R. Baskar vs State by Inspector of Police

K.N. Basha, J.—The challenge in this appeal is to the judgment of the learned Sessions Judge, Mahila Court, Perambalur dated 14.6.2012

made in S.C. No. 89 of 2011, convicting the appellant for the offence u/s 302 IPC and sentencing him to undergo life imprisonment with a fine of

Rs. 5,000/- in default to undergo 2 years simple imprisonment. The accused/appellant faced the trial under the following backdrop:

1.1. P.W. 1 is the husband of the deceased Premavathi. The deceased was working as Craft Teacher in Moulana School at Perambalur. P.W. 1

was working as Watchman in Dhanalaxmi Srinivasan Polytechnic College, Perambalur. They have been blessed with two female children, namely,

Rekha and Priya. Everyday, P.W. 1 used to drop the deceased to School in his cycle.

1.2. The accused is also a resident of the same place. P.W. 1 alleged that the accused was troubling his daughter Rekha frequently for the last two

years. On one day, the deceased, wife of P.W. 1 along with Rekha, daughter of P.W. 1 was proceeding near Uzhavar Sandhai and at that time,

the said Rekha pointing out the accused and stated to the deceased that he was frequently troubling her. The deceased warned the accused. Rekha

also complained to P.W. 1 about the frequent trouble given by the accused. Fifteen days prior to the occurrence, P.W. 1 and the deceased made

marriage arrangements for their daughter Rekha and the marriage was also over. In view of the same, there were strained feelings between the

accused and the deceased family.

1.3. On the fateful date of occurrence, i.e., on 9.3.2011, at 8.45 a.m. P.W. 1 took his wife, the deceased, in his cycle and left her in the School.

Thereafter, while he was returning at 9.30 a.m., he heard the hue and cry of the deceased. When he turned back, he saw the accused cutting the

deceased on her chest and neck with an Aruval. Thereafter, the accused ran away from the scene with the Aruval. P.W. 1 lifted the deceased and

found that the deceased already dead.

1.4. The above said occurrence was also claimed to have been witnessed by P.W. 2, who was working as English Teacher in the same school

viz., Moulana School, Perambalur, where the deceased was working. P.W. 3, who was residing in a different place, claimed to have seen the

accused running with an Aruval on 9.3.2011 at 9.00 a.m.

1.5. Thereafter, P.W. 1 went to Perambalur Police Station and narrated about the occurrence to P.W. 15, the Sub-Inspector of Police, which was

recorded by P.W. 15 under Exhibit P-1. P.W. 15 registered a case in Crime No. 137 of 2011 for the offence u/s 302 IPC. Exhibit P-14 is the

Express F.I.R. P.W. 15 sent the Express F.I.R., Exhibit P-14 and Exhibit P-1 to the higher officials and to the Court.

1.6. P.W. 16, the Inspector of Police, took up the investigation on receipt of the F.I.R. He went to the scene of occurrence at 10.45 a.m. and

prepared Observation Mahazar, Exhibit P-2 and Rough Sketch, Exhibit P-3 in the presence of the witnesses P.W. 7 and Another. He held inquest

on the dead body of the deceased at 12.00 noon. Exhibit P-15 is the Inquest Report. During inquest, he has also examined the witnesses. He has

sent the body for postmortem.

1.7. P.W. 12, the Doctor attached to the Government Hospital, Perambalur conducted postmortem on 9.3.2011. He found the following injuries:

A cut injury over back of middle neck 10 cm from both ear lobes runs transversely from lateral margin of left side neck up to right side neck

sternocleidomastoid with injury right carotid and jagalar vessel and transaction of spinal cord at C4 level. Dimension 15 x 5 x 7 in centimeter.

The Doctor is of the opinion that the deceased would appear to have died of shock and hemorrhage due to injury to vital organs like spinal cord

and blood vessels of neck about 3 to 8 hours prior to autopsy.

