Madras High Court
Arockyam Alias Arockyasamy vs The State on 16 July, 2010
Bench: M.Chockalingam, M.Duraiswamy
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 16/07/2010 Coram The Honourable Mr.Justice M.CHOCKALINGAM and The Honourable Mr.Justice M.DURAISWAMY Criminal Appeal (MD) No.226 of 2009 and Crl.RC.(MD)No.288 of 2010 Crl.A.(MD)No.226/2009 1.Arockyam alias Arockyasamy, S/o.Royappan. 2.Arockyam, S/o.Chokkuvelankanni. ... Appellants/ Accused Nos.1 & 2 vs The State, rep.by The Inspector of Police, Dindigul Taluk Police Station, Dindigul District. ...Respondent/ (Crime No.1417/1996) Complainant Appeal under Section 374 of the Code of Criminal Procedure against the judgment of conviction and sentence passed in S.C.No.63/2008 on the file of the learned Additional Sessions Judge, Dindigul District, dated 29.07.2009. Crl.RC.(MD)No.288/2010 Mani alais Mariaraj, S/o.Velankanni ... Petitioner/ Defacto complainant vs 1.Kaspar, S/o.Samymuthu Anthony 2.Lasar, S/o.Samymuthu Anthony 3.Samikannu, S/o.Yagappan 4.Vandikara Santhiyagu, S/o.Savarimuthu 5.Dharmaraj @ Dharmar, S/o.Santhiyagu 6.M.Raja, S/o.Mariaraj 7.Tailor Santhiyagu @ Dhandakara Santhiyagu, S/o.Savariyar 8.Velanganni, S/o.Arulappan 9.Anthoni, S/o.Arulanand ... Respondents 1 to 9/ Accused 3 to 11 10.The State, rep.by The Inspector of Police, Dindigul Taluk Police Station, Dindigul District. ... Respondent No.10/ Complaint Revision under Section 397 read with Section 401 of the Code of Criminal Procedure against the order of acquittal of Respondents 1 to 8 for the offence under Sections 147, 148, 323, 324, 326, 307, 302 read with 149 IPC by the Fast Track Court, Dindigul, in S.C.No.63 of 2008, by its judgment dated 29.07.2009. !For Appellants ... Mr.AR.L.Sundaresan, in Crl.A. Senior Counsel for No.226/2009 Mrs.AL.Gandhimathi For Respondent ... Mr.P.N.Pandithurai, in CA & R-10 in Addl.Public Prosecutor. Crl.RC. For Petitioner ... Mr.S.Arivalagan in Crl.R.C. For RR 1 & 2 ... Mr.Ramachandran in Crl.R.C. For RR 3,6 & 7 ... Mr.T.Lajapathi Roy in Crl.R.C. For RR 5, 8 & 9 ... Mr.Rahamadullah in Crl.R.C. For R-4 in ... Mr.B.Chandramohan Crl.R.C. :COMMON JUDGMENT
(Judgment of the Court was made by M.CHOCKALINGAM,J) This judgment shall govern both the Crl.A.(MD)No.226 of 2009 and Crl.RC.(MD)No.288 of 2010. Crl.A.(MD)No.226/2009 has been filed challenging the judgment of the learned Additional Fast Track Court, Dindigul, dated 29.07.2009, made in S.C.No.63/2008, whereby the appellants, ranked as accused Nos.1 and 2, along with other nine persons, ranked as accused Nos.3 to 11, stood charged and tried for the following charges, Charge No. Accused No./s Charge Under
1. A1,A3 to A6, A8, A10 and A11 U/s.148 IPC
2. A2,A7 and A9 U/s.147 IPC
3. A-1 U/s.307 IPC
4. A-2 U/s.323 IPC
5. A-3 302 IPC
6. A1,A2 and A4 to A11 U/s.302 r/w S.149 IPC
7. A4 U/s.326 IPC
8. A2,A7 and A9 U/s.323 IPC
9. A1,A3,A5,A6,A8,A10& A11 U/s.324 IPC and on trial, Accused Nos.3 to 11 were found not guilty and they were acquitted of all the charges levelled against them but, appellants/accused Nos.1 and 2 were found guilty, convicted and sentenced to undergo imprisonments as detailed below.
