Bail SlipThat v. State rep byThe Inspec

Bail SlipThat the Appellants/Accused No.1 to 4 namely 1.Ragu @ Ragukumar,2. Kadhir @ Kadhiravan, 3. Thirunavukkarasu, 4. Karthik @ Karthikeyanwere directed to be released on bail by order of this Court dated14.08.2007 in Crl.MP.1/07 in C.A.No.651/07.Bail SlipThat the appellant/accused 2 viz., Hary @ Harikrishnan wasdirected to be relased on bail in and by order of this Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30-6-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRL.A.Nos.651 and 776 of 2007 and 834 of 20081.Ragu @ Ragukumar2.Kadhir @ Kadhiravan3.Thirunavukkarasu4.Karthik @ Karthikeyan.. Appellants in CA 651/2007 and Respondents in CA 834/20081.Karuna @ Karunakaran2.Hary @ Harikrishnan.. Appellants in CA 776/2007vsState rep byThe Inspector of PoliceH-3 Thondaiyarpet Police StationChennai(Cr.No.398/2006).. Respondent inCA 651 & 776/2007and Appellant in CA 834/2008 C.A.Nos.651 and 776 of 2007 preferred under Sec.374(2) of theCode of Criminal Procedure against the judgment of the AdditionalDistrict and Sessions Judge, Fast Track Court No.II, Chennai, made inS.C.No.138 of 2007 dated 6.7.2007.C.A.834/2008 preferred under Sec.377 of the Code of CriminalProcedure against the judgment of the Additional District SessionsJudge, Fast Track Court No.II, Chennai, made in S.C.No.138 of 2007dated 6.7.2007. https://hcservices.ecourts.gov.in/hcservices/ For Appellants: Mr.P.Prince Premkumar for appellants in C.A.651/2007 & for respondents in CA 834/2008 Mr.V.Gopinath, Senior Counsel for Mr.T.Shanmugamuthu in CA 776/2007 and for Accused Nos.2 & 3 in CA.No.834/2008For Respondent: Mr.N.R.Elango Additional Public Prosecutor for respondent in CA 651 & 776/2007 and for appellant in CA 834/2008COMMON JUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)Both these appeals namely C.A.Nos.651/2007 by A-1 and A-5 to A-7and 776/2007 by A-2 and A-3, challenge a judgment of the AdditionalDistrict and Sessions Court, Fast Track Court No.II, Chennai. Theystood charged along with A-4 since deceased, under Sections 120(b),147, 148, 341 and 302 of IPC. On trial, A-1 and A-5 to A-7 werefound guilty under Sections 120(b) r/w 302 and 341 of IPC andsentenced to undergo 3 years Rigorous Imprisonment and 1 monthRigorous Imprisonment respectively. A-2 and A-3 were found guiltyunder Sections 148 and 302 of IPC and awarded 3 years RigorousImprisonment and life imprisonment along with a fine of Rs.10000/-and default sentence respectively.2.The State has preferred C.A.No.834 of 2008 for enhancement ofsentence imposed on A-1 and A-5 to A-7.3.The short facts necessary for the disposal of these appealscan be stated as follows;(a) P.W.14 is the mother and P.W.2 is the younger brother of thedeceased Veera. They were residents of Seniyamman Koil Street,Tondiarpet. The deceased Veera and A-3 were on inimical termspursuant to a quarrel. One month before the occurrence, the deceasedVeera beat A-2, A-3 and A-4. Before 15 days, A-1, A-5, A-6 and A-7were standing in front of their house. P.W.14 came to know that A-1belonged to Kasimedu. P.W.14 told P.W.2 that she came to know thatA-1 and his henchmen had a plan to murder Veera. (b) On the date of occurrence namely 16.7.2006, at about 9.00A.M., A-2, A-3 and A-4 since deceased, restrained the deceased in aplace near a tea shop. Thereafter, the deceased Veera went to hiswork. At about 8.30 P.M., Veera and his brother P.W.1 went in a BajajM80. At that time, A-3's mother was speaking with P.W.2, and she washolding a cell phone. She told P.W.2 that A-3 was speaking. Shefurther told that A-3 had done something and he would come after sometime. P.W.1, the younger brother of the deceased, seated on the back https://hcservices.ecourts.gov.in/hcservices/ of a Bajaj M80 which was driven by the deceased Veera. The vehiclewas proceeding towards Kodungaiyur through Elaiya Mudali Street. Atthat time, A-2 and A-3 and the deceased Dilli Babu waylaid thedeceased. All of a sudden, A-2, A-3 and A-4 took out knives andattacked the deceased Veera. When he tried to prevent the same, theykicked him on his stomach. When he raised a distressing cry, theaccused attacked