M. Chocklingam, J.@mdashThis judgment shall govern all the above six appeals. C.A. No. 426/01 is by A-1; C.A. No. 482/01 is by A-7; C.A.
No. 507/01 is by A-3 and A-4; C.A. No. 648/01 is by A-6; C.A. No. 649/01 is by A-2 and C.A. No. 650/01 is by A-5 in S.C. No. 63 of
2000 on the file of the II Addl. Sessions Judge, Coimbatore.
2. The appellants before this Court in all these appeals stood charged, tried and found guilty as detailed below :-
Charge No. Charge against Finding Conviction
1 A-1, A-2 and A-4 to A-6 u/s 147 IPC Guilty
1 year R.I. and Rs. 100/= fine, in default
2 months R.I.
2 A-3 u/s 148 IPC Guilty
2 years R.I. and Rs. 100/= fine, in default
2 months R.I.
3 A-1 & A-3 u/s 307 IPC Guilty
5 years R.I. and Rs. 1000/= fine, in default
1 year R.I.
4 A-1 to A-6 u/s 364 IPC Guilty
5 years R.I. and Rs. 1000/= fine, in default
1 year R.I.
5 A-7 u/s 634 read with 149 IPC Guilty
5 years R.I. and Rs. 1000/= fine,
in default 1 year R.I.
6 A-7 u/s 147 IPC Guilty
1 year R.I. and Rs. 100/= fine, in default
2 months R.I.
7 A-5 u/s 302 IPC Guilty
Life Imprisonment
8 A-1 to A-4, A-6 and A-7 u/s 302 read
with 149 IPC Guilty
Life Imprisonment
9 A-1 to A-7 u/s 201 IPC
(Additional charge) Guilty
5 years R.I. and Rs. 1000/= fine, in default
1 year R.I.
3. The short facts necessary for the disposal of this appeal, shorn of unnecessary details, could be stated thus :-
P.W.8 purchased a garden-land in respect of which there was a dispute between him and one Damodharaswamy, the father of A-3 and A-4. The
said Damodharaswamy claimed that he has got a share in the field. In the circumstances, P.W.8 sought the help of A-7 to prevent the said
Damodharaswamy from creating trouble. P.W.8 paid Rs. 5 lakhs to A-7 in three instalments and gave him a jeep also. A-7, at the instance of
P.W.8, created problems for Damodharaswamy. A case regarding the land dispute was also filed and it went in favour of P.W.8. A-7 registered a
lease executed by P.W.8 in the name of one Thangamuthu. A-7 was also pestering P.W.8 to give further money, to which course P.W.8 was not
amenable. Thereafter, A-7 did not show the same loyalty that he was showing towards P.W.8 and he began to show loyalty towards
Damodharaswamy and began to intimidate P.W.8 directly and also by phone.
4. On 29.11.97 at about 11.00 a.m., the prosecution witnesses were making some improvements in the said garden-land. Twenty persons
including A-1 to A-7 came over there and picked up a quarrel. The matter was informed to the police authorities and on the intervention of the
police authorities the situation was pacified at that time.
5. On 30.11.97, at about 8.00 a.m., the deceased Muthusamy, the son of P.W.8, P.W.s 1, 2 and 5 planned to go and meet their counsel at
Palladam regarding the dispute with regard to the garden-land. The deceased Muthusamy travelled in his motorbike, which stands marked as
M.O.3. P.W.s 1, 2 and 5 hired a taxi belonging to P.W.7. The said taxi was also driven by P.W.7. The witnesses followed the deceased, who
went in the bike. When they were proceeding near Muthukumaraswamy temple, the accused came in a jeep, which is marked as M.O.2, driven by
A-1. They overtook the taxi at Palladam Tharapuram road junction and dashed against the motorbike driven by the deceased. When the deceased
fell down from the bike, A-1 attempted to cut the deceased with an aruval, but the deceased escaped. When the deceased tried to run, he was
chased by the accused. A-3 beat the deceased on his leg with a stick. A-2 shouted at the other accused and asked them to throw the deceased
into the jeep so that they could all take him to the garden-land of A-7. The accused took the deceased in the said jeep and proceeded towards
Tharapuram. P.W.s 1, 2 and 5 chased the jeep for a distance of 4 Kms., but in vain. P.W.8 was informed over phone about the occurrence.