Accused No. Finding Sentence
Accused No.1 Guilty U/s.307 IPC RI for five years and a fine of
Rs.1000/- in default one year RI
Accused No.1 Guilty U/s.302 IPC Life imprisonment and a fine of Rs.1000/-
in default one year RI
Accused No.2 Guilty U/s.323 IPC RI for three months
Accused No.2 Guilty U/s.302 IPC Life imprisonment and a fine of Rs.1000/-
in default one year RI
In respect of other charges, accused Nos.1 and 2 were found not guilty and acquitted of from those charges. The above sentences were ordered to run concurrently. Aggrieved over the judgment of the trial court founding them guilty, the accused Nos.1 and 2 have brought-forth the criminal appeal and while Criminal Revision No.228/2010 has been brought forth by the de-facto complainant aggrieved over the acquittal part of the trial court judgment.
2.Short facts necessary for the disposal of both the appeal and the revision could be stated thus:
(a)P.W.1 Mani @ Mariyaraj, P.W.2 Selvam, P.Ws.3 to 6 and one Thangam, the deceased in this case, and all the accused, eleven in number, are natives of Yagappanpatti village within the jurisdiction of the respondent police. All the accused persons and all the above witnesses belong to two different families. There was a criminal case pending in which accusations were made against the accused persons that they murdered one Periyamanikalai and Chinnamanikalai, who belonged to P.Ws.party. From the said time onwards, both the parties were under strained relationship and they were on inimical terms.
(b)On 29.10.1996, at about 12.00 Noon, when P.Ws.1 and 2, one Ashok and also the deceased Thangam were sitting on the pial of the house of P.W.1, accused Nos.1,2,3,5,6,8 to 11, all armed with deadly weapons, came over there in furtherance of their common object of murdering the deceased Thangam and also attacking others. On seeing the accused persons, all the above four persons were running into a field but, they were chased by the accused and accused No.1 cut P.W.1 and accused No.2 also bet P.W.1 with a stick. Accused No.3 attacked the deceased Thangam and accused No.1 also cut with aruval on the deceased Thangam and following the same accused No.2 caused injuries on P.W.2 with stick and accused No.10 pushed down P.W.1 on the ground. Accused Nos.2 and 4 also cut P.W.2 and others were also cut indiscriminately the deceased Thangam.
When there was a distressing cry, all the neighbours gathered and the accused persons ran away from the place of occurrence. P.W.1 immediately proceeded to the respondent Police Station, where P.W.12, the Sub-Inspector of Police, was on duty and gave Ex.P-1 complaint to P.W.12. Thereafter, P.W.1 and P.W.2 were sent for Government Hospital, Dindigul, for treatment.
(c)Based on Ex.P-1 Complaint, P.W.12 registered a case in Crime No.1417 of 1996 under Sections 147, 148, 307, 323, 324 and 302 IPC and Ex.P-17, the First Information Report, was sent to the Court through P.W.10, the Constable, and copies were sent to higher officers for further action.
(d)On 29.10.1996 at about 1.50 p.m., P.W.8, the Doctor, was on duty in the Government Hospital, Dindigul. He examined P.W.1, who was sent by the respondent police for treatment, and gave treatment for the injuries sustained by him. Ex.P-13 is the Accident Register Copy given to P.W.1. On the same day, at about 8.30 p.m., P.W.8 examined P.W.2, who was sent by the respondent for treatment, and gave treatment for the injures found on his body. Ex.P-14 is the copy of the Accident Register Copy given to P.W.2.
