Pulliah v. Janarthan & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:19.06.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.946 of 2006 Pulliah... Petitioner/PW8vs.

Janarthan2. Sudhakar3. Ramanayya... Respondents/Accused4. State rep.by ComplainantThe Inspector of Police,L&O,D-4,Valasarawalkkam Police Station, Chennai. Prayer: Petition filed under Section 397 and 401 of Cr.P.C. againstthe judgment of the learned Additional Sessions Judge cum IV FastTrack Court, Chengalpattu at Poonamallee in S.C.No.72 of 2003, dated18.4.2006 acquitting the respondents 1 to 2 for the charge u/s 302r/w 34 IPC and the respondent 3 for the charge u/s 302 r/w 109 IPCand prays that this Hon'ble Court may be pleased to call for therecords in the above said sessions case from the above said Court andexercise the powers of criminal revision of this Court and set asidethe above said judgment. For Petitioner : Mr.A.ShivkumarFor Respondents : Mr.R.Vijayakumar

O R D E RAnimadverting upon the order dated 18.4.2006, passed by thelearned Additional Sessions Judge cum IV Fast Track Court, Chengalpattu at Poonamallee in S.C.No.72 of 2003, this criminalrevision is focussed.

Broadly but briefly, narratively but precisely, therelevant facts which are absolutely necessary and germane for thedisposal of this revision would run thus: (a) The police laid the police report in terms of Section 173Cr.P.C. against A1 to A3 for the following offences: Respondents 1 and 2 were charged for the offence u/s 302 r/w 34IPC and respondent 3 was charged for the offence u/s 302 r/w 109 IPC.(b) Inasmuch as the accused pleaded not guilty, the learnedSessions Judge proceeded with the trial. On the prosecution side P.Ws1 to 23 were examined, Exs.P1 to P38 were marked and M.Os.1 to 11were marked. On the defendants' side no oral or documentary evidence https://hcservices.ecourts.gov.in/hcservices/ was adduced. Ultimately the trial Court acquitted the accused of allthe offences, with which, they were charged. (c) Being aggrieved by and dissatisfied with the judgment ofacquittal, the father of the deceased, Pulliah, who was P.W.8 in theprosecution case, filed thi revision challenging and impugning theacquittal on various grounds, the gist and kernel of them would runthus:

The lower Court ignoring the oral evidence of P.Ws.1 to 23and also Exs.P1 to P38 and M.Os.1 to 11 simply acquitted the accusedunjustifiably. The evidence of P.W.2, the independent witness beingthe neighbour of the deceased, was not taken into consideration. Even though P.Ws.3, 4 and 13 spoke about the abscondance of theaccused since the date of occurrence on 09.02.2002, the lower Courtdid not give importance to such a piece of evidence. P.W.5, the Doctor categorically stated that A2 told her about his complexity inperpetrating the crime, but the lower Court did not take intoconsideration such evidence in proper prescriptive. The injurysustained by A1 while committing murder was clearly proved by theprosecution, but even then the lower Court simply ignored it. TheMahazar witnesses spoke about the recoveries of blood stained earth, weapon of offence and various other materials etc., but that was notconsidered by the lower Court. P.Ws.2 and 9 identified the accusedduring identification parade, but that was also ignored by the trialCourt. The evidence of P.W.16 formed part of the circumstantialevidence and its significance was not appreciated by the lower Court. The post mortem report also clearly supported the prosecution case. Accordingly, the trial Court ignoring the clinching evidence adducedby the Prosecution, simply acquitted the accused warrantinginterference by this Court and accordingly, the revision petitionerprays for interfering with the order of acquittal and for settingaside the same and to pass suitable orders.

Heard both sides.

The points for consideration are as to: (1) Whether the lower Court was perverse in applying the lawrelating to circumstantial evidence?(2) Whether the lower Court unjustifiably ignored theevidence of P.W.16 and also the evidence of P.Ws.2 and 9 and otherMahazar witnesses who spoke about recoveries of M.Os.7 and 8, theweapons of offence and also the evidence of parents of the deceasedand other clinching evidence?(3) Whether interference of this Court is required?7. The learned counsel for the revision petitioner placingreliance on the grounds of revision would canvass the case of therevision petitioner to the effect that the revision petitioner's sonwas brutally murdered by A1 and A2 at the behest of A3 and that thepolice also took steps to gather evidence and produce before thetrial Court, for nothing but to be rejected by the trial Courtunjustifiably. https://hcservices.ecourts.gov.in/hcservices/

Whereas the learned counsel for the respondents/accusedwould by inviting the attention of this Court to various portions ofevidence would highlight that absolutely there is no shred or shard, iota or miniscule, scintilla or speck of evidence to drive home theguilt of the accused and in such a case, the lower Court wasjustified in acquitting the accused and no interference is required.

Under these circumstances, it is just and necessary toanalyse the various portions of the evidence adduced before the lowerCourt for the purpose of finding whether the lower Court wasjustified in acquitting the accused or not.

