Madras High Court
State Through vs Jeganathan on 30 June, 2008
Author: K.N.Basha
Bench: P.D.Dinakaran, K.N.Basha
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.06.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN and THE HONOURABLE MR.JUSTICE K.N.BASHA Criminal Appeal No.1010 of 2005 State through The Inspector of Police, Crime Branch C.I.D., Coimbatore. (Crime No.71/2002) .. Appellant/Complainant Vs. 1.Jeganathan 2.Selvaraj 3.Senniappan @ Sarayakadai Senniappan 4.Palanisamy @ Kattupalanisamy 5.Velusamy 6.Eswaran @ Chinnakalipalayam Eswaran 7.Uthandaraman @ Ramakutty @ Rams 8.Ramesh Kumar @ Ramesh .. Respondents/Accused * * * Prayer : Criminal Appeal filed under Section 378 of the Code of Criminal Procedure against the order of acquittal passed by the learned Principal District and Sessions Judge, Coimbatore, in S.C.No.97 of 2005 dated 25.10.2005. * * * For Appellant : Mr.N.R.Elango Additional Public Prosecutor For Respondents 1 to 3 : Mr.P.M.Duraisamy For Respondents 4 to 6 : Mr.A.Natarajan, Senior Counsel for M/s.A.Madhumathi For Respondent 7 : Mr.S.Ashok Kumar, Senior Counsel for M/s.A.Sasidharan J U D G M E N T
(Judgment of the court was delivered by K.N.BASHA, J.) This appeal is preferred by the State challenging the impugned judgment of acquittal dated 25.10.2005 passed by the learned Principal District and Sessions Judge, Coimbatore, in S.C.No.97 of 2005.
2. There are eight accused in this case, who are the respondents 1 to 8 herein.
3. The charge against the accused is that due to prior enmity with the deceased, Rathinasamy, the then panchayat President of Iduvai village, A-1 to A-8 entered into a criminal conspiracy on 11.03.2002 at about 8.30 p.m. in the house of A-3 at Iduvai village to commit the murder of the deceased, Rathinasamy and in pursuance of the said conspiracy, on 12.03.2002 at about 8.30 p.m., A-1 to A-8 formed themselves into unlawful assembly near the Dhandapani Chettiyar waste cotton godown and A-1 to A-3 and A-6 abducted the deceased to the waste cotton godown and wrongfully confined him till 1.00 a.m. and thereafter A-1 to A-8 again abducted the deceased from the said godown to a neem tree situated in the land of Rangasamy of Iduvai village and at about 1.30 a.m. mid night A-2 and A-4 stabbed and cut the deceased repeatedly with knives and A-3 and A-8 beat the deceased repeatedly with iron rods, A-5 gagged his mouth with a towel and A-1 tied his hands and legs with a rope and A-6 instigated the other accused to hang him from the tree, A-7 plugged the bleeding wound of the deceased on his right hip with dhothi and thereafter, the accused hanged the deceased on the neem tree and thereby said to have murdered the deceased Rathinasamy intentionally.
4. The learned trial Judge framed the first charge against A-1 to A-8 under Sections 120(b) r/w 302 IPC ; second charge against A-1 to A-8 under Section 148 IPC ; third charge against A-1 to A-8 under Section 364 IPC ; fourth charge against A-1 to A-8 under Section 346 IPC ; and fifth charge against A-1 to A-8 under Sections 302 r/w 149 IPC.
5. The prosecution in order to bring home the charges against the accused examined P.Ws.1 to 43, filed Exs.P.1 to P.60 and marked M.Os.1 to 48.
6. The brief facts of the case, as projected by the prosecution, are as follows:
(i) The deceased, Rathinasamy, was the panchayat president of Iduvai village. P.W.1 is the brother of the deceased ; A-1 and A-2 are brothers ; A-4 and A-5 are brothers ; Their sister was married to the brother of A-3 ; A-6 and A-7 are friends of A-1 to A-5 ; and A-8 was working as Clerk in Iduvai panchayat office.
