Vijayan vs The State Through Inspector Of Police on 17 July, 2008

[Cites 23, Cited by 0]

Madras High Court

Vijayan vs The State Through Inspector Of Police on 17 July, 2008

We are disturbed that in an incident an officer of the law enforcement agency, who went to the scene of occurrence in discharge of his duties lost his life. However, this fact cannot come in the way of our assessing the materials available on record to see if the prosecution has proved its case.

2. The accused were convicted and sentenced as follows by the trial court.

Sl.No.  Rank of the accused   Provision under         Sentence
			      which convicted
(1)            (2)                     (3)              (4)
 1         A1 and A2                148 IPC        6 months R.I. and to pay a fine of
                                                   Rs.500/- with default sentence.
 2         A3, A5 and A7            147 IPC        6 months R.I. and to pay a fine of
                                                   Rs.500/- with default sentence.
 3         A3 and A5                302 IPC        Sentenced to undergo Life
                                                   Imprisonment and to pay a fine of
                                                   Rs.2,000/- each with default
                                                   sentence.
 4         A1, A2 and A7      302 r/w.149 IPC      Life Imprisonment and to pay a
                                                   fine of Rs.2,000/- each with
                                                   default sentence
 5         A1 and A2                307 IPC        5 years R.I. and to pay a fine of
                                                   Rs.1,000/- with default sentence.
 6         A1 and A2          Section 3 of         3 years R.I. and to pay a fine of

Explosive Substances Act Rs.1,000/- with default sentence 7 A7 332 IPC 2 years R.I. and to pay a fine of Rs.1,000/- with default sentence.

3. On the side of the prosecution as many as 44 witnesses were examined and 67 documents and 46 Material Objects were marked. Neither oral nor documentary evidence was let in on the side of the defence.

4. The sum and substance of the case of the prosecution, in brief, as unfolded by the witnesses examined is as follows:-

Selvamani, P.W.38 was the Deputy Superintendent of Police, Vilathikulam Police Station. Pudur Police Station was under his control. One Mr.Balkrishnan belonging to Naicker Community and one Mr.Vijayan belonging to Adi Dravidar Community contested for Sankaralingapuram Panchayat Election during the year 2001. There were frequent quarrels between them as the contest was critical.

5. On 17.10.2001 at about 11.00 p.m., the 2nd accused Ponraj lodged a complaint as against Saudhi @ Saudhiraj alleging that the said Saudhiraj belonging to Naicker Community abused him by calling his caste name. A case in Crime No.89/2001 on the file of Pudur Police Station for offences punishable under Sections 342, 294(b), 323, 324 of IPC and Section 3(1)(x) of SC/ST Act was registered. The case was later on closed as 'mistake of fact'.

6. On 18.10.2001 one Vasudeva Naicker alleging that he was prevented from canvassing for the candidate Balakrishnan Naicker, lodged a complaint as against one M/s.Solairaj, Vijaya Kumar and Vijayan, the 1st accused herein. Thereupon a case in Crime No.90/2001 on the file of the said police station for offences under Sections 294(b), 323 and 324 IPC was registered as against them. There was tension in the village in connection with the election for the office of Panchayat President, Sankaralingapuram.

7. On 15.11.2001, a case in Crime No.91/2001 on the file of Pudur Police Station was registered for offences under Sections 294(b) and 506(2) IPC on the basis of the complaint given by Jothi Basu as against the 2nd accused Ponraj.

8. Esakki P.W.1 was serving as Sub-Inspector of Police at Pudur Police Station. When he was at the police station at about 6.00 a.m. on 16.11.2001, there was an anonymous call from Challichettypati. The telephonic message was that the houses were being attacked in the aftermath of the quarrel between the people belonging to Adi Dravidars and Chettiars in Challichettypatti. The Inspector of Police Shajahan, P.W.39, Esakki P.W.1, Murugan (deceased), Veerapandian, Muniyasamy P.W.7, Arumugam, Seetharaman P.W.4 and Constable Esakki P.W.6 went along with the Armed Force Constables Muniyasamy P.W.7, Devarajan P.W.2 and Chelladurai proceeded to Challichettypatti. Alleging that a false case was foisted on the 2nd accused Ponraj, the 1st accused Vijayan, the 3rd accused Gurusamy, the 5th accused Sivasankar along with 100 persons belonging to Adi Dravidars attacked and destroyed the houses of the people belonging to Chettiar Community. A phone message received at 8.00 a.m. on 16.11.2001 that there was a 'road roko' staged by 300 persons belonging to Adi Dravidar Community of Challichettypatti and Sankaralingapuram. The police party proceeded to Sankaralingapuram intersection.

9. The police party found that the men and women numbering 300 gathered over there, blocking the entire traffic at the Sankaralingapuram intersection. The Inspector of Police P.W.39 asked the crowd to disperse. But the mob attempted to proceed proclaiming that they would go and destroy the houses of Chettiars at Challichettypatti. By then, the Inspector of Police Mr.Nagarajan of "Eppothum Vendran" Police Station, the Sub-Inspector of Police Muthu Ramalingam of Ettayapuram Police Station and Swaroopa Rani, Inspector of All Women Police Station came in a jeep bearing Registration No. TN 69 G 0063 driven by the police constable Srinivasan P.W.3.

10. The accused were found armed with sticks, stones and iron rods. The 1st and the 2nd accused proclaimed that they could go and destroy the houses of Chettiars at Challicheeypatti only if they annihilated the police personnel. The 1st accused attacked P.W.39 with stick indiscriminately. P.W.39 unable to bear the attack fell down. The 2nd accused also attacked P.W.29 on his right hand and back and the 3rd accused attacked the Constable Murugan (deceased) on his fore head. The 5th accused Sivasankar attacked him on his head indiscriminately with stick.

11. P.W.39, who sustained injury again ordered the crowd to disperse. The 10th accused Petchiammal attacked him with stone. Mr.Devarajan, Constable, P.W.2, attached to Armed Force was attacked by the 7th accused Alagarsamy with stick on his head and hands. The police party at the instruction of the Inspector of Police attempted to disperse the crowd. In the melee, there was some injury to the people in the crowd. The mob again attempted to attack the police party. The police party ran towards south. The 8th accused Ganesan attacked the jeep bearing Registration No. TN 69 G 0063 with a steel rod and caused damage to the glass panes.

