High Court · 2008

BAIL SLIPThe appellant/Accused No.2, viz. Rajesh, son of Subramani, was releasedon Bail, in and order of this court dated 16.11.2006 and made inCrl.M.P.No.1/2006 in Crl.Appeal No.912/2006 on the file of this court.2. The appellant/Accused No.3 viz. Logu @ Loganathan, S/O.Kesavan, wasreleased on Bail, in and order of this court dated 1.12.2006 and made inCrl.M.P.No.1/2006 in Crl.Appeal No.950/2006 on the file of this court.3.The appellant/Accused No.1 viz. Sathish @ Sathish Basha S/O. AhamedBasha, was released on Bail, in and order of this court dated 8.1.2007and made in Crl.M.P.No.1/06 in Crl.Appeal.No.1053/2006 on the file ofthis court.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 21.10.2008 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE S.RAJESWARANCRIMINAL APPEAL NOS.912, 950 AND 1053 OF 2006Rajesh.. Appellant inC.A.No.912 of 2006/Accused No.2Logu @ Loganathan.. Appellant inC.A.No.950 of 2006/Accused No.3Sathik @ Shathik Basha.. Appellant in C.A.No.1053 of 2006/Accused No.1Vs.State represented byInspector of Police,Vishnukanchi Police Station,Kancheepuram District.Crime No.346/2005.. Respondent/Complainant These criminal appeals have been preferred under Section 374 Cr.P.C.against the judgment of conviction and sentence passed by the learnedAdditional District Judge, Fast Track Court No.2, Kancheepuram made inS.C.No.100 of 2006, dated 4.9.2006. For Appellants : Mr.S.Shanmugavelayutham, SC for Mr.C.P.Patabiraman in C.A.No.912 of 2006 https://hcservices.ecourts.gov.in/hcservices/ Mr.G.M.Shankar in C.A.No.950 of 2006 Mr.T.Sathiyamoorthyin C.A.No.1053 of 2006For Respondent : Mr.P.Kumaresan, APP COMMON JUDGMENT(The judgment of the Court was made by M.CHOCKALINGAM, J.)This judgment shall govern these three appeals, namely CriminalAppeal Nos.912, 950 and 1053 of 2006. The first one is filed by A-2, thesecond one is filed by A-3 and the third one is filed by A-1.2.All these appeals have arisen from the judgment of the AdditionalDistrict Sessions Division, Fast Track Court No.II, Kancheepuram made inS.C.No.100 of 2006, whereby these appellants stood charged as follows:A-1 to A-3- S.302 r/w S.34 IPCA-3- S.201 IPCA-1 and A-2- S.201 r/w S.34 IPCOn trial, all the three accused were found guilty under Section 302 r/wS.34 IPC and were sentenced to undergo life imprisonment each and alsoto pay a fine of Rs.1000/- each, in default to undergo 6 months S.I. andthey were acquitted of the other charge levelled against them. 3.The short facts necessary for the disposal of these appeals can bestated thus:a)P.W.1 is the wife of the deceased Sankar. The deceased was avegetable vendor and he owned a car, which was hired to the knownpersons. He took his car to Madras on 15.7.2005 for a customer,wherefrom he gave a phone call to his wife asking her to get prepared togo to Samayapuram next morning. Accordingly, she was waiting with thechildren. On 16.7.2005 at about 4.30 a.m., when she was in the house,she was informed by two persons that a person was found in a pool ofblood near a car and they verified the car number. She immediatelyunderstood that it was her husband and it was their car. Immediately,she informed her relatives, rushed to the spot and found her husband ina pool of blood. The deceased was taken to the Government Hospital,Kancheepuram, where the deceased was declared dead.b)At about 11.00 a.m., P.W.1 proceeded to the respondent policestation, where P.W.7, the Sub Inspector of Police was on duty, to whomshe gave Ex.P.1, the complaint, on the strength of which a case came tobe registered in Crime No.346 of 2005 under Section 302 IPC. Ex.P.8, theF.I.R. was despatched to the Court. c)P.W.13, the Inspector of Police, on receipt of the copy of theF.I.R., took up the investigation, proceeded to the spot and made aninspection in the presence of the witnesses. He prepared Ex.P.2, theobservation mahazar and Ex.P.15, the rough sketch. He recovered thebloodstained earth and sample earth under a cover of mahazar. Then, heproceeded to the Government Hospital, Kancheepuram and conducted inquest https://hcservices.ecourts.gov.in/hcservices/ on the dead body of the deceased in the presence of the witnesses andpanchayatdars and prepared Ex.P.16, the inquest report. Following thesame, the dead body was sent to the hospital for the purpose of autopsy.d)P.W.5, the