Kasinatha Durai and Others vs State

K.B.K. Vasuki, J.—The appeal is filed against the judgment of conviction and sentence made in S.C. No. 196 of 2001 on the file of the Third Additional District and Sessions Court, Madurai, against the accused 1 to 10 for various offences as follows;

Accused

Conviction

Sentence

A1

U/s.148, 302 r/w 34 IPC r/w 3(2)(v) of

a)

b)

c) U/s.3(1)(x) of

A2, A3, A6 & A8

U/s.148, 302 r/w 149 IPC r/w 3(2)(v) of

a)U/s.148 IPC - sentenced to undergo one year

b)U/s.302

A4, A5, A9 & A10

U/s.148, 324,& 302 r/w 149 IPC &

a)U/s.148 IPC - sentenced to undergo one year

b)U/s.324

c)U/s.302 r/w 149 IPC r/w 3(2)(v) of SC/ST

Act

imprisonment

Rs.5,000/-

year

A7

U/s.147 & 302 r/w 149 IPC r/w 3(2)(v)

a)U/s.147 IPC - sentenced to undergo six months

b)U/s.302

The case of the prosecution is that the witnesses Velu, Irulandi and Ammasi since deceased belong to Adi-Diravidar Community and the accused belong to Hindu Maravar Community and there is previous enmity between the witnesses and accused by reason of quarrel on 17.02.2000 at 07.00 to 10.00 a.m. in the course of sports day in the Government Higher Secondary School, at Paramakudi between two groups of students belonging to different community to which the witnesses and the accused belong to and while so, the witnesses Ammasi, Irulandi and Velu had been to Vaigai river bed on the north of Muthaiaya Temple, Kattuparamakudi at 10.15 pm. on the same day for the purpose of drying ''Milagai Palam'' and at that time the accused A1 to A10 armed with deadly weapons such as aruval, kambu, iron pipe and cycle chain joined together with an intention to instill fear in the mind of public by instigating caste feeling and by creating law and order problem and they had been to Vaigai river bed, where the victims were present and the first accused shouted at them by calling them by caste name and instigated other accused to attack the witnesses and A1 to A10 attacked all the three witnesses with the deadly weapons in their hands and caused them grievous injuries in different parts of the body leading to instantaneous death of Ammasi, thereby A1 to A10 committed the acts of constituting the offences publishable under Sections 147, 148, 323, 324, 307, 302, 153-A IPC and also under Sections 3(1)(x) and 3(2)(v) of the Scheduled Castes and Schedules Tribes (Prevention of Atrocities) Act, (hereinafter shortly referred to as "SC/ST Act").

The complaint Ex.P1 given by one of the witnesses by name Velu is taken cognizance by the concerned Police Station and on receipt of the same, Ex.P63, FIR is registered against A1 to A10 for the offences above referred to by the then Inspector of Police by name Alagarsamy and thereafter the same was taken up for investigation by PW14 and PW15, Deputy Superintendent of Police and the investigating officers at the first instance sent PW1, Velu for medical treatment and PW1, Velu on police memo and PW6, Irulandi on his own were examined by PW9, Doctor who on examination of PW1 Velu and PW6 Iruladi issued Exs.P35 & P36, accident registers, containing the details of nature and number of the injuries sustained by the injured and the investigating officer, thereafter reached the scene of occurrence and prepared Ex.P2, observation mahazar and Ex.P38, rough sketch regarding the scene of occurrence and conduced inquest on the dead body of Ammasi in the presence of the witnesses and prepared Ex.P34, inquest report and caused the visra to be sent to chemical examination through the concerned jurisdictional Magistrate Court and obtained Exs.P61 & P62, chemical analysis report and serological report respectively and in the course of further investigation, obtained Exs.P35 & P36, accident registers relating to the injured and Ex.P37, community certificate relating to the accused and arrested the accused on various dates and obtained confessional statements purported to be voluntarily given by the accused, the admissible portions of which are Exs.P24 to P28, P40, P42, P45, P47, P48, P51, P53, P55, P57 and P59 and the signatures obtained in the confessional statements from the witnesses are Exs.P3 to P7, P14 to P18 and on the strength of the admissible portion of the same, M Os.1 to 4, bloodstained earth, ordinary earth, bloodstained shirt and bloodstained dhoti, respectively and deadly weapons M Os.5 to 15 are seized under separate seizure mahazars in the presence of the witnesses who affixed their signatures Exs.P8 to P13, P19 to P23, P29 to P33, P39, P41, P43, P44, P46, P49, P52, P54, P56, P58 & P60 in the same and the accused were remanded to judicial custody and statements from various witnesses were also obtained on various dates and after completion of the investigation, the final report is filed for the offences above referred to.

