R. Balasubramanian, J.@mdashThe second accused in S.C. No. 24/2002 on the file of Court of Additional Sessions (Fast Track Court-I), Erode is the appellant in this appeal. He stands convicted in that sessions case u/s 302 I.P.C. for which he stands sentenced to undergo imprisonment for life. Along with him, two more persons arrayed as A1 and A3, were tried in the same sessions case for the offence u/s 302 r/w 34 I.P.C. and they also, at the end of the trial, stand convicted for the said offence and sentenced to undergo imprisonment for life. We called for a report from the registry as to whether A-1 and A-3 had filed any appeal questioning their conviction and the report is that they have not challenged their conviction in any manner known to law. In other words, there is no appeal at the instance of A-1 and A-3 in S.C. No. 24/2002 on the file of the Lower Court referred to above. Heard Mr. V.K. Muthusamy, learned senior counsel for the appellant and Mr. V.M.R. Rajendran, learned Additional Public Prosecutor for the State.
2. The case of the prosecution is that at about 3.30 a.m. on 9.6.2001, near a video shop called Rainbow Video Shop falling within the jurisdiction of the investigating police station in this case, A-2 killed the victim in this case by name Rangasamy by dropping a big stone on his head and during the same transaction, A-1, using a knife, caused an injury on the victims calf-muscle as well as on his right earlobe and A-3, with a stick, indiscriminately beat all over his body. That is how, as already stated, A-2 stands charged, tried and convicted for the offence u/s 302 I.P.C. and the remaining accused for the offence u/s 302 r/w 34 I.P.C. In substantiation of their case, the prosecution examined P.W. s 1 to 12 besides marking Exs-P1 to P16. The defence neither brought in any oral evidence nor documentary evidence before court. The prosecution had examined P.W. s 1 to 4 as eye-witnesses to the occurrence. We summarise hereunder the evidence of P.W. 1 about the occurrence proper. He is a resident of Chittode doing business in textiles. He goes from place to place, town to town in selling his goods namely, textiles. He carries on business along with P.Ws. 2 and 4, who always go together to all the places. A-1 to A-3 are their customers. On the previous night of the occurrence day, he along with P.Ws.2 and 4 went to see a late night cinema and after the film was over, they came to the tea shop of P.W. 3 located opposite to a private hospital called Thangam Hospital and were taking tea. It was around 3 or 3.15 a.m. on that morning namely, 9.6.2001. A-1 is employed in the tea shop of P.W. 3 and he was not there at that time. They asked P.W. 3 about the whereabouts of A-1 and the answer was, he just left. They noticed a commotion opposite to the Rainbow Video Shop located near Thangam Hospital. Accordingly, all the three went out and saw and at that time, they found A-1 to A-3 threatening a 30 year old male. A-1 was armed with an aruval and there was a conversation between them. Immediately, A-2, holding the collar of the said individual pushed him down. The victim stood up and again talked, which resulted in A-2 giving a command to finish him off. Immediately, A-1 with the aruval in his hand, cut on the right earlobe as well as on the left leg calf-muscle of the victim. A-3 took up a log available there and indiscriminately beat all over the body of the victim and A-2, picking up a big stone available there, dropped it on the head of the victim. The witness, P.Ws.2 and 4 along with P.W. 3 went there and watched. A-1 ran away, with the weapon of offence in his hand. A-2 and A-3 also ran away. They found the injured unconscious. As the witness had to collect a baggage coming in private travels bus at 5 a.m. and as it was already late, he went to collect the baggage. He collected the baggage at about 5 a.m. and then came back to the scene of occurrence to find out what happened thereafter. The victim was lying dead and there was a huge crowd. Since, he did know to write, he asked the person standing nearby to write down the complaint narrated by him which he took and gave it to P.W. 10, the Sub-Inspector of Police. The said complaint is Ex-Pi. M.O.s 1 to 3 are the respective weapons of offences in the hands of A-1, A-3 and A-2. P.W. 2 had given evidence regarding the occurrence proper in total corroboration to the oral evidence of P.W. 1. P.W. 4 would only state that he saw around 7 p.m. on 8.6.91, all the three accused chatting with each other; that he overheard their conversation to finish off Rangasamy the victim in this case and on being threatened, he left the place.
