K.N. Basha, J.@mdashThe Appellants, who have been arrayed as A4, A8 and A-10 have come forward with the Criminal Appeal No. 280 of 2002 and the Appellants A1, A2, A3, A5, A6, A7, A8 and A9 have come forward with Criminal Appeal No. 386 of 2002 challenging their conviction and sentence imposed by the learned District Sessions Judge (Special Judge) Communal Clashes Cases, Madurai, dated 06.02.2002 made in S.C. No. 27 of 1999 convicting A1 and A2 for the offences u/s 302 IPC and sentencing them to undergo life imprisonment with a fine of Rs. 5,000/-each in default, to undergo two years rigorous imprisonment and convicting others, namely, A3, A5, A6, A7 and A9 for offence u/s 302 read with 149 IPC and sentencing them to undergo life imprisonment with a fine of Rs. 5,000/-each in default to undergo two years rigorous imprisonment and A4, A6 to A8 and A10 sentencing them to undergo six months rigorous imprisonment for offences u/s 147 IPC, A1 to A3, A5, A9 to undergo one year rigorous imprisonment for offence u/s 148 IPC. For A4, A8 and A10 to undergo three months rigorous imprisonment for offence u/s 323 IPC and for A1 to A10 to undergo three months rigorous imprisonment for offence u/s 427 IPC and in respect of offence u/s 448 IPC to undergo three months rigorous imprisonment. The sentences are ordered to run concurrently.
2. There are originally 12 accused, namely, A1 to A12. The learned trial Judge acquitted A-11 and A-12 disbelieving the prosecution case in respect of them. The learned Additional Public Prosecutor would submit that A4 and A8 died pending disposal of this appeal and also produced the postmortem certificate and death certificate respectively. It is seen that the Village Administrative Officer has given a certificate dated 25.10.2009 to the effect that A4 died. The perusal of the postmortem certificate reveals that A8 died on 01.11.2003. Therefore, in view of the same, the Criminal Appeal No. 280 of 2002 abated in respect of the Appellants 4 and 8.
3. The background facts of the case, as unfolded during the evidence of the prosecution witnesses, are hereunder:
(a) P.W.1 is the wife of the deceased. P.W.8 is the daughter of the deceased. P.W.7 is the daughter of P.W.5. The prosecution party and the accused party are the residents of the same Village Theerthakadu at Vandiyur Village, Madurai District. The accused party belonging to Adi Dravidar Community and the prosecution party belonging to other community, namely, caste Hindus. Due to flood in Vaigai river, the villagers, irrespective of the communities, occupied the land belonging to the temple and they were residing in the said place. The deceased was taking steps for getting assignment of patta in respect of the said land. There were two associations namely, Adi Dravidar Welfare Association and Residents Welfare Association from other caste. The deceased was residing nearer to the house of A-1. There were strained feelings between those two association members.
(b) On the fateful day of occurrence i.e. on 30.06.1997 at 8.00 a.m., the deceased was in his house along with P.W.1 his wife and daughter P.W.8. The accused A1 to A12 along with eight others came to the house of the deceased with vel kambu, wooden log, patta kathi and vettu aruval. A-1 and A-2 were armed with velkambu. A-3 was armed with patta knife. A4 armed with stick. A5 was armed with vettuaruval. A6 and A8 were armed with wooden logs. A9 was armed with vettu aruval. A10 was armed with wooden logs. A10 to A12 were armed with wooden logs. A1 instigated the other accused to cause damage to the house of the deceased. All the accused attacked the house of the deceased. The deceased came out of his house. A1 stabbed the deceased with velkambu on his left side hip. A2 with velkambu stabbed the deceased on the left side rib. A3 cut the deceased with patta knife on his left knee. A8 beat P.W.8 with a wooden log on her right fore head. A5 cut the deceased on his left wrist. A6 beat the deceased with wooden log on his right forehead. A8 with a wooden log beat the deceased. A9 cut the deceased with vettu aruval on his back repeatedly. A10 to A12 also beat the deceased with wooden log. A8 beat P.W.7 on her knee. The accused caused damage to the tiles of the house of the deceased. On receiving the injuries the deceased fell down. The accused also caused damage to the house of P.W.5 and to the shop of P.W.6. A3 has taken away the cash amount from the shop of P.W.6. Police came to the scene and on seeing the police all the accused ran away towards eastern side. The brother of P.W.1 one Pandi tied the wound of the deceased with a towel. Thereafter the deceased was taken to the Government Rajaji Hospital, Madurai by the said Pandi and one Murugan.
