Madras High Court
N.Banu (A1) vs State Of Tamil Nadu on 24 April, 2017
THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 23.02.2017 PRONOUNCED ON : 24.04.2017 CORAM: THE HONOURABLE MR.JUSTICE S.NAGAMUTHU and THE HONOURABLE MR.JUSTICE N.SESHASAYEE Criminal Appeal Nos.685, 689 to 693 of 2016 & 98 of 2017 and Crl.M.P.Nos.9676, 9778 to 9782 of 2016 & 2810 of 2017 Crl.A.Nos.685, 689 to 693 of 2016 & 98 of 2017 N.Banu (A1) .. Appellant in Crl.A.No.685 of 2016 G.Karuna (A2) .. Appellant in Crl.A.No.689 of 2016 T.Suresh (A3) .. Appellant in Crl.A.No.690 of 2016 R.Karthick (A4) .. Appellant in Crl.A.No.691 of 2016 R.Dinesh Kumar @ Deena (A5) .. Appellant in Crl.A.No.692 of 2016 1. J.Soloman (A6) 2. M.Karthik (A7) .. Appellants in Crl.A.No.693 of 2016 - Vs - State of Tamil Nadu, Rep by The Inspector of Police, CB CID Metro Wing, Chennai 600 016. (Crime No.618 of 2008) .. Respondent in all the appeals Prayer:- Appeals filed under Section 374 of the Code of Criminal Procedure against the judgment passed by the learned Principle Sessions Judge, Chennai in S.C.No.73 of 2009 dated 13.07.2016. For Appellant : Mr.A.Ramesh in Crl.A.No.685/16 SC for Mr.N.Chandrasekaran For Appellant : Mr.N.R.Elango in Crl.A.No.689/16 SC for Mr.R.Vivekanandan For Appellants : Mr.AR.L.Sundaresan in Crl.A.Nos.690 SC for Mrs.AL.Ganthimathi to 693/16 For Respondent : Mr.R.Rajarathinam, in all the appeals Public Prosecutor Asst. by Mr.P.Govindarajan, APP For intervenor : Mr.A.Thiagarjan in Crl.M.P.No.2810/17 SC for Mr.J.Balaji in Crl.A.No.685/16 Crl.A.No.98 of 2017 State of Tamil Nadu, Rep by The Public Prosecutor High Court, Madras 600 104. CB CID Metro Wing, Chennai. (Crime No.618 of 2008) .. Appellant - Vs - 1. N.Banu (A1) 2. G.Karuna (A2) 3. T.Suresh (A3) 4. R.Karthick (A4) 5. R.Dinesh Kumar @ Deena (A5) 6. J.Soloman (A6) 7. M.Karthik (A7) .. Respondents Prayer:- Appeal filed under Section 377 of the Code of Criminal Procedure for imposing sentence under Section 120(B) IPC in which the respondents/accused (A1 to A7) are found guilty in S.C.No.73 of 2009 dated 13.07.2016 on the file of the learned Principle Sessions Judge, Chennai in S.C.No.73 of 2009 dated 13.07.2016. For Appellant : Mr.R.Rajarathinam, Public Prosecutor Asst. by Mr.P.Govindarajan, APP For respondent 1 : Mr.A.Ramesh SC for Mr.N.Chandrasekaran For respondent 2 : Mr.N.R.Elango SC for Mr.R.Vivekanandan For respondents 3 to 7: Mr.AR.L.Sundaresan SC for Mrs.AL.Ganthimathi - - - - - C O M M O N J U D G M E N T
(Judgment of the Court was delivered by S.Nagamuthu,J.) Dr.M.G.Ramachandran, popularly known as MGR was the Chief Minister of Tamil Nadu till his demise in the month of December, 1987. After his demise, for some time, his wife, Mrs.Janaki Ammal was in politics leading the political party founded by Dr.MGR.
2. Mrs.Janaki Ammal had a brother by name Mr.Mani @ Narayanan. Mr.Narayanan had seven children, who were all well settled in life. P.W.15 Mrs.Latha Rajendran, P.W.2 Mrs.Sudha Vijayakumar and the first accused Mrs.Banu Sridhar are the daughters of Mr.Narayanan. P.W.3-Mr.Ramachandran @ Raja @ Deepan is the son of Mr.Narayanan. During the life time of Dr.MGR, P.W.15, one Geetha Madhu Mohan, P.W.2-Mrs.Sudha Vijayakumar and yet another daughter of Mr.Narayanan by name Janaki Sivaraman were all residing in the house of Dr.MGR and Mrs.Janaki Ammal at Ramavaram Gardens. P.W.3-Mr.Ramachandran @ Raja, the first accused Mrs.Banu and another daughter of Mr.Narayanan by name Manu were all residing in the house belonging to Mr.Narayanan in Lake Area at Nungambakkam.
3. The deceased in this case was one Mr.Vijayakumar. He was married to P.W.2 in the year 1980. For a long time, he was in employment and after the demise of Dr.MGR, the deceased became the personal assistant to Mrs.Janaki Ammal in her political activities. P.W.2 was running a primary school near Ramavaram Gardens and the deceased was looking after the same.
4. Dr.MGR had left behind a Will. As per the said Will, Mrs.Janaki Ammal was given life interest over the property situated in Ramavaram Gardens. After her, according to the Will, the properties should be taken by Mr.Janaki Sivaraman, Radha Gopalakrishnan, Nirmala Ravindran and P.W.2-Mrs.Sudha Vijayakumar for life and after that the said property will go to their legal heirs absolutely. Late N.C.Ragavachari, a leading lawyer of the Madras Bar, who was appointed as the Administrator, for some reason or the other, declined to continue as the Administrator and therefore as per the terms of the Will Mr.Rajendran (P.W.14), the husband of P.W.15 Mrs.Latha Rajendran, became the administrator. In due course, there arose dispute between P.W.14 and the deceased in respect of the administration of the Will. Mrs.Janaki Ammal also passed away.
5. The property dispute between the legal heirs of Mr.Narayanan landed in a number of litigations in the High Court and other Courts. Mr.Narayanan during his life time was running six educational institutions. He died in 2004. During his life time, Narayanan had appointed P.W.3 Mr.Ramachandran @ Raja @ Deepan as the sole trustee for all these schools. The first accused was the Principal of one of the schools. She had a grievance that no property of Mr.Narayanan was given to her. Therefore, she questioned the authority of P.W.3 to be the trustee of all the six schools. This again gave raise to yet another litigation between P.W.3 and the first accused. Because of these litigations, there arose a very strong enmity between P.W.3 and the first accused. The other family members, who are the legal heirs of Mr.Narayanan, also got divided on account of the above litigations. The deceased-Vijayakumar, had been aiding P.W.3, had helped him arrange advocates to represent P.W.3 in the Courts of law and was guiding P.W.3 and had been taking care of his interest in all the litigations. The first accused was enraged over the said activities of the deceased. On few occasions, she requested and even went to the extent of warning the deceased not to support P.W.3. She was under the impression that because of the full support extended by the deceased, P.W.3 was very adamant and so he was refusing to come to terms with her. This enmity is stated to be the motive for the occurrence.
6. The deceased was having his office at Bimanna Mudali Street at Alwarpet, Chennai and he was residing with P.W.2 and his son (P.W.16) in Ramavaram Gardens. He was owning a Santro car bearing Registration No.TN-04-H-3829 (M.O.4). He used to go to his office from his house everyday around 11.00 a.m. and would return in the evening. In the usual course, on 04.06.2008, he went to his office at 11.00 a.m. The computer printer at his office developed a snag. The deceased therefore called P.W.1, a mechanic, over phone around 03.30 p.m., and to come to his office to repair the printer. Accordingly, P.W.1 visited the office of the deceased at Alwarpet and rectified the defect in the printer. One Typist by name Moorthy, was in the office along with the deceased. After the work was over, P.W.1 wanted to go home. The deceased told him that he would drop him in his car at Guindy on his way to Ramavaram.
7. The deceased and P.W.1 started their journey in the Santro car belonging to the deceased from Alwarpet at 08.00 p.m. on 04.06.2008. The deceased drove the vehicle and P.W.1 was sitting in the front seat on the left side. The car was nearing the bridge over Adyar river at Kotturpuram. Near a place known as ABM Avenue, there was a speed breaker on the road. The car, slowly passed over the speed breaker. At that time, another car hit the car driven by the deceased from behind. P.W.1 and the deceased believed that accidentally the car following them might have hit the car lightly. The deceased continued to drive the car in a moderate speed. At that time, a white colour ambassador car (TN-04-J-3295) came from behind, tried to overtake the car driven by the deceased and while negotiating, dashed against the car of the deceased and finally stopped in front of the car of the deceased. The deceased stopped the car. Opening the driver's door, he got down from the car and engaged in a war of words with the person in the car that hit the car of the deceased (He was later on identified as A3). Two other persons (later on identified as A4 and A5) came there in a motorcycle and A2 and A6 came in a Hyundai Ascent car bearing registration No.TN-01-V-5589. Thus, A2 to A6 have assembled there. A3 and A4 were armed with an iron pipe each. The 4th accused attacked the deceased with iron pipe on his head. The accused 2, 3, 5 and 6 though did not attack the deceased, facilitated the 4th accused in attacking the deceased. Then the accused 2 to 6 escaped from the scene of occurrence in their vehicles. So far as A7 is concerned, though he was not present at the scene of occurrence, he had lent his car TN-01-V-5589 to A2 to use the same in the commission of the crime.
8. When the assailants started attacking the deceased, P.W.1 ran away from the scene of occurrence to a small distance out of fear. He rushed back to the place of occurrence within few minutes. He found the deceased lying with injuries. He spoke to P.W.21, the son of the deceased, over mobile phone and informed him about the occurrence. P.W.21 rushed to the place of occurrence. But even before he could reach, P.W.1 and others from that locality took the deceased in the car belonging to the deceased to Apollo hospital and admitted him there. On being informed about the occurrence, P.W.2, P.W.3 and P.W.21 rushed to the hospital. The doctor at the Apollo hospital, after examining the deceased, declared him dead.
9. It is the case of the prosecution that the first accused, out of enmity, had engaged the accused 2 to 7 for killing the deceased. A2, according to the prosecution, is a friend of A1 and A3 to A6 were the hired killers. It is also the case of the prosecution that the accused 1 to 7 conspired to kill the deceased and in pursuance of the said conspiracy, the accused 3 to 5 followed the deceased in the ambassador car and at the place of occurrence, hit the car of the deceased, forced him to get down from his car and finally the 4th accused attacked him on his head with iron pipe and the accused 2, 3, 5 and 6 facilitated him. The 7th accused was the owner of the ambassador car, which according to the case of the prosecution, was given by him to the second accused for the purpose of executing the conspiracy.
