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2006 DIGILAW 1525 (MAD)

Hakeem v. State rep. by Sub-Inspector of Police

2006-06-27

A.C.ARUMUGAPERUMAL ADITYAN, M.KARPAGAVINAYAGAM

body2006
Judgment :- (Criminal Appeal against the judgment of conviction and sentence dated 30.1.2003 in S.C.No.352 of 2002 on the file of 2nd Additional Sessions Court, Coimbatore.) M. Karpagavinayagam, J. A-9 Hakeem is the appellant herein. There are totally nine accused. A-1 to A-8 were acquitted and A-9 alone has been convicted for the offences under Sections 148 and 302 IPC and sentenced to undergo one year rigorous imprisonment with fine of Rs.1,000/- and life sentence with fine of Rs.50,000/- respectively. Challenging the same, this appeal has been filed. 2. The short facts leading to the conviction are as follows: (a) The deceased in this case is one Karthikeyan, who belongs to BJP political party. P.W.1 Palaniappan is the brother of the deceased. P.W.2 Aruna is the wife of the deceased. The deceased was running tailoring shop in front of his house. (b) A-1 is the Secretary of Muslim Munnetra Kazhagam, Coimbatore District. The accused persons are the residents of Mettupalayam. They are the supporters of one Imam Ali. There were disturbances of law and order due to the death of Muslims. The accused persons hatched a conspiracy to commit the murder of some Hindus in retaliation to the murder of Muslims. In pursuance of the said conspiracy, on 31.12.1995 at about 7.30 p.m., the accused persons came to the house of the deceased. The deceased at that time was in the shop stitching clothes. The accused persons entered into the shop and began to attack the deceased saying that he belongs to BJP party. (c) On hearing the cry of the deceased, P.W.1, the brother of the deceased and P.W.2, the wife of the deceased, who were inside the house, came out and found the deceased lying in a pool of blood and also saw five to six accused persons running away from the scene of occurrence. (d) P.W.1 took the injured to the Government Hospital, Mettupalayam. P.W.11 Dr.Murugesan, the resident Doctor of Mettupalayam Government Hospital, referred the injured-deceased to Coimbatore Medical College Hospital, since the condition of the injured was very serious. He issued Ex.P-17 accident register. The deceased died in the hospital. (e) On receipt of the information, the Inspector of Police came to the hospital and recorded the statement from P.W.1 which is Ex.P-1. A case was registered for the offence under Section 302 IPC. He issued Ex.P-17 accident register. The deceased died in the hospital. (e) On receipt of the information, the Inspector of Police came to the hospital and recorded the statement from P.W.1 which is Ex.P-1. A case was registered for the offence under Section 302 IPC. (f) At about 2.00 a.m., the Inspector of Police went to the scene of occurrence and prepared rough sketch and observation mahazar. He also recovered bloodstained earth and sample earth from the scene of occurrence. He further recovered M.O.3 series pair of chappals and M.O.4 series, another pair of chappals and M.O.5 right-foot chappal in the presence of P.W.5 Ramesh and P.W.17 Head Constable. He conducted inquest over the body of the deceased and examined P.Ws.1,2,3 and 8 during the course of inquest. The dead body was sent for post-mortem. (g) P.W.12 Dr.Natarajan conducted autopsy on the body of the deceased and issued Ex.P-19 post-mortem certificate and gave an opinion in the post-mortem certificate that "the deceased would have died of haemorrhage as a result of multiple stab injuries sustained by him of which the external injuries No.33 & 34 and their corresponding internal injuries are fatal". (h) The Inspector of Police continued the investigation and examined the witnesses. On 3.1.1996, he arrested A-5, A-6 and A-7; on 8.1.1996, he arrested A-4 and on 17.1.1996, he arrested A-8. On 20.1.1996, the Inspector of Police with the officers including P.W.17 Head Constable, went to the house of A-9 and arrested him and on his confession, M.O.15 knife and M.O.16 bloodstained shirt. The material objects are sent for chemical examination. (i) After completion of the investigation, the Inspector of Police filed the charge sheet against all the accused persons for the offences under Sections 120-B, 147, 148, 302 and 302 read with 34 IPC. (j) During the course of trial, on behalf of the prosecution, P.Ws.1 to 17 were examined, Exs.P-1 to P-32 were filed and M.Os.1 to 27 were marked. (k) When the accused were questioned under Section 313 Cr.P.C. with reference to the incriminating materials available on record, they simply denied their complicity in the crime in question. No evidence was adduced on the side of defence. (l) The trial Court though acquitted A-1 to A-8, chose to convict A-9 alone for the offences under Sections 148 and 302 IPC and sentenced him thereunder. This is the subject matter of appeal before this Court. 3. No evidence was adduced on the side of defence. (l) The trial Court though acquitted A-1 to A-8, chose to convict A-9 alone for the offences under Sections 148 and 302 IPC and sentenced him thereunder. This is the subject matter of appeal before this Court. 