6. At about 10.00 a.m., P.W.1 went to Palladam police station and gave a written report to P.W.15, the head constable, which stands marked as
Ex.P-1. On the strength of the said report, Ex.P-1, a case came to be registered in crime No. 970/97 against the accused for an offence under
Sections 363, 307 and 109 IPC. Ex.P-15 is a copy of the printed first information report.
7. On receipt of a copy of the printed first information report, P.W.16, Inspector of Police, Palladam police station, took up investigation. He went
to the scene of occurrence at about 10.30 a.m., made an inspection in the presence of two witnesses and prepared an observation mahazar, Ex.P-
4. At about 11.30 a.m., he went to Trichy road near Manapalayam and prepared a rough sketch, Ex.P-16 as regards the place where the bike
was found abandoned. He recovered the motorbike, M.O.3 bearing registration No. TNJ-1591, M.O.1, stick and M.O.4 series, broken glass
pieces, under a mahazar, Ex.P-5, in the presence of witnesses. He seized bloodstained tar road portion, M.O.5 and sample tar road portion,
M.O.6 under the cover of a mahazar, Ex.P-6. The place of occurrence was caused to be photographed through the photographer, P.W.12.
8. P.W.16, continuing with his investigation, examined P.W.s 1, 2, 4, 5, 7, 8, 9 and 10 and their statements were recorded. On 1.2.98 at about
4.30 p.m., he arrested A-1, A-2, A-4. A-1 gave a confessional statement, the admissible portion of which is marked as Ex.P-17. Consequent
upon the same, he took the police party to the garden-land of A-7 and identified the place where the murder was committed. The investigating
officer, P.W.16, prepared an observation mahazar, Ex.P-18 and drew a rough sketch, Ex.P-19 as regards that place. The accused, thereafter,
took the police party near Alagiam bridge over Amaravathi river and identified the place where they threw the dead body of the deceased in the
river. P.W.16 prepared an observation mahazar, Ex.P-20 and also drew a rough sketch, Ex.P-21 as regards that place. Thereafter, the accused
were taken to the poultry farm belonging to one Balasubramaniam. They identified the jeep, M.O.2 and the same was seized under a mahazar,
Ex.P-22. After the examination of the accused by the investigating officer on 1.2.98, the case was altered to one under Sections 364(A), 302 and
201 IPC. Ex.P-23 is the first information report in the altered crime and the same was despatched to the court. On 19.4.98 P.W.16 arrested A-5
and A-6 and they were sent to court for remand. A-3 and A-7 were found absconding. After the completion of the investigation, final report was
filed against the appellants before the court on 1.5.98. The case was committed to the court of sessions and necessary charges were framed.
9. In order to substantiate the charges levelled against the accused, the prosecution marched sixteen witnesses and relied on twenty-three exhibits
and ten material objects. On completion of the evidence on the side of the prosecution, the accused were questioned u/s 313 Cr.P.C. on the
incriminating circumstances found in the evidence of the prosecution witnesses. They denied all the incriminating circumstances. No defence witness
was examined. On completion of the evidence, the court heard the arguments advanced by either side and on scrutiny of the materials, found the
accused guilty and awarded the punishment as referred to above. Hence, the present appeals at the instance of the appellants, aggrieved over their
conviction and sentence.