(ii) A-1 to A-7 are also the residents of Iduvai village, for which the deceased, Rathinasamy, was the President of the panchayat. A-8 was a resident of Mururgampalayam village, nearby village of Iduvai. The accused party and the deceased were on inimical terms on the following reasons :
during the year 1996, December, the deceased demolished the bathroom of A-1 and A-2 said to have been constructed in front of their house on the ground of encroachment and the deceased had not accepted the request of A-1, A-2 and A-7 for constructing ration shop near their house and constructed the ration shop at the cost of panchayat near Harijan Colony ; the deceased had not accepted the request of A-2 for compromising a criminal case to save A-1 from that case ; A-3 had animosity against the deceased on the ground of prevention of sale of illicit arrack ; A-6 was having grievance that he was not permitted to construct the arrack shop in the village ; A-3 and A-4 were on inimical terms with the deceased on the ground that his father, Kandasamy gave evidence in a Sessions case against them ; A-6 and A-7 developed ill-feeling against the deceased as the deceased belonged to Communist Party of India (Marxist) and the deceased defeated A-7's father and A-6 in the elections during the year 1996 and 2001. A-5 was having grievance against the deceased as the deceased refused to provide water tap near his house and A-8 was also having ill-feeling against the deceased as the deceased reprimanded him for non-payment of telephone bill of Rs.19,000/-.
(iii) P.W.1, brother of the deceased, stated that on 12.03.2002 at 2.00 p.m., the deceased left the house with regard to the school development work for Tiruppur in his Bajaj two wheeler bearing registration No.TN 38 D 1083 and thereafter, the deceased has not returned to his house.
(iv) P.W.30 was said to have seen A-2, A-3 and A-6 proceeding towards East side in the mud road while he was returning from Seranampalayam. At about 8.45 p.m., P.W.27 said to have seen A-4, A-5, A-7 and A-8 were standing near the Dhandapani Chettiyar cotton godown.
(v) On 12.03.2002, P.W.2, who is the resident of Iduvai left from his house at 10.30 p.m. for rabbit hunting and as he was not able to get any rabbit, returned home. Again, he left at about 1.00 a.m. i.e., on 13.03.2002 for rabbit hunting and at that time, P.W.3, who was the resident of Velampalayam village also joined with him for hunting. P.W.15, a resident of Iduvai village, was said to have seen P.Ws.2 and 3 proceeding for rabbit hunting. Both P.Ws.2 and 3 had tied torch lights on their forehead and also armed with torch light in their hands. At 1.30 a.m. on 13.03.2002, P.Ws.2 and 3 while they were nearing Kuttai Thottam fence on the Eastern side, they heard the sound of some persons talking with each other. With the light of a torch, they were alleged to have seen A-1 to A-8. The deceased was found only with underwear. A-5 and A-6 was said to have caught hold of the deceased. A-5 was pressing a cloth into the mouth of the deceased. A-1 was tying the hands and legs of the deceased with a rope. A-7 questioned P.W.2 for that P.W.2 told him that he is Muyal Govindan. A-3 threatened P.W.2 with dire consequences if he discloses the occurrence to anyone. At that time A-4 stabbed the deceased with a knife on his two thighs, left leg, chest and on the right shoulder. A-8 beat the deceased with an iron pipe on his forehead. A-3 beat the deceased on his head and on the middle of the backside of the head with iron pipe. A-2 stabbed the deceased repeatedly with a knife on his stomach. A-6 threatened P.Ws.2 and 3 as to why they were standing in that place continuously. A-6 instructed the other accused to hang the deceased from the tree. Thereafter, P.Ws.2 and 3 left for their house. At 7.30 a.m. on 13.03.2002, A-3 and A-4 came to the house of P.W.2 and threatened him with dire consequences if he discloses about the occurrence to anyone. Thereafter P.W.2 went to the scene, namely, Kuttai Thottam to see the deceased at 8.00 a.m. and found the deceased hanging on the neem tree.
(vi) On 13.03.2002 at 3.30 a.m. P.W.18, a resident of the same village was alleged to have seen A-4 with bloodstains in his hands and legs at the powerloom of Muthusamy, a relative of A-4 and while P.W.18 questioned him, A-4 replied that they have murdered the deceased and hanged him and also threatened P.W.18 with dire consequences if he discloses the same to anyone.
(vii) On 13.03.2002 while P.W.1 was in his house at 7.00 a.m., he was informed by one Balu @ Balasubramaniam that the vehicle of his brother, Rathinasamy was lying in Iduvai main road and thereafter he went to the place along with the said Balu and found the two wheeler Bajaj M 80 bearing registration No.TN 38 D 1083 at the Iduvai Main Road proceeding to Tiruppur. P.W.1 searched the deceased along with the said Balu and they found the deceased hanging on the neem tree near the fence of one Rangasamy Thottam. A nylon rope was found around the neck of the deceased. The deceased was found hanging only with underwear and his dhothi was found nearby the said tree. The shirt of the deceased was found on the Southern side with bloodstains. They found number of stab injuries and cut injuries on the body of the deceased and found a towel on the western side of the fence and a sharp-edged weapon. They also found the spectacles worn by the deceased. Thereafter, P.W.1 went to Mangalam Police Station to give a report.
