State vs Ganesan Thevar, Chelladuri Thevar, Paramasivan Moopanar and Thiraviam <BR>Ramakrishnan Thevar Vs State and Others

T. Sudanthiram, J.—The Respondents 1 to 4 in Crl.A. No. 1023/2003, who are also Respondents 2 to 5 in Crl. Rc. No. 736/2003, are the

accused 1 to 4 in S.C. No. 692 of 2000 on the file of the learned Additional Sessions Judge (Fast Track CourtNo.I), Tirunelveli. All the accused

stood charged under Sections 341 and 302 read with Section 34 IPC and apart from that, accused No. 4 alone stood charged u/s 506(ii) IPC.

On trial, the learned trial judge found all the accused not guilty of the charges framed against them and acquitted accused Nos. 1 to 4 from all the

charges. Challenging the said acquittal, the State has preferred the Criminal Appeal No. 1023 of 2003 and P.W.1, who is the firstinformant in the

case, has preferred the Criminal Revision Case No. 736/2003.

The case of the prosecution in brief is as follows:

(a) P.W.1 Ramakrishnan is the elder brother of the deceasedMeenakshisundaram. Accused 1 and 2 are the sons of the maternal uncle of P.W.1.

Accused Nos. 3 and 4 are the friends of accused Nos. 1 and 2. The deceasedMeenakshisundaram was doing Plantain business and accused No.

1''s elder brotherby name Kanthaiah was also doing the same business.

(b) On 26.09.1994, the deceased Meenakshisundaram and hisemployee by name Murugan murdered Kanthaiah, the elder brother of accused

Nos. 1and 2. The trial in the said murder case was pending before the Sessions Court. The evidence of the witnesses was against the accused in

that case, namely thedeceased Meeanakshisundaram. Therefore, the deceased Meenakshisundaramapproached this Court and obtained an order

of stay of the proceedings of trialcourt. As he obtained stay, accused Nos. 1 and 2 got angry. After that, thedeceased Meenakshisundaram was

not allowed to go outside alone and he wasaccompanied either by P.W.1 or by some other persons working in the shop.

(c) P.W.1 and the deceased were residing in Kayathar. On 19.08.1999 at about 3.30 p.m., the deceased went to Sirumazhanchi, accompanied by

P.''W.1. He participated in plantain auction. The auction was over by 6.30 p.m. P.W.1 and the deceased loaded the goods in a mini lorry. At

about 8.15p.m., P.W.5 and one Lakshmanan, who were working in the shop of the deceased,came there and enquired whether goods were

loaded. Thereafter, P.W.5 andLakshmanan went to the nearby temple. The deceased was talking with the driverof the lorry. P.W.1 was standing

by the side. At that time, accused Nos. 1 and2 came in a tempo van and got down from the said van. Accused Nos. 3 and 4 alsogot down from

the same van. All of them rushed towards the deceased. AccusedNo. 1 attacked the deceased with an aruval on his neck. The deceased

startedrunning and he was chased by accused 1 to 4. P.W.1 also ran behind them. Infront of P.W.3''s Tea Shop, all the accused surrounded the

deceased and attackedhim repeatedly. The right hand of the deceased was severed. Even though thedeceased fell down, all the accused continued

to attack him. As P.W.1 shouted,the accused 1 to 4 left the scene of occurrence. The deceased died on the spot.P.W.1 went to Eruvadi Police

Station at about 9.30 p.m. and gave Ex.P-1 Complaint to P.W.14, the Sub Inspector of Police.

(d) P.W.14, on receiving Ex.P1 complaint, registered a case inCrime No. 158/1999 u/s 302 IPC and prepared the First InformationReport Ex.P-

P.W.19, the Inspector of Police, on receipt of copy of FIR,went to the scene of occurrence at about 10.00 p.m. on 19.08.1999 and

preparedobservation mahazar and rough sketch, Exs.P-2 and P-25, respectively. He alsoheld inquest over the body of the deceased from 10.30

p.m. to 1.30 a.m(20.08.1999), recorded the statements of witnesses and prepared Inquest ReportEx.P-26. He gave Ex.P-4 requisition to the

Doctor for conducting postmortem. He recovered M.O.5 bloodstained earth and M.O.6 sample earth from the scene ofoccurrence under Ex.P-3

mahazar.

(e) On 20.08.1999, on receiving Ex.P-4 requisition from theInspector of Police, P.W.9 Doctor held autopsy on the body of the deceased.

