Chinna Kaalai @ Vellaisamy & Ors. v. State rep. by Inspector of Police, Pollachi Police Station (West) Coimbatore District

Bail SlipThat the petitioner 2/Accused No.2 viz. Panchalingam @Panchaan,S/o.Palaniappa Thevarn was directed to be released on bail asper order dt. 13.8.2008 made in MP 1/2008 in Crl.A.288/2008 on the fileof this Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 05.01.2009 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE M.VENUGOPALCRIMINAL APPEAL NO.288 OF 20081.Chinna Kaalai @ Vellaisamy2.Panchalingam @ Panchaan.. Appellants/Accused 1 & 2Vs.State rep. byInspector of Police,Pollachi Police Station (West)Coimbatore District(Crime No.425 of 2005).. Respondent/Complainant This criminal appeal has been preferred under Section 374(2)Cr.P.C. against the judgment of the learned Additional District andSessions Judge, Fast Track Court No.1, Coimbatore made in S.C.No.124 of2007, dated 6.11.2007. For Appellants : Mr.C.M.Gunasekaranfor Mr.V.PurushothamanFor Respondent : Mr.P.Kumaresan, APP - - - - JUDGMENT(The judgment of the court was delivered by M.CHOCKALINGAM, J.)Challenge is made to the judgment of the Additional District andSessions Division, Fast Track Court No.1, Coimbatore made in S.C.No.124of 2007, whereby the first accused/first appellant stood charged under https://hcservices.ecourts.gov.in/hcservices/ Sections 302 and 201 IPC and the second accused/the second appellantstood charged under Sections 341, 302 r/w S.34 and 201 IPC and tried andA-1 was found guilty under Sections 302 and 201 IPC and the secondaccused was found guilty under Sections 341, 302 r/w S.34 and 201 IPCand A-1 and A-2 were sentenced to undergo life imprisonment each and topay a fine of Rs.2000/-, in default to undergo 3 months S.I. underSection 302 and 302 r/w S.34 IPC respectively and 3 years R.I. each andto pay a fine of Rs.500/-, in default to undergo 3 months S.I. underSection 201 IPC and A-2 was also sentenced to undergo 1 month R.I. underSection 341 IPC and the sentences were ordered to run concurrently. 2.The short facts necessary for the disposal of this appeal can bestated as follows:a)P.W.1 is the wife of the deceased Barathamannan. P.W.4 is thebrother of P.W.1. One year prior to the occurrence, the deceasedpurchased a piece of land from the first accused. A-1 was demanding moremoney, but the deceased refused to pay and the relationship between thedeceased and the accused was strained. On 12.8.2005, when the deceasedwas in his house at about 6.30 p.m., A-1 and A-2 came there and tookhim in the TVS 50 bearing registration No.TN 41/X 5181. The same wasdriven by the deceased, while A-1 and A-2 were also travelling with himin the same vehicle. This was witnessed by P.Ws.1 and 4. Since thedeceased did not return, P.W.1 along with P.W.4 went to the house of A-1at about 9.00 p.m. and found all the three, namely A-1, A-2 and thedeceased, taking liquor. When P.W.1 asked her husband to come, both A-1and A-2 informed that he would come back and she can go earlier. Theyalso detained him from moving and both P.W.1 and P.W.4 returned home. b)P.W.5, who was employed in a factory, was returning home at 10.00p.m. and he found all the three were just chatting in front of the houseof A-1. At that time, there arose a quarrel and the deceased wasscolding them in the filthy language. A-1 informed A-2 that even withoutmaking payment, he was uttering filthy language and that he would befinished off. A-2 caught hold of the deceased, while A-1 took M.O.5,cricket bat, attacked him and caused his death. Both of them took thedead body and threw it into the Well of A-1 and thereafter, they leftthe place. c)P.W.1 went to the house of A-1 next day and asked about herhusband. A-1 replied that he had gone to Udumalpet. Believing his words,she returned home. On 16.8.2005, she was informed that a dead body wasfound in the Well of A-1 and others. Immediately, she went there andascertained that it was the body of her husband. She immediatelyproceeded to the respondent police station and gave Ex.P.1, the reportto P.W.20, the Inspector of Police. On the strength of Ex.P.1, P.W.20registered a case in Crime No.425 of 2005 under Sections 302 and 201IPC. Ex.P.19, the F.I.R. was despatched to the Court.d)P.W.20 took up the investigation, proceeded to the spot. He alsogave a message to the fire squad. P.W.20 made an inspection in thepresence of