Manikandan & Ors. v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 24.10.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAHCRIMINAL APPEAL NO.235 OF 20091. Manikandan2. Ayakkudi Maraiappan @ Marimuthu3. Panneerselvam4. Theni Mariappan @ Palanisami5. Kandasami6. Masani @ Masanimuthu7. Nagarajan.. Appellants/ AccusedVs.State rep. byInspector of Police,Kottur Police Station.Coimbatore (Dt.,)(Crime No.28/2006).. Respondent/ ComplainantThis criminal appeal is preferred under Section 374(2) Cr.P.Cagainst the judgment of the learned Additional District andSessions Judge, Fast Track Court No.2, Coimbatore made inS.C.No.119 of 2008 dated 18.11.2008.For Appellants : Mr.T. Munirathnam Naidu for A1,A2, A4 to A7. Mr. G.Ponnambala Thiyagarajan for A3.For Respondent : Mr.Babu Muthu Meeran, APPJUDGMENT(The judgment of the Court was made by V.PERIYA KARUPPIAH, J.)This appeal is directed against the judgment of the AdditionalDistrict and Sessions Judge made in S.C.No.119 of 2008 dated18.11.2008 where by the accused A1 was found guilty of offence u/s.148,341,302 I.P.C, A6 was found guilty of offence u/s. 148 302 https://hcservices.ecourts.gov.in/hcservices/ I.P.C and the accused 2,3 and 8 were found guilty of offence u/s.147,341,302 r/w. 149 I.P.C, the accused 4 and 5 were found guiltyof offence u/s. 147,302 r/w. 149 I.P.C and A7 was found guilty ofoffence u/s. 148, 302 r/w. 149 I.P.C. The lower court found A8 notguilty of any offence charged against him. 2.The brief facts necessary for the disposal of the appealwould be as follows:(a) P.Ws.1 to 4 are the occurrence witnesses and out of themP.W.1 and 2 are the parents of the deceased. P.W.5 is a washermanand P.W.6 is the brother of the deceased. P.W.7 and 9 are theV.A.Os P.W.8 is the sweeper, P.W.10 is an agriculturist inVedachandur village. P.W.11 is the cycle shop owner. P.W.12 isacoconut merchant. P.W.13,14 and 15 are the agriculturists ofAngalakurichi village. P.W.16 is the lineman in Malayandi pattinam.PW.17 is the V.A.O of Pongaliyur Village. P.W.18 is the Doctor andP.W.19 is the retired Deputy Collector, P.W.20 is the cycle standowner and PW.21 is the photographer, P.W. 22 and 23 are the headconstables, P.W.24 is the head clerk and P.W.25 is the SubInspector P.W.26 is the Judicial Magistrate and P.W.27 is theInvestigating Officer.(b) The victim was the son of P.Ws.1 and 2 and brother ofP.W.6. The case of the prosecution would be that the deceasedSakthivel had constructed Veeramathiyamman-Karupparayan temple atAngalakurichi and the accused had raised dispute for obstructingthe way and road for the said temple and there were dispute betweenthe deceased and the accused persons. The persons in and aroundthat area had caused public nuisance near the temple and so thedeceased Sakthivel raised a wall around the temple for the purposeof keeping the said temple clean. The persons in that area wantedspace for having the pathway and hence they complained to theTahsildar and the Sub-Collector, Pollachi, who had also passedorders there on and on that basis of the Village revenue recordsand the V.A.O certificate- Ex.P.16. As per documents, it was foundthat the pathway belong to the villagers was blocked and thedeceased Sakthivel was directed to remove the said wall put uparound the temple and on that dispute the accused persons and thedeceased Sakthivel grew enmity.(c) In the meantime on 21.02.2006, during midnight the accuseddemolished the said wall. On the next day, 22.02.2006, P.W.1, P.W.2and the deceased Sakthivel went to the Tahsildar and questionedabout the demolition of the entire wall, for which A5 told P.W.1 toget lost with his son otherwise, they would demolish the templeitself. P.W.1 and P.W.2 had pacified Sakthivel and took him withthem to the bus stop to catch the bus towards Kottur atAngalakurichi bus stand. On the same day at about 05.00 p.m the https://hcservices.ecourts.gov.in/hcservices/ accused A1 to A8 assembled together and on seeing them the deceasedSakthivel had attempted to run away and the accused had chased himand hit with a coconut stick and attacked with koduval. When thedeceased Satkhivel had prevented the attack, he was pulled down byA1 and had stabbed him with knife on the chest of Sakthivel andleft the knife in his body. Thereafter all the accused had takensoda bottle from the nearby bakery and the accused 2 and 7 hadattacked him and cut on