Henoticed as many as 38 injuries on the body of the deceased and issued Ex.P-5postmortem certificate opining that the deceased would appear to

have died dueto the injuries sustained by him, 12 to 18 hours prior to postmortem. Afterpostmortem, P.W.16 Constable recovered M. Os.1 to 4,

the bloodstained clothes ofthe deceased, and handed them over to the Inspector of Police.

(f) P.W.19, the Inspector of Police, came to know that all theaccused surrendered before the Court. He gave a requisition to the Court fortaking

them into police custody. On 07.09.1999, he brought the accused toEruvadi Police Station and recorded the separate confessional statements

givenby all the accused and Exs.P-17 to P-20 are the admissible portions of theconfessional statements, pursuant to which accused Nos. 1 to 4

took and producedfour aruvals and P.W.19, the Inspector of Police, recovered them under Exs.21 to 24.

(g) P.W.19, the Inspector of Police, gave Ex.P-15 requisitionto the Court for conducting Test Identification Parade. P.W.17, the

JudicialMagistrate, Valliyoor, conducted Test Identification Parade on 09.11.1999 atabout 3.00 p.m. in the Central Prison, Palayamkottai.

Witnesses P.W.1Ramakrishnan and another Pandaram were present. P.W.1 identified accused Nos. 3and 4 in the Test Identification Parade.

Accused No. 3 Paramasivam told beforethe Magistrate that he was known to P.W.1 and he is also his relative. The 4thaccused also stated before

the Magistrate that both P.W.1 and he belong toKayathar Village and P.W.1 had seen him on several times earlier. P.W.17prepared Test

Identification Report Ex.P-16.

(h) P.W.19, the Inspector of Police, gave requisitions to theCourt for sending the material objects recovered in this case for chemicalanalysis and

accordingly they were sent to Forensic Lab and Exs.P-8 and P-12,Chemical Analysis Reports and Exs.P-9 and P-13, Serology Reports, were

receivedin the Court. P.W.19 examined witnesses and recorded their statements. Aftercompleting investigation, P.W.19 laid final report against

accused.

In order to prove the charges against the accused, the prosecution examined 19 witnesses, marked Ex.P-1 to P-26 and produced M. Os.1 to

On completion of the evidence on the side of the prosecution, the accusedwere questioned u/s 313 of the Code of Criminal Procedure with

regard tothe incriminating circumstances found in the evidence of prosecution and theaccused had denied their complicity. On the side of defence,

no oral ordocumentary evidence was let in. The trial court, after hearing the parties,took the view that the prosecution has not proved the charges

against accusedbeyond reasonable doubt and accordingly acquitted accused Nos. 1 to 4 from allthe charges. Hence the criminal appeal at the

instance of the State and thecriminal revision by P.W.1.

The learned Additional Public Prosecutor appearing for the State made the following submissions:

(i) The trial Court, without properly appreciating the evidence, had acquitted the accused on flimsy grounds. The occurrence in this case had taken

place on 19.08.1999 at about 8.30 p.m. and the first information was recorded in Eruvadi Police Station at 9.30 p.m., which was at 8 k.m.

distance away from the place of occurrence and FIR had also reached the Judicial Magistrate Court, Nanguneri, at 10.30 p.m. and therefore the

time of preparing FIR and the FIR reaching the Court would go to show that there was no time to concoct FIR but, the learned trial judge has not

given due weight to this aspect.

(ii) The trial Court erred in observing that motive was not proved. Though the prosecution had established the fact that the deceased was an

accused in the murder case of Kanthaiah, who was the elder brother of accused Nos. 1 and 2, the trial court failed to appreciate this fact.

(iii) The learned Additional Public Prosecutor furthersubmitted that though the names of accused Nos. 3 and 4 were not mentioned inEx.P-1,

subsequent to the surrender of Accused Nos. 3 and 4, test identificationparade was held and P.W.1 had also identified both the accused 3 and 4

in thetest identification parade conducted by the learned Judicial Magistrate,Valliyoor. Hence, the learned Additional Public Prosecutor submitted

thatP. Ws.1 and 5 are the eye-witnesses to the occurrence and the evidence of P.W.1is corroborated by the evidence of P.W.5 and the trial

Court had erred in notaccepting their evidence merely for the reason that P.W.7, the VillageAdministrative Officer, who stood as a witness for

observation mahazar, hadstated that the brother of the deceased had arrived at the scene of occurrenceonly after his arrival. The version of P.W.7

in that aspect was only incorrectand he stood as panchayatdar during inquest and he had signed in the InquestReport Ex.P-26. The trial Court also

disbelieved the evidence of P.W.1 onflimsy grounds that bus ticket for his travel from Kayathar to Sirumazhanchi wasnot produced.

