Madras High Court
State By Public Prosecutor vs Kasim Rawthar, Tajudeen And Shaik Abdul ... on 15 September, 2003
Author: N. Dhinakar
Bench: N. Dhinakar, M. Chockalingam
JUDGMENT N. Dhinakar, J.
1. The above appeal is by the State, and it is filed against the acquittal of the respondents, who were arrayed as A-1 to A-3 to take their trial before the learned Sessions Judge, Dindigul, for an offence of murder, on an allegation that the three respondents, who in the judgment will be referred to as A-1 to A-3, shared a common intention with each other, and in furtherance of the common intention, A-3 pushed the deceased Bhakkiam out of the house, A-1 poured kerosene over her body, and A-2 threw a lighted match stick, leading to burn injuries, and as a result of the said burn injuries, she died at 12.30 p.m. on 11.10.1992 at the Government Hospital, Palani, where she was taken for treatment.
2. The trial Judge, though framed a charge against A-1 and A-3 under Sec. 302 read with 34 I.P.C., framed a charge against A-2 under Sec. 302 I.P.C. and also framed two charges against A-3 under Sec. 201 I.P.C. as well as under Sec. 218 I.P.C. He acquitted all the accused of all the charges, and aggrieved by the said order of acquittal, the State has preferred the above appeal.
3. The case of the prosecution can be briefly summarised as follows:
A-1 is the father of A-2 and A-3, and A-3 was working as Inspector of Police, Civil Supplies C.I.D., at Thanjavur, on the relevant date. P.W. 6 is the daughter of the deceased Bhakkiam, and P.W. 2 is the son-in-law of the sister of the deceased. P.W. 8 is the cousin of the deceased. The deceased was residing with P.W. 6 at Periakalayam Puthur, and she was working in the house and garden land of A-1. An illicit intimacy developed between her and one Basheer, the son of A-1. On coming to know about this, the husband of the deceased Oocha Thevar divorced her. Thereafter, the deceased continued her relationship with A-1. The deceased was living in a house, given to her by A-1. The deceased asked A-1 about 3 days prior to the date of incident, to take steps to see that she is settled in life. P.W. 8, who was present, also supported the deceased. The first accused pacified her by telling her that he will take up the matter with his son A-3, when he comes to the village. On 10.10.1992, A-1 went to the house of P.W. 1, the Thalayari of Periakalayam Puthur, and informed him that the deceased has immolated and was lying in front of his house with burn injuries. He requested P.W. 1 to go with him, and accordingly, P.W. 1 went along with A-1. This was at 3.30 a.m. P.W. 1 saw the deceased sitting near the steps leading to the first floor, and when questioned, she informed him that A-3 pushed her by neck, and A-1 poured kerosene on her, and A-2 set fire to her. She requested P.W. 1 to take her to the hospital. P.W. 1 took her to the Government Hospital at Palani. In the meantime, P.Ws. 2 and 8 also reached the place, and they helped P.W. 1 to secure a Taxi, in which the injured Bhakkiam was placed and taken to the hospital by P.W. 1. A-2 was present at that time. She was produced before P.W. 16, the Medical Officer, attached to the Government Hospital, Palani, at 5.30 a.m. on 11.10.1992. He found burn injuries, which he noted in the copy of the accident register Ex.P. 17. When the Doctor asked as to the cause of burns, he was informed that kerosene was poured on her, and a lighted match stick was thrown at her, by known persons at Kattuthottam Street of Periyakalayamputhur. P.W. 16 sent an intimation to the police and also sent a requisition to the Magistrate, requesting him to go over to the Hospital for the purpose of recording the statement of the injured Bhakkiam.
4. On receipt of the intimation, P.W. 18, the Sub Inspector of Police, attached to Palani Taluk Police Station, proceeded to the Government Hospital, Palani, and finding the injured in the Ward, questioned her, who gave a statement. The said statement is Ex.P. 21, and it was attested by P.W. 16, the Doctor. P.W. 18 returned to the Police Station and registered a case in Crime No. 487 of 1992 under Sec. 307 I.P.C. at 6.45 a.m. against the accused by preparing express reports. Ex.P. 22 is the copy of the First Information Report. On receipt of the requisition from the Medical Officer P.W. 16, P.W. 20, the Judicial Magistrate, Palani, proceeded to the hospital and between 6.40 a.m. and 6.45 a.m., recorded the statement Ex.P. 25, given by the deceased, which was also attested by the Doctor P.W. 16.
