CHITHAMADHAR AND JEBAMANI Vs. STATE

JUDGEMENT

(1.) (Para 1 - 6 Omitted) 7. Learned counsel for the appellants would submit that the case of the prosecution, built on the sole and lone testimony of P.W.1, and interested and partisan witness, suffers from serious infirmities and inherent improbabilities, besides the existence or intrinsic and in built materials casting such serious doubt as is not possible for the court to fasten criminal liability upon the accused for any offence whatever. 8. There is no manner of doubt whatever, that the place where the occurrence took place is more or less a for lorn and foresaken place, especially during night hours, without having any sort of a visible factor for anyone moving about in that locality not in a position to have a climpse of what was going on there unless he was in possession of some instrument or object like a torch-light for the emission of beam of light to perceive things as and when an occasion arose. It is the case of the prosecution that the deceased 1 and 2 were waylaid at about dead of night, when they were returning from the hotel, after the closure of business. The attack is stated to have been mounted not only by accused 1 and 2 but also by their associates, two in number, by the use of lethal weapons like aruvals, knife etc. Deceased 1 and 2 were stated to have accompanied by P.Ws.1 and 2 on their return march to their house. The pitch of darkness during the relevant night was such as was not possible either for the deceased 1 and 2 for P.Ws.1 and 2 to perceive the presence of the accused and their Associates until they heard their voice. The moment they have heard the voice, deceased 1 was stated to have flashed a torch-light which he was having in his hands and thereafter, they were able to identify accused 1 and 2, besides noticing two other persons arming with aruval and knife, not known to them previously. But for the emergency of flood of light from the torch light flashed by deceased 1, P.W.1 himself would candidly admit during the course off his evidence, that there would not have been any possibility for the identification of the accused 1 and 2. So, possession of a torchlight by deceased 1 assumes signal importance, throwing light not only for the witnesses to have the glimpse of the occurrence but also for the Court to perceive and come to the conclusion as to whether the occurrence as projected by the prosecution could have happened. Even the torch, light said to have been; possessed by deceased 1 got slipped off from his hands, as candidly admittedly by P.W.1, the moment he received the first cut on his person. Thereafter, there was utter pitch of darkness, there being no visible factor at all. Significant it is to note here that the version painted by the prosecution in its earliest occasion in Ex.P.1. was that one of the assailants flashed a torchlight and that only with the aid of that flash of light, P.W.1 was able to decipher the assailants. Even here he did not mention the presence of accused 2 in the scene. What he would state is that two or three persons along with accused 1 were present in the scene arming themselves with aruvals. Further nothing had been specifically stated therein as to the possession of a torch light by deceased 1 and his flashing a torch light they heard the voice . The version painted now before Court by P.W.1 is quite diametrically opposite to the version as projected by him in the earliest occasion., Exhibit P.1. If the version was narrated in Exhibit P.1 was adhered to by the prosecution, the consequence shall be disastrous. If really one of the assailants along was in possession of a torch light and flashed it, at that time of occurrence, there could have been no possibility for the deceased and witnesses who accompanied them to have noticed of the presence of the assailants and the weapons possessed by them, the reason being, the person on whom the beam of light got flashed, could not have seen what was happening from the place where the beam of light emerged, obviously their vision getting dimmed by the flash of light and there could have been possibility only for the persons, who stood behind the person who flashed the light to have noticed as to what was happening in the direction towards which the light got flashed. Understanding of course belatedly this sort of a significance, the prosecution introduced the theory of possession of a torch light by deceased 1 so as to afford visible factor for the witnesses to have a glimpse of the occurrence. 9. The presence of P.W.1 in the scene rather appears to be doubtful in the circumstances of the case. The prosecution would pose as if P.W.1 was verbally residing in the house of deceased 1 along with his mother and other members of his family and he was actually working in the hotel of the deceased 1 in doing off jobs besides turning out necessary thing for the upkeep and maintenances of the hotel. So, he was made to accompany the deceased from his hotel on the day of occurrence, after the closure of business. If P.W.1 was really working in the hotel of accused, there was every plausibility for P.W.1 to have accompanied the deceased at the time of occurrence. The circumstances in this case impel us to warrant a conclusion that he had been planted as a witness for this case by giving him residence and shelter in the house of deceased 1 and making him working in his hotel. The defence right from the beginning adopted the consistent stand that P.W.1 was not at all available in the scene village and he along with his mother and other members of the family was actually residing in his native place Thenkalam. Towards this direction, the defence hurled questions during the course of cross examination of P.Ws.1 and 3. The defence was able to achieve best of results in probabilising the theory of getting valuable admissions from P.W.3 besides eliciting certain answers from P.W.1 pointing out that he could not have been the resident of the locality of the scene village. P.W.1 was unable to with stand the onslaught of cross-examination and he would verbally blink about certain matters such as the topography of the scene village and the time of opening and closure of shops therein and other ancillary matters. He was unable to given an account how the hotel had been managed by deceased 1. Though he would fine ignorance about his name and the names of the members of his family having been entered in the voters list and the family card of the scene village. Yet P.W.3 would expose him by stating that due entries had been made in the voters list as well as the family card in his native village at Thankalam. 