Madras High Court
Sakthivel vs State : Rep. By on 28 October, 2009
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.10.2009 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.R.C.No.1297 of 2005 Sakthivel ... Petitioner Vs. State : Rep. by Inspector of Police Kadathur Police Station Erode District ... Respondent (Cr.No.505/2001) Prayer: Criminal Revision Case filed under Sections 397 and 401 Cr.P.C., against the judgment and conviction dated 17.09.2005 made in C.A.No.50/2005 on the file of the Additional Sessions Judge (Fast Track Court No.2), Gobichettipalayam modifying the judgment and conviction dated 31.01.2005 made in S.C.No.177 of 2003 on the file of the I Additional Assistant Sessions Judge, Gobichettipalayam. For Petitioner : Mr.R.T.Doraisamy For Respondent : Mr.R.Muniapparaj, Govt. Advocate (Crl.Side) O R D E R
The accused, who was prosecuted for an offence punishable under section 307 IPC but convicted and sentenced to undergo rigorous imprisonment of seven years and to pay a fine of Rs.1,000/- with a default sentence of three months rigorous imprisonment in case of default in payment of fine for an offence punishable under Section 326 IPC by the trial court, namely I Additional Assistant Sessions Judge, which conviction was confirmed but the sentence was reduced to three years rigorous imprisonment in an appeal preferred by him, namely C.A.No.50/2005, on the file of Additional Sessions Judge (Fast Track Court No.2), has come forward with the present criminal revision case questioning legality and correctness of the said judgment of the lower appellate court confirming the conviction recorded by the trial court for an offence punishable under section 326 IPC and praying for his acquittal altogether.
2. A case was registered on the file of Kadathur police station as Cr.No.505/2001 based on the statement of P.W.1 -Vijayalakshmi to the effect that, due to rivalry caused in the local body election in which the nomination of the wife of the revision petitioner to contest the election for the post of President of Kadakkarai Panchayat was rejected by the Returning Officer, the petitioner, with the intention of causing death to the injured (de-facto complainant), splashed Sulphuric Acid on her face at about 8.00 or 8.30 p.m on 04.10.2001 when she was on her way to her house after purchasing milk from P.W.8-Palaniammal for preparing tea to be supplied to a number of persons who had assembled in her house for having a discussion regarding the strategy to be adopted in the local body election. The case was investigated by P.W.24-N.Karunakaran, Inspector of Police, Nambiyoor Police Station, i/c Kadathur Police Station. After completion of investigation, he submitted a final report on the file of the learned Judicial Magistrate, Gobichettipalayam against the petitioner herein alleging commission of an offence of attempt to commit murder punishable under Section 307 IPC. The said final report was taken on file by the learned Judicial Magistrate, Gobichettipalayam as P.R.C.No.15/2003 and the case was committed for trial to the Principal Sessions Judge of Erode following the procedure for committing the case involving offences exclusively triable by a Court of Sessions after furnishing the copies of the documents proposed to be relied on by the prosecution in the trial to the accused persons (the petitioner herein). The case was taken on file by the learned Principal Sessions Judge, Erode as S.C.No.177 of 2003 of the Erode Sessions division and made over to the court of I Additional Assistant Sessions Judge, Gobichettipalayam for disposal according to law.
3. Necessary charge was framed in the trial court for an offence under Section 307 IPC and the case was tried pursuant to the plea taken by the accused (petitioner herein) claiming to be not guilty. In order to prove the said charge, as many as 25 witnesses were examined as P.Ws.1 to 25, twelve documents were marked as Exs.P1 to P12 and one material object was produced as M.O.1 on the side of the prosecution. After the evidence on the side of the prosecution was over, the petitioner herein/accused was questioned under Section 313(1)(b) regarding the incriminating materials found in the evidence adduced on the side of the prosecution, whereupon he claimed them to be false and reiterated his stand that he was innocent. No witness was examined and no material object was produced, but only one document was marked as Ex.D1 on the side of the accused (petitioner herein).