(viii) On 13.03.2002 at 9.30 a.m., P.W.34, Sub Inspector of Police, received Ex.P.1, written report, from P.W.1. He registered the case in Crime No.71 of 2002 for the offence under Section 302 IPC. Ex.P.33 is the Express First Information Report and he sent the same to the higher police officials and to the Court. P.W.34 went to the scene of occurrence and made bandobust arrangements.
(ix) P.W.36, Inspector of Police, received the message about the occurrence over the phone and reached the Mangalam Police Station. He received the First Information Report and went to the scene of occurrence at 10.00 a.m. He prepared the Observation Mahazar, Ex.P.24 in the presence of P.W.24 and another. He also prepared the rough sketch, Ex.P.35. He held inquest on the dead body at 11.00 a.m. During inquest he examined P.W.1 and others. Ex.P.36 is the inquest report. He sent the body for post-mortem.
(x) The Doctor, P.W.32, attached to Tiruppur Government Hospital conducted post-mortem on 13.03.2002 at 3.45 p.m. , as per the requisition, Ex.P.29, and found the following injuries on the deceased :
External Appearance :
(1)Transversely oblique ligature abrasion of 37 cms x 1 cm seen encircling the upper part of the neck with a gap of 3 cms in the back of right side of neck. The anatomical land marks of the ligature abrasion are just below right mastoid, 7 cms below chin and 5 cms below left mastoid. On bloodless dissection of neck intermittent brushing beneath the mark and the border of mark seen. No extravasation of blood in superficial and deep (N.C.) of neck.
(2)Contusion associated with tiny abrasions seen beneath the rope tied around bothy forearms and ankles.
(3)Transversely oblique stab injury of 6 cms X 3 cms in front of upper 3rd of abdomen. The upper medial blunt end of wound is 13 cms above and lateral to umbilicus. The wound passes upwards and outwards (laterally) and backwards entering the peritoneal cavity and causing stab injury in the antero-inferior aspect of the right lobe of liver measuring 2 X 2 X 2 cms and ending as a point. Peritoneal cavity contains 1000 ml of fluid blood with clots.
(4)Transversely oblique stab injury of 3 cms X 1 cm in front of right side of upper abdomen. The upper inner blunt end of the wound is 2 cms below the outter end of the above wound (3). The wound passes upwards, outwards and backwards entering the peritoneal cavity.
(5)Transversely oblique incised wound of 10 X 0.5 cms X skin deep in the lateral aspect of right upper arm with tailing in the lower end.
(6)Vertically oblique incised wound of 10 X 1.5 X skin over medial aspect of lower half of right thigh with tailing in the upper end.
(7)Vertically oblique incised wound of 10 X 0.5 X skin edges over the front of middle 3rd left thigh with tailing in upper end.
(8)Vertically oblique cut injury of 8 X 3 X muscle deep in postero medial aspect of middle 3rd left leg.
(9)Transverse oblique lacerated injury above 6 X 1 X skin muscle deep on the back of neck.
(10)Transversely oblique laceration of 9 X 1.5 X skin muscle edges over occipital region of scalp.
(11)Vertically oblique incised would of 10 X 0.5 X skin edges over back of left side of chest close to midline with tailing of lower end.
(12)Vertically oblique incised would of 7 cm X 0.5 X skin deep over back of right side chest close to the middle with tailing lower medical end.
(13)Vertically oblique incised wound of 15 cm X 1.5 X 0.5 cm X sub-cutaneous skin deep on the left upper half of chest with tailing on the lower medial end.
(14)Transversely oblique cut injury 5 cm X 1 cm X muscle deep on the forehead left side.
(15)Oblique incised wound of 5 X 0.5 X skin muscle deep on left cheek with tailing in lower end. All the above injuries contained tiny and unwashable clots.
Internal appearances : Plural cavity empty. Ribs intact. Heart all chambers empty. Coronaries patent. Lungs pale Right 500 gms. Left 450 gms. Stomach contained 100 gms of (yellow colour) partially digested food particles. No specific smell for the contents. Mucosa pale. Liver pale. Spleen, Kidneys pale. Intestines contained 20 ml of bile stained fluid, no specific smell. Mucosa pale. Bladder empty. Skull intact. Membranes intact. Brain pale. External genetalie no injury. Blood sample taken and preserved. Hyoid bone preserved and sent for expert opinion.
Ex.P.30 is the Post-mortem Certificate and Ex.P.31 is the final opinion given by the Doctor after receipt of the hyoid bone report, in which, it is stated by the Doctor that the deceased would appear to have died of haemorrhage and shock due to stab injury to liver.
