R.T. No.2 of 2021
Referred Trial under Section 366 Cr.P.C.,/under Clause 15 of the Letters Patent Act on the judgment and order dated 04.08.2021 passed in S.C.No.348 of 2015 on the file of the learned I Additional Sessions Judge, Chennai.
Crl. A. Nos.262 and 454 to 460 and 462 of 2022
Criminal Appeals filed under Section 374(2) Cr.P.C. seeking to set aside the judgment of conviction and sentence dated 04.08.2021 passed in S.C.No.348 of 2015 on the file of the learned I Additional Sessions Judge, Chennai.
Common Judgment
The Referred Trial and the Criminal Appeals are taken up together, heard and disposed of by this common judgment. For the sake of convenience, the parties are referred to as per their ranking before the trial Court.
Case of the Prosecution
Dr. Subbaiah was attacked with a sickle and the case was registered initially u/s 307 IPC and altered to section 302 IPC
It is the case of the prosecution that on 14.09.2013 at about 5.00 p.m., at 1st Main Road, near Billroth Hospital, Raja Annamalaipuram, Chennai-28, the deceased one, Dr.Subbiah, was attacked by A8, A9 and PW12 with a sickle and the deceased sustained multiple cut injuries on his head, neck, shoulder, right forearm, etc., and he was shifted to Billroth Hospital, Raja Annamalaipuram, for treatment; that since his condition became serious, he was referred to Billroth Hospital, Aminjikarai, where he succumbed to the injuries at 1.00 a.m., on 23.09.2013. Initially, the case was registered for the offence under Section 307 of the IPC and thereafter, on 23.09.2013, it was altered to Section 302 of the IPC.
Enmity is the cause of the murder
In the complaint, PW1 had referred to the enmity between the family of the accused viz., A1 to A4 on the one hand and the deceased on the other hand. Therefore, PW57 formed a secret special team to apprehend the accused and to investigate into the offence. PW57 continued his investigation until 18.09.2013, when he was transferred to the control room and the investigation was handed over to PW55-Elangovan. Thereafter, PW55 again took up the investigation on 27.09.2013, examined a few witnesses and handed over the investigation to PW57, who conducted the investigation for two days and handed over the investigation to PW55 on 29.09.2013. Thereafter, PW57 once again took up the investigation on 14.02.2014 and continued the investigation till the filing of the final report.
CCTC plays an important role
PW55 took up the investigation on 18.09.2013 as stated earlier and on 19.09.2013, he made efforts to record a statement from the deceased through a Magistrate. However, since the deceased was not conscious, he could not record the statement. On 23.09.2013, PW55 received the intimation that the deceased had passed away. He went to the hospital and sent the body for a postmortem to Royapettah Government Hospital. He examined the other witnesses, conducted an inquest and prepared the inquest report [Ex.P150]. He altered the provisions to Section 302 IPC and sent the alteration report [Ex.P160] to the Court. He examined other witnesses on 25.09.2013. A3 and A4 surrendered before the XXIII Metropolitan Magistrate, Saidapet. On 27.09.2013 he filed a petition to take the accused into police custody. On 29.09.2013, the Special team brought A1 and A2 for enquiry. PW55 arrested both of them, recorded their confessions and produced them before the Magistrate for judicial remand. He examined PW13. On 09.10.2013, he wrote letters to the Association of the apartment owners of Shreshta Subhashree apartments and also to the RR Donnelley Company to obtain the hard disc containing the recording from the CCTV cameras. On the same day, the President of Shreshta Subhashree Apartment Owners’ Association, one Leela Natarajan [PW25] handed over the hard disc to PW57, which was seized by him under seizure mahazar [Ex.P28]. The hard disc was marked as M.O.9. On the same day, the Security Manager of R.R.Donnelley, one Dayalan (not examined) handed over the hard disc [M.O.10] which was seized under the Mahazar [Ex.P29]. He examined both of them and he sent the hard discs under Form-95 to the Court on 10.10.2013. On 22.10.2013, he made a requisition to the learned XXIII Metropolitan Magistrate, Saidapet to send the hard discs for examination. On the same day, an order was passed and the hard discs [M.O.9 and M.O.10] were sent to the Forensic Science Laboratory at Myalpore. He thereafter handed over the investigation to PW56.
DVR from which the CCTV footage recorded was not available and identified as scrapped
PW56 received a letter from the Forensic Science Laboratory stating that the hard discs cannot be examined in the absence of a DVR. He sought for the DVR from the watchman (not examined) of the Shreshta Subhashree apartments, who told him that it was scrapped. He collected the call detail records of the accused A1 to A4. On 29.01.2014, he once again examined PW1, PW13 and PW9. From their further statement and on secret information, he ascertained that A7 to A10 were also involved in the offence and arrested them at about 6.00 p.m., on the same day at a bus stop near Jain College, Thuraipakkam, Chennai. He recorded the confessions of all the accused A7 to A10 and on the confession of A8, he seized a black-coloured shoulder bag [M.O.3], a bloodstained shirt [M.O.44], and a bloodstained knife [M.O.1 series] under seizure mahazar [Ex.P19] from a dilapidated building near the Tahsildar’s office near Chamier’s Road, Chennai. On 31.01.2014, he made a requisition for the conduct of Test Identification Parade for witnesses, Vinothkumar [PW2], Muthuvel [PW3] and Gopinath [PW9]. He thereafter took the accused into police custody and recorded their further confession. On 08.02.2014, he examined the mechanic [PW26], who is said to have repaired the bike of the accused on the date of the occurrence (PW26 was identified by the accused) and also examined the Lodge Managers, where the accused stayed when they were in Chennai in August and September 2013.
Final report filed against all the accused
After PW57 took up the investigation for the second time, he recorded the further statement of PW53 on 15.02.2014. He obtained the Accident Register of the deceased from the Royapettah General Hospital (Ex.P147). He examined the Administrative Officer Ravi (not examined) and other witnesses from Billroth Hospital. Though he took efforts to locate the pulsar bike used by the accused at the time of the occurrence, he could not succeed; he obtained the Section 164 (5) Cr.P.C. statements of PW2, PW3 and PW9 recorded by the learned XVI Metropolitan Magistrate. On 13.03.2014, A6 was produced before him by one Muthuraj (PW7) to whom A6 is said to have given an extra judicial confession. He arrested A6. On 21.03.2014, on the orders of the XXIII Metropolitan Magistrate, Chennai, he sent the hard disc, demo CDs along with time chart prepared by him and also the photographs to the Truth Labs, where PW54 was working on 28.03.2014. On 10.12.2014, he arrested and recorded the confession of A5- William, the admissible portion of which was marked as (Ex.P10). He seized the cell phone, marriage album (M.O.5), Marriage CD (M.O.6) and visiting card (M.O.8) of Dr.S.Subbiah on the confession of A5. On 03.02.2015, he collected the documents relating to bank transactions between A5-William and DW2-Veeramani. He also collected the documents of title relating to the disputed property on 13.04.2015 and thereafter, after examination of other witnesses, collection of documents and the reports of the Forensic Laboratory, Ex.P170 to Ex.P173, he filed a final report on 06.05.2015 for the offence under Sections 120-B, 109, 341, 302 r/w 34 of the IPC before the XXIII Metropolitan Magistrate against accused A1 to A9.
