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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
S. Rajeswaran, T. Mathivanan, JJ.
State represented by The Inspector of Police, Papanasam Police Station, Thanjavur District
Versus
Senthil and Others
Crl. A. (MD) No. 216 of 2010
Decided On: 31 October 2014
Indian Penal Code - Section 302 r/w 34 – Criminal Procedure Code - Section 313(1)(b) – Offence of murder - Conducted post mortem - Inspector of Police attached to Police Station had laid a final report on file of District cum-Judicial Magistrate Court as against respondents 1 to 4 herein alleging that they had committed offences punishable under Section 302 and 302 r/w 34 of I.P.C - After completion of preliminary enquiry case was committed to Court of Sessions by District Munsee-cum-Judicial Magistrate and after appearance of respondents accused learned I Additional Sessions Judge Sessions Division had framed following two charges - When ingredients of charges were explained and questioned all four respondents accused had pleaded innocence and wanted to face trial and therefore they were put on trial - In order to substantiate their case prosecution has totally examined 21 witnesses and during course of their examination Exs.P.1 to P.16 and material objects ranging from M.Os.1 to 13 were marked - Held, As court have discussed in opening paragraphs presence of P.Ws.1 to 3 at time of occurrence has been shrouded with moonshine and since their presence is doubted it is incumbent on part of prosecution to dispel doubt – However prosecution has not satisfactorily proved presence of P.Ws.1 to 3 at place and at time of occurrence - Apart from this as afore stated conduct of P.Ws.1 to 3 seems to be unusual - Court are in agreement with conclusion of trial Court to effect that P.Ws.1 to 3 would not have present in place of occurrence and witnessed the occurrence – Further since other independent witnesses P.Ws.4 to 7 and seizure witness P.W.9 and observation witness P.W.11 have turned hostile testimonies of P.Ws.1 to 3 are left uncorroborated and unsupported - Evidence of P.W.12 who has spoken about previous enmity between deceased and respondents has also not been supported by any other witnesses - Apart from this since P.W.21 being the Inspector of Police attached to Police Station happened to register case he is not supposed to take up investigation - Keeping in view of all infirmities and conflictions as well as contradictions between testimonies of prosecution witnesses court are of considered view that learned trial Judge has come to correct conclusion which resulted in acquittal of respondents 1 to 4 in respect of charges under Sections 302 and 302 r/w 34 of I.P.C – Therefore judgment of acquittal recorded by learned trial Judge does not require interference of this Court – Further court do not find any reasons to interfere with judgment of acquittal recorded by learned trial Judge - Criminal appeal is dismissed
JUDGMENT
1. This memorandum of criminal appeal is directed against the order of acquittal of the charge under Section 302 of I.P.C. recorded by the learned I Additional Sessions Judge (Protection of Civil Rights), Thanjavur, dated 18.1.2010 and made in the Sessions Case in S.C.No.73 of 2009.
2. The State is the appellant, whereas the accused 1 to 4 are the respondents.
3. The Inspector of Police attached to Papanasam Police Station (Thanjavaur District) had laid a final report on 31.12.2007 on the file of the District Munsif-cum-Judicial Magistrate Court, Papanasam, as against the respondents 1 to 4 herein alleging that they had committed the offences punishable under Section 302 and 302 r/w 34 of I.P.C.
4. After the completion of preliminary enquiry, the case was committed to the Court of Sessions by the learned District Munsif-cum-Judicial Magistrate, Papanasam and after the appearance of the respondents/accused, the learned I Additional Sessions Judge (PCR), Thanjavur Sessions Division had framed the following two charges.
a. As against the first respondent/A1 under Section 302 of I.P.C.
b. As against the respondents/accused 2 to 4 under Section 302 r/w 34 of I.P.C.
5. When the ingredients of the charges were explained and questioned all the four respondents/accused had pleaded innocence and wanted to face the trial and therefore, they were put on trial.
6. In order to substantiate their case, the prosecution has totally examined 21 witnesses and during the course of their examination, Exs.P.1 to P.16 and the material objects ranging from M.Os.1 to 13 were marked.
The Gravamen of the Prosecution Case:
7. That on 3.10.2007 at about 11.45 hours when the deceased Murthy @ Venkatachalam was conversing with his brother Senthil (P.W.1) in the railway station road at Papanasam, in front of Muniyandi Vilas Hotel, all the accused came there and due to previous enmity because of taking part in the Papanasam New Bus Stand cycle stand auction had picked up quarrel with the deceased and on account of the common object of committing the murder of the deceased, the first respondent/A1 had fisted on his left cheek, while the third respondent/A3 had kicked him. When the deceased had fallen on the road, the fourth respondent had mounted on his chest and fisted on his left cheek.
8. When the deceased Murthy @ Venkatachalam was trying to get up after pushing away the fourth respondent, the first respondent/A1 had caught hold him and both the first respondent/A1 and the deceased had rolled over and thereafter, the deceased had managed to get up and proceeded towards South.
9. While so, the second respondent/A2 had pushed him down on the ground making the deceased to fall on the road in front of Nice Tailor shop.
10. When he had fallen down, the third and fourth respondents/accused 3 and 4 had caught hold his right and left hands respectively. The second respondent/A2 had also caught hold of his both legs so as to facilitate the first respondent/A1 to kill him with a cement concrete stone. The first respondent/A1 had lifted the cement concrete stone and dropped on the head of the deceased repeatedly, which resulted in his instantaneous death.
11. When P.W.1 being the brother of the decased and P.Ws.2 and 3 being the friends of P.W.1 were tried to rescue the deceased, they were threatened with dire consequences by the respondents/accused persons and after the completion of the occurrence, the accused persons had gone away.
12. Then P.W.8 came there and on the narration of P.W.1, P.W.8 Kaliamurthy reduced the same into writing and both of them had presented that complaint (Ex.P.1) to P.W.21. P.W.21 Inspector of Police attached to Papanasam Police Station had received that complaint on 12.15 a.m on 4.10.2007. He immediately after the receipt of that complaint had registered a case in Papanasam Police Station Cr.No.201 of 2007 under Sections 342 and 302 r/w 34 of I.P.C. The printed first information report was marked as Ex.P.11.
13. Thereafter,
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