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STATE REP. BY versus ANNADURAI

High Court of Madras

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State rep. by v. Annadurai - C.A.NO.923 OF 1995 [2003] RD-TN 1056 (4 December 2003)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 04/12/2003

CORAM

THE HON'BLE MR. JUSTICE P. SATHASIVAM

AND

THE HON'BLE MR. JUSTICE M. THANIKACHALAM

C.A.NO.923 OF 1995

and

Crl.R.C.No.811 of 1995

State rep. by

Public Prosecutor for Pondicherry ..Appellant in C.A. 923/1995 & 11th respondent in Crl.R.C 811/1995. Marimuthu ..Petitioner in Crl.R.C.No.811/1995 -Vs-

1. Annadurai

2. Anbu @ Anbazhagan

3. Thulasi

4. Arul @ Subramaniam

5. Arasu

6. Natarajan

7. Parthiban

8. Chinnayan @ Natarajan

9. Seran

10. Sivakumar @ Periyasamy ..Respondents in both the appeal and revision. Appeal and revision filed under Section 378 Cr.P.C. and 397 and 401 Cr.P.C. respectively against the judgment of the II Additional Sessions Judge, Pondicherry in S.C.No.48/94 dated 4.8.95. For Appellant : Mr. A.P. Suryaprakasam

Addl. Public Prosecutor Pondicherry For Petitioner : Mrs. P.V. Rajeswari

For Respondents : Mr. R. Natarajan

:J U D G M E N T



(Judgment of the Court was delivered by M. THANIKACHALAM,J.) Aggrieved by the acquittal of 10 accused in S.C.No.48/94 on the file of the II Additional Sessions Judge, Pondicherry, the State has preferred appeal in C.A.No.923 of 1995.

2. The complainant, P.W.1, unable to get conviction for the death of her son, before the trial Court, in the same Sessions Case, preferred revision in Crl.R.C.No.811 of 1995.

3. This judgment shall dispose of both the above cases.

4. Tmt. Marimuthu (P.W.1) and her husband Palani Gounder are the residents of Nonankuppam Village, Pondicherry State. Their son is one Murugaian. The first accused, Annadurai, one month prior to the date of the incident i.e 27.12.93, attempted to outrage the modesty of one Paulraj's wife, at about 9.00 p.m. This matter was reported to the Panchayatdars and in the panchayat, Murugaian gave evidence against A1. The said conduct of Murugaian, caused furore to A1, and he took a vow to murder Murugaian, since he was the cause for his standing before the panchayat, where he was put to shame.

5. On 27.12.93, at about 6.00 p.m., Murugaian was standing at the bus stop, in order to go to Cuddalore. At that time, all the accused, armed with weapons, especially A1 armed with Aruval (M.O.7) reached there and questioned the conduct of Murugaian. Murugaian, though attempted to run away, from that place, the first accused stabbed him, with Aruval, over his head and on his fall, the first accused inflicted number of cut injuries, whereas the other accused beat him with casurina sticks, M.O.6 (eight in number) indiscriminately. By this brutal attack and dragging by A4 & A5, Murugaian sustained multiple injuries. This incident was witnessed by P.Ws.2 to 7, who were present, nearby. After the incident, somebody informed the mother of Murugaian (P.W.1), who immediately rushed to the scene of crime, where P.Ws.2, 3 & 4 have informed P.W.1, that the accused alone have attacked and inflicted number of injuries to Murugaian. Immediately, with the help of others, P.W.1 took the injured son, to the General Hospital, Pondicherry, where he was pronounced, dead, by P.W.8, which was informed to the police, under Ex.P.3.

6. The mother of the deceased immediately went to Ariyanguppam Police Station, narrated the incident, which was reduced into writing, as Ex.P.1, at the instance of the Sub Inspector of Police, by the Head Constable in which P.W.1 subscribed her signature. The Sub Inspector of Police, Ariyanguppam, P.W.17, after recording the statement of P.W.1, through the Head Constable, Sundaramurthi at about 7.45 p.m., registered a case in crime No.119/93 under Sections 147, 148, 302 r/w 1 49 I.P.C. On the basis of Ex.P.1, the printed F.I.R. viz., Ex.P.16 was submitted to the court concerned along with Ex.P.1 and a copy was marked to the Inspector of Police, for investigation.