4. The trial court, after hearing the arguments advanced on either side, considered the evidence in the light of such arguments, and upon such consideration came to the conclusion that the act of splashing sulphuric acid on the face of P.W.1 had been proved by the prosecution beyond reasonable doubt. However, holding that the same would not amount to an offence of attempt to murder punishable under Section 307 IPC and on the other hand, the same would amount to a lesser offence, namely an offence punishable under Section 326 IPC, the trial judge convicted the petitioner herein/accused for the said offence with rigorous imprisonment for a period of 7 years and with a fine of Rs.1,000/- with a default sentence of three months rigorous imprisonment in case of default in payment of fine.
5. The said conviction and sentence were challenged by filing a criminal appeal in C.A.No.50/2005 on the file of the Principal Sessions Judge, Erode. The said appeal was made over to the Additional Sessions Judge (Fast Track Court No.2), Gobichettipalayam for disposal according to law. The learned Additional Sessions Judge (Fast Track Court No.2), Gobichettipalayam (lower appellate judge), by his judgment dated 17.09.2005, confirmed the conviction but reduced the sentence from 7 years rigorous imprisonment to three years rigorous imprisonment with no change in the fine amount.
6. Aggrieved by and challenging the same, the present criminal revision case has been preferred by the petitioner herein/accused for the reasons set out in the grounds of Criminal Revision Case, praying that the conviction recorded by the trial court and confirmed by the lower appellate court should be set aside and the petitioner/accused should be acquitted holding him not guilty of the said offence or any lesser offence.
7. The arguments advanced by Mr.R.T.Doraisamy, learned counsel for the petitioner in the Criminal Revision Case and by Mr.R.Muniapparaj, learned Government Advocate (Crl.Side) representing the respondent police were heard. The materials available on record were also perused.
8. The point that arises for consideration in the criminal revision case is as follows:
Whether the conviction recorded by the trial court, which was confirmed by the lower appellate court for an offence punishable under Section 326 IPC is illegal, unsustainable and liable to set aside in exercise of the revisional powers of this court under Section 397 r/w 401 Cr.P.C.?
9. The case of the prosecution is as follows:-
i) One Rajamani wife of the petitioner herein had submitted her nomination papers for contesting the election to the post of President of Kadakkarai Panchayat. P.W.2-Kuppusamy, the husband of P.W.1-Vijayalakshmi and others had fielded one Poongodi, wife of Palanisamy as the candidate for the post of Panchayat President. At the time of scrutiny of nomination papers on 03.10.2001, P.W.2-Kuppusamy and P.W.9-Chithirai Selvan raised objection for accepting the nomination of Rajamani, wife of the petitioner herein on the ground that her name was not found in the voters' list and that she had completed only 19 years of age. In addition to the oral objection raised by them, P.W.9-Chithirai Selvan gave an objection petition in writing. Based on the said objection, the nomination of Rajamani, wife of the petitioner herein was rejected by the Returning officer. The same provided the motive for the petitioner/accused to make an attempt on the life of P.W.1-Vijayalakshmi by throwing acid at her.
ii) Subsequent to the rejection of the nomination paper of Rajamani, the petitioner herein/accused and his father caused intimidation to P.W.2 at 5.00 p.m on 03.10.2001 itself proclaiming that they would destroy him and his family. Thereafter, at about 7.00 p.m on 04.10.2001, P.W.5-Dhanushkodi, P.W.7-Subramanian, P.W.10-Palanisamy, P.W.11-Balasubramanian and some other persons assembled in the house of P.Ws.1 and 2 to stock out the strategy of election campaign. At that point of time, P.W.1 was asked to prepare coffee for them. As no milk was available with her at that point of time for preparing coffee, she asked P.W.3-Ramayal, the mother-in-law of P.W.1, to get milk from P.W.8-Palaniammal. After waiting for some time in despair, P.W.1 herself went to the house of P.W.8-Palaniammal, where P.W.3 was still waiting to get milk. On P.W.1's arrival, P.W.3 left the house of P.W.8 instructing P.W.1 to get the milk and bring it. Within a short time thereafter, P.W.1 got the milk from P.W.8 and proceeded towards her residence. On her way to her residence from the house of P.W.8-Palaniammal, at about 8.00 p.m the accused throw Sulphuric acid on the face of P.W.1, proclaiming to kill her because her husband had prevented the wife of the petitioner/accused from contesting the election. On hearing the hue and cry made by P.W.1-Vijayalakshmi, P.Ws.2, 3, 6, 7, 10, 11 and others rushed to the place of occurrence. Though P.W.10 and 11 tried to chase and catch the petitioner herein/accused by running in the direction indicated by P.W.1, they were unable to catch him as he disappeared in dark. P.W.13-Sakthivel saw the accused running at the corner of the street.