10. After the deceased was declared dead in the hospital, P.W.1 made a complaint to the police upon which the present case was registered at 10.15 p.m. on 04.06.2008 under Sections 147, 148, and 302 r/w 120(b) I.P.C. Since the names and other details of the assailants were not known, such details were not mentioned in Ex.P1-complaint. At that time, when the complaint was made, P.W.21 had suspected the involvement of one Mrs.Latha (the sister of P.W.2), her husband Rajendran and her son Kumar. So, these three were shown in the F.I.R. as suspected assailants. P.W.1, further mentioned that the total number of assailants was eight. Accordingly the said case was registered. Ex.P99 is the F.I.R.
11. The case was taken up for investigation by P.W.77, the then Inspector of Police, Abiramapuram police station. When the deceased was attacked, there was profuse bleeding from the head of the deceased which had stained the clothes of P.W.1. P.W.77 recovered the same from P.W.1. He arranged for a photographer to take photos at the place of occurrence as well as in the hospital where the dead body was lying. Then, he conducted inquest on the body of the deceased and forwarded the same to the Government Royapettah hospital for postmortem.
12. P.W.62 Dr.R.Baskar, a professor in the department of forensic medicine at Royapettah Government hospital, conducted autopsy on the body of the deceased at 11.45 a.m. on 05.06.2008. He found the following injuries on the body of the deceased:
Injuries: (1) Abrasion 2x1.5 cms over tip of nose. (2) Abrasion 4x3 cms over left snout. (3) Contusion 4x2 to 3 cms over left side of forehead above the region of left eyebrow. (4) Contusion 1.5x1cm over front of lower jaw. (5) Patterned contusion 3x1.5 cms over the mucosal surface of mid lower lip. (6) Contusion 1.5x1 cm over mucosal surface of mid upper lip. (7) Penetrating injury 1.5 x 1 cms x bone deep over right side of forehead 1 cm above inner third of right eyebrow. (8) Oblique cut injury 3x1cmxcavity deep across upper part of mid forehead. (9) Transeverse laceration 1x1cmxbone deep 1cm above the upper end of injury No.8. (10) Laceration 3x1cmxbone deep over upper part of mid forehead 1 cm away from injury Nos.8&9 with contused abrasion of adjacent region. (11) Cut injury 4.5x1.5 cmsx1 cm over the right naso labial region. (12) Laceration 23x2 to 5 cms x cavity deep transeversly across the mid back of head 10.5 cms above posterior hair line with comminuted depressed fracture of underlying bone exposing the irregularly lacerated meninges and brain tissue. The margins are irregular and the angles are obtuse.
On Dissection: Bruising of scalp seen over front of head 6x5 cms corresponding to external injury No.3, cut fracture of frontal vault seen corresponding to external injury No.7 and 8 with fissured extension on to the base bruising of scalp about the margins of injury No.12. Depressed comminuted fracture of vault seen involving both parietal bones corresponding to external injury No.12 with full thickness transverse extension. Encircling the entire skull measuring 43 cms and downward extension involving the posterior and middle cranial fossae. Fracture base of skull seen involving anterior middle and poaterior cranial fossa. Heart normal in size, Chambers contained scant fluid blood. Lungs C/S pale. Stomach contained 30 gms of cream coloured fluid material. Mucosa normal. Liver, spleen and kidneys C/S pale. Intestines distended with gas. Bladder empty. Pelvis and spinal column intact. Ex.P83 is the postmortem certificate. He opined that the said injuries could have been caused by a weapon like M.O.5 iron pipe. He further opined that the death of the deceased was due to shock and haemorrhage due to the multiple injuries found on the body of the deceased.
13. P.W.77 then visited the place of occurrence prepared an observation mahazar and a rough sketch around 01.30 a.m. on 05.06.2008, he recovered the bloodstain earth and sample earth from the place of occurrence. He examined P.W.2, P.W.21 and few others and recorded their statements. He recovered the Santro car belonging to the deceased bearing Registration No.TN-04-H-3829. In the said car, the white paint particles from the ambassador car were stained. He collected those white paint particles under a mahazar.
14. Continuing the investigation, he examined many more witnesses and forwarded the material objects also to the Court. At that juncture, the Director General of Police issued an order transferring the investigation to CB CID. Accordingly, P.W.78, Mr.Venkatesan the then Inspector of Police, CB CID took up the case for investigation on 09.06.2008. He examined many witnesses more particularly P.Ws.1 and 2 on 13.06.2008. The investigation revealed the involvement of A2 and that he was a police constable, was hiding near JRM school at Vadapalani, Chennai. Immediately, he took P.W.23, the Village Administrative Officer and his assistant Mr.Ravikumar and went to Vadapalani JRM school. Near the said school, the second accused, who was a police constable, was sitting in the Hyundai assent car bearing Registration No.TN-01-V-5589 (M.O.6). At 09.00 a.m. on 08.09.2008, P.W.78 arrested him in the presence of witnesses. While in custody, as soon as the arrest, he disclosed the place where he had hidden the motorcycle a knife, a compact disk, a pass book and other objects. In pursuance of the same, he took P.W.78, P.W.23 and other witnesses to No.11, Budhar Street, MGR Nagar from where he produced a knife (M.O.7), reliance cell phone (M.O.8), Nokia cellphone (M.O.9), passport (M.O.10), C.D. (M.O.11), Hero Honda motor cycle bearing Registration No.TN-09-AP-1821 (M.O.12). P.W.78 recovered these M.Os.6 to 12 in the presence of witnesses.
15. Then, on the same day, at 11.30 a.m. near JRM school, P.W.78 arrested the first accused. From the first accused, P.W.78 recovered black colour Nokia Cell phone (M.O.13) in the presence of the same witnesses under a mahazar. On the same day at 02.00 p.m. at Chennai Maddipakkam, Moovarasampettai, I-Main Road P.W.78 arrested the accused Mr.Suresh (A3). While in custody, he had disclosed the place where he had hidden a Mahindra van bearing registration No.TN-51-V-0939 and a Nokia Cellphone. In pursuance of the same, he took the police to the place of hideout and produced the said van and a blue colour Nokia cell phone (M.O.14).
16. On the same day at 03.15 p.m., at the same place, he arrested the 7th accused Mr.M.Karthik in the presence of the same witnesses. While, in custody he made a confession statement in which he disclosed that he had handed over the ambassador car to P.W.33. In pursuance of the same, he took the police and the witnesses to Vivekananda Nagar, Chennai and identified one Mr.Lawarance (P.W.33) from whom the ambassador car bearing registration No.TN-04-J-3239 and Nokia cell phone were recovered (vide M.Os.15 and 16). Then he forwarded all these accused to Court for judicial remand.
17. On 09.09.2008 at 12.00 noon at Nanganallur Nehru Colony, he arrested the 6th accused, Mr.Solomon in the presence of witnesses. While in custody, he made a disclosure statement and identified A4 Mr.R.Karthick. On the same day at 02.00 p.m. P.W.78 arrested A4 R.Karthick at Indira Gandhi Nagar, Chennai in the presence of the same witnesses. While in custody, he made a confession, in which, he disclosed the place where he had hidden a bloodstained iron pipe and a shirt. In pursuance of the same he took the police and the witnesses to his house and produced an iron pipe (M.O.5) and shirt (M.O.17). P.W.78 recovered the same. On 09.09.2008, at 04.00 p.m. at Anna Nagar 4th Road, he arrested the 5th accused Mr.Dinesh @ Dinesh Kumar. While in custody, he made a voluntary confession, in which, he disclosed the place where he had hidden the motorcycle and a lungi. In pursuance of the same, he took the police and the witnesses to his house and produced a motorcycle bearing registration No.TN-03-A-8050 (M.O.18) and bloodstain lungi (M.O.19). He recovered the same under a mahazar. Then, he forwarded these accused to the Court for judicial remand.
18. At the request of P.W.78, statements of some of the witnesses were recorded under Section 164 Cr.P.C. by the learned Metropolitan Magistrate. At the request made by P.W.78 the accused 1 and 2 were entrusted to the custody of P.W.78 on 16.09.2008. On the same day, house search was conducted at the house of A2 and many material objects were recovered from the house. Then, in pursuance of the disclosure statement made by A2 at 02.15 p.m., from one Indirajeeth (P.W.27) a black colour cellphone was recovered. Similarly, in pursuance of the disclosure statement of A2, a colour monitor (M.O.23), Samsung DVD (M.O.24), Inteck Optic ICK (M.O.25) and key board (M.O.26) were recovered.
19. In order to ascertain the telephonic conversation between A1 and A2, the sample voices of A1 and A2 were recorded in the presence of witnesses. House search was conducted at the school where A1 was working. But no material object whatsoever was recovered. Yet another cellphone (M.O.27) was recovered from one witness Balakrishnan (P.W.63) on 22.09.2008.
20. At the request made by P.W.78, on 30.09.2008, test identification parade was conducted, in which, P.W.1, P.W.14 and six others participated. The accused 3 to 6 were put up for identification. Ex.P79 is the report of the learned Magistrate. The material objects were sent for chemical examination, including for DNA examination. P.W.78 collected the reports and on completing the investigation, on 29.11.2008, he laid chargesheet against all the seven accused.
21. Based on the above materials, the trial Court framed charges as detailed below:
Serial Number of charge Charge(s) framed against Charge(s) framed under Section 1 A1 to A7 120(B) of IPC 2 A2 to A6 302 r/w 149 r/w 120(B) of IPC 3 A1 302 r/w 120 (B) of IPC 4 A7 302 r/w 120 (B) of IPC 5 A2 to A6 506(ii) of IPC The accused denied the same. In order to prove the case, on the side of the prosecution, as many as 78 witnesses were examined.
22. During trial, One Mr.L.Venkatesh was examined as P.W.64 on 05.03.2014. In chief examination, he spoke about his relationship with the second accused, the conspiracy hatched between him and the second accused, his engagement of the third accused for committing the murder of the deceased, the money transaction for the said purpose and all the other details. The evidence of P.W.64 was inculpatory wherein he inculpated himself as well as A2 and A3. At the time of his examination, the statement made by him as a witness under Section 164 Cr.P.C. which also contains similar facts relating to conspiracy to which he was a party was proved as Ex.P286. The accused did not cross examine him and took adjournment. Thereafter, on the side of the accused, a petition under Section 319 Cr.P.C. was filed before the trial Court seeking to array P.W.64 as an accused in the case as he had spoken about his involvement in the conspiracy to commit murder of the deceased. That petition was dismissed by the trial Court and the said order was challenged before this Court. One of us (Nagamuthu,J.) by order dated 13.11.2014 confirmed the order of the trial Court. As against the same, a Special Leave Petition was made before the Hon'ble Supreme Court by A5 Mr.R.Dineshkumar @ Deena. The Hon'ble Supreme Court, by an order dated 16.03.2015 while modifying the said order, directed the trial Court to grant pardon to P.W.64 so as to treat him as an approver and examine him afresh. Accordingly, P.W.64 Mr.Venkatesh was granted pardon by the trial Court and thereafter, he was examined afresh on 13.04.2015 as P.W.79. Thus, the evidence of Mr.Venkatesh spoken as P.W.64 has been eschewed.