the head of Sakthivel with koduval. Due tothe injuries caused with knife, koduval knife and knife with thewooden handle and coconut stick produced as M.Os.1 to M.O.4respectively Sakthivel died on the spot. (d) Immediately, P.W.1 had given a complaint at Kottur PoliceStation to the Sub Inspector of Police and the complaint wasregistered in Cr.No.28/2006 u/s. 147,148,341,323,324 and 302 I.P.Cand an Express F.I.R-Ex.P.23 was immediately despatched to JudicialMagistrate No.2, Pollachi and Investigating Officer inspected thescene of occurrence at 07.45 p.m and found the deceased Sakthivelwas laid down with knife. He had prepared Observation Mahazar andRough Sketch and had arranged for taking photographs of the deadbody of Sakthivel at the scene of occurrence. Thereafter he hadconducted inquest and for that he examined various witnesses andprepared Ex.P.29 Inquest Report. He had also examined P.Ws.1, 2 and4 and the witnesses Manikandan, Kalimuthu and recorded theirstatement. He has sent the dead body of Sakthivel for autopsy witha requisition through the Head Constable P.W.23 and the autopsy wasdone by the Doctor P.W.18 on 23.02.2006 by 11.10 a.m and had foundthat the death of Sakthivel was due to the injuries sustained byhim and also due to the profused bleeding and shock over theinjuries. The said Post Mortem Certificate was produced as Ex.P.19.Investigating Officer subsequently collected M.Os.6 to 13 from thescene of occurrence in the presence of witnesses and examinedwitnesses and recorded their statement. The Investigating Officerhad also seized the knife embedded on the chest of the deceasedSakthivel from the Post Mortem Doctor. Thereafter he handed overthe body of Sakthivel to the relatives and had collected M.Os.16 to19 the clothes worn by him from the body of deceased and afterexamining the other witnesses and recording their statements handedover the material objects to the court and arrested A5 and A6 inthe presence of P.W.8 and recorded their confession statements andon the basis of the confession leading to recovery was alsorecorded and on that basis A6 had identified and taken M.O.2Koduval and the Investigating Officer seized the weapons throughSeizure Mahazar. He had also identified the place where A4destroyed the shirt of the deceased by putting fire. Thereafter heproduced the said accused for remand. Similarly A1 was arrested bythe Investigating Officer on 01.03.2006 at 06.00 p.m in thepresence of witnesses and recorded his confession statement fromhim and according to the said confession leading to recovery, he https://hcservices.ecourts.gov.in/hcservices/ seized T.V.S Victor motor cycle - M.O.14 from the Abirami cyclestand near Pollachi bus stand. He had also recorded statement fromthe witnesses of the seizure. The blood stained white shirt wasseized as per confession of A1 leading to disclosure throughMahazar and thereafter he arranged for the remand of A1 to judicialcustody. He had also sent the seized material objects to court andexamined witnesses and recorded their statements. Similarly he hadalso arrested A7 and A8 in the presence of witnesses and recordedthe confession statement given by A8 alone. (e) Investigating Officer also examined P.W.11 and recordedhis statement. Since A2 and A3 surrendered before JudicialMagistrate, Pollachi on 06.03.2006 and 08.03.2006 he submitted arequisition for recording statement of witnesses P.W.1, P.W.2before the Judicial Magistrate u/s.164 Cr.P.C and accordinglyP.W.1, P.W.2 and one Arukutty @ Arumugam and Manikandan wereexamined by the learned Judicial Magistrate u/s. 164 Cr.P.C. TheInvestigating Officer had also obtained police custody regarding A2and A3 and it he examined and recorded confession statement from A2and A3 and on their confession A7 was arrested on 11.04.2006 andhis confession statement was also recorded by the InvestigatingOfficer and in pursuance of the said confession leading torecovery, he had seized M.O.3 knife from the bushes inManjanaickanoor palayam on the Udumalpet road through SeizureMahazar and had also sought for remand against A7. He had alsosubmitted requisition for sending M.Os for Forensic examinationand thereafter obtained the Chemical Observation report andserology report from the said laboratories and completed theinvestigation and filed the charge sheet u/s. 147,148,341 and 302r/w 149 I.P.C.3. The case was committed to the court of sessions and thesame was transferred to the file of the Additional Sessions Court,FTC No.2, Coimbatore lower court and charges were framed againstall the accused and all of them denied the charges. Thereafterlower court had examined P.Ws.1 to P.W.27 and Exs.P.1 to P.30 andthe material objects M.O.1 to M.O.19. 