(xi) P.W.36, in continuation of his investigation, recovered M.O.15, bloodstained earth, M.O.16, sample earth, M.O.2, bloodstained dhothi, M.O.17, polythene cover and Ex.P.2, handwritten bill under Ex.P.25. He also recovered M.O.3, polyester bloodstained shirt, M.O.4, pocket telephone diary, M.O.18 series, 10 rupee currency notes, M.O.6 spectacles of the deceased. M.O.11 iron pipe, M.O.5 hand kerchief, M.O.10, knife, M.O.13, towel M.O.12, bloodstained iron pipe from the scene under Ex.P.26. On the same day at 3.30 p.m. he recovered M.O.7, cement colour Bajaj M80 vehicle bearing registration No.TN38 D 1083 at Iduvai Iduvanpalayam Main Road under Ex.P.27. He examined the Doctors and other witnesses. He received the post-mortem certificate, Ex.P.30 and final opinion, Ex.P.31.
(xii) P.W.41, Inspector of Police, took up further investigation on 15.03.2002. He prepared the rough sketch, Ex.P.48. He recovered M.O.19, a pair of bloodstained chappel under Ex.P.28. He examined P.Ws.5 and 24 and others. On 19.03.2002 at 10.00 a.m., he recovered token book, M.O.21, token, M.O.22 in respect of parking the two wheeler of the deceased M 80 at Palladam cycle stand under Ex.P.49. On 21.03.2002, he recovered a leather bag, M.O.23 produced by one Mohan under Ex.P.50. M.O.24 series 10 rupee currency notes and other articles, M.Os.25 to 47, were also recovered from M.O.23, leather bag. P.W.41 examined the other witnesses in this case and examined PW.32, Doctor, on 09.05.2002. On 06.06.2002, he sent the case records for further investigation to CB CID police, Coimbatore.
(xiii) P.W.43 took up further investigation. On 28.08.2002, he examined P.W.1 and also examined the other witnesses on 18.07.2004 at 11.00 p.m., he arrested A-1. At about 12.15 mid night he arrested A-2 to A-5. On the next day morning, he arrested A-6, A-7 and A-8. All the accused were remanded to judicial custody. After completion of investigation, P.W.43 filed the charge sheet against A-1 to A-8 on 13.10.2004.
7. When the accused were questioned under Section 313 Cr.P.C. in respect of the incriminating circumstances appearing against them, each of the accused denied each and every circumstances as contrary to the facts and stated that they have been falsely implicated in this case. They examined a witness, D.W.1 and marked Exs.D.1 to D.3.
8. Mr.N.R.Elango, learned Additional Public Prosecutor, contended that the prosecution has proved its case beyond reasonable doubt against the accused by adducing clear and cogent evidence. It is contended that the motives put forward by the prosecution were proved through the evidence of P.Ws.6, 7, 11, 12, 14, 17 and 25. The learned Additional Public Prosecutor further contended that the evidence of last seen theory as spoken to by P.Ws.42, 30 and 27 is also quite clear and there is no infirmity in their evidence. It is contended that the learned trial Judge has wrongly rejected the evidence of the eye-witnesses, P.Ws.2 and 3 on the ground of non-disclosure about the occurrence to anyone for more than two years without considering the explanation offered by P.Ws.2 and 3 to the effect that as they were threatened by the accused, out of fear, they have not disclosed about the occurrence to anyone. It is further submitted that the evidence of the eye-witnesses are also corroborated by the medical evidence through the Doctor. P.W.32 who has conducted post-mortem found corresponding injuries on the deceased. Therefore, it is submitted that the prosecution has proved its case in all aspects against the accused and the learned trial Judge without assigning any valid reason acquitted the accused.