5. P.W. 26, the Inspector of Police, Palani Taluk Police Station, on receipt of the copy of the First Information Report at 7.30 a.m., proceeded to the hospital and examined the deceased. Thereafter, he left the hospital and went to the scene of occurrence, where an observation mahazar Ex.P. 34 was prepared, which was attested by P.Ws. 4 and 5. Ex.P. 35, the rough sketch, was also drawn. He seized three gunny bags M.O. 1 (series), a kerosene can M.O. 2, the burnt clothes M.O. 3 and other articles found at the scene of occurrence, under a mahazar Ex.P. 36, attested by the same witnesses. A-2 was arrested at 2.30 p.m. by P.W. 26, and in the meantime, the deceased Bhakkiam, who was undergoing treatment at the Hospital, breathed her last. On receipt of the death intimation, the crime was altered into one under Sec. 302 I.P.C., and Ex.P. 37 is the express First Information Report in the altered crime. P.W. 26 proceeded to the hospital, and inquest was conducted over the dead body of Bhakkiam between 4.00 p.m. and 6.45 p.m., during which P.Ws. 1, 2, 6 and 8 were questioned, and their statements were recorded. Ex.P. 38 is the inquest report. After the inquest, the dead body was handed over to P.W. 25, a Police Constable, with a requisition Ex.P. 19, to the Doctor to conduct postmortem.
6. P.W. 17, the Assistant Surgeon, attached to the Government Hospital, Palani, on receipt of the requisition Ex.P. 19 issued by P.W. 26, and on the dead body being identified by the Police Constable P.W. 25, conducted autopsy over the dead body of Bhakkiam and found the following.
A well nourished female body lying on its back with arms flexed at both the elbows, and wrists, colour of skin black, hairs in scalp, pubis and axillae are burnt. Extensive burns all over the body (100%) eyelids closed, tongue inside, jaws clenched, Teeth 32 in number.
Internal:
Thoracic and neck muscles found cooked. Heart chambers empty. Section congested. Weight 280 grms. Lungs congested. Right weight 480 grms. Left 440 grms. Hyoid bone intact. Stomach empty. Section pale. Liver congested. Weight 1200 grms. Spleen congested. Weight 120 grms. Kidney congested. Weight 120 grms each. Intestine congested. Lumen empty. Uterus normal in size empty. Pelvis intact. Skull intact. Scalp muscles burnt. Brain weight 1200 grms pale. Post-mortem concluded at 1.15 P.M. The Doctor issued Ex.P. 20, the postmortem certificate with her opinion that the deceased died on account of shock due to extensive burns about 20-24 hours prior to autopsy.
7. On 13.10.92, P.W. 26 examined P.Ws. 16 and 17, and on 5.12.92, he sent the material objects to the Magistrate with his requisition to forward them for analysis. The investigation in the crime was later, taken up by P.W. 27, the Inspector of Police, attached to C.B.C.I.D., Anna District, on the orders of the Deputy Inspector General, C.B.C.I.D. He verified the investigation conducted by P.W. 26 and also recorded the statements of P.Ws. 1 to 6. He searched for the daily report and monthly report of A-3 and enquired about the case in Crime No. 225/92 which was registered by A-3 at 4.00 a.m. on 11.10.92 against an accused, who has violated the provisions of the Kerosene Control Order read with Sec. 7(i) of the Essential Commodities Act. He examined P.Ws. 10, 11, 13 and 15, and their statements were recorded. On 20.1.1993, P.W. 27 met the Deputy Inspector General, Food Cell at Chennai and discussed about the case, which was registered in Crime No. 225/92 on the file of the C.B.C.I.D., Thanjavur. P.W. 14 who succeeded A-3, took up further investigation in Crime No. 225/92 on 12.1.1993. He sent a report to the Superintendent at Chennai, on the basis of which a charge memo Ex.P. 13 dated 16.4.93, was issued to A-3. Through a memorandum Ex.P. 14 dated 20.1.93, P.W. 14 was asked to reinvestigate the case in Crime No. 225/92, and investigation was taken up by P.W. 14 on 20.1.93. After he took up investigation in Crime No. 225/92, he examined P.Ws. 9, 10, 11 and 13, and their statements were recorded. They denied that the accused in Crime No. 225/92 was arrested, as shown by A-3. On 27.1.93, P.W. 14 sent the final report Ex.P. 15 in Crime No. 225/92 to the District Collector, Thanjavur and also a report to the Deputy Inspector General of Police, C.B.C.I.D., Chennai.
