SEKAR REPORTER

Court News from Madras High Court

Accordingly, the Criminal Appeal is allowed and the conviction and sentence imposed upon the appellants/A1 to A5 in S.C. No.60 of 2018 dated 31.01.2020, on the file of the learned Sessions Judge, Special Court for Bomb Blast Cases, Coimbatore, are set aside. Appellants/A1 to A5 are acquitted of all the charges and are directed to be released forthwith unless their presence is required in connection with any other case. The fine amounts, if any, paid by the appellants shall be refunded. Bail bonds, if any, executed shall stand discharged. Consequently, the connected CriminalMiscellaneous Petition is closed. (M.S.R.,J.) (S.M.,J.)16.04.2024

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IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 08.04.2024
PRONOUNCED ON : 16.04.2024
CORAM :
THE HON’BLE MR. JUSTICE M.S.RAMESH
AND
THE HON’BLE MR. JUSTICE SUNDER MOHAN
Crl.A.No.123 of 2020 and Crl.M.P.No.13673 of 2023

  1. Suriya
    S/o.Chinnathambi
  2. Suriya
    S/o.Rajagopal
  3. Mohan Raj
  4. Vignesh Kumar @ Babu
  5. Vijayaraj
    State represented by
    Inspector of Police (L & O), D-2 Selvapuram Police Station, Coimbatore. … Appellants/A1 to A5
    v.
    (Crime No.1160 of 2017) … Respondent/Complainant
    Criminal Appeal filed under Section 374(2) of Code of Criminal Procedure, 1973, against the conviction of the appellants and sentence in
    S.C. No.60 of 2018 dated 31.01.2020, on the file of the learned Sessions Judge, Special Court for Bomb Blast Cases, Coimbatore and set aside the conviction and sentence imposed in judgment dated 31.01.2020 and acquit the appellants.
    For Appellants : Mr.R.Vivekananthan
    For Respondent : Mr.Babu Muthu Meeran Additional Public Prosecutor
    JUDGMENT
    (Order of the Court was delivered by SUNDER MOHAN,J.)
    This Criminal Appeal has been filed by the accused challenging the conviction and sentence imposed upon them vide judgment dated 31.01.2020 in S.C.No.60 of 2018 on the file of the learned Sessions Judge, Special Court for Bomb Blast Cases, Coimbatore.
  6. For the sake of convenience the parties are hereinafter referred to as per their ranking before the trial Court.
  7. (i) It is the case of the prosecution that the accused and one
    Vinothkumar were friends; that due to prior enmity one Gundu Raja and Selvaraj (D2) committed the murder of the said Vinothkumar; that they were arrested and after their release on bail, the deceased-D2 and Ananda Kumar (D1) threatened the accused with dire consequences, if they acted against them for the murder of Vinothkumar; that therefore, the accused decided to do away with both the deceased; that on 22.09.2017 at about 12.30 p.m., all the accused had unlawfully assembled and committed the murder of the deceased (D1-Anandakumar) near IUDP Colony Public Toilet and (D2Selvaraj) near Sunrise Company at Selvapuram, Coimbatore, by causing injury with deadly weapons and thereafter, fled from the scene of the occurrence; that the deceased were taken to the hospital; and that on the basis of the intimations sent from the hospital to the police station i.e., Ex.P20 sent at 2.00 p.m., in respect of D2-Selvaraj and Ex.P42 sent at 3.00 p.m., in respect of D1-Anandakumar, PW16, the Sub-Inspector of Police came to know of the occurrence.
    (ii) PW1 who is the brother of D2-Selvaraj, gave a complaint [Ex.P1] based on which an FIR [Ex.P31] was registered by PW16 in Cr.No.1160 of 2017 against the accused for the offence under Sections 147, 148 and 302 r/w 34 of the IPC at 4.30 p.m.
