(Judgment was delivered by M. CHOCKALINGAM, J.) Challenge is made to the judgment dated 30.10.2001 passed by the learned Additional Sessions Judge, Nagapattinam in S.C. No.158 of 2001, whereby the respondents, four in numbers, stood charged for the offences under Sections 120(b), 302 read with 109 and 324 of the Indian Penal Code and on trial, they were acquitted.
2. Pending appeal, the first accused died. A memo is filed to that effect and the same is recorded.
3. The short facts necessary for the disposal of the case can be stated thus:
(i) P.W.1 is a native of Kovilpathu village. The deceased Sembian Selvan belongs to the same village. All the accused persons also belong to the same village. There was a long pending land dispute between the family of the deceased and the accused. There were civil proceedings pending in O.S. No.71 of 1991 and judgment was made as found in Ex.P5. The counsel, who appeared for the deceased, wrote a letter on 5.11.1994, as found in Ex.P4.
(ii) On the date of occurrence viz. on 15.11.2000 at about 5 O' Clock, as usual when the deceased Sembian Selvan, accompanied by P.W.1, went for walking, at the place of occurrence, P.W.1, who was just proceeding in the front, heard a disgusting cry of the deceased. When P.W.1 turned back, he found the accused 1 and 2 armed with aruval and the third accused with wooden log, attacking the deceased. The fourth accused was also present. When he went to the rescue of the deceased, he was also attacked by the accused. P.W.1 sustained severe injuries. This was also witnessed by P.Ws.2 and 3, who were in the nearby tea stall. When the crowd gathered, the accused persons fled away from the place of occurrence.
(iii) The deceased Sembian Selvam was taken to the nearby hospital and the Doctor advised to take him to Gudavasal hospital, where he was declared dead. Then, P.W.1 proceeded to Kudavasal police station where P.W.9 Sub Inspector of Police was on duty. At about 8.40 a.m., P.W.1 gave a complaint Ex.P1. On the strength of the same , the same was registered in Crime No.443 of 2000 for the offences under Sections323 and 302 of the Indian Penal Code. Express F.I.R. Ex.P11 was despatched to the Court.
(iv) P.W.15 Inspector of Police took up the investigation. He proceeded to the place of occurrence and prepared Observation mahazar Ex.P6 and Sketch Ex.P22. He recovered blood stained earth, sample earth and other materials from the place of occurrence under the cover of mahazar Ex.P7. Through P.W.14 Photographer, M.O.14 series photographs and M.O.15 series negatives were taken. Then, P.W.15 conducted inquest on the dead body and prepared Ex.P23 inquest report in the presence of panchayatars.
(v) Thereafter, the dead body was subjected to post-mortem by P.W.10 Dr. Balakumara Velu, attached to the Government Hospital, Kudavasal and he gave Ex.P16 post-mortem Certificate, where he opined that the deceased appear to have died of haemorrhage, shock and laceration of brain tissues. The same Doctor examined P.W.1 and gave treatment and the accident register is marked as Ex.P13.
(vi) P.W.16 Inspector of Police took up further investigation. Pending investigation, he arrested the first accused, who came forward to give confession statement voluntarily and the admissible portion of the same was recorded as Ex.P8. Thereafter, the other accused were also arrested. The weapons also recovered from them and they were sent for judicial remand. The recovered materials were all subjected to chemical analysis and Ex.P19 is the Chemical analysis report. On completion of investigation, final report is filed. The case was committed to the Court of Sessions. Necessary charges were framed against the accused.
4. In order to substantiate its case, the prosecution examined P.Ws.1 to 16 and relied on Exs.P1 to P23 and also relied on M.Os.1 to 15. On completion of examination of witnesses on the side of the prosecution, when the accused were questioned under
Section 313 of the Criminal Procedure Code, they denied them as false. No defence witness was examined on the side of the accused.
5. The Trial Court, after hearing the arguments advanced by either side and scrutinised the materials available on record, took the view that the prosecution has not proved its case beyond reasonable doubt and acquitted the accused. Hence this appeal is filed at the instance of the appellants.
6. Advancing arguments on behalf of the appellants, learned Additional Public Prosecutor would submit that the Trial Judge has not considered the evidence adduced by the prosecution in proper perspective. The prosecution relied on three eye witnesses and out of the three witnesses, P.W.1 is the injured witness. P.Ws.1 to 3 have categorically spoken about the case in entirety. The non mentioning of the names of the accused in Ex.P1 complaint cannot be a reason to reject the prosecution case. At the earliest, all the witnesses were examined and their statements under
Section 161 Cr.P.C. were recorded. Those statements reached the Court earlier, where the names of the accused are found.
