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Judgment
M. Chockalingam, J.—These two appeals arise from the judgment of the learned II Additional Sessions Judge, Coimbatore in S.C. No.
299 of 1999. Crl.A. No. 736/2000 has been brought forth by A-4 and Crl.A. No. 825 of 2000 has been brought forth by A1 to A3. The
appellants herein, along with two others ranked as A5 and A6, stood charged as follows:
A1, A3 and A4 - 302 IPC
A2 - 302 and 307 IPC
A5 and A6 - 302 read with 109 IPC
A1, A3 and A4 were convicted for the offence u/s 302 IPC and sentenced to undergo life imprisonment respectively, while A2 was convicted
under sections 302 and 307 IPC and sentenced to undergo life imprisonment and rigorous imprisonment for three years respectively and the
sentences were directed to run concurrently. A5 and A6 were acquitted.
The short facts necessary for the disposal of these appeals are as follows:-
a) A1 to A6 were residents of Coimbatore Shivananda colony. A5 was the organiser of Hindu Munnani, Rathnapuri branch at Coimbatore. The
deceased Samsukhani and Premnazir PW1 were the members of Tamilnadu Muslim Munnetra Kazhagam and the deceased Samsukhani was also
the Secretary of Tamilnadu Muslim Munnetra Kazhagam, Rathnapuri branch. The assassination of one Palanibaba, a muslim leader, at Pollachi is
the background of this case.
b) P.W.5 is the father of P.W.1. P.W.5 was running a hotel. P.W.2 was employed in Sendhil Cafe situated in Shastri Road. P.W.3 and P.W.4
were autorickshaw drivers who were also used to park their autorickshaws at the road junction. The deceased Samsukhani was having a petty
shop in the Marudhakutty road and Shastri Road junjction. On 2.2.1997 at 5 am P.W.5 along with his son P.W.1 went for prayers to the mosque
and while returning P.W.1 informed P.W.5 that he would go and have a tea and come back. Then he proceeded to Sendhil Cafe. By that time the
deceased was in front of his shop sweeping. P.W.1 invited him to have a tea with him, but the deceased informed him that in view of ''nombu'' he
could not have tea and asked P.W.1 to have tea. P.W.1 went to the tea stall, gave an order for a tea and was standing in front of the shop. At that
time he heard distress cries of the deceased and therefore, rushed to the scene, where the deceased was having a petty shop, where he found A1
to A4, armed with deadly weapons ,indiscriminately cutting the deceased.
c) On seeing P.W.1, A2 told them that he has also to be cut off. Immediately A2 chased P.W.1, P.W.1 ran to the shop and A2 cut P.W.1 on his
cheek. When P.W.2 shouted not to cut him, A2 ran away. A1 to A4 flew away from the place of occurrence along with the weapons since crowd
gathered. P.W.1 rushed to P.W.5 and informed about the occurrence. He immediately took P.W.1 to Kongunadu hospital, a private hospital of
P.W.13. Since it was a police case P.W.13 doctor informed them to go to a Government Hospital. Then P.W.13 sent an intimation to B-3 Kattur
police station, Coimbatore, which is marked as Ex.P20.
d) P.W.23 Inspector of Police, on receipt of the intimation proceeded to Kongunadu Hospital and recorded the statement of P.W.1. The said
statement is marked as Ex.P1. On the basis of Ex.P1 he registered a case in Crime No. 110/97 for offences under sections 307 and 302 IPC by
preparing express reports. The express reports were sent to the higher officials and to the Court. Ex.P32 is the copy of the printed FIR which was
sent to the Court along with the complaint Ex.P1. P.W.5 took P.W.1 to the Government Hospital, Coimbatore at 8 am. and P.W.1 was admitted
in the hospital. P.W.18 doctor, who gave treatment to P.W.1, issued Ex.P22 the accident register.
e) P.W.23 proceeded with the investigation. He went to the scene of occurrence, made an observation in the presence of two witnesses and
prepared Ex.P2 observation mahazar and Ex.P33 rough sketch. He took photographs through P.W.10 and marked M.O.9 series (photos) and
M.O.10 series (negatives). The investigating officer conducted inquest on the dead body in the presence of witnesses and panchayatdars and
prepared Ex.P34 inquest report. He recovered M.O.4 blood stained earth, M.O.5 sample earth, three pairs of chappals M.Os.6 to 8 under a
cover of mahazar Ex.P3.
f) Then he sent the dead body for autopsy along with a requisition Ex.P15. P.W.20, the doctor attached to the Government hospital, conducted
autopsy on the dead body and issued Ex.P24 postmortem certificate. The doctor gave his opinion that the deceased would appear to have died of
shock and haemorrhage due to multiple injuries sustained by him and the death would have occurred 6 to 9 hours prior to autopsy.