1.8. P.W. 16, in continuation of his investigation, recovered blood stained earth, M.O. 1, ordinary earth, M.O. 2, one pair chapels, M.O. 3, one

black colour rexin bag, M.O. 4 from the scene under Mahazar in the presence of the witnesses. He has examined the other witnesses and

recorded their statements. At 4.00 p.m., on the same day i.e., 9.3.2011, he has arrested the accused near Samathuvapuram Arch. In pursuance of

the admissible portion of the confession of the accused under Exhibit P-5, he recovered M.O. 5, Aruval, as produced by the accused. He has

produced the accused before the Court for remand. He has examined the police constables. He has sent the seized articles for chemical

examination through the Court. After examining the witnesses P.Ws. 1 to 3, including the Doctor, P.W. 12 and Others, he has received the

Postmortem Certificate, Exhibit P-9, Biological Report, Exhibit P-12 and Serological Report, Exhibit P-13. After completion of the investigation,

he has filed the final report on 18.5.2011 for the offence u/s 302 IPC against the accused/appellant.

The prosecution, in order to bring home the charges against the accused, examined P.Ws. 1 to 16, filed Exhibits P-1 to P-15 besides marking

M.Os. 1 to 11.

When the accused was questioned u/s 313 of the Code of Criminal Procedure in respect of the incriminating circumstances appearing against

him through the evidence adduced by the prosecution, he has come forward with the version of total denial. He has not chosen to examine any

witness or mark any document on his side.

The learned trial Judge on consideration and appreciation of the entire evidence adduced by the prosecution, has found the accused guilty and

convicted and sentenced him as stated above. Hence the present appeal.

Dr. A.E. Chelliah, learned senior counsel appearing for the appellant, while assailing the impugned judgment of conviction, vehemently

contended that the prosecution has miserably failed to prove its case by adducing clear, cogent and consistent evidence and the evidence of the

eyewitnesses P.Ws. 1 and 2 suffers from serious infirmities and inconsistencies and the evidence of P.W. 3 is unbelievable and unreliable and put

forward the following contentions:

(i) P.W. 1, apart from being the husband of the deceased and being the interested witness, could not have present at the time of occurrence at the

scene as he was working as Watchman in a college and also admitted that he has signed in the Attendance Register on the date of occurrence and

he has not clearly stated as to whether he was on day duty or evening duty.

(ii) The prosecution has not seized the Attendance Register of the College where P.W. 1 was working inspite of the fact that P.W. 1 admitted that

he has signed in the Attendance Register and as such, adverse inference could be drawn against the prosecution case.

(iii) Though P.W. 1, an eyewitness, claimed that he has lifted the deceased immediately after the occurrence and admittedly the deceased sustained

some stab injuries, there should have been profuse bleeding, but P.W. 1 has not produced any blood stained shirt or the Investigating Officer,

P.W. 16 has not recovered any blood stained shirt from P.W. 1, which raises serious doubt about the presence of P.W. 1 at the time of

occurrence.

(iv) P.W. 1 categorically stated in his cross examination that the police station is only 10 feet away from the scene of occurrence and inspite of the

same, he has not chosen to give any report immediately to the police and further, he has admitted that he went to the police station only after 45

minutes, which raises serious doubt about his presence at the scene and his version is unreliable.

(v) P.W. 1 also admitted that on hearing the hue and cry, police officials came to the scene and if such version is true, the police could have

recorded a report from P.W. 1 much before the time now claimed by the prosecution to the effect that P.W. 15 recorded the report Exhibit P-1

from P.W. 1 only at 9.45 a.m., whereas the occurrence said to have taken place between 8.45 to 9.00 a.m.

(vi) P.W. 1 also admitted in his cross examination that he has not stated to anyone about the occurrence till his examination by the police and such

conduct is most unnatural, raising doubts about the credibility of his version.

(vii) The evidence of P.W. 2, the other eyewitness, is also highly doubtful and he could not have been present at the time of occurrence. If really he

was present at the scene, P.W. 1 could have stated about his presence, but P.W. 1 has not stated anything about the presence of P.W. 2 in his

evidence P.W. 1 categorically admitted in his cross examination that none of the witnesses arrived at the scene for a period of 10 minutes after the

occurrence inspite of raising hue and cry and on the other hand, P.W. 2 claimed that he was present even at the time of occurrence, which raises

serious doubt about the presence of P.W. 2 at the scene at the time of occurrence.