7. Apart from that, after the arrest, the accused voluntarily gave confession statements and they have voluntarily produced the weapons and the same were also recovered, which would indicate the nexus to the crime of the accused. The Trial Court has commented that the non-conduct of identification parade has affected the prosecution case. It is settled principles of law that in every case, the conducting of identification parade is not a must.
8. Learned Additional Public Prosecutor added further that in the instant case, when the prosecution has brought sufficient evidence beyond reasonable doubt, pointing out the guilt of the accused, the Trial Court found the accused not guilty and had taken the erroneous view, by acquitting the accused, which has got to be dealt with in accordance with law.
9. The Court heard the learned counsel appearing for the respondents, who made his honest and sincere submissions for sustaining the judgment of acquittal passed by the trial Court.
10. The Court paid its anxious consideration and also made thorough scrutiny of the entire materials available on record. At the outset, it has to be pointed out that the judgment of the Trial Court, holding that the prosecution has not proved its case beyond reasonable doubt, can be reversed only on two reasons, viz the judgment of the Trial Court is perverse or the same is without any proper reason whatsoever. If this test is applied, the Court is afraid whether the Court can agree with the contentions of the learned Additional Public Prosecutor.
11. In the instant case, the earliest document came into existence is Ex.P1 complaint, where, P.W.1 has categorically stated that he has accompanied the deceased and when he was going in the front, he heard a disgusting cry of the deceased. At that time, he found three or four persons armed with weapons. It is an admitted position that he belongs to the same place and all the accused are already known to him. If he actually seen the accused at the scene of occurrence, there is no impediment for him to name the persons, but he has not mentioned even one name of the four accused.
12. It is also pertinent to point out that in the same incident, P.W.1 also sustained injuries. Under such circumstances, one would naturally expect that P.W.1 would have known the names of the persons, who attacked the deceased. But, since he did not mention the names, it casts a doubt whether the assailants were noticed by him at all. In Ex.P1 report, P.W.1 has stated that if he had been given an opportunity, he would have identified those persons. Under such circumstances, in a case like this, when the accused persons are already known to him, he should have mentioned the names of those persons in the report itself. If it is not actually known to him, an identification parade must have been conducted.
13. In the instant case, P.W.1 had turned hostile. Under these circumstances, the evidence of P.W.1 is not useful to the prosecution. As far as the evidence of P.W.2 is concerned, though he had given a statement to the police Officer that while he was taking tea along with P.W.3 he witnessed the occurrence, yet, in his evidence, he had not stated anything about the same. Further P.W.2 had also turned hostile. The Trial Court itself has pointed out that if really P.W.2 had seen the occurrence, he would have stated about the same in his evidence, which he had not done. This shows that there is variation between the statement recorded by the police Officer under
Section 161 of the Code of Criminal Procedure and the evidence given by P.W.2. As far the evidence of P.W.3 is concerned, he had stated that while he was taking tea along with P.W.2, he saw the occurrence. But, P.W.2 had denied the same. In Ex.P1 complaint given by P.W.1, he had stated that after a disgusting cry was raised, P.Ws.2 and 3 rushed to the spot. Thus, it would be quite clear that P.W.3 could not have seen the occurrence.
14. The prosecution had no direct evidence. The other evidence was the recovery of weapons after arresting the accused. Even assuming the weapons were recovered after the arrest of the accused, that itself would not amount to pointing out to the guilt of the accused. In the instant case, the Trial Judge pointed out that though there was a motive between the deceased and the accused regarding a civil proceedings, it was not established. Apart from that, the civil Court judgment was in favour of the first accused only. Under the circumstances, he could not have any motive to attack him. Further, the prosecution has miserably failed to prove the case beyond reasonable doubt. The Court is unable to see any reason to disturb the judgment of the Trial Court. Accordingly, the appeal fails and the same is dismissed.
ssa To
1. The Judicial Magistrate, Thiruvarur.
2. The Judicial Magistrate, Thiruvarur through the Chief Judicial Magistrate Nagapattinam.
3. The Additional Sessions Court, Nagapattinam.
4. The District Collector, Nagapattinam.
5. The Director General of Police, Madras 4.
6. The Public Prosecutor, High Court, Madras