the witnesses and he prepared Ex.P.20, the observationmahazar and Ex.P.21, the rough sketch. The dead body was taken out from https://hcservices.ecourts.gov.in/hcservices/ the Well. P.W.20 conducted inquest on the dead body of the deceased inthe presence of the witnesses and panchayatdars and prepared Ex.P.22,the inquest report. Then, the dead body was sent to the GovernmentHospital, Coimbatore for the purpose of autopsy. e)P.W.3, the Doctor attached to the Government Hospital,Coimbatore, on receipt of the requisition, has conducted post-mortem onthe dead body of the deceased and has issued Ex.P.6, the post-mortemcertificate and Ex.P.8, final opinion, wherein he has opined that thedeceased would appear to have died of head injury.f)Pending investigation, on 19.08.2005, A-1 was arrested and hecame forward to give confessional statement, which was recorded in thepresence of the witnesses. The admissible part of the same was marked asEx.P.23. Pursuant to the same, A-1 produced bottles and cricket bat,which were recovered under a cover of mahazar. On 27.11.2005, A-2appeared before the Tahsildar and gave Ex.P.16, extra judicialconfessional statement and then, he was arrested by P.W.20. The accusedwere sent for judicial remand. All the material objects recovered weresent for chemical analysis by the Forensic Science Department and thereports were obtained. On completion of the investigation, theInvestigating Officer has filed the final report. 3.The case was committed to the Court of Sessions and necessarycharges were framed. In order to substantiate the charges levelledagainst the accused, the prosecution examined 20 witnesses and alsorelied on 31 exhibits and 11 M.Os. On completion of the evidence on theside of the prosecution, the accused were questioned under Section 313Cr.P.C. as to the incriminating circumstances found in the evidence ofprosecution witnesses, which they flatly denied as false. No defencewitness was examined The trial court, after hearing the argumentsadvanced, took the view that the prosecution has proved the case beyondreasonable doubt and found the accused/appellants guilty as stated aboveand awarded punishments as referred to above. Hence this appeal at theinstance of the appellants.4.Pending appeal, it is brought to the notice of the court that thesecond accused died and hence the appeal in his regard becomes abatedand this appeal was actually prosecuted in respect of A-1. 5.Advancing arguments on behalf of the appellants, the learnedcounsel would submit that in the instant case, the prosecution restedits entire case on the evidence of P.W.5; that according to theprosecution, the occurrence has taken place on the night hours of12.8.2005; that according to P.W.5, he has actually witnessed the entireoccurrence, but he ran away from the place of occurrence; that he hasnot even whispered about the occurrence to his family members, but hehas come forward to give statement to the police after 4 months, namelyonly on 08.12.2005; that in the instant case, statement of P.W.5 underSection 164 Cr.P.C. was recorded by P.W.2, the Judicial Magistrate,which was marked as Ex.P.4; that when Ex.P.4 was looked into, P.W.5 hasgiven a statement to the effect that A-1 attacked the deceased with thebottle and not with the cricket bat; that he has developed his evidence https://hcservices.ecourts.gov.in/hcservices/ before the court as if A-1 attacked the deceased with the cricket batand thus, there was a thorough inconsistent in his statements and that,for these two reasons, the evidence of P.W.5 should have been rejectedby the trial court. 6.Added further the learned counsel that barring the evidence ofP.W.5, the prosecution rested its case on the evidence of P.Ws.1 and 4;that the occurrence has taken place on 12.8.2005; that A-1 and A-2 cameto the house of the deceased and also took him in the TVS 50 andthereafter, the deceased did not come; that P.Ws.1 and 4 went to thehouse of A-1 and found all of them, namely A-1, A-2 and the deceasedwere taking liquor and that they came back; that thereafter, she has notmade any attempt or taken steps to search for her husband nor has shegiven complaint to the police for a period of 4 days; that it is highlyimprobable; that it is pertinent to point out that after the dead bodywas found in the Well, P.W.1 went to the police station and gave Ex.P.1,the complaint and that in order