9. Per contra, Mr.S.Ashok Kumar, learned senior counsel appearing for the respondent/A-7, Mr.A.Natarajan, learned senior counsel appearing for the respondents/A-4 to A-6 and Mr.P.M.Duraisamy, learned counsel appearing for the respondents/A-1 to A-3, vehemently contended that there is no infirmity or illegality in the impugned judgment of acquittal passed by the learned trial Judge warranting interference of this Court. It is submitted that the learned trial Judge has assigned valid reasons for acquitting the accused considering the entire evidence adduced by the prosecution. The learned senior counsel would further submit that the prosecution neither proved the motive nor proved the actual occurrence by adducing clear, cogent and acceptable evidence. It is submitted that the alleged eye-witnesses, P.Ws.2 and 3, have not disclosed about the occurrence for more than two years and their explanation that they have been threatened by the accused and as such out of fear, they have not disclosed about the occurrence to anyone is highly improbable and unacceptable. It is pointed out by the learned senior counsel that even in respect of last seen theory, P.W.1, brother of the deceased, has only stated about the deceased leaving the house for Tiruppur on 12.03.2002 at 2.00 p.m. and as far as the other witness, namely, P.W.42 is concerned, he has also spoken about seeing the deceased at 8.45 p.m. on 12.03.2002 and P.Ws.27 and 30 have spoken only about seeing some of the accused at 8.30 p.m. and 8.45 p.m. and there is absolutely no evidence available on record to show that both the deceased and any one of the accused were seen together prior to the time of occurrence. The learned senior counsel would further contend that the prosecution failed to prove the charge of conspiracy against the accused and the evidence of P.Ws.20 and 22, who have been examined by the prosecution to prove the conspiracy, is highly unbelievable and unacceptable. It is pointed out that P.W.20 had only spoken about the meeting organized by Gounder community people in which except A-1 and A-8, A-2 to A-7 have participated and the deceased has not participated. It is stated by P.W.20 that in that meeting the deceased was criticized by the speakers including A-2, A-3, A-4 and A-6. But it is pointed out that P.W.20 in his cross-examination admitted that he has not disclosed about the criticism made by A-2, A-3, A-4 and A-6 against the deceased till he was examined by CBCID police. It is pointed out that even the evidence of P.W.22 who has been examined to speak about the conspiracy hatched by the accused at the house of A-3 is also artificial and unbelievable. It is contended that P.W.22 has not disclosed about the alleged conspiracy hatched at the house of A-3 till he was examined by the CBCID police as per his admission in the cross-examination. Therefore, it is contended by the learned senior counsels that the learned trial Judge has considered the above said infirmities in the prosecution case and rightly rejected the case of the prosecution and acquitted the accused by assigning valid reasons.
10. We have given our careful and anxious consideration to the rival contentions put forward by either side and also thoroughly scrutinized the entire materials available on record and perused the impugned judgment of acquittal.
11. The prosecution heavily placed reliance on the evidence of the eye-witnesses, P.Ws.2 and 3. The prosecution also put forward certain other circumstances, namely, the alleged conspiracy hatched at the house of A-3 through the evidence of P.W.22 and the conspiracy hatched at the meeting convened by the Gounder community people in a kalyana mandapam and the last seen theory said to have been spoken to by P.Ws.1, 42, 30 and 27.
12. Before scanning through the evidence of the eye-witnesses, P.Ws.2 and 3, and analysing the circumstances put forward by the prosecution, it is relevant to refer the principles of law laid down by the Hon'ble Apex Court in respect of the powers of this Court in interfering with the impugned judgment of acquittal as well as the case which rests on the circumstantial evidence.
13. The Hon'ble Apex Court in a case against the order of acquittal in Satbir Singh V. State of Punjab reported in AIR 1977 SC 1294 has held as follows :
".... As a practical proposition, in an appeal against acquittal, it is always necessary that the reasons given by the trial Court for recording an acquittal should be examined by the High Court. If the conclusions of the trial Court are not based upon any evidence or they are such as no reasonable body of men, properly instructed in law, can reach, on the evidence, or they are so palpably wrong as to shock the sense of justice, the High Court will be justified in taking a contrary view by giving its own reasons. It is not enough that it is just possible for the High Court to take a contrary view. While interfering with acquittal the judgment of the High Court should demonstrate clearly the unworthiness of the conclusions of the trial Court having regard to all the relevant evidence in record."
14. In yet another decision in State of Karnataka V. K.Gopalakrishna reported in 2005 (9) SCC 291 the Hon'ble Apex Court has held as follows :
"17. .... If on the basis of the same evidence, two views are reasonably possible, and the view favouring the accused is accepted by the court below, that is sufficient for upholding the order of acquittal. However, if the appellate court comes to the conclusion that the findings of the court below are wholly unreasonable or perverse and not based on the evidence on record, or suffer from serious illegality including ignorance or misreading of evidence on record, the appellate court will be justified in setting aside such an order of acquittal."
15. The Hon'ble Apex Court in a latest decision in Mahesh s/o Janardhan Gonnade V. State of Maharashtra reported in 2008 (2) Supreme 898, by referring to a catena of earlier decisions of the Hon'ble Apex Court, reiterated the principles regarding the powers of the Appellate Court while dealing with the appeal against an order of acquittal as hereunder :
"21. In Chandrappa V. State of Karnataka (2007) 4 SCC 415, on consideration of a catena of earlier decisions of this Court and Privy Council, 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 low.
(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 of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured 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."