3. We have heard Mr.S.Ashok Kumar, learned Senior Counsel appearing for the appellant/A-9 and Mr.C.T.Selvam, learned Additional Public Prosecutor for the respondent-Police. 4. We have given our consideration to the contentions urged by learned counsel for the parties. 5. According to the prosecution, on 31.12.1995, A-1 to A-9, the Muslim fundamentalists, came to the house of the deceased (Hindu), who belongs to B.J.P. political party and attacked him and inflicted injuries, which resulted in his death in the hospital. P.W.1 gave Ex.P-1 complaint to the Inspector of Police, which was registered for the offence under Section 302 IPC. 6. The earliest document in this case is Ex.P-17 accident register, which relates to the admission of the deceased in the Mettupalayam Government Hospital. P.W.1 Palaniappan has given a statement to P.W.11 Doctor that the deceased was attacked by unknown persons. Even in Ex.P-1 complaint, he stated that unknown persons, who could be identified, attacked the deceased and caused injuries. 7. P.Ws.1, 2 and 3 are the eye-witnesses. Unfortunately, during the course of investigation, even though the statement had been obtained from the witnesses that the accused could be identified by them, no steps have been taken to conduct identification parade. Further, P.Ws.1 to 3, who are the eye-witnesses, have not chosen to identify any one of the accused even in Court. On the other hand, P.Ws.2 and 3 turned hostile. P.W.6 Velusamy is the witness to speak about the occurrence, who also turned hostile. 8. The trial Court came to the conclusion that the evidence available on record would not be sufficient to hold A-1 to A-8 guilty of the offences referred to above and accordingly, they were acquitted of the charges. However, the trial Court convicted A-9 alone on the basis of two circumstances. One is that the foot-prints of A-9 tally with the foot-prints found available in the single chappal at the scene of occurrence. Another is that the blood group in the bloodstained shirt, which was recovered from A-9, tallied with the blood group of the deceased. 9. As indicated above, there is no direct evidence as against A-9. One is that the foot-prints of A-9 tally with the foot-prints found available in the single chappal at the scene of occurrence. Another is that the blood group in the bloodstained shirt, which was recovered from A-9, tallied with the blood group of the deceased. 9. As indicated above, there is no direct evidence as against A-9. Before dealing with the above said two circumstances as against A-9, it would be proper to refer to the evidence of P.W.17 Head Constable, who accompanied the Inspector of Police to arrest A-9. 10. The occurrence took place on 31.12.1995. The accused persons were arrested on various dates commencing from 3.1.1996 and A-9 was arrested on 20.1.1996. The Inspector of Police, who arrested the accused persons, has not been examined, since he is no more. P.W.17 Head Constable, who accompanied the Inspector of Police, has been examined. Though P.W.17 would state in the cross-examination that some of the accused were identified by the informant to enable the Police Officer to arrest those accused, no details have been given by P.W.17 as to how A-9 was fixed as one of the persons present at the time of occurrence. So, there is no explanation as to how A-9 was traced. In this context, it has to be remembered that till A-9 was arrested, nobody had given any details about the identity of A-9. No identifiable features had also been given. As a matter of fact, P.W.17 would state that some of the accused were identified by some of the witnesses at the Police Station. On the other hand, even that process has not been adopted by the investigating officer to find out as to whether A-9 participated in the occurrence. 11. Coming to the two circumstances as against A-9, based on which, he has been convicted, namely, (i) the foot-prints tallied with the foot-print found available in the single chappal and (ii) the group of the bloodstains of the shirt tallied with that of the deceased, it shall be stated that these are the corroborative pieces of evidence to corroborate the substantive evidence to establish that the accused participated in the occurrence. 12. Even in regard to the evidence relating to tallying of the foot-prints, this Court as well as the Supreme Court, on various decisions, would hold that it is not the conclusive evidence. 13. 12. Even in regard to the evidence relating to tallying of the foot-prints, this Court as well as the Supreme Court, on various decisions, would hold that it is not the conclusive evidence. 