Order
1. Heard learned counsel for the parties.
2. The appellant, along with the accused, Dhanasekaran, was tried and by the judgment rendered by the trial court accused Dhanasekaran was convicted under Section 302 of the Penal Code, 1860 (for short “IPC”) and sentenced to undergo imprisonment for life and to pay fine of Rs 5000; in default to undergo further imprisonment for a period of six months. So far as the appellant is concerned, he was convicted under Section 304 Part II IPC and sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs 3000; in default to undergo further imprisonment for a period of three months. Before the High Court, two appeals were preferred by the convicted accused persons, including the appellant, whereas the third appeal was preferred by the State. The appeals filed by the accused persons have been dismissed, whereas the same filed on behalf of the State was allowed and conviction of the appellant has been altered from Section 304 Part II IPC to Section 302 read with Section 34 IPC and he has been sentenced to undergo imprisonment for life. So far as accused Dhanasekaran is concerned, he did not move this Court challenging his conviction. The present appeals have been filed by the appellant alone. The crucial question to be examined in the present case is as to whether the two witnesses, namely, PWs 1 and 13 (Rajendran and Sundaramoorthy) who claimed to be eyewitnesses could have identified the accused persons. Undisputedly, at the place of occurrence, there was no electric light. In the first information report, it has nowhere been stated that as to what was the source of light in which the witnesses identified the accused persons. When the question was put to PW 1 by the investigating officer during the course of investigation as to whether he identified the accused persons in torchlight, moonlit night or in the light of the vehicle, he kept mum and nowhere stated before the police that he identified the accused persons in the light of the vehicle. For the first time it appears that PW 1 has disclosed in his evidence before the Sessions Court after more than two-and-a-half years of the date of occurrence that he identified the accused persons in the light of motorcycle. Apart from PW 1, PW 13 is another eyewitness who claims to have identified the accused persons. So far as this witness is concerned, he claims to have identified the accused persons in the torchlight from a distance of 400 feet, which appears to be highly improbable. In view of the statement by PW 13 that the accused persons were identified in the torchlight, the evidence of PW 1 disclosing that he identified the accused persons in the light of vehicle is highly doubtful, especially when this statement has been made for the first time in the Sessions Court. In this state of affairs, it is not possible to uphold the conviction of the appellant on the basis of evidence of PWs 1 and 13 especially in view of the fact that there is no other material for upholding the conviction. This being the position, we are of the view that the prosecution has failed to prove its case beyond reasonable doubt and the appellant is entitled to the benefit of doubt.
3. So far as accused Dhanasekaran is concerned, it is true that he has not preferred any appeal, but in view of our finding aforementioned that the prosecution case is highly doubtful and there is no ground for distinguishing the case of the accused Dhanasekaran from that of the appellant, we are of the view that he is also entitled to acquittal irrespective of the fact that he has not moved this Court.
4. Accordingly, the appeals are allowed, conviction and sentence of the appellant and accused Dhanasekaran are set aside and both of them are acquitted of all the charges. Both the accused persons are directed to be released forthwith, if not required in connection with any other case.