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2005 DIGILAW 1352 (MAD)

Sidhik Ali & Others v. The Inspector of Police

2005-08-12

M.KARPAGAVINAYAGAM, S.SARDAR ZACKRIA HUSSAIN

body2005
Judgment :- (Criminal Appeal against the conviction and sentence dated 16.8.1999 passed in S.C.No.84 of 1997 on the file of the II Additional Sessions Judge, Coimbatore.) M.Karpagavinayagam, J. The appellants (A1 to A4) were tried for the offences under Sections 341 and 302 read with 34 I.P.C. Ultimately, the trial Court acquitted the accused in respect of the first charge and convicted them for the offence under Section 302 read with 34 I.P.C. Challenging the same, this appeal has been filed. 2. The brief facts leading to the conviction could be summarised as follows: "(a) The deceased Ameer alias Kottai Ameer was the District level Organizer of a minority wing of the Coimbatore District Janatha Dal Party. He was also a member of the Coimbatore District Peace Committee. He indulged himself in the activities of creating peace among Hindu and Muslim communities. The activities led to estranged feeling within his community. This further aggravated among the minds of the Muslims. When the deceased went to Koniamman Temple, he received temple Mariyatha and thilak was put on his forehead inside the temple. In the meantime, one Basha was arrested. He is the father of Sidhik Ali, the first accused. The deceased appealed to the Muslims to keep themselves away from violence and to maintain peace and order in the society. Getting infuriated over the activities of the deceased, the Muslim fundamentalists used to threaten the deceased through phone calls with dire consequences. (b) In the above fact situation, the occurrence had taken place on the morning of 18.3.1994 when the deceased Kottai Ameer went for walking which was his daily routine practice. When the deceased was walking near Thirukudumba Kalyana Mandapam, the accused 1 to 4 surrounded him and stabbed him indiscriminately with knives. On receipt of the injuries, the deceased fell down unconsciously. (c) P.W.2 Guru and P.W.3 Anthony, who were proceeding from Kempatti Colony towards Town Hall witnessed this occurrence. On seeing the occurrence, they got down from their cycles and chased the accused. But, the accused managed to escape from P.Ws.2 and 3. P.W.10 also witnessed the four persons running in the road leading to Ukkadam. (d) P.W.6 Koya, friend of the deceased, on coming to know that someone was attacked in the scene, he came to the scene of occurrence and found his friend Ameer @ Kottai Ameer lying down in a pool of blood. P.W.10 also witnessed the four persons running in the road leading to Ukkadam. (d) P.W.6 Koya, friend of the deceased, on coming to know that someone was attacked in the scene, he came to the scene of occurrence and found his friend Ameer @ Kottai Ameer lying down in a pool of blood. On noticing that the deceased was unconscious, he proceeded to the house of the deceased and conveyed the news to P.W.1 Shajahan, son of the deceased. (e) Immediately thereupon, P.W.1 and P.W.6 went to the scene of occurrence and engaged an auto driven by P.W.11 and took victim to K.G.Hospital, Coimbatore. P.Ws.2 and 3, who chased the accused, came back to the scene and heard that the deceased was taken by some persons in the auto-rickshaw. (f) P.W.7 Dr.Abdul Muthalif attached to K.G.Hospital, examined the victim and found that the victim was already dead. It was at about 7.00 a.m. Then, the dead body of the deceased was sent for post-mortem to the Government Hospital through the Hospital Ambulance. (g) P.W.8 Dr.S.Natarajan, attached to Coimbatore Medical College Hospital issued Ex.P7, copy of the Accident Register. He sent the death intimation Ex.P8 to the Out Post Police Station. (h) P.W.1 thereupon rushed to B1 Police Station at about 7.45 a.m. and gave Ex.P1 complaint to P.W.16 Inspector of Police. The case was registered in Crime No.608 of 1994 for the offences under Sections 341 and 302 I.P.C. The printed F.I.R. Ex.P20 and Ex.P1 were sent to the Judicial Magistrate and the copies were sent to the superior police officers. (i) Then, P.W.16, the Inspector of Police took up investigation and went to the scene of occurrence and prepared observation mahazar and drew rough sketch. He recovered M.O.5 bloodstained Tar, M.O.6 ordinary Tar, M.O.7 series bloodstained optical glass pieces and M.O.8 rubber footwear 1 pair. (j) Thereafter, P.W.16 went to the hospital and conducted inquest over the body of the deceased in the presence of Panchayatdars. P.Ws.2 and 3, the eye witnesses were also present there. After inquest, P.W.16 prepared Inquest Report Ex.P22. Then, the body was sent for post-mortem with requisition. (k) P.W.9 Dr.A.Natarajan conducted the post-mortem at 12.15 p.m. on 18.3.1994. He found as many as 23 injuries on the body of the deceased. P.Ws.2 and 3, the eye witnesses were also present there. After inquest, P.W.16 prepared Inquest Report Ex.P22. Then, the body was sent for post-mortem with requisition. (k) P.W.9 Dr.A.Natarajan conducted the post-mortem at 12.15 p.m. on 18.3.1994. He