(e)P.W.13, the Inspector of Police, on receipt of a copy of Ex.P-17 FIR, took up the investigation, proceeded to the place of occurrence, inspected the same in the presence of P.W.7 and another and prepared Ex.P-10, the Observation Mahazar, and also drew Ex.P-18, the rough sketch. Thereafter, he conducted inquest on the body of the deceased Thangam in the presence of panchayatdars and witnesses and prepared Ex.P-19, the inquest report. He sent the body of the deceased for postmortem through P.W.11, the Constable, with Ex.P-15 Requisition. P.W.13 examined witnesses and recorded their statements. From the place of occurrence, P.W.13 recovered M.O.3 - a bloodstained Dhoti, M.O.4 - bloodstained earth and M.O.5 - sample earth under Ex.P-11 Mahazar attested by the same witnesses. At a distance 200 metres away from the place of occurrence, P.w.13 recovered M.O.6 - bloodstained shirt worn by the deceased under Ex.P-12 Mahazar attested by the same witnesses.
(f)On receipt of Ex.P-15 Requisition from P.W.l3, P.W.9, the doctor attached to Government Hospital, Dindigul, conducted postmortem at 12.30 p.m. on 30.10.1996 and on completion of postmortem he gave Ex.P-16, the postmortem certificate, opining that the deceased would appear to have died of shock and haemorrhage due to injury to vital organ brain and injury to right and left upper and lower limbs, prior to 18 to 26 hours prior to autopsy. After postmortem, P.W.11, the Constable, recovered M.O.7 - bloodstained vest and M.O.8 bloodstained brief, from the body of the deceased and handed over the same to the Inspector of Police.
(g)Pending investigation, at 12.30 p.m. on 01.11.1996, P.W.13 arrested accused Nos.7, 10 and 11 and when enquired them in the presence of P.W.5 and another, accused No.10 came forward to give a voluntary confessional statement, admissible portion of which is marked as Ex.P-2 and pursuant to which, the accused took and produced M.Os.9 to 11, three aruvals, and the same were recovered under Ex.P-3 Mahazar attested by P.W.5 and another. Thereafter the accused were subjected to judicial custody. P.W.13 examined some witnesses and recorded their statements. On coming to know that accused Nos.1,2 and 8 surrendered before the Court on 13.11.1996, P.W.13 took them into police custody and when they were enquired in the presence of P.W.6 and another, they came forward to give separate confessional statements, admissible portion of them were marked as Exs.P-4 to 6, pursuant to the same they took and produced three aruvals and they were recovered separately under Exs.P-7 to 9 Mahazars attested by P.W.6 and another. Thereafter they were again sent to judicial custody. P.W.13 examined witnesses and recorded their statements. On 18.12.1996 at about 5.00 a.m. P.W.13 arrested accused No.9 and when enquired, he came forward to give a confessional statement and the same was recorded in the presence of P.W.6 and another, pursuant to which the accused took and produced one wooden log. Thereafter the accused NO.9 was sent to judicial custody.
(h)P.W.13 gave Ex.P-20 Requisition to the court for sending the materials objects recovered in this case for chemical analysis. Since P.W.13 was transferred, P.W.14 took up the further investigation in the case. Upon perusal of the case file, he filed the final report against the accused under Sections 147, 148, 323, 324, 326, 307, 302 red with 149 IPC on 20.12.1997.
3.After committal proceedings, the case was taken on file by the Sessions Court in S.C.No.63/2008 and necessary charges were framed. To prove the charges against the accused, the prosecution examined 14 witnesses as P.Ws.1 to 14 and marked 20 documents as Exs.P-1 to P-20 and produced M.Os.1 to
12. On completion of the evidence on the side of the prosecution, when the accused was questioned under Section 313 of the Criminal Procedure Code about the incriminating circumstances found in the evidence of prosecution witnesses, they denied all of them as false. On the side of defence, neither oral evidence nor documentary evidence was let in. The trial court, after hearing the parties, took the view that the prosecution has proved certain charges against the appellants/accused Nos.1 and 2 beyond reasonable doubt, found them guilty thereunder and sentenced them as referred to above. Hence the appeal at the instance of the appellants/accused Nos.1 and 2. Insofar as the other charges levelled against accused Nos.1 and 2 and all the charges in respect of other accused, the trial judge found that the prosecution has not proved the case beyond reasonable doubt and hence a judgment of acquittal was recorded. Challenging the acquittal part of the trial court judgment, P.W.1, the defacto complainant, has brought forth the criminal revision.