Copies and charges
On the appearance of the appellants, the provisions of Section 207 Cr.P.C., were complied with, and the case was committed to the Court of Session in S.C.No.348 of 2015 and was made over to the learned I Additional Sessions Judge, City Civil Court, Chennai, for trial. The trial Court framed charges against the appellants and when questioned, the appellants pleaded ‘not guilty’. During the trial, A10 was granted pardon and examined as PW12.
Trial
To prove the case, the prosecution examined 57 witnesses as P.W.1 to P.W.57, marked 173 exhibits as Exs.P1 to P173, and marked 42 Material Objects as M.O.1 to M.O.42. When the appellants were questioned, u/s.313 Cr.P.C., on the incriminating circumstances appearing against them, they denied the same and some of them chose to give a separate statement. The appellants/accused examined 3 witnesses as D.W.1 to D.W.3 and marked 7 exhibits as Exs.D1 to D7. Court Exhibits viz., C1 to C5, were also marked.
It was argued that the Additional Sessions Judge was not empowered to record statement for pardon
The trial Judge had recorded Section 164 Cr.P.C. statement of the accused before granting pardon under Section 307 Cr.P.C., which is contrary to the procedure prescribed under the Code. The trial Judge who was an Additional Sessions Judge, who was not empowered to record a statement under Section 164 Cr.P.C., and it was the Magistrate who could record the statement. This statement was also recorded in chambers to suit the prosecution case and to fill up the gaps and cover up the deficiencies.
Approver was examined in the chambers of the presiding judge
The approver, was also examined in the chambers of the Presiding Judge, which also throws a doubt with regard to the voluntariness of the confession. The time for reflection was not given to him and for that reason also, this evidence has to be rejected.
Discussion
After explained about what the witnesses have spoken the Hon’ble Madras Division Bench has proceed to the following:
The discussion on the evidence adduced by the prosecution can be split into the following parts.
(A) Evidence to establish the charge of conspiracy.
(B) Evidence to establish the occurrence.
From the above narrative, it could be seen that PW12 is the star witness relied upon by the prosecution to establish its entire case and have adduced the aforesaid evidence for the purpose of corroboration to establish the charge of conspiracy. We shall examine the evidence adduced by the prosecution in this regard in detail.
Test of bias
It is well settled that the test of bias is not whether an action was done with bias, but whether there was a reasonable apprehension of the real likelihood of bias. This position has been reiterated in several decisions of the Hon’ble Supreme Court including in:
(i) Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388;
(ii) P.K.Ghosh v. J.G.Rajput, (1995) 6 SCC 744;
(iii) State of Punjab v. Davinder Pal Singh Bhullar, (2011) 14 SCC 770; and
(iv) Ranjit Thakur v. Union of India (1987) 4 SCC 611;
It is also clear that the apprehension of bias must be judged from a reasonable and average person’s point of view and not on a mere apprehension of any whimsical person. A mere suspicion of bias is not sufficient, but the apprehension must be reasonable.
Nature and scope of granting pardon
The Hon’ble Supreme Court in several cases had occasion to consider the nature and scope of the proceedings relating to the grant of pardon.
- In Lt. Commander Pascal Fernandes vs. State of Maharashtra reported in (1967) SCC OnLine SC 37 (para.15),
- Similarly in Jasbir Singh v. Vipin Kumar Jaggi and others, reported in (2001) 8 SCC 289 (paras. 18 & 19),
- So also in Senthamarai v S.Krishnaraj and another, reported in (2002) 1 CTC 143, a learned Single Judge of this Court has held as follows:
“12. It is settled law as laid in Faqir Singh v. Emperor, AIR 1938 PC 266, M.M. Kochar v. Stale, 1969 Crl. L.J.45 that the co-accused cannot question the act of granting pardon by the Court to one of the accused, as that is an internal matter of administration, which cannot affect the position of the accused or the approver”.
The special judge cannot take the task of determining the propriety of tendering pardon – Yes (Sessions Judge includes Additional Sessions Judge as well)
From the above decisions, it would be clear that it is for the prosecution to decide whether particular evidence is required though the power of grant of pardon is vested in the Court. Where the prosecution thinks that the tendering of pardon may be in the interest of a successful prosecution, the Court has to indubitably agree to the tender of pardon and the Special Judge cannot take on himself the task of determining the propriety of tendering pardon.
Therefore, considering the scope of pardon proceedings and the nature of enquiry that is contemplated, which has been clarified in the aforesaid decisions, we are of the view that the grant of pardon would not be vitiated only because of the apprehension of real likelihood of bias. But bias would certainly be a factor to be considered while appreciating the evidence of the approver.
Further, the time chosen by the approver and his belated examination would definitely have a bearing on the appreciation of the evidence of PW12. In Narayan Chetanram Chaudhary and Another v. State of Maharashtra reported in (2000) 8 SCC 457, the Hon’ble Supreme Court held that delay in recording the statement of the approver could not be a ground to reject the testimony of the accomplice, however, the delay has to be kept in mind as a measure of caution for appreciating the evidence of the accomplice. The relevant portion reads as follows:
“29. Such is not the position in the instant case. Otherwise the words of the section “at any time after commitment of the case but before judgment is passed” are clearly indicative of the legal position which the Legislature intended. No time limit is provided for recording such a statement and delay by itself is no ground
to reject the testimony of the accomplice. Delay may be one of the circumstances to be kept in mind as a measure of caution for appreciating the evidence of the accomplice…”
Whether Additional District and Sessions Judge has power to grant pardon? Sessions Judge includes Additional Sessions Judge
The next attack on the pardon proceedings by the defence is that, the Additional District and Sessions Judge has no power to grant a pardon, since he/she is not the Judge to whom the commitment was made.
Section 307 of the Cr.P.C., reads as follows:
“307. Power to direct tender of pardon: At any time after commitment of a case but before judgment is passed, the Court to which the commitment is made may, with a view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person.”
The provision makes it clear that after the case is committed, the Court to which the commitment is made may tender a pardon. Section 193 of Cr.P.C. says that no Court of Session shall take cognizance unless the same has been committed to by a Magistrate. Section 9 of Cr.P.C. reads as follows:
“section 9 Cr.P.C”
Section 9(2) of the Cr.P.C., stipulates that the Court of Session has to be presided by a Judge appointed by the High Court.