EVIDENCE OF WITNESSES:-
23. Let us now briefly state the crux of the evidence of the witnesses examined by the prosecution. P.W.1, a computer mechanic has spoken about the fact that he accompanied the deceased and he has further stated about the dashing of the car of the deceased from behind by an Ambassador car and then the fact that the deceased got down from the car and developed a quarrel with them. Though, he was examined as an eyewitness to speak about the participation of the accused 2 to 6, he has turned hostile.
24. P.W.2, the wife of the deceased and P.W.3, the brother-in-law of the deceased have spoken about the motive. P.W.4, yet another eyewitness has stated about the occurrence but during cross examination, he favoured the accused by showing hostility towards the prosecution. He was at last treated as hostile and cross examined. P.Ws.5 and 6 have turned hostile and they have not supported the case of the prosecution in any manner. P.Ws.7 and 8 have spoken about the motive between the first accused and the deceased.
25. P.W.9, who was supposed to speak about the occurrence as the one who accompanied P.W.4 has also turned hostile and he has not stated anything against the accused. P.W.10, the driver of P.W.3 has stated about the close friendship between the first accused and the second accused. P.Ws.11 to 17 have turned hostile and they have not stated anything incriminating. P.W.18, has stated that the first accused, sold jewels for Rs.1,03,032/- to him. P.W.19 has turned hostile.
26. P.W.20, an Advocate appearing for P.W.3 in all the cases has stated about the motive. P.W.21, the son of the deceased has also spoken about the motive. P.W.22 has also turned hostile. P.W.23 has spoken about the arrest of some of the accused and consequential recoveries made. P.W.24 was working in the CB CID headquarters in Chennai. According to him, on 18.09.2008 at 12.30 p.m. he video-graphed the statement of A1 made to the investigating officer. Similarly, he recorded the statement of the second accused at 02.30 p.m. on the same day. From out of the video recording of these two statements, he created two DVDs and handed over the same to the investigating officer. P.W.25 has stated that he was a witness to the recording of the statements of accused 1 and 2 by P.W.24.
27. P.W.26 is another important witness for the prosecution, according to him, he was running a computer center at MGR Nagar, Chennai during the relevant period. The second accused was known to him. The second accused once came to him and handed over a Nokia cellphone to him. He wanted him to download a voice recording in the said cellphone in a CD. He also stated that it contains a secret department information. Accordingly, he downloaded the voice recording from the cellphone through the computer into a CD and handed over the same to the second accused. Then, he erased the downloaded material from the computer as well as from the cellphone. Later on, the investigating officer recovered M.O.23 (Colour monitor), M.O.24 (Samsung DVD), M.O.25 (mouse) and M.O.26 (keyboard) from his computer center in connection with the present case. According to him, M.O.22 (cellphone) was the one handed over to him by the second accused.
28. P.W.27 has stated that he was working in a mobile shop at Venkatanarayana Nagar in T.Nagar, Chennai during the year 2008. The second accused had visited his shop on two or three occasions and some time in the year 2008 around 12.30 p.m., the second accused came and handed over M.O.22 Nokia cellphone for some repair. Later on, M.O.22 was recovered from him by the police.
29. P.W.28 was working as an assistant in the Highways department. He has spoken about the recording of the statement of the first accused in video and audio by P.W.24. P.W.29 has stated that he sold the Mahindra Van to the accused Suresh (A3). P.W.30 has not stated anything against the accused. He has stated that two persons came in the month of May, 2008 and purchased a steel pipe. He has identified M.O.5 as the one purchased from his shop.
30. P.W.31 has stated that for the purpose of purchasing Mahindra Maxi Cab bearing registration No.TN-51-V-0939, he extended a loan of Rs.2,60,000/- to one Mr.Sahual Hameed. He has further stated that Mr.Sahual Hameed had sold the said vehicle to one Mr.Suresh.
31. P.W.32 has stated that he was the owner of the ambassador car bearing registration No.TN-04-J-3295. He later on sold the same to the seventh accused. P.W.33 has stated that he was running a car parking centre at Vivekananda Nagar, Kodungaiyur, Chennai. He has stated that on 13.07.2008, one Mr.Udhayan has parked the ambassador car bearing registration No.TN-04-J-3295 between 01.00 p.m. to 02.00 p.m. in the said parking centre. P.W.34 has stated that he was working as field officer in Anubhav Finance, which had extended loan for the purchase of ambassador car bearing registration No.TN-04-J-3295 which was purchased by one Karthik, since he has not paid the amount, it was seized and it was parked in the centre run by P.W.33.
32. P.W.35 has stated that he was working in Sriram Finance. He has spoken about the loan given for the purchase of TVS Flame motorcycle bearing registration No.TN-03-A-8050 for the accused Dinesh Kumar (A5). P.W.36 has stated that he sold the Hyundai Assent car bearing registration No.TN-01-V-5589 to one Kannan. P.W.37 has spoken about the sale of Hyundai Assent car bearing registration No.TN-01-V-5589. P.W.38 has also spoken about the sale of Hyundai Assent car bearing registration No.TN-01-V-5589. P.W.39 has spoken about the loan secured from Sriram Finance by the accused Dinesh Kumar for the purpose of purchasing TVS Flame motorcycle. P.W.40 has spoken about the sale of Hyundai car bearing registration No.TN-01-V-5589.
33. P.W.41 is an employee of the TNEB, he has stated that on the day of occurrence all the lights at the place of occurrence were burning and there was no failure of electricity. P.W.42 has stated that he was residing in the house owned by the first accused. Later on, during July, 2001, the first accused sold the said house to him for Rs.42,00,000/-. P.W.43 has stated that the 7th accused purchased the ambassador car in question during March, 2008, from him. P.W.44 has also turned hostile.
34. P.W.45, the then Deputy General Manager of BSNL, has spoken about the call details of the cell phone No.9444195786 for the period between 20.05.2008 and 10.06.2008. The said cell phone stood in the name of one Mr.Suresh (A3) residing at 21, Nehru Colony, 20th Street, Chennai.
35. P.W.46 was then the Nodal Officer of MTS Mobile Company. He has stated that he gave the call details of the cellphone No. 99419 48467 for 04.06.2008 [Vide Ex.P.47]. According to him, the distance between the cellphone from where it was used and the tower location was 500 meters to 1000 meters. P.W.47 was the then Nodal Officer of Vodofone Cellphone Company. He has stated that he gave the call details for the cellphone No.99622 40345 for the period between 20.05.2008 and 10.08.2008. He has further stated that the said mobile phone SIM stood in the name of one Solomon (A6) of No.21, 20th Street, Nehru Colony, Pazhavanthangal, Chennai 600114. The said mobile number had been used within 800 to 1000 meters from the said tower location.
36. P.W.48 was the then Nodal Officer of Airtel Limited. He has stated about the call details of the cellphone No. 98408 54583, 97910 39454, 98402 74788 and 99520 20179 for the period between 20.05.2008 and 10.06.2008. He has further stated that the cellphone No. 98402 74788 was registered with the address of Janaki Ramachandran Matriculation School, 112, North Mada Street, Vadapalani, Chennai. The SIM relating to the mobile number 98408 54583 was registered in the name of one "Police", No.17, 7th Street, Balaji Nagar, Azhvar Thirunagar, Chennai 600 087. He has also spoken about the tower location.
37. P.W.49 was the then Finger Print Expert. According to him, on 01.10.2008, as requested by the investigating officer, he examined the Ambassador bearing Car Regn.No.TN 04 J 3295 which was kept at the office of C.B.C.I.D., at Chennai. But, no finger print could be found and lifted from the said car. P.W.50 has turned hostile. P.W.51, an Expert from the Forensic Sciences Laboratory, Chennai, has stated that he examined the computer CPU, computer monitor, key board, mouse and cellphone, DVDs, CD and LG cellphone and 5 Nos. of Nokia cellphones. According to his findings, the monitor, the key board and the mouse were in working condition. In DVD, video files were recorded. But the transcription of audio contained in the CD could not be given. But, the corresponding recording in the cellphone was not found as it had been erased. In the hard disc also, the audio file was not found.
38. P.W.52 is a Scientific Expert from the Forensic Science Laboratory, Chennai. He examined Santro Car (M.O.4), Ambassador Car (M.O.15). From the Santro car, patches of black paint were recovered by him. From the front side of the Santro car, white colour paint particles were recovered. When he compared the same with the white colour paint of the Ambassador car, they tallied. In the ambassador car, on the bumper on its right hand side damages were noticed. In the Santro car, damages were found on the back side. Similarly, green pain patches recovered from the back side of the Santro car and the front side of the Ambassador car were taken and compared. They tallied. Similarly, paint stains found on the right and left sides of the Santro car were taken and compared. They tallied with the paint of the Ambassador car.
39. P.W.52 has further stated that he examined CD (M.O.11); Nokia cellphone (M.O.22) and DVD (M.O.30). According to him, in the CD (M.O.11), a male and female voice in conversation were heard. It contained 8 audio files. File No.1 was in the name of Banu, recorded for 44 minutes; File No.2 was in the name of Banu, recorded for 25 seconds; File No.3 was in the name of "record1" covering 2 minutes and 19 seconds; File No.4 was in the name of "record000" covering 1 minute and 30 seconds; File No.5 was in the name of "record0001" covering 1 minute and 3 seconds; File No.6 was in the name of "record0002" covering 1 minute and 1 second; File No.7 was in the name of "record003" covering 2 minutes and 29 seconds; and File No.8 was in the name of "record004" covering 1 minute and 9 seconds. In Nokia cellphone (M.O.22), there were 4 audio files with a male and female voice engaged in conversation. File No.1 was in the name of "record001amr" covering 53 seconds, File No.2 was in the name of "record002amr" covering 68 seconds; File No.3 was in the name of "recordamr.wav" covering 53 seconds; and File No.4 was in the name of "record002amr.wav" covering 68 seconds. In DVD (M.O.30), there were voice recordings of "Banu" covering 5 minutes and 28 seconds and 3 minutes and 53 seconds. It also contained a file in the name of Karuna covering 4 minutes and 59 seconds. He opined that there were difference in the pronunciation in the audio recordings found in the CD and DVD. He further opined that since CD and DVD were recorded in different form, the pronunciation would have been different. He further opined that the voice in the Nokia mobile phone (M.O.22) could not be compared with the voice found in the DVD. He further opined that the pronunciation of the words as spoken by a female in CD (M.O.11) and the pronunciation of the words in the speech of a female recorded in the DVD (M.O.30) could have been that of the same person. Similarly the male voice in both these material objects could have been of the same male.
