Durai @ Durai Murugan, Ignesh @ Chellakutty, Stalin and Doss vs State

R. Regupathi, J.—The above Criminal Appeal has been preferred by the accused, numbering four, as against the Judgment, dated

14.10.2004, passed by the learned Additional District Sessions Judge, FTC No. 4, Poonamallee, in Sessions Case No. 81 of 2004, whereby, the

Court found them guilty of both the charges under Sections 341 and 302 read with 34 IPC and sentenced to undergo one year R.I. for the offence

punishable u/s 341 IPC. and imprisonment for life for the offence punishable u/s 302 read with 34 IPC. and a fine of Rs. 1,000/- payable by each

of the accused, in default, to undergo imprisonment for three months. The sentences were ordered to run concurrently.

The case of the prosecution, in short, is that PW-6 and the deceased were friends; that there was a quarrel between PW-6 and the accused, in

which, PW-6 was assaulted by the accused, whereupon, a complaint was given by PW-6; that the deceased refused to accept the demand of the

accused to help them by persuading his friend PW-6 for withdrawal of the complaint lodged by him; that the accused nurtured grudge against the

deceased on account of the same; and that, with a motive to do away with the deceased, on 11.08.2003 at about 9 A.M., all the accused

wrongfully restrained the deceased when he was travelling in his Motorcycle bearing Registration No. TN-20 U-4012 at Nagammai Nagar Main

Road, near Murugappa Polytechnic at GTH Road, within the jurisdiction of Tirumullaivoyal Police Station; thereby, the first charge u/s 341 IPC.

was framed against the accused.

In the same place, all the accused, armed with knives, inflicted injuries on the deceased and as a result of the same, the deceased succumbed to

death and thereby, the second charge u/s 302 read with 34 was framed.

Initially, when the accused were questioned, they denied their complicity in the offence and therefore, trial of the case was taken up by the court of

sessions. During the course of trial, the prosecution, in order to substantiate its case, examined PWS-1 to 15, marked Exs. P1 to P-27 and

produced MOs. 1 to 12. DW-1 was examined on the defence side but no document was marked.

Let us first traverse into the case of the prosecution in its evidentiary backdrop.

a) PWs-1 to 4 are the family members of the deceased and they were examined as motive witnesses.

b) PW-1 is the father of the deceased, who has stated that on 11.08.2003 at about 09.30 A.M., while he was in an STD Booth, two persons

came and told him about the assault on the deceased, whereupon, he went to the scene of occurrence and thereafter gave information of the

incident to the Inspector of Police over phone and afterwards, went in person to the police Station and lodged the complaint Ex. P1 with the

police.

c) PW-2 is the wife of the deceased, who, on receiving information over phone regarding the assault on her husband, went to the police station and

thereafter to the Hospital and came to know that her husband was no more. She has stated that two days prior to the occurrence, the deceased

informed her that PW-6 was assaulted and when he questioned in support of PW-6, A2 threatened him.

d) PW-3 is the mother of the deceased. On coming to know about the attack on her son, she went to the hospital to see him. According to her, on

the previous day, the deceased told her that he questioned the assault on PW-6, whereupon, the assailants turned inimical towards him.

e) PW-4 is the brother of the deceased and he has stated that, on coming to know that the deceased met with an accident and was admitted in the

Hospital, he went there and found him dead.

f) PW-5 has been examined to substantiate the enmity between the deceased and A-2, however, he has not supported the case of the prosecution.

g) PW-6 is a motive witness for the occurrence. His emphatic evidence is that he does not know anything about the occurrence or the enmity

between the 2nd accused and the deceased. Since he has not supported the prosecution case, he was treated hostile.

h) PW-7 has been examined as a witness to the observation Mahazar and his signature therein is Ex. P2. As he did not support the case of the

prosecution, he was treated as hostile witness.

i) PW-8 is the Medical Officer, who examined the deceased on 11.08.2003 and, after noticing the injuries, he declared him dead.

j) PW-9 is the Doctor, who conducted post mortem over the body of the deceased and issued the post mortem certificate Ex. P7, wherein, the

following injuries have been noticed:

A deep cut wound over submental region extending from right to left measuring 20x3x5 cm with cut fracture of body mandible.

