(Prayer: Criminal Appeal filed under Section 374(2) Cr.P.C., against the judgment of the learned II Additional District and Sessions Judge, Vellore at Ranipet, in S.C.No.176 of 2018 dated 18.02.2021.)
N. Sathish Kumar, J.
1. Challenging the judgment passed by the learned II Additional District and Sessions Judge, Vellore at Ranipet, in S.C.No.176 of 2018, dated 18.02.2021, convicting and sentencing the appellant/A1 as follows, the above Criminal Appeal has been filed:
| Accused | Conviction | Sentence |
| Appellant/A1 | Section 353 IPC | Fine of Rs.2,000/-, in default, three months simple imprisonment |
| Section 302 IPC | Life imprisonment and fine of Rs.5,000/-, in default, six months simple imprisonment | |
| The sentences shall run concurrently. | ||
3. On receipt of the complaint (Ex.P1), P.W.10 (Sub-Inspector of Police) registered an FIR in Crime No.128 of 2014 for the offences under Sections 430, 379, 294(b), 353 and 302 IPC as against A1 and four other unknown persons. The FIR is marked as Ex.P11. Thereafter, he forwarded a copy of the FIR to the Court and also to the superior officials of the Police Department.
4. After registration of the FIR (Ex.P11), P.W.11 (Inspector of Police) took up the investigation and went to the place of occurrence and prepared Observation Mahazar (Ex.P2) and Rough Sketch (Ex.P12) in the presence of P.W.3 and one Rathinam. He also seized a pair of footwear (M.O.1) under Seizure Mahazar (Ex.P3). Then, he conducted inquest over the body of the deceased and prepared Inquest Report (Ex.P13). Thereafter, he sent the body for postmortem through Police Constable Grade-I (P.W.9).
5. P.W.5 (Medical Officer attached to the Government Hospital, Arakkonam), conducted autopsy on the dead body and found the following injuries :
“External injuries:
15 x 4 x 2 cm laceration involving right iliac region with extrusion of intestinal loops seen protruding through wound.
15 x 2 cm laceration in right inguinal region.
Abrasion over Rt. Elbow seen
Fracture Rt. Femur near Rt. Pelvic joint seen with femur head dislocation noted.
Internal Examination: Hyoid bone intact. Spleen – pale. Ribs intact. Heart – pale, empty. Lungs – pale. Liver – pale. Stomach – contained 50 ml of undigested (milk) fluid. Hemoperitoneum with blood clot measuring about 450 – 500 ml. Intestine – distended with gas. Kidney – pale. Bladder – empty. Brain & meninges – On opening of skull, no # of skull bones seen. Brain & meninges intact.”
Accordingly, P.W.5 issued Postmortem Certificate (Ex.P8) opining that the deceased would appear to have died of shock and haemorrhage due to multiple injuries. After postmortem, the dresses on the body of the deceased were recovered by the Police as M.O.2 to M.O.4.
6. P.W.11 (Investigating Officer) in continuation of his investigation, arrested A1 and recorded his confession in the presence of P.W.3 and one Rathinam. The admissible portion of the confession made by A1 is marked as Ex.P4. Based on the confession, the Investigating Officer seized the Tractor with trailer under Seizure Mahazar (Ex.P5). Then, he arrested A2 and recorded his confession and based on the said confession, he seized the two wheeler under Seizure Mahazar (Ex.P6). Thereafter, he examined the witnesses and recorded their statements and handed over the case file to P.W.13 (Inspector of Police). He also sent the accused to the Court for remanding them to judicial custody and also forwarded the Material Objects to the Court.
7. P.W.13, after examining the other witnesses and recording their statements and after collecting various reports, completed the investigation and filed a final report as against A1 and A2 for the offences under Sections 294(b), 353, 506(ii), 302 IPC @ 302, 201 r/w.114 IPC, in P.R.C.No.21 of 2018 before the Judicial Magistrate Court, Arakkonam.
8. On appearance of the accused, 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.176 of 2018 and was made over to the II Additional District and Sessions Court, Vellore at Ranipet, for trial.
9. The trial Court framed the charges under Sections 294(b), 353, 506(ii), 302 and 201 IPC as against A1; and Sections 201 r/w. 114 IPC as against A2. When questioned, the accused pleaded “not guilty”.
10. To prove the guilt of the accused, the prosecution examined P.W.1 to P.W.13, marked Exs.P1 to P13 and produced M.Os.1 to 4.
11. When the incriminating materials were put to the accused and when the accused were questioned under Section 313 Cr.P.C., they denied the same. On the side of the defence, no one was examined nor was any document marked.
12. The trial Court, after appreciating the oral and documentary evidence and materials on record, by its judgment dated 18.02.2021, found A2 not guilty of the offences and thereby, acquitted A2, and also found A1 not guilty of the offences under Sections 294(b), 506(ii) and 201 IPC and acquitted him of the said offences, however, found A1 guilty of the offences under Sections 353 and 302 IPC and convicted and sentenced him as stated supra.