7. Thiru Laksha Prabu, P.W.20, on information took up the case for investigation, inspected the scene of crime and also made an arrangement for taking photos of the scene of occurrence. On 28.12.93 at about 6.15 a.m., once again, he visited the scene of crime, prepared observation mahazar, Ex.P.21, sketch Ex.P.22 in the presence of P.Ws.10 and 11, in addition to seizure of M.Os.12, 13 & 14, under the cover of Ex.P.23.

8. As part of the investigation, P.W.20, conducted inquest in the Government Hospital, Pondicherry in the presence of Panchayatdars and witnesses and the outcome is Ex.P.11. Then, to ascertain the cause of death, with requisition of Ex.P.25, the body of Murugaian was sent for autopsy.

9. Dr. Balaraman, P.W.9 on receipt of the requisition and on identification of the body, conducted autopsy over the body of Murugaian on 28.12.93 between 12.30 p.m. and 1.30 p.m., which revealed the following injuries:

1. Incised wound 1 x 0.5 cms bone deep over right temporal region of head.

2. Two incised wounds 2.5 x 0.5 and 2cm x 0.5 cm bow deep present over right parieto occipital region of head.

3. Lacerated wound 9 cm x 1 cm x bone deep present over right occipital region of head.

4. Transversely placed incised wound 3 x 0.5 cm x bone deep present over mid occipital region of head.

5. Lacerated wound 5 x 0.5 x bone deep present over mid parietal region of head.

6. Abrasions 6 x 3 cm present over right shoulder and 1 x 0.5 cm near right wrist joint.

7. Three parallel contusion each 10 x 1 cm size and 1 cm apart present over right upper arm.

8. Abrasion 15cm x 2cm over left fore arm and 5 x 0.5 cm over black of left elbow joint.

9. Linear contusion 11 cm x with intervening normal area present over right side of chest.

10. Irregular contusion present over back of chest on right side Skull, brain contusion over occipital region and fissured fracture 10 cm length present over right parieto occipital region of head. Sub dural and Sub Arachnoid Haemorrhage present all over brain. Fissured fracture 8 cm. length present over mid occipital region of base of skull. The further probing of the above external injuries revealed the following internal injuries.

1. Fracture of 4th, 5th ribs on right side with bruising of tissues present in Pecural cavity.

2. Laceration 3 x 1 x 0.5 cm present over right lobe of liver. On the basis of the above external and internal injuries, and the effects created by the same, the doctor opined that the death was due to shock and hemorrhage, caused by multiple injuries, which were incorporated in Exs.P.4 & P.5, viz., Postmortem certificate and final opinion, respectively. Further, based on the chemical examination report, Ex.P.6, the doctor has also opined, that the injuries 6 to 10 could have been caused by casurina sticks, as well as injuries 1 to 5 could have been inflicted by a long knife or blunt object like stick, including weapon like M.O.1.

10. In continuation of the investigation, P.W.20 examined the eyewitnesses, as well as other witnesses then and there, recorded their statements. On 30.12.93, he arrested A4, A6, A7. On the basis of the confession (Ex.P.12) given by A7, in the presence of P.W.14 and some other witnesses, M.O.6 was recovered. Some of the accused at some point of time surrendered, then arrested also. After P.W.20, Thiru George, P.W.21 took up the case for further investigation. After the arrest of A1, when he was examined in the presence of P.Ws.15 and 16, he confessed under Ex.P.14, about the concealment of the weapon, which was recovered later on under Ex.P.15. Thus, arresting all the accused, and completing the examination of the witnesses, the materials so gathered, revealed that the accused have formed themselves into an unlawful assembly, sharing their common intention, they have committed the murder of Murugaian, and therefore, a final report was filed for appropriate punishment under Sections 147, 148, 302 r/w 149 I.P.C.

11. After the framing of charges, as mandated by Cr.P.C., when the accused were examined and questioned, they denied their involvement and pleaded not guilty, thereby compelling the prosecution, to take the burden of proof on their shoulder.

12. On behalf of the prosecution, to substantiate the charges and to prove the guilt of the accused, 21 witnesses were marched into the box, seeking aid from 27 exhibits and 14 material objects.