(c) The Doctor, P.W.19, attached to the Government Rajaji Hospital examined the deceased on 30.06.1997 at 09.20 a.m. brought by his brother-in-law one Pandi. The Doctor was informed that the deceased was attacked by 10 known persons at 8.00 a.m. at his house. He found the following injuries, namely, two incised injuries one on the chest and the left forearm and one lacerated wound on his left side wrist and two other incised wounds on the left side shoulder and the right side rib. He has not issued any accident register. The Doctor, P.W.19, sent the intimation to the Magistrate for recording dying declaration. P.W.12, the learned Judicial Magistrate No. VII on 30.06.1997, received the intimation at 10.35 a.m. for recording the dying declaration and he went to the hospital at 11.00 a.m. and recorded the dying declaration of the deceased in the presence of the Doctor. The dying declaration recorded by P.W.12 is marked as Ex.P10.
(d) P.W.18 Head Constable attached to the Karuppayurani Police Station went to the Government Rajaji Hospital at 10.00 a.m. and recorded the statement from the deceased under Ex.P27. He returned to the police station at 11.45 a.m. and registered the case in Crime No. 244 of 1997 for the offence under Sections 147, 148, 323, 324, 427 and 307 IPC. Ex.P.28 is the first information report. He sent the first information report to the learned Judicial Magistrate No. II and to the higher police officials.
(e) P.W.21, Inspector of Police, received the first information report on 30.06.1997 at 12.00 noon and took up the investigation and reached the scene of occurrence at 12.30 noon. He prepared the observation mahazar Ex.P.1 and the rough sketch Ex.P.30 in the presence of witnesses at 1.00 p.m.
(f) The Doctor P.W.14 examined P.W.6 on 30.06.1997 at 11.20 a.m., who has been sent to the hospital with a police memo. He found the following injuries on P.W.6 as per, Ex.P.13, Accident Register.:
1. A lacerated wound Rt Parietal region 3 x 1/2 x 1/2 cm
2. Abrasion Rt Parietal region 1/2 x 1/2 x 1/2 cm
(g) On the same day, the Doctor/P.W.14, examined P.W.7 at 12.10 noon. He found the following injury on P.W.7 as per the Wound Certificate, Ex.P.14:
Abrasion Rt Knee 1/2 x 1/2 c.m. No clinical evidence of fracture or other injuries.
(h) P.W.21, in continuation of his investigation, on the same day, i.e., on 30.06.1997 recovered bloodstained earth M.O.1, sample earth M.O.2 from the scene, broken tiles M. Os.3 to 5 in the presence of witnesses. At 1.45 p.m. he has also recovered, in front of the provision store of P.W.6, broken bottles M.O.7 sweets and savories. He examined the witnesses P. Ws.6 to 8. At 2.00 p.m., he went to the Government Rajaji Hospital and examined the deceased, P.W.1 and others. At 4.00 p.m., he has arrested A7. Pursuant to the admissible portion of his confession, Ex.P.31, he has recovered the wooden log M.O.12 under Ex.P.32 and thereafter he has produced A7 before the Court for remand.
(i) On 01.07.1997, P.W.21 has received the death intimation to the effect that the deceased died at 05.10 a.m. on that day. He has altered the offence u/s 302 IPC and sent the altered first information report Ex.P33 to the Court and to the higher police officials. He held inquest on the dead body at 8.15 a.m. on that day. During inquest, he examined P. Ws.1 to 3, 5 and 7. Ex.P.34 is the inquest report. He has sent the body for postmortem.