4.Advancing arguments on behalf of the appellants/accused Nos.1 and 2, the learned senior counsel made the following submissions.
(a)In the instant case, according to the prosecution, the occurrence was taken place at 12.00 Noon on on 29.10.21996 and in the FIR eleven persons have been shown as the assailants and following the same, the Investigator filed the charge sheet and all the accused were actually tried for different offences. The prosecution mainly relied on the evidence of P.Ws.1,2,3 and 4 as witnesses, out of whom, P.W.3 and P.W.4 did not support the prosecution case and they turned hostile. Insofar as P.W.1 and P.W.2 are concerned, they were projected not only as eye-witnesses but also as injured witnesses and the prosecution mainly relied on their evidence and the trial judge has also acted on their evidence.
(b)The learned senior counsel would further submit that in the instant case the trial judge was not ready to believe the evidence of P.Ws.1 and 2 in respect of participation of other accused, namely accused Nos.3 to 11, and narrated the reasons for their acquittal and the very same reasons are equally applicable to the appellants/accused Nos.1 and 2 but, the trial judge has miserably failed in finding them guilty of the charge of murder.
(c)Learned senior counsel would further add, according to P.W.9, the postmortem doctor, and as well as Ex.P-16, the postmortem certificate, 21 injuries were found on the body of the deceased and according to him, the deceased Thangam died due to multiple injuries caused to him. A charge has been specifically made under Section 302 IPC by the trial judge that it was the 3rd accused who attacked the deceased and as per the evidence of postmortem doctor the injury caused by accused No.3 was fatal and as a result of which he died and, therefore, other accused persons were charged under Sections 323, 324, 302 read with 149 IPC but unfortunately accused No.3 has been acquitted.
(d)Learned senior counsel would further submit that in the instant case so many aspects were failed to be noticed by the trial judge. The occurrence has taken place, according to the prosecution, at 12.00 Noon and even the case has been registered by P.W.12, the Sub-Inspector of Police, at 1.30 p.m. but, the FIR has reached the Court only at 8.15 p.m. and the Magistrate Court is situated just within a short distance which could be reached in five minutes by way of a two wheeler and in 15 minutes by walk and for this inordinate delay the prosecution has no explanation to offer. Further, Ex.P-10, the observation mahazar, has come into existence at 2.30 p.m. and Ex.P-11 Recovery Mahazar has come into existence at 5.30 p.m. and the Investigator has candidly admitted in his evidence that these documents have come into existence even before the FIR reaching the Court and thus it would clearly indicate that all these documents were just prepared after some time to suit the convenience of the prosecution and all the accused persons, eleven in number, have been roped in. Added further the learned senior counsel, even in the said observation mahazar Ex.P-10 and Recovery Mahazar Ex.P-11, the crime number has not been found mentioned. Had it been really true that the FIR has come into existence as put-forth by the prosecution, there could not have been any impediment for the Investigation Officer in putting the crime number in these documents and this would clearly indicate that FIR has not come into existence at the time when it is alleged to have been prepared.
(e)Added further the learned counsel, Ex.P-13, the accident register copy with regard to P.W.1, and Ex.P-14, the accident register copy with regard to P.W.2, have come into existence at the earliest point of time and in both the documents the details as to the place where the occurrence was taken place and the number of assailants, whether known or known, were not so stated and this would clearly indicate that FIR has come into existence at a latter point of time and it is thoroughly a fabricated one.
(f)P.W.2 has categorically admitted that immediately after he was cut, P.W.1 ran away from the place and thereafter Thangam was attacked by the accused and thus P.W.1 could not have seen the occurrence at all. It is also admitted by him that after he was attacked, P.W.1 ran to a distance of quarter kilometre from the place where the deceased Thangam was attacked and there was lot of blood found in the place where he was standing, but the investigator has not recovered any bloodstained earth either from the place where P.W.1 was standing or P.W.2 was standing after they were attacked. Added further, the time of occurrence as well as the place of occurrence are found to be different.