13. Challenging the conviction and sentence qua Section 353 and 302 IPC, A1 has filed the above Appeal.
14. Learned counsel for the appellant would submit that the entire prosecution case is highly doubtful. The presence of P.W.1 at the place of occurrence is also highly doubtful and the accused has been falsely implicated at a later point of time, since the Head Constable died in an accident. It is his contention that there is no trace of the tractor having caused the death. The same has not been established. That apart, the tractor in which the accused travelled was also not produced before the Court. The presence of P.W.1, the so-called eyewitness, is highly doubtful. The accused was not known to him. However, no identification parade was conducted. Though the FIR was originally filed against five persons, the final report was filed against only two persons. No investigation, whatsoever, was conducted in that regard. As regards the involvement of the tractor, the traces of tyre marks have not been established. Therefore, it is his contention that the accused has been falsely implicated due to the death of the police personnel. Hence, the prosecution has not proved the guilt of the accused beyond reasonable doubt.
15. Whereas, the learned Additional Public Prosecutor appearing for the State would submit that P.W.1 is the Sub-Inspector of Police. He had also accompanied the deceased on information received regarding sand theft in the Thakkolam River. A1 was driving the tractor and had run over the attempted to prevent sand theft. P.W.1 has clearly spoken about the role of A1 in causing the death of the deceased. The medical evidence clearly shows that the deceased died due to shock and haemorrhage due to multiple injuries. The FIR was lodged immediately on the same day. Therefore, he would submit that the evidence of the sole eyewitness itself is sufficient to prove the guilt of the accused.
16. In the light of the above submissions, the points that arise for consideration in this Appeal is as to whether the conviction of A1 can be sustained based on the sole eyewitness account of P.W.1 and whether the prosecution has proved the guilt of the accused beyond reasonable doubt.
17. We have perused the entire materials available on record.
18. The entire prosecution case rests on the sole eyewitness account of P.W.1. Absolutely, there is no doubt that a conviction can be based on the evidence of a sole eyewitness, provided such witness inspires confidence of the Court and is reliable and is of sterling quality. If the evidence of the eyewitness creates serious doubt, it would be unsafe to rely upon such evidence.
19. Though P.W.1 would submit that he had accompanied the deceased Head Constable to prevent sand theft, it is his contention that they had reached the spot at 07.15 a.m. on receipt of information regarding sand theft. Absolutely, there is no evidence, whatsoever, in the form of a General Diary or other entries made in the Police Station with regard to the so-called information said to have been received by P.W.1.
20. It is the specific case of P.W.1 that five persons were loading sand in the tractor. At that time, on seeing both P.W.1 and the deceased, except the accused A1, all the other persons left the place. A1 informed his name and threatened the deceased that if he tried to catch him, he would run over him. By saying so, he ran over the deceased with the tractor. Immediately thereafter, the deceased succumbed to the injuries. P.W.1 called the Ambulance and the Ambulance personnel also came there and declared the deceased dead. Thereafter, P.W.1 went to the police station and lodged the complaint, Ex.P1.
21. On perusal of the entire evidence of P.W.1, we are of the view that his evidence is attached with serious artificialities. Though he has stated that he called the Ambulance and the Ambulance also reached the place, the Investigating Officer has not even conducted any investigation in this regard to show that the Ambulance actually reached the place at the relevant point of time.
22. Further, it is the evidence of P.W.1 that he immediately informed the Police Station about the accident and also informed the Inspector of Police, namely, the Investigating Officer. Whereas, the Investigating Officer (P.W.11), in his evidence, has clearly stated that he had not received any such phone call from P.W.1 about the incident. P.W.11 (Investigating Officer) has clearly stated that he came to know about the incident only after the FIR had been registered. This creates a serious doubt.
23. It is relevant to note that, though the FIR was filed at 08.15 a.m. by P.W.10 (Sub-Inspector of Police), according to P.W.10, he had sent the FIR immediately to the Court. Whereas, on perusal of Ex.P11 (FIR), it can be seen that the same had reached the Court only at 04.45 p.m. on 20.07.2014. The undue delay in despatching the FIR has not been explained by the prosecution. Further, P.W.10 feigns ignorance as to through whom the FIR was sent to the Court. Normally, when any FIR is registered in respect of a serious crime, an express FIR has to be sent to the Court with a specific passport issued to the concerned Police Constable to deliver the same to the Court. When a Police personnel himself is the victim, the conduct of the Sub-Inspector of Police, even in not knowing as to through whom the FIR had been handed over and submitted to the Court, creates a serious doubt about the very first information received by the Police itself.