4. On the incriminating circumstances spoken by theprosecution witnesses against the accused, they were examined u/s.313 Cr.P.C and they have denied such evidence as false andunsustainable. They have also examined D.W.1 Rajammal and producedExs.D1&D2 in support of their case. The lower court had consideredthe evidence adduced by both sides and had come to the conclusionof convicting the accused A1 to A7 and acquitted A8. Accordinglythe accused A1 was found guilty of offences u/s. 148,341,302 I.P.C,and A6 was found guilty of offences u/s. 148 and 302 I.P.C, theaccused A2,A3 and A8 were found guilty of offences u/s. 147,341,302r/w. 149 I.P.C, the accused A4 and A5 were found guilty of offences https://hcservices.ecourts.gov.in/hcservices/ u/s. 147,302 r/w. 149 I.P.C and A7 was found guilty of offencesu/s. 148, 302 r/w. 149 I.P.C. 8th accused was acquitted fromcharges framed against him.5. Aggrieved by the judgment of conviction passed against theaccused A1 to A7, the appellants/accused have preferred the presentappeal. The learned counsel for the appellants A1, A2, A4 to A7 andA3 while collectively submitting their arguments would insist thatthe lower court without properly appraising the evidence hadwrongly ended in conviction against A1 to A7 and the evidence ofprosecution witnesses were not properly scrutinised and weighed bythe lower court. They would further submit that the evidence ofP.W.1 and P.W.2 who were the eye witnesses were considered by thelower court and had given credit and based upon their evidence A1to A7 were convicted under various sections. It is also argued thatout of eye witnesses P.Ws.1 to P.W.4, P.W.3 and P.W.4 turnedhostile and the evidence of P.W.1 and P.W.2 are none other than theparents, who are interested witnesses and their evidence are fullof contradictions and it cannot be believed. He would also pointout the admissions made by P.W.1 in cross examination to the effectthat he had seen the police constable at the scene of occurrenceand both P.W.1 and P.W.2 did not intervene the stopping of theirson as various persons stabbed on him and murdered him. It is alsostressed that P.W.1 had categorically admitted that the accused hadneither stabbed nor beat his son. These contradictions according tothe learned counsel for the appellants would not only affect theevidence but also falsify the entire evidence of P.W.2 who wasstated to have accompanied P.W.1 to the scene of occurrence. Hewould further submit in his argument that P.W.2 also would not havebeen present at the scene of occurrence and the entire evidence ofP.W.1 and 2 could not be relied upon. He would again submit thatthe evidence of P.W.1 and P.W.2 even if true had not spoken aboutseveral injuries found on the body of the deceased and this wouldbloom large over the suspicion over the evidence of P.Ws 1 and 2.He would further submit in his argument that the alleged occurrencewas said to have happened on 22.02.2006 by 05.00 p.m and the PoliceStation was only five minutes walk distance from the scene ofoccurrence, however the F.I.R reached the court very belatedly andit would leave a presumption that it has been concocted for thepurpose of implicating the accused.6. He would further submit in his argument that thecircumstantial evidence showing the collection of weapons in thealleged confession leading to the recovery from the accused wouldnot be helpful as the serology report had not rendered any supportto the prosecution's case. The wearing apparel owned by thedeceased alone was found to contain human blood with 'B' groupwhereas the alleged weapons (i.e) knife and bill hook, did notcontain the same blood group and therefore the seizure of weapons https://hcservices.ecourts.gov.in/hcservices/ from the accused persons would not in anyway help the prosecutionto support the evidence of P.W.1 and P.W.2. He would again submitin his argument that the deceased person was having bad antecedentand the defence witness would speak to the fact that Exs.D1 and D2and he had connections with Tribal people in smuggling sandalwoodsand