Madras High Court
Suresh vs State on 28 February, 2008
Bench: M.Chockalingam, S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28/02/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM and THE HONOURABLE MR.JUSTICE S.PALANIVELU Criminal Appeal (MD) No.388 of 2007 Criminal Appeal (MD) Nos.390, 459 & 520 of 2007 and Crl.R.C.(MD)Nos.911 and 912 of 2007 Suresh, S/o.Periasamy .. Appellant in C.A.388/2007/ Accused No.5 1.Uma Shankar, S/o.Ponpandian .. Appellants in 2.Sai Prasath, S/o.Nagaiah C.A.No.390/2007 /Accused Nos.2 & 3 Pandiyarajan, S/o.Aavudaithangam .. Appellant in C.A.No.459/2007 / Accused No.4 vs. State, rep. by Inspector of Police, .. Respondent/ Usilampatti Police Station, Complainant in Usilampatti, Madurai District. C.A.Nos.388, 390 & (Crime No.1508/2005) 459/2007 Cr.A.(MD)No.520/2007: #State, rep. by Inspector of Police, Usilampatti Police Station, Madurai District. (Crime No.1508/2005) .. Appellant/Complainant vs. $Pon Pandi alias Treasury Pandi, s/o.Ponniah Thevar. .. Respondent/ Accused No.1. Crl.R.C.(MD)No.911/2007: #P.Ganesan, S/o.Pandian ... Petitioner/P.W.1 vs. $1.Uma Sankar, S/o.Ponpandian 2.Sai Prasad, S/o.Naaiah Thevar 3.Pandiarajan, S/o.Avudai Thangam 4.Sjuresh, S/o.Periyasamy ... Respondents 1 to 4/ Accused Nos.2 to 5 5.State, rep. by Inspector of Police, Usilampatti Police Station, Madurai District. ... Respondent No.5/ (Crime No.1508/2005) Complainant Crl.R.C.(MD)No.912/2007: #P.Ganesan, S/o.Pandian ... Petitioner/P.W.1 vs. $1.Pon Pandian alias Treasury Pandy 2.S.Tamilraj, S/o.Sivaji ... Respondents 1 & 2/ Accused Nos.1 & 6. 3.State, rep. by Inspector of Police, Usilampatti Police Station, Madurai District. (Crime No.1508/2005) ... Respondent No.3/ Complainant Crl.A.(MD)Nos.388, 390 & 459 of 2007 Appeals under Section 374(2) of the Code of Criminal Procedure against the judgment, dated 10.07.2007, of the learned Additional Sessions Judge, Fast Track Court No.II, Madurai, in S.C.No.142 of 2006. Crl.A.(MD)No.520 of 2007 Appeal under Section 378 of the Code of Criminal Procedure against the judgment, dated 10.07.2007, of the learned Additional Sessions Judge, Fast Track Court No.II, Madurai, in S.C.No.142 of 2006. Crl.Rc.(MD)No.911 of 2007 Revision under Section 397 read with Section 401 Cr.P.C. to call for the records of the learned Additional Sessions Judge (FTC No.II), Madurai in S.C.No.142 of 2006 by the judgment dated 10.07.2007 and set aside the same regarding the acquittal of A-2 to A-5 for the offence u/s.147, 148, 114, 506(ii) and 120(B) IPC read with 149 IPC. Crl.Rc.(MD)No.912 of 2007 Revision under Section 397 read with Section 401 Cr.P.C. to call for the records of the learned Additional Sessions Judge (FTC No.II), Madurai in S.C.No.142 of 2006 by the judgment dated 10.07.2007 and set aside the same regarding A-1 and A-6. !For Appellant ... Mr.S.Kanagarajan, in Crl.A.388/2007 For Appellants ... Mr.S.Shanmugavelayutham, in Crl.A.390/2007 Senior Counsel for Mr.G.R.Swaminathan. For Appellant ... Mr.V.Gopinath, in Crl.A.459/2007 Senior Counsel for Mr.P.Andiraj. For Appellant ... Mr.C.Daniel Manoharan, in Crl.A.520/2007, ... Addl.Public Prosecutor. respondent in Crl.Nos.388, 390 & 459/2007 & 5th & 3rd respondents in Crl. Rc.Nos.911 & 912/2007 For Petitioner in Crl.Rc.Nos.911 & 912/2002 ... Mr.P.Aju Tagore ^For Respondent No.2 ... Mr.AR.L.Sundaresan, in Crl.Rc.No.912/2007 Senior Counsel for Mr.S.Mani :JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM,J) This judgment shall govern Criminal Appeal Nos.388, 390, 459 and 520 of 2007 and Criminal Revision Case Nos.911 and 912 of 2007. All the above criminal appeals and criminal revisions have arisen out of the judgment of the learned Additional Sessions Division, Fast Track Court No.II, Madurai, dated 10.07.2007, made in S.C.No.142/2006. Out of the four criminal appeals, Crl.A.No.388/2007 was by accused No.5, Crl.A.No.390/2007 was by accused Nos.2 and 3 and Crl.A.No.459/2007 was by accused No.4 challenging their conviction and sentences imposed on them, while the last one Crl.A.No.520/2007 was by the State, challenging the acquittal part of the judgment of the trial Court in respect of accused No.1. The two criminal revisions, namely Crl.Rc.Nos.911 and 912 of 2007, have been filed by P.W.1 in the case challenging the acquittal part of the judgment of the trial court in respect of accused Nos.1 and 6 under all the charges and accused Nos.2 to 5 from certain charges.