iii) Thereafter, P.W.1 was taken to Government Hospital, Gobichettipalayam in a taxi car where she was given first aid treatment by P.W.18-Dr.G.P.Dhanapal, who also prepared Ex.P4-Accident Register. After first aid, the Medical Officer at Government Hospital, Gopichettipalayam referred P.W.1 to Government Hospital, Erode for better management. But, P.W.1 was taken to Aravind Eye Hospital, Coimbatore instead of Government Hospital, Erode, where she was given further treatment and referred to Coimbatore Medical College Hospital, Coimbatore. Subsequently also, she was treated at Aravind Eye Hospital, Coimbatore. Thus, P.W.1 had been treated in all the three hospitals. While she was in Aravind Eye Hospital, Coimbatore, her statement was recorded at 11.00 a.m on 05.10.2001 by P.W.20-Arusamy, Sub-Inspector of Police, Kadathur Police Station, who also registered a case at 2.00 p.m on 05.10.2001 as Cr.No.505/2001 on the file of the said police station. The first information report prepared based on Ex.P1-statement of P.W.1 is Ex.P9.
iv) P.W.24-Mr.N.Karunakaran, the then Inspector of Police Station, Nambiyoor Police Station, i/c Kadathur Police Station took up the investigation of the case, visited the place of occurrence, prepared Ex.P2-Observation Mahazar and Ex.P11-Rough sketch in the presence of witnesses and recovered M.O.1-bottle containing 50 ml liquid under Ex.P3-Seisure mahazar. He had also arranged for taking photographs of the scene of occurrence engaging P.W.12 on the very same day (05.10.2001). P.W.24 arrested the petitioner herein/accused at 5.30 p.m near cotton mill bus stop on the Irugalur-Nambiyoor road when he was identified by P.W.17-Rajan in the presence of witnesses P.W.17 and P.W.16-Kurugan (Village Administrative Officer). When the liquid found in the bottle-M.O.1 was sent through the court to the Forensic Lab, a report was received confirming the liquid to be Sulphuric acid. The Investigating Officer (P.W.24) collected other materials including the certificates from the Medical Officers, completed investigation and submitted a final report against the petitioner alleging commission of an offence punishable under Section 307 IPC.
10. The victim, whose statement formed the basis of the FIR has been examined as P.W.1. P.W.2 is the husband of P.W.1. P.W.3 is none other than the mother of P.W.2 and mother-in-law of P.W.1. P.W.4-Palaniammal is also a close relative of P.Ws.1 to 3. From her evidence itself it is obvious that P.W.4 is the elder sister of P.W.3. P.Ws.5 to 7, P.W.10 and P.W.11 are the witnesses examined on the side of the prosecution to show that they were persons who had assembled in the house of P.Ws.1 and 2 and on hearing the cry of P.W.1 they went to the place of occurrence and ascertained from her that it was the petitioner herein/accused who threw acid at her. It is the evidence of none of the said witnesses that they saw the accused throwing acid at P.W.1 or they saw the accused running from the place of occurrence after throwing acid at P.W.1. On the other hand, all the above said witnesses have deposed to the effect that they ran in the direction indicated by P.W.1 to be the direction in which the petitioner/accused was running and their attempt became unsuccessful, as the petitioner/accused disappeared in dark. A close scrutiny of the evidence of the above said witnesses will make it clear that none of the above said witnesses actually saw the accused either throwing the acid at P.W.1 or running from the place of occurrence.