A cut wound over mid occipital region 17cm x 3 x scalp deep wound cut fracture of occipital bone.

A cut wound over front of neck 3x 1 x 2 cm.

Superficial incised wounds over right axil 3 x 1 x 1 cms. 3 x 2 x 4 cm, 5 x 2 x 1 cm.

A cut wound over right Right finger 2 x 1 x 1 cm with cut fracture of distal phalanx 2 x 1 x 1 cm.

A cut wound over right middle finger 4 x 2 x 1 cm with cut fracture proximal phalanx

Reddish brown abrasions left clavicular region 5 x 2 cm. left upper shoulder 10 x 1 cm. Left knee 10 x 2 cm.

Laceration of right occipital lobes 4 x 3 x 2 cm with sub arachnoid and subdural haemorrhage and right parieto temporal lobes all the cut

wounds edges are regular and clean cut. All the above injuries are antemortem in nature.

The viscera was sent for chemical analysis and after obtaining the report under Ex. P6, the Doctor had given his opinion that the death was due to

shock and haemorrhage on account of multiple cut injuries.

k) PWs-10 and 14 are the eye witnesses, but, they have stated that they knew only the deceased and do not know anything about the accused

particularly the occurrence that took place on 11.08.2003. As these witnesses did not support the prosecution case, they were treated hostile at

the instance of the prosecution.

l) PW-11 is the Village Administrative Officer, who attested the statement of the accused and also the mahazar for recovery of the Material

Objects.

m) PW-12 is the Constable, who accompanied the dead body of the deceased to the Hospital and after the autopsy was over, he received the

clothing of the deceased and handed over the same to the Investigating Officer.

n) PW-13 is the Sub Inspector of Police. On the complaint given by PW-1, the father of the deceased, he registered the F.I.R. under ExP.13 in

Crime No. 310 of 2003 for the offence punishable u/s 302 IPC. and forwarded the same to his superiors as well as court.

o) PW-15 is the Inspector of Police, who, on receipt of the F.I.R., reached the scene of occurrence and prepared observation mahazar Ex. P14

and rough sketch Ex. P15. He recovered blood stained earth MO1 and sample earth MO2 under mahazar Ex. P16. He examined the witnesses

present in the scene of occurrence. He proceeded to the Hospital and conducted inquest over the dead body between 14.30 and 15.30 hours and

Ex. P17 is the inquest report. He seized the clothing of the deceased viz., pant MO3, Shirt MO4, Baniyan MO5 and underwear MO6 under

Form-95, marked as Ex. P18. He sent those material objects to court with his requisition Ex. P19 to forward the same for chemical examination.

Ex. P20 is the letter of the Magistrate to the forensic laboratory for chemical examination of MOs-1 to 6. Exs.P21 and P22 are biological and

serologist reports received by the Inspector of Police. On coming to know about the surrender of the accused, he filed an affidavit before the

learned Magistrate for taking them into police custody and the same having been granted, statements of A1 to A3 were recorded. Pursuant to the

statement of the accused, MO.7 Auto bearing Registration No. TN-20 C-8016, MOs-8 to 10 knives, MO-11 TVS Suzuki Motorcycle bearing

Registration No. TN-20 U-4012 and MO-12 Baniyan were recovered. The vehicles were produced before court under Form-95 and MOs-8 to

10 and 12 were sent for chemical analysis through Court. The chemical analysis report received in respect of those material objects is marked as

Ex. P-27. The Inspector of Police, on conclusion of the investigation, filed final report against the accused on 03.11.2003 for the offence

punishable u/s 302 read with Section 34 IPC.