Section 9(3) of the Cr.P.C., stipulates that the High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session.
Section 194 of the Cr.P.C., provides for trial by an Additional Sessions Judge or an Assistant Sessions Judge of cases that are made over to him by the Sessions Judge.
The object of Section 307 of the Cr.P.C., is to confer power to tender pardon on the Court to which the commitment is made with a view to obtaining, the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, during trial. It deals with the power of the Court to which the case is committed as opposed to the power of the committal Magistrate to grant pardon under Section 306 of the Cr.P.C. This distinction in these two provisions is mainly with regard to the stage at which, pardon is sought for. That would not mean that a Court of Sessions, to whom the commitment is made alone has the power to grant pardon. The Additional Sessions Court and the Assistant Sessions Court, are empowered to exercise all the powers of the Court of Session with respect to cases made over to them.
To restrict the power under Section 307 Cr.P.C., only to the Court of Session and not to the Additional Sessions Judge and the Assistant Sessions Judge to whom the case is made over, would be in violation of the plain language of two provisions viz., Sections 306 and 307 of the Cr.P.C., and the other provisions such as Sections 9 and 194 of the Cr.P.C.
Therefore, for the reasons stated above, we are in agreement with the Division Bench of the Calcutta High Court, referred above. That apart, as stated earlier, the Hon’ble Supreme Court had observed in Abdul Mannan’s case [cited supra] that the Sessions Judge, includes the Additional Sessions Judge as well.
Sessions judge to grant pardon only on the condition set out in section 306 (i) CrPC
Further, it is well settled that while granting pardon under Section 307 of the Cr.P.C., the Sessions Judge has to grant pardon only on the same condition set out in Section 306 (i) and not the other conditions set out in sub-clauses (ii) to (v) of Section 306 of the Cr.P.C. This position has been reiterated by the Hon’ble Supreme Court in many cases. In (2009) (6) SCC 498 [Santosh Kumar Satishbhushan Bariyar v. State Of Maharashtra], the Hon’ble Supreme Court has held as follows:
“34. Sub-section (4) of Section 306 is procedural in nature. It is necessary to be followed only by a Magistrate as he would not have any jurisdiction to try the case himself. The learned Sessions Judge before whom the case is committed for trial must be informed as to on what basis pardon had been tendered. Section 307 does not contain any such condition. The power of the learned Sessions Judge is independent of the provisions contained in Section 306 thereof. The condition mentioned in Section 307 refers to the condition laid down in sub-section (1) of Section 306, namely that the person in whose favour the pardon has been tendered, will make a full and true disclosure of the whole of the circumstances within his knowledge. The power of a Sessions Court is not hedged with any other condition.”
Pardon proceedings must be marked as exhibit
As regards the other submission that the pardon proceedings have not been marked as an exhibit, we are of the view that pardon proceedings ought to have been exhibited, but, not doing so would not vitiate the pardon proceedings. The accused were supplied with the copies as could be seen from the record and therefore, that by itself would not be a ground to eschew the approver’s evidence.
There cannot be any secrecy in any proceedings
The other point raised by the defence is that the Sessions Judge ought not to have recorded the statement under Section 164 of the Cr.P.C., and in any case, it ought not to have been done so in her chamber. Section 307 of the Cr.P.C., as stated earlier does not provide for the recording of statements under Section 164 of the Cr.P.C. Therefore, in our view, the recording of Section 164 Cr.P.C., by the Sessions Court would not be of any significance, in so far as the appreciation of the approver’s evidence is concerned. However, we are constrained to observe that there was no necessity for the Sessions Judge to record Section 164 Cr.P.C. statements in her chamber, as there cannot be any secrecy in any proceedings.
Appreciation of approver’s evidence in the settled law
In Major EG Barsay v. State of Bombay reported in 1961 SCC Online SC 30 = AIR 1961 SC 1762, the Hon’ble Supreme Court held that the evidence of the approver and the corroborative pieces of evidence need not be considered in two different compartments. The reliability of an approver’s evidence, though not exclusively would depend upon the corroboration by unimpeachable evidence. The relevant observations are extracted below.
“38. …But in most of the cases the said two aspects would be so interconnected that it would not be possible to give a separate treatment, for as often as not the reliability of an approver’s evidence, though not exclusively, would mostly depend upon the corroborative support it derives from other unimpeachable pieces of evidence. We must also make it clear that we are not equating the evidence of Lawrence with that of an approver; nor did the Special Judge or the High Court put him exactly on that footing.…”
This was reiterated in State of Andra Pradesh v. Cheemalapati Ganeshwaran Rao and Another reported in AIR 1963 SC 1850.
In Kanbi Karsan Jadav v. State of Gujarat reported in 1962 Supp (2) SCR 726, the Hon’ble Supreme Court held that the corroboration need not be only direct evidence and that the nature of corroboration would depend on the facts and circumstances of each case. It has also been held that in State of Tamil Nadu vs. Suresh and Another reported in (1998) 2 SCC 372 and Sitaram Sao @ Mungeri v. State of Jharkhand reported in (2007) 12 SCC 630 if the approver’s evidence is credible and cogent, the Court can record a conviction even on the uncorroborated testimony of an accomplice.
In K. Hasim v. State of Tamil Nadu reported in (2005) 1 SCC 237 it has been held that, if corroboration is required for every detail of the crime spoken to by the accomplice, his evidence would not be essential to the case, and therefore it is not necessary that every detail spoken to by the approver has to be corroborated.
In A.Devendran v. State of Tamil Nadu reported in (1997) 11 SCC 720, the Hon’ble Supreme Court after analysing the various decisions on this aspect had held as follows:
“…..There cannot be any dispute with the proposition that ordinarily an approver’s statement has to be corroborated in material particulars. Certain clinching features of involvement disclosed directly to an accused by an approver must be tested qua each accused from independent credible evidence and on being satisfied the evidence of an approver can be accepted. What is the extent of corroboration that is required before the acceptance of the evidence of the approver would depend upon the facts and circumstances of the case. The corroboration required, however, must be in material particular connecting each of the accused with the offence. In other words the evidence of the approver implicating several accused persons in commission of the offence could not only be corroborated generally but also qua each accused. But that does not mean that there should be independent corroboration of every particular circumstance from an independent source. All that is required is that there must be some additional evidence rendering it probable that the story of the compliance is true. Corroboration also could be both by direct or circumstantial evidence.”
The above observations of the Hon’ble Supreme Court have been made by not only taking into consideration the earlier judgments of the Hon’ble Supreme Court, but also the provisions of the Indian Evidence Act viz., Section 133 and illustration (b) to Section 114 of the Indian Evidence Act, which reads as follows:
“(b) that an accomplice is unworthy of credit, unless he is corroborated in material particulars;
as to illustration (b) — A, a person of the highest character is tried for causing a man’s death by an act of negligence in arranging certain machinery. B, a person of equally good character, who also took part in the arrangement, describes precisely what was done, and admits and explains the common carelessness of A and himself;”
We may also note yet another provision in Indian Evidence Act, which relates to the admissibility of questions tending to corroborate the evidence of relevant fact. Section 156 of Indian Evidence Act, reads as follows:
156. Questions tending to corroborate evidence of relevant fact admissible:- When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred, if the Court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact which he testifies.