11. There are ample evidence to show that P.W.1-Vijayalakshmi was taken to Government Hospital, Gobichettipalayam with acid burns on the right side of her face and that she was treated for the said injuries with first aid at Government Hospital, Gobichettipalayam, then at Aravind Eye Hospital, Coimbatore, thereafter at Coimbatore Medical College and Hospital, Coimbatore and then once again at Aravind Eye Hospital, Coimbatore. The evidence of P.W.2 and P.W.3 are also to the same effect. They also have not stated that they saw the accused throwing acid at P.W.1 or while he was running from the place of occurrence. On the other hand, their evidence is to the effect that they heard P.W.1 crying that her eye was affected as the petitioner/accused had thrown acid at her and run away from that place and that the person who ran after the accused could not catch him.
12. P.W.1-the victim and P.W.4-Palaniammal are the only persons, who have been examined as the persons who saw the petitioner/accused committing the alleged offence by throwing acid at P.W.1. As already pointed out, P.W.4 is a close relative of P.Ws.1 to 3. As rightly pointed out by the learned counsel for the petitioner, a close scrutiny of her evidence will show the improbability of her version. It is her evidence that she saw the petitioner/accused just before the commission of the offence at a distance of five feet and that when the gap was narrowed down to two feet the accused threw acid on P.W.1. However, she would also state that the acid thrown by the petitioner/accused did not come into contact with her and on the other hand, she would venture to say that her saree got burnt and that she also sustained injuries when she embraced P.W.1. If it is so, she would have informed the police about the damage caused to her saree and the police would not have failed to recover the same. As there is no evidence to show that her saree was recovered, the said evidence of P.W.4 becomes unreliable.
13. P.W.8 has admitted in her evidence that she had no personal knowledge of the act of the accused throwing acid at P.W.1. P.W.9-Chithiraiselvan is admittedly not an eye witness. He simply speaks about the rejection of the nomination of Rajamani, the wife of the petitioner. His further testimony is to the effect that he heard the news of acid attack on P.W.1 and thereafter he went to P.W.1's evidence where he was informed that it was the petitioner/accused who did it. The other witness is P.W.13-Sakthivel. According to his evidence, he was in his tailor shop at about 8.00 p.m he came out from his shop on having when he heard a cry "Inah mk;kh" and saw the accused running towards east in the street. It is his evidence that he saw the accused in the illumination caused by the street light. It is not his evidence that he was one of the two persons who chased the accused. On the other hand, he would state that he saw two other persons chasing the accused. There are only three witnesses, namely P.W.1, P.W.4 and P.W.14 who have given evidence in support of the prosecution case that it was the petitioner/accused who threw acid at P.W.1. Out of the three witnesses, P.W.4 being a close relative of P.Ws.1 to 3 and hence an interested witness, it becomes imperative to put her evidence to the test of careful scrutiny. Her evidence to the effect that she saw the accused throwing acid at P.W.1 seems to be improbable and unreliable as pointed out supra, especially, when she chose to say that her saree also got burnt and she also sustained injuries. Then the remaining direct evidence are the testimonies of P.Ws.1 and P.W.13. P.W.13 did not say that he saw the accused throwing acid at P.W.1. On the other hand, he has simply stated that, after hearing cry of P.W.1, he saw the accused running towards east at the turning of the street. Therefore, at the best, the evidence of P.W.13 shall be a corroborative and circumstantial piece of evidence in support of the evidence of P.W.1 that it was the accused who threw acid at her.
14. Let us now consider the evidentiary value of the testimony of P.W.1 in this regard. It is the assertion made by P.W.1 that it was the accused who committed acid attack on her. According to the prosecution version, immediately after the occurrece, she was taken to Government Hospital, Gobichettipalayam for treatment. P.W.18-Dr.G.P.Dhanapal was the person who gave first aid treatment after preparing the accident register under Ex.P4. As per the contents of Ex.P4-Accident Registrer and the testimony of P.W.18, P.W.1 informed the doctor (P.W.18) that some unknown persons threw acid on her face at 8.00 p.m on 04.10.2001.