12. The 6th accused Sagaya Sesuraj, the 11th accused Santhoshmani, the 3rd accused Aruldass @ Gurusamy and the 5th accused Sivashankar attacked the constables Devarajan P.W.2 and Esakki P.W.6 and Srinivasan P.W.3 with stones. They also damaged the jeep by pelting stones thereat. The 1st and the 2nd accused threatened the police party with dire consequences. The Inspector of Police Nagarajan ordered the constable Muniyasamy to fire the gun. But the gun did not fire as it became halfcock. The 1st and the 2nd accused thereafter threw country made bombs on the police party. But the police party escaped unhurt, as the country bomb fell on the ground and caused huge noise. The crowd ran helter-skelter.

13. P.W.1 collected all the injured in the damaged jeep and took them to Government Hospital, Aruppukottai for treatment. 25 women including the 10th Accused Petchiammal and the 11th accused Santhoshmani, who created trouble in the crowd were arrested and were brought to the Pudur Police Station. P.W.1 immediately registered a case in Crime No.96/2001 under Sections 347, 148, 332, 307, 341 of IPC, Sections 3 and 4 of Explosive Substances Act, 1908 and Section 3 of the Prevention of Damage to Public Property Act, 1984. He prepared Printed First Information Report Ex.P.1 and despatched the original First Information Report to the learned Judicial Magistrate and the copies thereafter to the higher officials concerned. He received information at about 11.00 a.m. on 16.11.2001 that the injured Murugan succumbed to his injuries in the hospital. He converted the case into one under Section 302 IPC and prepared Alteration Report Ex.P.2 and sent the same to the court as well as to the higher officials concerned.

14. As per the wireless message received at about 11.00 a.m. on 16.11.2001, the Inspector of Police Mr.Mohamed Ghouse Khan Gori, P.W.44 proceeded to the Sankaralingapuram intersection for the purpose of investigation of this case. He received a copy of the First Information Report from the constable Elango at the scene of occurrence at about 1.15 p.m. on the same day. He inspected the scene of occurrence and prepared Observation Mahazar Ex.P.6 in the presence of Palanisamy P.W.20. He recovered Blood Stained Earth M.O.9 and M.O.11 and Sample Earth M.O.10 and M.O.12, Broken Glass Pieces M.O.5, Stones M.O.6 series, Sticks M.O.7 series and Tiffin Carrier M.O.8 under Observation Mahazar Ex.P.6. He also recovered Half Burnt Jute M.O.36, Iron Nails M.O.37, Broken Glass Pieces M.O.38, Vibrating Blade M.O.39 and Beeding Rod with Broken Glasses M.O.40 under the very same Mahazar Ex.P.6. He also drew Rough Sketch Ex.P.52 reflecting the scene of occurrence.

15. Dr.Narayanasamy, presently serving in foreign country treated the Constables Esakki P.W.6 and Devarajan P.W.2 and Shajahan, Inspector of Police, P.W.39. Dr.Charles P.W.42 was present, when Dr.Narayanasamy gave treatment to those injured. The copy of the Accident Register pertaining to the admission of Shahjahan was marked as Ex.P.42 and the Wound Certificate was marked as Ex.P.43. The copy of the Accident Register pertaining to the admission of the constable Devarajan P.W.2 was marked as Ex.P.45 and the Wound Certificate was marked as Ex.P.46. The copy of the Accident Register pertaining to the admission of Esakki, P.W.6 was marked as Ex.P.48 and the Wound Certificate was marked as Ex.P.49.

16. Dr.Narayanasamy has opined that the injury sustained by Shahjahan P.W.39 was grievous in nature. The injuries sustained by Devaraj P.W.2 and Esakki P.W.6 were simple in nature. Dr.Sampath P.W.34 also gave treatment to Shahjahan P.W.39. He issued a copy of the Accident Register Ex.P.19 with respect to the admission for treatment and the injuries found on the person of Shahjahan. The injured Murugan was also treated by him. He found a lacerated wound over the frontal region measuring 5x2x1cm. and a fracture of right parietal bone with depression. He issued copy of the Accident Register Ex.P.20 pertaining to the injuries sustained by Murugan. He also treated Devarajan P.W.2 and issued copy of the Accident Register Ex.P.21. Srinivasan P.W.3 was treated by him. The copy of the Accident Register pertaining to the treatment given to Srinivasan was marked as Ex.P.22. P.W.44 received altered First Information Report from P.W.1 immediately after the demise of Murugan at about 10.25 a.m. at the hospital.

17. He proceeded to Arupukottai at about 2.40 p.m. and conducted inquest in the presence of Panchayatdars and prepared Inquest Report Ex.P.53. He also examined the witnesses present over there and recorded their statements.

18. P.W.44 sent the requisition Ex.P.26 to Doctor Sampath P.W.34 through the Constable Baskaran P.W.41 for the purpose of postmortem examination on the dead body of Murugan. He commenced the postmortem examination at about 5.00 p.m. on 16.11.2001. He found the following internal and external injuries on the dead body of Murugan.

Injuries:

1. Lacerated injury over the frontal region right side 5 x 2 x 1 cm size.

2. Lacerated injury over the mid occipital region 3 x 1 x . cm size.

3. Contusion of 10 x 10 cm size over the right tempero- parietal region

- depressed fracture right tempero - parietal region felt.

Internal Examination:

---------------------

Abd. uniform, peritoneal cavity - no fluid. Liver, Spleen, Kidney - Normal. Thorax ribcage intact. Pleural cavity empty. Heart 250 gms all chambers empty. Left lung 500 gms. Right lung 600 gms - pale- Hyoid bone intact. Stomach pale contained 500 ml of partially digested food. Intestine pale partly distended with gas. Bladder 200 ml of urine drained.