to wreak vengeance against A-1 and A-2,their names have been included in Ex.P.1, the complaint.7.The learned counsel would further add that in the instant case,it is the evidence of P.W.20, the Investigating Officer that the deadbody was found in the common well; that it is true, it belonged to A-1,but it also belonged to 2 or 3 other persons; that it was a common welland it was under use; that if to be so, the dead body could not havebeen allowed to be inside for a period of 4 days and it should have beennoticed by the other co-owners and they would have brought the same tothe notice of the police or others, but not done so; that this would goto show that the dead body was found in the well and the police couldnot ascertain the assailants and they roped the accused persons falselyand P.W.1 has given a false complaint as if it was the act of theaccused and for that purpose, they have taken P.W.5 as a witness inorder to strengthen the case of the prosecution, but in vain and underthese circumstances, the prosecution has miserably failed to prove itscase and hence they are entitled for acquittal in the hands of thiscourt. 8.The court heard the learned Additional Public Prosecutor on theabove contentions and has paid its anxious consideration on thesubmissions made.9.It is not in controversy that the dead body of Barathamannan, thehusband of P.W.1, was found in the Well and when the dead body was takenout by the fire squad, it was ascertained that it was the husband ofP.W.1. On the complaint given by P.W.1, a case came to be registered byP.W.20 under Sections 302 and 201 IPC. Following the inquest made by theInvestigating Officer, the dead body was subjected to post-mortem byP.W.3, the Doctor, who has given his opinion before the court as awitness and also through the post-mortem certificate that the deceasedwould appear to have died of head injury. Thus, the fact that thedeceased died out of homicidal violence was never questioned by theappellants before the trial court and hence without any impediment, itcan be recorded so. https://hcservices.ecourts.gov.in/hcservices/

10.In order to substantiate the act of the accused, the prosecutionrested its case both on the direct evidence by marching P.W.5 and alsoby two main circumstances. As rightly pointed out by the learned counselfor the appellants, the trial court should have rejected the testimonyof P.W.5, the so-called eyewitness for two reasons. Firstly, theoccurrence has taken place on 12.8.2005. P.W.5 claimed before the trialcourt that he witnessed the occurrence. Had it been true, one wouldexpect naturally and that should be the reasonable conduct of a prudentperson under such situation to speak about the said incident. P.W.5,contrarily, has not even whispered to anybody including his familymembers about the incident for a period of 4 months. For the first time,the statement of P.W.5 was recorded only on 08.12.2005. This silence ofP.W.5 would cast a doubt whether he could have seen the occurrence atall. The added circumstance, which in the mind of the court, was thediscrepancy found in Ex.P.4, the statement of P.W.5 before P.W.2, theJudicial Magistrate under Section 164 Cr.P.C. and the evidence recordedbefore the trial court. A perusal of Ex.P.4, the statement recorded byP.W.2, the Judicial Magistrate, would indicate that P.W.5 has statedthat A-1 attacked the deceased with bottle, but at the time of evidencebefore the court, he has stated that A-1 attacked the deceased with thecricket bat. This discrepancy would clearly go to the root of the matterand also cast a doubt whether P.W.5 could have seen the occurrence atall. Hence the trial court should have rejected the testimony of P.W.5,but has failed to do so. 11.However, the court is of the considered opinion after carefulscrutiny of the records available and the evidence adduced before thetrial court that the prosecution was able to bring home the guilt of theaccused by placing and proving two circumstances. From the evidence ofP.Ws.1 and 4, it would be quite clear that on 12.8.2005, A-1 and A-2came to the house of the deceased and took him in the TVS-50 and aftersome time, both P.Ws.1 and 4 went to the house of A-1 and found all thethree, namely A-1, A-2 and the deceased taking liquor and both theaccused and the deceased uttered that she may go back and the deceasedwould be coming back. But, thereafter, the