The prosecution has, in order to prove the different charges levelled against the accused, examined the so called injured cum eyewitnesses, the observation, arrest and seizure mahazar witnesses and the official witnesses as P Ws.1 to 15 and has produced Exs.P1 to P64, documents and M Os.1 to 15, material objects. No oral and documentary evidence is adduced on the side of the accused.

The trial Court has, on the basis of the evidence let in, accepted the prosecution theory regarding the factum and manner of the occurrence and the participation of the accused and resultant death of Ammasi and grievous injuries to PW1, Velu and PW6, Irulandi and has found A1 to A10 guilty and not guilty of the offences charged against them as follows;

Accused

Guilty of the Offences

A7

U/s.147 IPC

A1, A6, A8 & A10

U/s.148 IPC

A1

U/s.3(1)(x) of SC/ST Act

A1, A3, A4 & A9

U/s.302

U/s.302 r/w 149 IPC r/w 3(2)(v) SC/ST Act -

A2, A5 to A8 & A10

U/s.302 r/w 149 IPC r/w 3(2)(v) SC/ST Act

A4, A5, A9 & A10

U/s.324 IPC

Accused

Not guilty

A2, A6 & A8

U/s.324 IPC

A1 to A10

U/s.506(ii) IPC

A7

U/s.324 IPC

Aggrieved against the same, A1 to A10 preferred the present appeal before this Court.

The point for consideration is;

a) Whether the finding of the trial Court holding the accused A1 to A10 for various offences as referred to above is based on sufficient evidence and supported by proper reasoning?

b) Whether the sentence imposed by the trial Court is just and reasonable for the proved charges if any?

The accused A1 to A10 are the Appellants herein. The date, time and place of the occurrence is at 10.15 p.m. on 17.02.2000 on Vaigai river bed on the north of Muthaiaya Kovil, Kattuparamakudi. The criminal law is set in motion against the accused on the basis of the complaint given by PW1, who is according to the prosecution one of the injured cum eyewitness of the occurrence. According to the prosecution theory, the two witnesses by name, Velu and Irulandi, were seriously injured and the other person by name Ammasi was brutally murdered with deadly weapons by the accused A1 to A10. It may be true that the medical evidence adduced, on the side of the prosecution, through postmortem doctor, PW9, Muralidharan and doctor, PW11, S.N. Mohan, both attached to Paramakudi Government Hospital, who held postmortem upon the dead body of Ammasi and who examined the injured PW1, Velu and PW6, Irulandi and the authors of Ex.P34, postmortem report and Exs.P35 & 36, accident registers relating to PW1 and PW6 respectively produced by PW9 and PW11 and Ex.P50, inquest report, which is the outcome of the inquest held on the dead body of the deceased Ammasi by the investigating officer in the presence of the witnesses and Ex.P61, chemical analysis report and Ex.P62, serological report deducting human blood on sand and dothi, would to greater extent support the prosecution theory that the death of Ammasi is homicidal in nature and PW1 and PW6 were assaulted and inflicted multiple grievous injuries, however that by itself will not automatically go to further prove the prosecution case regarding the factum and manner of the occurrence and nature of the weapons used and the partition of A1 to A10 in the manner as stated by the prosecution.

In this matter, one of the three victims of the prosecution theory is no more and the entire prosecution theory rests upon the oral evidence of PW1, Velu and PW6, Irulandi. But as PW6, Irulandi totally denied the prosecution theory and introduced entirely new theory in the witness box, he was declared as hostile witness. The only remaining evidence is that of PW1, Velu.

As already referred to PW1, Velu is the author of Ex.P1, complaint received at 10.30 p.m. on 17.02.2000 by the then Inspector of Police, Paramakudi Town Police Station situated within one Kilometer from Vaigai river bed and the statement contains detailed description of the date, time and place of the occurrence, the names of the victims, the names of the accused, the type of weapons possessed by them, the manner of assault on the victims by each of the accused, the vital parts of the body, where the injuries are caused, the type of the weapon used, the instigation of A2 to A10 by A1 to commit the act of assault, the motive and previous enmity for the act of assault, etc. The statement is also signed by one Kannusamy as witness and by the Inspector of Police for having duly recorded and received the same and registered a case in Paramakudi Town Police Station in Crime No. 119 of 2000 for different acts punishable under different Sections of law in IPC and also in SC/ST Act.