Veera with knives. On hearing the same, publicgathered in the place of occurrence. Then the accused persons ranaway from the scene of occurrence. At about 8.45 P.M. P.W.14 wasinformed that her son Veera was murdered. (c) The severely injured Veera was brought to Stanley GovernmentHospital where P.W.5, the Doctor, who was on duty, declared him dead.The accident register copy is marked as Ex.P4, and the deathintimation is marked as Ex.P5. (d) P.W.1 went to H3 Tondiarpet Police Station and lodged Ex.P1,complaint, on the strength of which P.W.17, the Inspector of Police,registered a case in Crime No.398/2006 under Sections 147, 148, 341and 302 of IPC. The printed FIR, Ex.P17, was despatched to the Court.At about 10.50 P.M., P.W.17 took up investigation, proceeded to thespot, made an inspection and prepared an observation mahazar, Ex.P3,and also a rough sketch, Ex.P18. He also recovered bloodstainedearth and sample earth under a cover of mahazar. He conductedinquest on the dead body of Veera in the presence of witnesses andpanchayatdars and prepared an inquest report, Ex.P18. The place ofoccurrence and the dead body were photographed through P.W.7, aPhotographer. (e) The dead body was subjected to postmortem by P.W.6, theProfessor and Head of Department, Department of Forensic Medicine,Stanley Medical College and Hospital, Chennai, who has given hisopinion in Ex.P6, the postmortem certificate, that the deceased wouldappear to have died out of shock and haemorrhage due to multipleinjuries. (f) P.W.17 examined the witnesses and recorded their statements.He came to know that A-2, A-3 and A-4 surrendered before the JudicialMagistrate, Poonamallee. Then, he applied for police custody, andthe same was ordered. At the time of interrogation, they madeconfessional statements which were recorded in the presence ofwitnesses. The admissible part of the confessional statements of A-2, A-3 and A-4 are Exs.P19, P20 and P21 respectively. Pursuant tothe confession, A-2 produced a patta knife and a half sleeve shirt,M.O.10, which were recovered under a cover of mahazar. Equally, A-4produced M.O.11, shirt, and a patta knife, which were recovered undera mahazar. A-3 produced a knife and M.O.12 half shirt. (g) Pending investigation, on 21.7.2006, the Investigatorarrested A-5, A-6 and A-7. They came forward to give confessionalstatements, which were marked in the presence of witnesses. Theadmissible part is marked as Exs.P23, P24 and P25 respectively. Theyalso produced knives and shirts which were recovered under separatemahazars. (h) On 26.7.2006, A-1 was arrested. He gave a confessionalstatement voluntarily, which was recorded. The admissible part isEx.P27, and he also produced a Hero Honda Splender motorcycle, whichis marked as M.O.19, which was recovered under a cover of mahazar.Then, the finger print expert P.W.9 was called. He visited the place https://hcservices.ecourts.gov.in/hcservices/ of occurrence and took the finger prints found in the beer bottles atthe place of occurrence. He also compared them with that of thedeceased and also the accused. A-3's finger print and theexamination report and A-2's finger print and the examination reportwere marked as Exs.P11 and P12 respectively. All the materialobjects recovered from the place of occurrence and from the dead bodyand also the material objects recovered from the accused were placedfor analysis. Accordingly, Ex.P16, report, was received and placedbefore the Court. On completion of investigation, the Investigatorfiled the final report.4.The case was committed to Court of Session, and necessarycharges were framed. In order to substantiate the charges, theprosecution examined 17 witnesses and also relied on 29 exhibits and22 material objects. On completion of the evidence on the side ofthe prosecution, the accused were questioned under Sec.313 of Cr.P.C.as to the incriminating circumstances found in the evidence of theprosecution witnesses which they flatly denied as false. No defencewitness was examined. The trial Court heard the arguments advancedand took the view that the prosecution has proved the case beyondreasonable doubt and hence found the appellants