ganja and therefore his enemies would have caused the death outof such enmity. P.Ws.1 and 2 have shifted the crime over theaccused on the enmity had by them due to the demolition orderobtained from the Sub-Collector regarding the temple wall.Therefore, he would request the court that the conviction sentencepassed by the lower court were without any basis and therefore tointerfere with the conviction and the sentence passed against theaccused A1 to A7.7. The court has also given anxious thoughts to thesubmissions made by the learned Additional Public Prosecutor andthe learned counsel for the appellants/accused A1 to A7.8. The learned Additional Public Prosecutor had supported thelower court's judgment by stating that P.Ws.1 and P.W.2 were onlyinnocent villagers and the evidence adduced by them should beconsidered in an untamed circumstance and the other circumstantialevidence coupled with the scientific evidence would make theaccused guilty and in those circumstances the judgment ofconviction and sentence passed by lower court cannot be interferedbut may be confirmed.9. Considering the arguments advanced on either side, we couldsee that the alleged occurrence is said to have taken place on22.02.2006 by 05.00 p.m at Kottur- Ucchhimaakaliamman temple busstop where the 8th accused had assembled with dangerous weapons inorder to cause the murder of deceased Sakthivel and accordingly the1st accused had stabbed with knife on his left abdomen and chest andthe 6th accused with koduval had caused cut injuries on right sideof the head and ear and the other accused A2 to A5, A7 and A8 hadjoined hands with A1 and A6 in the incident and thereby committedoffence u/s.147,148,341,302 r/w 149 I.P.C. The prosecution hasmainly rested on the evidence of eye witnesses namely P.Ws.1 toP.W.4. The rest of the witnesses speak about the circumstances ofthe enmity created in between the accused and the deceased personsand the collection of weapons through seizure and the Forensicevidence from the samples collected through the investigation.P.W.3 and P.W.4 were independent eye witnesses but they turnedhostile. Naturally the entire case is resting upon P.Ws.1 and 2 whohappened to be the parents of deceased Sakthivel. Whether theevidence of P.W.1 and P.W.2 have to be discarded as they happenedto be the relative witnesses and there by branded them asinterested witnesses. According to the submissions made by thelearned counsel for the appellants, the evidence of P.W.1 and P.W.2 https://hcservices.ecourts.gov.in/hcservices/ would not incriminate the accused A1 to A7 for the commission ofsaid offence. Their evidence are not trust worthy because theenmity has been developed over the incident namely the demolitionof the temple wall was as per the order of the Sub-Collector afterenquiry. Admittedly, the said wall raised by the deceased Sakthivelin and around the temple was ordered to be demolished by the Sub-Collector. Accordingly, the said wall was demolished by the accusedand that the incident had triggered tension in between the parties.The accused were said to have demolished the compound wall underthe guise of Sub-Collector. However according to the defence suchenmity had grown in the mind of P.W.1 and P.W.2 in order to give afalse complaint against the accused, taking advantage of the deathof Sakthivel caused by some other enemies of Sakthivel.10. We have to see whether the said submission made by theaccused could be true. If the evidence of P.W.1 and P.W.2 are foundto be true and reliable, the said statement of learned counsel forthe appellants need not be considered. For that, we have to see theevidence of P.W.1 and P.W.2. No doubt P.W.1 was the father andP.W.2 was the mother of the deceased Sakthivel. P.W.1 had deposedelaborately about the incident in his chief examination. When we gothrough the evidence in the cross examination he wouldcategorically admit as follows:-@///rk;gtk; ele;j md;W ehd;. vd; kfd;. kidtp kjpak; rhg;ghLrhg;gpl;nlhk;/ ehd; brhy;fpw khjphp vd; kfid vjphpfs; Fj;jt[k;,y;iyvd;why; rhp/ g[jd;fpHik khiy 5.6 kzpf;F eh';fs; fhty; epiyak;bry;ytpy;iy/ nghyP!;fhuiu vd; kfd; ,we;Jf;fple;j ,lj;jpy;ghh;j;njd;/ nghyP!hh; ehd; brhd;d 8 ifnuif vd;dplk;th';fpdhh;fs;/ vdf;F nfhl;L:h; rg; ,d;!;bgf;lh;. ,d;!;bgf;lh;.Rh;f;fpfs; ,d;!;bgf;lhplk; jhd;/ mtu; jhd; vy;yhnk ehd;brhd;d tpgu';fis vGjpdhh;/ vGjpa gpd;dh; vd;dplk; vy;yhgf;f';fspYk; ifnuif