(viii) The prosecution suppressed the earliest report in view of the admission of P.W. 2 to the effect that the police arrived at the scene on hearing

hue and cry, as P.W. 2 stated that the police examined him at 9.30 a.m. itself and recorded his statement whereas the prosecution version is to the

effect that the report was recorded only at 9.45 a.m. and such being the position, the possibility of recording earlier report from P.W. 2 and

suppression of the same cannot be ruled out.

(ix) P.W. 2 admitted in his cross examination that he has not seen the accused earlier and the accused was unknown to him and he has identified

the accused only for the first time before the Court, as the prosecution has not conducted any identification parade and as such, the evidence of

P.W. 2 is unbelievable and unreliable.

(x) Though P.W. 3 claimed that he has seen the accused running with Aruval after the occurrence, he has not informed the police immediately and

he was examined subsequently. P.W. 3 also admitted that he has not seen the accused earlier and the accused was unknown to him and he

identified the accused only for the first time before the Court and he has also not stated to the police about the identifying features of the accused

during examination by the police and as such, the identification of the accused by P.W. 3 for the first time before the Court is unreliable.

(xi) Even the recovery of Aruval, M.O. 5, is doubtful as the prosecution has miserably failed to prove the same by adducing clear evidence.

Per contra, Mr. V.M.R. Rajendran, the learned Additional Public Prosecutor contended that the prosecution has established its case through the

evidence of the eyewitnesses, P.Ws. 1 and 2. It is contended that the evidence of P.Ws. 1 and 2 is also corroborated by the evidence of P.W. 3,

who has seen the accused running with the weapon, Aruval, after the occurrence. It is further contended that the evidence of the eyewitnesses is

also corroborated by the medical evidence through the Doctor, P.W. 12, who has conducted postmortem and found corresponding injuries. It is

also contended that there is no delay in giving report to the police as the report was given within 45 minutes after the occurrence and the report

reached the Magistrate Court at 1.00 p.m. itself on 9.3.2011.

We have given our careful and anxious consideration to the rival contentions put forward by either side and thoroughly scanned through the

entire evidence available on record and perused the impugned judgment of conviction.

At the outset, it is to be stated that the entire prosecution case bristled with suspicious circumstances and the evidence of the eyewitnesses

P.Ws. 1 and 2 are suffering from serious infirmities, inconsistencies and inherent improbabilities. The learned senior counsel for the appellant

pointed out several infirmities in the evidence of the eyewitnesses P.Ws. 1 and 2. It is true that P.W. 1, being the husband of the deceased, is an

interested witness and on that score, his evidence cannot be discarded and on the other hand, we have to scrutinize such evidence with great care

and caution.

P.W. 1 was admittedly working as Watchman in a college at the time of occurrence. It is his version that everyday he used to take his wife to

the nearby school in his cycle in the morning, but such version is highly doubtful as the school is not far away from his house and further, it was

initially stated by P.W. 1 that the deceased used to attend the school in her own cycle but subsequently he has stated that he used to drop her

everyday. Added to such infirmity, it is seen that the P.W. 1 signed in the Attendance Register of the College even on the date of occurrence i.e.,

9.3.2011, as per his specific admission in his cross examination, but strangely he has stated that after signing the Attendance Register, he has not

attended the work. It is also admitted by him that there is an Attendance Register in the School, but the Investigating Officer, P.W. 16, has not

produced the said Attendance Register, which is a vital document to test the veracity of the version of P.W. 1. P.W. 16, the Investigating Officer

has also admitted in his cross examination that he has not verified the Attendance Register of the College and he has further admitted that if P.W. 1

was on duty during morning time, he could not have witnessed the occurrence. P.W. 16 has not able to give any reasonable and probable

explanation for not seizing and producing the Attendance Register, which is a vital document to substantiate the presence of P.W. 1 at the time of

occurrence at the scene. Therefore, we are constrained to draw adverse inference for withholding the vital document, namely, Attendance Register

in view of the admission of P.W. 1 that he has signed in the Attendance Register on the date of occurrence i.e., 9.3.2011 and his version that after

signing the Attendance Register, he has not attended the college, is unbelievable and unreliable.