24. Further, it is the evidence of P.W.1 that the Ambulance had already reached the spot. Whether the dead body was lifted to the hospital or remained at the spot, is also not explained. The evidence of the Investigating Officer (P.W.11) indicates that he had conducted the inquest over the dead body at the spot at 10.30 a.m. However, in the Inquest Report, the presence of P.W.1 is never mentioned or shown. Only the names of another witnesses have been indicated. There was no reason as to why he was not cited as one of the witnesses to the inquest report. Of course, the purpose of the inquest is only to find out the cause of death. An eyewitness need not always be a witness to the inquest report. Though this is a settled position, the fact remains that P.W.1 is the sole eyewitness in this case. According to him, he was with the deceased from the very inception. He also belonged to the same Police Station and had been present at the place. He should have been present during the inquest also. However, his presence has not been shown in the Inquest Report nor has he been shown as a witness. This aspect also creates a serious doubt about the presence of P.W.1 at the place of occurrence.
25. Further, it is relevant to note that the Investigating Officer (P.W.11), having visited the spot immediately after receipt of the FIR, had not even taken any photograph of the place of occurrence to show the lie and location of the place where the occurrence took place. This aspect has also not been explained.
26. Further, he had not even made any attempt to find out whether there were any traces of tyre marks on the body of the deceased and whether the same matched with the tyres of the tractor. This aspect had never been investigated by the Investigating Officer. Further, if the occurrence had taken place in the riverbed, the dresses worn by the deceased would also have contained traces of sand. Absolutely, there is no evidence available on record to show that the dresses of the deceased contained any traces of sand along with bloodstains. No investigation, whatsoever, has been made in this regard.
27. Further, the Investigating Officer had also not made any attempt to produce the vehicle/two-wheeler in which the deceased had travelled. No investigation, whatsoever, has been made in order to ascertain whether it was a hit and run case or whether the deceased was actually run over by the tractor. All these aspects had not even been investigated.
28. We are of the view that the investigation has been conducted in a completely mechanical manner without adopting any scientific method. The traces of tyre marks of the tractor had not even been found out by the Investigating Officer for the reasons best known to him. Further, to ascertain whether there were traces of tyre marks on the body of the deceased and whether the tyre marks match with the tyres of the tractor, no forensic assistance had been sought by the Investigating Officer. These facts create a serious doubt about the entire prosecution case itself.
29. In a similar situation, the Hon'ble Supreme Court in the case of Varun Chaudhary v. State of Rajasthan reported in AIR 2011 SC 72, has held as follows :
“It is pertinent to note that there is no evidence or even there is no reference to the fact that any one from Forensic Science Laboratory or from the police personnel had lifted marks of the motor cycle tyre from the place of the offence so that the same can be compared with the tyre marks of the motor cycle alleged to have been used in the offence. Unless tyre marks are lifted from the place of the offence and upon comparison with the tyre marks of the motor cycle recovered are found to be the same, it cannot be said that the motor cycle recovered was used in the offence. So as to establish the presence of the motor cycle at the place of the offence, the prosecution must show that the tyre marks which were found at the place of the offence were that of the motor cycle used by the accused.”
30. This doubt is further fortified by the undue delay in despatching the FIR to the Court. If really the investigation had been completed, as stated by the Investigating Officer (P.W.11), there was no reason as to why the seized items, namely, the tractor and other material objects, were not sent to the Court immediately. The evidence of P.W.8 (Head Clerk of the Judicial Magistrate Court, Arakkonam), who received Form 95 from the Investigating Officer along with the case properties, clearly shows that the case properties had been sent to the Court for the first time only on 27.10.2014. If really the Investigating Officer had seized the tractor in the presence of P.W.3 on the very next day, there was no reason as to why the case properties had not been sent to the Court immediately. The properties had actually been sent to the Court for the first time only on 27.10.2014. This undue delay in despatching the properties to the Court also creates a serious doubt about the prosecution case.
31. Of course, unfortunately, the victim had died due to multiple injuries. However, the manner in which the death had occurred had not been established. Whether it was an accidental death or a case of homicidal violence has not been clearly established by the prosecution. The evidence of the so-called sole eyewitness P.W.1 is also highly doubtful in view of the various discrepancies noted above. Therefore, we are not inclined to rely upon the sole eyewitness account of P.W.1. Even otherwise, all the discrepancies as noted above go to the root of the prosecution case and we are of the view that the prosecution has failed to establish the guilt of the accused beyond all reasonable doubt.
32. Accordingly, this Criminal Appeal is allowed and the conviction and sentence imposed by the trial Court as against the appellant/A1 qua Sections 353 and 302 IPC, is set aside, while confirming the acquittal of A1 qua other charges and also the acquittal of A2. The appellant/A1 is acquitted of all the charges framed against him. The appellant/A1 is directed to be set at liberty forthwith unless his custody is required in connection with any other case. Fine amount, if any, paid by the appellant/A1 shall be refunded to him. Connected miscellaneous petition is closed.