When the accused were questioned u/s 313 Cr.P.C. with reference to the incriminating materials produced on the side of the prosecution, they

pleaded innocence. On the side of the defence, DW-1, who is said to have attested the mahazars along with PW-11, was examined. He has stated

that he does not know anything about the preparation of mahazars and that he signed the papers shown to him by the Investigating Officer. On

conclusion of the trial, after hearing the submissions made on either side, the learned trial Judge convicted and sentenced the accused as

aforementioned.

The only issue to be decided in this Appeal is as to whether the conviction and sentence imposed upon the accused/appellants by the trial court

are sustainable in the given facts and circumstances.

Learned Counsel for the petitioner, in his endeavour to beset the judgment of the trial court, made the following submissions.

PWs-10 and 14, who were examined as eye witnesses to the occurrence, did not support the case of the prosecution and they were treated

hostile; that being so, the prosecution depends on other circumstances so as to connect the appellants/accused with the alleged crime. One of the

strong circumstances is that there was prior enmity between the accused and the deceased and to speak about such aspect, PW-6 was examined

by the prosecution, however, he also did not support the prosecution version and turned hostile. The other witnesses to substantiate the motive are

PWs-1 to 5. PW-5 did not support the case of the prosecution with regard to enmity between A-2 and the deceased and even insofar as PWs-1

to 4 are concerned, their evidence is rather ''hearsay'' and the same cannot be given credence so as to base conviction. PW-7, who has been

examined as attesting witness for observation mahazar Ex. P14, also turned hostile. DW-1, who attested the statement of the accused and

recovery mahazar was not examined by the prosecution, however, he was examined by the defence and it has been deposed by him that his

signature was obtained by the Investigating Officer in some papers and that he did not know for what purpose the signature was obtained. Though

it has been substantiated through the evidence of the medical officers PWs-8 and 9 that the death was due to homicidal violence, their evidence

does not in any way improve the case of the prosecution to connect the appellants with the crime. Without looking into such aspects, the learned

trial Judge erroneously convicted the accused based on surmises and conjectures and relying upon the voluntary surrender of the accused as well

as the alleged statement given by them leading to recovery. The fact that there was no bloodstain on the recovered weapons escaped the

consideration of the trial court. Though the motorcycle is said to have been recovered through the statement of A-1, such recovery was only near

the compound wall of Tambaram Railway Station, a place accessible to the public and not within the exclusive possession of the first accused.

Further, the other recoveries also are not so material to substantiate the case of the prosecution. None of the over acts attributed to the accused

has been substantiated, therefore, they cannot be convicted u/s 304 read with 34 IPC. Similarly, there is no positive evidence to hold against the

accused with regard to the allegation of wrongful restraint punishable u/s 341 IPC.

Pointing out the aforesaid aspects, the learned Counsel pleads that the judgment of the trial court be set aside.

Per contra, learned Additional Public Prosecutor submits that the materials available against the accused are in the form of strong circumstances,

through which, the case of the prosecution could be well substantiated.

At the first instance, it is submitted that PWs-1 to 4, who are the family members of the deceased and being motive witnesses, have spoken to

about the grudge nurtured by the second accused against the deceased though other motive witnesses, who are independent witnesses, have

turned hostile. Though PWs-10 and 14, cited as eye witnesses, did not support the case of the prosecution, they have been cross-examined and

the earlier statement given by them to the Investigating Officer has been put against them. The Medical Officers PWs-8 and 9 have substantiated

that the death was due to homicidal violence. The report was given without any further delay by the father of the deceased. At any rate, the

reasons given by the trial court for convicting the appellants are well-founded.