guilty and awardedpunishment as referred to above. Hence C.A.Nos.651 and 776 of 2007 atthe instance of the appellants. Aggrieved over that part of thejudgment of the trial Court awarding 3 years Rigorous Imprisonmentunder Sec.120(b) IPC, the State has brought forth C.A.834 of 2008 forenhancement of sentence.5.Advancing arguments on behalf of the appellants/A-2 and A-3 inC.A.No.776 of 2007, the learned Senior Counsel Mr.V.Gopinath wouldsubmit that in the instant case, the prosecution proceeded by restingits case that there was originally a conspiracy hatched up by theaccused in order to do away with the deceased Veera, and the same wasactually heard by P.W.14, the mother of the deceased; that the onlywitness examined in that regard is P.W.14; that she has deposedbefore the Court that when she found the mother of A-3, she washolding a cell phone and was talking to her son A-3, while A-3informed her that something was done by somebody and hence he wouldcome later; that except this, she has not deposed anything from whichnothing could be inferred that there was any conspiracy hatched up bythe accused; that it is pertinent to point out that the InvestigatingOfficer has candidly admitted that this evidence as spoken to byP.W.14 was actually not given in her statement recorded under Sec.161of Cr.P.C.; and that it would be quite clear that the prosecution hasmiserably failed to prove the conspiracy theory. 6.As far as the factual position put forth by the prosecutionwas concerned, the learned Senior Counsel would submit that theprosecution miserably failed in its attempt; that the prosecutionfailed to bring home the guilt of the accused by placing direct orcircumstantial evidence; that the case of the prosecution was thatthe occurrence has taken place on 16.7.2006 at about 8.30 P.M. whenP.W.1 accompanied by the deceased went in a Bajaj M80 marked as M.O8,taking food to the wife of the deceased, and on the way, they wereintercepted by the accused, and then the occurrence has taken place; https://hcservices.ecourts.gov.in/hcservices/ that it is the case of the prosecution that P.W.1 has given Ex.P1report; that a reading of Ex.P1 would indicate that at the time ofoccurrence, A-2, A-3, A-4 and A-6 attacked the deceased Veera andinflicted the injuries, and two others were also present at the timeof occurrence; that when he gave evidence before the Court, he hasnot whispered anything about A-6, but has simply stated that theattacks were made by A-2, A-3 and A-4, and 4 or 5 others have alsojoined in that attack, and thus it is a vital discrepancy found. 7.The learned Senior Counsel would further add that according tothe prosecution, P.W.1 was the sole eyewitness who spoke about theoccurrence; that admittedly, he was the own brother of the deceased;that according to him, he proceeded along with his brother Veerataking food for the wife of the deceased, and at that time, theytravelled in a Bajaj M80 motorbike, and he has witnessed theoccurrence; but, contrarily, P.W.14, the mother of the deceased, hascategorically stated that all the family members including P.W.1,were present in the house, and only on hearing the information ofmurder, all proceeded to the hospital; that in such circumstances,the evidence of P.W.14 would clearly rule out the presence of P.W.1at the scene of occurrence at that time, and hence the evidence ofP.W.1 and that too, an interested testimony, should have beenrejected by the trial Court.8.Added further the learned Senior Counsel that according toP.W.1, he is an illiterate, and he went to the police station, andthe report was written and handed over; but, according to theInvestigating Officer, a written complaint was handed over to himpursuant to which a case was registered; that the Investigator hasactually failed to investigate by whom the report was written and ifat all, by a Constable; and that it is highly doubtful how Ex.P1report has come into existence. 