(g)Insofar as witnesses are concerned, even it is an astonishing fact that P.W.1 though claimed to be an eye-witness and injured in the same occurrence and he was given treatment in the hospital for about 45 days, the investigator has not recorded his statement immediately but, his statement, as admitted by P.W.1 and also by the investigator, was recovered after 40 or 45 days from the date of occurrence. The reason adduced was he was under the treatment but the injuries caused were not grievous. It is not the case of the medical opinion canvassed that P.W.1 was unconscious. Under such circumstances, recording of the statement of P.w.1 after 40 or 45 days from the occurrence date would clearly indicate that it has been actually created for the purpose of the case. All these would clearly indicate that the prosecution has miserably failed to prove its case.
(h)Apart from the above, there is also lot of controversies and inconsistencies in the prosecution case. So far as charge under Section 302 is concerned, accused No.3 was shown to have attacked the deceased with aruval and others are concerned a charge under Section 302 read with 149 IPC was framed and a perusal of charge No.8 would indicate that accused Nos.2, 7 and 9 were actually armed with stick only. P.W.2 has candidly admitted that police came to the occurrence place within 45 minutes. All would clearly indicate that the prosecution case is filled with stories and the evidence adduced was with full of lacuna, infirmities and also it is inconsistent and thus the trial judge when rejected the case of the prosecution in respect of accused Nos.3 to 11 should have also rejected the prosecution case in entirety as not proved but has taken an erroneous view that the appellants/accused Nos.1 and 2 are guilty of the charge of murder and therefore the judgment of the trial Court insofar as convicting the appellants/accused Nos.1 and 2 has got to be set aside.
6.The Court heard the learned counsel appearing for the revision petitioner/defacto complainant. According to him, the trial judge has erroneously acquitted the other accused persons. In the instant case, the prosecution has examined four eye-witnesses, out of whom P.Ws.1 and 2 have categorically spoken about the presence of all the accused persons and their participation in the commission of crime and the witnesses also stated that the accused persons attacked the witnesses and also the deceased Thangam and after the occurrence P.W.1 and P.W.2 were taken to the hospital and given treatment by P.W.8, the Doctor, and the copies of accident registers were marked as Ex.P-13 and P-14 and apart from that in the postmortem certificate the injuries found on the deceased were noted and thus this medical evidence is in consistent with the evidence of ocular testimony. Under such circumstances the trial judge should have found that all the accused have formed an unlawful assembly and in furtherance of their common object they attacked the witnesses and the deceased and hence the trial judge has taken an erroneous view in recording an order of acquittal insofar as accused Nos.3 to 11 are concerned and hence it is a fit case where reappraisal of evidence becomes necessary and therefore the respondents 1 to 9 have got to be dealt with in accordance with law.
7.The court heard the learned Additional Public Prosecutor appearing for the State on the submissions made by the learned senior counsel for the appellants/accused No.1 and 2 and also the respective learned counsel appearing for respondents 1 to 9 in the criminal revision and paid its anxious considerations to the rival submissions and perused the materials available on record.
8.It is not in controversy that one Thangam was done to death in an incident that had taken place in the day hours on 29.10.1996. Pursuant to the complaint given by P.W.1, a case came to be registered by P.W.12, the Sub- Inspector of Police, against all the accused and the investigation was taken by P.W.13, the Inspector of the Circle. Following the inquest made by P.W.13 and preparation of Ex.P-19, the inquest report, the dead body was subjected to postmortem by P.W.19, the doctor, and he has given a categorical opinion in his evidence before the Court as well as in Ex.P-16, the postmortem certificate, that Thangam died out of shock and haemorrhage due to injury to vital organ brain and injury to right and left upper and lower limbs. The fact that Thangam died out of homicidal violence was never disputed by the appellants before the trial court and therefore the trial judge was right in recording so. Apart from that P.W.1 and P.W.2 were also attacked in the same transaction and they were immediately taken to the hospital and they were treated by P.W.8 the Doctor and he has noticed the injuries on their bodies and gave Ex.P-13 and P-14, the accident register copies.