2.Totally there were six accused in the case and all of them stood charged under Sections 147, 148, 341, 302 read with 114, 506(ii), 120(B) read with 302 read with 149 IPC. On trial, accused Nos.1 and 6 were found not guilty under the provisions of Penal Code under which they have been charged and acquitted thereunder and though accused Nos.2 to 5 were found not guilty under Sections 147, 148, 302 read with 114, 506(ii), 120(B) read with 302 read with 149 IPC, they were found guilty under Sections 302 read with Section 34 and 341 IPC and all them were sentenced to undergo life imprisonment and to pay a fine of Rs.50,000, in default to undergo four years rigorous imprisonment under Section 302 read with Section 34 IPC and one month simple imprisonment under Section 341 IPC. Hence the above appeals and revisions by the aggrieved parties, as detailed above.
3.Necessary facts for the disposal of the appeals and revisions can be stated as follows.
(a)P.W.1 is the brother of the deceased Kumaraguru, a practicing Advocate at Usilampatti Bar. The deceased was a subscriber in a private chit run by accused No.1. As per the chit transaction, accused No.1 was liable to pay Rs.5,15,000/- to the deceased, in which a part sum, namely Rs.1,40,000/-, was paid and the remainder was liable to be paid. Then, the deceased lodged a complaint before the Usilampatti Police Station against accused No.1 and a case was registered in Crime No.1309/2003 under Sections 406 and 420 IPC and Ex.P-26 is the First Information Report pertained to the said case, pursuant to which, P.W.22, the Inspector of Police, enquired accused No.1.
Accused Nos.2, his son, and accused No.6, his son in law, were present and the matter was proceeded further. Since accused No.6 has issued a cheque for a part of the amount and the deceased has also given in writing that he was going to settle the dispute amicably, the case was not further proceeded with and closed as per Ex.P-27, the final report. Thereafter, there were occasions in which accused No.1 and accused No.2 were threatening the deceased and his wife P.W.12, a practicing doctor.
(b)P.W.6 and his employee P.W.10 came to Madurai at about 6.00 p.m. on 23.09.2005 for purchasing some cycle spare parts and at about 11.30 p.m. they saw an Omni Van entering into the portico of one Sivapackiam Lodge and also accused Nos.1, 2 and 6 and three unknown persons getting down from the van and entering into the lodge. Since accused Nos.1, 2 and 6 are known to P.W.6, both P.W.6 and P.W.10 went inside the lodge and found all the accused hatching up a conspiracy to do away with the deceased.
(c)On 24.09.2005 at about 9.15 a.m., P.W.1 went to the workshop of P.W.2, where he already left his bike to be repaired. When he questioned P.W.2, he told that it was not yet over. At that time, P.W.1 and P.W.2 saw an Ambassador car bearing Regn.No.TMV 3033, one Maruthi Van bearing Regn.No.TN 37 3488 and also one red colour Maruthi Car bearing Regn.No.TN 58 E 3339 and also accused No.6 sitting inside the car. They also saw the deceased Kumaraguru coming in his Hero Honda Motor Cycle bearing Regn.No.TN 58 H 5567, along with his son, a school going boy. On seeing the deceased, the Maruthi Van came and dashed in front of the motor cycle and Kumaraguru fell down along with his son. Immediately, accused No.1 instigated other accused to cut Kumaraguru. Accused No.6 also came there from the car and instigated others not to leave Kumaraguru. Immediately, accused No.2 cut the deceased on the right jaw and right neck by a patta knife and also shouted the other accused to cut him. Immediately, accused No.3 gave a blow on his right forehead and below right ear with patta knife. Accused No.4 stabbed the deceased on his right chest and also cut him on left chest with patta knife. On seeing the attack on Kumaraguru, P.Ws.1 and 2 tried to go nearby to intervene and rescue but, at that time, accused No.5 threatened all of them with dire consequences. P.W.3, an auto driver, who was taking somebody, came to the scene of occurrence in his auto and witnessed the occurrence. After the occurrence, accused No.1 left the scene of occurrence in his Ambassador Car, accused Nos.2, 3 and 5 left in the Maruthi Omni Van driven by accused No.4 and while accused No.6 left in his red colour Maruthi Car and thus all the accused fled away from the place of occurrence. After the occurrence, P.Ws.1 and 2 went and witnessed the dead body.
(d)Thereafter, P.W.1 proceeded to Usilampatti Police Station and gave Ex.P-1 complaint to P.W.15, the Sub-Inspector of Police, at about 10.00 a.m. On the strength of Ex.P-1, P.W.15 registered a case in Crime No.1508/2005 under Sections 341, 147, 148, 302, 506(ii) IPC and prepared Ex.P-11, the first information report. He despatched both Ex.P-1 and Ex.P-11 to the court.