13. The learned II Additional Sessions Judge, upon considering the materials placed before him, came to the conclusion that Ex.P.1 ( complaint) does not contain the required particulars, to rope in all the accused, that the investigating officers have not examined the important eye witnesses, who were available at the time of the incident, that all the witnesses having failed to spoke, about the presence of all the accused, failed to give categoric account regarding the overt act of each and every accused, that the evidence given by most of the eyewitnesses are all artificial in nature, contradicting the averments in Ex.P.1, that the injuries spoken by the eye witnesses are not in conformity with the medical evidence, as well as, as per the particulars furnished in the inquest report Ex.P.11, that the recovery said to have been made on the basis of the confession is not worthy of acceptance and that the contradictions, omissions, spontaneously created doubt, about the genuineness of the prosecution case, as well as the involvement of the accused in the crime. Thus concluding, the learned trial judge found that none of the offence alleged against the accused, is proved, beyond all reasonable doubt and therefore, giving the benefits of doubt, he acquitted all the accused, as per the judgment dated 4.8.95, which is sought to be assailed not only by the prosecution in the criminal appeal, but also by the de facto complainant, P.W.1 in Crl.R.C.No.811/95.

14. The learned Additional Public Prosecutor, appearing for Pondicherry Government, would submit, that the motive for the incident is not only proved by the prosecution witnesses, but the same is also not challenged, which was not properly considered by the learned trial judge. He further submits, that no acceptable or valid reason were assigned, fitting in with law, by the learned trial Judge, to ignore their testimony, which deserves its credence and acceptability, and on that basis, conviction ought to have been slapped, upon the accused. He further points out the evidence available, not only through the mouth of the investigating officer, but also from the other independent witnesses, the arrest and the recovery of the material objects were clinchingly proved, but the trial Court has erroneously eschewed, creating doubt in itself, when no doubt had arisen or warranted and in this view, the accused are not entitled to the benefits of doubt, whereas they ought to have been dealt with according to law.

15. It is the further submission of the learned counsel for the appellant that the contradictions and omissions available in the oral evidence, as pointed out by the learned trial judge, are trivial in nature, deserves ignorance, since they have not cut the root of the case or proved the innocence of the accused, but unfortunately, the trial judge has given too much weight, thereby allowed the accused to escape, which could not be the legal approach to decide the case. On these grounds, it is prayed that the accused should be dealt with properly, and appropriate punishment should be slapped, as disclosed by the evidence.

16. The learned counsel appearing for the revision petitioner, P.W.1 fully supported the argument of the additional public prosecutor, seeking justice, for the sufferings of the mother P.W.1.

17. The learned counsel for the accused/respondents supported the findings of the trial Court, by pointing out the irreconcilable contradictions, material omissions, improbability and unnaturalness of the evidence, and in this view, his submission is the affirmation of the lower Court judgment.

18. In support of the rival contentions, the respective counsels, have taken us through the oral and documentary evidence, for which we have given our anxious thought and deep consideration.

19. The learned Additional Public Prosecutor would submit, that the trial Court had comitted grave error in not accepting the oral evidence of P.Ws.2 to 7, who are the eyewitnesses to the crime, on the basis of flimsy and trivial contradictions, thereby the judgment should be described as perverse. It is the further submission of the Additional Public Prosecutor, that there was no delay of any kind in preferring the first information, leading to the investigation, which does contain all the necessary particulars, to have foundation for the investigation, but unfortunately, the trial Court disbelieved Ex.P.1 without any sound reasons, based on legal principles. He further pointed out, that as per the confession statement given by the accused, weapons were recovered, identified by the witnesses, which would show that the accused alone should have assaulted the deceased, thereby causing multiple injuries, terminating the life of the deceased, on 27.1 2.1993 at about 6.00 p.m. On these lines, the learned Additional Public Prosecutor, Pondicherry and the learned counsel for the revision petitioner would suggest that the judgment of the trial Court, deserves to be set aside, warranting conviction on the basis of the evidence, which discloses at least some offences, against some of the accused.