8. P.W. 27 came to know that A-1 had surrendered before the Judicial Magistrate No. II, Dindigul, and A-3 has obtained anticipatory bail before the Court of Sessions, Dindigul. P.W. 27 examined P.Ws. 16 and 17 and recorded their statements. He verified the records relating to Crime No. 225/92, and after obtaining the sanction order Ex.P. 26, to prosecute A-3, the final report was filed against all the accused under Sections 302 read with 34, 201 and 218 I.P.C.
9. The accused were questioned under Sec. 313 of the Code of Criminal Procedure on the incriminating circumstances appearing against them, and they denied all the incriminating circumstances. They examined one witness as D.W. 1 and marked Exs.D1 to D13 on their side.
10. The learned Public Prosecutor, assailing the judgment of the trial Court, submits that in view of the oral statement made by the deceased to P.W. 1 as well as the statement Ex.P. 21 made by her to the Sub Inspector P.W. 18 and in view of the statement Ex.P. 25 made by her to the Judicial Magistrate P.W. 20, the trial Judge was not justified in acquitting the accused and ought to have convicted them. He further submits that A-3 has created records to make it appear as if he was at Thanjavur at 4.00 a.m. on 11.10.92, and this was done only with a view to screen himself from the legal punishment for the offence of murder, which he has committed by joining with the other two accused in the case, and the trial Court ought to have accepted the statements made by the deceased, and convicted all the three accused by rejecting the defence theory that A-3 was at Thanjavur at 4.00 a.m. on 11.10.92.
11. We have perused the entire recorded evidence and heard the learned Senior Counsel appearing for the respondents/accused.
12. Even at the outset, we may say that the appeal has to be dismissed on account of several suspicious features, which we have noted in the case. It is also a settled principle of law that while dealing with an appeal against an acquittal, the Court should realise that by such acquittal the innocence of the accused gets strengthened and not weakened; and that the Court must be slow in upsetting an order of acquittal; and that if two views are possible, the appellate Court should take the view in favour of the accused and cannot upset the finding of acquittal and alter it into one of conviction on the ground that the other view in favour of the prosecution could have also been taken by the trial Court.
13. It is the case of the prosecution that the Medical Officer P.W. 16, examined the injured Bhakkiam at 5.30 a.m., who was produced before him by P.W. 1. Ex.P. 17 is the extract of the accident register. In the said accident register, it is found noted that kerosene was poured on her, and a match stick was lighted and thrown at her, by known persons on 11.10.92 at Kottaimettu Street at Periakalayamputhur. According to P.W. 16, the injured herself gave the above information, and she had 100% burn injuries. He went on to admit that on account of shock and pain and to relieve her pain, he administered Pethedin and Saline. According to him, Pethedin leads to sedation. He has also admitted that at 6.30 a.m., her pulse rate was poor. In the background of the above evidence of P.W. 16, we have to consider whether P.W. 18, the Sub Inspector, would have recorded the statement Ex.P. 21 alleged to have been given by the deceased at 6.00 a.m. P.W. 16 in his evidence stated that the Police had come at about 7.00 a.m., and if that be the case, the case of the prosecution that the statement was recorded by the Police Officer at 6.00 a.m. cannot be true. As already stated, the injured Bhakkiam was administered Pethedin, and according to the Doctor, it will cause drowsiness and sleeping to the person, to whom Pethedin is administered. This evidence of the Doctor, therefore, creates a suspicion in the mind of the Court, whether the injured Bhakkiam could have been in a fit state of mind to give details as regards the incident, to P.W. 18 for him to record Ex.P. 21.
