Panneerselvam v. State

BAIL SLIPThe Appellant / Accused No.5 viz. Panneerselvam, S/o.Kalyanasundaram was directed to be released on bail as per order ofthis Court dated 4.7.2006 made in M.P.1 of 2006 in Crl.Appeal No.532of 2006 on the file of this Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 20-7-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRL.A.Nos.532 and 628 of 2006Panneerselvam.. Appellant/A-5 in CA 532/20061.Seetharaman @ Shiva @Murugan @ Ranjith Kumar2.Sivakumar.. Appellant/A-1 and A-4 in CA 628/2006vsState rep by:Inspector of PoliceVirudhachalam Police StationCuddalore DistrictCrime No.92/02.. Respondent/Complainant in both appealsCriminal appeals preferred under Sec.374(2) of the Code ofCriminal Procedure against the judgment of the Additional DistrictCourt (Fast Track Court No.III), Virudhachalam, made in S.C.No.234 of2003 dated 29.5.2006.For Appellants: Mr.S.Vijayan in CA 532/2006 Mr.K.Gandhi Kumar in CA 628/2006For Respondent: Mr.N.R.Elango Additional PublicProsecutor https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)This judgment shall govern these two appeals in C.A.No.628/2006by A-1 and A-4 and C.A.No.532/2006 by A-5. These appellants alongwith other three accused shown as A-2, A-3 and A-6, stood charged,tried and found guilty as follows:ACCUSEDCHARGESFINDINGPUNISHMENTA-1 to A-6120(B) IPC --A-1 & A-2364 IPCA-1 GuiltyA-2 Acquitted10 years RI witha fine ofRs.1000/-A-1 to A-4302 IPCA-1 & A-4 Guiltyunder Sec.302r/w 34 IPCA-2 & A-3acquittedLifeimprisonmentA-1 to A-4201 IPCA-1 & A-4 guiltyunder Sec.201r/w 34 IPCA-2 and A-3acquitted3 years RI witha fine ofRs.1000/-A-5 & A-6302 r/w 109 IPCAcquittedA-1 to A-6396 IPC --A-5 was found guilty by the trial Court under Sec.201 r/w 34 of IPCand awarded three years Rigorous Imprisonment along with a fine ofRs.1000/- and default sentence. The trial Court made an order ofacquittal of A-2, A-3 and A-6 in respect of all the charges levelledagainst them.2.Short facts necessary for the disposal of these appeals can bestated as follows:(a) P.W.1 Abdul Razak was entrusted with M.O.1 ambassador car,bearing registration No.TN-31/C-9169 by P.W.3 who is the owner of thecar. P.W.1 in turn employed the deceased Ramesh and was hiring itout. Whenever Ramesh took the car for the purpose of taking thepassengers, he used to inform P.W.1 over phone. Accordingly, on10.2.2002 around 5.00 P.M., Ramesh informed to P.W.1 that he had gota passenger to go to Jayankondam and thereafter to proceed to Chennaiand would come back to Vridhachalam on the next day. (b) P.W.5 is the mother and P.W.6 is the father of Ramesh. WhenP.W.5 was in her house at about 5.30 P.M. on 10.2.2002, Ramesh cameto the house to change the dress and told her that he was going toChennai and would come back only in the next evening. At that time,A-1 who came there stated that it was he who hired the car and askeda cup of water. He further informed that he belonged to https://hcservices.ecourts.gov.in/hcservices/ Udayarpalayam. Since Ramesh did not come for a few days, P.W.1 gavea complaint to Vridhachalam Police Station on 13.2.2002. The same ismarked as Ex.P1. On the strength of Ex.P1, P.W.29, the Sub Inspectorof Police, attached to the respondent police station, registered acase in Crime No.92/2002 under Sec.365 of IPC. The printed FIREx.P21 was despatched to the Court. (c) P.W.29 took up investigation, proceeded to the spot, made aninspection and prepared an observation mahazar, Ex.P10, and also arough sketch, Ex.P22. Then he examined the witnesses and recordedtheir statements. After doing so, the case was altered to Sec.379 ofIPC. The amended FIR, Ex.P23, was despatched to the Court. (d) On receipt of the copy of the FIR, P.W.33, the Inspector ofPolice of the said Circle, took up further investigation. On27.9.2002, pending investigation by the Inspector of Police, AriyalurPolice Station, in Crime No.176/2002 under Sections 302 and 379 ofIPC, the accused were arrested. They gave confessional statements tothe effect that they kidnapped the deceased Ramesh along with thecar, murdered him and have stolen the car. The said Inspector ofPolice, Ariyalur, informed the same to P.W.33, who took up furtherinvestigation in this case. On perusal of these materials produced,P.W.33 converted