[10/3, 19:30] Kumarasamy Mhc Advt: The learned 1st Addl.Sessions Judge, Chennai acquitted the accused from 302IPC by disbelieving the evidence of Eye witnesses [10/3, 20:05] Sekarreporter1:

 IN THE COURT OF THE I ADDITIONAL SESSIONS JUDGE, CITY CIVIL COURT,  CHENNAI.

Present : Thiru V.Thangamariappan      I Additional Sessions Judge

Thursday the 29th day of September 2022.

SESSIONS CASE No.15/2016

(CNR.No.TNCH01-001769-2016)

(P.R.C.No.146/2015 of XVIII Metropolitan Magistrate, Saidapet,

Chennai-15) (E3 Teynampet Police Station Crime No.1335/2015)

1. Complainant The State:-

Inspector of Police,

E3 Teynampet Police Station, Chennai in Crime No.1335/2015 under section 294-b,

302 r/w 34 and 506 r/w 34 IPC

2. Name of the Committing Magistrate Tmt. J.Mohana, B.A, M.L,
3. Name of the Accused 1.               Selvam M/45/2015 years,

S/o Arumugam,

No.16/32, South Boag Road, T.Nagar, Chennai 600 017.

2.               Vijayakumar, M/25/2015 years,S/o Ravikumar,

No.8/44, Ezhil Nagar, Thuraipakkam, Chennai – 600 097.

4. Charges framed against the accused 1st charge/ 1st and 2nd accused

2nd charge/ 1st and 2nd accused

3rd charge/ 1st and 2nd accused

Abusing with obscene words in public punishable u/s 294-b IPC

Murder with common intention punishable u/s 302 r/w 34 IPC

Criminal intimidation with common

intention punishable u/s 506(ii) r/w 34 IPC

 

5. Plea of the accused

1st charge/ 1st and 2nd accused

2nd charge/ 1st and 2nd accused

3rd charge/ 1st and 2nd accused

Not guilty

Not guilty

Not guilty

6.The decision of the court  The prosecution has failed to prove the charges under section 294-b, 302 r/w 34 and 506(ii) r/w 34 IPC against both the accused  beyond all reasonable doubt.
7. The Judgment of the Court      The accused 1 and 2 are found not guilty under sections 294-b, 302 r/w 34 and 506(ii) r/w 34 IPC, and they are acquitted u/s 235(1) Cr.P.C.  The bail bond, if any, executed by both the accused shall stand canceled.

The Material Objects MO1 to MO.7 are ordered to be destroyed, after the lapse of appeal time or after 60 days, whichever is later.

The session’s case came up before this court on 26.09.2022 for a final hearing in the presence of the learned Additional Public Prosecutor Mr.A.Govindarajan, for the State, and Mr.B.Kumarasamy, Counsel for the accused 1 and 2,  and upon hearing the arguments of both sides and upon perusing the documents on record, and having stood over for consideration till date, this court today delivered the following:-

JUDGMENT

The Inspector of Police, E3 Teynampet police station laid the final report against the accused 1 & 2 concerned in Crime No.1335/2015 under sections 294-B, 302 r/w 34, and 506(ii) r/w 34 of IPC before the XVIII Metropolitan Magistrate, Saidapet, Chennai-15.

             2. The allegations against the accused 1 and 2 as per the Final Report are briefly as follows:-

The defacto complainant in this case namely Charles is none other than the brother’s son of the deceased in this case namely Arockiadass. On 28.04.2015 at

05.00 am, the deceased in this case and Charles went to the house of the 1st accused

Selvam to get back Rs.25,000/- and a gold ring weighing 1 sovereign given by

Arockiadass, in a friendly manner.  The 1st accused’s house is situated at South Boag Road on the third floor. Arockiadass went up to the third floor while Charles was standing in the road. At that time Charles heard the alarming sound of Arockiadass saying ‘ moff; hnj ’ and found both the accused pulling down his paternal uncle in a forcible manner and the 1st accused started to beat Arockiadass with Reefer log on his head and right hand whereas the 2nd accused assaulted Arockiadass with a wooden log on the left hand and right leg indiscriminately/ repeatedly by saying “ xj;jh njtoah igah tpoawj;Jf;F Kd;dhona gzk; nfl;f te;jpah. ,j;njhL rht[lh ”. When

Charles ran towards his paternal uncle to save him, the accused criminally intimidated him by saying that he will face the same as Arockiadass if he comes near him and ran towards the main road. When Charles took Arockiadass to the Royapettah Government Hospital through 108 Ambulance where he was given first aid and sent to Rajiv Gandhi Government Hospital for better treatment.  Despite treatment given to Arockiadass, he succumbed to the injuries on the same day night at

23.55 hours, and thus the act of both the accused is liable for punishment for the offence u/s.  294-B, 302 r/w 34 and 506(ii) r/w 34 of IPC.