Yet another factor to be borne in mind of this Court is that P.W. 1 has categorically stated even in his chief examination that soon after the

occurrence, he has lifted the deceased, his wife and the deceased has sustained severe stab injuries, but he has not produced any blood stained

shirt or clothes to substantiate the same to the effect that he was present at the scene at the time of occurrence and the Investigating Officer, P.W.

16 has also not recovered any blood stained shirt or clothes from P.W. 1, which raises serious doubt about his presence at the time of occurrence.

It is pertinent to note that according to P.W. 1, the occurrence said to have taken place between 8.45 a.m. to 9.00 a.m. on 9.3.2011 and the

police station is just 10 feet away from the scene and such being the position, immediately after the occurrence, normal human conduct of a person

is to rush to the police station which is just 10 feet away from the scene, but in the instant case, P.W. 1 has categorically admitted in his cross

examination that he remained in the scene for 45 minutes and only thereafter, he went to the police station for giving the report and he has also

admitted that he cannot give any explanation for such conduct.

Added to the above said infirmities, it is also admitted by P.W. 1 that the police arrived at the scene after hearing the hue and cry. If really

P.W. 1 was present when the police arrived at the scene, nothing prevented him from giving report immediately to the police about the occurrence.

Therefore, we are of the considered view that it is most unsafe and hazardous to place reliance on the evidence of P.W. 1.

Now coming to the evidence of the other eyewitness, namely, P.W. 2, it is to be stated that P.W. 2 was working in the same school where the

deceased was working and he claimed that at the time of occurrence at 9.00 a.m., he was proceeding towards the school through Moulana

Mosque Road and he has witnessed the occurrence by standing at a distance of 30 feet. P.W. 2 categorically admitted in his cross examination

that he has not seen the accused earlier to the occurrence and he has seen the accused for the first time before the Court. P.W. 2 has not given any

identification features of the accused during his examination by the police as per the categorical admission of P.W. 16 in his cross examination. It is

also stated by P.W. 16 that P.W. 2 has not stated that he can identify the accused if he has seen the accused in person. P.W. 16 also admitted that

he has not arranged for any Identification Parade. Therefore, we have no hesitation to hold that no value could be attached by the identification of

the accused by P.W. 2 for the first time before the Court. It is quite natural for any witness to identify the single accused standing before the Court

at the time of trial. It is also pertinent to note that the name of P.W. 2 is also not mentioned in the report, Exhibit P-1 given by P.W. 1 inspite of the

fact that he was also working in the same school in which the deceased was working and further, P.W. 2 admitted that he knows P.W. 1 earlier. In

view of the said factors, we are of the considered view that it is most unsafe to place reliance on the evidence of P.W. 2.

At this juncture, it is relevant to refer the decision of the Hon''ble Apex Court in Kanan and Others Vs. State of Kerala, , wherein the Hon''ble

Apex Court has held as hereunder:

It is well-settled that where a witness identified an accused who is not known to him in the Court for the first time, his evidence is absolutely

valueless unless there has been a previous T.I. parade to test his powers of observation. The idea of holding T.I. parade u/s 9 of the Evidence Act

is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If

no T.I. parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court.

The principle laid down by the Hon''ble Apex Court in the decision cited supra is squarely applicable to the facts of the instant case, as in this case

also, admittedly, the Investigating Officer, P.W. 16 has not made arrangements for conducting any Identification Parade and P.W. 2 identified the

accused for the first time before the Court and admitted that the accused is not known to him earlier and as such, no value could be attached by

the identification of the accused by P.W. 2 for the first time before the Court.

The next piece of evidence adduced by the prosecution is the evidence of P.W. 3, who has claimed that he has seen the accused running with

an Aruval after the occurrence. The fact remains that P.W. 3 is a chance witness and he has admitted in his cross examination that his village is 15

kms. away from the scene of occurrence. It is also pertinent to note that the accused is a total stranger to P.W. 3 as he has not mentioned about

the accused name or identified the accused before the Court. P.W. 3 clearly admitted in his cross examination that he has not seen the accused

earlier to the occurrence and he has not given the identification features of the accused to the Inspector of Police at the time of his examination.