40. P.W.53, another Expert from the Forensic Science Laboratory, has stated that he examined M.Os.1 to 3, 5, 17, 19, 4 and 15. He found that there were blood stains on the Santro car. But, there were no blood stains detected on the Ambassador car. The blood stains found on M.Os.1 to 3 were of human origin. On M.Os.5, 17 and 19 also human blood stains were found. P.W.54 has spoken about the serology examination conducted. According to him, the human blood stains found by P.W.53 were further examined and he found that the same was of 'A' Group.
41. P.W.55 is a DNA Expert from the Forensic Science Laboratory, Chennai. According to him, the DNA extracted from the blood of the deceased was compared with the DNA extracted from the material objects. According to him, the blood stains were of a male. P.W.56 the then Metropolitan Magistrate has stated that he recorded the statement of one Mohan under Section 164 of Cr.P.C.
42. P.W.57 was then working as a Doctor at Apollo Hospital. According to him, at 09.20 p.m. on 04.06.2008 the deceased was brought to the hospital for treatment. He was informed by the person accompanying him that at 08.45 p.m. near Boat Club Road at Kottur, he was attacked by unknown persons. He found two injuries on the forehead. He informed the same to the police. Subsequently, the deceased died. Ex.P.17 is the death intimation.
43. P.W.58 the then Metropolitan Magistrate has stated that on 15.10.2008 she recorded the statement of P.W.2 under Section 164 of Cr.P.C. as requested by the investigating officer. P.W.59, is yet another Metropolitan Magistrate. He has stated that he conducted test identification parade for the accused-Suresh, Solomon, Karthick, Deena @ Dinesh Kumar in which 7 persons including P.Ws.4 and 9 participated and identified the accused.
44. P.W.60 was the then Sub Inspector of Police at E4, Abhiramapuram Police Station. He has stated that he took the dead body and handed over the same to the doctor for postmortem. P.W.61, yet another Police Constable, has stated that he handed over the material objects at the Forensic Science Laboratory, as directed by the jurisdictional Magistrate. P.W.62, the doctor, has spoken about the postmortem conducted on the dead body of the deceased and his final opinion regarding the cause of death. He has opined that the death of the deceased was due to shock and haemorrhage due to the injuries found on the body.
45. P.W.63 was a driver in Janaki Ramachandran Matriculation School at Vadapalani in Chennai. He has turned hostile. The evidence of P.W.64 was eschewed as he was subsequently examined as P.W.79 after pardon was given by the Sessions Court as directed by the Hon'ble Supreme Court. P.W.65 has turned hostile. P.W.66 was the then Inspector of Police at Nandambakkam Police Station. A2 was working in the said police station under him during the relevant period. According to him, on 03.06.2008, 04.06.2008 and 05.06.2008, A2 was on medical leave.
46. P.W.67 was the then Inspector of Police, C.B.C.I.D.,Chennai. He has stated that he made a complaint to the Inspector of Police, Guindy, on 18.02.2012 in respect of the missing of Mahindra Van bearing Regn. No. TN 51 V 0909 which was the case property in Crime No.793 of 2008. According to him, it was kept in the police custody as per the orders of the XXIII Metropolitan Magistrate. It was missing from the said place. That was why, he made complaint to the police on 18.02.2012. P.W.68 was the then Inspector of Police, Guindy Police Station. He has stated that on the complaint of P.W.67, he registered a case in Crime NO.793 of 2008 under Section 379 of IPC.
47. P.W.69 was then working as the Principal of Padma Seshadri Bala Bhavan Senior Secondary School. Two children of A1 were studying in the said school. A1 obtained transfer certificate for both children on 17.06.2008 and 13.06.2008 respectively. P.W.70 has spoken about the photographs taken on the dead body of the deceased at Apollo Hospital. P.W.71 was the Principal of JRK Matriculation School at Vadapalani. He has stated that one K.S.Bhuvaneswari and Karuna (A2) were former students of the said school. P.W.72 was the Principal of Janaki Ramachandran Matriculation School. According to her, Bhuvana @ Bhuvaneswari was working in the said school between 1994-1998 as a teacher.
48. P.W.73 has spoken about the recovery of cloths from the person of the deceased after the postmortem was over. P.W.74 has spoken about the preparation of the observation mahazar and the recovery mahazar. P.W.75 was the then Physical Education Teacher at Government Higher Secondary School, between 1999 and 2010. He was working in Janaki Ramachandran Matriculation school at Vadapalani. He has stated that Mrs.Banu was working in the said school. He has not stated anything else against the accused as expected. Therefore, he was treated as hostile.
49. P.W.76 has spoken about the statements of witnesses recorded under section 164 of Cr.P.C. including P.W.79. P.W.77 has spoken about the registration of the case on the file of the Abhiramapuram Police Station on the complaint of P.W.1. at 10.00 p.m. on 04.06.2008. P.W.78 has spoken about the investigation done in this case and the filing of final report against the accused. P.W.79 has spoken about the initial conspiracy between him and A2 and A3.
50. When the above incriminating materials were put to the accused under Section 313 of Cr.P.C. they denied the same as false. But, on their side no witness was examined, however, Exs.D1 to D14 were marked on their side. Their defence was a total denial. Having considered all the above, the trial court convicted the appellants / A1 to A7 under the charges framed against them and sentenced them thereunder as detailed in the earlier paragraphs of this judgement. Challenging the above said conviction and sentences, the accused are before this Court with Criminal Appeal Nos.685, 689, 690, 691, 692 and 693 of 2016 and the State is before this Court with Criminal Appeal No.98 of 2017 seeking enhancement of sentence. Since all these appeals have arisen out of one single judgement, we have heard all these appeals together and the same are being disposed of by this common judgement.
51. We have heard the learned counsel appearing for the accused 1 to 7, the learned Public Prosecutor appearing for the State and also perused the records carefully.
CHARGES and SENTENCES :
52. Let us first look into the correctness of the charges framed and the punishment imposed by the trial Court. As against the accused 1 and 7, the trial Court had framed charges under Section 120 (B) I.P.C. simpliciter and Section 302 r/w 120(B) I.P.C.
53. It is the positive case of the prosecution that the accused 1 and 7 were only parties to the conspiracy along with the accused 2 to 6 and they did not participate in the occurrence in which the deceased was killed. Therefore, the trial Court should have framed a charge under Section 120(B) r/w 302 I.P.C. thereby indicating that the conspiracy was to commit murder of the deceased. But the trial Court has framed a charge against all the seven accused under Section 120(B) I.P.C. simpliciter. The charge does not state as to what was the offence that was conspired. It is needless to point out that the punishment for the offence of conspiracy under Section 120(B) I.P.C. depends upon the punishment provided for the offence conspired. Therefore, it is absolutely necessary to indicate in the charge as to what was the offence that was conspired to be committed. But, the trial Court has defectively framed a charge under Section 120(B) I.P.C. simpliciter without indicating that the offence conspired was a murder.
54. The trial Court has convicted A1 to A7 under Section 120(B) I.P.C. simpliciter. However, the trial Court has not imposed any sentence for the said offence on any accused. The reason stated by the trial Court is that, since punishment is imposed for the other offences committed by the accused, no separate sentence is required for the offence of conspiracy under Section 120(B) I.P.C. It is needless to point out that under the scheme of the Indian Penal Code the Court does not have any discretion to omit to impose any sentence on the accused for the offence of conspiracy to commit murder. The punishment provided for the said offence is either death or imprisonment for life and also with fine. The Court, therefore, cannot omit to impose punishment on the accused as mandated in the Penal Code. Fortunately in this case, the State has filed an appeal for enhancement of punishment for the offence under Section 120(B) I.P.C.
55. Next, the trial Court had framed a charge against the accused 1 and 7 under Section 302 r/w 120(B) I.P.C. and has also imposed punishment. As we have already pointed out, these two accused, even according to the case of the prosecution, did not participate in the occurrence in which the deceased was killed. The trial Court has overlooked the legal position that an offence of conspiracy and an offence committed in pursuance of conspiracy are two distinct offences. In this regard, we may refer to a few judgments of the Hon'ble Supreme Court to highlight the above distinction. In State of Andhra Pradesh vs Kandimalla Subbaiah reported in AIR 1961 SC 1241, the Hon'ble Supreme Court has held that conspiracy to commit an offence itself is an offence and a person can be separately charged with respect to such a conspiracy. In State (N.C.T. of Delhi) Vs. Navjot Sandhu @ Afsan Guru reported in 2005 Crl.L.J 3950 (SC) the Hon'ble Supreme Court has held that conspirators committing offences pursuant to conspiracy by indulging in various overt acts would be individually liable for those offences in addition to the offence of conspiracy.
56. In Sanjiv Kumar Vs. State of Himachal Pradesh reported in (1999) 2 SCC 288, in a case of murder, there were three accused. All the three hatched a criminal conspiracy to kill the accused. One accused alone, in pursuance to the conspiracy killed the deceased. While dealing with the said facts, the Hon'ble Supreme Court has held the view that the accused 1 and 2 were liable to be charged for the offence of conspiracy alone whereas the third accused was liable to be charged for offence of conspiracy as well as the offence of murder. On appreciating the evidence, since it was found that there was no proof of conspiracy, the Supreme Court acquitted all the three accused from the charge of conspiracy but convicted the third accused for murder.
57. The above interpretations made by the Hon'ble Supreme Court, if applied to the instant case, it would be ipso facto clear that since A1 and A7 did not participate in the actual occurrence in which the deceased was killed, they were not liable to be charged for offence under Section 302 r/w 120(B) I.P.C. But, the trial Court had not only charged the accused 1 and 7 under Section 302 r/w 120 (B) I.P.C. and has punished them also. Thus, this punishment imposed on A1 and A7 under Section 302 r/w 120(B) I.P.C. is liable to be set aside.
58. So far as the accused 2 to 6 are concerned, according to the case, they were parties to the conspiracy and also parties to the commission of the murder of the deceased. Thus, according to the case, they have committed two distinct offences, one punishable under Section 120(B) r/w 302 I.P.C. and the other under Section 302 r/w 120(B) I.P.C. In this, the first charge indicates that the conspiracy was to commit murder and the second charge indicates that the murder was in pursuance of the conspiracy. But the trial Court had not framed proper charges as stated above.