Doctor attached to the Government Hospital,Kancheepuram, on receipt of the requisition, has conducted autopsy onthe dead body of the deceased and has issued Ex.P.6, the post-mortemcertificate, wherein he has opined that the deceased would appear tohave died of injury to vital organ, namely Brain. e)P.W.13 proceeded with the investigation and he examined thewitnesses and recorded their statements. P.W.10, Mani appeared beforehim on 19.7.2005 and gave statement. Since P.W.13 had to go to theSupreme Court, the investigation was entrusted to P.W.12, the Inspectorof Police and from 30.07.2005, he conducted investigation. From thestatement of P.W.10, the Investigator came to know the involvement of A-1. Accordingly, A-1 was arrested on 30.7.2005 and he voluntarily gaveconfessional statement in the presence of the witnesses and the same wasrecorded. The admissible part of the same was marked as Ex.P.10.Pursuant to the same, he produced M.O.5, Cycle Rickshaw break rod, whichwas recovered under a cover of mahazar. On information given by A-1, A-2was also arrested at about 4.00 p.m. A-3 was also arrested and he gaveconfessional statement voluntarily, the admissible part of which wasmarked as Ex.P.11. Following the same, A-3 produced an auto rickshawbearing registration No.TN 21 C 8965 under a cover of mahazar. All theaccused were sent for judicial remand. f)P.W.13 again took charge and he further proceeded with theinvestigation. He examined the other witnesses and recorded theirstatements. All the material objects recovered from the place ofoccurrence, from the dead body of the deceased and the M.Os recoveredfrom the accused were subjected to chemical analysis by the ForensicScience Department, which resulted in two reports, namely Ex.P.18, theSerologist's report and Ex.P.19, the Physiology Report. On completion ofthe investigation, the Investigating Officer has filed the final report.4.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 13 witnesses and relied on20 exhibits and also 8 M.Os. On completion of the evidence on the sideof 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 and looking into the materials available, took the view thatthe prosecution has proved the case beyond reasonable doubt and foundthe appellants guilty under Section 302 r/w S.34 IPC and awardedpunishment as referred to above, which is the subject matter ofchallenge before this court.5.Advancing arguments on behalf of the appellants, the learnedcounsel would submit that the case of the prosecution is that thehusband of P.W.1, namely Sankar, was done to death in an incident that https://hcservices.ecourts.gov.in/hcservices/ took place at about 1.30 a.m. on 16.7.2005 at New Street and all thethree accused/appellants were involved in the crime; that in order tosubstantiate their involvement, the prosecution had no eyewitness atall; that it rested its case on circumstantial evidence; that thecircumstances relied on by the prosecution were two; that firstly, thestatement of P.W.10, the tea shopwala; that according to him, he haslast seen all the accused in the company of the deceased; and thatsecondly, the recovery of M.O.5, Cycle Rickshaw break rod from A-1pursuant to the confessional statement and also M.O.6, Auto rickshawfrom A-3 pursuant to the confessional statement.6.The learned counsel would further add that the evidence of P.W.10is highly unreliable and it is uncreditworthy at all; that at one stage,he would say that he is working in the tea stall and at the other stage,he would say that he was the owner of the tea stall; that according tohim, at about 1.30 a.m., when he was just crossing the place ofoccurrence, he saw A-1 to A-3 in the company of the deceased and theywere also quarreling and thereafter, he left the place; that at about5.15 a.m., when he was returning, he saw the dead body, but he has notinformed to anybody; that he was examined by the police on 19.7.2005;that the investigating Agency claimed that his statement was recorded on19.7.2005 and it has reached the court on 17.10.2005 and thus, there wasa delay of nearly 3 months; that no explanation was forthcoming from theprosecution; that had it been true that P.W.10 had seen that such aquarrel was going on and subsequently, the dead body was found, he wouldhave immediately informed the same to the police or anybody, but he hasnot done so, but he remained silent; that this would be indicative ofthe fact that he could not have seen the accused in the company of thedeceased at all; that the delay in sending the statement to the courtcoupled with the said fact would strengthen the situation and thus, theevidence of P.W.10 should have been rejected. 