Head:

-----

Lacerated injury over the frontal region right side 5 x 2 x 1 cm size. Lacerated injury over the mid occipital region 3 x 1 x . cm size. Contusion of 10 x 10 cm size over the right tempero - parietal region fractured skull -

depressed fracture of semi radius of right tempero parietal bone. The fracture was extending into the floor of the right middle cranial fossa, including the petrous part of the right temporal bone in a stellate fashion - meninges were torn in the base of the middle cranial fossa (temporal lobe through which lacerated brain matter was leaking - Brain - 1400 gms right hemisphere was congested and lacerated spinal column intact.

He has opined in the Postmortem Certificate Ex.P.27 that Murugan appeared to have died of hemorrhage due to head injury and other injuries to the vital organs and brain.

19. On 17.11.2001 at about 6.00 a.m., P.W.44 arrested the 8th accused Ganesan. He gave a voluntary confession statement in the presence of the witnesses Karthikeyan, Village Assistant and Arumugam. On the basis of the admissible portion Ex.P.54 in the confession statement of A8, Iron Rod M.O.1 and Blood Stained Towel M.O.15 were recovered under relevant Seizure Mahazar Ex.P.7. Accused Kumaravel gave a complaint as to the injuries sustained by him. The said complaint was registered as Crime No.98/2001 under Sections 147, 148, 323, 324 and 427 IPC. The xerox copy of the Printed First Information Report was marked as Ex.P.55. The injured accused were sent for treatment.

20. On 17.11.2001 at about 10.00 a.m., he arrested the 9th accused Prabakar at Melapatti Bus Stop. He was remanded to judicial custody at 10.45 a.m. on the same day itself.

21. P.W.41 recovered Blood Stained Shirt M.O.26, Blood Stained Pants M.O.27, Blood Stained Underwear M.O.28, Blood Stained Banian M.O.29 and Belt M.O.30 from the dead body of Murugan and entrusted the same to P.W.44 for the purpose of investigation in this case. The damaged vehicle was sent for vehicle inspection. Syed Mohideen, P.W.40 inspected the damaged vehicle and issued a Certificate Ex.P.40 pertaining to the damage found on the vehicle. The gun which was used in the occurrence was sent to the Chemical Examiner through Constable Elangovan.

22. The 7th accused Alagarsamy was arrested on 25.11.2001 at about 5.00 p.m. He gave a confession statement. Blood Stained Dhoti M.O.13 and Blood Stained Banian M.O.14 were recovered from his person under Form-95. On the basis of the admissible portion Ex.P.60 in the confession statement given by A7, Blood Stained Stick M.O.45 was recovered under Form-95. The injured Inspector of Police, Shahjahan, P.W.39 produced the Blood Stained Uniforms M.O.24 and M.O.25 to P.W.44 for the purpose of investigation and the same was recovered by P.W.44 under Form-95. Constable Devarajan, P.W.2 also produced Blood Stained Uniforms M.O.2 and M.O.3 and the same also was recovered under Form-95 by P.W.44.

23. P.W.44 received information that the 1st accused Vijayan surrendered before the learned Metropolitan Magistrate, Chennai. On 28.11.2001, the 4th accused Susai Manickam and the 5th accused Shivshankar were arrested and remanded to judicial custody in connection with the case in Crime No.1342/2001 on the file of the Palayamkottai Police Station. The 1st accused Vijayan was taken to police custody on 29.11.2001 by P.W.44. He gave a confession statement in the presence of Raju P.W.26. At about 06.15 p.m. on the said day, Blue Colour Lungi M.O.20, Green Colour Shirt M.O.21 and Banian M.O.19 worn by the 1st accused were recovered in the presence of the witness Sankaralingam P.W.27 under relevant Seizure Mahazar Ex.P.12. The material objects were sent to the learned Judicial Magistrate under a requisition Ex.P.61 for the purpose of sending them for chemical examination.

24. The entries found in the note book maintained by Srinivasan P.W.3, Esakki P.W.6 and Vinyagam P.W.5 were marked as Ex.P.62, Ex.P.63 and Ex.P.64 respectively. The entries found in the note book maintained by Seetharaman P.W.4 was marked as Ex.P.66. The second accused Ponraj was arrested on 27.12.01 in connection with the case in Cr.No.195/2001 on the file of Vilathikulam Police Station. On the basis of the admissible portion Ex.P.18 in the Confession Statement of A2, a Stick M.O.23 was recovered. P.W.44 also seized dhoti M.O.22 under Mahazar Ex.P.17. The 2nd accused Ponraj was thereafter remanded to judicial custody. The material objects also were despatched to the court for the purpose of sending them for chemical examination. The 4th accused Susai Manickam was arrested at about 12.00 noon on 28.11.2001. He gave a confession statement in the presence of Murugesan P.W.25. On the basis of the admissible portion Ex.P.11 in the confession statement given by A4, Lungi M.O.18 was recovered under relevant Seizure Mahazar Ex.P.10.

25. P.W.44 submitted a requisition Ex.P.30 for the purpose of sending the material objects for chemical examination. He also received information that the 3rd accused Arul Dass @ Gurusamy had surrendered before the learned Judicial Magistrate, Kovilpatti on 27.12.2001. He took him to police custody. He gave a confession statement in the presence of Karthikeyan P.W.22. On the basis of the admissible portion Ex.P.9 in the confession statement given by A3, Stick M.O.46, Dhoti M.O.16 and Saree M.O.17 were recovered under relevant Seizure Mahazar Ex.P.8. Thereafter, A3 was remanded to judicial custody. P.W.44 submitted a requisition Ex.P.34 to send the material objects recovered from A3 for chemical examination. A-11 Santhosh Mani had surrendered before the learned Judicial Magistrate No.I, Kovilpatti on 11.01.2002.

26. P.W.2 to P.W.9 were eye-witnesses to the occurrence. P.W.6 has partly turned hostile to the case of the prosecution. Ramasamy, S/o.Pushparaj, P.W.10 and Ramasamy, S/o.Kondavan Naicker P.W.11, Balakrishnan P.W.12, Gopalakrishnan P.W.13, Jegannathan P.W.15, Velsamy P.W.18, Sekaraj P.W.19, Arumugam P.W.23 and Shanmugavel P.W.24. have also turned hostile to the version of the prosecution.