20. The learned counsel for the accused on the other hand would contend, that the first information report said to have been given by P. W.1, is not a genuine and true one, which fact was brought to surface, not only by the evidence of P.W.1 but also by the oral testimony of others, and in this view, the trial Court not believing the same, is legally justifiable, could not be assailed. H e further pointed out that though six witnesses were marched in as eye witnesses, they have spoken two sets of cases, that too, mutually contradicting each other, cutting the root of the case, thereby spontaneously creating a doubt and under the principle of criminal jurisprudence, the accused are entitled to the benefits of doubt, which were rightly given by the trial Court, cannot be taken by this Court, sitting in the appeal.

21. In support of the above contention, the learned counsel for the respondents also sought the aid of law laid down by the Apex court in Kalyan vs. State of Uttar Pradesh (AIR 2001 SC 3976), wherein it is ruled, "In view of the facts and circumstances of the case, particularly the variance between the FIR and the depositions made in the court, the mention of gun shot injuries in the panchanama and their absence in the first information report, conflict between the statements of eyewitnesses and the medical evidence and major contradictions and improvements in the depositions of the eyewitnesses, the prosecution could be said to have failed to prove their case against the accused persons beyond all shadows of doubt. The case of the prosecution, as sought to be proved at the trial, was different than the one as narrated in the FIR. When the testimony of eye-witnesses was totally different from the story set out in the FIR, the trial Court while acquitting the accused cannot be held to have taken a view which was not at all possible. The view taken by the trial Court could have been disturbed only if there was compelling reasons."

In this ruling itself, the Apex Court has given a guideline, placing reliance upon a previous decision, under what circumstances, the High Court has power to review the evidence, upon which an order of acquittal is passed and it says that

"the settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country in further reinforced by his acquittal by the trial Court. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial Court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial Court". Further, if two views are possible on the evidence adduced, in a given case, one, pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused, should be adopted is the further dictum of the Apex Court. Therefore, if the appreciation of the learned trial Judge was correctly made and a possible conclusion had been drawn, question of disturbing the same would not arise. The trite law being, this Court should be slow to disturb a finding of fact and the interference, on the ground a different view could be taken, is also not possible, though the powers of the High Court is not restricted, in dealing with the case, are as extensive as of trial Court.

22. The learned counsel for the respondents would submit that Ex.P.1 , complaint is a vital document and valuable piece of evidence, for the purpose of appreciating the evidence let in, at the trial and therefore, it should be above suspicion and beyond any contradiction or omission to the maximum possible, though not F.I.R. is not an encyclopedia. To have the support for the above contention, the decision in Thanedar Singh v. State of Madhya Pradesh AIR 2002 SC 175 is relied upon, wherein, the Apex Court quoted a previous decision in which, it is held

"FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon; prompt lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, as also the names of the eye-witnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought."

23. In Kunju Muhammed & Khumani & Anr. v. State of Kerala, 2003 (5) Supreme 436, the Apex Court has ruled, the High Court has to proceed more cautiously in a case of appeal against acquittal and only if there is absolute assurance of guilt of accused upon the evidence, that acquittal can be interfered. In the same decision, a previous ruling of the Apex Court {Shailendra Pratap & Anr. v. State of U.P. (2003 (1) SCC 761)} is affirmed, which says:

"It is well settled that the appellate Court would not be justified in interfering with the order of acquittal unless the same is found to be perverse."

Having the above principle in mind, we have to find out whether the trial Court had committed any error, either on law or on facts, while rendering the judgment, so as to call it as "perverse" one.

24. The son of P.W.1 by name Murugaian was murdered in the incident took place on 27.12.1993 at about 6.00 pm. In that incident, Murugaian, sustained as many as 10 injuries causing shock and hemorrhage. The doctor has spoken about the injuries, noticed in the body of Murugaian and the cause of death also, which are all incorporated in Ex.P.4. They are not seriously challenged. In this view, accepting the doctor's evidence, we have no hesitation to hold that Murugainan died, due to homicidal violence which took place on 27.12.1993 at about 6.00 p.m. near Boat House, adjacent to Cuddalore-Pondi Main Road.