16. It is well settled that where a case rests on the circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should be fully proved and circumstances must be conclusive in nature to connect the accused with the crime.
17. Let us now scrutinize the materials available on record in respect of the motive, conspiracy and the actual occurrence as spoken to by P.Ws.2 and 3, eye-witnesses, in the light of the above settled principles of law laid down by the Hon'ble Apex Court regarding the power of the appellate Court in interfering with the impugned judgment of acquittal and when the case rests on the circumstantial evidence.
18. The prosecution put forward several motives against each and every accused to show that all the accused were having animosity with the deceased on one reason or other. The learned trial Judge has assigned valid reasons for rejecting the case of the prosecution regarding the motive. As already pointed out, the prosecution alleged the following motives :
(1)During the year 1996, December, the deceased, demolished the toilet said to have been constructed in front of their house on the ground of encroachment and the deceased had not accepted the request of A-1 to A-7 for constructing ration shop near their house and constructed the ration shop at the cost of panchayat near Harijan Colony ;
(2)the deceased had not accepted the request of A-2 for compromising a criminal case to save A-1 from that case ;
(3)A-3 had animosity against the accused on the ground of prevention of sale of arrack ;
(4)A-6 was having grievance that he was not permitted to construct the arrack shop in the village ;
(5)A-3 and a-4 were on inimical terms with the deceased due to his father, Kandasamy's evidence in a Sessions case against them ;
(6)A-6 and A-7 developed ill-feeling against the deceased as the deceased belongs to Communist Party of India (Marxist) and the deceased defeated A-7's father and A-6 in the election during the year 1996 and 2001.
(7)A-5 was having grievance against the deceased as the deceased refused to provide water tap near his house ; and (8)A-8 was also having ill-feeling against the deceased as the deceased reprimanded him for non-payment of telephone bill of Rs.19,000/-.
19. It is pertinent to be noted that the prosecution has not put forward any clear and cogent version to prove the above said motives alleged against the accused. Even assuming, if not admitting, the prosecution has established certain motives against the accused for causing the death of the deceased, this Court is of the considered view that proving such motives itself is not sufficient to implicate the accused with the alleged crime. The Hon'ble Apex Court has held in MOHD. ZAHID v. STATE OF T.N. reported in 1999 (6) S.C.C. 120 that :
"Motive being a double-edged weapon, could cut both ways helping or harming both the prosecution and the defence."
20. As far as the charge of conspiracy is concerned, the prosecution has chosen to examine two witnesses, namely, P.Ws.20 and 22. P.W.20 has stated to the effect that the Gounder community people convened a meeting in a Kalyana Mandapam called Chinnamman Mandapam during the year 2002, and in that meeting except A-1 and A-8, all the other accused have participated and the deceased had not participated. It is stated by P.W.20 that A-2, A-3, A-4 and A-6 have spoken in that meeting and expressed certain grievances and animosity against the deceased. At the outset, we are constrained to state that it is improbable for the accused to hatch the conspiracy in an open meeting held in a public place particularly in a Kalyana Mandapam, as stated by P.W.20. It is needless to state that conspiracy has to be hatched only in secrecy. Apart from such infirmity, it is pertinent to note that P.W.20 has admitted in his cross-examination that he has not disclosed about the alleged conduct of the accused criticizing the deceased and expressing their animosity during their speech in that meeting to anyone till he was examined by CBCID police. P.W.20 also went to the extent of admitting in his cross-examination that he has met the deceased 2-3 times after such meeting and he has not disclosed about the conduct of the above said accused to the deceased. Therefore, we have no hesitation to hold that the evidence of P.W.20 is unreliable and untrustworthy.
21. Yet another witness examined by the prosecution to prove the charge of conspiracy is P.W.22. It is the version of P.W.22 that 2 days prior to the occurrence he went to the house of A-3 at 9.00 p.m. to get amount (loan) for interest and found A-3 was chatting with A-1, A-2, A-4 to A-8. A-8 told the other accused that the deceased implicated him for the offence of cheating and thereafter all the accused were conspiring to abduct the deceased and to kill him. It is pertinent to note that even P.W.22 has not whispered a word to anyone about the said conspiracy till he was examined by CBCID police. The fact remains as per the admission of P.W.22 that the police came to the village after the murder of the deceased, but in spite of the same, he has not disclosed about the alleged conspiracy to the police. It is curious to note that P.W.22 admitted that he has not even informed his parents about the alleged conspiracy. Therefore, we are of the considered view that the learned trial Judge has rightly rejected the evidence of P.Ws.20 and 22 as unreliable and untrustworthy and therefore, as held by the learned trial Judge, the prosecution has miserably failed to prove the charge of conspiracy against the accused.
