Siva @ Sivaraj vs State <BR>D. Balasubramaniam and N. Nandhakumar Vs Senthilkumar and Others

M. Chockalingam, J.—Challenge is made to the judgment of the Additional District and Sessions Division, Coimbatore, made in S.C. No.

99 of 2007 filed by the appellant shown as A1 who stood charged along with others, ranked as A2 to A7, tried and found guilty under Sections

147, 341, 323 r/w 149(2 counts) and 302 IPC and awarded 2 years rigorous imprisonment, 1 month simple imprisonment, 1 year rigorous

imprisonment and life imprisonment along with fine and default sentence respectively. By the same judgment, the trial Court acquitted A2 to A7 in

respect of the charges framed against them.

The short facts necessary for the disposal of this appeal can be stated as follows:

(a) P.W.1 is the native of Palayur. On 17.10.2006 at 7.00 p.m. he was standing in a bus stop at Vallavadi. P.W.2 and the deceased came there

by walk. They informed P.W.1 that one Sekar had to pay Rs. 2,000/- and they should go to Devanurpudur to get the amount and hence, they

asked P.W.1 for his motor bike. P.W.1 told them that he would also accompany them. All of them went along with P.W.1. When they proceeded

to Erisanampatti, they saw P.W.3 Sekar along with P.W.4, Mani and one Ramasamy. The deceased demanded money from the said Sekar. At

that time, the said Sekar told that the first accused/ Sivaraj has to pay him Rs. 10,000/- and he would get the amount from Sivaraj and pay back to

him. Hence, all of them proceeded to Devanurpudur. P.Ws.3 and 4 and one Ramasamy went in one bike and P.W.1, 2 and the deceased went in

another bike. P.Ws.1 and 2 along with Ramasamy took tea in a hotel. P.W.3 and 4 and the deceased went to the house of A1 but A1 was not

available. They informed A1''s mother and returned. When they reached Poongamuthur junction, P.W.1 and 2 and the deceased were travelled in

one bike and P.W.3 and 4 and Ramasamy were travelling in another bike. At that time, all the accused waylaid, P.Ws 1 and 2 and the deceased.

A1 attacked the deceased with wooden log on his head. A2 attacked P.W.2 on his head and A3 attacked P.W.1. P.Ws. 1 and 2 sustained

injuries in that transaction. When the deceased was attacked the deceased fell down. At the instigation of A1, A2 and A3 lifted the deceased and

took him to a nearby place. The other accused accompanied them. Due to fear, P.Ws. 1 and 2 hid themselves in a nearby bush. Thereafter, all the

witnesses left the place because of fear. P.W.1 went to the house of P.W.8 and he stayed there that night.

(b) The next day morning at 6.00 to 6.30 a.m., as usual P.W.5 Chinnathambi went to his garden. He saw the deceased hanging in a tree. Then

P.W.5 gave information to Erisalampatti. On information from P.W.2, P.W.6 went in search of P.W.1. They found P.W.1 at P.W.8''s house and

thereafter, they went in search of the deceased and found him hanging in a tree. Then, P.W.1 proceeded to the respondent Police Station and gave

Ex.P1, complaint.

(c) P.W.18, Sub Inspector of Police, who on duty on that day, received the complaint from P.W.1 and registered a case in Crime No. 180 of

2006 under Sections 324 and 302 I.P.C. Ex.P.16, F.I.R. was despatched to Court. P.Ws.2 and 3 along with the medical memo were sent to the

hospital for treatment. P.W.12 doctor who was on duty, gave treatment to P.W.2 at 1.30 p.m. on 18.10.2006 and noted the injuries and issued

the wound certificate which was marked as Ex.P.7. He also gave treatment to P.W.1 at 11.25 p.m. on the same day and issued the wound

certificate which was marked as Ex.P8.