25. The investigation done by P.Ws.20 & 21 revealed the fact, that the accused respondents have inflicted the injuries to Murugaian, which terminated his life. Therefore, a final report was filed to deal with the accused under Sections 147, 148, 302 r/w 149 I.P.C. The learned II Additional Sessions Judge, Pondicherry, upon consideration of the evidence available on record, came to the conclusion that the information said to have been furnished in Ex.P.1 was not furnished by P.W.1, which shattered the prosecution theory. He found fault with Ex.P.1 on the ground that it does not contain names of eyewitnesses, and the named person therein were not examined, on the side of the prosecution. Further some of the accused's name do not find place. On the above grounds, giving the benefits of doubt, he acquitted at the first instance itself, A4, A5, A6, A7 and A9 as well as A10 and A11, concluding that they have been falsely implicated in this case. It is the further conclusion of the trial Court, that the oral evidence of P.Ws.2 to 7 are not trustworthy, since some of the alleged witnesses are close friends of the deceased. It is the f urther finding of the trial Court, that they have not given evidence, in an inspiring way, to digital perfection and therefore, placing reliance upon the mutual destructive evidence is unsafe, to convict the accused. He has also pointed out the infirmity and the laches in the investigation, since they have not only failed to examine the witne sses mentioned in Ex.P.1, but also failed to examine the other witnesses, who had witnessed the incident, even according to the prosecution. Further, he pointed out that the evidence given by the alleged eye witnesses are not in conformity with the medical evidence, thereby creating spontaneous doubt. He has further pointed out that some of the material objects said to have been recovered on the basis of the confession statement given by the accused are not in conformity with the statements and evidence, whereas it created unexplained doubt, thereby entitling the accused to have its benefit. From the reading of the judgment, rendered by the learned trial Judge, we are unable to see any perversity and in fact, the judgment is founded on well reasoned grounds, based on mutual contradictions, omissions, non disclosure of material particulars in Ex.P.1 and therefore in our view, the interference by this Court to reverse the order of acquittal, is an impossibility.

26. The learned Additional Public Prosecutor would contend that Ex. P.1 ought not to have been rejected by the trial Court, since it does contain minimum requirements and necessary particulars for the edifice of the prosecution. We are unable to agree, on going through the documents and the oral evidence of P.W.1. Though in Ex.P1 only the names of A1 to A8 are mentioned, there are 10 accused in the case. On this ground alone, we are not going to say that Ex.P.1 is bereft of particulars.

27. Immediately after the incident, Ex.P.1 was given and there is no doubt. The author of P.W.1 would state that on information about the incident, she rushed to the scene of crime, where she was informed by P.Ws.2, 3 & 4 about the persons who are responsible for the murder of her son. Only on that basis according to P.W.1, she had mentioned the names of A1 to A8. If it is correct, and to believe the same as true, we must have corroboration from P.Ws.2, 3 & 4. P.W.2, Mr. Srinivasan would state that he had not informed to P.W.1 about the persons, who caused the injuries to Murugaian. On the other hand, he would state that when P.W.1 asked the deceased, who is the cause for the injuries, the deceased informed to her that A1 killed him. It is not the case of P.W.1, either in Ex.P.1 or before the Court that the deceased informed to her about the assailants. On the other hand, she was categorical in her statement that if the information was not furnished by the witnesses, viz., Chandrasegaran, Srinivasan and Palani, she would not have ascertained the names of the accused, who caused injuries to her son. P.W.3, Chandrasegaran would state, that the deceased has not furnished any information to P.W.1, regarding the person, who caused the injuries. Further, he asserts that he did not conveyed to P.W.1 as to who caused injuries to the deceased. Thus, it is evident from the evidence of P.Ws.1 & 2 that the information available in Ex.P.1 is not the correct information furnished by either P.W.1 or P.W.2, or P.W.3 as the case may be and the corollary must be someone might have furnished the information and that someone was not brought before the Court.

28. Some development is noticed when P.W.4 has come to the box. He would state that P.Ws.2 & 3 have informed the names of the accused to P.W.1, stating further that he gave the names of A1, A2, A3 and A4 alone, whereas P.Ws.2 & 3 gave the names of A11 and A9, further affirming that he did not know the names of other accused. Thus, we see three kind of versions, from the mouth of three witnesses, regarding the information said to have been furnished to P.W.1. Therefore, the fact that Ex.P.1 does contain some of the names of the accused, could not be taken as correct, in the absence of clear evidence, on whose information, P.W.1 implicated at least 8 accused. The learned trial Judge correctly, assessing this contradiction and its effect, has come to an unerring conclusion, in our view, that Ex.P.1 could not be relied upon, thereby concluding the foundation, as shaky.