9.In order to prove the charges against the appellants/accused Nos.1 and 2 as well as the other accused, namely respondents 3 to 11 in the criminal revision, the prosecution marched P.Ws.1 to 4 as eye-witnesses, out of whom P.W.3 and 4 did not support the prosecution and turned hospital. The trial judge, on the same set of evidence, though found accused Nos.1 and 2 guilty, has recorded an order of acquittal in respect of all other accused, namely A-3 to A-
11. It is settled proposition of law that in a given case like this where on the basis of same evidence if some of the accused persons are found guilty on the strength of the evidence adduced, the Court can record an order of acquittal in respect of other accused. In the instant case, after the careful scrutiny of the entire materials available, the Court has to disagree with the judgment of the trial court and in the considered opinion of the Court, both the appellants/accused Nos.1 and 2 should also have been acquitted in view of the following circumstances noticed by the Court.
10.The specific case of the prosecution was that the occurrence has taken place at 12.00 Noon on 29.10.1996 when all the accused persons, eleven in number, armed with deadly weapons, in furtherance of common object came to the place of occurrence and attacked the deceased Thangam and also other witnesses. The prosecution has brought forth some motive which impelled the accused to act so. The evidence of P.Ws.1 and 2 and other documents relied on by the prosecution would make it doubtful whether the prosecution has actually brought to the notice of the court the genesis of the occurrence.
11.According to the prosecution, the occurrence has taken place at about 12.00 Noon on 29.10.1996. Ex.P-1 Complaint, according to P.W.12, the Sub-Inspector of Police, was given by P.W.1 and a case came to be registered at 1.30 p.m. at the police station. P.W.1 was examined by P.W.8 Doctor and P.W.2 was also examined by the same Doctor and two Accident Register Copies have come into existences, which are marked as Exs.P-13 and P-14. It is an admitted fact that in Ex.P-13 Accident Register Copy with regard to P.W.1 it has been recorded that the occurrence was at 12.00 Noon and in Ex.P-14 Accident Register Copy with regard to P.W.2 it is stated that the occurrence was at 2.00 p.m. If these two documents are considered, it is highly doubtful whether Ex.P-1 complaint could have come into existence at about 1.30 p.m. as put-forth by P.W.12, the Sub-Inspector of Police. If really Ex.P-1 has come into existence at 1.30 p.m. as put-forth by P.W.12, the Sub-Inspector of Police, where it is stated that 11 persons were the assailants, there was no reason why Exs.P-13 and P-14 do not contain the details as to the number of assailants, whether known or unknown and they also do not contain the place of occurrence. Apart from this, Ex.P-10, the observation mahazar and Ex.P-11 the mahazar under which M.Os.3 to 5 were recovered from the place of occurrence, which have come into existence at about 2.30 p.m. and 5.30 p.m. respectively and prepared by the Investigation Officer, do not contain the crime number. Had really the Inspector of Police received copy of FIR, he could have noted the crime number in all these documents and this would also indicate that FIR has not come into existence as put-froth by the prosecution.
12.The strong circumstance which was against the prosecution was that FIR was received by the Judicial Magistrate at 8.15 p.m. Admittedly, the Magistrate Court is situated within a short distance and a person could reach the Court from the respondent Police Station within 15 minutes by walk. It is the evidence of P.W.10, the Constable, that FIR was handed over to him immediately at 2.00 p.m. If to be so, one would naturally expect that a reasonable and acceptable explanation for the delay which has occasioned in the FIR reaching the court at 8.30 p.m. But, in the instant case, not only the explanation is not available but also all the above circumstances would clearly indicate that FIR could not have come into existence as put-forth by the prosecution and if really the same came into existence as alleged by the prosecution, then Exs.P-10 and P-11 would have contained the crime number.
13.It is pertinent to point out that the postmortem doctor P.W.9 has given opinion in Ex.P-16, the postmortem certificate, that Thangam died due to multiple injuries. A specific charge was levelled against accused No.3 under Section 302 IPC for attacking the deceased Thangam with aruval and the injury caused by him has caused the death of the deceased and all other accused have been attributed with some overt acts and therefore a charge was framed against them under Section 302 read with 149 IPC but, the trial judge was not ready to believe the evidence in respect of Accused Nos.3 and accused Nos.4 to 11.