(e)P.W.22, the Inspector of Police of Usilampatti Circle, on receipt of copy of Ex.P-11, the first information report, took up the investigation, proceeded to the place of occurrence, reached there at about 11.15 a.m., made an observation in the presence of witnesses and prepared Ex.P- 2, the observation mahazar and also drew Ex.P-24, the rough sketch. At about 11.45 a.m., he recovered M.O.13, the bloodstained Tar patch, M.O.14, the sample tar patch and M.O.12, the motor bike, under Ex.P-3 mahazar attested by witnesses. He conducted inquest on the body of the deceased Kumaraguru between 12.00 noon and 03.00 p.m. in the presence of witnesses and panchayatdars and prepared Ex.P-25, the inquest report. Thereafter, P.W.22 sent the body for the purpose of postmortem through P.W.16, the Constable. He enquired some witnesses and recorded their statements.
(f)P.W.8, the doctor attached to Government Hospital, Usilampatti, conducted autopsy on the body of the deceased at about 3.30 p.m. and gave Ex.P-6, the postmortem certificate, opining that the deceased would have been died of haemorrhage shock due to multiple stab injury, injuring vital organs on right side of neck, major vessels, nerves and wide pipe, 6 to 6-1/2 hours prior to autopsy. After postmortem, P.W.16, the Constable, recovered M.Os. 8 to 11, the personal wearing apparels of the deceased, from the dead body and handed them over to the Inspector of Police.
(g)On information received at about 8.00 p.m., on 27.09.2005, about the lying of a Maruthi Omni Van bearing Regn.No.TN 37 L 3488 at Buttalagundu - Pattiveeranpatti Road, P.W.22 proceeded to the place with Finger Print Expert and photographer. After examination, he recovered the said van (M.O.2) under Ex.P-4 mahazar attested by witnesses. He came to know that accused Nos.2 and 3 surrendered before Valliyoor Judicial Magistrate. Since P.W.22 was transferred, he handed over the case file to his successor P.W.23.
(h)P.W.23, on transfer to the said Circle, took up the investigation, examined witnesses and recorded the statements of P.W.1, P.W.2 and some other witnesses on 01.10.2005. He proceeded to Sivapackiam Lodge with police party and witnesses and since the accused absconded, he recovered M.O.1, Ambassaodr Car, bearing Regn.No.TMV 3033 and M.O.3, Red Colour Maruthi Car bearing Regn.No.TNE 3339, used by the accused persons, at about 6.00 p.m. under Ex.P-5, mahazar, attested by witnesses. On 02.10.2005, P.W.23 examined some witnesses and recorded their statements. On 04.10.2006 P.W.23 took accused Nos.2 and 3 on police custody. On enquiry on 05.10.2006, accused No.2 came forward to give a confessional statement voluntarily in the presence of witnesses, admissible portion of it is marked as Ex.P-7, pursuant to which he produced the weapons of crime (M.Os.4 to 7) used by him, accused Nos.3, 4 and 5 and the same were recovered under Ex.P-8, the mahazar, attested by witnesses. Accused No.3 also gave a confessional statement and the same was recorded by P.W.23. Thereafter, P.W.23 sent the accused persons for judicial remand. On 07.10.2005, P.W.23 arrested accused No.4 and recorded the statement given by him and thereafter sent him to judicial custody. On 08.10.20005 he gave a requisition to the Court for conducting Identification Parade to identify accused No.4.
(i)Accused No.1 surrendered before the Court on 14.10.2005 and P.W.23 took him on police custody for two days and when enquired in the presence of witnesses, he gave a confessional statement voluntarily, admissible portion of it is marked as Ex.P-9, pursuant to which he produced a motor cycle bearing Regn.No.TDA 1233, marked as M.O.19, under Ex.P-10, the mahazar, attested by witnesses. He gave a requisition, marked as Ex.P-22, to the Court for conducting Identification Parade to identify accused No.5. Since, the Judicial Magistrate No.II, Usilampatti was on leave, there was delay in conducting the Identification parade.
(j)P.W.9, the Judicial Magistrate, Usilampatti-II, on 18.11.2005 recorded the statements of P.W.1, P.W.2, one Senthil and Ex.P-15 series are the statements given by them. On 24.11.2005 at about 2.45 p.m. he conducted Identification Parade in the Central Prison, Madurai, in which P.W.1 identified accused Nos.4 and 5 and Ex.P-16 series are the Identification Parade Proceedings.
(k)P.W.23 gave Ex.P-17 requisition to the Court for subjecting the material objects recovered from the place of occurrence, from the body of the deceased and also from the accused and accordingly they were sent to the Forensic Lab under Ex.P-18, the letter of the Court, which resulted in Ex.P-19, the Serologist's Report. On completion of the Investigation, P.W.23, filed the final report against all the accused under Sections 147, 148, 341, 302, 506ii), 120(B), 149, 114 IPC before the concerned Judicial Magistrate Court on 16.12.2005.
4.The case was committed to the Court of Session for trial by the Judicial Magistrate. Necessary charges were framed against the accused. To substantiate the charges levelled against the accused, the prosecution examined as many as 23 witnesses as P.W.1 to P.W.23, besides marking Exs.P-1 to P-29 and M.Os.1 to 19. On completion of the evidence on the side of the prosecution, the accused were questioned procedurally under Section 313 of the Code of Criminal Procedure about the incriminating materials found against them in the evidence of prosecution witnesses. The accused denied all of them as false. On the side of the accused, one Mohanraj was examined as D.W.1 and Exs.D-1 to D-9 were marked. After hearing the arguments advanced by the counsel on either side and perusal of the materials available, the trial court took the view that the prosecution has not proved the case insofar as accused Nos.1 and 6 were concerned and made an order of acquittal in respect of them and insofar accused Nos.2 to 5 are concerned, the prosecution has proved the case and therefore convicted them under Sections 341 and 302 read with Section 34 IPC and rendered a judgment of conviction imposing life imprisonment, which is the subject of challenge by accused Nos.2 to 5 in Crl.A.Nos.388, 390 and 459 of 2007; while Crl.A.No.520/2007 has arisen challenging the acquittal of Accused No.1. Crl.Rc.(MD)Nos.911 and 912 of 2007 have been filed by P.W.1 challenging acquittal of accused Nos.1 and 6 and accused Nos.2 to 5 from certain charges.
