Ramalingam and 3 others vs State by Inspector of Police Athur

N. Arumugham, J.—Four brothers living under the same roof as a joint family with their family members, who were the accused before the

learned Principal Assistant Sessions Judge, Salem in S.C. No. 26 of 1990, faced the Trial conducted by the learned Judge for the offences u/s 364

read with 34, 379 read with 34 and 307 read with 109 of Indian Penal Code and after the trial were found guilty upon the first and last charges by

acquitting on the Second charge whereupon sentenced each to undergo rigorous imprisonment for a period of three years with Rs.200/- as fine, in

default to suffer R.I. for three months on the first charge and rigorous imprisonment for a period of three years with a fine of Rs.300/- each, in

default to suffer R.I. for a further period of three months. The sentences were ordered to run concurrently. However, all the accused were found

not guilty and acquitted on the Second Charge. Aggrieved at this, the accused had preferred an appeal before the learned Sessions Judge, Salem,

in Criminal Appeal No. 105 of 1990 which was rejected on 18th March, 1991 confirming the conviction and sentence awarded by the Trial

Court. This Revision has been filed by all the four accused challenging the propriety and legality of the said concurrent finding.

The prosecution version is that at about 3.30 a.m. (mid night) on 11.11.1987 all the four accused with the common intention among themselves

took P.W. I by name Rani in a car from the village by name Veput situate within the jurisdiction of Athur Police Station on the pretext that they

wanted to take her to her mother''s house at Tindivanam to see her ailing mother and by so saying all the four accused took P.W. 1, to a place

near Selliampalayam Village Cooperative Society which is crowded with forest and dropped her following the violence perpetrated upon her by

the first accused by removing of the jewellery belonging to her, the third accused pushed P.W. 1, down and pressed her neck, the second accused

beat P.W. I with his hands upon her neck and the fourth accused stabbed P.W. 1, thrice upon her neck and also beat her with hands and thereby

caused bleeding injuries. On finding that P.W. I fell down and became unconscious, they left her and ran away. After regaining consciousness

within a short-while she walked towards a nearby place only with the under garments and found P.W. 2, a tailor engaged in doing his work. On

her approach, he gave her a saree as well as a coffee. It appears that P.W. 1, reached the Government Hospital Athur on the next day morning at

about 10.00 a.m. for treatment and she was admitted by P.W. 8. Dr. Santharam, attached to the Government Hospital, Athur, on examination of

P.W. 8. found six injuries upon the body of P.W. I as evident from Ex. P.5, the wound certificated dated 12.1.1988 which shows the following

injuries:-

A contusion 2"" x 1"" on the upper part of the centre of neck-red.

A semi circular interrupted abrasion dark black in colour on the right side of upper part of neck (nail mark).

A semi circular interrupted abrasion on the left side of upper part of neck.

A ''V shaped penetrating injury 2 x 3/4"" depth not probed. 1"" above the suprasternal notch. On blowing the dri escapes through the wound.

An incised wound 3 1/2 x 1/2"" depth not probed on the right side of neck lower part.

Final Opinion : Injury No. 6. is grievous and other injuries are simple in nature.

Upon the abovesaid injuries, P.W. 1, was admitted in the Hospital and was treated as an in-patient. Subsequently, Dr. Sivalingam, who was

examined as P.W. 9, on the treatment given to P.W. 1, gave the certificate Ex. P.6, which is in corroboration of the opinion given by P.W. 8,

stating that one of the injuries found on the neck is grievous in nature.

P.W. 10, the Sub Inspector of Police, while he was on duty at about 10.35 a.m. on 11.11.1987, received Ex. P.7 intimation from the

Government Hospital, Athur, had been to the hospital and examined P.W. 1. He recorded the statement of P.W. I, came to the Police Station and

registered the same in Athur Police Station Crime No. 514/87 for the offence u/s 394 I.P.C. He then sent the Express Reports to the higher

officials. Ex. P.8. is the printed F.I.R. sent to the Court and the higher officials.