Illustration
A, an accomplice, gives an account of a robbery in which he took part. He describes various incidents unconnected with the robbery which occurred on his way to and from the place where it was committed.
Independent evidence of these facts may be given in order to corroborate his evidence as to the robbery itself.
The illustration to the provision suggests that in a case of robbery, if an accomplice describes various incidents, unconnected with robbery which occurred on his way to and from the place where it was committed, independent evidence of those facts may be given to corroborate his evidence as to the robbery itself.
Approver’s corroboration must be not only relating to the offence but also to the role played by each accused
Therefore, the nature of corroboration that could be required for an approver’s evidence would depend on the facts and circumstances of each case. The corroboration must be of such a nature as to render the story of the accomplice believable. The corroboration has to be with regard to the version of the approver, not only relating to the offence, but also to the role played by each of the accused. It is no doubt true that there need not be corroboration on all aspects spoken to by the approver. If such evidence is available, the recording of the evidence of the approver would be nugatory. However, the corroboration must be of such a nature, which would not only make the version of the approver relating to the crime, but also the role played by each of the accused in the crime, reliable. For instance, in a case of conspiracy, there must be evidence to corroborate the existence of conspiracy. The approver may speak of the involvement of accused in the conspiracy. The nature of the corroboration has to be such that it would make the Court believe that the version of the approver qua each of the accused is also true.
Approver’s confession to the police can be used to contradict as it also hit under section 162 Cr.P.C
The learned Special Public Prosecutor sought to make an innovative submission that the confession to the police which is inadmissible, cannot be used even for the purpose of contradiction, as that statement cannot be treated as a true statement. The learned Special Public Prosecutor in his written submissions, gave an illustration which reads as follows:
“For an illustration, an accused makes a statement to a police that on the date of occurrence, he along with the other accused were in U.S. But in his evidence as approver, he had claimed that he along with the other accused very much present in SOC in India. The travel records confirms that his statement that he was in India is true. In such state of affairs, the positive evidence of the approver on oath that, he was in India during occurrence along with others cannot be permitted to be dislodged in the light of his former false statement.”
The question as to whether the confession to police has to be treated as a statement recorded under Section 162 of the Cr.P.C., is no longer res integra. In Aghnoo Nagesia v. State of Bihar, reported in AIR 1966 SC 119, the Hon’ble Supreme Court has held as follows:
“para.9”
Therefore, the submission of the learned Special Public Prosecutor that the confession cannot be used for contradiction, is rejected. Section 162 Cr.P.C., would take within its fold the confession made to the police officer during the investigation.
Omission and contradiction between approver’s statement and deposition may discredit the approver
The learned Special Public Prosecutor relied upon the judgments in Mina Adhikary V. State and Another reported in 1988 SCC Online Cal 151 and Shyamal Ghosh v. State of Bengal reported in (2012) 7 SCC 646 in support of his submission, that even assuming that the confession given to the police by the approver can be treated as a statement under Section 161 Cr.P.C., merely because he had made certain statements contrary to the substantive evidence in Court, it cannot be said that the substantive evidence is false. There cannot be any doubt about such a proposition. However, the question is whether the omissions and contradictions discredit a witness and make the substantive evidence unreliable. This, again, would depend on facts and circumstance of each case. In a given case, the omissions and contradictions would be of such a nature which would not discredit the witness. Therefore, the nature of omissions and contradictions and whether they discredit the witness are factual aspects and there cannot be any precedent in such matters.
Approver’s evidence contains contradictions and improvements on the very material aspect
The above contradictions and improvements would show that PW12 had stated vital facts for the first time, to suit the prosecution case. One major improvement in our view is that in the police confession, his version was that he had no direct knowledge of the conspiracy. However, in his deposition, he claimed direct knowledge of the conspiracy and also gave details of the conversations between the conspirators. This in our view is an improvement on a very material aspect.
Conspiracy
The prosecution relies on direct evidence to establish conspiracy through witnesses PW53, PW4 and PW5 besides the evidence of PW12. That apart, prosecution seeks to establish the conspiracy through other circumstances viz., motive, association of the accused with one another and facts such as taking of picture of Dr. Subbiah, buying of bike, money trail from A3 and A1 to A5 and to the assailants, etc. We now deal with the evidence of the witnesses, who are said to have overheard the conspiracy amongst the accused.
Conspiracy witness PW 53 was an attempt introduced by the prosecution which failed to inspire confidence
PW53 has stated that he did not disclose his knowledge of the conspiracy to anyone since his wife told him not to do so. What made PW53 to ignore his wife’s advice when he disclosed it to PW56, the investigating officer is not clear. Further, PW53 had told about the alleged money transactions in his second statement on 10.02.2014, which is admitted by PW57. That apart, admittedly, PW53 was a total stranger to the other accused except A5, who had allegedly participated in the conspiracy meeting. No Test Identification Parade was conducted to identify the other accused. Further, PW53 was also unable to identify A3 in Court. Though PW53 admitted that he had weak eyesight, the fact that he had not seen the other accused earlier, his identification of the other accused in Court for the first time after seven years, is highly suspicious, to say the least. PW53, is a chance witness and in such circumstances, it ought to have been established that he was in fact a client of A5, especially when it is an admitted fact that he was residing nearly 75 kms away from A5’s house. There is inherent improbability in the versions of PW53 and no prudent person would accept his version as true. Neither PW53’s version as to how he told the police nor PW56’s explanation as to how he discovered PW53, is plausible. Further his statement reached the Court on 16.08.2015. PW53 for the first time in his deposition before the Court has stated that the conspiracy took place in the 1st week of July which was not stated even in his belated statement before the police. It is clear from the reading of PW53’s evidence that the prosecution has introduced PW53 as an afterthought. Above all, the prosecution case that the accused conspired to commit the offence of murder in the presence of a stranger who could hear even the minute details of the conversation, is a desperate attempt to introduce witness to suit their case. The version that the accused conspired in such a manner that a stranger could hear the conversation is opposed to common sense and logic. For all the above reasons, PW53, in our view is unreliable.
Chance witness has to justify the presence
Here again the prosecution’s version that the accused discussed the conspiracy in the presence of PW4 and PW5 who are strangers is inherently improbable. Further, It is well settled that a chance witness has to justify his presence and when he does not do so, to the satisfaction of the Court, his testimony be rendered unreliable. Besides the inherent improbability in the versions of PW4 and PW5, their belated examination, the non explanation or illogical explanation for their belated examination by the investigating officer renders their evidence worthless. In our view the conduct of the investigation in introducing such witnesses has to be condemned. It defies common sense and logic, to say the least. Believing such a witness would be an insult to the criminal justice system.