The person by name Kannusamy, whose signature found in Ex.P1, complaint, is, according to PW1, his son-in-law, but PW1 has neither in the course of his examination nor in his complaint to the Inspector of Police referred to the presence of the said Kannusamy along with him in the Police Station at the time of lodging the complaint. On the other hand, PW1 has in the course of his cross examination definitely stated that he went to the Police Station all alone. Further PW1 has in the course of his cross-examination more than once referred to the presence of Sub Inspector of Police in the Police Station and the receipt of his complaint by Sub Inspector of Police and it is also specifically stated by him that as soon as he reached the Police Station, higher police officials on telephonic information reached the scene of occurrence and his statement is obtained in the presence of Superintendent of Police and in the presence of five out of ten of the accused in the Police Station and his statement was recorded as orally narrated by him in the presence of other officials. Such reference made by PW1 about the presence of police officials of different rank and different designation at different stage as mentioned above would undoubtedly go to show that he is well aware of the designation of police officials of different ranks. In that event, the statement given by PW1 that he had been to Police Station alone and when he reached the Police Station, the Sub Inspector of Police was present and he gave the complaint to the Sub Inspector of Police and higher officials reached the Police Station on phone information and his statement was obtained in the presence of Superintendent of Police and in the presence of five out of ten accused and his statement was recorded in the presence of the higher officials, would run contra to the particulars furnished in Ex.P1, complaint and Ex.P63, FIR as per the particulars contained in the same, the complaint is recorded and received by the Inspector of Police by name Alagarsamy, in the presence of witness Kannusamy, who is the son-in-law of PW1.

As rightly pointed out by the learned Counsel for the Appellants/accused, this is one of the material inconsistency and the competent persons to explain the same are either Kannusamy or Inspector of Police by name Alagarsamy. The Inspector of Police, Alagarsamy is reported by PW14, investigating officer to be dead and Kannusamy is not brought into the witness box and the same is also not sought to be explained by either of the investigating officers viz., PW14 and PW15 and the same leads to a serious doubt in the mind of the Court about the manner in which Exs.P1 and P63 came into existence.

The other ground, on which the genuineness of Ex.P1 leading to Ex.P63, FIR seriously attacked, is the time at which it is received and recorded and registered and the details contained in the same. When the time and place of the occurrence is said to be at 10.15 p.m. on Vaigai river bed, PW1 could not have reached the Police Station and lodged his oral complaint within such a short time at 10.30 p.m. Further when PW1 has categorically admitted in the witness box that he does not know the names of other accused, except A1, Kasinathadurai and he knows the other accused only by face, it is not known how he is able to furnish all the details in his Ex.P1, complaint, such as names of all the accused, the types of weapons used and the nature of overtact committed by them. When that being the nature of his oral evidence, the particulars furnished by him in the FIR and the identification of the accused in the open Court hall cannot be said to be voluntary and on his own and no significance can at all be attached to such details furnished by him in the FIR and the identification of the accused by him in the open Court hall.

Further PW1 has not supported his own version regarding the number of the accused who attacked, PW6, Irulandi himself and the deceased Ammasi and has also come forward with different version at different stage. While PW1 has specifically stated in the complaint, Ex.P1 about the number of persons attacked them as ten persons, it is specifically stated by him before PW11 Doctor that he was assaulted by 10 to 20 persons. As far as his identification of A1 by face and by name, the same cannot also be believed by reason of inconsistency in his statement about the availability of light so as to enable him to identify the face and name of the accused. According to PW1, the occurrence was taken place on Vaigai river bed and there was sodium light on the road and moon light, whereas he has in Ex.P35 reported to the doctor that he was assaulted by 10 to 20 persons under cover of darkness in Muthaiah Kovil river bed. The similar statement is given by PW6, Irulandi to PW11 doctor, who examined him for the injuries sustained by him and what is recorded in Ex.P36 is that he was assaulted by 10 to 20 persons under the cover of darkness. The perusal of Ex.P38, rough sketch would reveal that the sodium light was available on the south of Madurai to Mandabam Road, whereas the scene of occurrence is on the north of Vaigai river and it is hardly believable, whether PW1 would have been able to identify the accused even by face in the sodium light. As a matter of fact, PW3, who is running his workshop at the distance of 500 meter from the scene of occurrence, has in the course of his cross examination admitted that the sodium bulb light does not extent upto Vaigai river bed. PW4, who is purported to be one of the witnesses in the observation mahazar prepared in the scene of occurrence, has also stated that the Deputy Superintendent of Police prepared the documents near the dead body of Ammasi only with the help of torchlight and the same will belie the statement of PW1 that sodium bulb light and moon light was available and he was able to see the accused with the help of the same. Had it been true that he was able to see the accused by face and he knows A1 by face, there is no necessity for him to give a statement to the Doctor that he was assaulted by 10 to 20 persons under the cover of darkness.