the case in Crime No.92/2002 to Sections 302 and 379of IPC. The amended FIR, Ex.P26, was despatched to the Court. (e) Continuing with his investigation, P.W.33 gave a requisitionto the Chief Judicial Magistrate to conduct identification parade.Accordingly, identification parade was conducted by P.W.27, theJudicial Magistrate, Tittagudi, in which P.Ws.1, 3, 5 and 6participated. The identification parade proceedings are marked asEx.P19. (f) The Investigator proceeded to the house of A-1, made aninspection and prepared an observation mahazar marked as Ex.P27, andalso a rough sketch Ex.P28. Pursuant to the requisition made by theInvestigator, the skull and the skeleton of Ramesh were sent toForensic Laboratory for analysis. On 23.9.2002, the Investigatorarrested A-4 when he came forward to give a confessional statement inthe presence of P.W.22, the Village Administrative Officer, and hisAssistant. The same was recorded. The admissible part is marked asEx.P11. Then A-4 took the police party to A-1's house and produced aniron pipe, M.O.6, crowbar, M.O.7, and spade, M.O.8. They were allrecovered under a cover of Ex.P12, the mahazar. He was sent forjudicial remand.(g) The Investigator has taken A-5 to police custody followingthe order passed by the Judicial Magistrate, Vridhachalam. A-5 cameforward to give a confessional statement voluntarily, and the samewas recorded. The admissible part is Ex.P13. Following the same, heproduced a TVS 50 motorcycle, M.O.9, from his house. The same wasalso recovered under a cover of mahazar, Ex.P14. A-5 was alsoproduced before the Court for judicial remand. https://hcservices.ecourts.gov.in/hcservices/ (h) The further investigation was taken up by P.W.34, theInspector of Police. He took up investigation in Crime No.176/2002of Ariyalur Police Station and arrested the accused Baskar, A-2, andSivakumar, A-4. A-2 came forward to give a confessional statement inthe presence of witnesses. The same was recorded through videocamera. M.O.10 is the video camera, and the video cassette is M.O.11which was sent to the Judicial Magistrate's Court, Ariyalur. Theywere sent for judicial remand. (i) Police custody was ordered for A-3. A-3 came forward togive a confessional statement. The same was recorded. Pursuant tothe same, he took the police party and identified the place where thedead body of Ramesh was buried. An intimation was given to theInvestigator in Crime No.92/2002 and also to the parents of thedeceased. A-3 identified the place where the dead body was buried.The observation mahazar and rough sketch were prepared. They areExs.P30 and P31 respectively. Then the dead body was exhumed in thepresence of the Tahsildar, P.W.26. The parents of the deceased andalso the other witnesses identified that it was that of the deceasedRamesh. P.W.26 conducted inquest on the dead body in the presence ofwitnesses and panchayatdars and prepared an inquest report, Ex.P16. Arequisition was given to the hospital authorities for the purpose ofautopsy. (j) The dead body was subjected to postmortem by P.Ws.24 and 25,the Civil Surgeons, attached to the Government Hospital, Jayankondam.They issued a postmortem certificate, Ex.P15, with their opinion thatthe deceased would appear to have died of the injuries sustained. (k) Following the same, M.O.2, pant, M.O.3, shirt, and M.O.4,silver waist cord were recovered under a cover of mahazar, Ex.P32. Onthat day, on suspicion, A-6 was arrested. He came forward to give aconfessional statement. The same was recorded under a video cassetteM.O.14. The confessional statement of A-5 was also recorded. M.O.1,white ambassador car, was recovered under a cover of Ex.P3, mahazar.Further, the confessional statements of A-1 and A-4 were recorded inthe presence of Tahsildar, Ariyalur, under video cassettes, marked asM.Os.15 and 16 respectively. On completion of investigation, theInvestigator filed the final report under Sections 364, 302 r/w 34,302 r/w 109 and 201 of IPC.3.The case was committed to Court of Session, and necessarycharges were framed. In order to substantiate the charges levelledagainst the accused, the prosecution marched 34 witnesses and reliedon 34 exhibits and 16 material objects. On completion of theevidence on the side of the prosecution, the accused were questionedunder Sec.313 of Cr.P.C. as to the incriminating circumstances foundin the evidence of the prosecution witnesses which they flatly deniedas false. No defence witness was examined. The trial Court heardthe arguments advanced and took the view that the prosecution hasproved the case beyond reasonable doubt in respect of A-1, A-4 and A-5 and hence found them guilty and awarded punishment as referred to https://hcservices.ecourts.gov.in/hcservices/ above. Hence these appeals at the instance of the appellants. 