(j) The Doctor P.W.13 attached to the Madurai Medical College Hospital conducted postmortem on 01.07.1997 at 11.10 a.m. as per the requisition Ex.P11. He found the following injuries:
1. A sutured transversely oblique stab injury front of left side chest 12 cms below the nipple in mid clavicular line measuring 5 x 1.5 cms x entering the abdominal cavity.
On dissection, the wound passes obliquely downwards, backwards and medially piercing the underlying muscles, vessels, nerves, the 9th rib and adjoining intercostal muscles, vessels, nerves and the anterior surface of the body of the stomach, measuring 4.5 cms x 6.5 c.ms x entering the stomach; The wound in stomach found to be sutured.
2. A sutured transversely oblique stab wound front of right abdomen, 15 cms above and lateral to umblicus 5 x 1.5 cms x entering the abdominal cavity, both ends pointed, margins regular. On dissection, the wound passes obliquely upwards, backwards and medially piercing the underlying muscles, vessels, nerves and the pyloric end of the stomach measuring 3 cms x 0.5 cms x enter into the stomach cavity and exited through the lower curvature 2 x 0.5 cms. The wound in the stomach found to be sutured.
3. A sutured transversely oblique cut injury on the lower end of 1/2 postero-medial aspect of left upper arm, 2 cms above the elbow joint measuring 7 x 2.5 cms x bone deep.
4. A sutured transversely oblique incised wound on the back of left forearm 2.5 x 0.5 cms x skin deep with tailing of 0.5 cm downwards, 5 cms above the wrist joint.
5. Two transverse scratch abrasions back of left shoulder in the mid scapular region, each measuring 11 cms x linear and 8 cms x linear.
6. Abrasion top of left shoulder 1.5 x 0.5 cms and 1 x 0.5 cm.
7. Abrasion right forehead 2 x 1.5 cms.
8. Sutured upper midline surgical incision measuring 13.5 cms x 1 cm x entering the abdominal cavity.
9. Flank drainage both loin with corrugated rubber drainage tube in situ. On dissection of abdomen: Peritoneal cavity contains 200 ml of sero sangunous fluid; peritoneum hyperaemic, muddy and adherent.
Ex.P.12 is the Post-mortem Certificate. The Doctor is of the opinion that the deceased wound appear to have died due to sequelae of the external stab injuries No. 1 and 2 and corresponding internal injuries.
(k) On 02.07.1997, P.W.21 has examined P.W.16. P.W.20 on 02.07.1997 examined P.W.8. He found the following injury as per Wound Certificate, Ex.P.29.
Contusion with slight colour changes on forehead 1 cmx1 cm.
(l) P.W.22, Inspector of Police, took up further investigation. He has verified the investigation conducted by P.W.21. He has given a requisition for police custody of A1 to A3 and A5 and the Magistrate ordered police custody on 17.07.1997 for two days. He has enquired the said accused on 18.07.1997. Pursuant to the admissible portion of confession of A1, he has recovered ''velkambu'' in the presence of witnesses. Pursuant to the admissible portion of the confession of A-5, he has recovered aruval/M.O.11 in the presence of witnesses. Thereafter he has produced the above said four accused before the Court for remand. He has sent the material objects for chemical examination through the Court. On 20.08.1997, he has examined the Doctors P. Ws.13, 19 and 20. He has received the chemical examination report Ex.P.17, serological report Ex.P.18 and on completion of investigation laid the charge sheet against the accused on 27.09.1997 for the offences under Sections 147, 148, 323, 324, 427 and 302 read with 149 IPC.
4. The prosecution, in order to bring home the charges, examined P. Ws.1 to 22 filed Exs.P.1 to P.34 and marked M.Os.1 to 15.
5. When the accused were questioned u/s 313 of the Code of Criminal Procedure in respect of the incriminating materials appearing against them, they have come forward with a version of total denial. They have stated that they have been falsely implicated in this case. They have not chosen to examine any witness on their side. But marked two documents Ex.D1 and D2.