7.The learned counsel would further add that so far as the recoveryof M.O.5, Cycle Rickshaw break rod is concerned, it is highlyunbelievable; that the evidence in this regard remained shaky; that onarrest, A-1 gave confessional statement, pursuant to which, it wasrecovered; that the statement of P.W.10 was only cooked up after thearrest of A-1; that so far as A-2 and A-3 are concerned, even P.W.10 hasstated that he did not know them earlier nor their physical features northeir names; that no identification parade was conducted in respect ofA-2 and A-3; that in the instant case, there is no evidence as to theinvolvement of A-2 and A-3; that even P.W.10 has stated that threepersons were standing, out of whom he knew only A-1 and not two othersand under these circumstances, so far as A-2 and A-3 are concerned, thecase was bereft of any evidence worth mentioning; that the trial courthas not appreciated any one of the factual positions put forth, but hasentered into conviction and sentence and hence the judgment of the trialcourt has got to be set aside. 8.The court heard the learned Additional Public Prosecutor on theabove contentions and has paid its anxious consideration on thesubmissions made. https://hcservices.ecourts.gov.in/hcservices/

9.It is not in controversy that the husband of P.W.1, namely Sankar,was done to death in an incident that took place at about 1.30 a.m. on16.7.2005. Following the inquest made by P.W.13, the InvestigatingOfficer, on the dead body of the deceased and the preparation of inquestreport, the dead body was subjected to post-mortem by P.W.5, the Doctor,who has given his categorical opinion as a witness before the court andin Ex.P.6, the post-mortem certificate that the deceased would appear tohave died of injury to vital organ. The fact that the deceased died outof homicidal violence was not disputed by the appellant and hence noimpediment is felt by the court in recording so. 10.True it is, in the instant case, the prosecution had no directevidence as to the factual position that at about 1.30 a.m. on16.7.2005, Sankar was done to death by the attack made by A-1, in whichA-2 and A-3 also formed company. But, the prosecution relied oncircumstantial evidence. The court is mindful of caution made by thesettled principles of law that before accepting the circumstantialevidence to sustain conviction, the circumstances must be cogent andmust make a complete chain without a snap, pointing to the hypothesesthat except the accused no one could have committed the offence. Evenafter applying the said test, the court is thoroughly satisfied that theprosecution has proved the case beyond doubt so far as A-1 is concerned. 11.In the instant case, according to the prosecution, the occurrencehas taken place on 16.7.2005 at about 1.30 a.m. According to P.W.10, hewas actually working in a tea stall and he used to go to shop to get teaduring night hours and since in their shop, they could not light theoven during night hours, he used to go to the other shop and get tea andon the date of occurrence, when he was just crossing the place ofoccurrence, he saw three persons, including A-1, quarrelling with thedeceased and he left from the place and thereafter, when he returned, hesaw the dead body at about 5.15 a.m. and he came to know that it was acase of murder. His statement was recorded by the police on 19.7.2005.At this juncture, it is pertinent to point out that the occurrence hastaken place on 16.7.2005. It remains to be stated that P.W.10 was not aneyewitness to the occurrence. When he was crossing the place ofoccurrence, he saw three persons including A-1, quarrelling with thedeceased. It is to be stated that A-1 was also residing in the samestreet and therefore, it is quite natural that when quarrel was going,he did not interfere and left the place also and further, he did notentertain any suspicion and there was no occasion for him to report tothe police or to speak with anybody or to inform to the house of thedeceased, but he left the place. 