  1. The case was taken on file by the Learned XVIII Metropolitan Magistrate, Saidapet, Chennai in Preliminary Registration Case Number.146/2015. On the appearance of both the accused copies of the relevant documents were furnished to them under Section 207 Cr. P.C. The  Learned XVIII Metropolitan Magistrate, Saidapet, Chennai has committed this case for trial to the Hon’ble Principal Sessions

Judge, Chennai under section 209 Cr. P.C since the case is exclusively triable by the Court of Sessions.

  1. The Hon’ble Principal Judge, City Civil Court, Chennai made over this caseto this Court for disposing of the case according to law.
  2. After the receipt of the records by this Court, when both the accused appeared before this Court, after hearing the arguments of both sides and after perusing the records,  found a prima facie case against both the accused and accordingly charges were framed under section 294-B, 302 r/w 34 and 506(ii) r/w 34 of IPC as against both the accused and the contents of charges were read over and explained to them. They pleaded not guilty and claimed to be tried.   Therefore the trial was commenced before this Court.
  3. Thereupon the prosecution was ordered to prove the case.
  4. To prove the prosecution case, PW1 to PW27 was examined and ExP1 to

ExP19 and MO1 to MO7 were marked.

8. The briefcase of the prosecution  from the prosecution witnesses are as follows:-

  • PW1 Charles is the brother’s son of the deceased Arockiadass. He knowsaccused 1 and 2. Arockiadass was working along with accused 1 and 2 and all three of them were friends together. On 28.04.2015 at 05.00 am early morning PW1 and Arockiadass went to the house of the 1st accused’s house situated at South Boag Road, Door No.16/32 in order to get a return of the cash of Rs.25,000/- and one sovereign gold ring is given by Arockiadass to the 1st Arockiadass went up to the third floor where the 1st accused’s house is situated and PW1 was standing beneath on the road.  After some time PW1 heard the alarming sound of his paternal uncle praying not to hit again and again. At once PW1 saw both the accused pulling down Arockiadass and the 1st accused with the help of Reefer MO.1 and the 2nd accused assaulted with a wooden log MO.2 beat Arockiadass repeatedly. The 1st accused assaulted him on the head and right hand whereas the 2nd accused assaulted him on the left hand and right leg. When PW1 attempted to go to rescue Arockiadass, both the accused criminally intimidated him by showing the stick and log that he will also be assaulted if he come to nearby Arockiadass and ran away from the place of occurrence. PW1 with the help of neighbours took Arockiadass to Royapettah

Government Hospital through 108 Ambulance from where Arockiadass was sent to Rajiv Gandhi Government Hospital. When PW1 was in there, the police came and received an ExP1 complaint from PW1.  The blood-stained pant MO.3, and bloodstained shirt MO.4 were handed to the police by PW1.

  • On 28.04.2015 when PW21 Saravanan was serving as Inspector of Police,at E3 Teynampet Police Station, Chennai at about 12.30 pm he received information from the Royapettah Government Hospital through telephone about the injured Arockiadass, he went to Royapettah Government Hospital and came to know that the injured person was sent to the Rajiv Gandhi Government Hospital for further treatment. He immediately rushed to the Rajiv Gandhi Government Hospital, saw Arockiadass, and as he was not in a position to speak he enquired PW1 Charles and received the complaint ExP1, returned to the station, and registered a case in Cr. No.1355/2015 u/s 341, 294b, 307, 336 and 506(ii) IPC. The printed form of the First Information Report is ExP7. Thereafter the Inspector took the case for investigation, visited the place of occurrence at 16.30 hours, and prepared Observation mahazar

ExP8 and rough sketch ExP9 in the presence of PW13 Suresh and PW16 Padmanabhan and also seized blood-stained sand MO.5 and plain sand MO.6 in the presence of same witnesses.  The signature of PW13 in the observation mahazar and seizure mahazar are ExP2 and ExP3 and the signature of PW16 in the observation mahazar is ExP4.  Then he enquired about Dr.Daniel who treated Arockiadass in

