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1992 Supreme(Mad) 377
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K.M. NATARAJAN & THE HONOURABLE MR. JUSTICE N. ARUMUGHAM
SEKAR
Versus
STATE
Cri. Appeal 874 of 1985
Decided On : 12-08-1992
Headnote:(i) Indian Penal Code, 1860 - Section 302 Conviction under - Appeal - Changed version of the inquest witnesses during their performance in the trial - Major shifting of the overt acts among the accused by the ocular witnesses came into existence subsequently during trial - Shifting of culpability of the second accused to that of the first accused - Documentary evidence recorded at the earliest point of time did not fix the identity of the accused who caused the fatal injury - Medical evidence not supporting the claim of the ocular witnesses stated during trial- Ocular witnesses are not the truth speaking witnesses - The fact that the deceased was done to death on the alleged night and time due to the homicidal violence namely by stabbing with a sharp edged weapon – Prosecution has failed to prove the alleged recoveries providing the link for the complicity of the appellant in the crime - A thorough and perfect investigation has not been done by the investigating agency - Infirmities and flaws in the investigation are fatal to the prosecution Conviction recorded is not sustainable.
Held: There is a major and material shifting in the case of the prosecution from the one narrated at the time of Ex. P.1 and during investigation on the next day of occurrence, namely, the inquest and the examination of the ocular witnesses to the oral testimony tendered before the trial Court after a lapse of five months. This assumes every significance and importance in the sense that the culpability of the second accused namely Babu as was referred to and stated in Ex. P.l and Ex. P.26 has been changed totally by the prosecution through the ocular witnesses P.W s.1, 2 and 4 presumably with a view to save or enable the second accused to have an escape from the clutches of law for the offences committed and that was the reason why the ocular witnesses had chosen their shifting during their performance before the trial Court. This conclusion of ours is fortified by the fact that on seeing the accident register Ex. P.11 given by P.W. 17 Dr. Adalarasan and his description of the wounds as well as the post mortem certificate Ex. P.14 the prosecution has fixed the overt-acts of both the accused preferably to save the second accused. (Para 39)
If we take the claim of the prosecution case found in Ex. P.1 and Ex. P.26 which came into existence at the earliest point of time immediately after the occurrence and before seeing Ex. P.11 and Ex. P.14, it has to be noted that there would have been a number of injuries found on the person of the deceased because it was the consistent and uniform claim of P.W. 1 and P.W. 2 and P.W.4 that both the accused namely the appellant and the acquitted accused stabbed the deceased indiscriminately with the knife in their hands. Therefore, keeping in view the object of helping the second accused from the clutches of law, after having perused the Accident Register Ex. P.11 and the post mortem certificate Ex. P.14, it was manifest that the ocular witnesses namely P.Ws.1, 2 and 4 had decided to take the major shifting of their own version in order to help the second accused by attributing the entire overt-acts upon the first accused and that pursuant thereto, they had come forward with a different story before the Sessions trial. (Para 40)
Further held: If any legal credence is to be attached upon the theory of the prosecution witnesses on the basis of Ex. P.23 and Ex. P. 26, we find the medical evidence rendered by P.W. 17 and P.W. 18 through Ex. P.11 and Ex. P.14 is not rendering any support to the claim of the ocular witnesses in the context that no injuries barring the injuries found in Ex. P.11 and Ex. P.14 are available. Therefore, this aspect fortifies our observation that only after coming to know of the number and place of injuries found in Ex. P.11 and with a view to save the second accused, the ocular witnesses namely P.Ws. 1, 2 and 4 have decided to help the second accused to have an escape from the clutches of law for having stabbed the deceased and that therefore, it was manifest that they had entertained the above referred shifting in their mind foisting the entire liability on the first accused namely the appellant herein in attributing the injuries found on the body of the deceased as per Ex. P.11 and Ex. P.14 which under law cannot be permitted. (Para 47)
Consequently held: The accounting of the ocular witnesses as well as res-gestae witnesses did not inspire any confidence or belief in our mind which we have come across, the above opinion on a careful scrutiny and analysis of their testimony in toto. Since we have disbelieved the alleged recovery of M.O.4 under Ex. P.7 and the evidence of P.W. 14, we are constrained to hold that the prosecution failed to prove the complicity of the appellant in the crime beyond all reasonable doubt and the benefit of doubt has necessarily to go to the appellant/accused. It is an unfortunate incident in which the deceased was killed by homicidal violence but the real culprit who caused the death of the deceased had not been booked and the edifice of the prosecution has been destroyed by their own version which follows that the ocular witnesses are not the truth speaking witnesses. Therefore, we are fully satisfied to reject the evidence of the accounting of the ocular witnesses as well as res gestae witness and the alleged recoveries made by the investigating agency. Consequently, we are not satisfied with the findings of the learned Sessions Judge under this appeal, with the result the entire-prosecution case has to be rejected. (Para 56)
Result: Appeal allowed.