We have perused the materials available on record and considered pensively the rival contentions projected by the counsels appearing on either

side. Before proceeding further, it is pertinent to observe that the case on hand is not based on circumstantial evidence. In fact, the prosecution

examined PWs-10 and 14 as ''eye witnesses'', but, both of them uniformly deposed that they knew only the deceased and do not know the

accused and further, they did not know directly as to how the deceased died. In the chief examination, they have never spoken to anything about

the case of the prosecution as put forth in the charges framed against the accused. Barring them, the main motive witness is PW-6, who was earlier

assaulted by the accused, whereupon, a complaint was given by him against the accused. Surprisingly, the prosecution did not choose to mark the

complaint given by PW-6 and during examination in the Court, PW-6 totally denied the earlier case that he was assaulted by the accused and that

the accused developed enmity against the deceased when he questioned their action. The other independent witness to speak about the enmity

between the accused and the deceased is PW-5 and he also did not support the case of the prosecution, however, he has not been treated hostile

by the prosecution. Further, the evidence of PWs-1 to 4 viz., father, wife, mother and brother of the deceased, is not in direct terms but in the

nature of hearsay, and suffers from contradictions. PW-2, the wife of the deceased deposed that the information received from PW-4 was that her

husband sustained injury on account of an accident. Though she has stated that two days prior to the occurrence, the deceased had spoken to her

about the earlier incident at the instance of A2, PW-3, the mother of the deceased, stated that it was on the previous day. Further, the wavering

testimonies of PWs-1 to 4 do not serve as a strong piece of evidence to establish the identity of the accused/assailants. Though PW3 has stated

that the deceased was having Motorcycle bearing Registration No. 4012 (TVS), the same has not been identified by his family members as that of

the deceased. The evidence of the Medical Officers PWs-8 and 9 though establishes that the death of the deceased was due to homicidal violence,

unless it is proved beyond reasonable doubt that such homicidal violence is attributable to the acts of the accused, the offences alleged cannot be

made out. In the affidavit filed by PW-15, the Inspector of Police, seeking police custody of the accused, it is specifically stated that such custody

is required only for the purpose of recovery of weapons and other objects. Since the accused went into the hands of the Investigating Officer, the

possibility of creating incriminating materials against the accused cannot be ruled out. Though PW-11, the Village Administrative Officer, supported

the case of the prosecution put forth by PW-15, the Investigating Officer, PW-7, who had put signature in the observation mahazar turned hostile.

Further, DW-1, who in the normal course ought to have been examined by the prosecution was not examined by them, but on the contrary, he

was examined on the defence side and deposed that he just signed the papers shown to him by the Investigating Officer. The F.I.R. prepared on

the complaint given by PW-1, father of the deceased, appears to be quite vague and bald. By stating that the deceased was found with injuries at

the scene of occurrence, registration of a case was sought for. If eye witnesses were available, certainly, they would have intimated PW-1

immediately, whereupon, the number and names of the assailants and particulars of eye witnesses would have found place in the FIR itself.

Moreover, during the course of inquest, PWs-10 and 14 were not even examined by the Inspector of Police. It is quite unfortunate that the learned

trial Judge has placed much reliance on the surrender of the accused before court and the subsequent recoveries made when they were in police

custody. Such aspects alone would not be sufficient to connect the appellants with the crime particularly when the evidence of the hostile eye

witnesses was contentious and that of the motive witnesses was of no use. Thus, as could be seen, on the one hand, the independent witnesses,

mahazar witnesses and eye witnesses turned hostile and did not support the case of the prosecution, thereby the edifice of the prosecution case

had become irretrievably unstable, and on the other hand, the so-called motive witnesses, who are none else than the family members of the

deceased, do not support or improve the prosecution version as their evidence corrodes from inconsistency and watered by contradictions. In the

absence of strong piece of evidence, the trial court based conviction on certain fragile and feeble aspects which in no way directly implicate any of

the accused/appellants, hence, the judgment passed by it deserves to be set aside.

In the result, the Criminal Appeal stands allowed. The order of conviction and sentence passed by the trial court against the appellants/accused-

1 to 4 are set aside and they are acquitted of all the charges. Inasmuch as the appellants are acquitted, the bail bonds executed by them shall stand

cancelled and fine amount, if already paid, shall be refunded to them. Further, the vehicles seized in the case, if not already returned, are ordered to

be returned by the trial court in accordance with law.