P.W. 11, the Inspector of Police, Athur, on receipt of the information about the registering of the above case at about 12:30 p.m. on

11.11.1987, took up the investigation and had been to the place of occurrence at about 1:30 p.m. He prepared the observation mahazar Ex. P.2

along with rough sketch Ex. P.9. and at about 2:30 p.m. he recovered M.O.5, blood stained stem of Yerucum Plant, M.O.7, sample earth under

the cover of Ex. P.3. mahazar attested by witnesses and examined them. Then, he had been to the Government Hospital, Salem, where at that time

P.W. 1, was readmitted for further treatment and recorded her statement by examining her. At about 8:30 p.m. he recovered M.O.4, the jacket

worn by P.W. 1, under the cover of Ex. P. 10 mahazar attested by the witnesses. On 14.11.1987 he arrested the first accused Ramalingam at

about 5.00 P.M. at the junction of Valayamdevi Road and recorded the confession statement given by him. Thereafter the first accused took P.W.

11 and other witnesses to one Gnanaprakasam from whom two ear-rings were recovered under the cover of Ex. P. 12. mahazar attested by

witnesses. Then, P.W. 11. sent for remand the first accused on the same day. On 15.11.1987, on information, at about 7:15 a.m. P.W. 11

arrested the 4th accused at the junction of Athur - Rasipuram Road. At the request of the 4th accused, he was taken to a nearby bush from where

he produced M.O.2, saree and M.O.3, knife which were recovered under the cover of Ex. P. 13. mahazar attested by witnesses. Then, he was

remanded to the custody. P.W. 11. made search for the other accused, but however, they were not available.

P.W. 12 Thangadurai took charge of the investigation subsequently and made a request to the learned Judicial Magistrate No. 1, Rasipuram to

record the statement u/s 164, Accordingly on 7.6.89 as well as on 7.11.89 the statements of P.W. I under Sec.164 Crl.P.C. were recorded by

the learned Judicial Magistrate, Namakkal. However, on 14.11.1989 P.W. 12. arrested the third accused and remanded him. Then, on

20.11.1989 he came to know that the second accused had surrendered before the learned Judicial Magistrate, Kallakurichi.

It was also noticed that the prosecution witness P.W. 2. by name Thirisangu, a resident of Selliampalayam Village, having tailoring shop, claimed

that about 2 1/2 years ago at the early morning at about 3:30 on a day, while he was engaged in stitching the cloth, P.W. 1, appeared before him

with bleeding injuries; he enquired about what had happened and on narrating the occurrence by her and witnessing the injuries found upon her

neck and other parts, he provided her a saree, as she came there with the petty-coat and jacket with blood stains, and also a coffee. Then he sent

her to the Athur Government Hospital by but at about 5.30 a.m. P.W. 3. Gnanaprakasam, though examined, since not supported the prosecution,

was treated as hostile, from whom upon the confession of the first accused, M.O.I, a pair of ear-rings was alleged to have been recovered by the

Investigating Officer. P.W. 4. is the attesting witness for the observation mahazar Ex. 1.2. and the recovery mahazar Ex. P.3. P.W. 4. Nallathambi

and P.W. 6. Durai are the attesting witnesses for the recovery mahazar relating to earrings recovered from P.W. 3. However, P.W. 6. was treated

as hostile, since he has not supported the prosecution case. Similarly, P.W. 7. is also an attesting witness in Ex. P.4, which led to the recovery of

M.Os.2. and 3, at the request of the fourth accused in this case.