found as many as 23 injuries on the body of the deceased. He issued Ex.P10 Post-mortem Certificate giving the opinion that the deceased would appear to have died of shock and haemorrhage as a result of multiple stab injuries. (l) On 25.3.1994, P.W.3 Anthony came and met P.W.16 and informed him that out of four accused, he was able to remember the name of one of the accused. Accordingly, the statement was obtained from him. He implicated A4 who is said to be known to him. He has given his name as Mohamed Shafi. (m) In pursuance of the said information, A4 was traced. On 10.4.1994, P.W.16 arrested A4 and in pursuance of his confession, P.W.16 recovered M.Os.2, 3 and 4, bloodstained knives and M.O.9 bloodstained white shirt. Then, he sent A4 to the Court for judicial custody. (n) On 13.4.1994, the accused 1 to 3 surrendered before the Chief Judicial Magistrate, Madurai. (o) On 18.4.1994, P.W.16 sent a requisition to the Chief Judicial Magistrate, Coimbatore, to conduct test identification parade. On the same day, he gave a requisition for police custody. Accordingly, the police custody was granted. (p) Then, the identification parade was conducted by P.W.4 Judicial Magistrate No.1, Coimbatore on 19.4.1994 in the Central Prison, Coimbatore, after complying with all the formalities. P.W.2 identified A1 and A3 and P.W.3 identified A1 to A4. Ex.P4 is the Test Identification Parade proceedings. (q) Thereafter, P.W.16 continued the investigation and examined all the other witnesses. During the course of police custody, nothing was recovered from A1 to A3. In the meantime, the material objects were sent for chemical analysis. (r) After completion of the investigation, P.W.17, the successive Inspector of Police filed the charge sheet against all the accused for the offences under Sections 341 and 302 I.P.C. (s) During the course of trial, on behalf of the prosecution, P.Ws.1 to 17 were examined, Exs.P1 to P25 were filed and M.Os.1 to 12 were marked. (t) When the accused were questioned with reference to the incriminating materials against them, they simply denied their complicity in the crime in question. However, no evidence was adduced on the side of defence. (t) When the accused were questioned with reference to the incriminating materials against them, they simply denied their complicity in the crime in question. However, no evidence was adduced on the side of defence. (u) Having analysed the entire materials available on record, the trial Court concluded that the prosecution has established its case beyond reasonable doubt and found all the accused guilty of the offence under Section 302 r/w 34 I.P.C. and sentenced them thereunder. Challenging the same, this appeal has been filed." 3. Mr.R.Sankara Subbu, the learned counsel appearing for A1 and A3 and Mr.R.John Sathyan, the learned counsel appearing for A2 and A4, would take us through the entire evidence and elaborately contend that the infirmities found available in the record would make it clear that the prosecution has miserably failed to establish its case and therefore, the accused are liable to be acquitted, especially when the identification parade has to be found to be farce. 4. In reply to the above submissions, Mr.K.Doraisamy, the learned Public Prosecutor, in justification of the reasonings given by the trial Court in convicting the accused, would submit that the evidence of P.Ws.2 and 3 is reliable and the same has been corroborated by other material particulars and therefore, the conclusion arrived at by the trial Court is justified. 5. Both the counsel for the parties as well as the Public Prosecutor would cite number of authorities to substantiate their respective pleas. 6. We have given our anxious consideration to the rival contentions made on either side and perused the records. 7. According to the prosecution, on 18.3.1994 at about 5.30 a.m., when the deceased was walking along the road, all the four accused suddenly appeared in the scene and stabbed him indiscriminately causing 23 injuries, with the result, the deceased fell down and died. 8. 7. According to the prosecution, on 18.3.1994 at about 5.30 a.m., when the deceased was walking along the road, all the four accused suddenly appeared in the scene and stabbed him indiscriminately causing 23 injuries, with the result, the deceased fell down and died. 8. To prove the prosecution case, the prosecution has placed four pieces of the materials: (1) The evidence of P.Ws.2 and 3, the eye witnesses; (2) The identification of the accused by P.Ws.2 and 3 in the parade conducted by P.W.4, the Judicial Magistrate and Ex.P4, the identification proceedings; (3) The evidence of P.Ws.7, 8 and 9, the Doctors and Exs.P7 and P8, the Accident Registers and P.10, the Post-mortem Certificate; and (4) The evidence of P.W.16, the Inspector of Police who arrested A4 and on his confession, recovered M.Os.2, 3 and 4, the knives which were used in the commission of the offence and who speaks about the surrender of A1 to A3 on 13.4.1994 and the evidence of P.W.1 who speaks about the motive for the accused to commit the murder of the deceased. 