Royapettah Government Hospital at the first instance and received the ExP11 Accident Register. Since Arockiadass died on 28.04.2015 at 23.55 hours, he altered the section of law to 341, 294 b, 302, 336, and 506(ii) IPC and submitted an alteration report in ExP12 to the Jurisdictional Magistrate Court.  On 29.04.2015 at 07.00 am he conducted an inquiry upon the dead body of Arockiadass in the presence of Panchayatars and prepared an Inquest report in ExP13. As per the instructions of PW21,  PW15 Mr. Kandan went to the Rajiv Gandhi Government Hospital, took photographs of the deceased body of Arockiadass, and handed over the photographs and the negatives to PW21.  Then PW21 sent the dead body of Arockiadass through PW20 Mr.Siluvai Raj for hand over same to conduct an autopsy.

  • PW17 Dr. Ramalingam was working in the Chennai Medical CollegeHospital, he received the dead body of Arockiadass through PW20 and conducted an autopsy over the same. He found the following Antemortem injuries on the body:-
  1. Irregular dark red abrasions :
  2. a) 6×2-1 cm on the right side of forehead; b) 6×1-0.5 cm on the upper third of left side of back; c) 4×0.5 cm on the back of left shoulder; d) 0.5×0.5 cm on the outer aspect of lower third of right forearm; e) 8×0.5 cm on the back of upper third of right forearm; f) 8×0.5 cm on the back of middle third of right forearm; g) 6x1cm on the back of lower third of right forearm; h) 5 x 0.5 cm on the inner aspect and back of middle third of right forearm; i) 10 x 1 cm on the inner aspect of middle third of right forearm; j) 2×0.5 cm on the front of middle third of right leg; k) 0.5 x 0.5 cm on the outer aspect of lower third of left leg; l) 0.5 x 0.5 cm on the front of lower third of left thigh; m) 0.5 x 0.5 cm (two in number) on the inner aspect of left knee; n) 3×2 cm with intervening areas of normal skin on the inner aspect of upper third of left leg; o)

0.5 x 0.5 cm on the outer aspect of upper third of left thigh; p) Two parallel abrasions 4 x 0.5 cm, 4 x 0.5 cm with an intervening distance of 2 cm, on the inner aspect and back of middle third of left forearm; q) 6 x 0.5 cm on the back of lower third of left forearm; r) 0.5 x0.5 cm on the back of middle third of left forearm; s) 0.5 x 0.5 cm on the back of left elbow; t) 3 x 2 cm on the midline of chest, 10 cm below the suprasternal notch.

  1. Sutured abraded lacerated wound 3 cm on the front of upper third of right leg; onremoval of sutures, wound margins were irregular and gaping.
  2. Dark red contusion 12 x 6 cm x muscle deep on the front of upper third of rightarm and onto the adjoining inner aspect of middle third of right arm.
  3. Dark red contusion 15 x 10 cm x muscle deep on the outer aspect of lower third ofright arm and onto the adjoining outer aspect of right elbow.
  4. Dark red contusion 29 x 12 cm x muscle deep on the back of right forearm
  5. Dark red contusion 16 x 6 cm x muscle deep on the front of upper half of rightforearm.
  6. Dark red contusion 6 x 5 cm x muscle deep on the front of upper third of rightknee
  7. Dark red contusion 15 x 6 cm x muscle deep on the outer aspect of lower third ofright leg
  8. Dark red contusion 20 x 10 cm x muscle deep on the outer aspect of lower third ofleft thigh and onto the adjoining outer aspect of left knee.
  9. Dark red contusion 4 x4 cm x 1 cm, 5x4x1 cm on the outer aspect of upper thirdof left thigh
  10. Dark red diffuse bruising of muscles of outer aspect of left leg
  11. Dark red contusion 25 x 10 cm x muscle deep on the back of upper third of leftforearm and onto the adjoining outer aspect of left elbow and outer aspect of lower half of left arm
  12. Dark red contusion 15 x 6 cm x muscle deep on the back of lower third of leftarm
  13. Dark red contusion 6 x 4 x1 cm on the upper third of left side of back
  14. Dark red contusion 8x6x1cm on the lower third of right side of back
  15. Irregular and complete fracture of the superior ramus of the pubic bone on rightside of pelvis with surrounding soft tissue bruising and extravasation of blood
  16. On reflection of scalp : Dark red scalp deep bruising 8 x 6 cm on the right side offrontal region of scalp; on removal of intact calvarium; Thin film of dark red diffuse Subdural haemorrhage on the surface and undersurface of both the cerebral hemispheres of brain; thin film of dark red diffuse Subarachnoid haemorrhage on the surface and undersurface of both the cerebral and both the cerebellar hemispheres of brain; Brain: Oedematous; cut section : Normar; Base of skull: Intact