On filing the final report against all the four accused, the charges for the offences above referred to were framed and all the four accused denied

their complicity in the crime. The case was tried and after examining 12 witnesses and marking 13 documents Exs.P.1. to P. 13. and 7 material

objects M.Os.1 to 7 on behalf of the prosecution, the accused were questioned u/s 313 Cr.P.C. A written Statement was filed in which it has been

stated as follows:-

It is true that P.W. 1. was brought up by the first accused and consequently they were living as husband and wife along with the other accused in a

joint family at Vepur. But the fact that she came with jewellery is denied. While they were living in a joint family, it was claimed that P.W. 1. had

developed illicit intimacy with one Periyasamy for a period of six months prior to the occurrence. Though the accused are poor, they are leading

the life in a very dignified manner, as their family belongs to the group of Astrologers and by referring the said family name, P.W. 1. was

condemned and warned. Two days prior to the occurrence, while P.W. 1 had been to graze the cattle, she was found talking with the said

Periyasamy in a sugarcane field, which was witnessed by the first accused and at that time P.W. 1, and the said Periyasamy ran away in different

directions. Treating this as a worst insult to him, the first accused reported the matter to the elders of the village and therefore P.W. 1, has eluded

away. Thereafter, on 12.11.1987 Athur Police came and took all the four accused along with their mother. The Police, while letting on the accused

2 and 3 and the mother of the accused, detained the accused 1 and 4. Then, under the threat and compulsion of the Athur Police the accused 1

and 4 had subscribed their signature to the confession statements. With the above averments, the accused have pleaded total innocence and denied

their complicity in the crime.

On consideration of the entire materials placed by the prosecution and the accused, the legal evidence and the rival contentions, the learned trial

Judge found all the four accused guilty on the first and third charges and accordingly convicted and sentenced as above referred to. But in so far as

the second charge, the learned trial Judge found that the prosecution has not made out a case for the offence u/s 379 read with Section 34 I.P.C.

and consequently acquitted them on that charge. However, in the appeal preferred against the said verdict, after re-appraisal of the entire facts,

legal evidence and materials, the learned appellate Judge dismissed the appeal by confirming the judgment delivered by the learned Trial Judge.

Canvassing the propriety and legality of the said concurrent findings, the present Revision is being filed as aforesaid.

I have heard the Bar as well as the learned Government Advocate for and sentence passed by both the Courts below. It was the very

endeavour of Mr. Gopinath, the learned Senior Counsel on behalf of the revision petitioners that both the Courts below, while recording the

concurrent verdict, have erred seriously in identifying the legality or the substance of the prosecution case in bringing out the complicity of all the

accused and as such the conviction and sentence passed against the accused are only based upon mere conjectures and imaginations and not on

any legal evidence and that therefore the concurrent findings are totally bereft of any legality or propriety. The learned senior counsel, while

emphasising the above concept, drew my attention to the various vital inconsistencies and contradictions in the claim of the prosecution witnesses,

which go to the root of the very prosecution case. On the contrary, it was the faint endeavour of the learned Government Advocate Mr. A.N.

Rajan, to controvert the said contentions by contending that P.W. 1, is a lady who had been acquainted with all the accused for a considerable

time and that therefore her reference to all the accused with regard to their individual over acts respectively cannot be belied, as was rendered by

both the Courts below. By contending so, the learned Government Advocate would support and justify the concurrent findings recorded by both

the Courts below.

In the light of the said rival position, I have gone through the two judgments concurrently delivered by the Courts below with all the case

materials and records coupled with the written submissions of the accused and the legal evidence. After having considered every one of the said

materials in the context of the rival contentions, I may straightway observe that in the instant case the prosecution has deliberately and virtually

failed to prove the guilt of the accused beyond the realm of any doubt and that therefore, the conviction and sentence recorded concurrently by the

Courts below are totally bereft of any legality and propriety and as such it is liable to be interfered with by setting aside the same for the following

reasons :-

Though P.W. I, the lady claims to have acquaintance with all the accused by her living jointly for a considerable period under the same roof

referred to the individual overt acts of all the four accused in a strange remote place covered by bushes and forest at about 3:30 a.m. (mid night)

her evidence becomes very difficult to be believed in the context that there was no light element spoken to. My verifications of the calendar for the

year 1987 shows that the early morning of 11.11.1987 is not the full moon day and no witness speaks to the availability of the light to identify the

overt acts of the four accused, by P.W. 1, in a similar form. This fact has been totally overlooked and omitted by both the Courts below and failed

to be taken not of.

