Viji @ Vijendiran & ors. vs State & ors.

Sl.No.,Charges (Section of law),accused

1.,"U/ss.120(b), 148, 341, 302 read with Section 109 IPC and Section 379 IPC",A1 & A2

2.,"U/ss.120(b), 148, 341, 302 and 379",A3 to A5

3.,"U/ss.148, 302 read with Section Section 109 IPC and Section 379 IPC",A6 & A7

the side of the prosecution as many as 15 witnesses were examined, 18 documents and 11 materials objects were marked. Out of the said",,

witnesses, P.Ws.1, 2, 6 and 7 were examined as eyewitnesses, who spoke about the entire occurrence. But unfortunately, P.Ws.6 and 7 have",,

turned hostile and they have not supported the case of the prosecution in any manner. P.Ws.1 and 2 have fully supported the case of the,,

prosecution. P.W.3-Dr.Prabu has stated on that 11.5.2016, at 10.15 p.m., the deceased was brought to the hospital by one Mr.Raghu. At that",,

time, the deceased was already no more. Mr.Raghu told P.W.3 that the deceased was attacked by five known persons at Udayamarthandapuram",,

Bharath Petrol Bunk. P.W.4, a Scientific Expert from Regional Forensic Science and Laboratory, Thanjavur, has stated that he examined the",,

external organs of the deceased, which revealed that there was neither poison nor alcohol. P.W.5-Dr.Muthusamy has spoken about the post-",,

mortem conducted and his final opinion regarding the cause of death. P.W.8 has spoken about the motive. P.W.9 has stated that he took the,,

deceased to the hospital along with one Mr.Raghu from the place of occurrence. P.W.10 has spoken about the arrest of the accused Silambaran,,

and Marimuthu and the consequential recoveries made. P.W.11 has spoken about the confession made by the second accused while in police,,

custody and the recovery made out of the same. P.W.12 has spoken about the confession made by the accused Siva @ Sivakumar and the,,

consequential recoveries of materials objects. P.W.13 has spoken about the preparation of observation mahazar and rough sketch at the place of,,

occurrence. P.W.14, a Constable, has stated that he took the dead body and handed over the same to the Doctor for postmortem. He recovered",,

the blood stained clothes from the body of the deceased, after the post0mortem was over. P.W.15 has spoken about the registration of the case,",,

the investigation done and the final report filed.,,

When the above incriminating materials were put to the accused, they denied the same as false. However, they did not choose to examine any",,

witness nor mark any document on their side. Their defence was a total denial.,,

Having considered all the above, the trial Court convicted the appellants in Crl.ANo.50 of 2017 alone, that too, for the offence under Section",,

302 IPC alone. The trial Court has acquitted them from other charges. Similarly the trial Court has acquitted all the other accused.,,

We have heard the learned counsel appearing for the appellants/accused 1 and 2 and the learned Additional Public Prosecutor appearing for the,,

State. We have also perused the records carefully.,,

It is the positive case of the prosecution that the alleged occurrence had taken place in the petrol bunk owned by the deceased at 9.15 p.m. on,,

11.5.2015. It is the further case of the prosecution that P.W.1 took the deceased to the hospital and P.W.3-Dr.Prabu examined him at 10.15 p.m.,,

At that time, the Doctor was told that the deceased was cut by five persons with aruval. Though the maker of the statement Mr.Raghu has not",,

been examined, to the limited extent that the Accident Register contained the earliest information about the occurrence needs to be considered.",,

After the deceased was so declared dead by P.W.3, P.W.1 went to the police station and allegedly made a complaint at 11.30 p.m. Had it",,

been true that P.W.1 was present at the place of occurrence, he would have told P.W.3-the Doctor, that the assailants were eight in number.",,

When he made complaint at 11.30 p.m., he mentioned that a total number of four people alone cut the deceased. Out of whom, two were",,

unknown people. Had it been true that P.W.1 was present at the place of occurrence, there was no reason for him to mention in Ex.P1 that only",,

four people participated in the crime, out of whom, two were unknown. The case of the prosecution is that totally eight persons came in an",,

unlawful assembly, all armed with aruvals and cut the deceased. P.W.1 had been duly contradicted by the defence, by using Ex.P1, the complaint.",,

Absolutely there is no explanation as to why P.W.1 mentioned only about four persons in Ex.P1, that too, about the two un-known persons. This",,

further creates doubt about the very presence of P.W.1 at the place of occurrence.,,

Had it been true that Ex.P1 was made at 11.30 p.m., the FIR would have reached the office of the learned Magistrate within half an hour.",,

Admittedly, the distance between the police station at Edaiyur and the house of the Magistrate at Thiruthuraipoondi is hardly 15 kms. The learned",,

Additional Public Prosecution has got instructions from the respondent police that the said distance is only 15 kms. But the FIR in this case had,,

reached the hands of the Magistrate only at 2.00 p.m. on 12.5.2015. The fact remains that in the meantime, the inquest was over and even post-",,

mortem was completed at 11.00 a.m. itself. Thus, it is quite obvious that Ex.P1 had come into being after post-mortem is over. There is absolutely",,

no explanation as to why there was so much of delay in forwarding the FIR to the Court, if really the FIR had been registered at 11.30 p.m. itself.",,

Further, when the FIR speaks about the presence and participation of a definite number of four accused, how it swelled into eighth is also not",,

explained. Why P.Ws.1 and 2 have not stated, at the earliest point of time, that the total number of assailants were eight, is also not known.",,

In the light of these contradictory statements regarding number of assailants made at various circumstances and in the light of the unexplained,,

delay in forwarding the complaint to the Court, we find it difficult to act upon the evidences of P.Ws.1 and 2. P.Ws.1 and 2 were not the residents",,

of the occurrence village. They are related to the deceased. They have stated that they went to the place of occurrence by chance.,,

It is a settled law that if a witness claims to have been present at the place of occurrence by chance, he is required to explain to the satisfaction",,

of the Court the reasons for his being present at the place of occurrence. In the instant case, absolutely there is no explanation as to why P.Ws.1",,

and 2 had come to the place of occurrence. Thus, the very presence of P.Ws.1 and 2, at the place of occurrence, is doubtful. This doubt is further",,

strengthened by the other anomalies, about which we already made discussions.",,

Now turning to the evidences of P.Ws.1 and 2, it is the case that the accused 1 and 2 initially cut the deceased and thereafter, when the",,

deceased tried to escape by scaling down the compound wall, the other accused surrounded him and according to the charge, the accused 4 to 6",,

alone killed the deceased by cutting. But the present evidence is that the accused 1 and 2 cut the deceased and then only the accused 4 to 6 cut,,

the deceased. Thus, the evidences of P.Ws.1 and 2 is quite contrary to the charges framed. As such, in our considered view, it is difficult to act",,

upon the evidences of P.Ws.1 and 2 to sustain the conviction of accused 1 and 2 and to reverse the acquittal of the others. We hold that the,,

prosecution has failed to prove the case beyond reasonable doubts.,,

In the result, Crl.A.No.50 of 2017 is allowed; the conviction and sentences imposed on the appellants/accused 1 and 2 by the trial Court are",,

set aside and the appellants/accused 1 and 2 are acquitted. Fine amounts, if any paid by them, are ordered to be refunded forthwith.",,

Crl.A.No.212 of 2017 is dismissed and the acquittal of the respondents is hereby confirmed.,,