9. The prosecution mainly relies upon the account of the eye witnesses P.Ws.2 and 3. Of course, only if the evidence of P.Ws.2 and 3 is held to be reliable, the other pieces of evidence would be taken into consideration to support the prosecution case as they are only corroborative pieces of evidence. In other words, if the evidence of P.Ws.2 and 3 is held to be unreliable, the other piece of evidence by itself would not be sufficient to hold the accused guilty of the offence of murder. So, the important task for this Court to analyse the evidence of P.Ws.2 and 3, who are the eye witnesses and find out their credit worhtiness. 10. On going through the entire materials, oral and documentary, we are of the considered opinion that the testimony of P.Ws.2 and 3 relating to the occurrence and also with reference to the identification parade is unreliable as they would not have been present in the scene of occurrence. The reasons for the above conclusion are as follows. 11. According to P.Ws.2 and 3, when they were on their way to hospital to visit their friend, who was admitted in the hospital, they happened to see the occurrence. So, admittedly, they are the chance witnesses. The reasons for the above conclusion are as follows. 11. According to P.Ws.2 and 3, when they were on their way to hospital to visit their friend, who was admitted in the hospital, they happened to see the occurrence. So, admittedly, they are the chance witnesses. But, the rough sketch and the observation mahazar would show that the main road on which they were riding on the cycle to go to hospital towards the eastern side is far away from the place of occurrence, which is situated on the southern side. 12. Admittedly, they are not the residents of the locality. According to them, when they saw all the four accused attacking the deceased, they got shocked and they left their cycles and tried to prevent the attack. They also tried to catch them. But, they were threatened by all the accused with the knives in their hands. Then, the accused were running towards Koniamman temple. Both P.Ws.2 and 3 went in the cycle and chased them. However, they were not able to catch them. 13. The prosecution examined one other witness P.W.10 to speak about the four persons running from the scene. P.W.10 would state that he saw all the four accused running after the occurrence was over. But unfortunately, P.W.10 did not refer to the fact that the accused were chased by P.Ws.2 and 3. Further, admittedly, the accused have not been identified by P.W.10 either in the parade or in the Court. Therefore, the aspect of witnessing the occurrence and chasing of the accused as spoken to by P.Ws.2 and 3 has not been clearly established. 14. P.Ws.2 and 3 cannot be said to be the independent witnesses. P.W.2 Guru is said to be working under one Abdul Kabir, elder son of the deceased. Of course, this suggestion has been denied. P.W.1 Shajahan, admittedly, a practising advocate. He would admit that he appeared for P.W.3 Anthony in several cases. There is no dispute in the fact that one Varghese belongs to Janatha Party to which the deceased belonged. P.W.3 is the brother of the said Varghese. His admission would indicate that both Varghese and the deceased do belong to the same party and known to each other. He would admit that he appeared for P.W.3 Anthony in several cases. There is no dispute in the fact that one Varghese belongs to Janatha Party to which the deceased belonged. P.W.3 is the brother of the said Varghese. His admission would indicate that both Varghese and the deceased do belong to the same party and known to each other. When P.W.3 was confronted with their association, he would state in the cross-examination that when he was examined during the course of inquest on the date of occurrence, his brother Varghese was not present there. This statement is factually wrong, in view of the fact that Varghese is one of the Panchayatdars, who put his signature in the inquest report Ex.P22. P.W.3 also would admit that he and his brother are residing in the same house. Therefore, P.Ws.2 and 3 cannot be said to be the independent witnesses. 15. According to P.W.2, he saw all the four accused persons stabbing the deceased, with the result, the deceased fell down. Similarly, P.W.3 also would state that all the four accused attacked the deceased with the knives. Strangely, P.W.3 has given a different statement during the course of cross-examination that he saw three persons stabbing and one person catching hold of the deceased. This statement is contrary not only to his statement in chief examination, but also to the case of the prosecution itself. When he was further cross-examined, he asserted that only three persons attacked and one person caught hold of the deceased. P.W.16 would admit that this statement has not been given by P.W.3 during the course of investigation. Further, he did not identify in the Court as to who are all the three persons who attacked and who is the other person who caught hold of the deceased. Therefore, the contradiction with reference to the vital material regarding the different overt acts and different roles played by the accused, which has not been explained by the prosecution, would make the evidence of P.Ws.2 and 3 unreliable. 