22. Now coming to the circumstances put forward by the prosecution, namely, last seen theory, we are having the evidence of P.Ws.1, 42, 30 and 27. It is seen that P.W.1 has merely stated about the deceased leaving the house at 2.00 p.m. on 12.03.2002. It is also seen that admittedly P.W.42 was alleged to have seen the deceased at 8.45 p.m. on 12.03.2002. P.W.30 was alleged to have seen A-2, A-3 and A-6 near the house of A-3 at 8.30 p.m. on 12.03.2002. P.W.27, yet another witness, has spoken about seeing A-4, A-5, A-7 and A-8 near the waste cotton godown of Dhandapani Chettiar. Therefore, the fact remains that all the above said witnesses were said to have seen only either the deceased or some of the accused separately and there is absolutely not an iota of evidence available on record to show that any one of the witnesses had lastly seen the deceased with any one of the accused together anywhere near the alleged scene of occurrence. Therefore, there were several missing links in the last seen theory spoken to by all the above said witnesses and the learned trial Judge has rightly rejected their evidence and held that the prosecution has miserably failed to prove the last seen theory.
23. Now we are left with the evidence of the alleged eye-witnesses, P.Ws.2 and 3. Before proceeding to consider the evidence of P.Ws.2 and 3, it is relevant to refer the evidence of P.W.15.
24. The prosecution made a vain attempt by examining P.W.15 to point out the presence of P.Ws.2 and 3 at or about the time of occurrence at the scene. It is the version of P.W.15 that on the date of occurrence, at 1.00 a.m., he has seen P.Ws.2 and 3 proceeding towards East, while he was chatting near a tea stall. P.W.15 has not stated that P.Ws.2 and 3 were seen near the scene of occurrence. It is pertinent to note that P.W.15 has not disclosed about seeing P.Ws.2 and 3 at 1.00 a.m. on 13.03.2002 to any one till he was examined by CBCID police after two years. Therefore, we are constrained to state that the evidence of P.W.15 is not at all helpful to advance the case of the prosecution and the learned trial Judge has rightly not placed any reliance on the evidence of P.W.15.
25. Now coming to the evidence of P.Ws.2 and 3, at the outset, we are constrained to state that the evidence of P.Ws.2 and 3 is highly artificial, unbelievable and improbable. The undisputed fact remains that P.Ws.2 and 3, the so-called eye-witnesses, have disclosed about the occurrence only two years after the occurrence while they have been examined by the CBCID police. P.W.2 categorically admitted in his cross-examination that he was examined by the police 2-3 days after the occurrence, but he has not whispered a word about the occurrence to the police. It is further admitted by P.W.2 that one year thereafter while he was examined by the CBCID police, he has not disclosed about the occurrence and he has disclosed about the occurrence only afterwards. It is pertinent to be noted that P.W.2 has also admitted that he has not disclosed about the occurrence to anyone in his house. P.W.2 further went to the extent of admitting that he has seen P.W.1, brother of the deceased, but he has not whispered about the occurrence to P.W.1. As far as P.W.3 is concerned, he has also categorically admitted in his cross-examination that he has stated about the occurrence only during his examination by CBCID police 2 1/2 years after the occurrence. PW.3 further went to the extent of stating during his cross-examination that he has not even disclosed about the occurrence to his wife. The explanation given by P.Ws.2 and 3 is to the effect that both of them have been threatened by the accused as not to disclose about the occurrence and out of fear they have not disclosed to anyone till their examination by the police. We are of the considered view that the conduct of P.Ws.2 and 3 is most unnatural and abnormal and their evidence not at all inspires the confidence of the Court and the learned trial Judge has rightly rejected their evidence by assigning the above said reasons.
26. The Hon'ble Apex Court has held in State of Orissa V. Brahmanada reported in AIR 1976 SC 2488 that, "Where in a murder case the entire prosecution case depended on the evidence of a person claiming to be eye-witness and this witness did not disclose the name of the assailant for a day and half after the incident and the explanation offered for non-disclosure was unbelievable, held that such non-disclosure was a serious infirmity which destroyed the credibility of the evidence of the witness and that the High Court was correct in rejecting it as untrustworthy and acquitting the accused."