(d) P.W.19, on receipt of a copy of the F.I.R., proceeded to the spot, made an inspection and prepared the observation mahazar Ex.P.2 in the

presence of witnesses and panchayatdars and drew a rough sketch Ex.P.17. Thereafter, he went to the place where the dead body was found

hanging and prepared the observation mahazar Ex.P3 and conducted inquest on the dead body of the deceased and prepared Ex.P.19 inquest

report. Photographs were also taken and the dead body was subjected to post mortem.

(e) P.W.13 doctor conducted autopsy on the dead body of the deceased Subramani and gave his opinion in Ex.P.9 that the deceased would

appear to have died about 36-42 hours prior to post mortem, of asphyxia due to hanging. Thereafter, all the accused persons were arrested on

different dates.

(f) A1 gave confessional statement and the admissible part of the same was marked as ExP20, pursuant to which he produced M.O.10, motor

bike and M.O.12,blood stained shirt and the same were recovered under a cover of mahazar Ex.P23. A2 also gave confessional statement and

the admissible part of the same was marked as Ex.P.21, pursuant to which he produced M.O.2, wooden log M.O.12 blood stained shirt and

M.O.13 motor bike which were recovered under a cover of mahazar Ex.P.24. A3 also gave confessional statement and the admissible part of the

same was marked as Ex.P.22, pursuant to which M.O.3, wooden log and M.O.14 blood stained shirt were recovered under a cover of mahazar

Ex.P.25. A5 was arrested and appeared before the Judicial Magistrate No. 5 Coimbatore and a request was made for police custody and the

same was ordered. At the time of enquiry, he gave confessional statement and the admissible part was marked as Ex.P5. He produced M.O.7

motor bike. A4 was arrested and he gave confessional statement and the admissible part was marked as Ex.P14 He produced M.O.8 motor bike

and it was recovered under a cover of mahazar. All the accused were sent for judicial remand. The material objects recovered from the place of

occurrence, from the dead body of the deceased and recovered from the accused pursuant to the confessional statement were all subjected to

analysis which resulted in Exs.P.27 & 28 chemical report and serologist report respectively. On completion of the investigation, the investigating

officer filed a final report.

(g) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges, the prosecution

examined 20 witnesses and relied on 28 exhibits and 14 material objects. On completion of the evidence on the side of the prosecution, the

accused were questioned u/s 313 Cr.P.C. and they denied them as false. No defence witness was examined. The Court heard the arguments

advanced on either side and took a view that the prosecution has proved the case beyond reasonable doubt as against A1 and convicted and

sentenced him as referred to above. In respect of A2 to A7, the trial Court found them not guilty and acquitted them of all the charges levelled

against them. Hence, this appeal at the instance of the appellant/A1.

Advancing the argument on behalf of the appellant/A1, the learned Counsel would submit, in the instant case, the prosecution has miserably

failed to prove its case. The trial Judge was not ready to believe the case of the prosecution insofar as A2 to A7 were concerned and made an

order of acquittal. The same evidence was available to acquit the accused/A1 who is the appellant herein but the trial Court has taken an erroneous

view as against him. According to P.W.1, he was not only an eye witness but also an injured witness along with P.W.2. The occurrence has taken

place at about 10.00 p.m. on 17.10.2006 but Ex.P1 was given at 12.45 p.m. on 18.10.2006. Thus, there was 15 hours delay in giving a complaint

to the police station which was just 7 kms from the place of occurrence. According to the prosecution, immediately after the occurrence, due to

fear P.W.1 ran to the house of P.W.8 and stayed there throughout the night and the next day, when P.W.6 and others came in search of him, he

informed about the incident and thereafter, P.W.1 gave a complaint to the Police and hence, there was a delay. The witness who was examined for

that purpose was P.W.8, but, he turned hostile. Thus, the prosecution has not explained the inordinate delay of 15 hours in giving a complaint

which is fatal to the prosecution case.