Even assuming that P.W. 1, was dragged down to the ground by the third accused in the place of occurrence which is a lonely place, men it is

not known as to how she was able to notice the overt acts of the other accused including her husband, the first accused.

The claim made by P.W. 1, that the fourth accused stabbed with a knife upon her neck three times was falsified by the evidence of P.W. 8. and

the wound certificate Ex. P.5 The injure No. 6 claimed to be grievous was found upon the upper part of the neck with a hole, but not in the neck.

There was no corroborating or substantiating evidence in this case to the oral testimony of P.W. 1, especially in the context that her character

and illicit intimacy with one stranger was claimed by the accused. The independent evidence to substantiate her case is totally lacking and for the

said reason it is quite unsafe to place any reliance upon the solitary claim of P.W. I.

The evidence of P.W. 2. the so-called tailor, looks totally strange and surprising. His version that P. W. 1. stood before him half naked with the

blood stained clothes and that after providing shelter, she was within him till the early morning of 5:30, when she caught the first first bus to Athur,

is hardly believable. The non- accompanying of P.W. 2, or any other witness in the neighboring place on spotting P.W. 1, with violent bleeding

injuries has become highly suspicious. His conduct has become so unnatural and strange.

The other witnesses, namely, P.W. 3. and P.W. 6. have not supported the prosecution case.

The investigating agency seems to have not taken any steps for tracing out the vehicle said to have been used for kidnapping P.W. 1, from her

house. Besides, the recording of the statement u/s 163 Cr.P.C. on more than one occasion by the Judicial Magistrate, as was decided by the

Investigating Officer itself goes to point out the hollowness of the prosecution.

There was a preponderance of improbability inherent with the prosecution version from its inception till the end and all the said aspects above

referred to have not at all been considered by the trial Judge as well as the learned appellate Judge. In short to say, if the whole evidence is

perused, the complicity of the accused in committing the said offences with reference to their overt acts has not been established by the prosecution

by examining a single witness in this case and the narration of the only witness P.W. 1, is falsified and could not be believed for the reason that in

an absolute total strange place during the mid-night, she cannot have noticed the several individual overt acts of the four accused in this case. The

various observations and reasonings given by the learned trial Judge and the Lower Appellate Judge were not on the basis of the legal evidence

recorded, but only on the surmises, conjectures and imaginations. It is well settled now by the Courts of Law that in trying a case against the

accused for the Criminal offence, the Court should not be carried away by mere sentimentalities, but however, it is bound to act upon the legal

evidence. In this case the legal evidence in bringing home the complicity of the four accused is totally lacking and the prosecution has burked the

real story. It is thus seen that the concurrent judgments rendered by both the Courts below are found totally bereft of legality, propriety and

validity. The observations and findings given by both the Courts below have become thus erroneous and cannot be digested for any moment in the

eye of law for want of legal evidence in toto. With the result after having considered the whole gamut of case, I have no hesitation to hold that the

prosecution have virtually and deliberately failed to prove the complicity and guilt of the accused in the crime by adducing any legal evidence which

are acceptable and that aspect has been totally over-looked and ignored by both the Courts below in recording the verdict of conviction and

sentence and as such it becomes vulnerable in law and is liable to be set aside.

In the result, for all the foregoing reasons, the Revision succeeds and stands allowed. Consequently the judgment of conviction and sentence

delivered by the learned Principal Assistant Sessions Judge Salem, in S.C.No.26 of 1990 on 27.06.1990 confirmed by the I Additional Sessions

Judge, Salem, in C.A.No,105 of 1990 on 18.03.1991, is hereby set aside and the accused/revision petitioners are ordered to be set at liberty

forthwith. Bail bonds, if any, are hereby cancelled. The fine amount, if any paid in ordered to be refunded to the accused forthwith.