6. Mr. V. Gopinath, learned Senior Counsel appearing for the Appellants A1 and A2 and Mr. Gopalakrishna Lakshmana Raja, the learned Senior Counsel appearing for the other accused/Appellants, vehemently contended that the prosecution has miserably failed to prove its case by adducing clear and consistent evidence and they would submit that the entire prosecution case suffers from serious infirmities and inconsistencies.
7. Mr. V. Gopinath, learned Senior counsel appearing for A1 and A2, would put forward the following contentions:
(i) P. Ws.1, 3, 4, 6, 7 and 8 have categorically stated that the police arrived at the scene even at the time of occurrence and only on seeing the police, the accused ran away from the scene. But none of them stated about the occurrence to the police at the scene and as such they could not have witnessed the occurrence.
(ii) P.W.6 has categorically admitted in his cross examination that he went to the police at 10.00 a.m. and the police recorded his statement and obtained his signature but the said earliest report was suppressed by the prosecution.
(iii) The version of P.W.6 further probabilises the defence theory that the police, having arrived at the scene even at the time of occurrence and only after seeing the police, the accused ran away from the scene and the police could have recorded the report from any one of them and as such earlier report is suppressed.
(iv) In view of the categorical admission of P. Ws.1,3,4, 6,7 and 8 that the police came to the scene immediately even at the time of occurrence and in view of the admission of P.W.6 that he has already given a report even at 10.00 a.m. to the police station, the present version of the prosecution that the first information report was registered only on the basis of the statement recorded from the deceased by P.W.18 at 11.15 a.m. is unbelievable and unreliable.
(v) Even as per the admitted case of the prosecution the injured witnesses P. Ws.6 and 7 have been sent to the hospital for treatment with police memo, it would indicate that the police could have received the earlier report and the same could have been suppressed by the prosecution.
(vi) There is contradiction in respect of the exact time of recording the dying declaration Ex.P27 by P.W.18 as it is stated in Ex.P.27 that the said dying declaration was recorded by P.W.18 at 11.15 a.m. whereas P.W.18 himself categorically stated even in the chief examination that he has reached the hospital and recorded the statement from the deceased at 10.00 a.m.. P.W.18 further admitted in his cross examination that he has left the hospital at 11.15 a.m. and even before the said time, he has completed recording of the statement and as such Ex.P27 should not have been recorded by P.W.18 at 11.15 a.m. as stated by him in Ex.P.27.
(vii) In view of the contradictory statements made by P.W.18 in Ex.P.27 and in his evidence regarding the time of recording of the Ex.P.27, it is clear that the said statement could have been recorded earlier to the dying declaration by the Magistrate P.W.12 under Ex.P10, whereas P.W.12, the Magistrate stated that Ex.P10 dying declaration was recorded between 11.00 and 11.10 a.m.
(viii) The recording of Ex.P10 as well as Ex.P.27 is also surrounded by suspicious circumstances and raises serious doubt about the genuineness of the same as it is categorically admitted by P.W.4 that the deceased was not in a position to talk even at 9.30 a.m. and such being the position, it is highly doubtful for P.W.18 to record such a detailed statement under Ex.P.27.
(ix) Ex.P.10, the dying declaration discloses that it contains very short statement and it indicates the deceased is not in a fit state of mind to give the dying declaration as the reading of Ex.P10 clearly shows that the statement made by the deceased was irregular and incoherent.
(x) In Ex.P10, it is stated that 20 persons attacked the deceased and only five accused have been mentioned by names and though it is stated that the said dying declaration Ex.P10 was recorded in the presence of the medical officer of the hospital, the doctor has not certified the same to the effect that the deceased was conscious and fit state of mind to give dying declaration.
(xi) The evidence of P.W.1 wife of the deceased and P. Ws.3,4,6,7, 8 and 9 discloses that they went to the hospital at the time of admission of the deceased in the Government Rajaji Hospital and P.W.9 categorically admitted in his cross examination that he was with the deceased till 11.00 a.m. and as such the possibility of tutoring the deceased before recording the dying declaration cannot be ruled out.