16. The evidence of P.W.16 would indicate that the inquest was conducted by him on 18.3.1994 between 10.15 a.m. and 12.00 noon. The statements under Section 161 Cr.P.C. also had been obtained at that time from P.Ws.2 and 3. 16. The evidence of P.W.16 would indicate that the inquest was conducted by him on 18.3.1994 between 10.15 a.m. and 12.00 noon. The statements under Section 161 Cr.P.C. also had been obtained at that time from P.Ws.2 and 3. A perusal of column No.15 of the inquest report would clearly indicate that originally it was written as three persons involved and thereafter, it was corrected as four persons. This correction was found not only in the inquest report Ex.P22, but also in the 161 statements of P.Ws.2 and 3 and the corrections have been attested by the investigating officer P.W.16. On a perusal of the 161 statements which are found available along with the records, it is clear that after preparation of the 161 statements and the inquest report, the corrections have been made in both the documents. 17. The reason for correcting three into four in so many places both in the 161 statements of P.Ws.2 and 3 and in column No.15 of the inquest report has not been explained by the investigating officer, P.W.16. This would clearly indicate that the investigating officer originally must have entertained suspicion only against three persons and subsequently, he decided to implicate four persons by adding one more person. Under what basis, these corrections were made has not been explained by the investigating officer, as indicated above. 18. In this case, the complaint Ex.P1 was given by P.W.1 who is not the eye witness. He is the son of the deceased. He has not given any names of the accused. Of course, he would make a mention about the details with reference to motive. He entertained suspicion that some Muslim fundamentalists must have committed the murder of the deceased, since the deceased himself told him that he received phone calls from unknown Muslims stating that he is a traitor to their community. Thus, P.W.1 would simply give details about the motive and nothing more. 19. According to the prosecution, only after examination of P.Ws.2 and 3 during the course of inquest, the investigating officer was able to conclude that four persons were involved. It is the deposition of P.Ws.2 and 3 that they saw the accused stabbing and they tried to catch hold of the accused, who in turn, threatened them and when the accused were running from the scene, they were chased by P.Ws.2 and 3. It is the deposition of P.Ws.2 and 3 that they saw the accused stabbing and they tried to catch hold of the accused, who in turn, threatened them and when the accused were running from the scene, they were chased by P.Ws.2 and 3. Strangely, this aspect of the matter has not been referred to in the inquest report Ex.P22 which is the earliest document. 20. P.Ws.2 and 3 having emboldened to the extent of attempting to catch the accused by chasing them for a considerable distance, had not chosen to report the same to the police immediately. On the other hand, they stated that they came back to the scene and saw some persons taking the deceased in an auto-rickshaw to admit him in hospital. 21. When P.Ws.2 and 3 had seen that the victim deceased was taken by his relatives, there is no reason as to why P.Ws.2 and 3 did not choose to inform them about the occurrence and involvement of four persons who had run away from the scene. On the contrary, it is quite strange for P.Ws.2 and 3 to go to the General Hospital expecting that the victim deceased would have been brought to the hospital. According to them, they went to the General Hospital and waited till the deceased arrived at the hospital. They stated that they saw the Ambulance Van in which the deceased was brought to the hospital. 22. According to P.W.1, he accompanied the body of the deceased up to the General Hospital. At that time, P.Ws.2 and 3 were present in the hospital. We have indicated earlier that P.W.3 is already known to P.W.1, especially P.W.3 happened to be his client. When that being the case, P.Ws.2 and 3 could have very well informed P.W.1 about the fact of their having seen the incident. Admittedly, they have not chosen to do so. 23. P.W.1 came to the hospital and handed over the body of the deceased and only thereafter, he went to the Police Station without getting any clue with reference to the attack or with reference to the culprits. That is how, P.W.1 had given complaint mentioning about the incident entertaining suspicion on some unknown Muslims. 24. The case of the prosecution is that P.Ws.2 and 3 were continuously present in the hospital. That is how, P.W.1 had given complaint mentioning about the incident entertaining suspicion on some unknown Muslims. 