27. In the very same decision, the Hon'ble Apex Court considered the explanation offered by eye-witnesses for not disclosing about the occurrence for 1 1/2 days and held as follows :
"The entire prosecution case against the respondent rests on the oral evidence of Chanchala (P.W.6) who claimed to be an eye-witness to the murder of Hrudananda, one of the six persons alleged to have been killed by the respondent. The learned Additional Sessions Judge believed her evidence, but the High Court found it difficult to accept her testimony. The High Court has given cogent reasons for rejecting her evidence and we find ourselves completely in agreement with those reasons. We have carefully gone through the evidence of this witness, but we do not think we can place any reliance on it for the purpose of founding the conviction of the respondent. The evidence suffers from serious infirmities which have been discussed in detail by the High Court. It is not necessary to reiterate them, but it will be sufficient if we refer only to one infirmity which, in our opinion, is of the most serious character. Though according to this witness, she saw the murderous assault on Hrudananda by the respondent and she also saw the respondent coming out of the adjoining house of Nityananda where the rest of the murders were committed, she did not mention the name of the respondent as the assailant for a day and a half. The murders were committed in the night of 13th June, 1969, and yet she did not come out with the name of the respondent until the morning of 15th June, 1969."
The well-settled principle of law laid down by the Hon'ble Apex Court in the decision cited supra is squarely applicable to the facts of the instant case as in this case also eye-witnesses disclosed about the occurrence only 2 1/2 years after the occurrence and added to that infirmity it is categorically admitted by both P.Ws.2 and 3 that the police came to the scene village and they have not whispered a word about the alleged occurrence in spite of their examination earlier by investigating officer, P.W.36 and they have disclosed only 2 1/2 years thereafter, during their examination by CBCID police.
28. The learned trial Judge has also rightly placed reliance on a decision of the Hon'ble Apex Court in Ali Mollah and Another V. State of West Bengal reported in 1996 (9) SCC (Cri.) 1028 as follows :
"... conduct of the witness in not telling any one about the occurrence till next day found unnatural creating an impression that he had not witnessed the incident."
29. Apart from the conduct of the alleged eye-witnesses, P.Ws.2 and 3 in not disclosing about the occurrence for 2 1/2 years till their examination by CBCID police, there are certain other infirmities also pointed out by the learned trial Judge for disbelieving their evidence. P.Ws.2 and 3 claimed that they went for rabbit hunting with torch light tied on their forehead and also a torch light armed both in their hands and they were alleged to have witnessed the occurrence only through the torch light but the prosecution has not recovered and produced those torch lights.
30. Added to this infirmity, the learned trial Judge further proceeded to point out that both P.Ws.2 and 3 have given minute details about the specific overt act against each of the accused in respect of the occurrence took place during night time. Further it is the version of P.Ws.2 and 3 that they were allowed to be there till the murder was completed by the accused. It is highly improbable for the accused to allow P.Ws.2 and 3 to remain at the scene to witness the occurrence in spite of the version of P.Ws.2 and 3 that A-7 questioned them about their identity.
31. The Hon'ble Apex Court in Sevi V. State of T.N. reported in 1981 SCC (Cri.) 679 that, "Another feature of the case which makes us doubt the credibility of the witnesses is the photographic and somewhat dramatic account which they gave of the incident with minute details of the attack on each of the victims."
In the above decision the Hon'ble Apex Court has rejected the eye-witnesses on the ground that their version of giving photographic and dramatic account of the occurrence destroys their credibility. In the instant case, as pointed out earlier, P.Ws.2 and 3 have given a photographic and dramatic account in respect of the overt acts alleged against each and every accused which throws considerable doubt about the veracity of their version.
32. Therefore, in view of the above said infirmities, inconsistencies and improbabilities, the entire prosecution case including the evidence of P.Ws.2 and 3, the so-called eye-witnesses bristled with suspicious circumstances and the prosecution has miserably failed to establish the guilt of the accused. At the risk of repetition, we are constrained to state that the learned trial Judge has considered all the above said aspects in respect of the evidence adduced by the prosecution and assigned valid reasons for acquitting the accused and the findings of the learned trial Judge cannot be stated to be wholly unreasonable or perverse or the findings suffer from any serious infirmity or the learned trial Judge misread the evidence warranting interference of this Court in the impugned judgment of acquittal and as such we are constrained to dismiss the appeal and accordingly, the appeal is dismissed.
(P.D.D., J.) (K.N.B., J.) 30.06.2008
Index : Yes/No
Internet : Yes/No
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To
1. The Principal District and Sessions Judge, Coimbatore.
2. The District Collector, Coimbatore.
3. The Director General of Police, Chennai 5.
4. The Inspector of Police,
Crime Branch C.I.D., Coimbatore.
5. The Public Prosecutor, High Court, Madras.
P.D.DINAKARAN, J.
and
K.N.BASHA, J.
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Judgment in
Crl.A.No.1010 of 2005
30.06.2008