g) On 7.2.1997 the investigating officer arrested A1 to A3. A1 to A3 were questioned and they gave statements, the admissible portion of which
are marked as Ex.P35, Ex.P36 and Ex.P37 respectively. Pursuant to the confession statement A1 produced M.O.2 knife, M.O.15 blood stained
pant, M.O.16 blood stained shirt and M.O.17 plastic bag, which were recovered under Ex.P38 mahazar. A2 produced M.O.3 aruval and it was
recovered under Ex.P39 mahazar. A3 produced M.O.18 blood stained pant, M.O.19 blood stained shirt and M.O.20 knife which were
recovered under Ex.P40 mahazar.
h) On coming to know that A1 sustained injuries, he was taken for treatment and he was given treatment by P.W.19 doctor attached to the
Government Hospital, Coimbatore on 8.2.1997. Ex.P23 is the accident register of A1. On 12.2.1997 A4, A5 and A6 were arrested. When
questioned, A4 gave a confession statement, the admissible portion of which is marked as Ex.P41. Pursuant to the said statement he produced
M.O.21 motor cycle which was recovered under Ex.P42 mahazar and M.O.22 knife which was recovered under Ex.P43 mahazar. As A4 also
sustained injuries he was taken to the Government Hospital where P.W.14 doctor gave him treatment and issued Ex.P21 accident register.
i) Ex.P17 requisition was forwarded to the Chief Judicial Magistrate, Coimbatore for conducting identification parade of the accused. Accordingly
P.W.12 Chief Judicial Magistrate conducted parade on 20.2.1997 in the Central Prison, Coimbatore. P.W.1 identified A1 to A4 while P.W.2
identified A1 to A3. Identification parade proceedings are marked as Ex.P19. All the material objects recovered from the place of occurrence
from the dead body and from the accused, on production pursuant to their confession statements, were sent for chemical analysis which resulted in
Ex.P27 chemical report and Ex.P28 serologist report.
j) On completion of the investigation the investigating officer filed the final report before the committal court against the accused for the offences
mentioned above. The case was committed to Court of Session and necessary charges were framed against the accused/appellants 1 to 6.
In order to substantiate the charges levelled against the appellants, 23 witnesses were marched by the prosecution and the prosecution relied on
43 exhibits and 22 material objects. On completion of the evidence on the side of the prosecution the accused/appellants were questioned u/s 313
Cr.P.C. on the incriminating circumstances appearing against them and they denied all the incriminating circumstances as false. No defence
witnesses were examined. The trial was over, both sides were heard and the learned trial Judge, after considering the submissions made and on the
scrutiny of the materials placed, found A1 to A4 guilty of the offences levelled against them and sentenced them to undergo life imprisonment and
acquitted A5 and A6. Aggrieved over the same this appeal has been brought forth by the accused/appellants A1 to A4, who were convicted by
the lower court.
Advancing arguments for the appellants in both these appeals Mr. M.Ravindran, learned senior counsel would submit that in order to establish
the guilt of the accused the prosecution relied on the direct evidence through the evidence of P.Ws.1 to 4, who were the eye witnesses. P.Ws.2 to
4 turned hostile and therefore, the only evidence available for the prosecution was that of P.W.1. P.W.1''s evidence, if scrutinized properly, would
clearly indicate that it is nothing but false evidence as he has given different versions in two different points of time. Hence it would be clear that he
could not have witnessed the occurrence at all. The lower court had relied on the confession statements made by the accused during arrest and
recovery of the weapons pursuant to their arrest.
It is also submitted by the learned senior counsel that in the instant case there has been unexplained delay in lodging the complaint and further the
identification parade was conducted after 18 days, though not it is unreasonable, the version made by P.W.1 at the time of the identification parade
would also cause doubt on the testimony. It is further submitted that one of the main witnesses, who according to the prosecution witnessed the
occurrence namely, Parthasarathy was not examined, for which no explanation was tendered. Apart from that, at the time of the occurrence A1
and A4 sustained injuries, but there is no whisper about the injuries either in Ex.P1 or in the subsequent statement recorded u/s 161 Cr.P.C. A
feeble attempt was made by the prosecution through P.W.1 at the time of the evidence which would go to show that it is not only unacceptable but
also would show that he could not have been an eye witness to the occurrence at all. Under such circumstances the lower court should have
acquitted the accused. Learned senior counsel added further that the lower court while finding the evidence of some of the witnesses in respect of
A5 and A6 not believable and acquitted them, it should not have accepted the evidence in respect of A1 to A4 also. There are number of lacunas
in the evidence adduced on the side of the prosecution. Hence the lower court should not have accepted the evidence of the prosecution witnesses
and the accused are entitled for acquittal before this Court.
Heard the learned counsel for the State on the above contentions.
It is not in controversy that the deceased Samsukhani died out of homicidal violence. Following the inquest of the investigating officer the
deceased was subjected to postmortem by P.W.20 doctor, who gave the postmortem certificate Ex.P24 where he has opined that the deceased
died out of shock and haemorrhage and due to the multiple injuries caused and this fact was never questioned by the accused before the lower
court nor before this Court. Hence it can be safely concluded that the deceased died out of homicidal violence.
