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Judgment
S. Rajeswaran, J.—This Criminal Appeal challenges the judgment of the Additional District and Sessions Court (Fast Track Court No. 2),
Tiruchirappalli dated 26.12.2008made in S.C. No. 72 of 2008 whereby each of the accused/Appellants were convicted and sentenced to undergo
two years rigorous imprisonment and to paya fine of Rs. 200/-, in default, to undergo one month rigorous imprisonment u/s 148 IPC; to undergo 1
month simple imprisonment and to pay fine of Rs. 100/-in default, to undergo simple imprisonment for a week u/s 341 IPC and sentenced to
undergo life imprisonment and to pay a fine of Rs. 1,000/-in default, to undergo 3 months rigorous imprisonment. The sentences are directed to be
run concurrently.
The case of the prosecution is that the deceased Rajaram is the President of the Navalpattu Panchayat Union. Four months prior to the
occurrence, the brother-in-law of the deceased one Selvakumar, murdered the brother of Accused No. 1, namely, Raja. The relatives of Raja and
A1 suspected that only on the instigation of the deceased, the said Raja was murdered. The accused Selva Kumar and Senthil Kumar were
arrested in the Raja''s murder case. Therefore, the accused had motive against the deceased.
PW.1 is the driver of the deceased. On 11.4.2006, PW.1 took the deceased in the car, belonged to the deceased, to Pilliar Temple at Anna
Nagar in Tiruchirappalli from Navalpattu for an Anna Dhana function. Since the food to be served was not ready, they went to panchayat union
office and stayed there for some time. During that time, the deceased received a condolence message from one Jothi of Pudutheru. Therefore, he
went to Pudutheru along with PW.1 and PW.4. PW.4 got down on the way at Burma Colony and only PW.1 and the deceased proceeded to
Pudutheru. Around 1.15 p.m., when they went near Alayee Amman Koil, a white colour omni van, which was coming behind them, overtook and
intercepted their car and stopped their car. From the omni van, suddenly, the Appellants/accused and another person by name Sathishkumar got
down with aruval and broke the front glass of the car. They also pulled Rajaram, the deceased, out of the car and all of them cut the deceased
indiscriminately. The deceased fell down. They chased PW.1 and PW.1 ran away and informed PW.2 who was coming in the way. PW.1 then
went to Navalpattu Police Station and lodged a complaint around at 2.00 p.m.,
PW.15, Inspector of Police recorded the complaint of PW.1 and registered a case in Crime No. 82/2006 under Sections 147, 148, 341 and
302 IPC. The printed FIR was marked as Ex.P.19. PW.1 at the time of giving complaint, produced his bloodstained shirt (MO.1) to PW.15 and
the same was recovered under Form 95. Printed FIR (Ex.P19) was received by the Judicial Magistrate at 6.00 p.m.,.
PW.15 took up the investigation and proceeded to the place of occurrence and prepared an Observation Mahazar in Ex.P3 and a Rough
Sketch Ex.P21 in the presence of PW.6 and one Kulandaisamy. PW.15 recovered bloodstained soil MO.2, and the soil without bloodstains
MO.3; and the broken glass pieces MO.4 from the place of occurrence under Mahazar Ex.P4. PW.15 conducted inquest over the body of the
deceased between 3.00 p.m., to 5.00 p.m., and sent the body of the deceased to the post-mortem through PW.12.
PW.10, Dr. Karthikeyan, conducted the post-mortem on the body of the deceased Rajaram on 11.4.2006 at about 6.00 p.m., and found the
presence of mortis rigour all over the body. The Doctor found as many as 23 external injuries all over the body. PW.10, Doctor, issued a post-
mortem Cetificate Ex.P.10 and he opined that the deceased would have died due to loss of blood and lack of oxygen due to injuries sustained by
him. Doctor, PW.10 had also stated that the injuries sustained by the deceased are possible through the weapons produced before him.
PW.15 recorded the statements of PW.1, PW.3, PW.5 to PW.8 and one Santha Kumar and Kulandaisamy on 11.4.2006. The photographs of
the damaged car and the place of occurrence was taken through photographer PW.14 and the series of photos were marked as MO.16. The
photographs of the deceased were marked as MO.17. After the post-mortem, PW.15 recovered the bloodstained clothes of the deceased in
Form 95 under Ex.P14 and the same were marked as M Os.12 to 15.
