The Petitioner/A4, who is facing charges under Sections 120B, 459, 395 read with 397, 302 and 435 of IPC and Section 3 of the Explosive Substance Act in SC.No.100/2006 on the file of the learned Additional Sessions Judge, Krishnagiri, has filed this Criminal Original Petition to quash the said charges.
2. The charges were laid as against seven accused viz. (1) Muniraj A1, (2) Jayachandran A2, (3) Tamilvanan A3, (4) Vedi @ Raman A4, (5) Arumugam @ K.C.Selvam A5, (6) Jeevan A6 and (7) Tamilarasan A7. The charges against A1 to A7 are that they conspired together, manufactured country bombs and exploded them in order to commit illegal act viz. to commit dacoity and in the course of said act, they committed the murder of the deceased Appasamy. The specific charge as against A1 and A2 is that they used deadly weapons like Koduval and committed the murder of the deceased along with the other accused.
3. The case against A1 and A2 was split up and was tried in SC.No.70/1998 and by judgement dated 9.7.1999, they were acquitted of the charges by the learned III Additional Sessions Judge on the ground that the prosecution failed to prove the charges leveled against them beyond reasonable doubt. From the evidence let in by the Prosecution in SC.NO.70/1998, it is seen that PW.1 Selvam, son-in-law of the deceased Appasamy is the prime witness relied on by the Prosecution to speak about the occurrence and also regarding the identity of the accused persons. PW.8 and PW.9 are the daughters and PW.3 is the grand son of the deceased. Besides them, some more witnesses were also examined to speak about the occurrence on the side of the Prosecution.
4. Strong reliance was placed on the identification parade conducted by the learned Magistrate as against A1 and A2 in the trial in SC.No.70/98. Admittedly, no such identification parade was conducted as against the other accused, including the Petitioner/A4 herein. That apart, the Prosecution had relied upon the statements of the witnesses recorded under
Section 14 of Code of Criminal Procedure by the learned Magistrate and the same was also pressed into service.
5. The learned Sessions Judge, after full trial, has found that the prime witnesses have turned hostile and the Prosecution has not cross examined them and in such circumstances, there was absolutely no evidence to prove the charges made against the accused persons. It is also pointed out by the learned Sessions Judge that the Prosecution witnesses had not identified the accused in the court and they also denied that they identified those accused persons in the identification parade conducted by the learned Magistrate. The findings rendered by the learned Sessions Judge is extracted below:-
VERNACULAR (TAMIL) PORTION DELETED
6. A5 Arumugam @ K.C.Selvam was tried in SC.No.150/2001 and the learned III Additional Sessions Judge, on considering the evidence let in by the Prosecution and the other materials placed on record has found the accused not guilty and acquitted him. The learned Sessions Judge has referred to the evidence of PW.1 Selvam, son-in-law of the deceased and has found that he had turned hostile and there was no other evidence to prove the case of the Prosecution and further the Prosecution witnesses failed to identify the accused in the court and they denied that they identified the accused A1 and A2 in the identification parade conducted by the learned Magistrate . Therefore, with regard to the same occurrence when the trial was conducted on two occasions i.e. one is with regard to A1 and A2 and another is with regard to A5, the learned Sessions Judge after analysing the evidence has held that the charges against the accused were not proved and found them not guilty and acquitted them accordingly.
7. The occurrence had taken place on 11.12.1976. A6 is still absconding and A7 Tamilarasan has been done to death. A3 Tamilvanan is in judicial custody in relation to some other case. As already stated, A1, A2 and A5 have been acquitted of the charges in SC.Nos.70/1998 and 150/2001 respectively.
8. The learned counsel for the Petitioner would submit that in view of the facts that the Prosecution witnesses, except the Investigating Officer, had failed to support the case of the Prosecution and turned hostile and that there was no other material prima facie to prove the charges leveled against the accused and that no recovery had been made and that possession of explosive substance by the accused persons also have not been proved, the trial as against the Petitioner if be held, then it would only be a futile exercise more particularly when the Sessions Court had analysed the evidence on two occasions and found the charges not proved on evidence adduced by the Prosecution. He would contend that on such facts and circumstances, the benefit extended to the main accused A1, A2 and A5 should be applied to the Petitioner/A4 herein also.
9. The Honourable Supreme Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings in Pawan Kumar Bhaloba Vs. State of West Bengal [AIR-2005-SC-153], wherein it is held as follows:-
"(i) Where it manifestly appears that there is legal bar e.g. Want of sanction, (ii) Where the allegations in the FIR or complaint taken at its value do not constitute any offence and (iii) Where the allegations constitute an offence but there is no legal evidence or the evidence adduced clearly fails to prove the charge."
10. At this juncture, it is relevant to point out the observation made by the Honourable Supreme Court in the case of Gorle S.Naidu Vs. State of AP and others [AIR-2004-SC-1169], which is extracted below:-
"13. Though mere acquittal of large number of co-accused persons does not per se entitle others to acquittal, the court has a duty in such cases to separate the grain from the chaff. If after sieving the untruth or unacceptable portion of the evidence residue is sufficient to prove the guilt of the accused, there is no legal bar in convicting a person on the evidence which has been primarily disbelieved vis-a-vis others. But where they are so inseparable that any attempt to separate them would destroy the substratum on which the prosecution version is founded, then the court would be within its legal limits to discard the evidence in toto..... "
11. In the aforesaid back ground, by analysing the evidence which was discussed already by the Sessions Court, it is seen that all the prime witnesses have turned hostile and did not support the case of the Prosecution. Identity of A1 and A2 in the identification parade was also not proved by the Prosecution. No recovery had been made and possession of explosive substance by the accused persons has also not been proved. There is absolutely no evidence against the accused, which has necessitated the Sessions Court to acquit the accused A1, A2 and A5.
12. By applying the principle laid down by the Honourable Supreme Court cited supra, after analysing evidence, no residue is left sufficient to prove the guilt of the accused and therefore, even if the Petitioner is allowed to face the trial, then it would only be a futile exercise.
13. In the case of Mohg. Iqbal M.Shaikh and others Vs. State of Maharashtra [1998-4-SC-494], the Honourable Supreme Court has held as follows:-
"It is true that in a country like India where it is difficult to find a witness who has not made any embellishment or exaggeration, and therefore, in such case court would be justified in separating the chaff from the grain and then act upon the grain. But where the evidence consists of only chaff as in the present case, the question of separating the chaff from the grain would not arise. Then again when all the eyewitness suffer from the same infirmities, the question of one corroborating the other look for corroboration to the reliable part of the ocular version of a witness. But if a witness is wholly unreliable the question of corroboration does not arise. Even though the present case was a ghastly one and on account of communal frenzy several people belonging to one community were burnt alive by some others but unless and until the prosecution evidence conclusively establishes those others as the perpetrators of the crimes, it is not possible for a court below of law to record conviction on mere conjectures and hypothesis."
14. The evidence consists of only chaff in the present case. Therefore, the question of separating the chaff from the grain would not arise. Hence, it would be appropriate to quash the charges leveled against the Petitioner in order to meet the ends of justice.
15. In view of the reasons stated above, the criminal proceedings in SC.No.100/2006 is quashed and this Criminal Original Petition stands allowed. Consequently, the connected MP is closed.
Srcm To:
1.The Additional Session Judge, Krishnagiri
2.The Public Prosecutor, High Court, Madras