13. In AIR 1951 MADRAS 737 (In re Mammadu), a Division Bench of this Court held as follows: "The opinion of a foot-print expert is not admissible as evidence. If the Court is to make any use at all of foot-print impressions, it must be satisfied from a comparison of the various foot-prints that they are those of the persons whom the expert says they are. The value of evidence with regard to foot-prints is very much less trustworthy than evidence with regard to finger-prints. In a fairly good impression of a finger or even in an impression where only a portion of the finger is shown, there is a wealth of detail available to the expert and to the Court for comparison. One sees in a finger print a large number of ridges and sweat pores situated along them. In examining a finger-print, therefore, one not merely compares the general configuration of the finger and all the lines on it, but one is able to study such minute details as the bifurcations and junctions of the ridges and the relative positions on those ridges of the sweat pores. With regard to foot-prints, on the other hand, one can only compare with the general shape of foot-prints found with the shape of impressions taken from the feet of the person suspected. Even in this limited comparison, one has not the same certainty as one would have in comparing finger prints; because foot impressions vary considerably according to the circumstances under which they are made. Foot-prints made when a person is walking slowly or fast, or running slowly or fast or jumping, all create differences, which are material. Moreover, a foot-print taken after a person has walked a considerable distance is larger than a foot-print taken when a person has been at rest." 14. In AIR 1956 SC 415 (Pritam Singh vs. State of Punjab), the Supreme Court would hold as follows: "The science of identification of foot-prints is no doubt a rudimentary science and much reliance cannot be placed on the result of such identification. In AIR 1956 SC 415 (Pritam Singh vs. State of Punjab), the Supreme Court would hold as follows: "The science of identification of foot-prints is no doubt a rudimentary science and much reliance cannot be placed on the result of such identification. The track evidence, however, can be relied upon as a circumstance which, along with other circumstances, would point to the identity of the culprit though by itself it would not be enough to carry conviction in the minds of the Court." 15. In 1969 Cri.L.J. 279 (SC) (State of Bihar vs. Kapil Singh), the Supreme Court observed as follows: "11. The only other circumstance, which has been relied upon by the prosecution is the identity of the bloodstained footprint with that of the sample-footprint of Deo Singh appellant. We do not think that it is necessary to discuss it in detail, because that evidence is in its very nature, a very weak type of evidence and, in fact in the High Court even the third Judge, to whom the case was referred on difference of opinion, held that it would not be safe to rely on this evidence and discarded it." 16. In 1997 SCC (Cri) 777 (Mohd. Aman vs. State of Rajasthan), the Supreme Court held thus: "9. ..... So far as the footprints are concerned, another reason for which we feel it unsafe to accept the evidence led in this regard is that the sample footprints were not taken before a Magistrate. This apart the science of identification of footprints is not a fully developed science and therefore if in a given case — unlike the present one — evidence relating to the same is found satisfactory it may be used only to reinforce the conclusions as to the identity of a culprit already arrived at on the basis of other evidence. ...." 17. In the light of the observations made in the abovesaid decisions, we are unable to give any importance to the evidence relating to tallying of the foot-prints taken from the accused with that of the foot-prints found available on the single chappal from the scene. 18. The next evidence is relating to the tallying of the group of the blood stained shirt with that of the group of the deceased. As indicated above, the occurrence took place on 31.12.1995. A-9 was arrested only on 20.1.1996. 18. The next evidence is relating to the tallying of the group of the blood stained shirt with that of the group of the deceased. As indicated above, the occurrence took place on 31.12.1995. A-9 was arrested only on 20.1.1996. It is said that on his confession, the bloodstained shirt has been recovered in the presence of P.Ws.10 and 17. 19. As correctly pointed out by learned counsel for the appellant, on the mere recovery of the bloodstained shirt from A-9 in the absence of any material to show as to which blood group A-9 belongs, it cannot be said that A-9 participated in the occurrence and due to his act, the blood of the deceased stained with the clothes of A-9. 20. It is to be reiterated that the recovery of the bloodstained clothes and weapons is only a corroborative piece of evidence to support the other materials, which should be considered as substantive. As stated above, there is no substantive material as against A-9 and as such, the corroborative evidence would not be of any use to connect him with the crime in question. 21. Under those circumstances, we are constrained to hold that there is no sufficient evidence at all against the appellant/A-9 and consequently, he has to be given the "benefit of doubt". 22. In the result, the appeal is allowed, setting aside the conviction and sentence imposed on the appellant/A-9 by the trial Court. He is acquitted of the charges. The fine amounts, if paid, shall be refunded to him. The bail bond, if any executed by A-9 shall stand cancelled.