4.Advancing arguments on behalf of A-5, the learned Counselwould submit that according to the prosecution, a TVS 50 motorcyclewas used by the accused for disposing of the body of the deceased;that the trial Court also much relied on the recovery of TVS 50motorcycle from A-5; but, there is no evidence at all indicating thatit was used in the commission of the crime; that in fact, A-5 had noknowledge in that regard; that in the absence of such a knowledgeestablished by the prosecution, the conviction is bad in law; thatapart from that, the prosecution has failed to prove the identity ofthe dead body; that there is also no proof that Ramesh was done todeath by any of the accused; that it is pertinent to point out thatthere was no charge framed against A-5 under Sec.201 r/w 34 of IPC;that in the absence of the same, A-5 cannot be found guilty; underthe circumstances, the judgment of the trial Court has got to be setaside, and he is entitled for acquittal.5.The learned Counsel appearing for A-1 and A-4 would submitthat the prosecution has not proved its case beyond reasonable doubt;that there is delay in lodging the complaint to the respondentpolice; that no explanation is forthcoming; that the only possibleevidence of P.W.5, the mother of the deceased, was different fromchief and cross-examination; that at the time of trial, she hasstated in the chief that the person who accompanied her son on10.2.2002 was not present in Court; that though she has identified A-1 and A-2 at the time of identification parade, she has deposedbefore the Court that the person whom she identified at the time ofidentification parade, was not available in Court; that under thecircumstances, the evidence of P.W.5 cannot be accepted at all; thatas far as the recovery of M.O.1 car, is concerned, according to theInvestigator, it was recovered under Ex.P3 mahazar; that if Ex.P3 islooked into, it would indicate that it is pertaining to recovery oftwo items and did not include car; that there is no materialavailable to accept the said recovery; that according to theprosecution, M.Os.6 to 8, iron pipe, crowbar and spade respectively,were recovered near the house of A-1 pursuant to the arrest andconfession of A-4 on 23.9.2002; that according to the Investigator,A-1 was arrested on 14.9.2002 itself; that in such circumstances, itis highly doubtful whether the recovery of those weapons could havebeen made as put forth by the prosecution; that as regards A-1,nothing was recovered from him; that according to the prosecution, A-3 on arrest gave a confessional statement, and following the same, heidentified the place where the dead body of Ramesh was buried; that aperusal of the inquest report would indicate that on 13.9.2002 atabout 7.30 A.M., one Chinnaian @ Muthusamy gave information to theV.A.O., Pilakurichi that a dead body was buried in the said spot;that it also clearly speaks about the name of the deceased as Ramesh,and he was 22 years old, and he was a car driver; that this wouldindicate that the place where the dead body was buried came to theknowledge of the police even on 13.9.2002 itself through the VAO, andthus the confessional statement leading to the above recovery cannotbe accepted; that the trial Court has erroneously found A-1 and A-4guilty, and hence they are entitled for acquittal in the hands of https://hcservices.ecourts.gov.in/hcservices/ this Court.6.The Court heard the learned Additional Public Prosecutor onall the above contentions and paid its anxious consideration on thesubmissions made.7.The case of the prosecution as could be seen above was thatthe appellants shown as A-1, A-4 and A-5 respectively along with theother accused A-2, A-3 and A-6 who were acquitted by the trial Court,hatched up a conspiracy on 7.2.2002, in the house of A-1; thatpursuant to the conspiracy, A-1 and A-2 kidnapped the deceased Rameshfrom the Taxi Stand at Vridhachalam along with his Car; that inpursuance of the plan, A-1 attacked the deceased with an iron pipewhile A-3 and A-4 strangulated him with a towel and caused his death;and that in order to screen the same, they buried the dead body inthe cashew grove. In order to substantiate the alleged conspiracyand also the crime of murder, the prosecution much relied on theevidence of P.W.9, who turned hostile before the trial Court, andthus his evidence was not useful to the prosecution. 