15. Pointing out the said evidence of P.W.18 and the particulars found in Ex.P4, the learned counsel for the petitioner has submitted that the same will be enough to disbelieve the evidence of P.W.1 asserting that it was the accused who threw acid at her and that she did not inform the doctor that the acid attack was made by some unknown persons. It is his contention that the implication of the petitioner/accused was done as an after thought as a result of deliberation. In support of his contention, the learned counsel for the petitioner drew the attention of the court to the evidence of P.W.25-Dr.R.Ravindran. It is the clear evidence of P.W.25 that P.W.1-Vijayalakshmi did not mention the name of the person who threw acid at her and that she informed him that she was attacked with acid by unidentifiable persons. The evidence of P.W.25 corroborates the evidence of P.W.18 and the particulars found in Ex.P4 is to the effect that P.W.18 was informed by P.W.1 that she was attacked by some unknown persons using acid.
16. The learned counsel for the petitioner also drew the attention of the court to the evidence of P.W.23-Dr.Revathi, which is to the effect that before coming to Aravind Eye Hospital, Coimbatore, P.W.1 had been given first aid treatment at Government Hospital, Gobichettipalayam and then at Government Hospital, Erode and that P.W.23 has referred to an accident register, describing the wounds, issued at Government Hospital, Erode. It is the clear evidence of P.Ws.23 and 25 and it is also the admitted case of the prosecution that on 05.10.2001 itself at about 5.30 p.m, P.W.1 was referred to Coimbatore Medical College Hospital, Coimbatore; that P.W.1 was treated at Coimbatore Medical College Hospital, Coimbatore and then again brought to Aravind Eye Hospital for further treatment. When she was admitted in the Aravind Eye Hospital for the second time? - is not known. But the prosecution has not chosen to produce the accident registers prepared at Government Hospital, Erode. On the other hand, it is the evidence of the prosecution witnesses (except P.W.23) that P.W.1 was taken to Aravind Eye Hospital, Coimbatore straight away from Government Hospital, Gopichettipalayam without taking here to Government Hospital, Erode as recommended by P.W.18. In the light of such evidence, we cannot find fault with the failure to produce any Accident Register/other documents issued at Government Hospital, Erode. On the other hand, the prosecution could have produced the document prepared at Aravind Eye Hospital at the time of admitting P.W.1 for the first time in the said hospital for treatment. The prosecution has also failed to produce the Accident Register, Admission and Discharge certificate issued at Coimbatore Medical College Hospital, Coimbatore. The prosecution has also failed to produce the case sheets maintained at Aravind Eye Hospital and Coimbatore Medical College Hospital, Coimbatore. As rightly pointed out by the learned counsel for the petitioner/accused, the non-production of the said documents, in the light of the admission made by P.Ws.18 and 25 that they were informed by P.W.1 that some unknown persons threw acid at her, will give rise to an adverse inference against the prosecution that the said documents were not produced as the same were against the prosecution version.
17. It is the further contention of the learned counsel for the petitioner that there was an inordinate delay in lodging the FIR and a close consideration of the evidence would make it obvious that the time gap had been utilised to deliberate and concoct a case implicating the petitioner/accused. It is also the contention of the learned counsel for the petitioner that Ex.P1 could not be the first information received by the police regarding the alleged commission of the offence by the petitioner/accused and that the earlier information received by the police were suppressed and the case has been concocted against the respondent/accused. According to P.W.20-Arusamy, the then Sub-Inspector of Police, Kadathur Police Station, who is said to have received intimation from the Government Hospital, Gobichettipalayam and proceeded towards the said hospital at the first instance and then to Aravind Eye Hospital, Coimbatore to record the statement of P.W.1, he met P.W.1 at about 11.00 a.m on 05.10.2001 and recorded her statement Ex.P1 at 11.30 a.m. It is his further evidence that he returned back to the police station and registered a case at 2.00 p.m and the Inspector of Police, namely P.W.21 started investigation at 2.30 p.m. But the evidence of other prosecution witnesses will go to show that major part of the investigation was done and many witnesses were examined in the forenoon of 05.10.2001 itself. According to P.W.2, he came back from Aravind Eye Hospital on 05.10.2001 at about 5.30 a.m and thereafter police came to his residence and enquired him. According to P.W.3 and P.W.4, police came to the village at 10.00 a.m on the day subsequent to the date of