5.Advancing arguments on behalf of the appellant (accused No.4) in Crl.A.No.459/2007, the learned Senior Counsel Mr.V.Gopinath would raise the following points:
(a)In the instant case, the prosecution started its case, along with the whole story, pursuant to the conspiracy, but the lower court has not believed the evidence of P.W.6 and P.W.10 that they witnessed the conspiracy which was hatched up by all the accused at Sivapackiam Lodge at Madurai and thus, when once the prosecution story, started with on the conspiracy theory, was not believed by the court, the entire case of the prosecution has become shaky.
(b)The prosecution, in order to bring home the guilt of the accused, rested its case on the evidence of P.Ws.1, 2 and 3, as occurrence witnesses. P.W.1 is the brother of the deceased and P.W.2 is the person who is carrying on a mechanic shop. According to P.W.1, at the time of occurrence, when he went to the shop of P.W.2, all the six accused came in three different vehicles, one is Maruthi Omni Van and the other is a maruthi 800 car and the third one is an Ambassador car. Ex.P-1 is the earliest document which has come into existence within half-an-hour from the time of occurrence. A perusal of Ex.P-1 would clearly indicate that the evidence of P.Ws.1 to 3 before the Court were thoroughly in variance. Ex.P-1 would indicate that there was only one Maruthi Omni Van and there was no mention about either the Ambassador Car or the Marthi 800 Car and it does not speak even the presence of accused No.6 but, at the end of Ex.P-1 his name has been included. The lower Court has assigned all the reason for acquitting accused Nos.6 and also attributed proper reasons for acquitting accused No.1 also and thus all those reasons which were applicable to accused Nos.1 and 6 were equally applicable to accused Nos.2 to 5.
(c)Further, Ex.P-1 itself has become highly doubtful. It is also doubtful whether P.Ws.1 and 2 could have seen the occurrence at all. In the first information only three names of the assailants are mentioned, who are accused No.1, accused No.2 and accused No.3 and though at the end of the complaint the name of accused No.6 is mentioned, his presence at the time of occurrence has not been mentioned. Further, he was not shown to have in possession of any weapon or any overt act has been attributed to him.
(d)A reading of the first information would indicate that at the instigation of accused Nos.1 and 6 accused Nos.2, 3 and the person, aged 30 years, who was known but name was not known, have attacked the deceased and accused No.4 has been shown, whose name was not mentioned, only as the person who drove the Maruthi Van and got down from the van but, the witnesses when examined before the Court have all clearly given a different version that it was accused No.4 who joined with accused Nos.2 and 3 in attacking the deceased and they have not attributed any overt act to accused No.5 and thus in Ex.P-1 accused No.4 was not shown armed with any weapon or was attributed with any over act and therefore this changed version of the witnesses before the court would indicate that all these witnesses could not have seen the occurrence either, or the version given by them was thoroughly unbelievable.
(e)So far accused No.5 was concerned, originally he was attributed with overt act of attacking the deceased, but, at the time of evidence, P.Ws.1 to 3 have changed the overt acts to accused No.4 and accused No.5 only threatened all the witnesses saying that if any one comes to the rescue, they would face dire consequences. A perusal of Ex.P-1 would indicate that all the accused threatened the witnesses, which would go to show that P.Ws.1 to 3 could not have been in the place of occurrence either, or Ex.P-1 could not have come into existence as put-forth by the prosecution.
(f)Learned senior counsel would further add, in the instant case, originally the investigation was with P.W.22 and he took the investigation on 24.09.2005 and continued the investigation till 30.09.2005 and during his investigation P.Ws.1 and 2 alone were shown as eye-witnesses but, only after the investigation was taken up by P.W.23, who was originally at the Melur Circle and on his transfer to the said Circle took up the investigation, P.W.3 was actually taken in and accused Nos.4 and 5 have actually been roped in. P.W.22, the Investigator, has candidly admitted that till the investigation was done by him till 30.09.2005, he could not fix the identity of accused Nos.4 and 5.
(g)According to P.W.1, he came to know about the names of the assailants, those who are accused Nos.4 and 5, around 10.45 a.m. on the very day and had it been true, he would have immediately informed the same to P.W.22, the Investigator, as who were assailants, but not done so. From the evidence of P.W.3, it would be quite clear that he could not have been in the place of occurrence. P.W.3 was an auto-driver and according to him while he was just crossing the road, he saw the occurrence, but left the place and went to Theni.
It is pertinent to point out that it was not P.W.3 who approached the police but, it was only the police which picked up him later and enquired him and in such circumstances he came out with the statement, which is highly doubtful. Had it been true, as an auto-driver, after such an occurrence was witnessed by him, he should have immediately informed the same to the police either, or to his wife or to any public. Added circumstance was that P.W.1 was known to P.W.3 for about four or five years as he used to take P.W.1 in his auto often and if he actually witnessed the occurrence he would have informed the same to P.W.1, but not done so.