59. The trial Court has found A2 to A6 guilty of offence of conspiracy as well as of murder. But strangely, the trial Court, has not imposed punishment for the offence of conspiracy but has imposed punishment only for the offence of murder in pursuance of conspiracy. The trial Court has given the reason that no separate sentence was required for the offence of conspiracy as sentence has been imposed on these accused for the offence of murder. As we have already stated, the omission to impose punishment for the offence of conspiracy is contrary to the mandate of the Indian Penal Code.
60. In our experience, we have seen that in many cases, while framing charges and while punishing the accused, the above fine distinction is seldom noticed by the Subordinate Judiciary. We are hopeful that the trial Courts would keep in mind the above distinction as highlighted in the judgments of the Hon'ble Supreme Court and frame proper charges as failure to frame proper charges may result in failure of justice.
MOTIVE FOR A1:
61. There is no controversy over the fact that there was a long standing dispute in respect of certain properties between the first accused and her brother (P.W.3). There were a number of litigations pending between them. It is also in evidence that it was the deceased who was supporting P.W.3 in his endeavour in all the litigations to retain the properties. It is also in evidence that on few occasions, the first accused warned the deceased not to interfere in the on going litigations between her and P.W.3 and not to support P.W.3. This has been spoken by P.W.2 the wife of the deceased, P.Ws.3, 7, 8 and few more witnesses. From these evidences, the prosecution has succeeded in establishing that the first accused was inimical towards P.W.3 as well as the deceased. Thus, the motive for A1 has been established.
MOTIVE FOR A2:
62. The second accused was a police constable by profession. Admittedly, the first accused was working as a Principal in JRM school at North Mada Street, Vadapalani, Chennai. There is also no dispute that one Bhuvana @ Bhuvaneswari was working as a teacher in the said school. P.W.10-Mr.Anand was then working as a driver under Mr.Narayanan, the father of the first accused. Since Mr.Narayanan was the founder of the school, he used to go to the school frequently. After the demise of Mr.Narayanan his son (P.W.3) was in-charge of the school. P.W.10 continued to be the driver under P.W.3. Thus, P.W.10 used to visit the school frequently and that is how he came to know that Ms.Bhuvana @ Bhuvaneswari was working in the said school. The second accused was a friend of Ms.Bhuvana @ Bhuvaneswari and he used to visit the school and meet Ms.Bhuvana @ Bhuvaneswari. He has further stated that later on Ms.Bhuvana @ Bhuvaneswari got married and settled down in Dhubai. As and when she used to visit Chennai, she would come to the school to meet the first accused along with the second accused. Thus, the second accused was closely moving with the first accused.
63. A close reading of the cross examination of P.W.10, made by the first accused, would go to show that there is no denial about the friendship between the accused 1 and 2. Thus, we find no reason to reject this part of the evidence of P.W.10. We therefore concur with the learned public prosecutor that the prosecution has established beyond any doubt that the accused 1 and 2 were friends and they were closely moving with each other.
CONSPIRACY:
64. It is the case of the prosecution that A1 to A7 had conspired along with one Mrs.Bhuvana @ Bhuvaneswari and P.W.79 Mr.Venkatesh to kill the deceased. The conspiracy was hatched at several stages as follows.
Stage - 1 A1 and A2 along with Mrs.Bhuvana @ Bhuvaneswari during the period between December, 2007 to June, 2008 conspired to kill the deceased, in which, the first accused assured to give Rs.5,00,000/- as consideration to the second accused to kill the deceased and had paid Rs.4,00,000/- as advance.
Stage 2 The second accused contacted P.W.79 Mr.Venkatesh and they agreed that P.W.79 should kill the deceased by dashing a car against him for a consideration of Rs.5,00,000/-. P.W.79 was paid Rs.50,000/- as advance.
Stage 3 P.W.79 contacted the third accused and they agreed among themselves to kill the deceased. As per the plot, A3 should kill the deceased by dashing him by a car for consideration. P.W.79 paid Rs.10,000/- as advance to A3.
Stage 4 P.W.79 developed fear that he might land in trouble. Therefore, he advised A3 not to execute the conspiracy and requested him to drop the plot. P.W.79 thus withdrew from the conspiracy. In that stage, A2 directly contacted A3 and developed the conspiracy further.
Stage 5 A3 engaged A4 to A6, the hirelings, for the purpose of killing the deceased for money.
Stage 6 A7 lent his car to A3 for the purpose of executing the conspiracy.
65. In pursuance of the said conspiracy, it is alleged that, A2 to A6 killed the deceased. In order to prove the conspiracy, the prosecution has not let in any direct eyewitness account and they mainly rely on the evidence of the approver-P.W.79 and the other circumstances.
66. A question was raised before us as to whether the evidence of P.W.79 would get vitiated for non-compliance of Sub Section 4(1) of Section 306 of the Code of Criminal Procedure. This question is no more res integra in view of the judgment of the Hon'ble Supreme Court in Deivendran Vs. State of Tamil Nadu reported in (1997) 11 SCC 720, wherein, the Hon'ble Supreme Court has held as follows:
A combined reading of Sub-section (4) of Section 306 and Section 307 would make it clear that in a case exclusively triable by the Sessions Court if an accused is tendered pardon and is taken as an approver before commitment then compliance of Sub-section (4) of Section 306 becomes mandatory and non-compliance of such mandatory requirements would vitiate the proceedings but if an accused is tendered pardon after the commitment by the Court to which the proceeding is committed in exercise of powers under Section 307 then in such a case the provisions of Sub-section (4) of Section 306 are not attracted. The procedural requirement under Sub-section (4)(a) of Section 306 to examine the accused after tendering pardon cannot be held to be a condition of grant of pardon.
67. In the light of the above law laid down by the Hon'ble Supreme Court, in the instant case, the question of compliance of Sub-Section (4)(a) of Section 306 does not arise at all.
68. The trial Court, having considered the directions issued by the Hon'ble Supreme Court in the instant case (vide Dinesh Kumar @ Deena Vs. State reported in (2015) 7 SCC 497) has rightly granted pardon under Section 307 Cr.P.C on condition that P.W.79 should make full disclosure of the circumstances within his knowledge relating to the offence. There can be no doubt that grant of pardon to P.W.79 is strictly in accordance with the mandate of Section 307 Cr.P.C. and his evidence requires appreciation as the same does not suffer from any illegality.
69. Let us now analyse as to what P.W.79 has deposed before the trial Court. He has stated that the second accused was working as a gunman at the house of a former High Court Judge at K.K.Nagar, Chennai during the year 2003. P.W.79 was working as a driver under one Babu Naidu, who was a neighbour. In such a way, they became friends. He has further stated that during the first week of December, 2007, the second accused spoke to him over phone and wanted him to find a car to purchase. He has further stated that accordingly he negotiated and finally A2 purchased a car for Rs.1,83,000/-. This had further strengthened the relationship between A2 and P.W.79. He has further stated that the Mahindra Van which he was plying developed some mechanical failure and to repair it, he needed money. He sought the help of P.W.79. After one week, the second accused contacted him over phone and wanted him to come and meet him personally. Accordingly, they met at a petrol bunk near Meenambakkam airport. At that time, according to P.W.79, the second accused told him that he was prepared to monetarily help him provided P.W.79 should in turn help him. He further told him that one of his friends had a problem and P.W.79 should help him by killing the enemy of his friend by dashing the car against him. He further told that he would pay Rs.5,00,000/- for the same. Without replying either positively or negatively, P.W.79 returned home.
70. P.W.79 has further stated that two days thereafter, the second accused wanted him to come to Nandambakkam police station at 06.00 p.m. Accordingly he went and met the second accused. The second accused took him to a nearby place and at that place, A2 gave Rs.50,000/- to him. Then, he took P.W.79 to a bank near Ramavaram Gardens. They went in the motorcycle of the second accused. A silver colour Santro car was found inside Ramavaram Gardens. A2 identified the said car and told him that the owner of the said car was one Mr.Vijayan and that Vijayan used to drive the said car. He wanted him to take note of Mr.Vijayan when he would come to take the car. He further instructed him that when Mr.Vijayan goes for morning walk, kill him by dashing him with a car.
71. He has further stated that when P.W.79 enquired him as to what was the dispute between A2 and Mr.Vijayan and why he wanted to kill him, he told him that one Mrs.Banu, the Principal of JRM School at Vadapalani was his friend and she had a problem with the deceased.
72. At that time, the second accused told P.W.79 that in order to help Mrs.Banu, Mr.Vijayan should be killed. Then, P.W.79 returned home. He has further stated that thereafter, the second accused contacted him and wanted to know the progress.
73. Thereafter according to P.W.79, he told A3, a friend of him, about the above plot. A3 in turn told him that he would kill the deceased. P.W.79 agreed for the same and gave Rs.10,000/- to him out of Rs.50,000/- paid by A2 to him. A3 wanted to know as to how much amount would be paid if the task was finished. P.W.79 told him that he would get around Rs.4,00,000/-. Then, P.W.79 took A3 to Ramavaram Gardens and showed him the car bearing Registration No. TN-04-H-3829 belonging to the deceased. Then they returned.
74. He has further stated that two days later, A2 spoke to him over phone and asked him as to what had happened to the task of killing the deceased. P.W.79 told A2 that he paid Rs.10,000/-to one Suresh and had instructed him to finish the task. A2 told that P.W.79 was free to engage anybody for that matter, but the deceased should be killed without any hurdle. At that time, A2 got the mobile number of A3 from P.W.79. Thereafter, according to P.W.79, he did not do anything. But the second accused continued to enquire as to what had happened to the plot. According to him after 4 or 5 moths, he came to know that A2 and A3 were in direct contact with each other. This also he did not know personally but he heard from someone.
75. P.W.79 would further state that fifteen days prior to 05.06.2008, he contacted A3 and requested him to give up the plot to kill the deceased because it would result in a big problem for them. But A3 told him that he along with A2 had already planned everything to kill Mr.Vijayan and therefore he was not inclined to withdraw from the plan.
76. P.W.79 would further state that on 05.06.2008, he read in the newspaper that Mr.Vijayan was killed. Suspecting the involvement of A3, according to him, he spoke to A3 through his cellphone. P.W.79 asked him as to why he had done so. A3 in turn told him that he along with others killed the deceased and he was prepared to face any problem in that matter. He further told that A2 had assured him to take care of him. He told that one Solomon, Deena and R.Karthick joined him and all of them killed the deceased by dashing the car against the car of the deceased and by attacking him with iron pipe.