occurrence. P.W.5 also has stated that he was examined in the morning on the day subsequent to the date of occurrence. P.W.7's evidence is to the effect that he was examined by the police at about 9 or 10.00 a.m on 05.10.2001. P.W.9's evidence is to the effect that she was examined at about 8.00 a.m on 05.10.2001. P.W.10's evidence is to the effect that he was examined before 9.00 a.m on 05.10.2001 at Coimbatore. The evidence of the above said witnesses will show that the said witnesses were examined by the police before 11.00 a.m on 05.10.2001, the time at which P.W.1 was allegedly examined by P.W.20 and Ex.P1-Statement was recorded. The crucial point in this case is that all those witnesses were examined, as per their testimonies, before 2.00 p.m on 05.10.2001, the time of registration of case. The same will make it obvious that earlier statements could have been suppressed and the case could have been concocted after deliberation to implicate the petitioner/accused and that is why there was a delay in registering the FIR. It is also obvious that Ex.P1 could not be the information regarding the commission of crime received by the police first in point of time. The points discussed above will, at least, give rise to a reasonable suspicion that there was an investigation before recording Ex.P1-statement and registering Ex.P9-First Information Report and that the case has been concocted after discussion and deliberation as a result of which the petitioner/accused was implicated.
18. The said observation will gain strength by the fact that though telephone facilities were available in the village, none of the prosecution witnesses chose to inform the police over phone. As per the evidence of some of the witnesses, P.W.1 was taken in a car to Government Hospital, Gobichettipalayam via Nambiyoor and according to the evidence of other witnesses she was taken to Gobichettipalayam via Kadathur. In either case, they should have passed through the police station either at Nambiyoor or at Kadathur. Though about hundreds of persons went to Government Hospital, Gobichettipalayam, it is quite surprising to hear from the prosecution that none of them chose to inform the police at Kadathur police station or the circle office at Nambiyoor.
19. Yet another vital discrepancy is found in the evidence of the prosecution witnesses regarding recovery of M.O.1-bottle. M.O.1-bottle was allegedly recovered from a place near the scene of occurrence under Ex.P3-seizure mahazar at about 3.30 p.m on 05.10.2001. Out of the witnesses examined as P.Ws.1 to 11, none has deposed about the recovery of M.O.1-bottle. On the other hand, one Easwaran has been examined as P.W.12 to show that he took photographs of the scene of occurrence and M.O.1-bottle at the direction of the Investigating officer. It should be noticed that the photographs allegedly taken by P.W.12 have not been produced on the side of the prosecution. According to P.W.24 he arranged P.W.12 to take photographs after 2.30 p.m. But, P.W.12 would say that he was taken to the place of occurrence by the police at 8.00 a.m on the day subsequent to the date of occurrence. The other witness examined in order to prove recovery of M.O.1-bottle are P.W.16-Kuruvan (Village Administrative Officer), P.W.20 and P.W.24. P.W.20 simply stated after registering a case, he sent intimation to the Inspector of Police by an express report. According to the evidence of P.W.24-Inspector of Police, he went to the place of occurrence at 2.30 p.m on 05.10.2001, prepared Ex.P2-observation mahazar at 3.30 p.m and Ex.P11-rough sketch at 3.30 p.m and recovered M.O.1-white colour bottle having the capacity of 375 ml with 50 ml liquid in it at 3.00 p.m. As per his evidence M.O.1-bottle was recovered at 3.30 p.m and only thereafter Ex.P2-Observation mahazar and Ex.P11-rough sketch were prepared at 3.30 p.m. M.O.1-bottle was allegedly recovered under Ex.P3-Seizure mahazar in the presence of P.W.16-Guruvan (Village Administrative Officer) and one Arjun, village menial. They are the persons who have attested the observation mahazar and the seizure mahazar. The said village menial has not been examined as a witness on the side of the prosecution. P.W.16-Village Administrative Officer, in his evidence would state that he heard the news about the occurrence on 05.10.2001, went to the police station and gave a complaint. It is his further evidence that only after lodging a complaint, he went to the place of occurrence. The said evidence of P.W.16 does not get corroboration from any other witness. According to his evidence the bottle had fallen upside down and hence acid in it spilled. If it is so, it is doubtful whether any acid would have still remained in the bottle. Even though it is admitted that the colour of the rock and earth had changed in an area with a diameter of three feet showing the spilling of the acid enormously, no acceptable explanation is forthcoming for not removing a sample from the rock and earth for production in the case.