Explanation to the money transaction was given through defence witness though they are listed as the prosecution witnesses
The money transactions are not disputed by the defence. It is the prosecution case that these money transactions between the accused and the transfer of money from A5 to DW2 were meant for distribution to the assailants. Though DW2 was examined during the investigation, the prosecution chose not to examine him as a witness. If DW2 was used by A5 to distribute the money for the assailants, he ought to have been made an accused. If the prosecution felt that DW2 was not privy to the conspiracy, they ought to have examined him to prove the circumstances, under which the money was sent to him and why he had handed over the same to A6, his brother-in-law. On the contrary, the defence chose to examine him as DW2.
DW2 in his deposition would state that A5 had been sending money for missionary work and to help youngsters since 2012 and in fact, A5 had sent money even in 2014. This was also admitted by the prosecution as could be seen from the exhibits marked especially the statement of accounts of DW2, which was marked as Ex.P50.
As stated earlier, the prosecution case is definite that money was given by DW2 to A6 and the assailants which was witnessed by PW37. We have held that PW37 is a totally unreliable witness. When the fact of the distribution of money has not been established by the prosecution, merely because there are inconsistent explanations, which in our view would not lead to the only conclusion that the money was meant for assailants and therefore, would not be an additional link in the chain of circumstances.
Defence witness is more reliable than prosecution witness
Further, as rightly pointed out by the learned defence counsel DW2’s evidence is more reliable than PW37. The defence witnesses are entitled to equal treatment and the evidence of the witness is not judged by whether he supports the prosecution or the defence. The defence is entitled to produce their witnesses and if those witnesses are reliable, there is no reason why they should be disregarded. The Hon’ble Supreme Court in State of Haryana Vs. Ram Singh reported (2002) 2 SCC 426 held as follows:
”19. …… Incidentally, be it noted that the evidence tendered by defence witnesses cannot always be termed to be a tainted one — the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution. Rejection of the defence case on the basis of the evidence tendered by the defence witness has been effected rather casually by the High Court. Suggestion was there to the prosecution witnesses, in particular PW 10 Dholu Ram that his father Manphool was missing for about 2/3 days prior to the day of the occurrence itself — what more is expected of the defence case: a doubt or a certainty — jurisprudentially a doubt would be enough: when such a suggestion has been made the prosecution has to bring on record the availability of the deceased during those 2/3 days with some independent evidence. Rejection of the defence case only by reason thereof is far too strict and rigid a requirement for the defence to meet — it is the prosecutor’s duty to prove beyond all reasonable doubts and not the defence to prove its innocence — this itself is a circumstance, which cannot but be termed to be suspicious in nature”.
A similar view was taken with regard to appreciation of defence witnesses in (i) State of Haryana Vs.Ram Singh reported in (2002) 2 SCC 426 (ii) Dudh Nath Pandey Vs. State of U.P., reported in (1981) 2 SCC 166 and (iii) State of U.P. vs. Babu Ram reported in (2000) 4 SCC 515.
Prosecution did not prove the distribution of money to the assailants through direct witness
Thus to sum up, we are of the view that the prosecution which sought to prove the distribution of money to the assailants through a direct witness-PW37 has failed to do so. That apart after examining DW2, Maheshwaran and Babu during the investigation, there is no reason why they were not examined during the trial. PW12 himself had not stated anything about the alleged money distribution in the presence of PW37 by DW2 in his police confession. Considering the above facts and the fact that there were money transactions between A5 and DW2 between 2012 and 2014, we cannot assume that the money transactions were pursuant to the conspiracy and were meant for distribution to the assailants.
Extra Judicial confession was not corroborated and become doubtful
The next circumstance relied upon is the Extra Judicial Confession, which is said to have been given by A6 to P.W.7. The prosecution had not established that P.W.7 was a close confidante of A6. P.W.7 himself admits that he had hardly spoken to A6 and would have spoken to him, twice or thrice before he met A6 on the day when the alleged confession was made to him. Therefore, the prosecution case that A6 confessed to P.W.7 by stating that A5 had promised to give Rs.10,00,000/- but did not keep up his promise is unbelievable. In any case, it is not the prosecution case that A6 was offered the said amount of Rs.10,00,000/- by A5. Further, the Extra Judicial Confession is a weak piece of evidence, even as against the maker namely A6 and it has to be corroborated. There is no corroboration for the alleged Extra Judicial Confession which itself is highly doubtful. That apart, it is also a settled principle of law that as against the co accused, this Extra Judicial Confession can be used only to lend assurance to other evidence on record and this position of law is fairly settled.
The Law relating to the appreciation of Extra Judicial Confession given to strangers has been settled by the Honourable Supreme Court in several cases. It will be useful to refer to the following observation of the Honourable Supreme Court in Sahadevan Vs. State of Tamil Nadu reported in 2012 SCC 6 SCC 403 [para. 16].
RTO website’s document was not proven by examining the RTO
The next circumstance relates to the fact of A7 attending A5’s wedding; his giving his car to A5 for his use in the wedding; and selling another car at half the price to A5, to show the association between A5 and A7. The above facts are sought to be established firstly by a photo album. The said photo album was disbelieved by the Trial Court and rightly so as the photographer was not examined and no 65B certificate was produced. That apart, it is the prosecution case that the car belonged to A7 and they marked Ex.P166, to show that TN 72 AX 5106 was in the name of G.Maheshwari. Firstly, the said document was said to have been downloaded from the RTO website. No person from the RTO was examined by the prosecution. The registration details have thus not been proved. The relationship of G.Maheshwari, with A7 was also not established. The sale of car is also not established. Ex.P167 relied upon by the prosecution is again the printout of the website and such document would not have any relevance unless it is marked and proved in accordance with the Indian Evidence Act. Therefore, the case of the prosecution that a car was given to A5 by A7 at his wedding cannot be taken as a circumstance to establish the conspiracy.
Investigation Officers have not collected but created the evidence to the suit their case
When once the tendency of the investigation to plant witnesses, whose versions are artificial is revealed, the fabric of the prosecution case would collapse. We are constrained to say that the Investigating Officers involved in this case, have not collected evidence but created evidence to suit their case.
The manner in which the witnesses have been examined belatedly, the illogical explanation given by the witnesses and the Investigating Officers as to how the witnesses were discovered, the delay in despatch of the statements to the learned Magistrate and the improvements made by P.W.12 endorses our view.