(h)Further, in the instant case, P.W.1 has not revealed anything about the identity of accused No.4 in Ex.P-1 i.e. about the physical features, in order to identify the accused but, nothing was mentioned and hence it was nothing but accused Nos.4 and 5 have been roped in and in order to make it to appear P.W.3 was also taken as a witness as P.W.1 was known to P.W.3, which would indicate the services of P.W.3 would have been taken for the purpose of strengthening the case of the prosecution and that too against accused Nos.4 and 5.
(i)Added further the learned senior counsel, in the instant case there was a Test Identification Parade in order to identify accused Nos.4 and 5 on 28.11.2005. Accused No.4 was arrested on 07.10.2005 and accused No.5 surrendered before the Court on 13.10.2005 but, the test identification parade was conducted only on 28.11.2005. The lower court has also relied on the test identification parade as one of the factors for entering a judgment of conviction against accused Nos.4 and 5 holding that in the test identification parade P.W.1 has identified accused Nos.4 and 5 but, taking into consideration the date of the arrest of accused No.4 and the date of surrender of accused No.5, the conduct of test identification parade was with a delay. Apart from that, there is evidence to show that at the time when they were taken to Court for the extension of remand P.W.1 had occasions to see them and in such circumstances the test identification parade loses its importance. Further, no recovery was made from accused No.4. So far accused No.5 was concerned, the identification parade was a cooked up story in order to strengthen the case of the prosecution. So long as the evidence of P.w.3 is thoroughly unbelievable and it has got to the rejected, automatically accused Nos.4 and 5 will come out as their names are not found mentioned in the first information and the evidence of P.Ws.1 to 3 before the Court being an improved version and therefore they are entitled for an order of acquittal.
(j)Once the Court was unable to believe the prosecution theory of conspiracy, in which, according to witnesses P.W.6 and P.W.10, accused Nos.4 and 5 participated and also the court was not prepared to accept the words alleged to have been uttered by accused Nos.1 and 6 at the time of occurrence and acquitted them, all those doubts, which are reasonable, are applicable to accused Nos.4 and 5 also and hence they have got to be acquitted by the Court.
6.Learned Senior Counsel Mr.S.Shanmugavelayutham appearing for the appellants in Criminal Appeal No.390/2007 (Accused Nos.2 and 3) would raise the following contentions:
(a)In the instant case, the occurrence has taken place at about 09.30 a.m. and immediately report was given at 10.00 a.m. and also the First Information Report has reached the Court at 11.30 a.m. but, when the Magistrate Court is situated in the next building, there is some delay noticed in the First Information Report reaching the Court.
(b)Even according to the prosecution case, a conspiracy was hatched up by all the accused in Sivapackiam Lodge at Madurai on 23.09.2005.
Had it been true, there was no occasion either for accused No.1 or accused No.6 to again utter those words which were actually found in the evidence of the witnesses. Therefore, the evidence projected by the prosecution in this respect was not only a false introduction but it is quite unnatural.
(c)So far as eye-witnesses are concerned, they could not have been in the place of occurrence at all and further their wrong identity of assailants would go to the root of the matter. Further the recovery of weapons from accused No.2 were all nothing but planted for the purpose of the case. So long as the evidence of witnesses which were found to be false and improper, they should have been rejected by the lower Court as the available evidence of eye-witnesses was fully an improved version from the original version in Ex.P-1 which was recorded within a short span of half-an-hour and hence accused Nos.2 and 3 are entitled for an order of acquittal at the hands of this Court.
7.So far as the revision cases are concerned, learned counsel appearing for the revision petitioner would submit that in the instant case it is true that pending proceedings in the appeal accused No.1 died but, so far as accused Nos.1 and 6 were concerned, the judgment of the lower Court acquitting them cannot be sustained. The presence of accused No.6 in the place of occurrence is concerned, Ex.P-1 complaint clearly refers his name. Insofar as accused No.1 was concerned, the first information clearly indicates that it was he who got down with others and instigated the other accused and only on his instigation all other accused began to act and thus while the earliest document Ex.P-1, which has come into existence within half-an-hour, clearly mentions the name of accused No.1 and his instigation also, the lower court has entered a judgment of acquittal clearly on surmises. Added further the learned counsel, originally enmity was actually found between accused No.1 on the one side and the deceased advocate on the other side and in such circumstances once there is available evidence to speak about the same, accused No.1 should not have been acquitted and hence the judgment of the lower court in respect of accused No.1 has got to be set aside, who died pending appeal. He would further add, there is sufficient evidence to convict accused Nos.2 to 5 under the other provisions of Penal Code under which they were acquitted by the lower court.
8.Learned senior counsel appearing for the 2nd respondent/6th accused in Crl.R.C.(MD)No.912/2007 would submit that there is no whisper about the presence of the 6th accused or his instigation in Ex.P-1 complaint. Further, no overt act is attributed to him but, his name has been simply stated therein with a request that action is also to be taken against him. He would further add that what was stated by the witnesses in their evidence was nothing but an improvement implicating the 6th respondent and the lower court has elaborately discussed the evidence and rightly entered a reasoned judgment acquitting the 6th accused, which does not require any interference by this Court.
