(The Judgment of the Court was delivered by C. NAGAPPAN, J.) The appellants herein are the accused Nos.1 to 6 in Sessions Case No.60 of 2008 on the file of the Additional District and Sessions Judge, Fast Track Court No.I, Chengalpattu and they have preferred this appeal challenging the conviction and sentence imposed on them by judgment dated 27.1.2009 in the case. For the sake of convenience, in this Judgment, the appellants will be referred to as A1 to A6.
2. Charges under Sections 147, 294 (b), 341 and 302 IPC were framed against A1 Saleem, A2 Manikandan alias Mani, A3 Mohan, A4 Viji, A5 Appu alias Karthick and A6 Arumugham. The learned Additional Sessions Judge found A1 to A6 guilty of the charges under Sections 302, 147 and 341 IPC and convicted and sentenced them to undergo Life Imprisonment each and to pay a fine of Rs.9000/- each, in default, to undergo Rigorous Imprisonment for six months each for the charge under
Section 302 IPC; convicted and sentenced them to pay a fine of Rs.500/- each, in default, to undergo Simple Imprisonment for two weeks each for the charge under
Section 147 IPC and convicted and sentenced them to pay a fine of Rs.500/- each, in default, to undergo Simple Imprisonment for one week each for the charge under
Section 341 IPC and and at the same time, found the Accused Nos.1 to 6 not guilty for the charge under
Section 294(b) IPC and acquitted them of that charge.
3. To prove its case, the prosecution examined P.Ws.1 to 13 and marked Exs.P1 to P13.
17. PW.5 Muniammal is 65 year old and mother of deceased Venkatesan and in her testimony, she has stated that on the date of occurrence her son Venkatesan went to participate in funeral procession of Ezhumalai and she was sleeping in the house and PW.4 Karthikeyan came crying and she ran with him and found all the accused beating Venkatesan having rounded him off and she caught hold of the shirt of A1 Saleem and he gave him a punch on her mouth and fled away along with other accused.
18. It is not in dispute that PW.5 Muniammal was residing at Door No.13/32B, K.K.Street, Chengalpattu. The occurrence took place in front of house bearing Door No.13/9, K.K.Street belonging to Subramani. Ex.P12 is the Rough Sketch showing the place of occurrence and eleven houses on both sides of the street were shown in it. The house of PW.5 Muniammal bearing Door No.13/32B is not shown in the Rough Sketch. It is also not found mentioned in Ex.P2 Observation Mahazar. Hence her house must be little away from the occurrence place. It is also not in dispute that PW.5 Muniammal was informed about the occurrence by PW.4 Karthikeyan when she was asleep and she rushed to the occurrence place. As already seen, PW.4 Karthikeyan in his testimony has stated that he witnessed the entire occurrence and ran and informed the same to his grandmother and brought her to the occurrence place. Even according to PW.5 Muniammal, it is only her grandson PW.4 Karthikeyan who brought her to the occurrence place. If that is so, PW.5 Muniammal could not have witnessed the occurrence. It is not the case of the prosecution that PW.4 Karthikeyan having partly witnessed the occurrence, rushed and brought his grandmother to the occurrence place. It is not mentioned in Ex.P1 Complaint that PW.5 Muniammal saw the occurrence. In such circumstances, it is doubtful as to whether PW.5 Muniammal would have witnessed the occurrence. She was examined on 10.5.2007 itself and in her statement, she has stated that A.1 Saleem, A2 Mani and Murali attacked Venkatesan at the time of occurrence on the chest and stomach. In the cross-examination, PW.5 Muniammal has stated that she was examined on the date of occurrence and thereafter she was not examined in the case. According to Investigation Officer PW.13 Inspector Mohan, he further examined PW.5 Muniammal on 21.5.2007 and recorded her statement. It is not known as to whether she was further examined at all in the case. Even in her statement recorded on 10.5.2007, PW.5 Muniammal had only stated that A1 Saleem, A2 Mani and Murali attacked Venkatesan and she did not whisper about the Accused Nos.3 to 6 as having participated in the attack. In such circumstances, the contention of the learned counsel for the appellants that PW.5 Muniammal is an interested and partisan witness, cannot be ignored and her testimony about witnessing the occurrence is highly doubtful.