    (iii) PW17, the Inspector of Police took up the investigation, went to the scene of the occurrence at 5.30 p.m., prepared the observation mahazar [Ex.P26] and Rough Sketch [Ex.P32]. He seized the bloodstained pink coloured tile [M.O.14] and the pink coloured tile that was not bloodstained [M.O.15] from the occurrence place near the IUDP Colony Public Toilet, under Seizure Mahazar [Ex.P27]. He also seized the bloodstained white coloured tile [M.O.16] and the white coloured tile that was not bloodstained [M.O.17] from the second occurrence place near the Sun Traders Company, under Seizure Mahazar [Ex.P28]. He thereafter collected the bloodstains from the auto [TN99 H 9114] by which the deceased were taken to the hospital, in a gauze cloth [M.O.18], under Seizure Mahazar [Ex.P29].
    (iv) On 23.09.2017, PW17 conducted the inquest over the dead body of D2-Selvaraj and prepared the inquest report [Ex.P33]. He thereafter conducted the inquest over the dead body of D1-Ananda Kumar and prepared the inquest report [Ex.P34]. He made a requisition for conduct of postmortem, which was conducted by PW11, who issued the postmortem certificate [Ex.P15] and final opinion [Ex.P16] in respect of D2-Selvaraj and issued the postmortem certificate [Ex.P17] and final opinion [Ex.P18] in respect of D1-Anantha Kumar.
    (v) PW17 thereafter on 23.09.2017 arrested A1 to A4 and on theirconfessions, recovered the weapons used by the accused. He also seized the bloodstained clothes and aruval from A1 [M.O.19 and M.O.7] and A2 [M.O.20 & M.O.8] and A4 [M.O.21, M.O.22 and M.O.5]. Thereafter on 25.09.2017, he arrested A5 and on the confession seized an aruval and bloodstained clothes [M.O.6 and M.O.9]. Thereafter he sent the seized articles to the Court. After making a requisition to the Court, he sent the articles for forensic examination. After obtaining all the reports and examining some more witnesses, he filed the final report on 04.01.2018 against the accused for the offences under Sections 149, 147, 148 and 302 r/w 34 of the IPC before the learned Judicial Magistrate No.V, Coimbatore.
    (vi) On the appearance of the accused, the provisions of Section 207 Cr.P.C., were complied with and committed to the Court of Session in
    S.C.No.60 of 2018 and was made over to the learned Sessions Judge, Special Court for Bomb Blast Cases, Coimbatore, for trial. The trial Court framed charges against the accused, and when questioned, the accused
    pleaded ‘not guilty’.
    (vii) To prove the case, the prosecution examined 17 witnesses as
    P.W.1 to P.W.17, marked 42 exhibits as Exs.P1 to P42, and marked 22 Material Objects as M.O.1 to M.O.22. When the accused were questioned, u/s.313 Cr.P.C., on the incriminating circumstances appearing against them, they denied the same. The accused did not examine any witnesses or mark any documents.
    (viii) On appreciation of oral and documentary evidence, the trial Court found that the prosecution had established its case beyond reasonable doubt and held A1, A2, A4 and A5, guilty of offences under Sections 148 and 302 (2 counts) of the IPC and A3 was found guilty of offence under
    Section 147 of the IPC. The accused were sentenced as follows:
    Accused No. Offence under Section Sentence imposed
    A1, A2, A4 and A5 148 IPC Each of them to undergo RI for 2 years and to pay a fine of Rs.2,000/- in default to undergo SI for two months.
    302 IPC (2 counts) Each of them to undergo life imprisonment and to pay a fine of Rs.5,000/- in default to undergo SI for three months, for each count.
    A3 147 IPC To undergo RI for one year and to pay a fine of Rs.1,000/- in default to undergo SI for one month.
    302 r/w 149 IPC
    (2 counts) To undergo life imprisonment and to pay a fine of Rs.5,000/- in default to undergo SI for three months, for each count.
    The sentences were directed to run concurrently.
    Hence, the accused have preferred the appeal challenging the said conviction and sentence.
  8. Heard, Mr.R.Vivekananthan, learned counsel appearing for the appellants, and Mr. Babu Muthu Meeran, learned Additional Public
    Prosecutor appearing for the respondent/State.