(xii) The version of the eye witnesses P. Ws.1 and 3 to 9 is artificial and unbelievable as they have given a parrot like version by giving minute dramatic details about the occurrence with specific overt acts against each of the accused and it is highly improbable for them to give such details regarding the occurrence, wherein 20 persons were said to have been involved.
8. Mr. Gopalakrishna Lakshmana Raju, learned Senior counsel would also further point out that the learned trial Judge disbelieved the evidence of P.W.1 and also excluded and declined to place reliance on the dying declaration Ex.P10 recorded by the Magistrate. It is contended that P.W.1 admittedly was working as a ''Ayaa'' in the Nutrition Meal Centre and she has categorically admitted in her cross examination that every day she used to leave for attending her work in the Nutrition Meal Centre at 8.30 a.m. by taking the children to the school and she would be with them till 3.00 p.m. and as such she could not have witnessed the occurrence. It is also contended by the learned senior counsel that the Investigating Officer has not verified the attendance register in respect of the working of P.W.1 at the Nutrition Meal Centre on the date of occurrence, as P.W.1 categorically admitted that the Nutrition Meal Centre was working on the date of occurrence and she has also admitted that in the event of attending the Centre she has to sign the register. It is contended that though P.W.1 stated in her cross that she has not attended the school on the date of occurrence, the Investigating Officer has failed to seize the attendance register to substantiate the same.
9. Per contra, the learned Additional Public Prosecutor would submit that the prosecution has proved its case by adducing clear and cogent evidence through eye witnesses P. Ws.1 and 3 to 9. It is contended that the case of the prosecution is also substantiated through the dying declaration recorded by the Magistrate under Ex.P10 and the dying declaration recorded by P.W.18 under Ex.P27. The learned Additional Public Prosecutor would submit that there is no reason to discard the evidence of eye witnesses as the eye witnesses P. Ws.7 and 8 also sustained injuries during the course of occurrence and they have been treated by the Doctors P.W.14 and P.W.20. It is further contended that the evidence of the eye witnesses are also corroborated by the medical evidence through the Doctor P.W.13, who has conducted postmortem as he has found corresponding injuries on the deceased as per the overt act alleged against the accused. The learned Additional Public Prosecutor would submit that though there are certain discrepancies pointed out in the prosecution case, the same would not affect the main case of the prosecution.
10. We have given our careful and anxious consideration to the rival contentions put forward by either side and thoroughly scrutinized the entire evidence available on record and also perused the impugned judgment of conviction.
11. The prosecution placed reliance on the dying declaration Ex.P.10 recorded by the Magistrate P.W.12 and Ex.P.27 recorded by the Head Constable P.W.18 as well as the eye witnesses P. Ws.1 to 9. It is seen that P.W.2 has turned hostile as he has given a go-by to her earlier version. Though it is seen that the learned trial Judge has disbelieved the evidence of P.W.1 and also declined to place reliance on the dying declaration Ex.P10 recorded by the Magistrate, P.W.12, this Court can very well go into the entire evidence available on record including the dying declaration and re-appreciate the same.
12. Now let us evaluate and assess the credibility and reliability of the dying declarations Ex.P.10 recorded by the Magistrate P.W.12 and the dying declaration Ex.P27 recorded by the Head Constable P.W.18.
13. At the outset it is to be stated that there are contradictions in respect of the exact time of recording the dying declaration by P.W.18 under Ex.P27. It is the prosecution version that Ex.P.10 was recorded by the Magistrate P.W.12 between 11.00 a.m. and 11.10 a.m. whereas Ex.P27 was recorded by P.W.18 at 11.15 a.m. The perusal of Ex.P27 reveals that it is mentioned by P.W.18 that he has recorded the said statement at 11.15 a.m. and whereas the evidence of P.W.18 discloses that he has categorically stated in his chief examination that he has recorded the dying declaration Ex.P27 at 10.00 a.m. It is also pertinent to note that even in the cross examination, he has categorically admitted that he has left the hospital at 11.15 a.m. and before 11.15 a.m. he has completed the recording of statement Ex,P.27 from the deceased. Therefore, it is crystal clear that Ex.P27 could not have been recorded at 11.15 a.m. but much earlier. This Contradictory version assumes importance in view of the claim made by the prosecution that Ex.P10 was also recorded between 11.00 and 11.10 a.m. It is seen that Ex.P.10 contains the thumb impression of the deceased and whereas Ex.P27 contains the signature of the deceased and it is inherently improbable for the deceased to put signature within a short span of 5 or 10 minutes, as it is claimed by the prosecution that Ex.P27 was recorded at 11.15 a.m. and whereas Ex.P10 was recorded between 11.00 and 11.10 a.m.