24. The case of the prosecution is that P.Ws.2 and 3 were continuously present in the hospital. There is no reason as to why P.Ws.2 and 3 who were present in the hospital, had not chosen to inform either P.W.1 or the relatives who were present near to the body of the deceased. Therefore, their conduct in not intimating this important fact to any of the family members of the deceased would create a doubt as to whether they would have been present in the scene of occurrence at the time of the occurrence. 25. According to P.Ws.2 and 3, they did not know the accused earlier and they could only identify those persons. Strangely within one week, P.W.3 went to P.W.16, the Investigating Officer and informed that he remembers the name of one of the accused, who participated in the occurrence and he was also able to give the name of A4. Only on the basis of the statement given by P.W.3, on 25.3.1994, i.e. 7 days after the occurrence, P.W.16, the Investigating Officer took steps to trace out A4. Ultimately, he was arrested on 10.4.1994 and on his confession, three knives were recovered. 26. There is no material to show as to how P.W.3 could remember the name of one of the accused, even though he had not stated to police in the earlier statement that he knew one of the accused and he did not remember his name. On the other hand, a perusal of the deposition of P.W.16, the investigating officer would clearly show that P.W.3 stated in his earlier statement that four unknown persons attacked the deceased and he could identify them. Therefore, implicating A4 by giving his name for the first time by P.W.3 after 7 days would make this Court to feel that P.W.3 is not giving out the truth about the occurrence. 27. The occurrence took place on 18.3.1994. The involvement of all the accused was known to the Investigating Officer on 10.4.1994 and A4 was arrested on the same day. Thereafter, A1 to A3 surrendered on 13.4.1994. Subsequently, the identification was held on 19.4.1994. 28. Of course, after arrest and after surrender, immediately steps were taken to conduct the identification parade through P.W.4, the Judicial Magistrate. The involvement of all the accused was known to the Investigating Officer on 10.4.1994 and A4 was arrested on the same day. Thereafter, A1 to A3 surrendered on 13.4.1994. Subsequently, the identification was held on 19.4.1994. 28. Of course, after arrest and after surrender, immediately steps were taken to conduct the identification parade through P.W.4, the Judicial Magistrate. But, the infirmity which could be noticed in this case is this. According to the prosecution, four persons were involved in the occurrence. But, P.W.2 in the parade, identified A1 and A3 correctly and two persons by name Johnson and Babu wrongly. Similarly, P.W.3 instead of identifying four persons, viz., A1 to A4 correctly, identified one more person by name Suresh wrongly. Had they actually seen the occurrence, P.Ws.2 and 3 would not have identified the wrong persons. 29. The peculiar thing which could be noticed in this case is that even though both of them would state that only four persons were involved in the occurrence, P.W.3 identified five persons. So, their evidence regarding identify of the accused cannot be acted upon to conclude that in the identification parade, P.Ws.2 and 3 correctly identified the culprits. As a matter of fact, this wrong identification by P.Ws.2 and 3 would make it clear that their evidence with reference to the witnessing the culprits stabbing and running away deserves to be rejected. 30. The learned Public Prosecutor would refer to the decision in SUCHA SINGH v. STATE OF PUNJAB (A.I.R.2003 S.C.3617), in order to point out that even though one portion of the evidence is held to be unreliable, the conviction can be based upon the accused on the basis of the other portion of the evidence available on record. 31. It is true that the Supreme Court would observe in the said decision that “It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim ‘falsus in uno falsus in omnibus’ has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution.” 32. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim ‘falsus in uno falsus in omnibus’ has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution.” 32. There is no dispute with regard to these principles enunciated by the Supreme Court. Merely because one portion of the evidence is unreliable, we cannot hold that the entire evidence adduced by the witnesses has to be thrown out. It is true that we have to separate grain from chaff. But, once we find that the entire thing is filled up with chaff without any grain, there is no other go for us except to conclude that the witnesses are totally unreliable. 33. Under those circumstances, in the light of the fact that the prosecution has miserably failed to prove its case beyond reasonable doubt, we are to conclude that the conviction and sentence imposed upon the accused by the trial Court are not legal and they are liable to be set aside. 34. In the result, the appeal is allowed setting aside the conviction and sentence imposed on the appellants/accused and they are acquitted of the charges. The appellants/accused are directed to be released forth with unless they are required in connection with any other case.