29. Ex.P.1 says that P.W.1 with the help of one Shaji and Mukundan, who were available near the Boat House, took the injured to the hospital. Therefore, if that information is correct, they should come within the meaning of eyewitnesses. Admittedly, they were not examined and for the non examination, the comment made by the learned trial Judge, appears to be legally sound.

30. As laid down by the Apex Court, in Takhaji Hiraji v. Thakore Kubersing Chamansing (2001 (6) SCC 145), if overwhelming reliable evidence is already available, then the examination of other witnesses would only be a repetition, and the non examination of such witnesses would not affect the prosecution case. As observed by the Apex Court, if we raise a question whether it was necessary to examine Shaji and Mukundan, the answer would be reasonably 'YES', because the other witnesses examined have come to the Court on the basis of motivation and their names do not find place in the first information report. When the FIR says, which set the law in motion, that two named witnesses, have seen the occurrence or creating probability that they would have seen the occurrence, then it is incumbent upon the prosecution to examine the said witnesses and it could not be said it is only a repetition. Hence, as rightly contended by the learned counsel for the respondent, an adverse inference has to be drawn to the effect that in order to suppress the genesis of the case, reliable witnesses were screened and some other witnesses were marched in.

31. P.W.1 has exhibited her ignorance regarding the names of Shaji and Mukundan either in Ex.P.1 or at the time of going to the police. The position being so, it is unexplained, how these two names find place in Ex.P.1 and the non explanation creates an indelible doubt, that Ex.P.1 would not have been given by P.W.1, and it must have come into existence, by some other way as pointed supra. Thus, it is well established by the cross examination of the witnesses that all is not well with Ex.P.1, thereby creating spontaneous doubt about the genesis of the case itself and the result is the benefits of doubt, certainly shall go to the accused, as rightly given by the learned trial Judge, under criminal jurisprudence, which could not be disturbed, labeling the same as perverse, since we find no perversity in the judgment.

32. In a case of rioting and unlawful assembly of members, fixing the person individually and their overt act, may not be possible to the digital perfection as expected. If the witnesses belong to downtrodden, not well educated, give evidence regarding this kind of incident, that too after some months, there bound to be some contradictions and even omissions also. In this view, we are not going to say, that the evidence given by P.Ws.2 to 7 are unacceptable only on the basis of the contradictions and omissions, as pointed out by the learned counsel for the respondents, which was accepted by the learned trial Judge also. If the contradictions and omissions are of the nature, cutting the root of the case and shaking the very foundation of the edifice, then we must hesitate to accept their oral testimony, that too, as pointed when there is possibility to take two different views, and the view, which is favourable to the accused should go to them, as ruled by the Apex Court. On the ground that there is an alternative view also possible, accused could not be convicted, disturbing the finding of the trial Court.

33. As pointed out by the learned trial Judge, in his judgment, P. Ws.2 and 7 have implicated A1 to A3, A6, A7 and A8. P.W.2 has implicated A4. P.Ws.2 & 3 alone have implicated A5. P.Ws.5 to 7 have implicated A9 to A11. Further, as seen from the evidence, except P.W.2, none of the other witnesses had spoken about the presence of A4. Even as per the case of the prosecution, as seen from the evidence of P.W.2, A4 lifted the deceased after he was beaten. In this view, the learned trial Judge had held that the prosecution has not proved the case as against A4, which is well acceptable to us, and we are unable to take any contra view, even reassessing the evidence. The learned Additional Public Prosecutor also failed to indict A4 on the basis of the materials available on record. The presence of A9 to A11 were disclosed by P.Ws.5 to 7. If it is to be accepted, there is no reason why the other witnesses have not implicated them, the fact being they are also known to these witnesses. But P.Ws.2 to 4, who claim to be as eyewitnesses, have spoken that they have not seen A9 to A11 in the place of occurrence and it is not their evidence also that they have also caused injuries to the deceased. Thus, considering the oral evidence of P.Ws.2 to 4 and the non involvement of A9 to A11, who were implicated by Pws.5 to 7 later on, the learned trial Judge, has come to the conclusion that A9 to A11 have been falsely implicated at later stage, which is in conformity with the oral evidence and all probabilities, having regard to the facts and circumstances of the case. In this view also, we are unable to interfere with the findings of the learned trial Judge regarding the acquittal given by him to A9 to A11 .