14.Added further, in the instant case, P.W.1 and P.W.2 are not eye-witnesses. According to P.W.1, he was attacked first and thereafter the deceased Thangam was attacked and others were also attacked Thangam indiscriminately. According to P.W.2, immediately after he sustained injuries, P.W.1 ran away and therefore he could not have seen the occurrence. Further, it is pertinent to point out that the distance between the place of occurrence Where Thangam was attacked and the place to which P.W.1 ran, according to P.W.2, was quarter kilometre and thus the prosecution was unable to fix the place of occurrence also and the bloodstained earth was not recovered from the place where P.W.1 and P.W.2 were standing after the occurrence and this creates further doubt in the prosecution case.
15.It is further to be pointed out that P.W.1 was not only an eye-witness but also an injured witness. He was taken to the hospital and P.W.8 Doctor has given treatment to him and Ex.P-13, the Accident Register copy, given to him is also available. It is not the case of the prosecution that P.W.1 was either unconscious or could not speak. Had it been true, he could not have given Ex.P-1 Complaint at all to P.W.12, the Sub-Inspector of Police. But, he was interrogated by the Investigation Officer after 40 or 45 days. It is admitted by P.W.1 as well as by the Investigation Officer that the statement of P.W.1 was recovered after 40 or 45 days but, the Investigation Officer was unable to give any reason how such an inordinate delay was caused, It is settled proposition of law that merely because the statement of eye-witness was recorded with delay, his evidence need not be discarded. But, in the instant case, if all other attendant circumstances are looked into by the Court coupled with the fact that P.W.1, who claims to be not only eye-witness but also an injured witness, has been examined by the Investigator after 45 days of the occurrence and his statement was recorded, the delay caused throws a doubt on the prosecution case.
16.Thus, when all the materials are scrutinized, it comes to light that the prosecution is unable to show which was the correct time of occurrence and which was correct the place of occurrence and further the evidence of P.Ws.1 and 2, in view of lot of discrepancies on the major particulars, becomes doubtful and all would go to show that though the prosecution had a case to place before the Court it did not place its case properly as to the origin and genesis of the occurrence and when and in which place the occurrence was taken place. In the absence of the same, a correct decision cannot be taken by the Court of law that the appellants are also guilty of the charges levelled against them.
17.Now, coming to the contentions of the learned counsel for the revision petitioner in criminal revision that number of eye-witnesses are examined and they have spoken about the presence of all the accused persons armed with weapons and also their causing of injuries on P.W.1, P.W.2 and the deceased, which are noticed in Accident Register copies and postmortem certificate and therefore a judgment of conviction should be rendered in respect of other accused also cannot be countenanced. It is true that when sufficient evidence was available, one has got to be found guilty. But, in the instant case, when the materials placed are pointing to the lacuane and infirmities, it would be highly unsafe to come to a conclusion that the appellants/accused Nos.1 and 2 are guilty of the charges levelled against them. Under the circumstances, the judgment of trial court has got to be se aside insofar as it found the appellant/accused Nos.1 and 2 guilty and they have to be acquitted of the charges under which they were found guilty. Consequently, the criminal revision is liable to be dismissed.
18.Accordingly, the criminal appeal No.226/2009 is allowed and the judgment of the trial court insofar as finding the appellant No.1 guilty under Sections 307 and 302 IPC and the appellant No.2 guilty under Section 323 and 302 IPC and imposing sentences thereunder on the appellants is set aside and they are acquitted of the said charges. The fine amount, if any, paid by the appellants are directed to be refunded. The appellants are directed to be set at liberty forthwith, unless their presence, in accordance with law, is required in connection with any other case. The criminal revision petition fails and the same is dismissed confirming the acquittal part of the judgment of the trial court.
gb To
1.The Principal Sessions Judge, Dindigul District, Dindigul,
2.The Additional Sessions Judge, Fast Track Court, Dindigul.
3.The Inspector of Police, Dindigul West Police Station, Dindigul District.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.