The Appellants and another accused one Sathish @ Sathishkumar surrendered before the Judicial Magistrate Court No. III, Cuddalore on
12.4.2006. On getting information, PW.15 made requisition to have the police custody of the accused. The police custody was given from
18.4.2006 to 20.4.2006. During the police custody, Jai @ Jeyakumar gave a confession statement and pursuant to the same, MO.5 to MO.10
were recovered on 20.4.2006 at about 2.30 p.m., near Chozhamadevi Channel under Ex.P6. The admissible portion of the confession statement
of the first accused was marked as Ex.P5.
On 24.4.2006 at about 7.00 p.m., PW.11 appeared before PW.15 and produced a Maruthi van bearing Regn. No. TN 45 S 4790. PW.15
recorded the statement and recovered the omni van from PW.9 under Form 95.
PW.15 made a requisition to the Judicial Magistrate III, Tiruchirappalli on 3.5.2006 for recording the statement of PW.1 Deenadayalan and
the statement of PW.9 Syed Musthafa u/s 164 Code of Criminal Procedure, and for conducting the identification parade. Based on the requisition
of PW.15, an identification parade was conducted by PW.13 Judicial Magistrate No. IV, Tiruchirappalli at Central Prison, Tiruchirappali on
5.5.2006 at 5.00 p.m.,.
PW.13, Judicial Magistrate, ascertained the features of the accused and selected 45 persons identical to the accused. The suspected accused
was permitted to stand on their choice in a row and then witness PW.1 was called for identifying the accused. PW.1 Deena Dayalan identified the
first accused Jai @ Jayakumar at the first instance and in the second time, he identified A1 Jai @ Jeyakumar, who was standing in the row in Sl.
No. 15, and A4 Rajini who was standing in Sl. No. 32. The accused were permitted to take their order in the row and in the third instance, PW.1
identified A4, who was standing in Sl. No. 3 and A1 who was standing in Sl. No. 8.
PW.9 identified A4 standing in Sl. No. 7 and absconding accused one Sathish @ Sathish kumar who was standing in Sl. No. 29 in the row.
He also identified A1 standing in S1. No. 41. PW.9 at the second instance, identified the absconding accused Sathish @ Sathish Kumar who was
standing in Sl. No. 4, A4 who was standing in Sl. No. 11 in a row. A3 was standing in Sl. No. 31. When the witness was called again for
identifying the accused, it was represented by the accused to PW.13 that identification is sufficient and no more trial is required.
A1 Jai @ Jeyakumar has made his objections to PW.13 that the witness Deenadayalan is a distant relative to him and he was confined along
with him at Gandharvakottai Prison on an earlier occasion. A1 Jai @ Jeyakumar further stated to PW.13 that PW.9 Syed Musthafa is also known
to him and he was working near his residence. A1 claimed that his photographs were taken in the Police Station and shown to the witnesses. The
other accused have also made similar objections to the Judicial Magistrate who conducted the identification parade.
PW.16 took up further investigation from PW.15 on 17.8.2006 and examined the witness Ravi @ Ravichandran and after perusing his records
filed his final report against the accused for the offences under Sections 147, 148, 341 and 302 IPC. The case was taken on file by the learned
Judicial Magistrate No. 1, Thiruchirappalli, who after furnishing copies u/s 207 Code of Criminal Procedure, committed the case to the District &
Sessions Court. The learned Additional Sessions Court (Fast Track Court No. 2) took the case on file in S.C. No. 72 of 2008 and after framing
charges conducted the trial.
On completion of the evidence on the side of the prosecution, the accused were questioned u/s 313 Code of Criminal Procedure, and they
denied the case of the prosecution and examined one Angus my, Time Office Assistant of BHEL, Trichy as a defence witness.
According to DW.1, Angus my, PW.2 - Kaliyamurthy was working in the Stores Department of BHEL and he was on duty in general shift on
11.4.2006 and PW.2 entered the company by punching his card at 7.55 a.m., and left the company on permission at 2.28 p.m.,. DW.1 would
state that without punching card no employee can enter into the company or leave the company. An employee can go without punching the card
only during lunch hour between 11.50 a.m., and 1.00 p.m.,. Attendance Register of PW.1 was also marked as Ex.D3.
In conclusion of the trial and on analysing the evidence on record, the learned Trial Judge convicted the accused for offences u/s 148, 341,
302 IPC and sentenced them as stated above. Aggrieved against the conviction and sentence, the accused have preferred this appeal.