  11. (i) The learned counsel for the appellants submitted that PW2 to PW4 were examined as eyewitnesses; that PW2 and PW4 turned hostile; that PW3 who supported the prosecution and is closely related to D2Selvaraj could not have been present at the scene of the occurrence as could be seen from the evidence of PW1 and the fact that he neither gave a complaint to the police nor helped the others to take the deceased to the hospital.
    (ii) The learned counsel further submitted that the other witnesses are of no avail to the prosecution and if PW3 is disbelieved, the appellants would be entitled to acquittal.
  12. The learned Additional Public Prosecutor per contra submitted that PW3 is the cousin brother of the D2-Selvaraj and therefore, there is no necessity for him to falsely implicate the accused; that PW1 had named all the accused in the complaint itself, which reached the Magistrate the same day and therefore it cannot be said that the allegations against the accused is an afterthought; that the motive has been established by the prosecution and therefore PW3’s evidence cannot be disregarded; and that the trial Court had rightly convicted the appellants on the basis of PW3’s evidence, which is corroborated to some extent by PW2. Hence, he prayed for dismissal of the appeal.
  13. We have carefully considered the rival submissions and have perused all the relevant records.
  14. PW1 is the defacto complainant and the brother of the deceased who had lodged the complaint [Ex.P1]; PW2 and PW4 who were friends of D2–Selvaraj, turned hostile; PW3 is the cousin brother of D2-Selvaraj and an eyewitness to the occurrence; PW5 is the uncle of the D2-Ananda Kumar, who came to know of the occurrence and informed PW1 about the occurrence; PW6 is the witness to the arrest and confession of A5; PW7 is the photographer; PW8 is the witness to the arrest and confession of A1 to A4 and to the confession and Seizure Mahazars [Ex.P7 to Ex.P12]; PW9, is the Doctor, who had made entries in Accident Register [Ex.P13] in respect of D1-Ananda Kumar; PW10 is the Corpse constable; PW11, is the Doctor, who conducted postmortem on both the deceased and issued postmortem certificates and final opinions [Ex.P16 to Ex.P18]; PW12 is the Doctor who made entries in Accident Register [Ex.P19] in respect of D2-Selvaraj; PW13 is the Forensic expert who issued biological and serology reports [Ex.P21 to Ex.P25]; PW14 is the witness to the Observation Mahazar and Rough Sketch; PW15 is the Judicial Magistrate who recorded Section 164 Cr.P.C., statements of PW2 to PW4; PW16, is the Sub Inspector of Police, who registered the FIR; and PW17 is the investigating officer, who filed the final report.
  15. PW11 is the Doctor, who conducted postmortem on both the deceased. He had noted multiple cut injuries and opined in respect of both the deceased as follows:
    “Opinion: The deceased would appear to have died of shock and haemorrhage due to multiple cut injuries. The time of death 12 to 24 hours prior to autopsy.”
    Thus the prosecution has established that both the deceased suffered homicidal deaths.
  16. It is the prosecution case that the deceased had threatened the accused and the accused in turn threatened the deceased since D2-Selvaraj had caused the death of their dear friend Vinothkumar. PW1 who speaks about the alleged threats made by the accused, admits that though he was aware of the threats made by the accused, he had not made a complaint. In the complaint-Ex.P1, he would state that he came to know about the threats through his brother the deceased D2-Selvaraj, however in the deposition, he had stated as if he was personally aware of the threats. This is an improvement.
  17. Be that as it may, PW1 had named all the accused in the complaint and stated that he came to know of the occurrence from one Anandan and a few persons who were at the scene of the occurrence. The said Anandan who is referred to in Ex.P1-complaint, was not examined, for the reasons best known to the prosecution. It is also PW1’s version that he came to know of the occurrence only through PW5, his uncle who himself came to know of the occurrence from somebody else. There is no reference to the presence of PW3 at the scene of the occurrence in the complaint. PW3 who is the cousin brother of PW1 and D2-Selvaraj had not informed PW1 about the occurrence.