Analysing the judgments submitted by the counsel with evidence
Delay in examination of witnesses – fatal
In the cases cited by the prosecution, the delay in the examination of witnesses was not considered by the Court as a reason for rejecting the testimony of the witnesses, since the explanation offered by the investigating officer to justify the delay in the examination was plausible and reasonable. In the following cases, the Hon’ble Supreme Court found the delay was sufficiently explained and therefore, the version of the prosecution witness cannot be suspected.
Ganeshlal v. State of Maharashtra, reported in (1992) 3 SCC 106 (para.10); Vijaybhai Bhanabhai Patel v. Navnitbhai Nathubhai Patel and others, reported in (2004) 10 SCC 583 (para.4); State of U.P. v. Satish, reported in (2005) 3 SCC 114 (para.18); Santhosh Kumar Singh v. State through CBI, reported in (2010) 9 SCC 747 (para.50); Himanshu Mohan Rai v. State of Uttar Pradesh and Another, reported in (2017) 4 SCC 161 (para.14);
Delay in examination of witnesses – not fatal
Similarly, in the cases cited by the defence, the Hon’ble Supreme Court held that the delay in the examination destroys the credibility of the witness.
State of Orissa v. Brahmnanda Nanda, reported in (1976) 4 SCC 288 (para.2); Mangamma Avva v State of AP, reported in (1995) Supp (2) SCC 43 (para.17); Paramjit Singh v. State of Punjab, reported in (1997) SCC (Cri) 156 (para.7); Kantilal alias K.L.Gordhandas Soni v. State of Gujarat, reported in (2002) 10 SCC 39 (para.8); State of Orissa vs. Brahmnanda Nanda reported in (1976) 4 SCC 288 (para.2); Rajeevan v. State of Kerala, reported in (2003) 3 SCC 355 (paras. 12,13 & 14); Thulika Kali v. State of Tamilnadu, reported in (1972) 3 SCC 393 (para.12)
From the above judgments, it would be clear that the delay in the examination of witnesses may not be a reason to reject the testimony of the witness, provided the investigating officer and the witness offered plausible explanation for the delay. In any case, where there is a delay in the examination of witness, the Courts also have to be cautious in appreciating the evidence, even if some explanation is offered.
As to whether the delay in the examination would affect the credibility of the witnesses would depend on the facts and circumstances of each case. Factually, in the instant case, we find that the delay has not been explained properly and the explanation sought to be given by either the witnesses or the investigating officer as discussed earlier, belies common sense.
The despatch of the statements to the Magistrate belatedly, though the investigation claims prompt examination of the witnesses, would also render the testimony of the witnesses doubtful. In this regard, it would be useful to refer to the observations In Re: Karunakaran and Another Vs. Unknown, reported in 1974 SCC OnLine Mad 287, wherein the Hon’ble Supreme Court held that when there is a delay in despatching the documents, a doubt would arise as to whether the documents came into existence at the time and date mentioned therein. The relevant observation is extracted below.
“para. 28”
Ex.P155 (crucial evidence: CCTV) – Truncated video cannot be used as a document for the prosecution
- PW54, was working as the Deputy Director (Digital Forensics) in a private lab called the ‘Truth Lab’. M.O.9 is the hard disc that was seized from the Shreshta Subhashree apartments, where PW25 was the Association President. M.O.9 was sent for forensic examination to the Government Forensic Science Laboratory for analysis. However, the hard disc was returned as the forensic science lab found that the files could not be opened without the DVR. The relevant document of the forensic science lab was marked as Court Document i.e, Ex.C5.
- The forensic science department returned the hard disc on 23.10.2013 to the Court. Thereafter, on 10.03.2014, the investigating officer addressed a letter to the learned XXIII Metropolitan Magistrate, Saidapet, stating that the accused had acted and demonstrated as to how they committed the murder, which was recorded by a digital video camera and a CCTV camera at the scene of the occurrence and that the incident that was captured in the CCTV camera stored in a hard disc may be sent to Truth Labs, with a request to find out if the accused involved in the murder and in the demonstration video, are the same.
- The learned XXIII Metropolitan Magistrate, Saidapet, acceded to the request and forwarded the hard disc-M.O.9 and two CDs viz., M.O.34 and M.O.14 along with two photographs of the accused, with the following query.
“Whether the accused involved in the murder (i.e.) video motion recorded by the CCTV camera in hard-disc S.No.9VP8CCVV and the persons shown in model video recording are same?”
These communications have been marked as Ex.C1 series.
- PW54 had compared these two videos and given a report stating that the gait pattern of the individuals found in M.O.9-hard-disc is similar to the gait pattern of individuals found in the demonstration video. This report was marked as Ex.P157 and the said report is dated 28.05.2014. In the report PW54 had stated that she had taken a backup from the hard disc-M.O.9 in an USB pen drive using the menus and options provided in the ’embedded software provided in the hard disc’. However, PW54 had not sent the said backup copy along with the report in May 2014. During the course of trial, the prosecution filed an application before the trial Court, praying for a direction to PW54 to produce the backup pen drive, with sufficient copies. This application was allowed on 05.08.2019 and after the order was communicated to PW54, she had handed over the backup pen drive marked as Ex.P155 with 10 copies to the investigating officer with a 65-B certificate, marked as Ex.P156. The details that we have just narrated above, are found in Ex.P156.
- Ex.P155 does not contain the entire footage. It only contains the portions where the accused are said to be seen. This portion corresponds to the time chart prepared by the investigating officer and sent along with the requisition made to the Court for sending the hard disc and other documents for gait analysis. In our view in the absence of complete footage, Ex.P155, which is truncated, cannot be used by the prosecution, as a document to prove the involvement of the accused.
- It may be relevant to point out here that PW57 had stated in the cross examination that after the occurrence and before collecting the hard disc from Shreshta Subhashree apartments, he copied the footage on a pen drive through a Constable by name Parthiban, who was not examined by the prosecution. This pen drive was neither sent to the Court nor marked by the prosecution. However, strangely, when the forensic science lab could not retrieve the video due to the absence of DVR, it is not known as to how, PW54 alone could take a backup copy, that too a truncated version and store it in Ex.P155. The fact that cloned copies also could not be made, raises doubt as to whether PW54 had taken the backup copy from the hard disc, especially in the light of PW57’s evidence that he was in possession of a pen drive taken earlier, immediately after the occurrence.
For all the above reasons, we are of the view that it is impossible to hold from Ex.P155 that A8, A9 and PW12 were involved in the assault. The prosecution was aware that Ex.P155 even otherwise, cannot be used to prove the involvement of A8, A9 and PW12 as it is not clear enough for such identification and that is probably the reason why they chose to compare the gait pattern with the demonstration video.
Asking the accused to reenact the occurrence would amount to becoming a witness against himself
However, the most relevant question is whether the investigating officer has a right to ask the accused to reenact the occurrence and as to whether the evidence relating to reenactment, would be admissible in law.