14. In this background, when we look at the evidence of P.W. 18, it could be seen that he has admitted that the Serial Number of the F.I.R. for Ex.P. 22 is 906244, and the Crime Number is 487 of 1992. The earlier Crime No. 486 of 1992 relates to an offence under Sec. 427 I.P.C., and it bears Sl.No. 906242. According to P.W. 18, he did not know what happened to the printed First Information Report bearing Sl.No. 906243, and he is not in a position to say anything about it. In view of the admission of P.W. 18, a suspicion is created in the mind of the Court that probably, there was another statement given by the injured, and the same has been suppressed by P.W. 18. Be that as it may. P.W. 27, the Officer, who conducted investigation, admitted in his evidence that on 18.7.1992, summons were sent for the production of the General Diary and the First Information Reports Book from Palani Taluk and Town Police Station for the month, October 1992; and that they were not produced before the Court. These facts create a suspicion in the mind of the Court about the coming into existence of Ex.P. 22. 15. It is to be remembered that P.W. 1 went to the hospital by Taxi, and the Police Station was on the way. He did not attempt to go to the Police Station to lay a complaint, though nothing prevented P.W. 1 from taking P.Ws. 2 and 8 along with him, so that they could have been asked to go to the Police Station to give a complaint or they could have been asked to go to the hospital along with the injured Bhakkiam, and he could have gone to the Police Station to lay a complaint. The prosecution has no explanation as to why no complaint was laid at the Police Station at the earliest point of time. A perusal of the evidence of P.W. 2 shows that he went to the scene of occurrence; and that he sent away the injured Bhakkiam in a Taxi and later, went to the hospital, by saying that he did not go along with the injured Bhakkiam to the hospital in the Taxi, because he thought that it will create problem for him; but, he had a different story to tell, when he was examined during investigation. In the statement made by him to P.W. 26 and recorded under Sec. 161 Cr.P.C., he has admitted that it was he, who took the injured Bhakkiam to the hospital in the Taxi. It looks that P.W. 2 was in the Taxi along with P.W. 1, and therefore, either P.W. 1 or P.W. 2 could have gone to the Police Station and given a complaint, if really any of the two witnesses knew as to the cause of the injuries, when they took her to the hospital. The evidence of P.Ws. 1 and 2 discloses that P.W. 2 also must have been present along with P.W. 1 and should have gone to the hospital with him in the Taxi, and later, he came out with a different version before the trial Court only with a view to make it appear that no complaint was given at the Police Station by P.W. 1, as he was in a hurry to take the injured to the hospital. Therefore, we do not attach much importance to the statement Ex.P. 21, alleged to have been given by the injured Bhakkiam to the Sub Inspector P.W. 18.
16. Now, we will take up Ex.P. 25, the statement, alleged to have been given by the injured Bhakkiam to the Judicial Magistrate P.W. 20. According to P.W. 20, the Judicial Magistrate, Palani, the statement was recorded between 6.40 a.m. and 6.45 a.m., and it was attested by P.W. 16, the Medical Officer. A perusal of Exs.P21 and P25 shows that the deceased had no consistent version, when she gave the above two statements. In Ex.P. 21, she has stated that kerosene was poured by A-1, after she was pushed out of the house by A-3; and that the second accused threw a lighted match stick at her. The deceased Bhakkiam in her statement Ex.P. 25, given to the Magistrate, did not whisper a word about the part played by A-2, and her only statement as per Ex.P. 25, is that A-1 and A-3 poured kerosene and set fire. A-2, who was attributed with an overt act of throwing a lighted match stick at her in her earlier statement Ex.P. 21, was totally exonerated by her in the statement Ex.P. 25 given by her to the Magistrate. She also did not implicate A-2, when she allegedly made an oral statement to P.W. 1.