10. Top of all, the petition Exhibit P.1 sent by P.W.3 the Inspector General of Police, Madras about the occurrence did not mention anything about P.W.2 accompanying the deceased at the time of occurrence. It of course did mention the name of P.W.2 as the person who accompanied the deceased at that time. Even P.W.2 who was stated to have accompanied the deceased turned hostile whole sale to the prosecution. In such circumstances, it is highly probable that the services of P.W.1 a close relative of deceased 1 could have been pressed into service sorting to the needs and exigencies of the case of the prosecution in making him as an eye witness to the occurrence. 11. The identification parade arranged by the investigating agency is nothing but a make belief affair, in the circumstances of the case. As already adverted to P.W.1, the author of Exhibit P.1, the earliest informations, did not make any mention at all about the presence of accused 2 in the scene at the time of occurrence, leave alone giving him the specific overt acts in causing injuries to deceased 1 and 2. The curious factor is that he was made to say during the further course of investigation about the parts played by accused-2 in hurling violence on deceased 1 and 2 and the version was projected again in Court during the courses of his examination, as if he was quite acquainted with accused-2. In such state of affairs, there is no meaning at all for arranging of an identification parade for P.W.1 to identify accused-2 as one of the assailants in the case. This apart, the identification parade had been arranged after a lapse of four months and the identification parades earlier arranged were somehow or other postponed at the instance of the investigating agency for one reason or the other. The postponing of the identification parade on many an occasion appears to our mind that the investigating agency had been purchasing time to make P.W.1 acquaint with accused-2 in the intervening time not, within the immediate knowledge of accused-2. Besides the notes of identification parade as reflected by Exhibit P. 14 are not without serious infirmities. The Magistrates P.W.9 who conducted the identification parade candidly admits during the course of cross- examination that accused 2 was having a white patch on one of his hands and in order to secrets the same, he asked for persons who participated in the identification parade alongwith accused-2 to have their hands clutched from behind in order to conceal the descriptive marks of white patch in one of the hands of accused No.2. Though he would assiduously state having taken such precautions in his evidence, yet these things did not form part and parcel of the notes of identification parade reflected in Exhibit P.14. 12. The inordinate delay caused in the earliest information reaching the Court spells out volume of suspicion regarding the veracity of the case of the prosecution as projected first in point of time. The occurrence took place at 00.30 A.M. in Palayamcottah-Kottur Road, four Kms. away from Palayamkottah Police Station only at 02.30 A.M.by P.W.1. In order to explain the delay so caused, he would trot out a story of his going to Kottur and informing P.W3 about the occurrence. He would again opt to go to the scene of occurrence along with P.W.3 and from there would go to the house of one Varisai Mohammed at Palayamcottah and then at all the three would make an onward march to the police station for presenting the complaint to the police. The traversing so much of a distance by P.W.1 before he went to the Police Station appears to have been trotted out for the purpose of explaining on avoidable delay in the presentation of the complaint which however could not be expected to command the seal of approval of the Court. Even if delays caused with this stage is accepted, the further delay caused in Exhibit P.1 reaching the hands of the Magistrate is intolerable and the explanation offered by the investigating agency in this regard cannot at all be countenanced. P.W.11, the Sub Inspector of Police would of course say that the first information. Exhibit P.1, and the express F.I.R. Exhibit P.20 had been handed over to the constable, P.W.12 with a specific direction to immediately hand over the same to the Magistrate. P.W.12 would give aquixotic explanation that he in fact reached immediately the house of the Magistrate, tapped his door, found no response, consequently had to compulsorily wait in front of the house of the Magistrate and handed over the same to the Magistrate after the day dawned at 7 A.M. If the Magistrate was not available in his house during night hours, it is rather inconceivable as to how the descended on his house all of a sudden at 7 A.M. Much to the surprise of all, inclusive of the constable. As such, it cannot be ruled out of consideration that the murders of the deceased 1 and 2 having happened in the dark hours of the night, unnoticed by any one and lately coming to the knowledge of the kith and kin of the deceased after the day dawned, as contended by the learned counsel for the appellants a colour at version, after deep deliberation could have been presented by the prosecution by lodging Exhibit P.1 complaint belatedly implicating the accused. 13. Taking into account the overall pictures of this case as enumerated above, we are of the view that the case of the prosecution suffers from serious infirmities and improbabilities as is not possible for the Court to place safe reliance on the lone testimony of P.W.1, admittedly a partisan and interested witness, for fastening criminal liability upon accused-1 and 2 as had been done by the Court below, the consequence of which is that they have to be acquitted by giving them the benefit of reasonable doubt. 14. In the result, both the appeals are allowed the conviction and sentence are set aside and both the accused are acquitted. They are directed to be set at liberty forthwith, unless required otherwise, in connection with any other case. Appeal are allowed.