Heart: Normal in size; cut section: All chambers were Empty; Valves: Normal;

Coronaries: Patent; Great vessels: Normal

Lungs: Normal in size; adherent to chest; cut section: Pale

Larynx and Trachea:Empty; Hyoid bone and other Laryngeal cartilaginous

Structures: Intact.

Stomach: Contained 200 ml of dark green fluid with no definite smell; mucosa: Pale

Liver, spleen and Kidneys : Normal in size; cut section: Pale

Bladder: Empty

Ribs and Spinal column : Intact

Opinion as to the cause of death: The deceased would appear to have died due to multiple injuries and thus he issued the ExP4(A) Postmortem Certificate with the above opinion.  He has further deposed before the court that if a person is assaulted with MO.1 and MO.2, there are possibilities of sustaining the above-mentioned

injuries.

(d) Thereafter PW21 on 29.04.2015 at 12.30 noon hours, arrested both the accused Selvam and Vijayakumar at Rajaannamalaipuram, Chamiers Road, Mylapore in the presence of PW14 Adhikesavan and one Ganapathy. Both the accused voluntarily gave confession station admitting the crime, the admissible portion of which is recorded by PW21 in ExP14 and ExP15. Based on the confession statement, A1 produced MO.1 reefer which was burnt at one end and hidden under a Peepul tree near a tea shop at South Boag Road which was about 32 inches of length, and the same was seized under ExP16 mahazar. A2 produced MO.2, 27-inch length wooden log from the same place which was seized under mahazar ExP17.  Then PW21 seized MO.7 lungi under ExP18 Form 95 from the Head constable. The blood-stained clothes were seized under ExP19 form 95. The MO5 and MO6 were sent to the jurisdictional court under Form 95 ExP20. The MO.1 and MO2 were sent to the jurisdictional court under Form 95 ExP21 and ExP22. Thereafter PW21 subjected the properties for scientific examination and collected a report in ExP23 from

Tmt.Tharani.  He collected the serological report in ExP24. He received the statement of a scientific expert in ExP25. Having completed his investigation he laid a charge sheet under the above section of law.

  • PW19 Dr.M.Usha Rani who was working in the Forensic SciencesDepartment received the inner organs of the deceased Arockiadass and conducted an examination of them and submitted her report in ExP6 stating that no alcohol or poisonous objects were found in the inner organs.
  • PW2 to PW8 who have been examined as eyewitnesses to the occurrencehave not stated anything incriminating evidence against the accused and as such, they have turned hostile to the prosecution. PW9 to PW12 who have been examined as hearsay witnesses have also spoken nothing ill about the accused and therefore they have been also treated as hostile witnesses. PW13, PW14, PW16, and PW20 who have been examined as mahazar witnesses have stated nothing about the preparation of mahazars and recording of confession by the investigation officer, and as such, they have been also treated as hostile witnesses.

9 After completion of prosecution evidence when both the accused were questioned u/s.313(1)(b) Cr. P.C about the incriminating evidence, materials, and circumstances adduced against them, denied the evidence as false. They further stated that they have no witnesses to examine on their side.

10.  The point for consideration in this case is:-

Whether the prosecution proved the charges under sections  294-b, 302 r/w 34, and 506(ii) r/w 34 of IPC against both the accused beyond all reasonable

doubt?