20. It is the evidence of P.W.16 that the bottle recovered from the scene of occurrence was of quarter size and it was found with a label and the police noted the brand printed in the label. The same is contradictory to the evidence of the Investigating Officer (P.W.24). According to the evidence of P.W.24, the bottle he recovered had the capacity of 375 ml and the bottle of such size shall be called "half" bottle of liquor. According to P.W.16, it was quarter bottle of liquor which shall be having the capacity of 175 ml. As against the evidence of P.W.16 to the effect that bottle did have a label depicting its brand, P.W.24 has deposed that the bottle did not have any label. P.W.21, the Investigating Officer, who continued the investigation and submitted the final report would submit that the bottle recovered during the course of investigation of the case was half bottle having the capacity of 375 ml. He would plead ignorance as to whether the bottle did have any brand name. P.W.19, the then Head Clerk of the committal court would state that M.O.1-bottle did have the label affixed by the police alone and the name of the company manufactured it was not available. It is his further evidence that what kind of liquor bottle was that, was not not known.
21. Apart from the contradictions in the evidence of prosecution witnesses regarding whether the bottle was found with any label showing the brand of liquor or the name of the manufacturer, there is a vial discrepancy as to the volume (capacity) of the bottle. According to P.W.21 and P.W.24, it was a half liquor bottle having the capacity of 375 ml, whereas according to one of the attesters of the Seizure mahazar, namely P.W.16, it was a quarter liquor bottle which shall have the capacity of 175 ml. In addition to the above said discrepancy, there is yet another discrepancy which would destroy the prosecution case regarding recovery of M.O.1 containing acid. P.W.16 says the bottle contained below 20 ml of acid at the time of its recovery by the police, whereas P.W.24 would say that it contained 50 ml of acid. Ex.P3 is the mahazar under which M.O.1-bottle was allegedly recovered. In Ex.P3, the quantity of the liquid found in the bottle was initially noted as 20 ml and the same was subsequently corrected to 50 ml. P.W.21 in his evidence admits that it was noted Ex.P3 mahazar that there was 20 ml of acid in the bottle recovered under the said mahazar. No explanation is forthcoming as to how and when the mahazar was corrected regarding the quantity of the liquid found in the bottle from 20 ml to 50 ml. There is also no explanation as to how the 20 ml of liquid found in M.O.1-bottle became 50 ml when submitted to the court. The inference that can be made from the same is that the bottle allegedly recovered from the scene of occurrence could not be the one sent to the laboratory through court as rightly contended by the learned counsel for the petitioner.
22. According to the evidence of P.Ws.16 and 24, P.W.19 informed the police of the whereabouts of the petitioner/accused person and the petitioner/accused was arrested near cotton mill bus stop on being identified by P.W.17-Rajan. It is true that P.W.17 might have stated in his chief-examination that he saw the petitioner/accused standing near the cotton mill bus stop with fear and informed the same to the police whereupon the police took him and the VAO to the said place and that at the said place, he identified the petitioner/accused pursuant to which the police arrested him. But in cross-examination he has stated that as usual he went for work and returned home at 5.00 p.m and thereafter he did not go anywhere from his home. The nature of evidence regarding arrest will show that there was an attempt made by the police to show that the bottle was recovered on the information given by the accused in his confession statement, but later on changed the version as if the recovery was made earlier and the accused was arrested and his confession statement was recorded subsequently.