10. Learned senior counsel advancing his arguments on behalf of the appellants would submit that in the instant case, the prosecution came out with
a specific case that on the date of occurrence, P.W.s 1, 2, 3, 4, 5 and 9 were all proceeding in a taxi owned and driven by P.W.7 to meet their
advocate since there was a dispute raised by the accused party. The deceased was proceeding in front in a motorbike. When they were all
proceeding in the taxi of P.W.7, following the deceased, the accused followed them in a jeep, which was driven by A-1. They overtook the taxi
and dashed against the motorbike and when the deceased fell down, A-1 attempted to cut the deceased with an aruval, but the deceased escaped.
A-3 beat him and A-2 shouted that he should be put in the jeep and taken to the garden-land of A-7. Accordingly, he was put in the car. It is the
further case of the prosecution that following the abduction the deceased was murdered and thrown into the river. The learned senior counsel
would submit that in order to prove the case, the prosecution relied on the direct evidence of the witnesses, namely, P.W.s 1, 2, 3, 4, 5 and 9 and
of them P.W.3 turned hostile and the prosecution, therefore, very much relied on the evidence of P.W.s 1 and 2. It would be quite clear from the
evidence available that these witnesses could not have seen the occurrence at all. The specific case of the prosecution was that all the prosecution
witnesses followed the deceased in a taxi and the deceased was proceeding in front in a bike. The taxi was driven by P.W.7. But P.W.7 has
categorically given evidence that all of them came in his taxi he drove the taxi and they found the bike of the deceased and they came to know
about the incident that has happened there. Thus it would be clear from the evidence of P.W.7 that the witnesses could not have seen the
occurrence at all, but they have gone to the place after the occurrence was over. Even assuming the occurrence has taken place, P.W.7 has gone
to the extent of stating that it was an accident and this evidence of P.W.7, who admittedly drove the car taking all the witnesses in the car has
thoroughly destroyed the case of the prosecution in which the prosecution witnesses have stated that when they were following the motorbike of
the deceased, the accused overtook the taxi, dashed against the motorbike and A-1 tried to cut the deceased and when he escaped, A-3 beat him
with a stick and A-2 shouted that he should be put in the car and taken to the garden-land belonging to A-7 and, therefore, in view of the evidence
of P.W.7, the evidence of the eye witnesses is too tall a claim to be believed. Apart from that, the trial court has relied on the evidence of P.W.8. It
is a matter of surprise to note that even as per the evidence of P.W.1, P.W.8 was informed about the occurrence when he was in his house. P.W.1
and others went to the police station and they found that P.W.8 was present there at the police station. In the instant case, learned senior counsel
would further submit that even at the place of occurrence, according to the prosecution, it was the direction of A-2 to put the deceased in the jeep
and take him to the garden-land of A-7 and this fact is found mentioned in the first information report, but even then no investigation was done by
the investigating officer as regards that phase. Added further, the learned senior counsel, the case was altered to one u/s 302 IPC and other
provisions of law after examination of witnesses only on 1.2.98, though the occurrence took place on 30.11.97 and there is no explanation for this
enormous delay. Apart from that, the investigation in that regard was not on the proper lines. Added further the learned senior counsel that in the
instant case, the dead body was never found, but the place was identified by the accused as the place of murder where the dead body was thrown
into the river, but the two witnesses examined in that regard also turned hostile and, therefore, nothing is available to connect the accused with the
crime and this was argued before the trial court elaborately and the trial court should have disbelieved the prosecution case, but has erroneously
found the appellants guilty and, hence, they are entitled for acquittal.
11. The Court heard the learned Addl. Public Prosecutor appearing for the State on the above contentions and also perused the recorded
evidence, both oral and documentary.