17. A perusal of the evidence of P.W. 20, the Judicial Magistrate shows that he did not mention in Ex.P. 25 that the deceased was mentally alert, and he went on to admit that the writing "L.T. Bakkiam" is not in his handwriting, and it was written by his staff; but, no such endorsement is seen made in Ex.P. 25. At this juncture, an useful reference can be made to the judgment of the Supreme Court in LAXMAN v. STATE OF MAHARASHTRA (2002 SUPREME COURT CASES (CRI) 1491). In the above judgment, the Supreme Court, after taking a birds eye view of all the judgments relating to the statements recorded under Sec. 32 of the Evidence Act, ultimately held that the Recording Officer concerned must find that the declarant was in a fit state of mind to make a statement. In this background, when we look at the evidence of P.W. 20, it could be seen that he did not even say in his evidence that he ascertained that Bhakkiam was in a fit state of mind to give a statement, but, only stated that she was found conscious, and the Doctor also has certified only to the extent that the injured Bhakkiam was conscious. The evidence of P.W. 20 is, therefore, helpful to the prosecution to the extent that at the time, when he went there, she was conscious; but, it does not show that she was in a fit state of mind to give a statement. In fact, in cross-examination, the Magistrate has admitted that he did not even make an endorsement in the said statement that Bhakkiam was mentally fit to give a statement.
18. The evidence of P.W. 20 is also to be considered in the background of the evidence of P.W. 17, the Medical Officer, who conducted autopsy. When cross examined, P.W. 17 stated that on account of extensive burns suffered by Bhakkiam, the nerve system of Bhakkiam would have been affected, and the function of the brain would have also been affected on account of the burns; and that she could not have been mentally fit to give a statement. The evidence of P.W. 20 that the deceased was only conscious, when he went there, and the absence of any evidence on the part of the Magistrate that she was mentally fit to give a statement, when looked at in the background of the evidence of the Postmortem Doctor that she could not have been mentally fit to give a statement, show that Ex.P. 25, the statement, could not have been given by a person, who was mentally fit. We, therefore, find it difficult to accept the statement Ex.P. 25. In this context, an useful reference can be made to a judgment of the Supreme Court in DANDU LAKSHMI REDDY v. STATE OF A.P. (1999 SUPREME COURT CASES (CRI) 1176), wherein the Supreme Court held that where the sphere of scrutiny of the dying declaration is a restricted area, the Court cannot afford to sideline the material divergence, relating to the very occasion of the crime, if two statements of the deceased cannot be reconciled with each other, and adopting a method and straining to give a finding in favour of the prosecution to the detriment of the accused in a criminal case is not a feasible course.
19. As we stated earlier, the statement Ex.P. 21, alleged to have been given by the deceased and recorded by P.W. 18, the Sub Inspector, and the statement Ex.P. 25, alleged to have been given by her and recorded by P.W. 20, the Judicial Magistrate, are contrary, since in the earlier statement, though she stated that it was the second accused, who set fire, she went back on the said statement in Ex.P. 25 by leaving out A-2 and implicating only A-1 and A-3 with the crime. This shows the inconsistent stand of the injured Bhakkiam, and we are of the view that it is not safe to rely upon such inconsistent statements of the injured. We are also unable to accept the evidence of P.W. 1 that the deceased gave an oral statement to him. He admitted that he did not see A-3 at the time of occurrence; and that he informed the Village Munsif that Bhakkiam has suffered burn injuries, when he was absent; and that the Village Munsif recorded his statement, which was sent to Palani Taluk Police Station through Thalayari Palanisamy. It is to be remembered that P.W. 1 did not whisper a word either to P.W. 2 or to P.W. 8 that Bhakkiam informed him that she was set on fire by the accused. If there was an oral statement of the injured Bhakkiam to P.W. 1, implicating the accused with the crime, then P.W. 1 would have certainly informed P.Ws. 2 and 8 as well as other villagers, who have gathered. It is the evidence of P.W. 2 that A-1 was present at the scene of occurrence. If there was any statement by the deceased to P.W. 1, then he would have certainly taken A-1 into custody with the help of the villagers, who gathered, and produced him before the Police Station, though admittedly, A-1 was present. The conduct of A-1 in informing P.W. 1 and bringing him to the scene of occurrence and not leaving the scene of occurrence, after the villagers gathered, also is in consonance with his innocence, and it is not in consonance with his guilt, as any man, who has committed an offence, normally will go away from the place and will not take the trouble of bringing other villagers to the place. P.Ws. 2 and 8 have also admitted that P.W. 1 did not tell them that the deceased made a statement implicating the accused, and we therefore, find it difficult to accept the evidence of P.W. 1 that Bhakkiam gave an oral statement, when he went to the scene of occurrence, after the information was given to him by A-1.