th';fpdhh;/ vd; kfid ahnuh Fj;Jfpwhh;fs;/bfhiy bra;jhh;fs;/ ehndh. vd; kidtpnah brd;W jLf;ftpy;iy/ @The said evidence would categorically show that the accuseddid not beat P.W.1's son is correct. He would also categoricallyadmit that either P.W.1 or P.W.2 did not prevent the accused fromstabbing their son. Even these evidence in cross examination arecontradictory in nature on one similar occasion he would speak thatthe accused did not stab or beat their son and on next occasion hewould state that his son was stabbed by somebody and murdered bysomebody and they did not prevent the same. This fluctuatingevidence of P.W.1 would certainly affect the veracity of hisevidence spoken in chief examination. Similarly evidence of P.W.2namely his wife was also affected by the contradicting evidence https://hcservices.ecourts.gov.in/hcservices/ spoken by P.W.1. We can see that there was a dispute in between thedeceased Sakthivel and the Tribal people and due to the said enmitythe incident would have been happened and the same was wrongfullycharged against the accused. If the incident is true P.W.3 who wasclosely related to the deceased Sakthivel would have supported theprosecution story but he did not support the case of prosecution,even though he was stated to be in the scene of occurrence. 11. The stress made by the learned Additional PublicProsecutor was that the circumstantial evidence produced by theprosecution would show the recovery of weapons and the disclosureof facts through the confession statements given by the accusedwould make it to the conviction of A1 to A7, may not be helpful tohim. Such circumstantial evidence should coincide with scientificevidence. Merely because weapons were seized through the confessionstatement given by the accused leading to recovery of blood stainsfound in these weapons should correlate with blood samples found inthe cloth of the deceased. The serology report received in Ex.P.22would show that the blood group B as found in M.Os.4 to 6 were notfound in M.O.17- weapon. The weapons were seized through theconfession which lead to recovery from the accused persons. In suchcircumstances, the circumstantial evidence adduced by theprosecution were not helpful, to complete the links to form andcomplete chain of circumstantial evidence. In these circumstancesboth ocular and circumstantial evidence relied upon by theprosecution were not helpful to the prosecution. In thesecircumstances, the lower court should have come to a conclusionthat the charges framed against the accused were not proved by theprosecution beyond any reasonable doubt. But it had relied upon thecontradictory and inconclusive evidence of P.W.1 and P.W.2 and hadrested its conviction on those witnesses which cannot be correct. 12. Therefore, we are of the considered view that thejudgment of conviction and sentence passed by the lower courtagainst A1 to A7 cannot be sustained for the simple reason thatneither the ocular evidence nor the circumstantial evidence,coupled with scientific evidence are not helpful to theprosecution. Therefore we have no hesitation to set aside thejudgment of conviction and sentence passed by the lower courtagainst A1 to A7. 13.Accordingly, the appeal is allowed. The judgment ofconviction and sentence against the appellants/accused 1 to 7 bythe learned Additinal District and Sessions Judge, Fast Track CourtNo.2, Coimbatore in S.C.No.119/2008 dated 18.11.2008 is set aside,and consequently they are acquitted from the charges levelledagainst them. They are directed to be released forthwith unless https://hcservices.ecourts.gov.in/hcservices/ their presence is required in connection with any other case. Thebail bond if any executed by the appellants shall stand terminatedand the fine amount if any paid are ordered to be refunded to them. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.kprTo1. The Additional District and Sessions Judge, Fast Track Court No.2, Coimbatore 2. through the Principal Sessions Judge, Coimbatore3. The Judicial Magistrate No.2Pollachi.4. Thro the Chief Judicial MagistrateCoimbatore5. The District CollectorCoimbatore6. The Director General of PoliceEgmore, Chennai7. The SuperintendentCentral Prison, Coimbatore8. The Inspector of Police, Kottur Police Station.Coimbatore (District)9. The Public Prosecutor, High Court, Chennai.Crl.A.No.235 of 2009PVR (CO)kk 24/11