27. Mr.Mohamed Ghouse Gori, Inspector of Police P.W.44 having completed the investigation, laid final report as against 179 accused including the 11 accused, who face the trial. As per the Government Order No.2839 dated 14.02.2002, the case as against the 168 accused out of 179 accused was withdrawn by the Government.

28. The incriminating portions found in the testimony of the witnesses examined on the side of the prosecution were put in the form of questionnaire to the appellants herein under Section 313 of Cr.P.C. They completely denied their role in the offences alleged as against them.

29. Learned counsel for the appellants submitted that while it is undeniable that one police officer died in the unfortunate incident, the Prosecution has not proved its case beyond reasonable doubt. There are many contradictions, lacunae and unbelievable aspects in the prosecution case. In the first place, learned counsel for the appellants mentioned that, the accused had no motive to kill the deceased. There was an election dispute and they were enraged and their intention was to go and cause disturbance in the place where the other community lived. It was never their intention to attack the police. Learned counsel submitted that when the police had come with arms, it is difficult to believe that this crowd would have over powered them. Learned counsel further submitted that even in the evidence adduced by the prosecution, it is revealed that there was a scuffle between two groups and even P.W.1 had specifically stated that "when the crowd scattered and ran away, some could have received abrasion injuries". When there are clear materials to show that even the accused party and the crowd that had gathered had sustained injuries, not even an iota of evidence has been produced on the side of the prosecution with regard to the injuries sustained by the crowd, which allegedly attacked the deceased. Therefore, there is suppression of material facts. Learned counsel for the appellants further submitted that in the F.I.R., about 53 persons names have been mentioned with their father's names or husband's names as the case may be. All of them are alleged to have attacked the deceased and the injured witnesses. It is humanly impossible for a person to remember each of the assailants along with their fathers' names especially when there was a scuffle in the crowd. Therefore, it is clear that the complaint has been prepared after much deliberation. Learned counsel also submitted that if the prosecution case had to be believed, immediately they would have arrested the accused / appellants herein. On the other hand, the only persons they had arrested were 25 women, who had gathered there. The question arises as to how they let the assailants to go and merely arrested 25 women. Learned counsel submitted that clearly because a police man had died and some policemen were injured, the prosecution had roped in 171 persons as accused. Subsequently, 160 persons were discharged by virtue of the Government Order dated 12.04.2002. Learned counsel submitted that there are contradictions with regard to the time when the deceased went to the scene of occurrence. According to P.W.1, the deceased who was a Special Police went with the police party at 6 O'clock, whereas according to his wife, P.W.17, who is a nurse, who reports for duty at a specific point of time every day, he left at 7 O'clock. Learned counsel submitted that it is difficult to believe that the crowd would have recognized the deceased, who was in mufti, as police officer. P.W.1 had stated that A-10 and A-11 were taken in police custody. But, they had already surrendered. It is clear that P.W.1 cannot be believed or he does not know the identity of the assailants, which means the complaint cannot be believed. Learned counsel submitted that P.W.39, who was injured was examined by the police only ten days after the occurrence. Even assuming that he was in the hospital, there was nothing to stop the Investigating Officer - P.W.44 to examine him earlier. It was submitted by the learned counsel that when the prosecution case gives rise to so many doubts, the appeal must be allowed.

30. Learned Additional Public Prosecutor submitted that there are 10 eye witnesses, out of whom 7 are police men and out of 7, the injured witnesses are 3 and 3 are independent witnesses. There was no reason to disbelieve them. The police went to the scene of occurrence without any intention of using violence. None of them was armed except one and even that was ineffective. Therefore, the police was out numbered and over powered. The overt acts are clearly spoken by all the eye witnesses. The minor discrepancies with regard to the time must be over looked in view of the fact that the ocular testimony is dependable and believable. In the Accident Register copy of the injured witnesses, it is clearly stated that there were 300 persons gathered, which included known persons. This was about one hour after the occurrence. Therefore, there is evidence which is recorded immediately after the occurrence, which shows that the witnesses knew the identity of the assailants. Learned Additional Public Prosecutor submitted that in the examination under Section 313 Cr.P.C., the accused had stated that they were not at the scene of occurrence. When the accused plead alibi, it is for them to prove that. The burden of proof lies on them. Learned Additional Public Prosecutor submitted that this was a horrible incident, where a police man was subjected to homicidal violence and the Trial Court had rightly convicted the appellants herein and it does not warrant any interference.

31. We have carefully considered the submissions of the learned counsel for the appellants and the learned Additional Public Prosecutor for the respondent and perused the materials available on record.

32. There are several features in this case, which normally would be accepted as proof of the genuineness of the prosecution case. There are several eye witnesses, some of them are injured and more importantly, a member of the law enforcement agency, who went to control the crowd met his unfortunate end. But, yet there are weaknesses in the prosecution case. We will deal with them one by one.

33. Can the F.I.R., be believed:-

-----------------------------

The F.I.R., which was registered at 10.30 a.m. The time of occurrence was 08.15 a.m. The F.I.R has recorded the names of 55 persons and at least with regard to 33 persons, either the father's name or the husband's name is mentioned. The F.I.R. has mentioned the overt acts. There were 300 persons and this is not in dispute. P.W.1 had stated in his evidence that when they reached Sankaralingapuram bus stop, there were 300 men and women, who had blocked the road and would not permit the vehicles to pass. In his evidence, he has mentioned the presence of about 17 persons. It is evident that the Inspector directed them (the constables) to disburse the crowd. "The crowd scattered, which might have resulted in injury. The crowd came to attack the police with greater vigour. Inspector Nagarajan directed Constable - P.W.7 to fire". But, the attempt aborted. "Immediately, A-1 and A-2 threw the country bomb at the police party. It fell on the ground and burst". In his cross-examination, P.W.1 had stated that he knew the identity of all the accused, but in some cases, they did not know their fathers' names. P.W.2 had also referred to the crowd of 300 persons standing near Sankaralingapuram with A-1 at the head of the crowd. Then he referred to the threatening words used by A-1, that they tried to proceed to Challichettipatti. It is at this moment, the Inspector Nagarajan with his group came there. This witness has also spoken of the melee and the scattering of the crowd. In his cross-examination, he had stated that apart from 11 persons, he had now forgotten the names of others and that even before the occurrence occurred, he ascertained the names of the persons, who had gathered there. In the cross-examination, he had stated that at the same time simultaneously, all the injured and the deceased were attacked. Therefore, from the evidence and the materials available on record, it is seen that there was an unruly and agitated group of 300 persons and there were only 11 men from the police force, who were helplessly trying to control the crowd. The Inspector, according to P.W.1 had given assurance that he would take action on their grievance. But, it is difficult for us to believe that in this crowd, in the confusion and the disturbance, the agitated atmosphere and the violence that ensued, P.W.1 would have remembered the names of 53 persons, who had actually attacked the deceased and the injured. However, this is only a fact that makes us look at Ex.P.1 with certain suspicion, but we will not reject the prosecution's case if in other aspects, the prosecution case is strengthened.