8.Further, the prosecution placed reliance on the evidence ofP.W.5, the mother of the deceased. She has deposed before the Courtthat on 10.2.2002 at about 5.30 P.M., when she was in the house, herson Ramesh came to the house for changing his dress, and alsoinformed that he was to take the car to Jayankondam and therefrom toMadras, and he would be coming in the next afternoon. The evidencewould go to show that at that time, A-1 accompanied him and asked fora cup of water from P.W.5, and she was talking to him for sometime.Thus, she was able to identify A-1. The trial Court has accepted thesaid evidence and has also pointed out that the prosecution hasproved the last seen theory and has observed that it was A-1 who tookRamesh from the house on the evening hours of 10.2.2002, andthereafter the deceased did not return, and hence it is a strongcircumstance against A-1. This Court is afraid whether the evidenceof P.W.5 could be accepted for two reasons. Firstly, at the time oftrial when all the accused were in the Court, she has categoricallydeposed in the chief-examination that the person who accompanied herson on 10.2.2002, was not present in Court. The identificationparade was conducted on 20.9.2002, and the proceedings are marked asEx.P19. The claim of the prosecution before the trial Court was thatshe was able to identify A-1 and A-2 at the time of the parade; but,when she was examined in Court on 10.6.2004, she has categoricallydeposed that among the accused present in Court, the person whom sheidentified at the time of identification parade was not available.The learned Additional Public Prosecutor brought to the notice of theCourt that the matter was adjourned for further chief-examination,and it was taken on 6.7.2004, and on that day, she was able toidentify A-1 and A-2 before the Court, and thus she has givenevidence to the effect that she identified A-1 and A-2 at the time ofthe parade. When she has categorically deposed at the time of chief-examination on 10.6.2004 itself that the person who accompanied herson to the house that day was not available in Court and she also didnot identify any one in Court at the time of trial, it would behighly unsafe to accept her evidence to sustain a conviction. https://hcservices.ecourts.gov.in/hcservices/

9.Apart from the evidence of P.W.5, the reliance was also placedby the trial Court on the alleged confession and recovery. However,the Court below was not ready to accept the confessional statementrecorded through video cassettes produced before the Court and wasnot ready to accept the case of the prosecution in respect of A-2, A-3 and A-6, and acquitted them. P.W.34, the Inspector of Police, whotook up investigation of Ariyalur PS Crime No.176/2002, has claimedthat the confessional statements of A-2 and A-3 were recorded on8.9.2002, in which they have also spoken about their involvement inthe present crime in Crime No.92/2002 of the respondent policestation. The witness has clearly pointed out that A-2 and A-3 wereactually in the police station on 7.9.2002 itself, and thus it wouldbe indicative of the fact that the arrest of A-2 and A-3 claimed bythe police on 8.9.2002, could not be believed. Equally there waspossibility for P.Ws.5 and 6 to see the accused persons already. Thelearned Counsel brought to the notice of the Court that thisconfession alleged to have been recorded in Crime No.176/2002 was notbelieved by the Court in an appeal from the conviction and sentencein the said case wherein it was observed that the so-calledconfession could not be believed. 