20. It is the case of the prosecution that A-3 created records as if he has seized kerosene from P.W. 13, who was in possession of the commodity in violation of the Kerosene Control Order; and that the said seizure was at 4.00 a.m. on 11.10.92. According to the prosecution, A-3 created Ex.P. 8, the First Information Report, registered in Crime No. 225/92 relating to the said incident. We will now consider whether the prosecution has succeeded in establishing that the documents prepared by the Officer A-3, were genuine or were created by him with a view to screen himself from the offence. P.W. 10, a Police Constable, attached to the Civil Supplies C.I.D., Thanjavur, who was present at the time of seizure, admitted that when he was examined by the Inspector, Crime Branch C.I.D., he did not inform him that A-3 has prepared a false case. Though P.W. 10 admits that he was examined on 13.10.92 by P.W. 26 along with a Police Constable Panneerselvam and the Driver of the police vehicle Rajendran; and that they gave all details regarding the occurrence in Crime No. 225/92, P.W. 26 denied having recorded the statement of P.W. 10 and otheRs. The statement of P.W. 10 was also not sent to the trial Court. The case of the defence is that since the statement of P.W. 10, which was recorded by P.W. 26, was not in favour of the prosecution, it was suppressed and was not sent to the trial Court.
21. According to P.W. 10, on 11.12.92, the D.I.G. Viswanathan inspected their Unit, and even at that time, he did not inform the Superior Officers about the alleged false case created by A-3. He has admitted that the case diary was recorded by him; and that he also wrote the statements of the Constable and the Driver. He went on to admit that if kerosene is seized, it will be sent to the Cooperative Society, and the sale proceeds will be deposited in the Treasury with a challan, which will be later, sent to the District Revenue Officer along with 6A report, and the final decision will be taken by the said District Revenue Officer. According to P.W. 10, P.W. 14 took charge on 14.12.92, and even after P.W. 14 took charge, he did not complain to P.W. 14 that A-3 threatened him and asked him to send mahazars; and that he prepared a false case. No action was in fact, taken against P.W. 10, Panneerselvam and others for preparing false records, and if really the records were created by P.W. 10, Pannerselvam and others, then action should have been taken against P.W. 10. The fact that no action was taken against any of the persons, who were present along with A-3 at the time of seizure, therefore, shows that the seizure was true, and A-3 was at Thanjavur, at 4.00 a.m. on 11.10.92.
22. It is also in evidence that to reach his house, A-3 has to travel 300 kilometers from Thanjavur, and P.W. 11, the Civil Supplies Tahsildar, Thanjavur, has stated that A-3 was present along with him; and that they went to meet the Minister In-charge of the Food and Civil Supplies at 7.30 p.m. P.W. 11 also in his evidence, admitted that a Taxi bearing Registration No. TN 49 4377 was engaged by the Department, and the trip sheet was written by him, and according to him, he will send the report to the Revenue Divisional Officer giving details regarding the distance travelled by them and claim the travelling allowance. Ex.D1 is the trip sheet of the vehicle, which was signed by P.W. 11, the Deputy Tahsildar, as well as by the Driver and otheRs. Ex.D2 is the monthly diary of P.W. 11, which was sent to the higher officials, after getting the signature of the Deputy Tahsildar, and Ex.D3 is the monthly report regarding the travels undertaken by P.W. 11. P.W. 11 has stated that Exs.D1 to D4 are genuine documents and also admitted that he went for a raid along with A-3 in a Taxi. A perusal of Ex.D4 shows that the raid was at 8.00 a.m. and 4.00 p.m. and thereafter, at 9.15 p.m. and 11.45 p.m., on 10.10.92.