Added further learned Counsel, so far as P.Ws.1 and 2 are concerned, they were examined not only as eye witnesses but also as injured

witnesses. P.W.1 has categorically stated that except the name of A1, he did not know the names of others. In the instant case, he was examined

by the doctor at 11.25 p.m. and the wound certificate Ex.P8 was also given. The doctor was examined before the Court. He has categorically

stated that P.W.1 told him that he was attacked by three unknown persons and nothing more. If really Ex.P1 complaint was given earlier in point

of time, in which the name of A1 was mentioned, P.W.1 would have told the doctor that he was attacked by a known person. Hence, P.W.1

could not have been in the place of occurrence. Insofar as P.W.2 is concerned, there was lot of infirmities found. All would go to show that

P.Ws.1 and 2 could have gone to the place of occurrence at all. Added further learned Counsel, the cause of death as putforth by the prosecution

is that the deceased died of asphyxia due to hanging. Though the prosecution marched two witnesses in that regard, the same was not proved.

Under such circumstances, the prosecution has miserably failed to prove its case. Insofar as A1 is concerned, he was found guilty not only u/s 302

IPC but also u/s 323 I.P.C. Even as per the evidence of P.Ws.1 and 2, P.W.1 was injured by A3 and P.W.2 was injured by A2. When there are

specific charges levelled against those accused, the trial Court has found the appellant/accused alone guilty u/s 324 r/w Section 149 IPC. Once the

trial Court was not ready to believe, the case of the prosecution as to the involvement of those accused and acquitted all the other accused, A1

cannot be found guilty u/s 323 r/w 149 IPC but the trial Court has erroneously found the accused/appellant guilty and rendered the judgment of

conviction and sentence which has got to be set aside by this Court.

The Court heard the learned Additional Public Prosecutor on the above contentions. The Court also heard the contentions made by the learned

Counsel appearing for the revision petitioners who putforth his submissions that the trial Judge should have found A2 to A7 guilty and should have

awarded necessary punishments but failed to do so and hence, A2 to A7 have got to be dealt with in accordance with law.

The Court paid its anxious consideration on the submissions made and looked into the materials available.

It is not in controversy that the dead body of the deceased Subramani was found hanging in the garden belonged P.W.5 and the investigating

officer, P.W.19, after receipt of a copy of the F.I.R, proceeded to the spot, made an inspection and prepared the observation mahazars and

sketch and thereafter, conducted inquest on the dead body of the deceased in the presence of witnesses and panchayatdars and prepared inquest

report, Ex.P19. On the request made by the investigating officer, P.W.13 doctor conducted post mortem on the dead body of the deceased

Subramani and gave opinion as a witness before the court and through the contents of the post mortem certificate Ex.P9 that the deceased died out

of asphyxia due to hanging. Thus, the cause of death as put forth by the prosecution was never disputed before the trial Court. Hence, it could be

safely recorded so.

In order to substantiate that it was the accused who along with others attacked not only the deceased but also P.Ws. 1 and 2 and after causing

death of the deceased Subramani, made him hanging as if he has committed suicide and left the place, the prosecution has examined P.Ws.1 and 2

as eye witnesses. So far as these two eye witnesses are concerned, they were examined as injured witnesses. It was P.W.1 who gave information

to the police at 12.45 p.m. on the next day, that was, on 18.10.2006 where he has categorically stated the name of the accused/appellant and also

others.

The first contention putforth by the learned Counsel for the appellant that there was a huge delay of 15 hours in giving a report to the police

station, in the considered opinion of the Court, cannot be a reason to suspect the prosecution case. The occurrence has taken place on

17.10.2006 at about 10.00 p.m. in a remote area. It was not the case of the defence that there was conveyance available. The police station was

situated 7 kms away from the place of occurrence. According to P.W.1, on seeing the occurrence, they were in a grip of fear and they hid

themselves throughout the night. The next day morning, when P.W.6 came in search of P.W.1, P.W.1 told him the entire incident and thereafter,

they proceeded to the Police Station and gave the report. The cause of delay was spoken to by P.W.1 at the time of evidence before the Court. It

is true that there was a delay but the delay has taken place in the natural course of events and it cannot take away the truth of the prosecution case.

Under such circumstances, this contention of the learned Counsel for the appellant has got to be rejected.