In State of Bombay vs. Karthi Kalu Oghad and Others, reported in AIR 1961 SC 1808, a eleven-Judge Bench of the Hon’ble Supreme Court held that when an accused person is compelled to give his specimen handwriting, signature, impressions of his fingers, palms, or foot to the investigating officer on the orders of the Court for comparison, it would not amount to testimonial compulsion violating Article 20 (3) of the Constitution of India.
In that case, the Hon’ble Supreme Court made a distinction between statements that reveal personal knowledge of relevant facts and evidence that assists the investigating officer or the Court to prove a fact. Therefore, in that case, it was held that asking for impressions of fingers, palms, or feet and specimen handwriting, would not be included within the expression ‘to be a witness’.
The learned Special Public Prosecutor relied upon the judgment of the Hon’ble Supreme Court in Ritesh Sinha v. State of UP [AIR 2019 SC 3592], in support of his submission that though there is no specific statutory provision relating to the power of the police or Magistrate to direct the accused to demonstrate the occurrence, the police or the Magistrate would be empowered to do so. In the said case, the Hon’ble Supreme Court held that in the absence of explicit provision, the Magistrate had the power to order a person to give voice sample for the purpose of investigation. But in our view, obtaining voice sample is different from asking the accused to reeanct the occurrence. Asking the accused to reenact the occurrence would amount to personal testimony. By reenacting the occurrence, the accused conveys information based on his personal knowledge and thereby becomes a witness against himself. It is not merely an identification data. For instance, if the accused is simply asked to walk, which would enable comparison of his gait appearance, he does not convey any information based on personal knowledge and it would be in the realm of ‘identification data’. However, reenacting the occurrence certainly leads to revelation of facts within personal knowledge. Therefore, we are of the view that asking the accused to reenact the occurrence would amount to becoming a witness against himself, thereby offending Article 20(3) of the Constitution of India. That apart, the reenacting of the occurrence would amount to giving a confession to the police or a confession while in police custody. Therefore, it has no evidentiary value and it cannot be used for comparison with the video containing the recording of the actual occurrence, if any.
Therefore, in our view, besides the other infirmities in the comparison of gait patterns, which we have listed below, we find that the demonstration video is of no value, as it is hit by Sections 25 and 26 of the Indian Evidence Act. It is no doubt true that the prosecution can obtain voice samples, specimen handwriting, etc., including asking the accused to stand or walk for comparison, as that by itself would not incriminate the accused. But, since reenacting the occurrence tends to incriminate the accused, it is hit by Sections 25 and 26 of the Indian Evidence Act, apart from infringement of Article 20(3) of the Constitution of India.
For the above reasons, we are of the view that the demonstration video is inadmissible. Therefore, the comparison said to have been made by PW54 consequentially would have no value and has to be discarded.
Above all, we find that in the absence of proof that the DVR was really scrapped, as we have discussed above, the action of the investigating officer in sending the hard disc – M.O.9 to a private lab even with the approval of the Magistrate, also raises suspicion. This suspicion is not without basis. The Hon’ble Supreme Court had on more than one occasion, commented adversely upon the investigating officer in seeking the assistance of private labs for investigation purposes and more particularly, in the case of ‘Truth Labs’. It would be useful to refer to the observations of the Hon’ble Supreme Court at paragraph Nos.12 and 42 of the judgment in Mariam Fasihuddin and Another v. State by Adugodi Police Station and Another, reported in 2024 SCC OnLine SC 58, which are extracted hereunder.
“………..”
Similar observations were made by the Hon’ble Supreme Court in Canara Bank v. United India Insurance Co. Ltd., and Others, reported in 2020 (3) SCC 455 and by this Court in Crl.R.C. (MD) No.35 of 2016 [K.Venkateshwaran v. S.Baskaran and 3 others decided on 17.02.2021]. Both cases relate to obtaining an opinion from this particular lab and the Hon’ble Supreme Court and this Court has deprecated the said practice.
Dispense of eye witness is fatal to the prosecution
It is no doubt true that the prosecution has the choice to dispense with the examination of some witnesses, if the witnesses are unreliable. However, in this case, eyewitnesses who were examined on the same day and whose statements were despatched to the Court immediately were dispensed with and witnesses examined later and statements despatched with enormous delay have been preferred by the prosecution, for the reasons best known to them. Similarly, PW3’s statement was recorded only on 25.01.2014 and reached the Court on 13.02.2014. It is pertinent to point out here that the accused A7 to A9 were arrested on 29.01.2014 and the statement of this witness was dispatched to Court two weeks after that.
Chance witness did not explain as to his presence at the soc
Further, PW3, a chance witness has not given plausible explanation for his presence at the scene of the occurrence at 5.00 p.m., especially on a Saturday, when the banks would not be normally functioning at that time. When the genesis itself is doubtful in as much as, PW3 was examined belatedly; and his friend Gopinath, who had admitted that he know the deceased was not examined by the prosecution; it would be highly unsafe to rely upon the testimony of PW3.
After observing that the test identification parade was wrongly conducted by the Magistrate the Hon’ble High Court has explained How to conduct the Test Identification parade
The Test Identification Parade was also not conducted in accordance with the guidelines laid down by this Court in several decisions. PW51, the learned Magistrate had deposed in his evidence that all three accused viz., A8, A9 and PW12 were made to stand together along with the dummies. He had also admitted that all three accused were different in their physical structure, appearances and complexion. However, if all of them were made to stand together with the dummies, then the requirement to have identical people as dummies is obviously violated. The dummies could not have been identical with all three accused. Ex.P151, the report would indicate that in the identification parade, the accused were made to stand along with 29 other dummies and the witnesses were made to identify the accused. This procedure adopted by the learned Magistrate is palpably wrong, in the light of his admission that all three accused were different in their complexion, physical structure and appearance.
The learned Magistrate ought not to have mixed all three accused along with 29 other prisoners and conducted the Test Identification Parade. The very object of Test Identification Parade is defeated by such a procedure adopted by the learned Magistrate. The learned Magistrate ought to have mixed the accused along with the prisoners who are of the same age group and have the same physical features such as size, weight, colour, beard, scars, marks, bodily injuries etc., and conducted it separately for each of the accused. This would ensure that the Test Identification Parade is not just an empty formality. The Hon’ble Supreme Court in Gireesan Nair v. State of Kerala, reported in (2023) 1 SCC 180, held as follows:
“33. It is significant to maintain a healthy ratio between suspects and nonsuspects during a TIP. If rules to that effect are provided in Prison Manuals or if an appropriate authority has issued guidelines regarding the ratio to be maintained, then such rules/guidelines shall be followed. The officer conducting the TIP is under a compelling obligation to mandatorily maintain the prescribed ratio. While conducting a TIP, it is a sine qua non that the non suspects should be of the same age group and should also have similar physical features (size, weight, color, beard, scars, marks, bodily injuries etc.) to that of the suspects. The concerned officer overseeing the TIP should also record such physical features before commencing the TIP proceeding. This gives credibility to the TIP and ensures that the TIP is not just an empty formality (Rajesh Govind Jagesha v. State of Maharashtra and Ravi v. State [(1999) 8 SCC 428].