77. A3 further warned him not to disclose the same to anyone and cautioned that if he disclosed the same to anyone, including the police, he would be killed. Therefore, P.W.79 did not disclose about the occurrence to anyone. He was examined by police on 11.09.2008 and at that time, according to him, he disclosed about the entire occurrence. He made a statement under Section 164 Cr.P.C. as a witness on 26.09.2008 before the learned Metropolitan Magistrate, George Town, Chennai.
78. Mr.N.R.Elango, the learned senior counsel, appearing for the accused, would submit that the evidence of P.W.79 cannot be believed and the same deserves to be rejected outright. He would submit that the evidence of P.W.79 is fully exculpatory in nature and so hardly it can carry any evidentiary value. It is his further contention that assuming that the evidence of P.W.79 could be accepted, even then, for want of corroboration in material particulars, the Court should not act solely on the evidence of the approver.
79. In this regard, let us have a quick look into few judgments of the Hon'ble Supreme Court. In Sarwan Singh Vs. State of Punjab reported in AIR 1957 SC 637, the Hon'ble Supreme Court examined the legal position regarding the evidence of an accomplice. Referring to the Indian Evidence Act, the Hon'ble Supreme Court observed that An accomplice is undoubtedly a competent witness under the Indian Evidence Act. There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious stain in his evidence and courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence. It would not be right to expect that such independent corroboration should cover the whole of the prosecution story -or even all the material particulars. If such a view is adopted it would render the evidence of the accomplice wholly superfluous. On the other hand, it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, in such a case, corroboration does not afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true.
80. After making these observations, the Hon'ble Supreme Court has lucidly stated the tests that an approver's evidence needs to pass in the following words:
...In other words, the appreciation of an approver's evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approver's evidence must receive sufficient corroboration. This test is special to the cases of weak or tainted evidence like that of the approver. This double test has been subsequently reiterated by the Hon'ble Supreme Court in a number of judgments, more particularly in Ramanlal Mohanlal Pandya Vs. State of Bombay reported in AIR 1960 SC 961, Tribhuwan Vs. State of Maharashtra reported in (1972) 3 SCC 511, Ram Narain Vs. State of Rajasthan reported in (1973) 3 SCC 805 and Balwant Kaur Vs. Union Territory, Chandigarh reported in (1988) 1 SCC 1.
81. Now let us examine as to whether the evidence of P.W.79 passes these tests. At first, let us examine whether the evidence of P.W.79 is reliable. It is crystal clear from the evidence of P.W.79 that he was an active participant in the initial conspiracy at Stages 2 & 3. Thereafter, out of fear, he withdrew from the conspiracy. He did not continue to be a party to the conspiracy in the subsequent stages. He has inculpated himself in the stages 2 and 3. He did not continue to be a party to the conspiracy only in the subsequent stages of the conspiracy. Therefore, the first leg of the argument of the learned senior counsel that P.W.79 has exculpated himself and therefore his evidence is liable to be rejected cannot be accepted.
82. The learned senior counsel, referring to the evidence of P.W.79 in detail would submit that certain admissions made by P.W.79 during cross examination would expose him as a liar. The learned senior counsel would point out that during cross examination, P.W.79 has admitted that he never intended to kill the deceased at all. P.W.79 has further stated during cross examination as follows:
After I contacted Suresh (A3) and after I had shown Ramavaram Garden to A3, I determined not to kill anyone. From the beginning I did not have any intention to kill the deceased by dashing my car against him. I received Rs.50,000/- from A2 only to mislead A2. Though I gave Rs.10,000/- to A3, I did not have any inclination to kill the deceased. I never had any agreement with A3 in the conspiracy to commit murder. I was repeatedly demanding money from A2 only as a loan. He has further admitted during cross examination as follows:
I did not pray for pardon when this case was heard by the Hon'ble Supreme Court. Before this Court (Trial Court) also I did not pray for pardon. From these admissions made by P.W.79, the learned senior counsel would submit that P.W.79 is not a reliable witness.
83. So far as the grant of pardon is concerned, the fact remains that he did not pray for pardon either under Section 306 Cr.P.C. or under Section 307 Cr.P.C. because he was never treated as an accused. Pardon was granted by the learned Sessions Judge only in pursuance of the order of the Hon'ble Supreme Court and in pursuance of the request made by the prosecution. The trial Court has recorded adequate reasons as to why it thought it fit to grant pardon to P.W.79 under Section 307 Cr.P.C. Thus, when the fact remains that P.W.79 did not pray for grant of pardon, there is nothing untrustworthy in the evidence of P.W.79, in admitting during cross examination that he did not pray for pardon either before the Hon'ble Supreme Court or before the trial Court. Thus, he has only spoken the truth. Therefore, on these admissions, we cannot hold that P.W.79 is unworthy of credit.
84. So far as his admission that he was not a willing party to the conspiracy to kill the deceased, in our considered view, this admission also would not render his evidence unreliable. Admittedly, P.W.79 was not involved in any other crime. He has stated that to repair his car, he was in need of money and because A2 was a friend of him, he requested him to help him monetarily by extending a loan. A2 ingeniously had of course wanted to use his services by exploiting his need for money. When he offered to pay Rs.5,00,000/-, P.W.79 agreed to receive the same. As a matter of fact, P.W.79 had no motive to kill the deceased. It is quite obvious that though he was not inclined to kill the deceased, he had unwillingly accepted the offer made by A2 to kill the deceased for money because he was in dire need of money. Thus, it can not be untrue that he would have had no intention to kill the deceased. Naturally he had developed fear after he was shown the house of late Dr.M.G.R., the former Chief Minister of Tamil Nadu. Because the person identified by A2 was related to Dr.M.G.R., P.W.79 would have developed fear. It was because of this fear, he did not pursue the dictate of A2 to commit murder. That is how he withdrew from the conspiracy and he requested A3 also not to pursue further. Thus, the conduct of P.W.79 is quite natural and we do not find any reason to doubt his credibility on account of the above admissions made by him.
85. The learned senior counsel would next contend that the conduct of P.W.79 in not disclosing about the above conspiracy to anyone including the police until he was examined after several days would also render his evidence unbelievable. This argument also does not persuade us. As we have already pointed out, P.W.79, after having made request to A3 not to pursue the plot to commit murder would have been under the natural impression that the deceased would not be killed. Thus, out of fear of getting exposed, he would not have disclosed about the conspiracy to anyone. After the deceased was killed P.W.79 came to know about the same from the newspaper. When he contacted A3 over phone, A3 confessed to him that he along with others had killed the deceased. A3 had further warned P.W.79 not to disclose their involvement in the crime to anyone. He further cautioned that in the event P.W.79 disclosed their involvement, P.W.79 would face dire consequences. It was because of the fear for A3 and others, even after the killing of the deceased, P.W.79 had not disclosed about the involvement of the other accused in the crime to anyone. Thus, the conduct of P.W.79 in not disclosing about the involvement of these accused in the crime is quite natural and the same would not raise any doubt in the veracity of P.W.79. Thus, we do not find any reason to doubt the evidence of P.W.79. We hold that P.W.79, thus, passes the first test viz., reliability.
86. Now turning to the second test that the evidence of P.W.79 requires corroboration on material particulars, the learned counsel for the appellants would submit that there is no sufficient corroboration from any other independent source to corroborate the evidence of P.W.79 and therefore the evidence of P.W.79 cannot be taken as trustworthy. We find some force in this argument of the learned counsel for the appellants in respect of some of the accused alone. Let us examine the same individually.
87. So far as the first accused is concerned, P.W.79 had not met her at all. Thus, P.W.79 had no acquaintance with her. He has stated that when he requested A2 to lend money to repair his car, he asked P.W.79 to come to a Petrol Bunk near Meenambakkam Airport. In that petrol bunk, A2 told P.W.79 that he should keep one car ready to dash the same against one person and kill him. He further said that he would give him Rs.5,00,000/-. Then P.W.79 returned home. This was the first instance of conspiracy between A2 and P.W.79. During this talk, A2 did not say anything about A1 at all.
88. According to P.W.79, after two days, A2 contacted him over phone and wanted him to come to Nandampakkam police station at 06.00 p.m. When P.W.79 went there, A2 took him to a nearby secluded place and gave Rs.50,000/- as advance to kill a person. Then, A2 took P.W.79 to Ramavaram garden and identified the Santro car parked in front of the house of late M.G.R. At that time, he told P.W.79 that the owner of the car was one Mr.Vijayan and P.W.79 could note him when he would come to take the car. He further told that Mr.Vijayan would go for morning walk and at that time, he could kill him by dashing the car against him. Even at that time, during the entire conversation, A2 did not say anything about A1.
89. After the car parked in front of the house of late M.G.R. was shown by A2 to P.W.79, for the first time, P.W.79 asked A2 as to what the dispute / problem between him and Mr.Vijayan was. At that time, A2 told that the problem was not between him and Mr.Vijayan, but the problem was for the Principal of JRM School Mrs.Banu. He further told that Mr.Vijayan was giving lot of troubles to Mrs.Banu. Then, he went on to say as follows:
for the sake of Banu, Vijayan should be killed by dashing a car against him. As soon as this statement was made, according to P.W.79, he developed fear and therefore he returned home. Thereafter, during the subsequent conversation also there was no discussion about A1. Thus, the only piece of evidence against A1 as spoken by P.W.79 is as extracted above.
90. The learned public prosecutor would submit that there is no reason to reject this part of the evidence of P.W.79. Assuming that this part of evidence of P.W.79 could be accepted, that would not go to conclusively prove that the second accused engaged the third accused either as requested by A1 or at least with her knowledge. The possibility that the second accused would have engaged A3 on his own accord, without the knowledge of A1 with a view to relieve A1 from her worries cannot be ruled out. In other words, it is possible that on account of his close friendship with A1, the second accused would have decided to kill the deceased on his own accord and to that end he would have engaged P.W.79 and subsequently A3 also.
91. The learned public prosecutor would further submit that from out of the fact that there was enmity between the first accused and the deceased, the fact that A1 and A2 had close friendship and the fact that A2 had engaged P.W.79 to kill the deceased would all go to prove that A1 had hatched conspiracy with A2 to kill the deceased. But we find it difficult to accept the said contention for, we find that absolutely there is no evidence to establish that the second accused had engaged the third accused on the instigation of the first accused. There is no evidence at all either direct or circumstantial that A1 and A2 had conspired to kill the deceased. There is no other evidence to corroborate the evidence of P.W.79 to prove the alleged involvement of A1 in the conspiracy. Thus, in our considered view, so far as the first accused is concerned, for want of corroboration from independent source on material particulars, it would not be safe to hold on the sole basis of the evidence of P.W.79 that A1 had conspired with A2 to commit murder of the deceased.