Thus PW1 is not definite about the number of persons attacked, their names and their identification, the weapons possessed and used by them, etc., as such the particulars contained in the complaint could not be treated as based on his personal knowledge and if this aspect is viewed in the light of the short time within which the complaint is said to be given in the Police Station and in the light of unexplained material inconsistency about the manner in which and the persons in whose presence and the officer by whom the complaint is recorded and received, the same would throw a greater doubt about the genuineness and voluntary nature of Ex.P1 and the prosecution theory regarding the time at which and the manner in which the same is received.

The inconsistency and improvement made by PW1 at different stage in his statement about the factum and manner of the attack, number of the accused and nature and extent of participation of the accused in the occurrence and his categorical denial of his knowledge about the names of the accused would tend this Court not to attach any importance to his identification of the accused A2 to A10 in the open Court. The prosecution theory regarding the participation of A1 and identification of A1 by PW1 by face and by name can also be rejected on the ground above referred to. Even otherwise, PW1, in the course of his cross examination definitely stated that if all the accused were mixed together, he may not be able to identify A1, Kasinathadurai and the names of the accused are furnished to him by somebody else. That being the nature of his evidence, the same cannot be believed and relied upon to base an order of conviction against the accused for the alleged occurrence.

As rightly pointed out by the learned Counsel for the accused, in the event of any failure on the part of the eyewitness to identify the accused, the failure to conduct identification parade amounts to serious lapse and is fatal to the prosecution case as held by the Supreme Court in the judgment reported in Lakhwinder Singh and Others Vs. State of Punjab, .

Excluding the oral evidence of PW1 and the documents, Ex.P1 complaint and Exs.P35 & 36, accident register extracts, the other factors and documents to be looked into in support of the prosecution theory is the arrest of the accused and obtaining of confessional statement and seizure of weapons from them and the documents evidencing the same. Regarding the arrest of the accused, the same is sought to be proved through PW4, Mayakrishnan, PW5, Mayan, PW8, Pandi, the then VAO Paramakudi Town. It is but pertinent at this juncture to recollect the statement made by PW1 in the course of his cross examination that his statement was obtained in the presence of ten out of five accused. If that is so, the theory regarding the arrest of all the ten accused in the manner as spoken by PW14 and PW15, investigating officers has to be necessarily negatived. The witness PW4 who admitted his signatures on Exs.P3 to P7 and Exs.P8 to P13 in the confession statements and seizure mahazars respectively, has deposed that the police prepared the observation mahazar and rough sketch in their presence on 17.02.2000 and he was summoned to the Police Station at 03.00 p.m. on 18.02.2000, wherein the confessional statement is obtained from all the accused and his signatures are also obtained in the same. He has also stated in the course of his further cross examination that both himself and PW5, Mayan put their signatures in the confession statement of A1 to A10 and in the mahazar for seizing the weapons in the Police Station.

As far as PW5 Mayan is concerned, he has supported the statement of PW4 to the effect that his signatures are obtained in the confessional statements and seizure mahazar in the Police Station and the weapons are shown to him in the Police Station. Thus, both PW4 and PW5, who are, according to the prosecution, witnesses for the arrest of the accused, obtaining of voluntary confessional statement of the accused and seizure of material objects, though corroborate each other, do not support the prosecution theory in this regard.