34. Time when the Deceased went to the Scene of Occurrence:-

------------------------------------------------------- Now, we will test the evidence of the prosecution witnesses as to the time at which the deceased went to the scene of occurrence. P.W.17 - Ramani Bai is a nurse at Pudur Government Primary Health Centre. She is the wife of the deceased. According to P.W.17, on 16.11.2001, at about 7 O'clock, her husband / the deceased went for duty and 8 O'clock, she went for duty. When she was there, she was informed that her husband was admitted in the Government Hospital at Aruppukkottai. When she went there, she saw her husband sustained injuries on the fore head and back of his head. He died thereafter. According to P.W.1, on 16.11.2001, at the morning 6 O'clock, there was an anonymous phone call regarding the dispute between the two communities. As soon as he received the information, he, P.W.39 - Shajahan the deceased, P.W.7 - Muniyasamy, P.W.23 -

Arumugam, P.W.4 - Seetharaman, P.W.6 - Isakki and other constables went to Challichettipatti, where the Chettiyar Community was gathered. When they enquired, they found that 100 persons including A-1, A-2, A-3 and A-5 had come and asked them why they had filed a false case against A-2. The police party asked them to disburse and remained there for security purpose. On the same day i.e., on 16.11.2001, at about 08.00 a.m., they received a phone call from Pudur police station through one Boomi Raj that there was a huge crowd of 300 consisting of men and women, who were blocking the road. Immediately, all the constables, who came with him and also the Inspector - Shajahan and the deceased Murugan went to the bus stop. Therefore, according to P.W.1, even at 6 O'clock, the deceased had left for Challichettipatti with him. The wife of the deceased is a nurse, so she is unlikely to be wrong about the time when her husband left the home. If so, the question arises as to why there is discrepancy regarding the time when the deceased left his home.

35. Could the eye witnesses have seen the fatal assault:-

----------------------------------------------------- P.W.39 is one of the injured witnesses and he is the Inspector, who proceeded to Challichettipatti on receipt of the phone call. When they reached the scene of occurrence, several vehicles including Seeni Matriculation School bus and bullock carts were halted there. He advised the parties to disburse, but they refused to do so and they said that "They would break down the houses in Challichettipatti and kill the Chettiyars and destroy the police dogs". Then, the party of Eppothum Vendran, Inspector came there. P.W.39 would say, "At that time A-1 hit me on my right head with a stick repeatedly and I fell down unable to bear the pain. Then A-2 with a stick in his hand hit me on my right hand. Therefore my right hand got hurt and my right index finger broke. When I attempted to get up, A-2 hit me on my right shoulder. At that time A-3 hit the deceased on the forehead with a stick and the deceased fell down to the western side of the bus stop." In his cross-examination, P.W.39 had stated that "when the first blow fell, I fell down. I did not stop the second blow. I did not protect my head with hand. Before the police could stop, the assault was over. Until A-1 finished beating me, no one else beating me. Thereafter, A-2 hit me. I saw the other constables being beaten." The Accident Registers with regard to all the injured witnesses read identically i.e., they are alleged to have been attacked by a mob of 350 persons, including some known persons with stones and sticks at Sankaralingapuram. P.W.1 in his cross-examination had said that apart from the assailants, he cannot say who else in the crowd were armed with weapons. He had also said that "When the crowd wanted to proceed towards the village, we stopped that. When we stopped it, the crowd surrounded us. They attacked us when they were standing around us. To scatter the crowd, we made lathi charge. One head constable brought fire arm. When the crowd gave chase, the police ran away. I do not remember, who ran away. Before that the crowd had beaten the police". He had also admitted in the cross-examination that apart from 25 women, no one else was brought to the police station. It had also been suggested to him that no woman was arrested as stated by him, but they had been brought earlier to the police station. It had also been suggested that about 1 . hours before the alleged time of occurrence, the entire disturbance was over and that only because police was injured, the case was filed after ascertaining the names of important persons in the locality. P.W.2 in his cross-examination had admitted that he had never seen the accused before the occurrence. He had also stated that "At one point of time, the police also got afraid and ran away and so did some persons in the crowd and in that commotion, one group collided against the other and there may have been injuries." It had also been suggested to him that it was because of the scuffle that the injuries occurred. This witness was examined by the police 10 days after the occurrence. He had stated in his cross-examination that at the same time, i.e., simultaneously, all the police men were assaulted. P.W.3 is also supposed to be an eye witness. According to him, about 10 minutes after P.W.39 came, the crowd surrounded them. In his cross-examination he had stated that "P.W.39 stood on the right side of the bus stop. I got down from the south side and went and stood besides P.W.39. When the first blow fell on P.W.39, I protected. Witness changes and said that I did not. It is only when I started to protect, that the stone pelting started. As soon as the stone pelting started, we turned back. We ran away about 40 metres". So, the police had turned back as soon as the stone pelting started, which was soon after Shajahan - P.W.39 was hit with the stick. If so, they could not have seen anything thereafter. In the chief - examination all the witnesses including P.W.1 would state that the first blow had fallen on P.W.39. If the stone pelting started immediately after P.W.39 was attacked and if the first blow was received only by P.W.39 and if the police ran away after that, then there could have been no eye witness to the attack on the deceased. So, this is another weakness in the prosecution case.