  1. Answer to Point: –

           The learned Public Prosecutor would submit that on 28.04.2015 at about 5.00 am in the early morning when PW1 and his paternal uncle Arockiadass went to the 1st accused’s house which was situated at door No 16/32 in third floor at South Boag Road, T.Nagar, Chennai, to get return of Rs.25,000/- cash and one sovereign of gold ring given to the 1st accused by Arockiadass, PW1 was standing beneath on the road and Arockiadass went up to the 3rd floor, PW1 heard the alarming sound of Arockiadass followed by the act of both the accused pulling down Arockiadass and beating with Reefer and wooden log on right hand, head and left hand & right leg respectively by the 1st and 2nd accused repeatedly, when PW1 attempted to safeguard Arockiadass, the accused criminally intimidated PW1 and ran away from the place of occurrence, then Arockiadass was taken to Royapettah Government Hospital in Ambulance from where he was sent to Rajiv Gandhi Government Hospital for further treatment and on the same day night itself Arockiadass succumbed to the injuries in the hospital. It is further argued that the occurrence was clearly deposed by PW1 who was the eye witness and the said evidence was corroborated with the medical evidence who found multiple injuries and further would confirm that the injuries can happen when a person is assaulted with MO.1 and MO.2, the investigation officer has properly conducted the investigation, arrested the accused, recorded confession statements and seized the weapons used by the accused in the occurrence and has laid charge sheet against the accused and as such the prosecution had proved the charges leveled against both the accused beyond reasonable doubt and prayed for maximum conviction and sentence.

  1. Contrary to the above submission of the learned Additional PublicProsecutor, the learned Counsel for both the accused would submit that PW1 is the brother’s son of the deceased in this case, the independent witnesses examined as eye witnesses to the occurrence in this case have turned hostile to the case of prosecution, that there are discrepancies between the deposition of PW1 with the complaint, the complaint is without date and the time of the complaint differs from the evidence of PW1 and the investigation officer, the medical officer who first attended the deceased has not been examined in this case, the brothers of the deceased who have been examined as hearsay witnesses have also turned hostile to the prosecution, the seizure of weapons allegedly used by the accused in the occurrence is not supported by any independent witnesses, the deceased has already been warned by the people of the said locality for having teased the ladies residing in the Housing Board and on the date of occurrence again the deceased indulged in teasing the ladies and so only he was beaten by the said locality residents and there is no connection with the accused and the offence and therefore, in this case, nothing has been elicited from the evidence of the prosecution witnesses against the accused to prove their involvement in the crime, the prosecution has no iota of evidence to connect the offender with the offence and to bring forth the guilt of the accused beyond reasonable doubts and therefore he prayed to acquit both the accused under the charge leveled against them.
  2. There is no doubt that in this case though all the eye witnesses have beenexamined by the prosecution, PW1 alone has stated about the occurrence and PW2 to PW8 have not spoken anything about the incident against the accused. It is pertinent to note that PW9 and PW10 who are the brothers of the deceased have also not spoken about what they had heard about the incident through PW1. So the only evidence available in this case is PW1. It is no doubt, that in a criminal case quantitative evidence need not be necessary, but qualitative evidence pointing the guilt entirely upon the accused is enough to convict the accused.   Therefore the sole evidence of PW1 is to be analyzed carefully.
  3. Regarding the charge framed under section 294-b of IPC against theaccused, PW1 though has mentioned in the ExP1 complaint that both the accused abused the deceased Arockiadass in a filthy language and started assaulting with reefer and wooden logs respectively, has not deposed anything about the obscene act or words uttered by the accused 1 and 2 at the time of occurrence. Except for him, no one has spoken about the occurrence as an eyewitness. There is no piece of evidence available on record that the accused has committed an offence punishable u/s 294-b of IPC.
  4. In the same manner, PW1 has not spoken any overt act against accused 1 and 2, to show that they have criminally intimidated him to attract the offence u/s 506(ii) IPC. He mentioned in the ExP1 complaint that the accused criminally intimidated him and the common public in that area by showing the reefer and wooden log and running away from the place of occurrence.  But, in his evidence, he has stated that the accused was told to beat him if he comes near Arockiadass and there is no averment that the accused caused criminal intimation against him or any public. This would not attract the specific overt act against accused 1 and 2 under section 506(ii) IPC.
  5. On a careful analysis of the evidence of PW1, he narrated the occurrenceas seen by him in the chief examination. In the cross-examination of PW1, he admitted that he has not put the date in the complaint and he has lodged the complaint before 04.00 pm. But in the complaint ExP1, the Inspector PW21 has mentioned the time as 16.00 hours ie 04.00 pm. PW21 has deposed in his chief examination that he received the intimation from the hospital at 12.30 noon and immediately he rushed to the hospital and obtained the complaint from PW1. PW21 has further confirmed in his cross-examination that he received the ExP1 complaint from PW1 at 12.30 noon at the Government hospital. So there arises a doubt at which time the complaint was lodged by PW1, received by PW21, etc.  PW21 has deposed in his cross-examination that the deceased Arockiadass is a transgender while the same was denied by PW1.  Furthermore, PW1 has deposed in his cross-examination as follows:-

