Pandian2.Kumar.. v. The Inspector of Police, Pudumundu Police Station, Nilgiris District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 29.01.2009 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE M.VENUGOPALCRIMINAL APPEAL NO.346 OF 20081.Pandian2.Kumar.. Appellants/Accused 1 & 2Vs.The Inspector of Police,Pudumundu Police Station,Nilgiris District.. Respondent/Complainant This criminal appeal has been preferred under Section 374(2)Cr.P.C. against the judgment of the learned Sessions Judge,Nilgiris at Udagamandalam made in S.C.No.25 of 2007, dated11.09.2007. For Appellants : Mr.Ramesh Kumar ChopraFor 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 Sessions Division,Nilgiris at Udagamandalam made in S.C.No.25 of 2007, whereby theaccused/appellants stood charged under Sections 120(B) and 302 IPCand A-1 also stood charged under Section 404 IPC, tried and foundguilty as per the charges and the first accused was sentenced toundergo imprisonment for life for each of the offences underSections 120(B) and 302 IPC and one year R.I. with a fine ofRs.1000/-, in default to undergo 3 months S.I. under Section 404IPC and the second accused was also sentenced to undergoimprisonment for life for each of the offences under Sections 120(B) and 302 IPC.2.The short facts necessary for the disposal of this appealcan be stated thus: https://hcservices.ecourts.gov.in/hcservices/ a)P.W.4 is the mother of the deceased Vetrivel. She had fourdaughters, including P.W.5. The first accused is the son of P.W.4'sbrother and the second accused was the associate of A-1. One of thedaughters of P.W.4, namely Muniswari got married on 14.6.2006 atSalem. A-1 also attended the marriage. On the previous day night,his behaviour towards P.W.5 was found thoroughly not satisfactory,since he used unsavoury remarks. After returning to Coimbatore,P.W.4 sent his son, namely the deceased, to the house of A-1 andcalled his mother and informed about the conduct of the firstaccused. It came to the knowledge of the first accused. Therefore,he developed ill-will against the family members of the deceased.For about one month prior to the occurrence, he was not in talkingterms with the deceased. b)On 03.09.2006, A-1 and A-2 came to the house of the deceasedand took the deceased in his M.O.5, motorbike. At that time, thedeceased informed his mother that he is going to Ooty along with A-1 and A-2 and will be coming that night. On the way, P.W.7, thecommon friend of both the accused and deceased saw them and when hewas also called to Ooty, he told that he got some other work andhence he could not accompany them. Thereafter, both the accused andthe deceased went to Mettupalayam and met an another friend P.W.8.They parked the vehicle in the cycle stand at Mettupalayam, whichwas managed by P.W.12. M.O.7, token was also issued. Thereafter,both the accused and the deceased reached Thalaikundah at Ooty.P.W.6 was the native of Thalaikundah and was selling Caps in thatarea. At about 6.00 p.m., he saw the deceased in the company ofboth the accused. He asked them whether they required Caps, butthey replied in negative. Thereafter, at about 9.00 p.m., againP.W.6 saw both the accused together, but the deceased was missing. c)The deceased did not come home that night. P.W.4 informedP.W.7, who in turn contacted A-1. A-1 replied that both A-1 and A-2returned to Coimbatore, but the deceased stayed at Ooty. For a fewdays, the deceased did not come at all. P.W.1, the Forest Guardfound the dead body of the deceased on 6.9.2006. He informed thesame to the Forest Officer, who advised him to give a complaint.Accordingly, P.W.1 went to the Pudumund Police Station and gaveEx.P.1, the complaint to P.W.22, the Sub Inspector of Police, whoon the strength of Ex.P.1, registered a complaint in Crime No.218of 2006 under Section 302 IPC. Ex.P.30, the F.I.R. was despatchedto the Court.d)P.W.23, the Inspector of Police, on receipt of the copy ofthe F.I.R., took up the investigation, proceeded to the spot andmade an inspection in the presence of the witnesses. He preparedEx.P.2, the observation mahazar and Ex.P.33, the rough sketch. Healso recovered the material objects from the place of occurrenceunder a cover of mahazar. He conducted