36. P.W.4 in his cross-examination had stated that "Since the crowd was jostling against one another, I could not stop the assailants. In the scuffle that arose because of the lathi charge, there were injuries." He had also stated that "I do not know who was injured because of my lathi charge. I lifted up the persons, who were injured". Even according to P.W.5, the first blow fell on P.W.39. In his cross-examination, he had stated that simultaneously the blow fell on every one and he had stated that, "When Shajahan was assaulted, I could not protect him. I saw him being beaten by the accused. I could not stop because there was a big crowd. I could not go near him". If there was a big crowd surrounding P.W.39 when P.W.39 was assaulted, then it would be impossible for anyone to see who attacked P.W.39. P.W.6 turned hostile. Next we come to the evidence of P.W.7, who is also projected as an eye witness. Even his evidence is that the first blow fell on P.W.39. In his chief examination, he named each accused. In the cross-examination, he had stated that, "At the time of occurrence, I knew the identity of 35 persons. I ascertained their names, father's names and their husband's names from the local head constable. I ascertained the names of 11 persons when I was talking to the Inspector in the Court and the other names from the police station". If this is true, then, his evidence, fixing each of the accused with overt act cannot be believed since it is in the Court that he learnt about the 11 persons. In his cross-examination, he had also referred to the lathi charge and he had pleaded ignorance regarding the members of the public, who were injured by the lathi charge. In his cross- examination he had stated that at the scene of occurrence 25 persons were arrested. His evidence is also to the effect that, "The crowd ran towards the police. The police ran away. The police dashed against each other and fell down. When they ran, there was stone pelting. The police ran for about 30 feet. The stones were thrown for about 10 minutes". If this is true and the police dashed against each other and fell down and there was pelting of stones at that time, then the evidence of the witnesses with regard to the overt acts and the manner in which the police had sustained injuries cannot be believed.

37. Next we come to the evidence of P.W.8. He had stated that there was a problem and the public started hitting with sticks and stones and at that time, the deceased was attacked by A-5 and A-3. Stones were thrown, there was an explosion and the crowd disbursed. In his cross-examination, he had stated that "I do not know who was taken away by the police". It is elicited from P.W.8 that he had not at the earliest juncture i.e., when he gave his statement to the police, attributed specific overt act to the accused. P.W.9 had merely referred to the attack on P.W.39 in his chief examination. In his cross-examination, he had admitted that he had not stated in his 161 statement as to who attacked whom. P.Ws.10,11,12,13,15,18 and 19 turned hostile. So the credibility of the eye witnesses is not very high. It is doubtful if they even saw the attack on the deceased. Many of the eye witnesses are policemen and they are also injured. Therefore, normally, the evidence of injured eye witnesses are given greater weight. But, in this case, the witnesses are policemen and one of their colleagues died. We are not for a moment saying that on that count alone, eye witnesses should be disbelieved. But, in this case, the manner in which they speak of the scuffle in the chief - examination and what they say in the cross- examination make their evidence difficult to believe. In this regard, we refer to the decision of the Supreme Court in SEVI ..Vs.. STATE OF TAMIL NADU (A.I.R. 1981 S.C. 1230) where the Supreme Court has held as follows:-

"....All the eyewitnesses are partisan witnesses and notwithstanding the fact that four of them were injured we are unable to accept their evidence in the peculiar circumstances of the case. Where the entire evidence is of a partisan character impartial investigation can lend assurance to the court to enable it to accept such partisan evidence. But where the investigation itself is found to be tainted the task of the court to sift the evidence becomes very difficult indeed. 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. According to the account of the witnesses it was as if each of the victims of the attack came upon the stage one after the other to be attacked by different accused in succession, each victim and his assailant being followed by the next victim and the next assailant. Surely the account of the witnesses is too dramatic and sounds obviously invented to allow each witness to give evidence of the entire attack. But the witnesses themselves admit in cross- examination that they were all attacked simultaneously. If so, it was impossible for each of them to have noticed the attack on everyone else. ....."

38. Were M.Os.10 and 12 taken from the scene of occurrence:-

-------------------------------------------------------- With regard to the scene of occurrence, it has been suggested to P.W.39 that the ditches on both sides of the roads were filled with water. In the evidence of P.W.44 - Investigating Officer, he has stated that at the scene of occurrence on the North and South, there are ditches and it is filled with water and there were no blood stains near the Karuvela bushes. It has been elicited from him that in the observation mahazar, it is recorded that there had been good showers just before the occurrence. Ex.P.6 - Observation Mahazar shows the rains had just stopped and that either side of the road there was water M.O.35 - half burnt jute and M.O.36 - half burnt wet clothes were recovered. When the scene of occurrence is covered with rain water, could the blood stained earth M.O.12 and Sample earth - M.O.10 have been taken from the scene of occurrence. Normally such aspects are not given much weight. But, in this case, so many doubts have been pointed out with regard to the genuineness of the prosecution case. Therefore, doubt regarding the genuineness of these material objects also becomes crucial.

39. Delay in lodging the F.I.R. :-

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The occurrence took place at 08.15 a.m., within 7 K.Ms from the police station. According to P.W.1, when A-1 burst the country bomb, the crowd scattered. He immediately sent the injured P.W.39, the deceased Murugan, the injured P.W.2 and the Injured P.W.6 by jeep to the Government Hospital and he, the Inspector - Eppothum Vendran, then Ettayapuram Sub-Inspector, M.Ramalingam and women police constables arrested the 25 women and brought them to the police station. It is also seen from the evidence recorded that the entire incident was over within 15 to 20 minutes. P.W.1 Inspector returned to the police station immediately thereafter. Then why did he take time till 10.30 a.m., to prepare the F.I.R. This is not explained. Any delay in lodging the complaint by itself is not fatal. But, it would depend upon the facts and circumstances of each case. Here is a policeman, who is an eye witness and according to him, the death of another police man had taken place and 7 policemen were injured. We expect that in those circumstances there would be promptness and no delay in lodging the complaint. So, the delay of one hour or so assumes importance especially since there is the artificiality of 55 persons being named in the F.I.R. in detail with their father's names and husband's names. The doubt is whether the identity of the accused would have been ascertained in the confusion and the crowd when even 11 names could not have been mentioned in detail, let alone 55 persons. This casts a shadow on the prosecution case.