14. By keeping the said infirmity and inconsistency in mind, let us further scrutinize two vital documents. It is to be borne in mind that one of the eye witness P.W.4 has categorically stated that the deceased was not in a talking condition at 9.30 a.m. and such being the position, it is needless to state that the condition of the deceased would deteriorate further and his condition could not be in a stable position at 10.00 a.m. or 11.00 a.m. It is seen that the dying declaration Ex.P.10 is a very short one containing 20 lines, whereas, Ex.P.27 is a lengthy one and the same contains full details. It is inherently improbable for the deceased, who has given a short statement to the Magistrate, to give such a lengthy statement like Ex.P.27. Added to those infirmities, it is also relevant to note that P. Ws.1,3,4,6,7 and 9 were admittedly present at the hospital as we have categorically stated after the occurrence they left for the hospital P.W.1 being the wife of the deceased, it is quite natural for her to accompany with the deceased and she has categorically stated that she was in the hospital right from 08.30 a.m. till the death of her husband, the deceased.
15. Yet another eye witness P.W.9 stated that he was in the hospital and that too with the deceased till 11.00 a.m. It is further admitted by P.W.9 in his cross examination that he left the hospital only as the other elders of the village arrived at the hospital and assured him that they would take care of the deceased. Therefore, it is crystal clear that the deceased was surrounded by his relatives and other villagers. With this background it is also to be pertinent to note that P.W.12, the Magistrate, has stated that the deceased was in the general ward namely W. No. 99 and he has not asked any one to go out of the ward. In view of the same, the deceased was surrounded by his relatives and friends and as such, the possibility of tutoring the deceased before recording dying declaration cannot be ruled out.
16. At this juncture, it is relevant to refer the settled position of law laid down by the Hon''ble Apex Court in a catena of decisions in respect of reliability of dying declaration as hereunder:
(i) The Hon''ble Apex Court in
Indisputably conviction can be recorded on the basis of the dying declaration alone but therefore the same must be wholly reliable. In a case where suspicion can be raised as regards the correctness of the dying declaration, the Court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. If evidence brought on record suggests that such dying declaration does not reveal the entire truth, it may be considered only apiece of evidence in which event conviction may not be considered only as a piece of evidence in which event conviction may note rested only on the basis thereof. The question as to whether a dying declaration is of impeccable character would depend upon several factors; physical and mental condition of the deceased is one of them.
17. The Hon''ble Apex Court in a landmark decision rendered by a five-Judge Bench of the Hon''ble Apex court in Laxman v. State of Maharastra 2002 SCC 1491 in which the Hon''ble Apex Court held hereunder:
3. ...The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the Courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The Court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant.
18. The Hon''ble Apex Court in Samadhan Dhudka Koli v. State of Maharashtra reported in 2008 (8) Supreme 719 has held that,
16. Consistency in the dying declaration, therefore, is a very relevant factor. Such a relevant factor cannot be ignored. When a contradictory and inconsistent stand is taken by the deceased herself in different dying declarations, they should not be accepted on their face value. In any event, as a rule of prudence, corroboration must be sought from other evidence brought on record.
19. The principle laid down by the Hon''ble Apex Court in the said decisions is squarely applicable to the facts of the present case as in this case also, we have already pointed out that two dying declarations, Ex.P.10 and Ex.P27 were recorded under the suspicious circumstances and there are contradictions even in respect of the time of recording the same.