(iv) The learned Additional Public Prosecutor also pointed outthat the trial court has stated that the clothes of P.W.1 were not bloodstainedand as

such his presence at the scene of occurrence was doubtful. Absence ofbloodstains in the clothes of P.W.1 would not be a conclusive proof to hold

thathe was not present at the scene of occurrence. The conduct of persons wouldvary from person to person. The learned Additional Public

Prosecutor alsopointed out that P.W.1 had given a specific reason to accompany the deceased,since after the deceased obtained stay order, there

was a fear and therefore thedeceased was not allowed to go aloof and he was accompanied either by P.W.1 orsomebody who were working in

the shop.

(v) The learned Additional Public Prosecutor also pointed out that there was sufficient light at the scene of occurrence and in the observation

mahazar, existence of lamp post is found mentioned and P.W.8, an employee of the Tamil Nadu Electricity Board, deposed that switch was put on

at 6.00 p.m. but, the trial had erroneously observed that no document was filed in support of it.

(vi) The learned Additional Public Prosecutor also submitted that four billhooks were recovered from the accused and ''O'' Group blood was

found in three of the weapons which tallied with the blood group of the deceased.

(vii)Therefore, according to the learned Additional Public Prosecutor, the prosecution has proved its case beyond reasonable doubt but, however,

the trial judge, without appreciating the evidence adduced on proper perspective, wrongly found the accused not guilty and acquitted them of the

charges and hence the judgment of the trial court is liable to be set aside and the accused are to be convicted of the charges levelled against them.

The learned Counsel appearing for the revision Petitioner/brother of the deceased submitted that barring the evidence of P.W.7,there were

nothing to shake the evidence of P. Ws.1 and 5. The evidence of P.W.1is well corroborated by the evidence of P.W.5, who had no animosity

against theaccused and is also related to both P.W.1 and accused 1 and 2. Learned Counselfor the revision Petitioner also submitted that the trial

court ought to haverejected the evidence of P.W.7 as false and the prosecution should have soughtthe permission of the Court to treat P.W.7 as a

hostile witness.

Per contra, the learned Counsel appearing for accused 1 to 4 made the following submissions:

(a) The trial court had elaborately dealt with the evidence ofP. Ws.1 and 5, the alleged eye-witnesses to the occurrence and rejected theirevidence

with reasons. The learned Counsel for the accused submitted that P.W.1was residing at Kayathar in a separate house and the deceased had gone

toSirumazhanchi Sandy for his business purpose but P.W.1, who had no work there,had no reason to accompany the deceased to Sirumazhanchi,

which is at a distanceof 75 kilometres from Kayathar. Though P.W.1 had stated that due to fear, thedeceased was not allowed to go outside alone

and P.W.1 accompanied him at thetime of occurrence, P.W.1 did not take any steps to prevent the attack and hisclothes were not bloodstained

and he had not sustained any injury. Further, inEx.P-1 complaint, P.W.1 had stated that two known persons also attacked thedeceased and

though he had identified accused Nos. 3 and 4 in the testidentification parade, in the cross examination it is established that accusedNos.3 and 4

are known to P.W.1 already and they all belong to the same village,namely Kayathar and P.W.1 also knew even the place of residence of accused

Nos. 3and 4 and also the particulars regarding their occupation and this aspect wouldfalsify even Ex.P-1 and the presence of PW.1 at the scene of

occurrence.

(b) Learned Counsel for the accused further submitted that though P.W.5 has been shown as an eye-witness to the occurrence, P.W.1 had not

mentioned the name of P.W.5 in Ex.P-1 Complainnt and P.W.5 was not examined during inquest and though his statement is said to have been

recorded on 20.08.1999 by the Investigation Officer, the said statement was not sent to the Court along with the statement of P.W.1, but it was

filed before the court only at the time of filing the final report.

(c) Though P.W.5 says that he was present at the scene of occurrence, he had stated in the cross examination that he did not know when the body

of the deceased was taken from the scene of occurrence and he did not know as to whether P.W.1 went to the police station to give the

complaint. Though according to the Investigation Officer, P.W.5 was examined on 20.08.1999, P.W.5 had stated that he was examined by the

Inspector of Police on 19.08.1999 itself. But, at the same time, he had stated that immediately after the occurrence, he left for Valliyoor and

returned only at 3.00 a.m. and he went to Valliyoor for the purpose of taking Soda.