40. Delay in the F.I.R. reaching the Court:-

----------------------------------------

The Magistrate has received the F.I.R. only at 7 p.m., at his residence. There is no explanation as to why it took so long time to reach the Magistrate's Court. We have already referred to the artificiality of the F.I.R. in Paragraph 33 and the delay in lodging the F.I.R. in paragraph 39. Each of these factors individually may not be fatal to the prosecution case. But, taken together, they definitely make the case of the prosecution difficult to believe. In this regard, it is useful to refer to the decision of the Supreme Court in MEHARAJ SINGH ..Vs.. STATE OF U.P (1994 (5) S.C.C. 188) where the Supreme Court has held as follows:-

"......12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf......"

41. Recovery of Weapons:-

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Arul Dass, A3 and Ganesan A8 have allegedly given confession statements before the Inspector of Police P.W.44. But it is found that they have in fact refused to sign in the alleged confession statements given by them. The question that arises for consideration is whether the court can rely upon an admissible portion in the alleged confession statement of an accused, when it was not signed by him. It has been held by the Supreme Court in paragraph 30 of the judgment in State of Rajasthan Vs. Teja Ram and others, (1999 Crl.L.J.2588) as follows:-

"The resultant position is that the Investigating Officer is not obliged to obtain the signature of an accused in any statement attributed to him while preparing seizure memo for the recovery of any article covered by Section 27 of the Evidence Act. But, if any signature has been obtained by an Investigating Officer, there is nothing wrong or illegal about it."

42. The Bench of this Court in Natarajan V. Union Territory of Pondicherry, (2003 Crl.L.J.2372) following the aforesaid ratio, rejected the contention made on the side of the defence that the recovery portion in the unsigned confession statement of an accused is not sustainable in law.

43. In view of the aforesaid ratio laid down by the Supreme Court, the recovery part of the story of the prosecution in the instant case cannot be rejected on the ground that the alleged confession statement of the accused does not bear their signature, as Section 27 of the Evidence Act does not mandate that the author of the confession statement shall put his signature or thumb impression to breath life to the admissible portion therein. But this is not a case where the Investigating Officer did not mind to obtain the signature of the accused in the confession statement or he inadvertently omitted to do so. A3 and A8 have refused to subscribe their signature to the confession statement. Therefore, though the admissibility of a portion of the confession statement is not affected by the refusal of A3 and A8 to sign therein, such a refusal definitely creates a dent in the credibility of recovery made. As a corollary, it is totally unsafe to place reliance thereon.

44. Further, it is the case of the prosecution that the Stones M.O.6 series and Sticks M.O.7 Series were seized from the scene of occurrence on the basis of the Observation Mahazar Ex.P.6 prepared by P.W.44. Sticks M.Os.23, 45 and 46 were recovered from A2, A3 and A7 respectively on the basis of the admissible portion in the confession statement given by each of them. It is pertinent to note that blood was not detected in any of those material objects seized from the scene of occurrence and recovered at the instance of those accused as per the Chemical Analysis Report Ex.P.32. The Objects like Stones and sticks are commonly found strewn on the road and by the side of the road. When blood stains were not detected on those Material Objects, the accused cannot be connected with the weapons of offence alleged to have been seized from the scene of occurrence and recovered at the instance of the accused concerned.

45. The occurrence had unfolded at 8.15 a.m on 16.11.2001. Quite unfortunately, the prosecution has come out with an artificial version that the 8th accused Ganesan wore blood stained towel M.O.15 on his shoulder, when he was arrested at about 6.30 a.m. on 17.11.2001. We are not in a position to believe the version of the prosecution that the accused chose to wear the blood stained towel on his person for about 22 hours after the occurrence. For all these reasons, we find that the recovery part of the case of the prosecution is very fragile.

46. Failure to arrest the accused from the scene of occurrence:-

------------------------------------------------------------ The failure on the part of the police to arrest the accused at the scene of occurrence when they were available allegedly as per the evidence of eye witnesses also creates a doubt in our mind. The only persons they could arrest were the 25 women, who were said to have been causing disturbance at the spot. It is in these circumstances, the statement made by the accused under Section 313 Cr.P.C., that they were not at the scene of occurrence, but they had already been arrested becomes crucial. It was contended vehemently on behalf of the learned Additional Public Prosecutor that if a person claims alibi, it is for him to prove it. To which, the learned counsel for the appellants stated that this should be treated as denial and not alibi. But, the statement of the appellants / accused that they were already in prison when the so called occurrence took place appears to be plausible. The only reason for not arresting the accused immediately and arresting 25 women instead, must be that the accused were not available at the scene of occurrence at the alleged time of occurrence 08.15 a.m.

47. A possible alternative scenario:-

---------------------------------

Let us look at a possible alternative scenario. The police were aware of the agitation of the villagers of the appellants. So, they had detained some of them, who were at the helm of creating trouble. This made matters worse. So, 300 persons were blocking the road near Challichettipatti junction. The police thought that they could resolve the dispute. But obviously the crowd was not willing to listen. There was lathi charge. The crowd was injured. There was counter attack by the crowd and clearly the police were out numbered. This resulted in the unfortunate death of the deceased Murugan. Thereafter, by ascertaining the names of those persons, who were already in the police station, this F.I.R. was prepared by the police, since members of the police force had sustained injuries and in fact, one had succumbed to it. This alternative explains a lot of doubts arise in this case. This is why the names of so many persons are given in such detail in the F.I.R.; this is why the police could only arrest 25 women from amongst the crowd, this is why in cross-examination, none of the so called eye witnesses could state clearly what happened this is why the evidence indicates that in the confusion people were quite scattered, this is why the police states that each group sustained injuries, and the police ran away from the scene of occurrence. If this is a possible scenario, then the prosecution has not come out with the correct version of the genesis of the occurrence. By suppressing the assault on the members of the crowd, the whole truth has not been placed before the Court. And if the alternative scenario is in favour of the accused, then we must reject the prosecution case.

