RAMASAMY Vs. STATE

JUDGEMENT

(1.) The appellants are the accused 1 and 2 in S.C. No. 141 of 2010 on the file of the learned II Additional District and Sessions Judge, Tirupur. Including these appellants there were totally four accused in the case. The first accused stood charged for offences under Sections 449, 302 (2 counts) and 307 I.P.C. and the accused 2 to 4 stood charged for the offences under Sections 449, 302 (2 counts) and 307 r/w Section 34 I.P.C. By judgment dated 24.08.2012, the trial Court acquitted the accused 3 and 4 but convicted the accused 1 and 2 and sentenced the first accused to undergo rigorous imprisonment for ten years and pay a fine of Rs. 1000 and in default to undergo rigorous imprisonment for six months for offence under Section 449 I.P.C.; to undergo imprisonment for life and pay a fine of Rs. 2000 (for each count) and in default to undergo rigorous imprisonment for six months for offence under Section 302 (2 counts) I.P.C. and to undergo rigorous imprisonment for seven years and pay a fine of Rs. 1000 in default to undergo rigorous imprisonment for six months for the offence under Section 307 I.P.C. The second accused was sentenced to undergo rigorous imprisonment for ten years and pay a fine of Rs. 1000 and in default to undergo rigorous imprisonment for six months for offence under Section 449 I.P.C; to undergo imprisonment for life and pay a fine of Rs. 1000 (for each count) and in default to undergo rigorous imprisonment for six months for offence under Section 302 (2 counts) r/w Section 34 I.P.C. and to undergo rigorous imprisonment for seven years and pay a fine of Rs. 1000 in default to undergo rigorous imprisonment for six months for the offence under Section 307 I.P.C. r/w Section 34 I.P.C. Challenging the said conviction and sentence, the appellants/accused 1 and 2 are before this Court with this appeal. The case of the prosecution in brief is as follows:

(2.) We have heard the learned counsel appearing for the appellants and the learned Additional Public Prosecutor appearing for the State and also perused the records, carefully.

(3.) Admittedly, the occurrence had taken place inside the house of the deceased at 08.00 p.m. and apart from the deceased 1 and 2 the only other person in the house at the time of occurrence was P.W.2. P.W.2 has sustained injuries in the very same occurrence. But unfortunately, P.W.2 has turned hostile and she has stated that unknown persons numbering about 5 to 6 trespassed into the house and attacked D1 and D2 and her also. When she was called upon to identify the accused, she told the Court that the accused were not the assailants. But the trial Court convicted these two accused based on the statement of P.W.2 recorded under Section 164 Cr.P.C. by the learned Judicial Magistrate. It is an elementary principle of law that a statement given by a witness under Section 164 Cr.P.C. being a former statement can be used either to contradict the maker of the statement as provided under Section 145 of the Evidence Act, by the adverse party or to use the same to corroborate the evidence of the maker of the statement as provided in Section 157 of the Evidence Act. Such former statement can never be treated as substantive evidence. But the trial Court has erroneously relied on the said statement and convicted these two accused, this is illegal. Therefore, apart from this, there is no other evidence at all in this case to prove the guilt of the accused. Therefore, we hold that the appellants are entitled for acquittal. In the result,