, and hence the trial Court was perfectly correct in recording so.
13.In order to establish all the charges levelled against the appellants and other 15 accused before the trial Court, the prosecution examined P.Ws.1 and 2 as eyewitnesses. Even from the time of the chief-examination of P.W.1, it would be quit clear that P.W.1 was not an eyewitness to the occurrence. But, it was he who gave Ex.P1, the report. It is also admitted by him that all the names of these 21 persons were put in Ex.P1 document only on consultation with the panchayat members. At this juncture, much comment was made by the appellants' side that so long as Ex.P1 is shown and accepted as a fabricated document, the entire case of the prosecution must be rejected. This Court is unable to agree with him. In a given case though the prosecution claimed P.W.1 as an eyewitness, he has categorically deposed before the Court that he did not see the occurrence at all; that he was just proceeding; and that on the way he found P.W.2 coming out of the river and also found the body of the deceased floating in the river. It is true that if P.W.1 is claimed as an eyewitness and he is the author of Ex.P1, and it is found to be a fabricated one, the Court has no option than to reject the prosecution case. This Court is of the considered opinion that as far as P.W.1 is concerned, his evidence could serve the purpose of the prosecution that the criminal law was set in motion, and beyond that, this Court is unable to see anything to rely upon the evidence of P.W.1.
14.As far as P.W.2 is concerned, he was claimed not only as an eyewitness, but also an injured witness. Much comment was placed before the Court that the statement of P.W.2 though claimed to be recorded by the Investigator under Sec.161 Cr.P.C. on the very day, has reached the Court on 24.4.2006 along with the inquest report, and he has also given different versions at different points of time, and hence his evidence has got to be rejected. At this juncture, this Court has to point out firstly that in a given case like this where an eyewitness happened to be an injured witness, unless and until a strong circumstance is noticed or reason is brought bout, the Court should not discard his evidence. Apart from this, the doctrine falsus in uno, falsus in omnibus is not applicable to the Indian Evidence. P.W.2 would claim that he was in the place of occurrence, and the deceased and himself were attacked by A-1 and A-2 respectively.
15.It is also brought to the notice of the Court by the learned Senior Counsel for the appellants that P.W.2 was a pillion rider when P.W.3 drove the vehicle, and he was taken to the hospital; but, he has not stated to the Doctor whether the assailants were known or unknown or not even the number of the assailants. At this juncture, it is pertinent to point out that P.W.2 has sustained injury on the head, and he was taken to the hospital and was given treatment. The Doctor has specifically stated that he asked questions to P.W.2, which emanated no answer from him. Further, as rightly pointed out by the learned Public Prosecutor for Pondicherry, not even one suggestion was made to the witness that he was not at all available at the place of occurrence, and thus the presence of P.W.2 at the place of occurrence is quite evident. Once the presence of P.W.1 at the place of occurrence was to be accepted, and he also sustained injury in the transaction as put forth by the prosecution, the next question would be to what extent the evidence of P.W.2 can be taken to serve the purpose of the prosecution to find the appellants/accused guilty.
16.It is true that P.W.2 was not the author of Ex.P1, the report. At the earliest, the Investigator would claim that his statement under Sec.161 Cr.P.C. was recorded, and he has also stated therein that A-1 attacked the deceased, and it was A-2 who attacked him. Subsequently, when he was examined before the Court, as far as the others are concerned, he has stated that all others have also attacked. It is true that when he was examined before the Court, he has specifically stated that A-1 to A-4, A-12 and A-14 have attacked. But, when the earliest version was given by him before the Investigator, he has specifically attributed overt acts only to A-1 in respect of the deceased and to A-2 in respect of himself. Under the circumstances, all other things are found to be subsequently developed, and he wanted to stick on to the prosecution case as if 21 persons have attacked, by specifically stating that all others have also attacked. So long as P.W.2 was present, and he was injured, and he came with the earliest version that A-1 attacked the deceased and caused his death and A-2 attacked him, insofar as the rest of the evidence, this Court is unable to agree with the case of the prosecution. As far as the statement of P.W.2 recorded under Sec.161 Cr.P.C. was concerned, the questions were put to the Investigating Officer, and he has also admitted the same.
17.Now the contention put forth by the learned Senior Counsel that the FIR could have come into existence at a later point of time after the inquest report was prepared cannot be accepted. This Court is unable to notice any inconsistency between these two documents. Merely because the FIR has reached the Court with some delay, it cannot be stated that it has come into existence after the preparation of the inquest report. Had it been true, there is no need for the inquest report reaching the Court after a few days. Apart from this, the mere delay noticed by the Court, in the FIR reaching the Court by itself cannot be a reason to reject the case of the prosecution. Marshalling the evidence, this Court is able to see that the evidence of P.W.2 was acceptable to the extent that it was A-1 who attacked the deceased, and it was A-2 who attacked him in the transaction. As far as A-3, A-4, A-12 and A-14 are concerned, they are found to be improved versions, and hence credence cannot be attached to that evidence. That apart, there is nothing to indicate that there was any common intention between them, and it was shared also. Under the circumstances, for causing the death of the deceased, A-1 has got to be found guilty under Sec.302 of IPC and life imprisonment imposed by the trial Court has got to be affirmed.
18.As far as A-2 was concerned, he has caused simple injury to P.W.2, and therefore he has got to be found guilty under Sec.324 of IPC, and awarding 3 years Rigorous Imprisonment would meet the ends of justice.
19.Insofar as the other charges against A-1 and A-2, the prosecution has not brought home the guilt, and they are entitled for acquittal.
20.As regards A-3, A-4, A-12 and A-14, they are entitled for acquittal in respect of all the charges levelled against them.
21.Accordingly, the conviction of A-1 by the trial Court under Sec.302 read with 149 IPC is modified, and he is convicted under Sec.302 IPC. The sentence of life imprisonment and fine imposed by the trial Court is confirmed.
22.The conviction and sentence of 10 years RI imposed on A-2 by the trial Court under Sec.307 read with 149 IPC are set aside, and instead he is convicted under Sec.324 of IPC and is directed to suffer three years Rigorous Imprisonment. The fine imposed by the trial Court will hold good. The sentence already undergone by him shall be given set off.
23.The conviction and sentence imposed by the trial Court on A-1 and A-2 under
Sections 148 and
341 read with 149 IPC and on A-2 under Sec.302 read with 149 IPC are set aside, and they are acquitted of those charges. The fine amounts if any paid by them, will be refunded to them.
24.The conviction and sentence imposed on A-3, A-4, A-12 and A-14 by the trial Court in respect of all the charges are set aside, and they are acquitted of all the charges levelled against them. They are directed to be set at liberty forthwith unless their presence is required in connection with any other case. The fine amounts if any paid by them, will be refunded to them.
25.In the result, C.A.No.558 of 2009 is partly allowed, and C.A.No.640 of 2009 is allowed.
nsv To:
1.The III Additional Sessions Judge Puducherry
2.The Inspector of Police Kirumambakkam Police Station Puducherry (Crime No.120 of 2006)
3.The Public Prosecutor High Court, Madras