“  //// vd; rpj;jg;gh K:d;whk; ghypdj;jth; vd;W brhd;dhy; rhpay;y/ mth; gyjug;gl;l ntiyfs; (filf;F bry;tJ. O th’f; p jUtJ) gyhplk; bra;J te;jhh; vd;W

;brhd;dhy; vdf;F ,J Fwpj;J bjhpahJ/ Ajith Industries ?y; ,J nghd;W rpW ntiyfs; bra;J te;jhh; vd;W brhd;dhy; fk;bgdpapy; ntiy bra;jhh; vd;W kl;Lk;jhd; bjhpa[k;/ Mdhy; fk;bgdpapd; bgah; bjhpahJ/ m’;F ,Uf;Fk; bgz;fsplk; jtwhf ele;J bfhz;ljhy; mth; ntiyapypUe;J ePf;fg;gll; hh; vd;W brhd;dhyp; mij gw;wp vdf;F bjhpahJ////

/// 1k; vjphpf;F ve;j njjpapy; ,we;J nghd; vd; rpj;jg;gh gzk; bfhLj;jhh; vd;W brhd;dhy; bfhLj;j njjp bjhpahJ/ ehd; bfhLj;j thf;FK:yj;jpYk; ve;j ;njjpapy; ,we;J nghd vd; rpj;jg;gh 1k; vjphpf;F gzk; bfhLj;J gw;wp brhyy; tpyi; y vd;W

brhd;dhy; rhpjhd; ///

////////rk;gtk; ele;jjhf brhy;yg;gLk; ,lk; ve;j tPjpapy; ele;jJ vd;W ;brhd;dhy; bjU bgah; bjhpahJ///// vd;Dila ,we;J nghd rpj;jg;gh me;j ,lj;jpw;F brd;W m’n; f ,Uf;Fk; bgz;fis nfyp bra;jjhy; m’;nf tuf;TlhJ vd;W   Housing Board y; cs;sth;fs; vr;rhpj;Js;shh;fs; vd;W brhd;dhy; tuf;TlhJ brhd;dJ gw;wp vdf;F bjhpahJ/”

The above piece of evidence of PW1 in the cross-examination, when analyzed coupled with the evidence of the doctor who  a postmortem on the dead body of Arockiadass would amply create a serious doubt whether the assault allegedly made the accused 1 and 2 would cause so many multiple injuries upon the body of Arockiadass. The injuries described by the medical officer in the postmortem certificate would surely create a doubt whether Arockiadass was assaulted by the accused 1 and 2 alone or as contended by the accused that the peoples residing in the locality were attacked the deceased for the sufferings of the ladies in that locality due to the teasing attitude of the deceased.  Further PW1 has not stated anywhere in the complaint or before this court, what is the necessity for him and the deceased Arockiadass to visit the house of 1st accused to get back the amount of Rs.25,000/and the golden ring alleged to have given by the deceased Arockiadass, on the date of occurrence  at 05.00 am, in the very early morning hours.