The long and short of the prosecution case is that on09.02.2002, at about 10.30 p.m. while the accused was riding themotor cycle bearing Registration No.TN 10 C 5227 belonging to P.W.7,along Annai Sathya Main Road in Valasaravakkam area, A1 and A2 at thebehest of A3 waylaid him and brutally attacked him with M.Os.7 and 8and done him to death at the spot itself and got absconded due toprevious enmity that the deceased father, P.W.8 had illicit intimacywith the mother of A1 and A2 and wife of A3.

The learned counsel for the respondents/accused wouldsubmit correctly that in a case of circumstantial evidence, motivepart of the crime gets prominence even though normally motive part ofthe crime alone is not the decisive factor. According to him duringtrial, P.W.8 as well as P.W.11 the parents of the deceased had givena go bye to the motive part of the crime by pointing out nothingabout the alleged illicit intimacy between P.W.8 and the wife of A3.Whereas P.W.8 would come forward with a different version that therewas some financial dealings between himself and the family of theaccused and that alone actuated and accentuated, propelled andimpelled the accused to make short work of his son, the deceasedMuralimohan. As such it is clearly and pellucidly clear that theprosecution laid the police report by incorporating one motive, namely the father of the deceased P.W.8, had illicit intimacy withwife of A3 and that was the bed rock of the enmity. But duringtrial, the prosecution witness namely P.W.8 as well as P.W.11, thewife of P.W.8 had given a go bye to the said motive and in such acase, it has been held that absolutely the prosecution failed toprove the motive part of the crime in this case beyond reasonabledoubt. The prosecution through P.W.16 attempted to put forth thecase as though while P.W.16 was riding his motor cycle nearby theplace of occurrence, he accidentally came across the motor cycledriven by A2 with A1 as pillion rider with bleeding hand soon afteroccurrence on 09.02.2002, and on seeing A1, P.W.16 allegedlyquestioned him about it, for which A1 replied as though he had anentanglement with deceased Muralimohan and in that process hesustained injury.

The learned counsel for the accused would invite theattention of this Court to various portions of the evidence and pointout as to how the evidence of P.W.16 is totally an unreliable one andby no stretch of imagination, it could be taken as evidence whichcould be relied on for the purpose of recording conviction as againstthe accused. P.W.16 would detail and delineate that after allegedly https://hcservices.ecourts.gov.in/hcservices/ having seen A2 coming along with A1 on the motor cycle on 09.02.2009,and also having ascertained as above from A1 about the presence ofthe blood on his hand, he (P.W.16) simply left for Nellore at 04.00a.m. on 10.02.2002 itself so as to attend his sister's son's marriagewithout informing anyone about the occurrence and that he returnedonly on 18.02.2002, so to say 8 days after the date of occurrence andon learning that Muralimohan was murdered, he went to police andnarrated his experience with A1.

The learned counsel for the accused would convincinglysubmit that if really P.W.16 had come across A1 and A2 soon after theoccurrence and if he really ascertained from A1 about such allegedentanglement between A1 and deceased, certainly he being the relativeof the deceased family would have informed the family members of thedeceased before allegedly going to Nellore. In fact, P.W.7 duringcross examination would candidly and concisely reply to the defencelawyer's question that on 10.02.2002 during the funeral ceremony of Muralimohan, P.W.16 was very much present along with A3 and others. As such the learned counsel for the respondents would correctlydevelop his argument that when P.W.7 categorically deposed thatP.W.16 was very much available on 10.02.2002 itself at the funeralceremony of deceased Muralimohan, the question of P.W.16 being at Nellore and returning back from there on 18.02.2002 etc., is nothingbut a cock and bull story dished out by P.W.16 with the help of thepolice.

On the revision petitioner's side, nothing fruitful hasbeen highlighted about this discrepancy by explaining this seriousdefect in the prosecution case. In my opinion the evidence of P.W.16was relied upon by the prosecution to prove the incriminatorycircumstances, but that is turned out to be not a reliable piece ofevidence in view of my discussion supra.

On the prosecution side, evidence of P.W.5, the Doctorwas relied on coupled with Ex.P2 the Accident Register, wherein the Doctor P.W.5 recorded the history narrated by the injured A1, when A1was produced before the Doctor by two constables with memo.

The learned counsel for the revision petitioner wouldsubmit that such recording of the findings by the Doctor who is anindependent witness about the narration of occurrence by A1 is anadmissible piece of evidence and that could be relied upon forconviction.

At this juncture, my mind is redolent and reminiscent ofthe decision of the Hon'ble Apex Court reported in REHMAT VS. STATEOF HARYANA(1997 CRL.L.J.764), an excerpt from it would run thus: "10. There is also another aspect which goes in favourof the appellant. Admittedly Padam Singh (P.W.4) alongwith Vijay Singh had first gone to the Primary HealthCentre for medical help but he did not disclose the name ofthe assailant to the Doctor. Ordinarily, in a medico legalcase, the doctor is supposed to write down the history ofthe injured but admittedly in this case, medical papers of Padam Singh (PW4) do not indicate the name of the https://hcservices.ecourts.gov.in/hcservices/ assailant. The names were disclosed only at the time whenthe complaint was recorded by SI Narain Singh at about 9.00p.m. which was treated as a formal FIR. The learnedcounsel for the appellant, therefore, rightly urged thatthe appellant was later on implicated in the present crimeat the instance of the complainant and his friends.