inquest on the dead body ofthe deceased in the presence of the witnesses and panchayatdars andprepared Ex.P.34, the inquest report. The dead body of the deceasedwas sent to the hospital for the purpose of autopsy. Thereafter, https://hcservices.ecourts.gov.in/hcservices/ the Investigating Officer noticed a tailor mark in M.O.3, shirt ofthe deceased. The tailor mark in the shirt was marked as M.O.4. Hewas able to notice the cell number of the tailor. P.W.23 informedthe tailor, who came over there and identified the dead body asthat of the deceased. Immediately, an information was given toP.W.4 and others, who visited the spot and they identified the deadbody. e)P.W.20, the Doctor, attached to the Government Hospital,Uthagamandalam, on receipt of the requisition, has conducted post-mortem on the dead body of the deceased and has issued Ex.P.27, thepost-mortem certificate, wherein he has opined that the deceasedwould appear to have died of shock due to injury to vital organsleft testis. f)Pending investigation, P.W.23 arrested both the accused on08.09.2006. The accused came forward to give confessionalstatements, which were recorded in the presence of the witnesses.The admissible part of the confessional statement of A-1 was markedas Ex.P.6 and the admissible part of the confessional statement ofA-2 was marked as Ex.P.7. Pursuant to the confessional statement,A-1 produced M.O.8 stick, M.O.19 cell phone cover and M.O.11 simcard, which were recovered under a cover of mahazar. Pursuant tothe confessional statement of A-2, he produced M.O.9 stick, M.O.7token and M.O.12 bike key, which were recovered under a cover ofmahazar. Pursuant to the confessional statement of A-1, M.O.6 cellphone was recovered from P.W.10 under a cover of mahazar. P.W.23recovered M.O.5, motor bike from the cycle stand of P.W.12 under acover of mahazar. The accused were sent for judicial remand. g)An identification parade was conducted by P.W.17, theJudicial Magistrate, Kotagiri. In the identification parade, P.W.6identified the accused twice. Ex.P.18 is the identification paradeproceedings. All the material objects recovered were sent forchemical analysis. Ex.P.37, the Chemical Analyst's report andEx.P.38, the Serologist's report were received. h)Further investigation was taken up by P.W.24, the Inspectorof Police, who examined the witnesses and recorded theirstatements. On completion of the investigation, the InvestigatingOfficer has filed the final report.3.The case was committed to the court of sessions andnecessary charges were framed. The prosecution, in order tosubstantiate the charges levelled against the accused, examined 24witnesses and also relied on 39 exhibits and 13 M.Os. On completionof the evidence on the side of the prosecution, the accused werequestioned under Section 313 Cr.P.C. as to the incriminatingcircumstances found in the evidence of prosecution witnesses, whichthey flatly denied as false. No defence witness was examined. Thetrial court, after hearing the submissions made on either side andlooking into the materials available, took the view that theprosecution has proved the case beyond reasonable doubt, found the https://hcservices.ecourts.gov.in/hcservices/ accused/appellants guilty as per the charges and awardedpunishments as referred to above. Hence this appeal has arisen atthe instance of the appellants.4.Advancing arguments on behalf of the appellants, the learnedcounsel would submit that in the instant case, the prosecution hadno direct evidence to offer and it has relied on onlycircumstantial evidence; that necessary circumstances were neitherplaced nor proved pointing to the guilt of the accused; thataccording to P.W.4, the mother of the deceased, nowhere has shestated that on the date of occurrence, both the accused, namely A-1and A-2, came to the house and took the deceased and thus, herevidence would be of no use to the prosecution case; and that sofar as P.W.7 was concerned, he has stated that he saw both theaccused and the deceased at about 9.30 a.m. at Sankanur road andthus, it would be quite clear that he had seen them only within thelimits of Coimbatore, by which it cannot be stated that they havetravelled beyond that place or they have gone to Mettupalayam inthe motor bike or they have travelled to Ooty, where the occurrencehas taken place. 