48. We find the following infirmities in the prosecution case:-

1.The F.I.R lodged by P.W.1 a constable contains 53 names of accused with details which is difficult to believe since in the crowded incident identifying persons would have been difficult. So, the F.I.R., is artificial.

2.When P.W.1 states that soon after the incident he returned to the station to give the F.I.R., the delay of one hour is suspicious. Implication of unconnected persons cannot be ruled out.

3.F.I.R. was lodged at 10.15 a.m., but reached the Magistrate only at 7 p.m. This delay is also suspicious.

4.At least one eye witness had stated that the crowd surrounded P.W.39 and had beaten him, if so it would not have been possible to identify the assailants. In a crowd this is natural, so the identity of the person who inflicted the fatal blow must also be difficult to fix.

5.All the eye witnesses would say that the first blow was inflicted on P.W.39.

There is also evidence that after that blow the police ran away from the scene. If so, no one could have seen who attacked the deceased.

6.More than one eye witness has stated that in the scuffle the crowd was also injured. The suppression of this by Prosecution is also suspicious.

7.The eye witnesses have said that the police collided against each other in the scuffle. If so, the prosecution has not come out with the truth regarding the injured witnesses.

8.There is discrepancy in the time when the deceased went to the scene of occurrence.

9.If the scene of occurrence was wet with rain, M.Os.10 and 12 could not have been recovered from there.

10. The appellants were not arrested from the scene of occurrence, but only 25 women were arrested. Then the statement by the accused under Section 313 Cr.P.C., that they were already in police custody deserves acceptance.

11.It is difficult to believe that the weapons were recovered at the instance of the accused. Stones and sticks taken from an open road cannot link the accused to the offence.

As against this, we have

1.Injured eye witnesses;

2.They are fairly consistent in chief examination with regard to the overt acts.

3.The Accident Register refers to "known persons"

4.Being police men, they knew the names of assailants.

But, when we cumulatively assess the features for and against the prosecution case and lay them in the balance, we have no option but to disbelieve the Prosecution case.

49. In paragraph 47 above, we have given a possible alternative scenario. That is in favour of the appellants, so we must reject the case of the prosecution, which we do. It may be useful to refer to STATE OF RAJASTHAN ..VS.. BHANWAR SINGH (2004 (13) S.C.C. 147) where the Supreme Court held as follows:-

"....6. ...... Though, individually some of the circumstances may not have affected veracity of the prosecution version, the combined effect of the infirmities noticed by the High Court is sufficient to show that the prosecution case has not been established. The presence of PWs 3, 4 and 8 at the alleged spot of incident has been rightly considered doubtful in view of the categorical statement of PW 5, the widow that she sent for these persons to go and find the body of her husband. It is quite unnatural that PWs 3, 4 and 8 remained silent after witnessing the assaults. They have not given any explanation as to what they did after witnessing the assault on the deceased. Additionally, the unexplained delay of more than one day in lodging the FIR casts serious doubt on the truthfulness of the prosecution version. The mere delay in lodging the FIR may not prove fatal in all cases. But on the circumstances of the present case, certainly, it is one of the factors which corrodes credibility of the prosecution version. Finally, the medical evidence was at total variance with the ocular evidence. Though ocular evidence has to be given importance over medical evidence, where the medical evidence totally improbabilises the ocular version that can be taken to be a factor to affect credibility of the prosecution version. ...."

50. In the aforesaid paragraphs, we have given our reasons for being unable to accept the case of the prosecution. However, the following facts are not disputed. The deceased died on account of the violence that took place on 16.11.2001. It is also not in dispute that there was a huge crowd on that day, which was in a very agitated mood and the facts before us also show that it is only in the interaction between the police and the 300 strong crowd that the police was injured and one of them died. At least with regard to the following facts all the eye witnesses agree with each other and that is, the crowd over powered the police and outnumbered them. The deceased had gone there only in discharge of his duties. Murugan, aged 40 years died unfortunately due to violence. We do not know what happened to his family thereafter. However, we feel that in these days of increasing violence, this crowd of villagers of whom definitely A-1 was a leader can set an example of restorative justice. Nothing can bring back the life of Murugan, but we can start the process of healing and therefore, we make the following suggestion. It is not an order or a mandate. We suggest that the villagers who gathered there should come forward by contributing whatever they can and present a cheque for Rs.1,00,000/- (Rupees One Lakh only) to the legal heir of the deceased. This is only a gesture. This, we hope, will start a counter process to this atmosphere of violence. We also suggest that the State may also give some reasonable amount to the legal heirs if it has not already done. The police is the first face of the law enforcement agency that the public sees. The police is expected to be our friend. In fact, long ago there was a documentary about the police titled "Ungal Nanban (cA;fs; ez;gd;)" The public should start looking at the police as a friend and before that the police should also be sensitized to behave as the first friend of the public. With this hope, we make the above suggestion to the appellants herein, who as the leaders of the crowd must come forward with this benevolent gesture towards the family of the officer, who lost his life while on duty.

51. With the above observation and for the reasons aforesaid, we allow this Criminal Appeal, setting aside the conviction and sentence imposed on the appellants by judgment dated 22.10.2007 of the learned Additional Sessions Judge (Fast Track Court No.I), Tuticorin in S.C.No.186 of 2003 and acquit the appellants of all the charges. The appellants are directed to be released forthwith, unless their detention is required in any other case.

Tsi / Dpn/-

To:

1. The Additional Sessions Judge, (Fast Track Court No.I), Tuticorin.

2. - Do - through The Principal District Judge, Tuticorin.

3. The Judicial Magistrate, Vilathikulam,

4. - Do - through The Chief Judicial Magistrate, Tuticorin.

5. The District Collector, Tuticorin District.

6. The Superintendent, Central Prison, Tuticorin.

7. Inspector of Police, Pudur Police Station, Tuticorin District.

8. The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

We allow this Criminal Appeal, setting aside the conviction and sentence imposed on the appellants by judgment dated 22.10.2007 of the learned Additional Sessions Judge (Fast Track Court No.I), Tuticorin in S.C.No.186 of 2003 and acquit the appellants of all the charges. The appellants are directed to be released forthwith, unless their detention is required in any other case.

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