9.Added further the learned Senior Counsel that according to theprosecution, one knife was recovered from each accused along with oneshirt; that all were subjected to chemical analysis; that though theywere found to be bloodstained, no human blood was found; that and noserology report was placed before the Court; that apart from that,the prosecution claimed that the finger print expert was called tothe place; that he also recovered beer bottles; that the fingerprints found therein were also compared with that of A-2 and A-3, andthey were found to be tallying with each other; and that a report wasalso given. The learned Senior Counsel commenting upon the samewould submit that the finger prints of the accused, according to theInvestigator, P.W.17, were taken from the accused by the constables;but those constables were not examined; that further according to theInvestigator, beer bottles were recovered from the place ofoccurrence as per the recovery mahazar at about 12.30 A.M. night;but, according to P.W.9, the Finger Print Expert, he was called tothe spot, and beer bottles in which the finger prints of A-2 and A-3were available, were actually recovered at about 2.30 A.M.; that ifto be so, there is a vital discrepancy as to the recovery of beerbottles; and that all would go to show that that apart of theevidence should have been rejected by the trial Court. https://hcservices.ecourts.gov.in/hcservices/

10.The learned Senior Counsel would further add that theprosecution though rested its entire case on the conspiracy, failed;that the prosecution examined P.W.1 the sole testimony, which stooduncorroborated and which also did not stand scrutiny; that under thecircumstances, the prosecution failed to prove its case, and hencethey are entitled for acquittal. 11.Advancing arguments on behalf of the appellants in C.A.No.651of 2007 while adopting the arguments of the learned Senior Counselrecorded above, in short would submit that the names of A-1 and A-5to A-7, the appellants herein, were not stated in the FIR; that theyhave not been attributed with any overt act; that under thecircumstances, they are entitled for acquittal; that they have beenroped in by the prosecution by resting its case on the conspiracytheory; that if the conspiracy theory failed for the reasons statedabove, they are also entitled for acquittal in the hands of thisCourt, and thus the trial Court has taken an erroneous view. 12.The Court heard the learned Additional Public Prosecutor onthe above contentions and paid its anxious consideration on thesubmissions made.13.It is not in controversy that one Veera, the brother of P.W.1and the son of P.W.14, was taken to the hospital where he wasdeclared dead by P.W.5, the Doctor, and thereafter, a case came to beregistered for murder directly, and the investigation was taken up byP.W.17. After the preparation of the inquest report, the dead bodywas subjected to postmortem by P.W.6, the Doctor, who has givencategorical opinion that Veera died out of shock and haemorrhage dueto multiple injuries sustained by him. He has given a postmortemcertificate apart from giving evidence before the Court. The factthat Veera died out of homicidal violence was never disputed by theappellants/accused before the trial Court, and hence it has got to berecorded so as rightly done by the trial Court.14.From the available materials, it could be seen that theprosecution rested its case to start with on a conspiracy theory. Itis well settled proposition of law that the theory of conspiracy canbe proved either by direct evidence or by circumstances proved fromwhich conspiracy could be inferred. In the instant case, this Courtis unable to see either direct evidence or the necessarycircumstances from which conspiracy could be inferred. The onlywitness examined by the prosecution in that regard is P.W.14.According to P.W.14, when she was on her way, she found the mother ofA-3 holding a cell phone and talking to her son A-3 who told her thatsomething was done by somebody and thus he would be coming later,from which it cannot be inferred that there was any conspiracy.Apart from that, this evidence adduced before the Court was actuallynot found in the statement given by the witness before theInvestigator and recorded under Sec.161 of Cr.P.C. Barring thisevidence, the prosecution had no direct or indirect evidence tooffer. Under the circumstances, it could be well stated that theprosecution has miserably failed to prove the case of conspiracy. https://hcservices.ecourts.gov.in/hcservices/