34. P.W.1 has given evidence, that even at the time of preferring complaint to the police, she had seen A6 and A7, who were brought to the police station by a police constable. At that time, not even a case was registered and therefore, bringing A6 and A7 to the police station as accused, is an impossibility. But the fact remains, as spoken by P.W.1, which is not contradicted even by the investigating officers effectively, thereby showing even before the receipt of the first information, the police have picked up some people, including A6 and A7 and shown them as accused and even in the absence of implication by P.W.1 and other eyewitnesses. Considering this material aspect, which should create doubt in any one's mind, the learned trial Judge gave the benefits of doubt to A6 and A7 also and acquitted them on the ground of false implication, the further fact being, the evidence available against them are not consistent or in other words, it is inconsistent. In acquitting A6 and A7 also, we do not find any error either on facts or on law and in fact the reasons assigned for their acquittal are judicially sound, based on sound legal principle, and on further appreciation of evidence also, it does not require any interference.

35. P.Ws.2 to 7 have spoken about the presence of A1 to A3, and their participation in the commission of the offence also, to certain extent. The only point now remains is whether they could be believed as eyewitnesses. As rightly submitted by the learned counsel for the accused/ respondents, if they have seen the occurrence, as claimed by P.W.1, at least they should have furnished the details to her. But, though P.W.1 had spoken so, P.Ws.2 & 3 disowned to the entire extent, and P.W.4 disowned to certain extent, in the sense, not implicating all the accused. Regarding the actual involvement of A1 to A3 also, we are unable to find consistent evidence, in the oral testimony of P.Ws.2 to 4. P.W.2 would state that A1 stabbed the deceased on his head with Veecharuval and continued to inflict cut injuries on the head of the deceased. But it is not the case of the other alleged eyewitness viz., P.W.3, that A1 continued to inflict cut injuries on the head of the deceased, even after he fell down, whereas it is the case of P.W.3, that other accused beat the deceased with sticks. Therefore, it is impossible to believe the oral evidence of P.W.2, a dismissed constable, from the service. P.Ws.1 and 2 have not spoken about the words, said to have been uttered by the accused, while attacking Murugaian. On the other hand, P.W.4, a close friend of the deceased and co-worker would state, that he heard the noise "KUifad; m';nf ,Uf; fpwhd; mtid btl;L';flh@. If true, the same wordings also should have felt in the ears of P.Ws.2 and 3 and they might have spoken the same. The failure on the part of P.Ws.2 & 3 to give evidence regarding the above words, and the utterance of P.W.4 would indicate that P.W.4 could not be the eyewitness. P.W.4, even went to the extent of denying his friendship with the deceased, whereas other witnesses have spoken about P.W.4's friendship with the deceased, which is also supported by document. Because of interestedness, P.W.4, has given evidence, as if he heard the above said wordings, and also informed the court falsely, that he furnished some of the names of accused to P.W.1, which is not the case of other witnesses. He further admits that in his presence, the deceased did not tell to P.W.1, about the assault, whereas it is the case of P.Ws.2 & 3, as pointed out, that the particulars of the accused were furnished by the deceased. P.Ws.5,6 & 7 also, as later development, have spoken in tune with P.W.4, thereby contradicting the oral evidence of P.Ws.1 to 3. From the scanning of the oral evidence of P.Ws.2 to 6, there is every possibility to say, that they might not have witnessed the incident, and in this view, the accused are entitled to the benefits of doubt.

36. As rightly pointed out by the learned trial Judge, Thiru Natarajan, who claims to be one of the eye witnesses, would state, that along with him, P.W.5, P.W.7, P.W.11 alone were present, thereby he excludes the presence of P.Ws.2 & 3. He has further deposed that on seeing A1 and other accused, the deceased ran towards east, despite A1 assaulted on his head, which is not spoken by other witnesses also. P. W.7, who claims to be an eyewitness, could not be an eyewitness, is brought to surface by the cross examination. P.W.7 was examined by the investigating officer at the time of inquest also. If really he had seen the incident, he should have informed to the police about his presence at the time of the incident, but in fact he did not say so. For that his explanation is, he was not questioned by the police officer and therefore, he failed to inform the same, which is not acceptable to us. When the deceased was admitted in the hospital, if it is known to P.W.1, that known persons have assaulted her son, at least, she ought to have informed to the doctor, that her son was assaulted by known persons, but it is not the case as seen from the evidence of P.W.8. The above contradictions coupled with non mentioning of witnesses' name, in the first information report, would suggest that P.Ws.2 to 7 were not the eyewitnesses and they were planted later on, to have the support for the prosecution and that is why, there were irreconcilable contradictions resulting mutual destruction and making them unbelievable and untrustworthy.