23. According to the prosecution story, the occurrence took place when P.W.1 was returning with milk she had purchased from P.W.8-Palaniammal. According to her evidence, she was carrying the milk in a tumbler. She would plead ignorance as to what happened to the tumbler after she was attacked with acid. None of the witnesses examined on the side of the prosecution spoke about the tumbler. What happened to the tumbler is not known. The police have not recovered the said tumbler. Furthermore, the police have not chosen to recover the dress materials of P.W.1 and produce them. It is the evidence of P.W.1 that her saree got burnt by the acid splashed on her; that she handed over the saree to the police; that the police, after seeking it, returned it to her while she was in the Aravind Eye Hospital, Coimbatore. When the evidence of acid attack was very much available in the saree, it is highly improbable that the police would have failed to seize it when it was handed over by P.W.1.
24. Yet another vital discrepancy found in the prosecution version is the alleged motive for the attack on P.W.1 made by the petitioner/accused. According to the prosecution case, the petitioner's wife Rajamani had filed nomination for contesting the election for the post of President of the Panchayat and her nomination was rejected based on the objection raised by P.W.2 and P.W.9-Chithiraiselvan. It is the specific case of the prosecution that on 03.10.2001, the scrutiny of nomination papers was made by the Election Officer and P.W.2, husband of P.W.1 and Chithiraiselvan who were there, raised objections against the nomination papers submitted by Rajamani on the ground that her name was not found in the voters' list and she had completed only 19 years of age. It is the further case of the prosecution that P.W.9-Chithiraiselvan gave the objection in writng and only based on the said objection, Rajamani's nomination paper was rejected by the Election Officer. It is true that the nomination paper of the wife of the petitioner was rejected on the ground that her name was not found in the voters' list as per the evidence of P.W.15-Perumal, the Returning Officer for the election of the Panchayat President. A consideration of his evidence will show that the nomination paper of Rajamani was rejected on the sole ground that her name was not found in the voters' list, that too after voters' list was verified by the Returning Officer. It has not been elicited from him that there was any representation, oral or written in the form of a petition seeking the rejection of her nomination. The prosecution has also not elicited from P.W.15 that there was a petition opposing the acceptance of nomination of Rajamani and based on that objection, her nomination was rejected. On the other hand, it is the clear evidence of P.W.15 that the Returning Officer shall verify the voters' list and also the age of the candidate and only on such scrutiny, the nomination of Rajamani was rejected. From the said evidence of P.W.15, it is quite obvious that the rejection of the nomination papers submitted by Rajamani by the Returning Officer on scrutiny without there being any objection, has been projected by the prosecution as if such rejection was at the instance of P.W.2 and hence the petitioner/accused made the acid attack on P.W.1. Therefore, even the motive alleged by the prosecution has not been proved.
25. All the contradictions, defects and improbabilities found in the case of the prosecution pointed out in the foregoing paragraphs shall be enough to hold that the prosecution case is unbelievable and the same has not been proved beyond reasonable doubt. The courts below, on an erroneous appreciation of evidence adduced on the side of the prosecution simply brushed aside the vital discrepancies and improbabilities found in the evidence adduced on the side of the prosecution and came to a mechanical conclusion that the prosecution was able to prove beyond reasonable doubt the act of throwing acid at P.W.1 on the part of the petitioner/accused. The said finding can even be termed perverse and the same shall not stand the scrutiny of this court.
26. Viewed from any angle, the conviction recorded by the trial court and confirmed by the lower appellate court cannot be sustained. The lower appellate court should have held that the prosecution failed to prove its case against the petitioner beyond reasonable doubt and should have acquitted him. This court, in exercise of its power under Section 397 r/w 401 Cr.P.C shall, without any hesitation lean in favour of setting aside the conviction and acquitting the petitioner/accused as he has not been proved beyond reasonable doubt to have committed any offence.
27. In the result, the Criminal Revision Case is allowed, the conviction recorded by the trial court and confirmed by the lower appellate court is set aside. The petitioner is totally acquitted of the charge with which he stood charged holding that he not even guilty of any lesser offence than the one for which the charge was framed. Fine amount, if any collected shall be refunded to the petitioner herein.
asr To
1. The Additional Sessions Judge (Fast Track Court No.2), Gobichettipalayam
2. The Inspector of Police Kadathur Police Station Erode District
3. The Public Prosecutor, High Court, Madras