9.The Court heard the learned Additional Public Prosecutor for the State on the above contentions, according to whom, the judgment of the lower court in respect of the conviction of accused Nos.2 to 5 have got to be sustained and in respect of acquittal of accused No.1, that part of the judgment has got to be set aside since there is ample and sufficient evidence to prove the presence of accused No.1 in the place of occurrence and his instigation of other accused to attack the deceased and to cause his death. It is brought to the notice of the Court that accused No.1 is dead at the time of pending proceedings in the appeal.
10.The Court paid its anxious consideration and attention over the rival submissions and also made thorough scrutiny of the materials.
11.It is not a fact in controversy that one Kumaraguru, an young practicing lawyer at Usilampatti Bar, was done to death in an incident that took place at about 9.30 a.m. on 24.09.2005 in the place of occurrence as projected by the prosecution. Following the complaint given by P.W.1 under Ex.P-1, P.W.15, the Sub-Inspector of Police, has registered a case. On receipt of the copy of the first information report, P.W.22, the Inspector of Police of the Circle, took up the investigation, proceeded to the spot, made an inspection, conducted inquest on the body of the deceased in the presence of witnesses and panchayatdars and also sent the dead body for the purpose of postmortem. P.W.8, the doctor, attached to Government Hospital, Usilampatti, had conducted autopsy and she has given her opinion in Ex.P-6, the postmortem certificate, that Kumaraguru would have been died of haemorrhage and shock due to multiple stab injury injuring vital organs on the right side of neck, major vessels, nerves and wide pipe, 6 to 6-1/2 hours prior to autopsy and she has also deposed so in her evidence before the Court. The fact that Kumaraguru died out of homicidal violence was not a fact under dispute before the trial court and hence it has got to be factually recorded so, without any impediment.
12.As could be seen above, the case of the prosecution was that due to financial dispute, pursuant to a chit transaction, between accused No.1 and the deceased advocate, the deceased gave a complaint before the respondent Police and there was a case registered under Ex.P-26, pursuant to which they were called to the police station, during which accused No.1, accused No.2 and accused No.6 were present and in respect of the reminder amount accused No.6 gave a cheque for a part of the amount and thus it was given amicable settlement and stopped at that time. It was the further case of the prosecution that enraged over that, there was a conspiracy hatched up by accused Nos.1 to 6 at one Sivapackiam Lodge at Madurai on 23.09.2005 night and P.W.6 and P.W.10 found all the accused coming down from a Maruthi Van and getting into the said lodge and they followed them and heard the conspiracy hatched up by the accused to do away with the deceased. The lower Court for the reasons, in the opinion of the Court, well stated has rejected that part of the case of conspiracy. Therefore, the Court is not disturbing that part of the judgment of the trial court.
13.At this juncture, it becomes necessary to state that over a chit transaction of the deceased Kumaraguru with accused No.1, a complaint was given by the deceased pursuant to which a case under Ex.P-26 came to be registered by the respondent police and in that crime number an enquiry was conducted. All these facts remained undisputed before the trial Court.
14.The specific case of the prosecution was that on 24.09.2005, P.W.1 in order to take his two wheeler which was originally given to P.W.2, the mechanic, went to his shop and at that time, the deceased came in a two wheeler with his son and the accused persons waylaid him and at the instigation of accused Nos.1 and 6, the other accused attacked the deceased with patta knives and caused his death on the spot spontaneously.
15.The entire case of the prosecution rested on the evidence of P.Ws.1 to 3, as occurrence witnesses. The earliest documents is Ex.P-1, which has come into existence within half-an-hour, where the names of accused Nos.1 ,2 and 3 are mentioned. Insofar as other accused are concerned, one is shown as a driver who was driving the Maruthi Van in which the accused came and the other is the person, aged 30, whose name not known but the person was known and the 6th person was the son-in-law of accused No.1, another lawyer practicing at Madurai, shown as accused No.6.
16.Insofar as the 6th accused was concerned, he underwent the trial and the accusation against him was that he uttered words and instigated other accused to attack the deceased but, the words alleged to have been uttered by him at the time of occurrence have not even been mentioned in Ex.P-1 but, strangely, at the end of Ex.P-1 his name has been simply included with a request that action was to be taken against him also. The lower court has adduced proper and acceptable reason for acquitting accused No.6. The Court is convinced and hence that part of the judgment of the trial court in acquitting accused No.6 is not to be disturbed and accordingly Crl.R.C.(MD)No.912/2007 is liable to be dismissed in respect of respondent No.2/accused No.6.
17.Insofar as other accused are concerned, in respect of accused No.1, the lower court has entered a judgment of acquittal. On the perusal of the available materials and also hearing the submissions made by all the counsel this day, the Court is unable to agree with the judgment of the lower court in respect of accused No.1. As already pointed out, the motive for the entire crime against the deceased was that the deceased gave a complaint against accused No.1 before the respondent police and a case was registered and he was called to the police station for enquiry, over which he was aggrieved. Further, in Ex.P-1 complaint, which has come into existence within half-an-hour after the occurrence, the name of accused No.1 and the words actually uttered by him are clearly mentioned. To this extent, P.Ws.1 to 3, who are eye-witnesses, have clearly spoken to the fact in their evidence. Now, the lower court, for recording an order acquittal in respect of Accused No.1, has adduced a reason that the witnesses have spoken to the effect that accused No.1 came in an ambassador car but, accused No.1 did not possess any car and further the said car was not recovered from him. Lower Court also stated that it was also the evidence of P.Ws.1 to 3 that after the occurrence accused No.1 left by Ambassador car and thus, since the witnesses have given evidence to the effect that accused No.1 came in an Ambassador Car and returned in Ambassador Car that part of the evidence would be sufficient to reject the prosecution case.