92. The learned public prosecutor would submit that the telephonic conversations between A1 and A2 would go to prove that there was conspiracy between them to commit murder of the deceased. It is the case of the prosecution that the conversation between A1 and A2 through cellphones in respect of the conspiracy was recorded by A2 in his mobile phone. The mobile phone was handed over to P.W.26 for the purpose of downloading the audio files in a compact disk. P.W.26, has stated that as requested by A2 by means of his computer, he downloaded the recorded conversation in the cellphone of A2 and copied the same in the compact disk (vide M.O.28). The voice samples of A1 and A2 were recorded in M.O.29 (DVD). The voices of a male and a female engaged in a conversation contained in M.O.28 were compared with the voices of A1 and A2 as recorded in M.O.29. The expert has stated that the male voice in M.O.28 tallied with the voice of A2 and the female in M.O.28 tallied with the voice of A1.
93. From these evidences, according to the learned public prosecutor, the conversation which preceded the occurrence relating to conspiracy has been proved. But the learned counsel appearing for the appellants would submit that for want of certificate as required under Section 65(B) of the Evidence Act, these evidences should be rejected. We find force in the argument of the learned defence counsel. But the trial Court has held that the conversation recorded in the cellphone of A2 is a primary evidence and what was transferred to the compact disk is secondary evidence. The trial court has further held that the compact disk could be received in evidence as secondary evidence, in which case, no certificate under Section 65(B) of the Evidence Act is required. This finding of the trial court in our considered view is contrary to Section 65(B) of the Evidence Act and the law laid down by the Hon'ble Supreme Court in Anvar P.V. Vs. P.K.Basheer reported in (2014) 10 SCC 473. In the said case, the Hon'ble Supreme Court has held as follows:
16. Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A opinion of examiner of electronic evidence.
17. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India.
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19. Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65A of the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.
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22. The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible..
94. In the instant case, the cellphone allegedly used by A2 does not contain the conversation of A1 and A2 when it was tested. According to the prosecution, the entire conversation was erased by P.W.26. The downloaded file containing the conversation of A1 and A2 in the computer allegedly used by P.W.26 was also erased. Thus, nothing could be found either in the cell phone of A2 or in the computer used by P.W.26. This is the evidence of the forensic expert. Thus, the only piece of electronic evidence available is the compact disk (M.O.28). Since the compact disk does not carry the certificate as required under Section 65(B) of the Evidence Act as held by the Hon'ble Supreme Court, the entire electronic evidence is liable to be rejected as inadmissible in evidence. The conclusion of the trial Court, though the electronic records do not carry the certificate under Section 65(B) of the Evidence Act, they can be admitted in evidence as secondary evidence is contrary to the law laid down by the Hon'ble Supreme Court in Anvar's case (vide para 22 of the judgment in Anvar's case). Thus, the reliance made by the trail Court on M.O.28 and M.O.29 and the consequential opinion of the expert is not correct. Thus, we are forced to eschew the above stated electronic evidences from consideration.
95. The learned public prosecutor would next contend that the cell phone call details issued by the service providers and spoken by the officials of the said companies would also go to prove that A1 and A2 were in telephonic conversation frequently before the occurrence. This argument also deserves to be rejected as these call details issued by the cellphone service providers are not admissible in evidence for want of certificate under Section 65(B) of the Evidence Act. Thus, absolutely there is no evidence that before the occurrence in which the deceased was killed , A1 and A2 had any conversation and that during the said conversation, A1 had instructed A2 to kill the deceased.
96. For these reasons, we hold that so far as A1 is concerned, her alleged participation in the conspiracy has not been proved by the prosecution beyond reasonable doubts. Admittedly, she did not participate in the occurrence in which the deceased was killed. Thus, we hold that the prosecution has failed to prove the case against the first accused beyond reasonable doubts. Therefore, she is entitled for acquittal.
97. Now turning to the case against A2 and A3, according to the learned Public Prosecutor, the evidence of the approver-P.W.79 and the other circumstances would prove the conspiracy. As we have already concluded there is no reason to reject the evidence of P.W.79. We have concluded supra that P.W.79 is reliable. P.W.79 has vividly spoken about the fact that the second accused contacted him and instructed him to kill the deceased by dashing him by a car for a consideration of Rs.5,00,000/- As we have already pointed out, the second accused paid Rs.50,000/- to P.W.79 as advance. According to P.W.79, he continued to enquire as to why P.W.79 had not finished the task of killing the deceased. P.W.79 has further stated that at one stage, the second accused got the cellphone number of A3 and started to contact A3 directly. This part of the evidence of P.W.79 squarely falls within the ambit of Section 10 of the Evidence Act, so as to prove the conspiracy itself. After the occurrence was over, according to P.W.79, when he contacted A3 after seeing the reports in the newspapers that the deceased had been killed, A3 told him that as conspired earlier, he along with A2 and others killed the deceased. This statement of A3 to P.W.79 amounts to confession falling within the ambit of Section 24 of the Evidence Act. So far as this confession of A3 is concerned, as per the law laid down by the Hon'ble Supreme Court in Kashmira Singh Vs State of Madhya Pradesh reported in 1952 AIR 159 interpreting Section 30 of the Evidence Act, this being a confession of a co-accused, it could be used not as a substantive evidence but only as a corroborative evidence to strengthen the conclusion arrived on the basis of the other evidences that A2 was involved in the conspiracy. Here again, the telephonic conservations between A1 and A2 and between A2 and A3 which are sought to be proved by the call details provided by the respective service providers are not admissible in evidence for want of certificate under Section 65(B) of the Evidence Act. At any rate, in the light of Section 10 of the Evidence Act, the evidence of P.W.79 by itself would clinchingly prove the involvement of A2 in the conspiracy. The evidence of P.W.79 also draws corroboration from the other sources as discussed above. Thus, from the available evidences, we hold that the prosecution has proved beyond reasonable doubt the charge of conspiracy against the second accused. Thus, he is liable for conviction for offence under Section 120(B) r/w 302 I.P.C. The trial Court has not however imposed any sentence. This is illegal. As we have already pointed out, since punishment of imprisonment as well as fine are compulsory for the offence under Section 120(B) r/w 302 I.P.C., we need to impose appropriate punishment on the second accused for the said offence.
98. So far as the third accused is concerned, it is the case that he was in close contact with A2 and became a party to the conspiracy from Stage-3 onwards. P.W.79, the approver has categorically stated that he only engaged A3 for the purpose of killing the deceased. The third accused received a sum of Rs.10,000/- from P.W.79 as advance towards consideration. The approver's evidence clearly would go to prove the participation of the third accused in the entire conspiracy. The fact that he participated in the occurrence in which the deceased was killed, along with the accused 4 to 6 would also go to lend assurance to the conclusion that A3 was a party to the conspiracy to kill the deceased. Thus, the prosecution has clearly proved the charge under Section 120(B) r/w 302 I.P.C. beyond any reasonable doubt against the third accused. The trial Court has not, however, imposed any punishment for this proved offence. The State has filed appeal. Since punishment is compulsory for offence under Section 120(B) r/w 302 I.P.C. we need to impose appropriate punishment for this offence on the third accused.
99. So far as accused 4 to 6 are concerned, they had no motive against the deceased. But, they participated in the occurrence along with A3 and killed the deceased. This would give raise to an inference that they were engaged by A2 and A3 for the purpose of killing the deceased. This by itself would go to prove that A4 to A6 were also parties to the conspiracy to kill the deceased. Thus, they are also liable for punishment for offence under Section 120(B) r/w 302 I.P.C. But the trial Court has not imposed any punishment for this offence. As we have already pointed out punishment for the said offence is compulsory. The State has rightly made appeal. Therefore, we need to impose appropriate punishment on the accused 4 to 6 for the offence under Section 120(B) r/w 302 I.P.C.
100. So far as the accused No.7 is concerned, the only evidence available is that he lent his ambassador car to A3. But absolutely there is no evidence that he either had knowledge or reason to believe that the car was going to be used for the purpose of killing the deceased. In the absence of the same, for the simple reason that his car was used by the other accused in the occurrence in which the deceased was killed, we cannot come to the conclusion that he was a party to the conspiracy. It is needless to point out that conspiracy is basically an agreement between two or more individuals to commit an offence or an unlawful act. In this case, there is no evidence at all against A7 that he had either expressly or impliedly entered into any agreement with other accused to commit the murder of the deceased. Thus, we hold that the prosecution has failed to prove the charge under Section 120(B) r/w 302 I.P.C. against A7. Admittedly, he did not participate in the occurrence in which the deceased was killed. Thus, he is entitled for acquittal from the charge under Section 302 r/w 120(B) I.P.C. also. Therefore, we hold that the seventh accused is entitled for acquittal from all the charges.
WHO KILLED THE DECEASED ?
101. On the day of occurrence, according to P.W.2, the deceased had gone to his office at Bimanna Mudali Street, Alwarpet, Chennai in his Santro car bearing Registration No.TN-04-H-3829 in the usual course at 11.00 a.m from his house at Ramavaram. While in office, the deceased had called P.W.1 over phone and wanted him to come to his office at Alwarpet to repair the computer printer. P.W.1 is a software computer technician. He has stated that he went to the office of the deceased around 03.30 p.m. After the work was over, when P.W.1 wanted to go home, the deceased told him that he would drop him at Guindy on his way to Ramavaram. Thus, the deceased and P.W.1 started from the office of the deceased at Alwarpet at 08.00 p.m. The deceased drove the car and P.W.1 was sitting next to him in the front seat of the car. According to P.W.1, when the car was nearing Kotturpuram bridge across the Adyar river, the deceased slowed down the car to pass over a speed breaker on the road. When the car had just passed the speed breaker, according to P.W.1 he felt a jerk in the car because the car was hit by another car from behind. The deceased further drove the car. At that time, according to him, a white colour ambassador car came from behind, overtook the same, during that process, hit the car driven by the deceased and came to a halt blocking the car of the deceased. The deceased stopped the car and got down from the car. When the deceased got down from the car, according to P.W.1, the deceased quarrelled with the persons who were in the other car which hit the car of the deceased. P.W.1 has further stated that at that time, somebody attacked the deceased. Therefore, out of fear, he ran for a distance and informed P.W.21 viz., the son of the deceased over phone about the said occurrence. According to him, when he returned immediately, he found that the deceased was lying in a pool of blood with injuries. Then, he took the deceased with the help of others to the hospital.