3. P.W. 10 is the Sub-Inspector of Police in the investigating police station. At about 6 a.m. on 9.6.2001, P.W. 1 appeared and gave the complaint, which he registered in his police station crime No. 484/2001 u/s 302 I.P.C. Ex-P1 is the said complaint. Ex-P12 is the printed First Information Report which he sent to the court as well as to the higher officials. P.W. 11 is the investigating officer in this case. On receipt of the material records from P.W. 10, he reached the scene of occurrence at 7.15 a.m. and in the presence of witnesses, he prepared Ex-P13. Observation Mahazar and Ex-P14-rcftigh sketch. Through P.W. 8, he caused photographs of the dead body to be taken and M.O.s 6 and 7 series are the photographs and the negatives. He recovered M.O.s 2 to 5 from the scene of occurrence under Ex-P4 attested by P.W. 5 and another. Then, he conducted inquest over the dead body in the presence of panchayatars and witnesses. Ex-P15 is the inquest report. Thereafter, he sent the dead body through P.W. 9 along with requisition Ex-P5 for postmortem to the Government Hospital, Erode.
4. P.W. 9 accordingly accompanied the dead body with the requisition to the hospital for postmortem. He was present throughout postmortem. After postmortem, he removed M.O.s 8 to 10 from the dead body and handed over the same in the investigating police station along with his special report Ex-P11. P.W. 6, on receipt of Ex-P5 requisition and the dead body, commenced postmortem at 4.25 p.m. on 9.6.2001. During postmortem, he found various symptoms as noted by him in Ex-P6, the postmortem report. The symptoms are as hereunder: External Injuries:
1. Lacerated wound 5 � 2 � 1 cm right ear. Part of right ear is missing.
2. Contusion 5 � 5 cm right parieto occipital region.
3. Lacerated wound 4 � 2 � 1 cm left calf muscle region.
4. Abrasion 2 � 2 cm left hand.
5. Abrasion 3 � 3 cm right knee.
6. Contusion 3 � 3 cm above right eyebrow.
7. Contusion 3 � 3 cm above left eyebrow.
Internal Examination:
Heart 150 gms, pale. Lungs Right 400 gms, left 350 gms, pale. Hyoid bone intact. Stomach contains 100ml of partially digested yellow coloured food material. Liver 1000 gms, pale. Spleen 100 gms, pale. Kidney 150 gms, pale. Bladder empty. On opening of skull, 1) Fracture skull bone 30 cms, in length transversely placed extending from left temporal bone passing through parietal bone and enter in right temporal bone. 2) Right temporal bone fractured into 3 pieces. A bone fracture line extends into middle cranial fossa. 100ml of clotted blood seen in the base of skull. Brain 1000 gms, pale.
The doctor is of the opinion that the deceased would appear to have died 12-18 hours prior to autopsy .due to injuries sustained.
5. P.W. 11 continued the investigation by examining other witnesses and recording their statements. He examined the doctor, who did postmortem by showing the weapons of offences and recorded his statement. At about 6.45 p.m. on 9.6.2001, he arrested A-1 and examined him. At that time, A-1 gave a voluntary confession statement, the admissible portion of which is Ex-P16. Pursuant to Ex-P16, M.O.1 came to be recovered at the instance of A-1 under Ex-P2. He examined the constable who accompanied the dead body for postmortem and recovered M.O.s 8 to 10 produced by him after postmortem. At 7.30 a.m. on 12.6.2001, he arrested A-2 and A-3, on they being identified and sent them for judicial remand. Then, he sent a requisition to the court to subject the case properties for chemical examination. P.W. 7 is the magisterial clerk, who speaks about the receipt of the case properties; Ex-P7 requisition given by the investigating officer to subject the case properties for chemical examination; sending the case properties to the laboratory as an enclosure to courts letter Ex-P8 and receipt of Ex-P9 series and Ex-P10 series, the Chemical Examiners Report and Serologists Report respectively. P.W. 12 succeeded P.W. 11 and he verified the investigation already done and thereafter, he filed the final report in court against the accused for the offences referred to earlier. When the accused were questioned u/s 313 Cr.P.C. on the basis of the incriminating materials made-available against each one of them, they denied the entire case of the prosecution as false and contrary to facts. As already stated, neither oral evidence nor documentary evidence was brought before court at their instance.