  1. In this case, the doctor cited as a prosecution witness who attended thedeceased at the first instance namely, Dr. Daniel was not examined which is very much fatal to the case of the prosecution. In the ExP11 AR copy, the time of admission is mentioned as 7.40 am, whereas PW1 has stated that the occurrence had happened between 5 to 5.30 am in the early morning. Even though he took Arockiadass in the Ambulance will it take so much time to get admitted to the hospital is a big question, which also creates doubt whether the occurrence had happened as alleged by PW1 or not. It is also noteworthy that there is a delay in lodging the complaint by PW1.  Furthermore, PW1 has stated that he knows both the accused very well, he had seen the accused assaulting Arockiadass, then what prevented him to say the medical officer who attended Arockiadass at the first instance, about whom has assaulted Arockiadass, at which place, time, etc, is a great question unexplained by the prosecution.  The persons who have assaulted Arockiadass whether a known person or an unknown person is missing in the AR copy. There is no evidence available on record to show, when and where Rs.25,000/cash and one sovereign gold ring were given by the deceased Arockiadass to the accused.  These facts are fatal to the prosecution. The examination of Dr.Daniel would have eased the case of the prosecution who is competent to depose the state of the injured at the time of admission very well.  The prosecution has only relied upon the uncorroborated testimony of PW1. It was not supported by the other eyewitnesses.
  2. The prosecution has examined the photographer who took photographs ofthe dead body of Arockiadass, but the said photographs and negatives have not been marked in this case. The arrest of the accused, recording of confession statements, seizure of weapons allegedly used by them in the occurrence, preparation of observation mahazar, and rough sketch have not been corroborated by the witnesses who stood as witnesses for the said documents.
  3. It is further argued by the counsel for the accused that the PW17 doctorwould admit in his cross-examination that there are possibilities of sustaining so much of injuries when 4 or 5 persons surround a person and assault him. In the present case, PW1 in his evidence has stated that he heard the alarming sound of Arockiadass followed by the act of both the accused pulling down Arockiadass and beating with Reefer and wooden log on the right hand, head, and left hand & right leg respectively by the 1st and 2nd accused repeatedly. But Doctor PW17 deposed that there are more than 17 injuries found in the body of the deceased. It is not clear from the evidence of the prosecution on record as to who caused the other injuries found in the body of the deceased as seen in the ExP4A Postmortem certificate. The other injuries which were found on the deceased have not been explained by the

prosecution.

  1. The learned counsel for the accused would submit that it would bepractically impossible to inflict 17 injuries by two accused simultaneously attacking the deceased within a short time particularly when the deceased being a normal and healthy person naturally must have offered resistance and relied upon the decision rendered in Amar Singh Vs. The State (NCT OF DELHI) with Inderjeet Singh Vs. The State (NCT OF DELHI) by the Hon’ble Supreme Court of India, wherein it has been observed in paragraph 27 as follows:-

27. Thus, there are total 15 injuries inflicted by three assailants, two having hockey sticks and one knife as per the prosecution story. Parminder Singh PW1 emphatically stated that the whole incident barely lasted five minutes. It would be practically impossible to inflict 15 injuries of the type by three assailants simultaneously attacking the deceased within a short span of 5 minutes particularly when the victim being a normal healthy person naturally must have offered resistance.

….

In this case, also, there are more than 17 injuries alleged to have been inflicted by two assailants one having a reefer and the other having a wooden log. The deceased Arockiadass was said to be a moderately nourished body as per ExP4(A). So it would be practically impossible to inflict more than 17 injuries on the deceased Arockiadass by the two assailants A1 and A2 alone.

  1. Likewise, a careful scrutiny of the evidence of PW1 would clearly showthat accused 1 and 2 were alleged to have beaten the deceased Arockiadass repeatedly due to which the deceased Arockiadass sustained multiple injuries and succumbed to death. The medical officer has opined that the deceased would have died due to the multiple injuries sustained by him. He has also deposed before this court that the multiple injuries would have been caused when beaten with MO1 and MO2 shown to him before the court. But the defence has shattered the chief examination of PW1 by drawing the attention of this court to the characterization of the deceased Arockiadass which was already warned by the local people before the occurrence. For all such suggestions put forth by the defence, PW1 pleaded ignorance and thereby failed to gain the confidence of this court in proving the guilt of the accused as alleged by

PW1. It is also noteworthy that the own brothers of the deceased Arockiadass namely PW9 and PW10 have turned hostile and failed to depose what they had heard about the incident from PW1.  As such the overt act under section 302 r/w 34 IPC would also not be attributed against the accused 1 and 2.