M.Os.7 and 8 were claimed to have been recovered by Investigating Officer. M.O.7 was recovered at the instance of A1 andM.O.8 was recovered at the instance of A2. But the evidence adducedin support of such recoveries turned out to be not worthy of beingconsidered for conviction. P.W.14 whom the prosecution relied on toprove the recovery as per Section 27 of the Indian Evidence Act, inno way supported the prosecution case. P.W.15 would simply statethat police called him to the Police Station and there the policeasked him to question the accused as to what he did. Whereupon, asper P.W.15, A1 took out a knife from the Police Station itself andhanded it over to the Police.

It is obvious and axiomatic that such sort of evidencecan never be taken as sufficient evidence to prove the recovery ofM.O.7, which was alleged to have been used by A1 for perpetratingthe crime. Relating to M.O.8, the prosecution relied on the evidenceof P.Ws.15 and 20, but their evidence is far from satisfactory forthe reason that according to P.W.23, the Investigating Officer, theconfession of A2 was recorded near round tanna of Valasaravakkam, butthose witness would speak otherwise. In fact, P.W.20, V.A.O. wouldgo to the extent of deposing that after recovery of the weapon, confession was recorded etc. As such, the evidence on the https://hcservices.ecourts.gov.in/hcservices/ prosecution side relating to recovery of M.Os.7 and 8 cannot berelied on for recording conviction as against any one of the accused.

Even though prosecution relied on the statements of someof the witnesses, so to say P.Ws.2, 3, 4, 9 and 13 for the purpose offixing the responsibility at the initial stage on the accused and forarresting them, the evidence of those witnesses during trial in noway helped the Court to believe that based on such evidence alonepolice arrested the accused. P.Ws.2 and 9 would not in any waybefore the Court speak that they had seen the accused in the companyof the deceased shortly before the occurrence; unless there is suchan evidence, the question of ushering in the last seen theory wouldnot be attracted. Even though the police claimed that A1 wasarrested only near his house, there is nothing to indicate thatbefore the arrest, police gathered any reliable evidence to rope him. The inquest report would not refer to any accused. The panchayatarsconcluded that unknown persons committed the murder. Even though, they opined suspicion was there on some persons, the names of thesuspects were not found recorded therein.

I would also like to point out that in the inquestreport, the gist and kernel of the statements of the witnesses whoare examined before the Panchayatars should find a place, but that ismissing and the police in future should take note of this fact andsee that in the inquest report at least the summary of the statementsof the witnesses who are examined before the Panchayatars is foundrecorded there.

The defence theory relating to explaining the injury onA1 was that A1 was illegally taken into custody and he was kept inpolice custody for a considerable time and was tortured and that theinjuries on A1 were due to that only. But here there is nothing toindicate that A1 was illegally taken into custody and relating tothat no telegram or representation was given to the higher officialsor to the Court, for which the learned counsel for the respondentswould submit that the family of the accused was not that mucheducated or conversant with the legal provisions to resort to suchmethods. Be that as it may, the accused is not duty bound to provethe defence theory beyond reasonable doubts.

The defence of the accused was also that at the relevanttime of the incident, the deceased was riding the motor cycle ofP.W.7 and he (P.W.7) might have had enemies and due to mistakenidentity the deceased might have been done to death by those enemies. The defence theory as such is a far fetched one fails to carryconviction with this Court. It is the duty of the prosecution toprove the guilt of the accused beyond reasonable doubts, but in thiscase, I could see no clinching piece of evidence on the prosecutionside.

At this juncture, I like to fruitfully cite the decisionof the Hon'ble Apex Court reported in AIR 1992 SUPREME COURT 2045[ State of U.P v. Ravindra Prakash Mittal] relating to circumstantialevidence. https://hcservices.ecourts.gov.in/hcservices/

The nitty gritty, the pith and marrow of the decision isthat the Court is expected to resort to disjunctive syllogisticpattern in analysing the evidence. The alternatives should bemutually exclusive and collectively exhaustive. All the alternativesshould be capable of being excluded except one which pointsunerringly towards the guilt of the accused. Applying that theory ifthe evidence on record is analysed, it is clear in view of mydiscussion supra that no such circumstances are pointing towards theguilt of the accused and in such a case, I could see no merit in thisrevision. Accordingly, this criminal revision case is dismissed. Sd/- Asst. Registrar/True Copy/ Sub. Asst. RegistrargmsTo1. The Additional Sessions Judge cum IV Fast Track Court, Chengalpattu at Poonamallee2. -do- Thro' The Principal Sessions Judge, Chengalpattu at Poonamallee.3. The Inspector of Police, D-4,Valasarawalkkam Police Station, Chennai.4. The Public Prosecutor, Madras.+ 1 cc to Mr.R.Vijaya Kumar, Advocate, Sr.24946Crl.R.C.No.946 of 2006GV(CO)EM/23.7.09