15.Coming to the occurrence spot, the case of the prosecutionwas that P.W.1 accompanied by the deceased went in a Bajaj M80 takingfood to the wife of the deceased. According to P.W.1, when they wereproceeding, the accused waylaid them, and the occurrence has takenplace. The occurrence, according to him, has taken place at about8.30 P.M.. Immediately after the occurrence, he took the injuredVeera to the hospital. P.W.5, the Doctor, has been examined, who hascategorically spoken to the fact that at about 9.15 P.M., the injuredVeera was brought to the hospital by P.W.1, and when he medicallyexamined him, he was found dead, and he has noted the same in Ex.P4,the accident register copy. Now, the learned Senior Counsel for theappellants much commented upon the evidence of P.W.1 that he couldnot have seen the occurrence at all for the reasons stated by him andrecorded above. This Court is unable to agree with the learnedSenior Counsel for the following reasons. 16.The occurrence has taken place at about 8.30 P.M. P.W.1 hasdeposed that immediately after the occurrence, he took the injuredVeera to the hospital. P.W.5, the Doctor, has categorically deposedthat it was P.W.1 who brought his brother Veera, and the same wasrecorded in Ex.P4 the accident register copy. The Doctor hasmedically examined him at about 9.15 P.M. That apart, on the reportof P.W.1, the case came to be registered at about 9.30 P.M., and theFIR has reached the Magistrate at about 11.30 P.M. All have takenplace within a short span of time. 17.The learned Senior Counsel wanted to take advantage of theanswer given by P.W.14 that the family members were available in thehouse when they heard about the occurrence, and they immediatelyproceeded to the hospital. Now P.W.2 has stated that only he went tothe hospital after hearing the news. Now, at this juncture, it ispertinent to point out that the contents found in Ex.P4, the accidentregister copy, and recorded by P.W.5 that it was P.W.1 who broughtthe dead body of his brother Veera to the hospital would clearlyindicate that the evidence of P.W.14 to the effect that all familymembers were in the house, therefore, cannot be given much weight. Itis true that there are certain discrepancies between the FIR and theevidence before the Court. But, when it is looked into, he hascategorically mentioned in the report and also the evidence in Courtthe participation of A-2, A-3 and A-4 and that they inflictedinjuries. This Court is mindful of the caution that in a given caselike this, where there is only one eyewitness who happened to be arelative of the deceased, the Court must exercise the carefulscrutiny test. Even after exercising the test, this Court issatisfied that P.W.1 should have been present when the occurrence hastaken place and because of which he took the dead body to thehospital immediately, and P.W.5 has made such an entry in theaccident register copy, Ex.P4. Further the discrepancies between thereport and also the evidence before the Court cannot, in the opinionof the Court, stand to the advantage of the accused.18.The other material which, in the considered opinion of thisCourt, stood in favour of the prosecution, was the recovery of two https://hcservices.ecourts.gov.in/hcservices/ beer bottles from the place of occurrence. It remains to be statedthat even at the time when the investigation commenced and materialswere recovered from the place of occurrence, these beer bottles wereavailable and they have been recovered and finger prints have beentaken out of it. They were compared with the finger prints of theaccused, and a report has been given, and they were found to betallying with that of A-2 and A-3. It is true that the bottles wererecovered from the place of occurrence immediately within a shortspan of time, and the finger prints that were found in the bottleswere tallying with that of the accused. In such circumstances, it isfor the accused to explain how it happened so since it should be onlywithin the special knowledge of the accused, but they have not doneso. 