ARUMUGHAM, J.
( 1 ) THIS appeal is directed against the judgment rendered by the learned XI Additional Sessions Judge, Madras, finding the appellant guilty under Section 302 I. P. C. and the consequent sentence of imprisonment for life in Sessions Case No. 69 of 1985 on 110. 1985. Along with the appellant, one accused by name Babu was also tried by the learned Sessions Judge for an offence punishable under section 302 r/w 34 I. P. C. but he was acquitted of the said charge.
( 2 ) THE case of the prosecution as spoken to by witnesses examined by the prosecution in brief are extracted as hereunder: P. W. 1 Velu was living with his parents near Murugan Theatre. His mother used to provide meals on the receipt of calls among the labourers of the Kothavalchavadi and for the said purpose, he used to take her in Meenbadi cart (herein after referred to as cart) to Kothavalchavadi market. The deceased in this case Theivasigamani was the sisters husband of P. W. 1. He was also doing cooli work in a plantain mandi at Kothavalchavadi. The deceased with his wife namely the sister of P. W. 1 was also living in the nearby house of P. W. 1.
( 3 ) WHILE that being so, 5 months prior to his deposing in the witness box, on a Sunday at about 7 p. m. at the instruction of Theivasigamani, he travelled in the cart driven by Theivasigamani. When the cart came near the junction of Varadhamuthiappan Street and Annapillai Street at about 8. 30 p. m. that night, it rubbed a person. With a view to avoid further rubbing, P. W. 1 who was sitting in the cart pushed side that person. Consequently, that person caught hold of the shirt of P. W. 1 which was followed by the deceased getting down from the cart. The deceased questioned the person by referring his name Sekar about his beating P. W. 1. The deceased beat Sekar, the first accused in the instant case. During that time, a person who was nearby came there and questioned the deceased as to why he beat Al Sekar. Then, according to P. W. 1, the deceased accosted A2 Babu by name and asked whether he too came to beat him. Following this his uncle, the deceased beat Babu the second accused. Then the second accused Babu took out a knife and pretended to stab him. When the deceased tried to escape from the stab, the deceased sustained injury on the right shoulder with the knife which was in the hands of A2 Babu. Then according to P. W. 1, his uncle the deceased overpowered him and twisted his hands behind his back. It was at that time, the appellant herein, snatched the knife from the hands of Babu and stabbed the deceased on his neck, chest and stomach. Then he fell down. Both the accused Sekar and Babu ran away with the knife.
( 4 ) THEN with the help of Alagiri, P. W. 2, P. W. 1 took the deceased to the side of the main road and took him to the Kothavalchavadi Police Station. There P. W. 1 gave a complaint Ex. P. 1 to Head Constable, who reduced it into writing and explained to him.
P. W. 1 affixed his thumb impression. P. W. 2 attested the same. Then he took the deceased accompanied by a Police Constable to Stanley Hospital, Madras along with
P. W. 2. On seeing his uncle, the doctor pronounced him dead already. According to this witness, the occurrence took place at about 8. 30 p. m. and there the street light was burning near the place of occurrence. He has identified the full sleeves shirt and full pant worn by Sekar at the time of occurrence and the shirt worn by Babu as M. O. 1, M. O. 2 and M. O. 3 respectively. He has also identified the knife M. O. 4, the weapon of offence.
( 5 ) P. W. 2 is also an ocular witness. He was a co-worker with the deceased in the plantain mandi in Kothavalchavadi. He knew both the accused as well as the deceased, P. W. 1 and their relationship. He claims that on 28/4/1985 at 8 or 8. 30 p. m. at the junction of Varadhamuthiappan Street and Annapillai Street when he was sitting near a tea shop, he heard the noise of Theivasigamani, the deceased. When he reached ther