5.The learned counsel would further submit that theprosecution mainly relied on the recovery of cell phone and alsothe motor bike; that so far as the cell phone was concerned, thiswas marked as M.O.6 and the same was sold and the receipt wasmarked as Ex.P.4; that there was correction made with regard to thedate; that P.W.11 was the person, in whose presence, M.O.6 cellphone was sold; that P.W.11 claimed that he signed in the blankpaper and went away; that apart from that, there was no evidence toindicate that the cell phone originally belonged to the deceasedand thus, the evidence in respect of the recovery of cell phonewill not advance the prosecution case; that so far as the recoveryof motor bike pursuant to the confessional statement of A-2 wasconcerned, P.W.14 has been examined in this regard and he has alsorelied on Ex.P.14, the receipt; that P.W.14 has categoricallystated that he did not know the signature found in Ex.P.14; thateven P.W.4 or the daughters of P.W.4 was not examined in thisregard; that P.W.14 was the owner of the vehicle; that according tohim, he has actually sold the vehicle to the deceased, but he wasunable to identify the signature of the deceased in Ex.P.14; thatthere was no evidence to indicate that the vehicle stood in thename of the deceased and thus, this part of the evidence also wasnot connecting the accused with the crime and that the prosecutionrested its case on the above circumstances, which were not provedpointing to the guilt of the accused and the lower court has takenan erroneous view and hence the appellants are entitled foracquittal in the hands of this court.6.The court heard the learned Additional Public Prosecutor onthe above contentions and has paid its anxious consideration on thesubmissions made. https://hcservices.ecourts.gov.in/hcservices/

7.It is not in controversy that the dead body of Vetrivel wasfound on 06.09.2006 by P.W.1, the Forest Guard. After informing hisofficers, he gave the complaint Ex.P.1 to P.W.22, the Sub Inspectorof Police, who registered the case in Crime No.218 of 2006 underSection 302 IPC. The investigation was taken up by P.W.23, theInspector of Police. Following the inquest made by him and thepreparation of Ex.P.34, the inquest report, the dead body wassubjected to post-mortem by P.W.20, the Doctor, who has given hiscategorical opinion as a witness before the court and also throughthe contents in Ex.P.27, the post-mortem certificate that thedeceased would appear to have died of shock due to injury to vitalorgans left testis. The identity of the dead body either or thedeath was due to homicidal violence was never disputed by theappellant before the trial court. Apart from that, the dead bodyhas been clearly identified by P.W.4 and the others. Under thesecircumstances, it leaves no doubt in the mind of the court inrespect of the identity of the dead body that it was that of thedeceased and also the cause of death. Hence without any impediment,it could be recorded so.8.True it is, the prosecution had no direct evidence to offerto substantiate its case. This court is able to notice thefollowing circumstances, which in the considered opinion of thecourt pointing to the guilt of both the accused, who are theappellants before this court. P.W.4 is the mother of the deceased.She has categorically spoken to the fact that the marriage of oneof her daughters has taken place at Salem on 14.6.2006 and it wasA-1 who has also attended the marriage. On the previous night, hisbehaviour towards P.W.5 was found thoroughly not satisfactory.After coming to Coimbatore, P.W.4 called the mother of the firstaccused to inform the conduct of A-1 and it was the deceased whowent to the house of A-1 and took his mother. When it came to theknowledge of A-1, he developed animosity and he was not in talkingterms with the deceased for a period of a month prior to theoccurrence. According to P.W.4, on 03.09.2006, the deceasedinformed her that A-1 and A-2 have come and he along with them isgoing to Ooty in his motor bike and will be returning in theafternoon. It is true, P.W.4 has not stated that she saw A-1 and A-2 coming into