34. It is for the prosecution to prove that a TIP was conducted in a fair manner and that all necessary measures and precautions were taken before conducting the TIP. Thus, the burden is not on the defence. Instead, it is on the prosecution (Rajesh Govind Jagesha v. State of Maharashtra [(1999) 8 SCC 428]).”
The belated examination of PW3 by the investigating officer in January 2014 and the poor explanation given by him for not reporting to the police, besides the above infirmities makes his version totally unreliable.
In view of the unsatisfactory explanation for not sending the statement immediately and for belated examination and in the light of nonexamination of the said Ramalingam and Chakravarthy to prove the presence of PW2, though they were examined as early as on 14.09.2013 throws substantial doubt with regard to the testimony of PW2.
Chance witness judgments
Jarnail Singh and others v. State of Punjab, reported in (2009) 9 SCC 719 (paras. 21, 22 & 23); Puran v. State of Punjab, reported in (1952) 2 SCC 454 (para.4).
The above observation would not only apply to the evidence of PW2 and PW3, but also to other witnesses that we have discussed earlier.
In the light of the above infirmities, we are unable to place any reliance on these two witnesses, even for the purpose of corroboration of the approver’s evidence. It is a settled law that one weak witness cannot corroborate the evidence of another weak witness.
Section 125 Indian Evidence
The Special Public Prosecutor would submit that by virtue of Section 125 of the Indian Evidence Act, the investigating officer cannot be compelled to disclose as to whence he received information. According to Oxford Dictionary, ‘whence’ means ‘from where’. Therefore the investigating officer cannot be compelled to disclose the source of information. However, the investigating officer is bound to disclose the nature of the information which according to him is the further statement given by PW1 and PW13. Neither PW1 nor PW13 had stated as to the nature of information obtained by them, which prompted them to make the further statement to the police about the involvement of A7 to A9 and PW12. In any case, PW1 and PW13 do not enjoy any such privilege. Further, the submissions of the defence that PW1 and PW9 had conducted a private investigation and the investigating officers were mere puppets in their hands, cannot be ignored in the light of the above evidence of PW1, PW9 and PW56.
32. To sum up,
(a) Though the defence had established the reasonable likelihood of bias in the act of grant of pardon to PW12, it would not have the effect of eschewing his evidence. However, it would definitely have a bearing while appreciating his evidence. Therefore, it requires more circumspection and caution than that is usually required for an approver’s evidence, while appreciating PW12’s evidence. Unless PW12’s evidence is corroborated in such a manner as to render his story believable, PW12’s evidence would not be of any avail to the prosecution.
(b) The evidence of witnesses, who spoke about the conspiracy viz., PW4, PW5 and PW53 as stated above, is of no avail to the prosecution for the reasons stated above.
(c) PW2 and PW3, the eyewitnesses also are unreliable for the reasons stated above and it would be highly unsafe to accept their testimony. (d) PW12’s evidence by itself had inherent improbabilities in view of the improvements made by him in the chief examination from what was stated in the confession given to the police. In the absence of any acceptable unimpeachable evidence to corroborate his version, it would be highly unsafe to render a finding of guilt by relying upon PW12’s evidence alone.
(d) PW12’s evidence by itself had inherent improbabilities in view of the improvements made by him in the chief examination from what was stated in the confession given to the police. In the absence of any acceptable unimpeachable evidence to corroborate his version, it would be highly unsafe to render a finding of guilt by relying upon PW12’s evidence alone.
(e) The tendency of the investigating officer to create evidence in the form of witnesses to suit their case as discussed above, also makes it highly unsafe to render a finding of guilt.
(f) The evidence adduced on the side of the prosecution at best leads to a grave suspicion as against some of the accused and does not pass the test of proof beyond reasonable doubt. It is trite that suspicion howsoever high, cannot take the place of proof.
(g) For the above reasons, we are of the view that the prosecution has failed to establish its case beyond reasonable doubt. Therefore, the appellants/accused are entitled to benefit of doubt.
The callous approach of trial court in giving death penalty is set aside and acquitted all the accused
The trial Court had also placed reliance on the decision in Mohammad Ajmal, Mohammad Amir Kasab @ Abu Mujahid Vs. The State of Maharashtra reported in (2012) 9 SCC 1 and attempted to justify the award of death sentence to the accused, who where first time offenders. In the said case, the crime relates to an act of terrorism of the infamous shooting incident in Mumbai, where the accused had killed 166 innocent people, apart from injuring 238 others. It is in this given set of facts that the death penalty was awarded to the accused, even though he was a first time offender. No comparison can be drawn from this case to the present case we are dealing with for sentencing the first time offenders to death penalty. Per contra, had the trial Court further analysed the decisions referred to by us commencing from Bachan Singh to Sundar @ Sundarrajan, by deliberating on the “mitigating circumstances”, possibly the sentence of death penalty would not have crossed its mind. The trial Court seems to have already made up its decisions to impose death penalty without such discussion and without a proper analysis, as held in Bachan Singh’s case (supra) and all the subsequent decisions of the Hon’ble Supreme Court following the same.
We thought it fit to touch upon this aspect also to highlight the callous approach of the trial Court in not only failing to appreciate the evidences before it, but also disregarded the settled legal propositions for imposition of death penalty. Having said so, we do not intend to elaborate any further on this aspect.
34. In the result, all the appeals in Crl.A.Nos.262, 454, 455, 456, 457, 458, 459, 460 and 462 of 2022 are allowed. The conviction and sentence imposed upon the appellants in S.C.No.348 of 2015 dated 04.08.2021 on the file of the learned I Additional Sessions Judge, Chennai, are set aside. The appellants are acquitted of all charges and are directed to be released forthwith, unless their presence is required in connection with any other case. The fine amount, if any, paid by the appellants shall be refunded. Bail bonds, if any, executed shall stand discharged.
The reference in R.T.No.2 of 2021, in terms of Section 366 Code of Criminal Procedure for execution, is answered accordingly.
Party
State Rep. By The Inspector of Police (Law and Order), E4 Abiramapuram Police Station, Chennai – 600 018. (Cr.No.1352 of 2013) … Petitioner/complainant vs. P.Ponnusamy .. Respondent – R.T. No.2 of 2021 and Crl.A.Nos.262, 454, 455, 456, 457, 458, 459, 460 and 462 of 2022 – DELIVERED ON 14.06.2024 – THE HON’BLE MR. JUSTICE M.S.RAMESH and THE HON’BLE MR. JUSTICE SUNDER MOHAN
https://www.mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/1136097