37. It is the case of P.W.20, the investigating officer, that when he conducted the inquest in the presence of Panchayatdars, P.Ws.1 and 3 were also present. The purpose of conducting inquest is, to make out a prima facie case on the spot itself, in the presence of Panchayatdars, examining the eyewitnesses also. As rightly pointed out by the trial Court, if P.Ws.2 to 7 were the eyewitnesses, they must be the persons, who have seen the deceased last while alive. Ex.P.11 does not disclose that P.Ws.2 to 4 have been examined, at the time of inquest. If really they were the eyewitnesses, as observed by the trial judge, the inquest report would have revealed the name of eyewitnesses, and their examination, followed by conclusion. The absence of inclusion of the above witnesses, undoubtedly creates a doubt regarding the presence of P.Ws.2 to 7, at the time of the incident and in this view, considering the contradictions, doubting their oral testimony, is within the permissible limit and the same could not be described, as perverse, warranting interference.

38. The confession statements said to have been recorded and the recovery of certain material objects also, are not proved to the satisfaction of the trial Judge, as pointed out by him, is acceptable to us also, which could not be contradicted. It is not the case of the investigating officers or the witnesses, that at the time of examination of the accused, they have voluntarily given the confession statements on their own. On the other hand, witnesses were taken from their place informing that arrested accused are going to give confession, thereby showing, that the investigating officers have concluded already, that they are going to extract confession, which could not be termed as voluntary confession. The alleged recovery, in pursuance of the alleged confession, also does not in conformity with the materials on record. As per Ex.P.1 mahazar only two sticks have been recovered, whereas 8 sticks have been marked. We find no explanation how the police secured six more sticks, having recovered only two sticks, as per the mahazar. Thus, we are able to see innumerable, contradictions and omissions, not in the nature of minor one or trivial but all cutting the root of the matter, creating spontaneous doubts, and therefore, the accused are entitled to the benefits of doubt, as laid down by the Apex Court, in the ruling cited supra.

39. For the killing of Murugaian, a motive is alleged belatedly. P.W.1 would state, after cross examination, that one month prior to the incident at about 9.00 p.m. A1 attempted to outrage the modesty of one Malar, who is the wife of Balraj, and in that connection, there was a panchayat. According to her, in the panchayat, her son gave evidence against A1, which brought shame to him, thereby making him to feel aggrieved, causing irritation, which resulted in warning also, to kill Murugaian. One Jeeva also has given evidence to the above said effect, which is in a way spoken by P.W.6 also. The proper person, to speak about the alleged motive is either Balraj or his wife. Both of them have not been examined in this case. Therefore, the interested testimony given by some of the witnesses regarding the alleged motive, which appears to be meagre or trivial, could not be the reason for the assault of the deceased, that too, by 10 persons, forming themselves into an unlawful assembly.

40. The learned trial judge analysing the case from all possible angles, and pointing out material omissions and contradictions, which are fatal to the prosecution, had acquitted the accused, giving the benefits of doubt, which appears to be legally sound, based on reasons, supported by the materials available on record, and in this view it requires only confirmation, and not modification or setting aside, as claimed.

41. For the foregoing reasons, we find no perversity in the judgment rendered by the trial Court and therefore, we are reluctant to interfere with the findings of the acquittal.

The appeal and Criminal Revision Case are devoid of merits and they are dismissed, confirming the judgment of acquittal rendered in S.C.No.48/1994, dated 4.8.1995, on the file of the II Additional Sessions Judge, Pondicherry.

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To

1. The II Additional Sessions Judge,

Pondicherry.

2. The Public Prosecutor, Pondicherry.




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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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