23. The evidence also shows, as could be seen from Ex.D5, that A-3 was present at the Railway Station to see of the Minister for Food and Civil Supplies, and the train left only at 8.45 p.m.; and that A-3 was present till the train left the Station. P.W. 12, the Personal Assistant to the District Supply Officer, is the author of Ex.D5, and he admitted that the accused in the said Crime No. 225/92 filed a petition Ex.D8 admitting his guilt before the Revenue Divisional Officer; and that he was represented by a Counsel by name Geetha, and he was fined. P.W. 14 in his evidence stated that the Revenue Divisional Officer is the final authority as to what should be done in kerosene cases, and he would send 6A report. According to him, the case in Crime No. 225/92 is still pending. P.W. 23, attached to the Essential Commodities Court, Thanjavur, has in his evidence, stated that he did not know whether the First Information Reports in Crime Nos.215, 217 and 224 of 1992 have been received by the Court, and he did not even know whether any 6A report will be sent to the Revenue Divisional Officer and not to the Court, but admits that 6A report will not be sent to the Court. P.W. 14, though sent a report to the Collector stating that the case in Crime No. 225/92 is false, did not question all the witnesses in the crime, and he did not question the main person namely P.W. 13, who was shown as an accused in the said crime, as P.W. 13 would have been the best person to say that the case is a false one. He did not also send the statements of other witnesses, which were alleged to have been recorded along with Ex.P. 15, and only filed the final report Ex.P. 16 on 3.8.93. Though he has claimed that he examined P.W. 13 on 28.1.93, he admitted that on 14.7.93, he took a copy of the vakalath filed by the Advocate and also the admission petition of the accused, who was examined as P.W. 13 in this case; and that he did not question either the Advocate or P.W. 13 regarding the admission made by P.W. 13 before the Revenue Divisional Officer. He has also stated that on 15.7.93, he asked for the legal opinion, and that he did not get any reply, and also admitted that the case in Crime No. 225/92 is still pending enquiry and is not over.
24. A perusal of Ex.D9 clearly shows that the records in the said Crime No. 225/92 have been handed over to him, though according to P.W. 14, the records were not handed over to him by A-3. The admission of P.W. 14 in this background, that if records were not received or if there is any delay, a report will be sent within a month, to the higher officials assumes importance. Admittedly, he did not send any report, though he did not receive the records in Crime No. 225/92. He also admitted in his evidence that A-3 sent monthly reports to the S.P. and the D.I.G., and they were accepted by them. If that be the case, it is difficult to accept the prosecution version that the records were actually false records and were created by A-3 with a view to make it appear that he was at Thanjavur, especially in the background of the report of A-3 and the evidence of P.W. 11 that he was with him at the Railway Station till 9.00 p.m. on 10.10.92; and that he was also present with him, when they went for a raid between 11.00 p.m. and 1.00 a.m.; and that he has sent a report to S.P. and D.I.G. that he and A-3 went for a raid at 11.00 p.m., 1.00 a.m. and 4.00 a.m. and returned to the Station on 11.10.92 at 8.00 a.m. The same is not contradicted by the prosecution. As we stated earlier, if A-3 was present at the Railway Station at 9.00 p.m., it would have been difficult for him to have gone to his village covering a distance of 300 kilometers to return to Thanjavur to be present in his Office at 8.00 a.m. on 11.10.92, as he had to cover a total distance of 600 kilometers within 11 hours.
25. P.W. 27 though admitted that three Constables were parties to the creation of false records, he did not suggest to the higher officials that action must be taken against them for abetting the creation of false cases. Therefore, we find it difficult to accept the prosecution version that A-3 created false records in order to screen himself from the offence. Once the records prima facie show that A-3 was at Thanjavur at 4.00 a.m. on 11.10.92, then, it is difficult to accept the statements of Bhakkiam in Exs.P21 and P25, as true, since as we stated earlier, A-3 could not have been present in the village at the time of occurrence, and the said two statements, which are mutually contradictory to each other, could have been given by her at the instance of someone else. We, therefore, reject not only the prosecution theory that A-3 created false records, but also hold that the statements of the deceased in Exs.P21 and P25 did not conclusively establish the complicity of the accused, and in an appeal against acquittal, it is difficult for this Court to accept the prosecution version on the basis of the evidence and the statements of the deceased, which are suspect and are not satisfactory.
26. We, therefore, dismiss the appeal, as one which does not warrant an interference at the hands of this Court.