the house and taking the deceased. It would be quiteclear from her evidence that it was the deceased who has passed onthe information that he was to go to Ooty in his motor bike with A-1 and A-2. It is pertinent to point out that P.W.7 was the commonfriend of both the accused and the deceased. He saw both theaccused and the deceased at about 9.30 a.m. at Sankanur road. Heenquired them and they told that they are going to Ooty in themotor bike and they also invited him, but he could not go. Thus, itwould be quite clear that on the date of occurrence at about 9.30a.m., both the accused and the deceased informed P.W.7 that theywere on the way to Ooty and P.W.7 found the deceased in the companyof both the accused. https://hcservices.ecourts.gov.in/hcservices/

9.It was the evidence of P.W.6, the Cap seller that at about6.00 p.m. on 03.09.2006, he saw both the accused and the deceasedand he enquired them whether they required Cap, but they replied innegative. After 9.00 p.m. on the same day, he saw both the accusedreturning, but the other third party was found missing.Subsequently, an identification parade was conducted in order toidentify both the accused. P.W.6 was taken to the Central Prisonand he identified both the accused, namely A-1 and A-2 twice in thepresence of P.W.17, the Judicial Magistrate, Kothagiri. Theidentification parade proceedings were also filed under Ex.P.18 andno procedural irregularity or illegality is noticed. The learnedcounsel for the appellants has raised two contentions in thisregard that the Cap seller, who was actually in the crowd, has noteven seen A-1 and A-2 for atleast a few minutes and hence he couldnot remember them and if so, he could not have identified A-1 andA-2 properly and further, A-1 and A-2 complained to the Magistratethat they were actually shown to the witness earlier and thus, theidentification parade proceedings cannot be given any evidentiaryvalue. This court is unable to agree with the learned counsel forthe following reason. It is true, in a given case like this, theidentification parade in law is a must in order to ascertainwhether the witness, who has seen the assailants at a particularpoint of time when the offence was committed, could identify theaccused. If it is ascertained so, his evidence has got to be takenas a corroborative piece of evidence when he comes before the courtto identify the accused in the court hall at the time ofproceedings. The identification parade is not a substantive pieceof evidence, but it is only a corroborative piece of evidence tothe main evidence, namely identifying the accused in the courthall. In the instant case, P.W.6, though Cap seller, asked A-1 andA-2 and also the deceased whether they required Cap, but theyreplied in negative and within a short span of time, he saw both A-1 and A-2 returning, but the other third party was found missing.Though it was only for a few minutes, P.W.6 could remember theidentity of the accused. Apart from that, identification parade wasconducted by P.W.17, Judicial Magistrate concerned, who has clearlydeposed that on both occasions, P.W.6 was able to identify both theaccused twice and hence it leaves no doubt in the mind of the courtand thus this is the strong piece of evidence. 10.The added circumstances are the recovery of M.O.6, cellphone pursuant to the confessional statement given by A-1. In theinstant case, there is evidence to indicate that pursuant to theconfessional statement of A-1, M.O.6, cell phone has been recoveredfrom P.W.10. It is to be pointed out that it was actually in thecustody of the deceased at the time when the occurrence has takenplace. It was actually sold to P.W.10 under Ex.P.4. A perusal ofEx.P.4 would indicate that there was correction as to the date andoriginally, it was written as 4.8.2006 and subsequently, correctedas 04.09.2006. It leaves no doubt much less reasonable doubt forthe simple reason that the occurrence has taken place only on03.09.2006 and hence the date should have been put as 04.09.2006, https://hcservices.ecourts.gov.in/hcservices/ but mistakenly, it has been written as 04.08.2006 and subsequently,it has been corrected as 04.09.2006. Further, P.W.10, to whom ithas been sold, has been examined