12.At the time when the case was registered, who were the assailantsremained unknown. Since it was a case of murder and it was also affirmedthrough the post-mortem certificate, the case was registered and theinvestigation was on. On enquiry, P.W.10 gave such statement as to theinvolvement of A-1 and two others. From the available materials, itcould be seen that further investigation was handed over to P.W.12,since P.W.13 had to go to the Supreme Court and after some time, hereturned and took up the investigation. In the instant case, thestatement of P.W.10 reached the court only in the month of October, https://hcservices.ecourts.gov.in/hcservices/

2005. This court is unable to agree with the contentions put forth bythe learned counsel for the appellants as to the delay for the reasonsthat P.W.10 was not an eyewitness, but he witnessed the quarrel and hehas not even found that the accused were armed with any weapon and itwas only quarrel and therefore, he did not mind the same and left theplace. Thus, only on information given by P.W.10, the investigation wasdone in the right line and A-1 was fixed and he gave confessionalstatement, pursuant to which the weapon of crime was also recovered inthe presence of the witnesses. The witnesses examined for the purpose ofarrest, confessional statement and recovery remained unshaken.Therefore, this part of the evidence adduced by the prosecution would bepointing to the nexus of the first accused with the crime. The evidenceof P.W.10 relied on by the prosecution as to the last seen theory andalso the arrest of A-1, confessional statement and the recovery ofM.O.5, cycle rickshaw break rod would be sufficient to point out theguilt of A-1. Hence the contentions put forth by the learned counsel forthe appellants in respect of A-1 have got to be rejected. 13.So far as A-2 and A-3 are concerned, the only evidence that wasavailable for the prosecution was P.W.10. Even P.W.10 has categoricallypointed out that he saw two other persons along with A-1, but he did notmention their names or physical features. Not even identification paradewas conducted subsequently. Hence it could be well stated that there isneither direct evidence nor circumstantial evidence, pointing to theparticipation or involvement of A-2 and A-3 in the crime. Under thesecircumstances, the benefit of doubt has got to be given to A-2 and A-3and hence A-2 and A-3 are entitled for acquittal. From the marshallingof evidence, it would be quite clear that the guilt of A-1 has beenbrought forth and hence he has got to be convicted under Section 302 IPC.14.Accordingly, the conviction under Section 302 r/w S.34 IPC andthe sentence of life imprisonment in respect of A-1 are modified andinstead, A-1 is convicted under Section 302 IPC and sentenced to undergolife imprisonment. The fine amount awarded by the trial court in respectof A-1 will hold good. The judgment of conviction and sentence inrespect of A-2 and A-3 is set aside and A-2 and A-3 are acquitted of thecharges levelled against them. The bail bonds executed by A-2 and A-3shall stand terminated and the fine amount, if any paid by them, shallbe refunded to them. It is reported that A-1 is on bail and hence theconcerned Sessions Judge shall take steps to secure his presence andcommit him to prison to undergo the life imprisonment. 15.In the result, Criminal Appeal No.1053 of 2006 fails and the sameis dismissed. Criminal Appeal Nos.912 and 950 of 2006 filed by A-2 andA-3 are allowed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.vvk https://hcservices.ecourts.gov.in/hcservices/ To1.The Additional District Judge, Fast Track Court No.2, Kancheepuram.2.-Do- through The Principal District Judge, Chengalpattu.3.The Judicial Magistrate No.1, Kancheepuram.4.-Do- through The Chief Judicial Magistrate, Chengalpattu.5.The District Collector, Kancheepuram.6.The Director General of Police, Mylapore, Madras - 600 004.7.The Superintendent, Central Prison, Cuddalore.8.The Inspector of Police, Vishnukanchi Police Station, Kancheepuram District.9.Public Prosecutor, High Court, Madras.+ 1 cc to Mr.T.Vijayaraghavan,Advocate SR.No.58190+ 1 cc to Mr.G.M.Shankar, Advocate, SR.No.58204+ 1 cc to Mr.T.Sathiyamoorthy, Advocate,SR.No.58354CRIMINAL APPEAL NOS.912, 950 AND 1053 OF 2006rsm(co)em/30.10.08 https://hcservices.ecourts.gov.in/hcservices/