19.The comment made by the learned Senior Counsel that theconstables who took the finger prints of the accused were notexamined and further the time of recovery is found to be discrepantbetween the evidence of P.W.9 and the Investigator, in the consideredopinion of this Court, cannot be given much importance. When therewas a specific case of the prosecution that the finger prints wereactually taken from the accused, that fact was not denied. Under thecircumstances, by whom it was taken was not at all relevant in theopinion of this Court. Further, the Investigator has stated that therecovery was made at about 12.30 A.M.; but P.W.9, the finger printexpert, would say that it was recovered at 2.30 A.M. As far as thisdiscrepancy is concerned, the investigation process when it commencedat about 12.30 A.M., would be going on for a few hours. Therefore,that discrepancy in the time factor has arisen between the evidenceof these two witnesses, and no weight could be attached to the same. 20.It is true that all the material objects which were recoveredfrom the place of occurrence, from the dead body and also from theaccused on production were subjected to chemical analysis; but it didnot contain blood group or human blood since the serology report wasnot placed before the Court. Even in that case also, that cannot bea factor which could tilt the balance in favour of the accused. Nowthe evidence as placed before the Court through P.W.1 and the othercircumstances attendant would clearly indicate that A-2, A-3 and A-4have inflicted injuries on the accused and as a cumulative effectdeath has been caused immediately. Pending the case A-4 died. Hencethe charge stood abated as against A-4. This Court is of the viewthat A-2 and A-3 have got to be found guilty for the offence ofmurder, and the judgment of conviction and sentence passed by thetrial Court in their regard has got to be sustained. 21.As far as A-1 and A-5 to A-7 are concerned, their presence orparticipation cannot be taken as put forth by the prosecution, in theabsence of anything being whispered in the FIR. So long as theconspiracy theory is not proved by the prosecution, these accused areentitled for acquittal since they are roped in by resting the case onthe conspiracy theory.22.Insofar as the appeal in C.A.No.834/2008 by the State forenhancement of sentence, the learned Additional Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ would submit that while finding A-1 and A-5 to A-7 guilty underSec.120(b) of IPC for criminal conspiracy, the trial Court awarded 3years Rigorous Imprisonment, which is not consistent with theprovision of law. Now this Court has already held that theprosecution has miserably failed to prove the conspiracy theory.Under the circumstances, the appeal by the State must automaticallyget the result of failure. 23.In the result, C.A.No.651 of 2007 is allowed, setting asidethe judgment of the trial Court in respect of A-1 and A-5 to A-7. A-1 and A-5 to A-7 are acquitted of the charges levelled against them.The bail bonds executed by them shall stand terminated. 24.In the result, C.A.Nos.776 of 2007 and 834 of 2008 aredismissed. It is reported that the appellants/A-2 and A-3 inC.A.776/2007 are on bail. Hence the Sessions Judge shall take stepsto commit them to prison to undergo the sentence imposed on them.Sd/Asst.Registrar/true copy/Sub Asst.Registrarnsv/To:1.The Additional District and Sessions Judge Fast Track Court No.II, Chennai.2. -do- Through The Principal Sessions Judge, Chennai.3.The Inspector of Police H-3 Thondaiyarpet Police Station Chennai (Cr.No.398/2006) 4.The Public Prosecutor High Court, Madras.5. The Metropolitan Magistrate, No.XV, George Town, Chennai.6. -do- Through The Chief Metropolitan Magistrate, Egmore, Chennai.7. The Superintendent, Central Prison, Puzhal, Chennai - 66.8. The District Collector, Chennai. https://hcservices.ecourts.gov.in/hcservices/

9. The Director General of Police, Chennai.1 cc To Mr.T.Shanmugamuthu, Advocate, SR.27189.1 cc To Mr.P.Prince Premkumar, Advocate, SR.27188.CRL.A.Nos.651 and 776 of2007 and 834 of 2008SGL(CO)RVL 15.07.2009