102. P.W.1 was expected to speak about the presence and participation of the accused 2 to 6 in the occurrence. But he did not whisper anything about the accused 2 to 6. It needs to be mentioned that during the investigation, in the test identification parade held by the learned Magistrate, he identified some of the accused as the assailants. But, the identification made in the test identification parade can be treated as substantive evidence. Thus, the evidence of P.W.1 would only go to prove that the alleged occurrence occurred some time between 08.00 p.m. and 08.30 p.m. near Kotturpuram bridge and that an ambassador car dashed against the car of the deceased and in the quarrel ensued, he was attacked by somebody. Since P.W.1 did not speak about the involvement of the accused 2 to 6 in the occurrence as expected, he was treated as hostile and he was cross examined by the learned public prosecutor. But nothing could be elicited during cross examination to prove the case against the accused 2 to 6. In short, P.W.1 had not implicated any of the accused.
103. According to P.W.1, he took the deceased in the very same car belonging to the deceased from the place of occurrence to Apollo hospital and admitted him. In the meanwhile, on receiving information from P.W.1, P.Ws.2, 3 and 21 and few others rushed to Apollo hospital. The doctor declared the deceased dead. Thereafter, P.W.1 went to the police station and made complaint. Of course, in the complaint, he had mentioned as though he witnessed the entire occurrence. But since Ex.P1 complaint cannot be treated as substantive evidence, since the contents have not been proved, we do not refer to the contents of the same. But from the evidence of P.W.1, it can only be gathered that the law was set in motion at 10.15 p.m. on 04.06.2008.
104. The doctor who conducted autopsy on the body of the deceased has stated that the death of the deceased was due to shock and haemorrhage due to the multiple injuries found on the head of the deceased and that the said injuries could have been caused by a weapon like iron pipe. Thus the prosecution has further established that the death of the deceased was a homicide.
105. It is the case of the prosecution that the accused 2 to 6 were the persons involved in the occurrence. According to the prosecution, they came to the place of occurrence in the ambassador car (M.O.15) and in the Car (M.O.6) and in a motorcycle following the deceased and at the place of occurrence, according to the case of the prosecution it was the fourth accused who attacked the deceased with iron pipe and the others facilitated him. As we have already pointed out, to prove these facts namely the involvement of the accused 2 to 6 in the occurrence, the evidence of P.W.1 is not at all helpful in any manner. The prosecution therefore relies on the evidence of P.W.4 and the other circumstantial evidences to prove the said fact.
106. P.W.4 Mr.Joseph Francis was working in a private security service company in Chennai. He was a resident of Sasthiri Nagar, Vysarpadi, Chennai. The said security service company had allotted him work at American Embassy which is situated somewhere near the place of occurrence. According to him, he should have been on duty from 07.00 p.m onwards on 04.06.2008. Since the bicycle which he was riding got punctured, he started walking towards American Embassy pushing the cycle. Around 08.30 p.m. when he was passing through the TurnBulls Road, he found an ambassador car stopped somewhere near the place of occurrence. The engine was running and one person was sitting in the driver's seat. Yet another person was standing by the side of the car. Then P.W.4 reached the house of the official of the Embassy which is situated a few yards away from the said place. In fact, as per the duty roaster, he was allotted duty to work at the gate in the backyard of the house. One Srijith (P.W.5) was on duty in the front gate. On reaching the front gate, according to him, he explained to P.W.5 as to why he was late. At that time, P.Ws.4 and 5 noticed the ambassador car slowly driven near the house of the Embassy official. Since they had instructions that they should not allow any vehicle to be parked or stopped near the house of Embassy official on account of security reasons, P.W.5 informed the same to his higher official, who in turn told P.Ws.4 and 5 to go and instruct the people in the car to remove the car immediately. Accordingly, P.Ws.4 and 5 went near the car and told the driver of the car and the one who was standing by the side of the car to remove the car immediately. It was a white ambassador car. The car accordingly slowly moved away from that place. Within 15 minutes thereafter, they heard a bang of a vehicle dashing against the other. P.Ws.4 and 5 turned their attention towards that direction. At that time, they found the very same ambassador car stopped near a Santro car. The ambassador car had hit the Santro car. The driver of the Santro car got down from the car and questioned the persons in the ambassador car. According to him, at that time, two persons came in a motorcycle to the said place and attacked the deceased repeatedly with iron pipes. Then, those two persons escaped in the motorcycle and the others in the car also fled away from the scene of occurrence in the same car.
107. P.W.4 has identified the accused 4 and 5 as the persons who came in the motorcycle. He has further stated that it was the 4th accused who attacked the deceased with iron pipe initially and after the deceased had fallen down the accused 4 and 5 attacked the deceased repeatedly with iron pipe. He has identified the accused 3 and 6 as the persons who were also involved in the crime. He has identified all these persons during test identification parade also. According to the prosecution, the evidence of P.W.4 who is an independent witness would be suffice to prove that the accused 3, 4, 5 and 6 were involved in the occurrence in which the deceased was killed.
108. P.W.5 has turned hostile and he has not supported the case of the prosecution in any manner. But he has spoken about the arrival of P.W.4 around 08.25 p.m. to the American Embassy official residence. He has further stated that P.W.4 explained to him that he was late because his bicycle got punctured. He has further stated that P.W.4 came to the gate by pushing his cycle. To this extent, P.W.5's evidence corroborates the evidence of P.W.4. Thus the presence of P.W.4 at the time of occurrence has been established by the evidence of P.W.5 also. Though P.W.5 has turned hostile, on that score, we cannot reject the evidence of P.W.4 in toto. In our considered view, P.W.4 who is an independent witness who has spoken about the presence and participation of the accused 3 to 6 deserves to be accepted and we find no reason to reject his evidence at all.
109. The evidence of P.W.4 is further corroborated by the evidence of P.W.79. PW.79 has stated that after he came to know from the newspaper report that the deceased was killed, he immediately contacted the third accused over phone. At that time, the third accused confessed to him that he along with the accused 2 and 4 to 6 committed the murder of the deceased. He further warned him not to disclose the same to anyone including the police. This confession squarely falls within the ambit of Section 24 of the evidence Act. This extra judicial confession by itself could be the foundation for conviction of A3 as substantive evidence. This extra judicial confession also corroborates the eyewitness account of P.W.4. Apart from that the patches of white paint recovered from the Santro car of the deceased at the situs of dashing by the ambassador car tallied with the paint of the ambassador car. The ambassador car has also been duly identified as the one which was used in the occurrence. This scientific evidence would also further corroborates the evidence of P.W.4 and the extra judicial confession of the third accused. The recovery of material objects on the disclosure statements made by the accused would also further strengthen the case of the prosecution. From these evidences, the prosecution has clearly established that A3 to A6 were the persons who came to the place of occurrence with the common intention to kill the deceased and it was the fourth accused who attacked the deceased with iron pipe and killed him.
110. So far as the second accused is concerned except the co-accused confession of A3 to P.W.79, there is no other evidence to prove that he participated in the occurrence in which the deceased was killed. As per the law laid down by the Hon'ble Supreme Court in Kashmira Singh case referred to above, the confession of the co-accused cannot be a substantive evidence to convict A2 under Section 302 r/w 120(B) I.P.C. Therefore the second accused is entitled for acquittal from the said charge. Since the prosecution has proved the presence and participation of accused 4 to 6 and since all these accused came to the place of occurrence with a common intention to commit the murder of the deceased in pursuance of the conspiracy, they are liable to be punished for the offence under Section 302 r/w 34 r/w 120(B) I.P.C.
111. Now turning to the quantum of punishment, having regard to the mitigating as well as the aggravating circumstance, since we are of the view that it is not a rarest of rare case, we are inclined to impose minimum punishment both for the offence of conspiracy and murder. Accordingly, we sentence the accused as detailed below.
112. In the result,
(i) Crl.A.No.685 of 2016 is allowed, the conviction and sentence imposed on the first accused Mrs.N.Banu is set aside and she is acquitted from all the charges. The fine amount if any paid by her shall be refunded to her. She is directed to be set at liberty forthwith unless her detention is required in connection with any other case. The Crl.A.No.98 of 2017 is dismissed as against the first accused.
(ii) Crl.A.No.693 of 2016 is partly allowed, the conviction and sentence imposed on the 7th accused Mr.M.Karthik is set aside and he is acquitted from all the charges. Fine amount if any paid by him shall be refunded to him. He is directed to be set at liberty forthwith unless his detention is required in connection with any other case. The Crl.A.No.98 of 2017 is dismissed as against the 7th accused.
(iii) Crl.A.689 of 2016 and Crl.A.No.98 of 2017 are partly allowed and the conviction and sentence imposed on the second accused Mr.G.Karuna for the offence under Section 302 r/w 120(B) I.P.C. is set aside, however he is convicted for the offence under Section 120(B) r/w 302 I.P.C. and he is sentenced to undergo imprisonment for life and pay a fine of Rs.50,000/- in default to undergo rigorous imprisonment for one year.
(iv) The Crl.A.Nos.690, 691 and 692 of 2016 are dismissed and Crl.A.No.98 of 2017 is partly allowed; A3 (Mr.T.Suresh), A4 (Mr.R.Karthick) and A5 (Mr.R.Dinesh Kumar @ Deena) are convicted under Section 120(B) r/w 302 I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- in default to undergo rigorous imprisonment for three months, and they are convicted under Section 302 r/w 34 r/w 120(B) I.P.C. and sentenced to undergo imprisonment for life and pay a fine of Rs.10,000/- in default to under go rigorous imprisonment for three months. These sentences are to run concurrently.
(v) Crl.A.No.693 of 2016 is dismissed in part as against sixth accused Mr.J.Solomon, and Crl.A.No.98 of 2017 is partly allowed and the six accused Mr.J.Solomon is convicted under Section 120(B) r/w 302 I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- in default to undergo rigorous imprisonment for three months and he is convicted under Section 302 r/w 34 r/w 120(B) I.P.C. and sentenced to undergo imprisonment for life and pay a fine of Rs.10,000/- in default to undergo rigorous imprisonment for three moths. It is directed that these sentences shall run concurrently.
(vi) Crl.A.No.98 of 2017 is partly allowed to the extent indicated above.
(vii) It is directed that the period of sentence already undergone shall be given set off as provided under Section 428 Cr.P.C.
(viii) Consequently, the connected miscellaneous petitions are closed.
(S.N.J.) (N.S.S.J.)
24.04.2017
Speaking Order
Index : Yes
kk/kmk
S.NAGAMUTHU,J.
&
N.SESHASAYEE,J.
kk/kmk
To
1. The Principle Sessions Judge,
Chennai.
2. The Inspector of Police,
CB CID Metro Wing,
Chennai 600 016.
3. The Public Prosecutor,
Madras High Court.
PRE DELIVERY COMMON JUDGMENT
in Crl.A.Nos.685, 689 to 693 of 2016 &
98 of 2017 and Crl.M.P.Nos.9676, 9778
to 9782 of 2016 & 2810 of 2017
RESERVED ON : 23.02.2017
PRONOUNCED ON : 24.04.2017
http://www.judis.nic.in