In order to substantiate the accusations made against the appellants/accused that they indiscriminately cut the deceased at the time of the
occurrence, the prosecution relied on the direct evidence through P.Ws.1 to 4, but, unfortunately P.Ws.2 to 4 have turned hostile. Therefore, what
was available for the prosecution before the court below was that of the evidence of P.W.1. Before accepting the evidence of P.W.1 a duty is cast
upon the Court to exercise a careful scrutiny whether such evidence of P.W.1 could be safely accepted.
Learned senior counsel for the appellants brought to the notice of this Court that different versions were made by P.W.1 at different points of
time. According to the prosecution the occurrence has taken place in front of a petty shop. The earliest statement of P.W.1 before the doctor
P.W.13, who issued the intimation Ex.P20 to the police, is that the occurrence has taken place near Pallivasal. From the evidence it could be seen
that Pallivasal is situate 1 km away from the petty shop and according to him even he was chased and attacked only by the second accused. But in
the second version given by him to the doctor P.W.18, as found in Ex.P22, he has stated that the occurrence has taken place at 6.30 am and that
he was assaulted by some known persons. Now at this juncture it has to be pointed out that when he gave Ex.P1 complaint he has stated that four
persons attacked, whose names and physical features were not mentioned. Had it been so, if the persons are already known to him, there was no
difficulty for him to mention such names of the accused in Ex.P1, which has come into existence at a later point of time.
Originally he has mentioned in Ex.P1 that four persons cut the deceased with aruval, but subsequently it has been developed by saying that A1
was having aruval and others were having knives and as rightly pointed out by the learned senior counsel for the appellant this evidence should
have been given in such a way to suit the postmortem certificate wherein it could be seen that the injuries sustained by the deceased would have
been made by both the weapons like aruval and knife.
If it is true that P.W.1 was the occurrence witness and if he knew the names of the accused, there would be no impediment for him to mention
the names of the accused in the complaint. Before the doctor P.W.18 he has stated that he was attacked by known persons and in Ex.P1 he has
not mentioned that he was attacked by known persons. Even at the time of identification parade also he would say that he knew the first accused
already and during the evidence also P.W.1 has deposed that he knew the first accused even before the occurrence and others were not known to
him. If that is so, there would be no impediment for him, at the time of giving first information to the police, to mention the name of the first accused.
As there are different versions by P.W.1 it would not be safe for this court to accept his evidence.
Regarding the place of occurrence also P.W.1 has given two different versions at two different points of time. He has stated in Ex.P1 that the
occurrence has taken place before the petty shop whereas before the doctor P.W.13 he has stated that the occurrence has taken place near
pallivasal. From the above evidence it is clear that P.W.1 would not have seen the occurrence at all and thus it would have been a different
occurrence.
Further in the instant case A1 and A4 have sustained injuries, both were treated by the doctors. P.W.19 doctor treated A1 on 8.2.1997 and
he found a sutured wound in left anterior thigh. According to the prosecution, it was P.W.15 who gave treatment to A1 and A4 at the earliest point
of time and he was also examined in Court. He would say that two persons came to his clinic for treatment and one person was having incised
wound. As the incised wound was very deep and as there was no sufficient facility in the clinic he was referred to Ramana Hospital. But no one
was summoned by the prosecution or no one was examined from Ramana Hospital in order to bring to the notice of the court the nature of the
injuries sustained by A1. But the injuries found would clearly indicate that fractures have been sustained. If the injuries have been sustained earlier
in point of time to the occurrence, there was no possibility of the participation of the accused in the crime and if those injuries have been sustained
by the accused at the time of the occurrence and in the same transaction, a duty is cast upon the prosecution to explain how those injuries were
sustained. The prosecution has not explained so. On the other hand, there is no whisper about the injuries sustained by the accused in the FIR. The
investigating officer has categorically admitted that none of the witness has spoken about the injuries sustained by the accused in the statement
recorded by him u/s 161 Cr.P.C. The prosecution has made a feeble attempt through the evidence of P.W.1 that at the time of the occurrence,
when the accused were all indiscriminately cutting the deceased, some of the cuts fell on the accused, which explanation at no stretch of imagination
could be accepted. Under these circumstances it can be well stated that the prosecution has not even made a sincere attempt to explain the injuries
on the accused. The injuries, even assuming to the simple and superficial, under circumstances need to be explained.
In the instant case the only evidence available was that of P.W.1 and to accept his evidence the Court has to exercise careful scrutiny. All the
above lacunas and defects found in the instant case would indicate that it is unsafe to accept the evidence of P.W.1. In short, the prosecution had
no other evidence except the evidence of P.W.1, which is full of infirmities as narrated above and therefore, it will be unsafe to find the accused
guilty on the evidence adduced by P.W.1. Hence it cannot be stated that the prosecution has proved the case beyond all reasonable doubts and
thus the benefit of the doubts should go to the accused to which they are entitled. Accordingly the judgment of the lower court is set aside and the
appeals are allowed. The accused are acquitted of the charges framed against them.