Heard the learned Counsel appearing for the Appellants/accused Mr. K. Jegannathan and the learned Additional Public Prosecutor appearing
for the State. I have also gone through the documents available on record.
Learned Counsel appearing for the Appellants would submit that PW.1 and PW.2 are examined as eye-witnesses and PW.1 was treated
hostile. The evidence of PW.2 was disbelieved by the Trial Court itself, but, still the accused were convicted on the retracted statement recorded
u/s 164 Code of Criminal Procedure from PW.1 and PW.9. The learned Counsel also referred to the contradictions in the recovery of weapons
and submitted that the case of the prosecution is not established beyond reasonable doubt and the benefit of doubt has to be given to the accused.
In support of his submission, the learned Counsel for the Appellants has relied on the following judgments:
(i) Ram Kishan Singh Vs. Harmit Kaur and Another,
(ii) Sheikh Hasib alias Tabarak Vs. The State of Bihar,
(iii) Phool Chand Vs. State of U.P.,
Per contra, learned Additional Public Prosecutor appearing for the State would submit that the complaint was lodged immediately after the
occurrence and PW.1 admitted the Ex.P1 as that is his complaint in his chief examination. Though PW.1 has been treated as hostile, his evidence
about the time and place of occurrence and the manner of occurrence has been proved. PW.1 and PW.9 have identified the accused in the
identification parade. During trial, PW.1 admitted the presence of the accused and when he was cross-examined by Additional Public Prosecutor
before the Trial Court, he changed his earlier version out of fear. The evidence of PW.1 was considered along the statement given u/s 164 Code of
Criminal Procedure, to establish the guilt of the accused.
The evidence of PW.3, PW.4 and PW.5 and PW.7 would establish the motive of the accused against the deceased and the accused have
surrendered immediately after the occurrence and the weapons were also recovered from them. The Doctor, who conducted post-mortem, gave
evidence that the death was due to the injuries sustained by the deceased and possible through the weapons recovered from the accused. The Trial
Court has properly appreciated the evidence. Therefore, the conviction and sentence passed by the Trial Court are sustainable.
Heard the learned Counsel appearing for the Appellants and the learned Additional Public Prosecutor and paid our anxious consideration on
the submissions made.
PW.1 is the driver of the deceased Rajaram and also is the author of the complaint Ex.P1. PW.1 also gave a statement u/s 164 Code of
Criminal Procedure, before PW.13 on 5.5.2006 and identified the accused 1 to 4/Appellants herein in the identification parade held on 5.5.2006.
But PW.1 has not supported the case of the prosecution during trial and turned hostile.
PW.1 in his chief examination, before the Trial Court would state that he was working as a driver of the deceased Rajaram and on 11.4.2006,
they participated in Annadhana function at Pilliar Koil, at Pudutheru in Anna Nagar. At that time, the deceased received a death message and
thereafter, they went to Navalpattu Pudutheru via, Burma Colony, Aalaya Ammal Koil, an Omni car intercepted their car at about 1.15 p.m., and
two persons got out of the car, damaged their car glasses and shouting Rajaram, the deceased who was inside, they pulled him out of the car and
cut him to death. After that, they ran away, PW.1 informed PW.4 and went to Anna Nagar Police Station to lodge a complaint. PW.1 admits that
Ex.P1 is his complaint but in the cross-examination, he denies the contents of the complaint and his signature in the complaint as if it was obtained
in a blank paper in the police jeep.
The Public Prosecutor before the Trial Court has treated PW.1 as a hostile witness and he cross-examined PW.1 with the permission of the
Court. During cross-examination, PW.1 admitted the presence of A1 to A4 and the other accused who was not present in the Court but
immediately, he changed his version and denied the presence of the accused. In one place, he has stated that he was not sure about the accused
and in another place, he affirmed that the accused are not the persons who committed the offence.
PW.1 appeared before the Judicial Magistrate and gave a statement u/s 164 Code of Criminal Procedure, which was marked as Ex.P.2.
PW.1 retracted during trial before the Trial Court that he made false statements on the compulsion of the party people. He also denied the
statement made under Ex.P2 as false.
Learned Additional Public Prosecutor has submitted that though PW.1 was treated as hostile, his evidence need not be rejected in toto but that
portion of the evidence which is corroborated from the facts of case can be relied on. PW.1 did not mention the presence of the accused at the
time of trial. He also stated that the accused were not in the place of occurrence and that version is true.