and he has identified the phone,but the evidence of P.W.11, in whose presence the phone was sold,did not give any support to the prosecution case. But the evidenceof P.W.10, identifying the phone and also deposing that it was soldto him, would be sufficient in the considered opinion of the courtthat it has been recovered from A-1 pursuant to the confessionalstatement given by him. 11.The added circumstance was the recovery of motor bike fromthe cycle stand. P.W.12 was the Manager of the cycle stand atMettupalayam. He has clearly deposed that on 03.09.2006, both theaccused and the other person came there and left M.O.5, motor bikeand M.O.7, token was issued and on 08.09.2006, the accused camealong with the police and the vehicle was taken by the police.Thus, it would be quite clear that on 03.09.2006 morning, M.O.5,motor bike was left at the cycle stand, which was managed by P.W.12and M.O.7, token has also been issued for the same. Further, it wasrecovered only on the identification by the accused on 08.09.2006.The contention of the learned counsel for the appellants is thatthere was no evidence to indicate that the motor bike belonged tothe deceased. This contention has got to be rejected for morereasons than one. On the date of occurrence, P.W.7 has clearlydeposed that he has seen both the accused and the deceased comingin the motor bike. Originally, the motor bike belonged to oneDevaraj, who has been examined as P.W.14 and the vehicle wasactually under hire purchase with Bajaj Auto Finance and only apart of the amount has been paid. Pending same, he sold the vehicleto the deceased, but the deceased also paid only a part of theamount. In order to prove the same, Ex.P.14, the receipt has beenproduced. But, the signature of the deceased has not been proved.It was the vehicle originally belonged to P.W.14, Devaraj and itwas under hire purchase agreement. It is an admitted fact that thevehicle was sold to the deceased and the deceased has also paid apart of the amount, which could be seen from the evidence. It istrue, the R.C. Book in respect of the vehicle did not stand in thename of the deceased on the date of occurrence, but there isevidence that the vehicle was in the custody of the deceased duringthe relevant time, namely on 03.09.2006. Further, M.O.12, motorbike key, was recovered from A-2. Thus, the recovery of motor bike,which was actually in the custody of the deceased on the date ofoccurrence, from the accused persons would be clinchingly pointingto the nexus of the accused with the crime. All put together, thecourt is of the considered opinion that the circumstances areclearly pointing to the nexus of the accused with the crime. It isalso made clear that none else except these two accused, could havecommitted the offence and the same is within the special knowledgeof these accused. The accused have to tender explanation as to howthe death was caused, but there was no explanation to offer. On thecontrary, they claimed that they had nothing to do with the crimeat all and they had no nexus with the crime. https://hcservices.ecourts.gov.in/hcservices/

12.In the considered opinion of the court, the last seentheory through the evidence of P.W.7, the common friend and alsothe evidence of P.W.6, the Cap seller just before the occurrenceand also the recovery of M.Os. belonged to the deceased, wouldclearly indicate that the appellants herein have committed theoffence, but they have no explanation to offer. Under thesecircumstances, the trial court has marshalled the evidence properand has taken a view that the prosecution has proved the casebeyond reasonable doubt. Hence the judgment of the trial court doesnot require any disturbance either factually or legally.Accordingly, this criminal fails and the same is dismissed.vvk Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To1. THE SESSIONS JUDGENILGIRIS AT UDAGAMANDALAM2. THE PRINCIPAL SESSIONS JUDGENILGIRIS AT UDAGAMANDALAM3. THE JUDICIAL MAGISTRATE,UDAGAMANDALAM4. THE CHIEF JUDICIAL MAGISTRATENILGIRIS AT UDAGAMANDALAM5. THE SUPERINTENDENT,CENTRAL PRISONCOIMBATORE.6. THE INSPECTOR OF POLICEPUDUMUNDU POLICE STATION,NILGIRIS DISTRICT.7. THE PUBLIC PROSECUTORHIGH COURT, MADRASgv (co)dv/6.2.CRL.A.NO.346 OF 2008