19. PW.6 Bhuvaneswari is the wife of deceased Venkatesan and she has testified in the trial that she was standing in the street and viewing the funeral procession and she saw all the accused dragging her husband Venkatesan and pushing him in the water tub in front of the house of Subramani and A2 Mani kicked Venkatesan on the neck and A1 Saleem kicked Venkatesan on the chest and neck and dashed the head of her husband on the parapet wall of the water tub and A6 Arumugham fisted him on the stomach and chest and A4 Viji also caught hold of Venkatesan and hit his head on the parapet wall of the tub along with A5 Appu and A6 Arumugham kicked him on the stomach and chest and A3 Mohan kicked on the penis and when PW.5 Muniammal arrived in the scene crying, they all ran away. P.Ws.4 and 5 in their testimonies before the Court have not stated that PW.6 Bhuvaneswari witnessed the occurrence and in the averments in Ex.P1 Complaint also it is not stated that PW.6 Bhuvaneswari was an eye witness to the occurrence. It is not in dispute that PW.6 Bhuvaneswari resides at Door No.13/32B, K.K.Street, Chengalpattu and as already seen that house is not shown either in the observation mahazar or in the Rough Sketch prepared in the case and it lies little away from the occurrence place in the same street. It is highly doubtful as to whether PW.6 Bhuvaneswari could have witnessed the occurrence standing in front of the house. She was examined in the case on 10.5.2007 and in that statement, she has told that A1 Saleem, A2 Mani and Murali attacked her husband Venkatesan during the occurrence. She was further examined on 21.5.2007 and in that statement, she has stated about the attack made by A3 to A6 on her husband during the occurrence. She also gave statement under
Section 164 Cr.P.C before PW.9 Judicial Magistrate Tmt.Revathi, which is found in Ex.P5 (series) and in that statement, PW.6 Bhuvaneswari has stated that she was in her house on 10.5.2007 and PW.4 Karthikeyan came running to her house and informed her about the occurrence and she rushed to the occurrence place. If that is so, she could not have witnessed the occurrence. Moreover, in the statement given on 10.5.2007, she has not stated that the accused dashed the head of her husband on the parapet wall of the water tub whereas in her subsequent statement given on 21.5.2007, she improved her version and has stated so. In such circumstances, the testimony of PW.6 Bhuvaneswari does not inspire confidence.
20. As already seen, P.Ws.4 to 6, who have claimed to have seen the occurrence, have improved their version at every stage during the investigation and there are embellishments, material contradictions and inconsistencies in their statements and testimonies affecting the credibility. In short, the testimonies of the above witnesses do not inspire confidence and it is highly unsafe to rely on their testimonies to sustain the conviction.
21. We are unhappy over the investigation done in the present case. In Ex.P1 Complaint as well as in the statements recorded by the Investigation Officer on the occurrence day itself, it is stated that A1 Saleem, A2 Mani and Murali attacked Venkatesan and in Ex.P11 First Information Report, the names of A1 Saleem, A2 Mani and Murali are found mentioned. In the final report, accused Murali was deleted. No reason is stated as to why Murali came to be deleted inspite of the consistent statements of all the eye witnesses recorded on the occurrence day viz., on 10.5.2007. The prosecution did not explain the above omission and it affects the entire fabric of the prosecution case. The substratum of the prosecution case is mixed up with falsehood and it is difficult to shift the truth from falsehood. There was not only the deletion of the accused as referred above but there was addition in the array of the accused belatedly without any valid reason. There was a drunken brawl at the time of occurrence which led to the death of Venkatesan but the prosecution has miserably failed to establish that the accused caused his death. The Trial Court has failed to appreciate the material evidence in proper perspective and the finding that the prosecution has proved the charges and the accused are guilty of the charges is erroneous and cannot be sustained. The conviction and sentence imposed on the accused are liable to be set aside.
22. In the result, the Criminal Appeal is allowed and the conviction and sentence imposed on the appellants/Accused Nos.1 to 6 in Sessions Case No.60 of 2008 on the file of Additional District and Sessions Judge, Fast Track Court No.I, Chengalpattu are set aside and the appellants/Accused Nos.1 to 6 are acquitted of the charges and the fine amount paid, if any, is to be refunded to them. The Bail bond executed by Accused Nos.3 to 6 shall stand cancelled. The appellants 1 and 2/Accused Nos.1 and 2 are directed to be released forthwith if their custody is not required in any other case.
(C.N.J.) (M.J.P.J.) 7.10.2009 Index: yes/no. Internet: yes/no vks To 1. The Addl. District and Sessions Judge (Fast Track Court No.I), Chengalpattu. 2. -do- through the Principal District and Sessions Judge, Chengalpattu, Kancheepuram District. 3. The Judicial Magistrate No.I, Chengalpattu. 4. -do- through the Chief Judicial Magistrate, Chengalpattu. 5. The Inspector of Police, Chengalpattu Town Police Station, Chengalpattu Town. 6. The Superintendent of Prisons, Central Prison, Puzhal, Chennai-600 066. 7. The Director General of Police, Mylapore, Chennai-600 004. 8. The District Collector, Chengalpattu District, Kancheepuram. 9. The Inspector of Police, Vellore South Police Station, Vellore. 10. The Public Prosecutor, High Court, Madras-104. 11. The Section Officer, Criminal side Section, High Court, Madras. C. NAGAPPAN, J. AND M.JEYAPAUL, J. Vks CRL.A.No.87/2009 7.10.2009