  18. Further, it is seen from the records that though PW3 was examined only the next day i.e. 23.09.2017, and his statement was sent to the Court only on 24.09.2017. The delay in recording the statement or despatching it to the Magistrate would certainly have a bearing in this case when PW3 claims himself to be an eyewitness.
  19. The conduct of PW3 in not informing either PW1 or the police about the occurrence immediately makes his presence highly doubtful. He had not taken any steps to take the deceased to the hospital. The entries in the Accident Register Ex.P19 in respect of D2-Selvaraj state that he was brought by a 108 ambulance driver and the entries in Ex.P13 in respect of D1-Ananda Kumar shows that he was brought by one Mohammed Ashid, who was not examined by the prosecution. That apart, it is stated in Ex.P42, the intimation sent to the police from the hospital that Anantha
    Kumar-D2 was found lying with the injuries at around 2.30 p.m. at IUDP Colony Public Toilet, Selvapuram. If PW3 had really witnessed the occurrence as stated earlier, he would have gone to the police or assisted in taking the deceased to the hospital, as he is very closely related to D2Selvaraj. He would state in the cross examination that he went to the police station to make a complaint. However, the investigating officer denies receipt of any such complaint. For all the above reasons, we are of the view that the presence of PW3 at the scene of the occurrence is highly doubtful and no reliance can be placed on his evidence to hold that the appellants are guilty of the offence of murdering both the deceased.
  20. PW2 and PW4, the other eyewitnesses turned hostile. However, PW2 would state that he along with PW3 went to the scene of the occurrence at about 12.00 noon and found both the deceased lying dead. Though PW2 turned hostile, his evidence suggests that both he and PW3 went to the scene of the occurrence after the occurrence, which also falsifies PW3’s presence at the scene of the occurrence. The other witnesses who are either Mahazar witnesses or official witnesses do not suggest the
    involvement of the appellants in the alleged offence.
  21. In view of the fact that the eyewitness cannot be believed, the recovery of weapons by itself would not be of any significance to connect the appellants with the alleged crime. In any case, the manner in which the weapons were said to have been seized in an open place from the bank of the pond makes the recovery also doubtful. PW8 in the cross examination had stated that he had signed some of the pages at the police station. That apart, from the report of the forensic science expert-Ex.P22 it could be seen that most of the articles seized had ‘A’ blood group. There is no evidence let in by the prosecution as regards the blood group of the deceased. Therefore, the seizures would be of no avail to the prosecution case.
  22. We are therefore of the view that PW3 cannot be believed and that the prosecution has not established its case against the appellants beyond reasonable doubt and therefore, the judgment of the trial Court convicting the appellants, cannot be sustained and is liable to be set aside.
  23. Accordingly, the Criminal Appeal is allowed and the conviction and sentence imposed upon the appellants/A1 to A5 in S.C. No.60 of 2018 dated 31.01.2020, on the file of the learned Sessions Judge, Special Court for Bomb Blast Cases, Coimbatore, are set aside. Appellants/A1 to A5 are acquitted of all the charges and are directed to be released forthwith unless their presence is required in connection with any other case. The fine amounts, if any, paid by the appellants shall be refunded. Bail bonds, if any, executed shall stand discharged. Consequently, the connected Criminal
    Miscellaneous Petition is closed. (M.S.R.,J.) (S.M.,J.)
    16.04.2024
    Index : yes
    Speaking order
    Neutral citation : yes
    Issue order copy by 17.04.2024 ars 
    M.S.RAMESH,J.
    AND
    SUNDER MOHAN,J.
    ars
    To
  24. The Sessions Judge,
    Special Court for Bomb Blast Cases, Coimbatore.
  25. The Inspector of Police,D-2 Selvapuram Police Station, Coimbatore.
  26. The Superintendent,Central Prison, Coimbatore.
  27. The Public Prosecutor,
    High Court, Madras
    Pre-delivery Judgment in
    Crl.A.No.123 of 2020
    16.04.2024

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