6. Mr. V.K. Muthusamy, learned senior counsel appearing for the appellant would submit that P.W. s 1, 2 and 4 are shown to be residents of a place other than the place where the occurrence is shown to have taken place. P.W. 3 and the watchman of Thangam Hospital (a private hospital) were near the scene of occurrence itself and when they claim to have seen the occurrence, then the Investigating Officer would have done better by having the information lodged by either of them. But for reasons best known to him, the investigating officer had not done so, but chose to take the complaint from P.W. 1, who resides atleast 15 kms. away from the scene of occurrence. Therefore, the presence of P.W. 1, being in the nature of a chance witness, the court has to find out whether there is any possibility at all for P.W. 1 to be present at that time in the scene of occurrence. Likewise, P.Ws. 2 and 4 also do not claim to be residents of the same area in question. Having regard to the fact that the occurrence is shown to have taken place at about 3.00 a.m or 3.15 a.m. on 9.6.2001, the presence of P.W. s 1, 2 and 4 is highly doubtful and therefore, this Court can easily reject the evidence of P.W. s 1, 2 and 4. It is his further submission that since the case of P.Ws. 1 and 2 is that both of them along with P.W. 4 were moving as one unit all the time; meet at the same time; likewise part at the same time and when all the three claim that they witnessed the occurrence, then it is rather surprising as to why P.W. 4 did not even utter a word about the occurrence. P.W. 4 had not been treated as hostile. Therefore, if P.Ws. 4 evidence is had in mind in considering the evidence of P.W. s 1 and 2, then having regard to their place of ordinary residence, this Court can easily visualise that P.W. s 1 and 2 are concocted witnesses. The most appropriate witness to speak about the occurrence is P.W. 3 and he turned hostile. The non-examination of watchman of private hospital called Thangam Hospital also assumes considerable importance. The learned senior counsel would also state that P.W. 1 had considerable difficulty in identifying the accused in court and he was always pointing to the wrong person in court naming him either as A-1 or A-2 or A-3. All these facts cumulatively would show that all is not well with the case of the prosecution is the submission made by the learned senior counsel. Mr. V.M.R. Rajendran, learned Additional Public Prosecutor for the State would contend that the evidence of P.W. s 1 and 2 would definitely pass the test of reliability and there is nothing unusual in their evidence to show that they did not see the occurrence. The complaint had reached the court within a short time and it adds credibility to the evidence of P.W. s 1 and 2. Therefore, the learned Additional Public Prosecution would argue for confirming the conviction.
7. Having regard to the submissions made by the Learned Counsel on either side, we went through the entire materials on record. There is no difficulty in this case to hold that the victim died due to homicidal violence. P.W. 6 is the doctor, who did postmortem and Ex-P6 is the postmortem report. It establishes beyond doubt, as already stated, that the cause of death is due to homicidal violence. The defence has also not disputed that fact. Therefore, we hold that the victim in this case died due to homicidal violence. The question that follows is whether the prosecution had established beyond doubt that it is only the accused and the accused alone, who are responsible for the death of the victim in this case. For this purpose, the prosecution heavily relied upon the evidence of witnesses (i.e.) P.W. s 1 to 4 of whom P.W. 3 turned hostile. The evidence of P.W. s 1 and 2 establishes beyond doubt that all of them (P.W. s 1, 2 4) were together when they claim to have watched the incident. We have already stated that P.W. 3 turned hostile. The evidence of this witness recorded till he was treated as hostile do not improve the case of the prosecution at all. Then, we examined the evidence of P.W. 4. He claims to have overheard the conversation at about 7.30 p.m. on the evening of 8.6.2001 during which the accused decided to finish off the victim in this case. The occurrence in this case is shown to have taken place about 8 to 9 hours after that conversation. Accepting it to be so, namely, he overheard the conversation of the accused, P.W. 4 does not even whisper about the occurrence proper itself. If he had really witnessed the occurrence and that is the evidence of P.W. s 1 and 2, then we find no reason at all as to why he was totally silent on the occurrence proper. The investigating agency have not even treated him as hostile. Therefore, when P.W. s 1 and 2 claim that the entire occurrence was witnessed not only by them, but also by P.W. 4, we expect P.W. 4 to speak on the same lines as P.W. s 1 and 2. P.W. s 1, 2 and 4 are shown to be close friends moving jointly in their venture of selling textiles. Therefore, the very conduct of P.W. 4 in not speaking in favour of the prosecution, as spoken to by P.W. s 1 and 2, raises our doubt as to whether P.W. s 1 and 2 also would have seen the occurrence.