12. In the instant case, the specific case of the prosecution is that the son of P.W.8 was murdered and his body was thrown at a particular spot in
the river. It is the admitted case that the dead body was not recovered. In order to substantiate the act of the accused that on the day of
occurrence the prosecution witnesses, who according to the prosecution are eye witnesses, went in a taxi owned and driven by P.W.7, they
followed the motorbike of the deceased and at the Palladam Tharapuram road junction, the accused party overtook the taxi and dashed against
the motorbike as a result of which the deceased fell down and that A-1 attempted to cut him, but the deceased escaped and, thereafter, A-3 beat
him with a stick and that A-2 shouted to the other accused to put him in the jeep and take him to the garden-land of A-7 and, accordingly, he was
abducted and murdered thereafter. Now, so far as the act of murder is concerned, no evidence has been putforth by the prosecution to prove the
said act. But in the instant case, from the place of occurrence from which the deceased was abducted, the prosecution relied on the direct evidence
of the eye witnesses. But in the instant case it is the admitted position that these witnesses, who according to the prosecution are eye witnesses,
travelled in the taxi owned and driven by P.W.7. P.W.7 has categorically admitted in his evidence that it is true that they travelled in his taxi, but
when they went to the place they found only the motorbike of the deceased left alone and nobody was present. Thus it would be indicative of the
fact that these witnesses, who travelled in the taxi of P.W.7 could not have seen the occurrence at all. Taking into consideration the evidence of
P.W.7, who drove the taxi, he also would have seen the occurrence, but P.W.7 has not whispered anything, but on the contrary would only say
that when they went to the place of occurrence, they only found the motorbike. He would further add that they came to know about the incident,
and as rightly pointed out by the learned senior counsel, the evidence of P.W.7 itself would be suffice to destroy the case of the prosecution that
the occurrence was witnesses by the so-called witnesses.
13. In the instant case, the occurrence had taken place on 30.11.97 and within a short time a report was given by P.W.1 to P.W.15, the head
constable, who registered a case u/s 307 IPC and other provisions of law and investigation was also taken up by the investigating officer, P.W.16,
on receipt of the copy of the printed first information report. Though the occurrence had taken place on 30.11.97 and a specific averment is also
made against specifically named accused and apart from that there is a specific averment in the complaint that A-2 directed all the other accused to
take the deceased in the jeep to the garden-land of A-7, while so, the investigating officer, who took up investigation, should have proceeded to
the garden-land of A-7 to find out the truth or otherwise of the averments made, but the investigating officer has not done so and more particularly,
no investigation has been done in that regard or on the said lines. On the contrary, the case was altered to one u/s 302 IPC only on 1.2.98 after
examination of the witnesses and that too nearly after a period of two months and in the interval of two months what was the investigation done has
not been brought forth.
14. Apart from that, in the instant case, the dead body was not traced out. According to the prosecution, the accused took the police party to the
place where the murder took place and also to the place where they threw the dead body into the river and the investigating officer prepared an
observation mahazar and drew a rough sketch in the presence of witnesses, but the two witnesses examined in that regard turned hostile. Thus
there is no direct evidence as to whether such an occurrence took place and whether the deceased was actually murdered and his body was
thrown into the river and, therefore, the case of the prosecution is highly doubtful, since the prosecution has not taken any action for a period of
two months, which would indicate the lethargic attitude on the part of the investigating agency in this regard.
15. Though the prosecution came out with a specific case by relying on the direct evidence, this Court has to point out that the direct evidence
cannot be believed for the reasons mentioned above and the prosecution is also unable to show that the witnesses actually witnessed the
occurrence. Apart from that, in the instant case, the case came to be altered to one u/s 302 IPC after a period of two months and there is no
explanation or acceptable legal evidence explaining the delay. In such circumstances, the trial court, without considering all the evidence placed by
the prosecution in its proper perspective, has found the appellants guilty, carried away by the considerations, which are of no relevance to the case
and, hence, this Court has to necessarily accept the contentions putforth on the side of the appellants and, therefore, the appellants are entitled for
an acquittal.
16. In result, the criminal appeals are allowed. The conviction and sentence awarded by the trial court are set aside and the appellants are
acquitted of all the charges framed against them. Fine amounts, if any, paid by them shall be refunded. Bail bonds executed by them shall stand
cancelled.