(d) Learned Counsel for the accused also pointed out that theevidence of P.W.7, the Village Administrative Officer, who had signed in Ex.P-

2observation mahazar, in the cross examination has stated that he went to thescene of occurrence at about 8.15 p.m. or 8.30 p.m. and enquired

about the nameand particulars of the deceased and thereafter he gave information to therelatives of the deceased at Kayathar and thereafter the

Inspector of Police andSub-Inspector of Police came to the scene of occurrence and thereafter only thebrother of the deceased and other relatives

came to the scene of occurrence in avan. The learned Counsel for the accused also submitted that without any basis,it cannot be said that P.W.7,

Village Administrative Officer, had given falseevidence during cross examination. The evidence of P.W.7 falsifies the evidenceof P.W.1 and throws

considerable doubt regarding the preparation of Ex.P-1. Learned Counsel also relied on the decision of the Hon''ble Supreme Courtreported in

Chandrappa and Others Vs. State of Karnataka, ,wherein it is observed as follows.

From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with

an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the

evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, ""substantial and compelling reasons"", ""good and sufficient grounds"", ""very strong circumstances"", ""distorted

conclusions"", ""glaring mistakes"", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such

phraseologies are more in the nature of ""flourishes of language"" to emphasise the reluctance of an appellate court to interfere with acquittal than to

curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case ofacquittal, there is double presumption in favour of the accused. Firstly,

thepresumption of innocence is available to him under the fundamental principle ofcriminal jurisprudence that every person shall be presumed to be

innocent unlesshe is proved guilty by a competent court of law. Secondly, the accused havingsecured his acquittal, the presumption of his

innocence is further reinforced,reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal

recorded by the trial court.

We have considered the submissions of all the parties and perused the records.

The reasons given by the trial court for acquitting the accused from all the charges are as follows:

(i) The motive is only for the 2nd accused against the deceased and there was no motive for the other accused against the deceased.

(ii) The prosecution had not established the fact that there was light in the scene of occurrence at the time of occurrence.

(iii) Though P. Ws.2,3,4 and 6 have been examined as eye-witnesses to the occurrence, they have not connected the accused to the occurrence.

(iv) The accused 3 and 4 have been implicated in the case subsequently by P.W.1.

(v) From the evidence of P.W.7, it appears that the occurrence had taken place at 8.30 p.m. and P.W.1 did not go to the police station to give

complaint and he came to the scene of occurrence subsequently.

(vi) The evidence relating to recording of confessional statements of accused and recovery of weapons of crime in pursuance of the said confession

is doubtful.

(vii) The evidence of P.W.5 is not acceptable, as his name has not been mentioned in Ex.P-1 as an eye-witness to the occurrence and he could not

have been examined by the Investigation Officer on 20.08.1999.

(viii) The evidence of P.W.1, who is closely related to the deceased as his brother, that he was present at the scene of occurrence which is 75

kilometres away from his native village is doubtful and if he had really gone along with the deceased to safeguard him, he would have taken

weapon along with him and he did not prevent the accused from attacking the deceased.

On a perusal of the evidence, we are not able to accept all the reasons given by the trial court for acquitting the accused. But, the reasons of the

trial court for the rejection of the evidence of P. Ws.1 and 5 are acceptable. The elder brother of accused Nos. 1 and 2 having been murdered by

the deceased in this case, namelyMeeankshisundaram and he being an accused in the said murder case, the accused 1and 2 had enough motive

against the deceased Meenakshisundaram. But, at thesame time, it is to be remembered that motive is always a double edged weapon,which can

be used even to implicate innocent persons. In this case, even duringthe cross examination of P.W.1, it was suggested by the defence that there

wasenmity between P.W.1''s family and the accused 1 & 2''s family. But, at the sametime, how accused Nos. 3 and 4 are associated or connected

with accused Nos. 1 and2 is not made clear and there was no direct motive for accused Nos. 3 and 4against the deceased.

The finding of the trial court that prosecution has notestablished the fact of availability of light at the scene of occurrence is alsonot correct. In

Ex.P-2 Observation Mahazar and also in Ex.P-25, the RoughSketch, existence of lamp post near the scene of occurrence is found mentionedand

P.W.8, an employee of TNEB, has also been examined to establish the factthat light was switched on at 6.00 p.m. on that day. Even otherwise,

there werenumber of shops near the scene of occurrence.