20. Added to the same, we have also pointed out that one of the eye witnesses categorically stated that the deceased was not in a talking condition and it is also pointed out by us earlier that the deceased was surrounded by relatives, friends and elders of village and as such the possibility or tutoring or prompting the deceased to give such dying declarations cannot be ruled out. In view of the above said factors, we have no hesitation to hold that the dying declarations said to have been recorded from the deceased under Ex.P10 and Ex.P27 are unreliable.
21. Now coming to the question of credibility of the version of the eye witnesses, namely, P. Ws.1, 3 to 9, it is to be stated at the outset that their evidence suffers from serious infirmities and inherent improbabilities. It is seen that all these eye witnesses have come forward with a parrot like version by giving the specific overt acts against each of the accused numbering 12 and we are of the considered view that it is inherently improbable to give such a minute, dramatic details in a photographic manner.
22. It is relevant to refer to the decision of The Hon''ble Apex Court in Sevi v. State of T.N. reported in 1981 SCC 679 that, "Another feature of the case which makes us doubt the credibility of the witnesses is the photographic and somewhat dramatic account which they gave of the incident with minute details of the attack on each of the victims."
23. The said principle laid down by the Hon''ble Apex Court in the decision cited supra is squarely applicable to the facts of the instant case as in this case also, the eye witnesses P. Ws.1, 3 to 9 have come forward with a parrot like version by giving dramatic and photographic details about the occurrence and as such their version is unbelievable and unreliable.
24. The yet another disturbing feature in the prosecution case is the evidence of eye witnesses to the effect that P. Ws.1 and 3 to 9 have categorically stated that police arrived at the scene even at the time of occurrence. But it is claimed by the prosecution that none of them have whispered a word about the occurrence to the police at that time. It is also seen that the Injured witnesses P. Ws.6 and 7 have been sent to the Government Rajaji Hospital only with a police memo. Added to this serious infirmity this Court cannot brush aside the yet another infirmity in the prosecution case to the effect that PW.6 has categorically admitted in his cross examination that he went to the police even at 10.00 a.m. and his statement was recorded by the police and he has signed the same. But the said report was suppressed by the prosecution.
25. It is relevant to note that P.W.7 another eye witness has sent to the hospital only from the police station which means that P.W.7 also could have went to the police station immediately after the occurrence. Therefore it is crystal clear that the prosecution has suppressed the earlier report given by P. Ws.6 and 7 and as such the prosecution has not come forward with a true version.
26. The prosecution has also miserably failed to prove the alleged recoveries, namely, weapons made from the accused as the witnesses to speak about the recovery, namely, P. Ws.10 and 11 turned hostile and further the seized weapons have not been sent for chemical examination.
27. P.W.1, the wife of the deceased, claimed that she has also witnessed the occurrence. It is categorically admitted by her that she was working in the Nutrition Meal Centre of a School and she has admitted in her cross examination that every day she has to go to the School at 8.30 a.m. by taking the children to the School and she would be there up to 3.00 p.m. with the children. P.W.1 though admitted that the centre was working on the date of occurrence, it was claimed that she has not attended the school on that day. But the fact remains as admitted by the Investigating Officer P.W.21 that he has not examined any witnesses to find out whether P.W.1 has attended the Nutrition Meal Centre and he has not seized any attendance register. It is seen that P.W.1 admitted in her cross examination that in the event of attending the centre, she could have signed the attendance register. It is also admitted by P.W.1 that there is no enmity between the deceased and all the accused and such being the position, there is no reason for the Appellants namely, the accused, to attack the deceased. In view of all these factors, we are of the considered view that it is most unsafe and hazardous to place reliance on the evidence of eye witnesses P. Ws.1 and 3 to 9.
28. For the aforesaid reasons, the appeals are allowed and the conviction and sentence imposed on the Appellants by the learned District Sessions Judge (Communal Clashes Cases) Madurai, in S.C. No. 37 of 1999 dated 06.02.2002 are set aside. Fine amount paid, if any, is directed to be refunded to the Appellants. Bail bond executed shall stand terminated.