PW.1 identified the accused 1 to 4 in the presence of the Judicial Magistrate PW.13. But he did not identify the other accused. PW.9
identified the accused in the identification parade but PW.9 in his evidence would state that as per the instruction of Navalpattu Police and after
seeing the photographs shown to him he identified the accused in the identification parade.
Both PW.1 and PW.9 have retracted their statements recorded u/s 164 Code of Criminal Procedure, that the statements were given on the
instructions of police. PW.1 further states that the contents of the statement recorded u/s 164 Code of Criminal Procedure, are false. Though
PW.1 and PW.9 gave their statement u/s 164 Code of Criminal Procedure, and identified the accused during the identification parade, they
retracted their statements during trial and stated to have identified the accused on the instructions of police and with the help of the photographs.
The accused surrendered before the Court on 12.4.2006 and the identification parade was held only on 5.5.2006 i.e. after one month after
their surrender. The accused had also raised their objections to the learned Judicial Magistrate at the time of identification parades contending that
their photographs were taken by the police and by showing their photographs, the police instigated the witnesses to identify them.
In Ram Kishan Singh Vs. Harmit Kaur and Another, , the Supreme Court had held that ""a statementunderSection 164 of the Code of Criminal
Procedure is not substantive evidence. It can be used to corroborate the statement of a witness.
In Phool Chand Vs. State of U.P., , a Division Bench of Allahabad High Court had held that, ""the Privy Council and the Hon''ble Supreme
Court have categorically held that the statements recorded u/s 164 Code of Criminal Procedure, are not substantive evidence. It can be used only
to corroborate the statements of the witness or to contradict them.
When the sole eye witness disowned his complaint, declined to support the prosecution and did not identify the assailants in the Court, though
identified in the identification parade, the Court cannot rely only on the statement recorded u/s 164 Code of Criminal Procedure, and award a
conviction. The statement recorded u/s 164 Code of Criminal Procedure, has no substantial evidentiary value.
Since both PW.1 and PW.2 were treated hostile and did not support the case of the prosecution, the Court should be restrained and cautious
in approaching such evidence and the conviction cannot be sustained on their retracted statements under 164 Code of Criminal Procedure,.
PW.2 is the brother-in-law of the deceased. According to PW.2, on 11.4.206 at about 1.15 p.m, when he came to Navalpattu, he found the
Omni Van intercepting the Ambassador Car of the deceased. His case is that the accused got down from the Omni Van and attacked the
deceased who was in the car. PW.2 during his chief examination would admit that he attended the duty in BHEL on 11.4.2006 in general shift and
the general shift from 8.00 a.m, to 4.30 p.m.,. The entry and exit are recorded by punching their card and as per the record, PW.2 came about at
2.08 p.m., and he also admitted that from BHEL to Burma Colony, it would take half an hour to reach and from Burma Colony to Anna Nagar
another five minutes are required. For going out of the company in the middle of the working hours, permission has to be obtained and he did not
obtain any permission in writing for going out during such time. The Time Office Attendant of BHEL, Tiruchirappalli was examined as DW.1 and
the attendance register of PW.2 was marked as EX.D1.
According to DW.1, PW.2 attended the duty at BHEL on the date of occurrence in the general shift i.e., at 7.55 a.m.,. PW.2 left the company
at about 2.08 p.m.,. According to PW.2, a minimum of 35 minutes are required to reach the place of occurrence from the company. PW.2 came
out of the company at 2.08 p.m.,. Hence, there is no possibility of his witnessing the occurrence on the date of place at 1.15 p.m.,. Therefore,
PW.2''s evidence is not reliable and cannot be accepted.
The owner of Omni Van, PW.11 has also turned hostile.
Therefore, we are of the considered view that the prosecution has failed to prove the guilt of the accused 1 to 4 beyond reasonable doubt and
they are entitled to the benefit of doubt.
In the result, Criminal Appeal is allowed and the judgment of conviction and sentence dated 26.12.2008 made in S.C. No. 72 of 2008 by the
Additional District and Sessions Court [Fast Track Court No. 2], Tiruchirapalli is set aside and Appellants are acquitted of all the charges. Bail
Bonds, if any, executed by the Appellants stand terminated. Fine amount paid by them is to be refunded to them. M.P.(MD) No. 4 of 2009 is
closed.