As far as accused Nos. 3 and 4 are concerned, the finding ofthe trial Court that P.W.1 had implicated them belatedly is acceptable. Thenames

of accused Nos. 3 and 4 were not given in Ex.P-1 complaint and it wassimply mentioned as ""identifiable persons"". On the presumption that

accusedNos.3 and 4 were not known to P.W.1 prior to the occurrence, test identificationparade was conducted and in which accused Nos. 3 and

4 were identified by P.W.1during the parade. But, as per the evidence of P.W.1 in his cross-examination,accused Nos. 3 and 4 were already well

known to P.W.1 and that the place ofresidence of accused Nos. 3 and 4 is also known to P.W.1 and their occupation wasalso known to P.W.1.

Inspite of that, P.W.1 has not given any details againstaccused Nos. 3 and 4 in Ex.P-1 complaint.

With regard to the presence of P.W.1 at the scene ofoccurrence, which has not been accepted by the trial court, the reasons given bythe trial

court for that are also acceptable. According to P.W.1, he wasresiding in a separate house and he had nothing to do with the business of

thedeceased and he had admitted that he had no reason to go to Sirumazhanchi Sandy,except accompanying the deceased for his safety. Though

P.W.1 claims that heaccompanied the deceased for his safety, he had not taken any steps to safeguardthe deceased. Further, P.W.7, the Village

Administrative Officer, who wastaken as a witness for the observation mahazar prepared by the InvestigationOfficer on 19.08.1999 at 10.00p.m.,

has stated in the cross-examination that onreceiving the information about the death of the deceased at 8.00 p.m. throughhis Thalayari, he went to

the scene of occurrence at 8.30 p.m. and he enquiredabout the deceased person and only after his arrival to the scene of occurrence,Inspector of

Police and Sub-Inspector of Police came to the scene of occurrence,who have been informed by the persons belonging to Sirumahzanchi village

andonly thereafter the brother of the deceased and other relatives came in a van tothe scene of occurrence. It is not possible to simply say that

P.W.7, theVillage Administrative Officer, had been won over by the accused and he wasgiving false evidence. It is not possible for the court to

make such apresumption which would be unfavourable to the accused. It is well settled lawthat no adverse inference could be drawn against any

accused at any stage.

Apart from the evidence of P.w.7 falsifying the evidence ofP.W.1, P. Ws.3, 4 and 6, who are not hostile witnesses, did speak about

theoccurrence but, they have not spoken about the presence of either P.W.1 or P.W.5at the scene of occurrence. In this case, merely because

there is no delay inpreferring the complaint Ex.P-1 and recording Ex.P-14 FIR and in the FI Rreaching the Court, as per record, it cannot be taken

as proved fact that P.W.1was an eye-witness to the occurrence and the same has to be decided considering all other aspects.

The evidence of P.W.5 is also not acceptable, since his name wasnot mentioned in Ex.P-1 as an eye-witness to the occurrence and he was

notexamined during inquest as a witness to the occurrence by the InvestigationOfficer. Though, according to the Investigation Officer, P.W.5 was

examined on20.08.1999, the statement of P.W.5 was not sent to the court along with thestatementw of P.W.1 and others. The evidence of P.W.5

during cross examinationthrows considerable doubt regarding his presence at the scene of occurrence. Though he says that he came to the scene

of occurrence at 8.15 p.m., he had goneto some temple and again he came to the scene of occurrence and after that,within half-an-hour, he had

gone to Valliyoor and returned to the scene ofoccurrence at 3.00 a.m. The reason given by P.W.5 for his visit to Valliyoor wasthat he went there

to take soda. However, he did not go to the police stationand give complaint and he did not even say whether P.W.1 went to police stationto give

complaint. Therefore, the evidence of P.W.5 appears to be artificial.

Applying the principle laid down by the Hon''ble Supreme Court inthe decision cited supra, we do not want to disturb the order of

acquittalrecorded by the trial court. Though as already pointed out that some of thereasons given by the trial are not acceptable, on reconsideration

of the entireevidence brought on record, most of the reasons given by the trial court foracquitting the accused was possible and plausible. It is well

establishedprinciple that if two views are possible on the basis of the evidence on record,one favourable to the accused has to be taken into

account and as such, thefinding of the trial court should not be disturbed.

For the foregoing reasons, both the criminal appeal as well as the criminal revision are dismissed and the judgment of the trial court is

confirmed.