P.W. 3 has simply stated that one person running away with an Aruval. Therefore, we are of the considered view that it is unsafe to place reliance

on the evidence of P.W. 3, as the same is not helpful to advance the case of the prosecution in any manner.

Yet another serious disturbing feature in this case is that the possibility of the suppression of the earlier report cannot be ruled out. P.W. 1

admitted in his cross examination that the police station is only 10 feet away from the scene and as such, on hearing the hue and cry, the police

could have very well arrived at the scene immediately. Accordingly, P.W. 1 also admitted that on hearing the hue and cry, the police arrived at the

scene. P.W. 2 categorically admitted in his cross examination that on hearing the hue and cry nearly 40 to 50 persons arrived at the scene and

police constables came from the nearby police station and chased the accused. It is further admitted that police recorded his statement at 9.30 a.m.

itself whereas the present version of the prosecution is that the F.I.R. itself was registered at 9.45 a.m. P.W. 3 also admitted in his cross

examination that the police came to the scene immediately after the occurrence and chased the accused. P.W. 7, the Secretary of the Moulana

School, in which the deceased worked, also stated in his chief examination itself that he rushed to the scene at 9.00 a.m. on hearing the hue and cry

and at that time, the police was also present along with P.W. 1. P.W. 8, the Village Administrative Officer admitted in his cross examination that he

went to the scene of occurrence at 9.30 a.m. and at that time itself, 3 to 4 police officials were present at the scene. All these clear, consistent and

categorical version of the above said witnesses makes it crystal clear that the police could have very well rushed to the scene immediately after the

occurrence and they could have recorded the report either from P.W. 1 or P.W. 2, the eyewitnesses in this case and as such, the possibility of

suppression of the earlier report cannot be ruled out. The said factor raises serious doubt about the genuineness of the report Exhibit P-1 in this

case. Therefore, we have no hesitation to hold that the present report Exhibit P-1 is nothing but a fabricated document. At this juncture, it is

relevant to refer a decision of the Hon''ble Apex Court in Marudanal Augusti Vs. State of Kerala, wherein the Hon''ble Apex Court has held as

follows:

... the entire fabric of the prosecution case would collapse if the First Information Report is held to be fabricated or brought into existence long

after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence....

The principle laid down by the Hon''ble Apex Court in the decision cited supra is squarely applicable to the facts of the instant case, as in this case

also, we have already held that there is serious doubt about the genuineness of the report, Exhibit P-1 and the F.I.R. in this case is a fabricated

document and as such, the entire prosecution case would collapse.

The last but not the least evidence relied by the prosecution is the arrest and recovery of M.O. 5, Aruval. In order to substantiate such version,

the prosecution examined the VAO, P.W. 8, who has admitted clearly in his cross examination that he has not stated about recording of the

confession of the accused during the course of his examination by the police. It is to be stated that P.W. 16 claimed that the accused was arrested

on 9.3.2011 at 4.00 p.m. and thereafter, he has recorded his confession and recorded the blood stained Aruval, M.O. 5, but the fact remains that

P.W. 2 admitted in his cross examination that the police immediately arrived at the scene on hearing the hue and cry and chased the accused and

he heard that ultimately the police caught hold of the accused. P.W. 3 also stated that soon after the occurrence, the police chased the accused. In

view of the aforesaid factors, the date and time of arrest and the recording of the confession from the accused is highly doubtful. Apart from the

said factor, P.W. 16, the Investigating Officer, has not examined any independent witness to speak about the arrest and recovery, except

examining the official witness, P.W. 8, the Village Administrative Officer and as such, we cannot place reliance on the alleged recovery of M.O. 5,

Aruval. In view of the aforesaid reasons, we have come to the irresistible conclusion that the impugned judgment of conviction is unsustainable.

Accordingly, the appeal is allowed and the conviction and sentence imposed on the appellant by the judgment of the learned Sessions Judge,

Mahila Court, Perambalur dated 14.6.2012 made in S.C. No. 89 of 2011 is set aside. The appellant is acquitted of all the charges levelled against

him. Fine amount paid, if any, is directed to be refunded to the appellant.