Insofar as P.Ws.1 and 2 are concerned, they sustained injuries which were caused by A3 and A2 respectively but the names of the persons

who attacked them were not found in the F.I.R. P.Ws. 1 and 2 have categorically stated to the doctor that they were attacked by the persons

unknown to them. Exs.P.8 and P.7 are the wound certificates respectively which came into existence later in point of time. If really they knew the

names of the persons who attacked them, they would have informed it to the doctor that they were attacked by known person. It is true P.Ws. 1

and 2 have injured in the course of the same transaction and examined by the medical person but they could not identify the persons who attacked

them since they were unknown person. Therefore, identification parade should have been conducted but not done so. At the same time, P.Ws.1

and 2 have categorically spoken to the fact that they know the first accused and except the name of the first accused, they did not know the name

of other accused. They were also injured but the persons who attacked P.Ws.1 and 2 remain unknown. They have specifically stated the name of

A1. It is not that P.Ws.1 and 2 knew A1 already. Under such circumstances, there is nothing to doubt about their evidence. In a given case like

this, when the witnesses are injured witnesses, the Court should not discard their evidence unless and until strong circumstances are brought about.

So far as the first part of the case that it was A1 attacked the deceased with wooden log and the other persons who were with A1 attacked

P.Ws. 1 and 2 at the place of occurrence and they lifted the dead body of the deceased to the nearby place and P.Ws. 1 and 2 hid themselves due

to fear, the prosecution has direct evidence to prove the same. But the prosecution did not adduce any direct evidence to show that A1 and other

accused caused the death of the deceased and made the deceased to hang in a tree. It is pertinent to point out that once P.Ws. 1 and 2 have seen

A1 and two others lifting the body of the deceased from the place where they were attacked to the nearby place, it is for A1/appellant to explain

what had happened to the deceased, when the deceased was found with him and was found hanging, after a short span of time. This would

indicate the fact that except A1 and others, who were unknown, no one could have committed the crime. In order to make it appear that the

deceased committed suicide by hanging, they made the body of the deceased to hang in a tree. The doctors opinion canvassed was actually in

support of the prosecution case. Further, the material objects recovered from A1 were pointing the nexus between the accused/A1 and the crime.

Insofar as the other accused are concerned, the trial Court has rightly rejected the case of the prosecution since it is not only lacking proof but

there is no proof at all. The contention put forth by the learned Counsel that according to P.W.1, he went to P.W.8''s house and stayed there on

that night but there was no evidence to offer is concerned, this contention cannot be accepted. The prosecution examined P.W.8 but he had turned

hostile. This cannot said to be a fault on the prosecution side. The prosecution has made sincere attempt to prove the circumstances. Further,

merely because there was a delay in giving the complaint to the police station, in the considered opinion of the Court, it will not take away the

prosecution case. The delay was properly explained and the other circumstances are simply minor most defects and flimsy which will not shake the

prosecution case. The trial Court is perfectly correct in finding A1 guilty. So far as the other accused are concerned, their names remain unknown

and hence, the trial Court has acquitted the other accused. This Court does not find A1 guilty under Sections 148, 323 r/w 149(2 counts) and 341

IPC. Therefore, that part of the judgment has got to be set aside. The finding of the trial Court that A1/appellant was guilty u/s 302 I.P.C and

awarding life imprisonment along with fine and default sentence has got to be confirmed. The Court is unable to see any merits in the criminal

revision case.

In the result, the judgment of conviction and sentence imposed by the trial Court on the appellant/A1 under Sections 147, 341, 323 r/w 149(2

counts)is set aside and the appellant/A1 is acquitted of the said charges. Insofar as the judgment of conviction and sentence imposed by the trial

Court on the appellant/A1 u/s 302 IPC is concerned, the same is confirmed. The fine amount and the default sentence imposed on the

appellant/A1 u/s 302 IPC will hold good.

With the above modification in conviction and sentence, the Criminal Appeal is dismissed. The Criminal Revision Case is also dismissed.