The remaining witness available in this regard is PW8, Pandi, the then VAO of Paramakudi Town. He has also not fully supported the prosecution version regarding the arrest of five of the accused at the time and place and in the manner as spoken by investigating officers. It is deposed by him that himself and his Village Assistant by name Rajan are taken to Kumarakurichi Village by the Police, where the police called five persons from inside their respective houses and the confessional statement was obtained by the Police from those five persons. Except deposing so, PW8 is not able to identify the accused allegedly arrested by the Police in his presence and he is also unable to identify the persons from whom the weapons are seized under Exs.P29 to P33, seizure mahazars. Thus the evidence of PW8 is also not very much helpful to the prosecution case. Further PW14, investigating officer has not offered any explanation as to why and under what circumstances PW8, VAO of Paramakudi Town is taken to Kumarakurichi for the arrest of the accused at Kumarakurichi, when Kumarakurichi falling within Sivagangai District is having its own regular VAO.

It is also noteworthy to mention herein that though the admissible portion of the confession statement of A1 to A10 are produced as Exs.P51, P48, P53, P55, P57, P40, P45, P47, P42 and P59 and the seizure mahazar of M Os.1 to 15 are produced as Exs.P39, P41, P43, P44, P46, P49, P52, P54, P56, P58 & P60 and the materials objects are produced as M Os.1 to 15, the same are produced only through PW14 & PW15, investigating officers and not marked through either of the witnesses PW4, PW5 or PW8, who are the competent witnesses to identify the accused arrested in their presence and to prove the documents to which they stood as witnesses and to identify M Os, which are purported to be seized in their presence. In my considered view, the failure of the prosecution to prove the prosecution theory regarding the arrest, obtaining of confessional statement and seizure of the mahazar objects including the weapons from A1 to A10, in the manner as spoken by PW14 & PW15 through the witnesses concerned is fatal to the prosecution case. As a matter of fact, the evidence of PW4, PW5 and PW8 would only render the prosecution theory in this regard highly doubtful and does not in any manner inspire the confidence of this Court, as such no serious reliance can be placed upon the prosecution theory in this regard.

One more aspect which deserves serious consideration is the motive theory put forth on the side of the prosecution. It is the definite case of the prosecution that A1 to A10 and the so called victims of the occurrence do belong to different caste and the alleged occurrence is the off-spring of the fight between the students belonging to Devar Community and Adi-Diravidar community in the morning hours on the same day in Paramakudi Government Higher Secondary School. The prosecution has attempted to prove the motive theory through PW10, Vani Nagaraj and PW13, Meenakshisundaram, who belong to Adi-Dravidar community and who were on the date of occurrence studying in +2 in the Government Higher Secondary School. Both PW10 and PW13 have categorically denied any clash between two groups of students belong to Devar and Adi-Diravidar Community. They have categorically stated that the students belong to both the community had no caste or ill-feeling among them. As it is the definite case of the prosecution that the fight between two group of students belonging to different community in the morning on the same day led to the alleged occurrence at night, the failure to prove the motive theory assumes much importance and goes to the root of the prosecution case.

The discussion held above would disclose that the prosecution has totally failed to establish the material aspects such as the absence of motive, the factum and manner of the occurrence, the participation of the accused in the occurrence as spoken by the prosecution, the genuineness and origin of Ex.P1 complaint and FIR, the manner and the course of the investigation held, the nature and manner of the materials collected in the course of such investigation and the arrest of the accused and obtaining of voluntary confession statement and seizure of the materials from them, whereas the trial Court has without properly appreciating the inconsistency and contradictions in the evidences of independent and official witnesses, the absence of motive for the accused to assault Ammasi and two others, who according to the prosecution, happened to be present with Ammasi in the scene of occurrence, simply accepted the prosecution theory on the basis of unreliable and suspicious nature of statement of PW1 which is sought to be improved at different stage of the proceeding and uncorroborated and non-supportive statement of PW4, PW5 and PW8 and has arrived at an erroneous conclusion that the prosecution has proved the guilt of the accused of the commission of the offences punishable under IPC and SC/ST Act beyond reasonable doubt. There is absolutely no evidence much less reliable evidence adduced by the prosecution to bring home the guilt of the accused for the offences charged against them. In the considered view of this Court, the prosecution theory is lacking in motive and evidence and suffers from serious doubt and is hence liable to be negatived, as such the judgment of the trial Court convicting A1 to A10 warrants interference and is hence set aside.

In the result, the appeal is allowed by setting aside the judgment of conviction and sentence dated 02.05.2006 on the file of Third Additional District and Sessions Court, Madurai and the accused are acquitted from all the charges. The bail bonds, if any, executed by the accused shall stand cancelled. The fine amount, if any, shall be refunded to the Appellant/accused.