18.The Court is unable to agree with the above said reasoning of the trial court for acquitting accused No.1. In the instant case, Ex.P-1, the earlier document, refers the name of accused No.1 and the words uttered by him and he has also left the place of occurrence after the occurrence was over. Therefore, so far as accused No.1 was concerned, since all the witnesses have spoken to the fact, in the opinion of the Court, their evidence are sufficient to sustain a conviction and the reasons adduced for acquitting accused No.1, in the opinion of the Court, does not seem to be reasonable and hence the judgment of the trial court in acquitting accused No.1 is liable to be set aside. Therefore, Crl.A.(MD)No.520/2007 filed by the State against the acquittal of accused No.1 and Crl.Rc.(MD)No.912 of 2007, in respect of accused No.1, are allowed. However, since accused No.1 is reported to be dead pending proceedings in the appeal, both Crl.A.(MD)No.529/2007 and Crl.Rc.(MD)No.912/2007 stand abate.
19.Insofar as the other accused are concerned, all the contentions put-forth by the learned counsel are considered by the Court and the Court is unable to agree with them. In Ex.P-1, the earliest document, totally six accused are shown and the names of accused Nos.1 to 3 are mentioned and at the end of Ex.P-1 the name of accused No.6 is also mentioned. Insofar as accused No.6 is concerned, no overt act is attributed and even the alleged words spoken by him at the time of occurrence were also not mentioned. Therefore, for the right reasons the lower Court acquitted him.
20.Insofar as accused Nos.2 to 5 are concerned, at the outset, it has to be stated that insofar as accused Nos.2 and 3 are concerned, as pointed out above, the complicity of accused No.1 was clear in the mind of this Court and it is mentioned above. Insofar as accused Nos.2 and 3 are concerned, their names are found in Ex.P-1, the earliest document, as the persons armed with deadly weapons and they actually attacked the deceased and all the eye- witnesses have spoken to the said fact. Therefore, the contention put-forth by accused Nos.2 and 3 do not merit any acceptance whatsoever and they are rejected.
21.Insofar as accused Nos.4 and 5 are concerned, according to the learned senior counsel, originally overt act was attributed to accused No.5 in Ex.P-1 but, at the time of evidence, it is shifted to accused No.4 and apart from that, at the time of occurrence, it was all the accused who threatened the witnesses but, at the time of evidence, it is deposed that it was only accused No.5 and further the identification parade should not be given any legal consequence and there was no recovery from accused No.4. Added further circumstance, according to the learned counsel, was that there was change of investigation from P.W.22 to P.W.23 and after P.W.23 took up the investigation, P.W.3 was introduced in order to rope in accused Nos.4 and 5 and thus the accusations made against accused Nos.4 and 5 were actually without any foundation and they are entitled for acquittal.
22.The Court is unable to agree with the contentions raised in respect of accused Nos.4 and 5 for the following reasons. P.Ws.1 and 2 were the eye-witnesses. It is not the case of either P.W.1 or P.W.2 that they knew accused No.4 and 5 at the time of occurrence. Had the names of accused Nos.4 and 5 were known to them, there was no difficulty for P.W.1 to mention their names, that too when his brother was murdered, in Ex.P-1 when he came forward to mention the names accused Nos.1, 2 and 3. If actually the names of accused Nos.4 and 5 were known to P.W.1, there should not have been any impediment for him in mentioning the names of accused Nos.4 and 5 also in Ex.P-1 but, he had not done so. On the contrary, P.W.1 has mentioned in Ex.P-1 the availability of two persons, who are accused Nos.4 and 5. According to eye-witnesses, it was accused No.4 who drove the car and what was driven by him at the time of occurrence was a Maruthi Omni Van and in that regard there is no dispute. Some contradictions were brought to the notice of the Court that the number of the Van mentioned in Ex.P-1 differ from the seized vehicle and the witnesses have given some change in number. The Court is of the opinion that in a given case like this, contradictions are bound to occur. The Court must see whether a reasonable and prudent person can accept those contradictions, since they are minor most and that would not be a reason to doubt it and it has got to be rejected. In the instant case, the vehicle used for committing the offence was a Maruthi Van and it was also white colour and all the accused persons came in the Van and that too driven by accused No.4 and the witnesses, in one voice, have spoken to the said fact.
23.Now, learned counsel at this juncture would point out that only one van is mentioned in Ex.P-1 and now three vehicles have been brought in and that itself goes to the root of the matter. The Court is unable to agree with the said contention for the simple reason that Maruthi Van was driven by accused No.4, in which the assailants came and since in Ex.P-1 it is not found mentioned that Accused No.1 came in Ambassador Car and after the occurrence he went back in that Ambassador Car will not take away the truth of the prosecution case. Further, in a given case like this, when a person like P.W.1, who has seen his younger brother being murdered, went to the police station and narrated the occurrence within half-an-hour, one could not expect him, with such a frame mind, to narrate the entire story in accuracy. There may be certain omissions bound to occur, such as the omission found that accused No.1 came in Ambassador Car and non mentioning of the same in Ex.P-1 will not in any way shake its truth.
