PRAKASH ALIAS JAYAPRAKASH Vs. STATE

JUDGEMENT

(1.) Challenge is made to the judgment of the learned Additional District and Sessions Division, Fast Track Court No.1,Erode, made in S.C.No.222 of 2008 whereby the appellant ranked as A2 along with the other accused ranked as A1 stood charged, tried and found guilty under sections 364, 379, 302 r/w 34 and 201 I.P.C. and were awarded 10 years rigorous imprisonment, 3 years rigorous imprisonment, life imprisonment and 3 years rigorous imprisonment respectively. The sentences are ordered to run concurrently. Aggrieved over the said judgment, A2 has preferred this appeal.

(2.) The short facts necessary for the disposal of this appeal can be stated thus:

(3.) Advancing the arguments on behalf of the appellant/A2, the learned counsel would submit that in the instant case, the prosecution had no direct evidence to offer. It rested its entire case on the circumstantial evidence. But the prosecution has neither placed necessary circumstances, nor proved the same. Hence, the prosecution has miserably failed to prove the same. But the trial Court has taken an erroneous view. It is a case before the trial Court that the prosecution had examined P.Ws. 1 and 2 as witnesses to prove the circumstances. Insofar as P.W.1 was concerned, he claimed to be the auto owner; that he took the deceased and A1 from the wine shop in his auto and A2 followed his auto in a two wheeler; that thereafter, when he was proceeding to a particular place, there was wordy altercation between A1 and the deceased inside the auto,hence, he stopped the auto and asked them to get down and to give him the auto charge of Rs.30/-; that at that time, A2 gave Rs.100/-; that since P.W.1 did not have change, he went to get the change from the nearby shop; that at that time, A2 pushed the deceased inside the auto and took the auto; and that A1 followed them in the two wheeler. Had it been true that P.W.1 is the owner of the auto, he should have immediately informed the same to the Police. Only at the time of cross examination, he candidly admits that he went and gave information to the police which would clearly indicate that it should have been the first information. Added further learned counsel, P.W.1 has not produced any documents regarding the ownership of the auto as well as the driving license or permit which would cast a doubt whether he should have taken the vehicle that day or not. It is pertinent to point out that P.W.1 has given the complaint on 20.4.2008 at 9.00 p.m., the next day of the date of occurrence after a long lapse of 24 hours. Hence, there is inordinate delay. The police has originally registered a case under Section 379 IPC and the case of the prosecution was developed as if P.W.1 came to know about the place where the dead body and his auto was found, then he reported to the Police and further investigation continued and the case was altered to 302 I.P.C. These were all nothing but cooked up affair.