deceased did not come back atall. Thus, it would be quite clear that P.Ws.1 and 4 have seen thedeceased in the company of A-1 and A-2 on the night of 12.8.2005, onwhich night the occurrence has taken place. The second circumstance isthat the dead body was found in the common well, which belonged to theaccused and also two others. The fact that the dead body was found inthe Well, which belonged to the accused also, in the considered opinionof the court would be pointing to the nexus of the accused with thecrime. It is only for the first accused to explain as to how the deadbody of the deceased happened to be in the Well. It could be furtherstated that the said fact could be only within the special knowledge ofthe first accused, who alone could explain the same, but he had noexplanation to offer. In a given case where the prosecution rested itscase on circumstantial evidence and the particular circumstance is wellwithin the special knowledge of the accused, it is for him to explainthat circumstance and to come with truth. If he suppressed thecircumstance or came with false explanation, the court can infer that heis involved in the crime. In the instant case, so long as the accusedwas unable to explain as to how the dead body of the deceased was found https://hcservices.ecourts.gov.in/hcservices/ in the Well, which belonged to the first accused, it could be easilyinferred that he has kept an hand and had a role to play in the crimecommitted. This circumstance coupled with the last seen theory spoken byP.Ws.1 and 4, in the considered opinion of the court, would besufficient pointing to the guilt of A-1 and A-2 in the crime inquestion. This court is not unmindful of caution made by the Apex Courtand also settled proposition of law that in a given case where theprosecution rested its case on circumstantial evidence, it must placeand prove necessary circumstances pointing to the hypothesis that exceptthe accused no one could have committed the offence. The abovecircumstances, which were placed and proved by the prosecution, in theconsidered opinion of the court would be sufficient pointing to theguilt of the accused. Thus, the prosecution has proved the fact that itwas these accused who attacked the deceased and caused his death andthrew the dead body into the Well. The contentions put forth by thelearned counsel for the appellants in this regard, on the face of suchevidence as narrated above, cannot be countenanced. 12.So far as the second line of argument is concerned, even as perthe evidence adduced by the prosecution, all were in drunken mood andthe deceased was actually uttering filthy language and there was aquarrel and being provoked by the filthy language, A-1 attacked thedeceased with the cricket bat, which was facilitated by A-2. Under thesecircumstances, the act of the accused cannot be termed as murder, but itwould come within the exceptions of murder. Hence the act of the firstaccused would attract the penal provision of Section 304(I) IPC andawarding punishment of 7 years R.I. would meet the ends of justice. Sofar as A-2 is concerned, pending appeal he died and hence the appeal inhis regard becomes abated. 13.Accordingly, the conviction and sentence imposed on A-1 underSection 302 IPC is modified and instead, A-1 is convicted under Section304(I) IPC and sentenced to undergo 7 years R.I. The fine amount anddefault sentence imposed on A-1 under Section 302 IPC will hold good.The conviction and sentence imposed on A-1 under Section 201 IPC areconfirmed. The period of sentence already undergone by A-1 is ordered tobe given set off. Both the sentences are ordered to run concurrently.Accordingly, this criminal appeal is dismissed.Sd/Asst.Registrar/true copy/Sub Asst.Registrarvvk https://hcservices.ecourts.gov.in/hcservices/ To1.The Additional District and Sessions Judge, Fast Track Court No.1, Coimbatore.2.The Principal District and Sessions Judge,Coimbatore .3.The Judicial Magistrate No.II, Pollachi.4.-do- thro' The Chief Judicial Magistrate,Coimbatore.5.The Superintendent Central Prison, Coimbatore.6.The District Collector, Coimbatore.7.The Director General of Police,Mylapore, Chennai-4.8.Inspector of Police, Pollachi Police Station (West) Coimbatore District.9.The Public Prosecutor, High Court, Madras.10.The Section Officer,Criminal Section, High Court of Madras, Madras.RJ (CO)km/20.1.CRL.A.NO.288 OF 2008