8. P.W. 1 is a resident of Chittode and P.W. 2 is a resident of Vidiyarasampalayam in Namakkal District. The occurrence is stated to have taken place in Periyar District. The occurrence time, according to P.W. s 1 and 2, is around 3 or 3.15 a.m. on 9.6.2001. There is definitely a delay in lodging information with the police. The delay is about 3 hours. We are fully aware that mere delay in lodging the complaint with the police would not, by itself, vitiate the entire case of the prosecution if the evidence of the eye-witnesses is found to be credible and trustworthy. We have already found that two out of four eye witnesses examined in this case did not support the case of the prosecution out of which one (i.e.) P.W. 4 was not even treated as hostile. P.W. 1 would state that he and P.W. 2 saw the occurrence and since, he had to clear some baggage coming in a private omnibus at about 5 a.m. on that day and as it was late already, he went to the bus-stand to clear the baggage; left it with the private omnibus operators office itself and then came back to the scene of occurrence. P.W. 2 would also state that he also had to go to the bus-stop to clear the baggage. There is no evidence on record to show that in fact, baggages meant for P.W. s 1 and 2 came from Bangalore through the private omnibus operator namely, KPN Travels. It is common knowledge that KPN Bus Service is one of the leading omnibus operators and therefore, the prosecution would not have had any difficulty at all to verify and place before court the proof on an important aspect namely, baggages were brought in the omnibus of KPN Travels and it was cleared by P.W. s 1 and 2. This evidence is totally lacking in this case. In this context, we see that in the complaint given by P.W. 1, he had stated that he had gone to the bus-stand to receive his friend, but the evidence is otherwise. Whatever it is, in the absence of such an important material, namely, baggages came for P.W. s 1 and 2 in the bus as spoken to by them, we have every reason to doubt whether P.W. s 1 and 2 could have been present at the scene of occurrence. All the more worse is the conduct of P.W. s 1 and 2, who would say that after clearing the baggage from the bus-stand (assuming they have cleared), they came back to the scene of occurrence to find out what had happened thereafter. This appears to be an unusual conduct on the part of P.W. s 1 and 2. On seeing a grave crime, the impulsive reaction may be immediately to rush to the police station and give the complaint or stay in the place of occurrence itself out of anxiety till the police arrives or leaves the place for good. But, in this case, P.W. s 1 and 2 claim to have left the place without even informing the police to clear the baggage and they would further request the court to believe their evidence that they came back to the scene of occurrence to verify what had happened at the scene of occurrence. Looking from any angle, the evidence of P.W. s 1 and 2, as stated above, is far from convincing and it does not impress us at all. The police station is admittedly 1 km away from the scene of occurrence. The scene of occurrence is a busy thoroughfare in Erode town buzzling with commercial activities. Therefore, we have, no doubt at all that an information relating to this crime would have definitely reached the police station much earlier to the complaint stated to have been lodged by P.W. 1 at about 6.30 a.m. We are also of the opinion that finding no useful clue about this crime namely, as to how the occurrence took place, the prosecution could have fixed P.W. s 1 and 2 as eye-witnesses to the occurrence and got the complaint from P.W. 1. The investigating officer, in his evidence in cross-examination, had categorically admitted that his investigation revealed that the watchman of Thangam Hospital (private hospital) had seen the occurrence, and yet, he had not given any complaint. He also admits that P.W. 3 also did not give any complaint to him. We are also surprised to see that if really, the occurrence was known to the two persons referred to above, the investigating officer had not even chosen to examine the watchman of the private hospital as a witness in this case. As already stated, out of the three witness namely P.W. s 1, 2 and 4, who all claim to have seen the occurrence, P.W. 4 did not support the prosecution case and he had not even been treated as hostile. From the evidence of these witnesses, it is seen that they were always moving together at all points pf time, the possibility of P.W. s 1 and 2 witnessing the occurrence stands, in the context of P.W. 4''s evidence, exposed to doubt. Therefore, we are not inclined to accept the evidence of P.W. s 1 and 2.as eye-witnesses to the occurrence. If that is so, Ex-P1 complaint given by him to the police also falls to the ground. Simply because P.W. s 1 and 2 had given evidence strictly in accordance with the contents of Ex-P 1, it would not necessarily mean that their evidence must be accepted as gospel truth since we are doubting their very presence at the scene of occurrence. Consequently, giving the benefit of doubt available in the prosecution case to the accused and in the light of our discussion referred to above, we are of the opinion that the judgment under challenge is not supported by legal evidence and accordingly, it is set aside. The second accused/appellant is acquitted of all the offences for which he was charged, tried and convicted. The appeal is allowed.
9. At this stage, Mr. V.K. Muthusamy, learned senior counsel, relying upon the judgment of the Supreme Court in
As noticed earlier accused Parvin Kumar, husband of the deceased, Geetu Kumar, has not preferred an appeal before this Court, on account of the fact that he has already served out the sentence imposed against him. However, though we cannot obliterate the sufferings of Parvin Kumar, we can certainly obliterate the stigma that attaches to him on account of his conviction for a heinous offence u/s 304B of the I.P.C. this Court has laid down a judicious principle that even in a case where one of the accused has not preferred an appeal, or even if his SLP in dismissed, in case relief is granted to the remaining accused and the case of the accused, who has either not appealed or whose SLP has been dismissed, stand on the same footing, he should not be denied the benefit which is extended to the other accused. This has been held in
10. We find force in the submission of the learned senior counsel. A-1 and A-3 are similarly placed in this case as A-2. The case of the prosecution is also on the same lines against all the accused. Therefore, we see no reason as to why we should not give the benefit of our judgment to A-1 and A-3 also though they have not filed any appeal. Accordingly, we are inclined to set aside the judgment in challenge even against A-1 and A-3 and they are also acquitted of all the offences for which they were charged, tried and convicted. All the accused are directed to be released forthwith unless they are required in connection with any other case.