24.Further, so far accused No.5 is concerned, P.Ws.1 and 2, who are the eye-witnesses and P.W.3, who was a witness examined by P.W.23 later, have spoken about the presence of accused No.5 in the place of occurrence and the role played by him. It is true, P.W.3 was examined by P.W.23 on 01.10.2005, when the occurrence has taken place on 24.09.2005. There was an interval of only 7 days, which, in the opinion of the Court, is not a reason to doubt his evidence. Actually P.W.22, the Investigator, was transferred and the reason for his transfer is not attributed. P.W.23, on regular transfer, has taken-up the charge of the said Circle and in such circumstances, it is quite natural that the investigation in the crime number coming into the hands of P.W.23. P.W.23 went over with the further investigation. It is pertinent to point out that at the end of Ex.P-1, P.W.1 has stated that the occurrence is known to mechanic Ravi (P.W.2), Senthil (not examined) and others also. Therefore, during further investigation by P.W.23, after the records came to his hands, it was fixed that P.W.3 was also an eye-witness. At this juncture, P.W.3 came with an explanation to state all the fact that he went away from the place of occurrence and he has not stated to any one about the incident. Further, it is not he who went to the police station but, the police fixed him and thereafter he came to give a statement and thus his statement came to be recorded. P.W.3 is an independent witness and there is nothing to say that he was on inimical terms with the accused. Merely because he was known to P.W.1 as an auto-driver he used to take P.W.1 in his auto for few years, the same cannot be a reason for him to come forward to give evidence in favour of the prosecution.
25.Further, so far as the fact that statement of P.W.3 has reached the Court on 17.10.2005, the delay cannot be stated to be in any way unreasonable. P.W.3 has given statement clearly to the effect that he witnessed the occurrence, in which accused No.4 was the person who drove the vehicle and also inflicted cut injuries on the deceased and accused No.5 was the person present by the side. Therefore, the evidence of P.W.3 is on the same line of P.Ws.1 and 2 and in such circumstances, when Ex.P-1 was given in anxiety, the omission that has been committed by P.W.1 cannot be given much weight. Further, P.W.23 has recorded the additional statements of witnesses immediately after he took up the investigation in the case and P.W.3 was an independent witness who has narrated the entire incident and his evidence stood in corroboration to the evidence of P.Ws.1 and 2.
26.Now, at this juncture, much comment was made about the non- recovery of weapon of crime from accused No.4. Non-recovery of weapon of crime in a case like this will not in any way affect the prosecution case. Further, the comment which was made against the identification parade as of no legal consequence cannot be countenanced for the simple reason that accused Nos.4 and 5 were actually identified by P.W.1. Further, all the witnesses have identified the accused in the Court and in a given case like this, delay in conducting the identification parade is unable to be noticed. Further, in a given case where there is police protection, the witnesses could not have any opportunity to see the assailants when they were taken to the Court or to custody. I n the instant case, a specific question was put to the Investigator to that effect and such suggestion was negatived by him and thus it would be suffice, in the opinion of the Court, to hold that, P.Ws.1 to 3 have seen accused Nos.4 and 5 who were actually present at the time of occurrence.
27.Added circumstance which actually impelled as one of the strong circumstances for the trial court in coming to conclusion about the participation of accused Nos.4 and 5 was that they were the assailants attacking the deceased along with accused Nos.2 and 3. There was not even a strong cross- examination to that point. In a given case where opportunity was available to the accused to shatter the evidence of prosecution witnesses by cross- examination and when such an opportunity was not availed of, the evidence of the prosecution witnesses has got to be accepted and the lower court has correctly accepted the evidence adduced by the prosecution, which, in the opinion of the Court, does not require any interference.
28.For all the above reasons, the Court is of the considered opinion that accused Nos.2 to 5 are the assailants and at the instigation of accused No.1 they attacked the deceased and caused his death and therefore accused Nos.2 to 5 are responsible for the death and hence the judgment of the trial court convicting accused Nos.2 to 5 requires an order of affirmation and at the same time it requires an order of reversal insofar as acquitting accused No.1. So far as accused No.6 was concerned, the lower court has given a reasoned judgment acquitting of the charges levelled against him. It is reported that pending appeal proceedings accused No.1 is dead.
29.Accordingly, the Criminal Appeal (MD)Nos.388, 390 and 459 of 2007 filed by accused No.5, accused Nos.2 and 3 and accused No.4, respectively are dismissed and the conviction and sentence imposed on them by the trial court are confirmed. Insofar as accused No.1 was concerned, the part of the judgment of the trial court acquitting him from the charges is set aside and since he is reported to be dead, Crl.A.(MD)No.520/2007 and Crl.Rc.(MD)No.912/2007 in respect of him abates. Insofar as accused No.6 is concerned, Crl.Rc.(MD)No.912/2007 is dismissed. Crl.A.(MD)No.911/2007 also stands dismissed.
gb.
To:
1.The Principal Sessions Judge Madurai District.
2.The Additional Sessions Judge, Fast Track Court No.II, Madurai District.
3.The Inspector of Police Usilampatti Town Police Station, Madurai District.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court Madurai.