10.As far as the recovery of M.O.1 car, is concerned, P.W.33 hascategorically stated that it was recovered under Ex.P3 mahazar. WhenEx.P3 mahazar, is looked into, it is pertaining to recovery of twoitems of property which did not include the car. Thus it would bequite clear that though the Investigator claimed to have recoveredM.O.1 car, there is no material available to accept the said recoveryas put forth by the prosecution. Thus, the prosecution was unable topoint out from whom and when it was recovered. Further, the case ofthe prosecution was that M.O.6, iron pipe, M.O.7, crowbar, and M.O.8,spade, were recovered near the house of A-1 pursuant to the arrestand confession of A-4 on 23.9.2002. It is pertinent to point outthat the Investigator has claimed that A-1 was arrested on 14.9.2002itself. Hence it is highly doubtful whether these weapons alleged tohave been recovered in front of the house of A-1 could have been madeas claimed by the prosecution on 23.9.2004 when it was identified byA-4. As far as A-1 was concerned, nothing was recovered from him. 11.According to P.W.33, the Investigator, on arrest A-3 gave aconfessional statement voluntarily, and the same was recorded, andfollowing the same, he took the police party and other witnesses tothe place where the dead body of Ramesh was buried, and afterpreparation of the observation mahazar, Ex.P30, and the rough sketch,Ex.P31, in the presence of the Tahsildar, P.W.26, the dead body wasexhumed, and thereafter it was identified. But, the perusal of theinquest report marked as Ex.P16, would read that on 13.9.2002 atabout 7.30 P.M., one Chinnaian @ Muthusamy gave information to theVAO, Pilakurichi, that a dead body was buried in the said spot. Italso clearly speaks about the name of the deceased as Ramesh, and hewas 22 years old, and he was a car driver. Thus it would be quiteclear that the place where the dead body was buried came to theknowledge of the police even on 13.9.2002 itself through the VAO. https://hcservices.ecourts.gov.in/hcservices/ Under the circumstances, the case of the prosecution that the placeof burial was identified by A-3, and the confessional statement ledto the recovery of that relevant fact cannot be accepted. 12.As far as A-5 was concerned, the trial Court has found himguilty under Sec.201 read with 34 of IPC and awarded the punishment.But, a perusal of the charges framed against the accused, wouldindicate that such a charge was not framed against A-5, and thus theconviction in that regard cannot but be illegal. In the instant case,the prosecution though attempted to rest its case originally on thedirect evidence for conspiracy and also the crime of murder, hadfailed. The circumstances placed by the prosecution and inparticular, the pieces of evidence relied on by the prosecutionnamely identification parade, arrest, confession and recovery andalso the evidence of P.W.5, for the reasons stated above could not beaccepted. This Court is of the view that basing a conviction on theabove feeble evidence would be highly unsafe. Under thecircumstances the judgment of the trial Court has got to be setaside, and the appellants are entitled for acquittal. 13.In the result, both these criminal appeals are allowedsetting aside the judgment of conviction and sentence passed by thetrial Court. The appellants are acquitted of the charges levelledagainst them. The bail bond executed by the appellant/A-5 in CA532/2006 shall stand terminated. A-1 and A-4 are directed to bereleased forthwith unless their presence is required in connectionwith any other case. The fine amounts paid by the appellants will berefunded to them.Sd/Asst.Registrar/true copy/Sub Asst.Registrarnsv/To:1.The Additional District Judge Fast Track Court No.III Vridhachalam.2.-Do-Thro' The Principal Sessions Judge, Cuddalore.3.The Judicial Magistrate No.1, Virudhachalam.4.-Do-Thro' The Chief Judicial Magistrate, Cuddalore. https://hcservices.ecourts.gov.in/hcservices/

5.The Inspector of Police Virudhachalam Police Station Cuddalore District.6.The Superintendent, Central Prison, Trichy.7.The District Collector, Cuddalore.8.The Director General of Police, Mylapore, Chennai. 9.The Public Prosecutor, High Court, Madras.1 cc To Mr.K.Gandhi Kumar, Advocate, SR.327461 cc To Mr.S.Vijayan Advocate, SR.32932CRL.A.Nos.532 and 628 of 2006CK(CO)PMK(28/7/2009)