  1. From the above discussions of facts, this Court is of the considered view that since there are many discrepancies in the evidence of the sole eye witness who deposed before this court about the occurrence with that of the investigation officer, the non-explanation with regard to the fact that what necessitated PW1 and the deceased Arockiadass to go the 1st accused’s house at the early morning hours to get back the money and gold ring, there is no clear evidence about the lodging of ExP1 complaint and receiving the ExP1 by the investigation officer,  the hostile nature of the brothers of the deceased who have been examined as hearsay witnesses to the occurrence, the bad character as projected by the defense in the cross-examination of PW1, the investigation process not at all supported by any of the independent witnesses, the non-examination of the doctor who attended the deceased at the first instance, would all go to create a shadow of doubt upon the prosecution case.  In all the above discrepancies, in a murder case, it is not safe to convict the accused, based on the sole evidence of PW1 which is also shattered in the cross-examination. Hence both the accused are entitled to benefit of the doubt.  The prosecution has miserably failed to prove the guilt of both the accused u/s. 294-b, 302 r/w 34, and 506(ii) r/w 34 IPC beyond all reasonable doubt. Thus the point for consideration is answered accordingly.
  2. In the result, accused 1 and 2 are found not guilty under sections 294-b, 302 r/w 34, and 506(ii) r/w 34 IPC, and they are acquitted u/s 235(1) Cr.P.C. The bail bond, if any, executed by both the accused shall stand canceled.

 The Material Objects MO1 to MO7 are ordered to be destroyed, after the lapse of appeal time or after 60 days, whichever is later.

Dictated by me to the stenographer, directly computerized by her, corrected and pronounced by me in the open court, on this 29th day of September 2022.

                                                                             I Additional Sessions Judge

Chennai Prosecution Witnesses :

PW1  : Mr. Charles  
PW2 : Mrs. Nagavalli  
PW3 : Mr. Anbarasu  
PW4 : Mr. Pradeepraj  
PW5 : Mr. Ravi  
PW6 : Mrs. Poongotha  
PW7 : Mrs. Shantha  
PW8 : Mrs. Rukmani
PW9 : Mr. Vargheese
PW10: Mr. Mohan
PW11: Mrs. Vijaya
PW12: Mrs. Muniammal
PW13: Mr. Suresh
PW14: Mr. Adikesavan
PW15: Mr. Kandan
PW16: Mr. Padmanabhan
PW17: Dr. Ramalingam
PW18: Dr. Suresh Babu
PW19: Mrs. Usha Rani
PW20: Mr. Siluvairaj
PW21: Mr. Saravanan

Prosecution side Exhibits:-

ExP1                 :  28.04.2015 : Complaint

ExP2                 :  28.04.2015 : PW13’s signature in Observation Mahazar

ExP3                 :  28.04.2015 : PW13’s signature in the seizure mahazar

ExP4                 :  28.04.2015 : PW16’s signature in the observation mahazar

ExP4(A) :  29.04.2015 : Postmortem certificate

ExP5                 :  28.04.2015 : Death intimation

ExP6                 :  15.05.2015 :  Scientific report in H.No.1104/15

ExP7                 :  28.04.2015 : First Information Report

ExP8                 :  28.04.2015 : Observation mahazar

ExP9                 :  28.04.2015 : Rough sketch

ExP10               ;  28.04.2015 : Seizure mahazar

ExP11               :  28.04.2015 : Accident Register copy

ExP12               :  28.04.2015 : Alteration report

ExP13               :  28.04.2015 : Inquest report

ExP14               :  29.04.2015 : Admissible portion of A1’s confession statement

ExP15               :  29.04.2015 :  Admissible portion of A2’s confession statement

ExP16               :  29.04.2015 : Seizure mahazar for MO1

ExP17               :  29.04.2015 : Seizure mahazar for MO2

ExP18               :  29.04.2015 : Form 95 for MO7

ExP19               :  29.04.2015  : Form 95 for MO3 & MO4

ExP20               :  29.04.2015 : Form 95 for MO5 & MO6

ExP21               :  29.04.2015 : Form 95 for MO1

ExP22 :  29.04.2015 : Form 95 for MO2 ExP23 :  23.11.2015 : Serological report

ExP24               :  23.11.2015 : Serological report

ExP25               :  10.06.2015  :  Biological report

Material Objects :    

MO1  Reefer stick

MO2  Wooden log

MO3 Blood stained blue colour pant in torn condition

MO4 Blood stained green while lined full hand shirt- torn condition

MO5  Blood stained sand

MO6 Plain sand

MO7 Blood stained blue colour lungi

List of witnesses and Exhibits on the side of defence :  Nil

 

                                                                             I Additional Sessions Judge

C.RL      Chennai

 

I Additional Sessions Court, City Civil Court, Chennai

Draft/fair/copy of

Judgment in

SESSIONS CASE No.15/2016

(CNR.No.TNCH01-001769-2016)

Dated:29-09-2022.

 

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