Madras High Court
Kalaimani And Ors. vs State Of Tamil Nadu Rep. By Inspector Of ... on 6 September, 2005
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
JUDGMENT M. Karpagavinayagam, J.
Page 1433
1. A1 to A5 are the appellants herein. They were convicted for the offence under Section 302 read with Sec. 149 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.2,500/- or to undergo simple imprisonment for one year. Challenging the same, this appeal has been filed.
2. The short facts leading to the conviction are as follows:
(a) The deceased Thoppaiah, P.W.1 Ganesan and P.W.2 Murugan are the accused in a murder case in which, the father of A1 to A3 was murdered. This Thoppaiah and two others were granted bail with the condition that they should reside at Chennai and report to the Saidapet Police Station every day. Therefore, Page 1434 on the date of occurrence, namely, 10.12.1996, Thoppaiah, the deceased along with P.W.1, P.W.2 and others was crossing the road from the bus stop opposite to Saidapet Police Station to go to the police station. At that point of time, all the accused persons (A1 to A5) suddenly appeared at the scene and began to attack the deceased. P.Ws 1 and 2 saw the occurrence. P.W.3 Munusamy, a Constable attached to the Saidapet police station, who was regulating the traffic at that time, in the middle of the road also, happened to see the occurrence. When the Constables and other people tried to apprehend the accused, they ran away from the scene carrying the weapons in their hands.
(b) P.W.10, Head Constable attached to the said police station came out of the police station and saw the deceased lying down with blood injuries. Immediately, he took the deceased Thoppaiah to the Royapettah Government Hospital in a police jeep accompanied by P.W.1. P.W.12, the Doctor who examined Thoppaiah declared that Thoppaiah has already dead. This was immediately informed to P.W.11 Sub-Inspector of Police, J1 Saidapet Police Station.
(c) P.W.11 Sub-Inspector of Police came to the hospital, and obtained statement from P.W.1. The complaint is Ex.P-12. The F.I.R. is Ex.P-13. A case was registered in Crime No.2296 of 1996 against all the five accused.
(d) P.W.14 Inspector of Police on receipt of the message took up investigation, came to the scene and prepared observation Mahazaar Ex.P-1 and drew rough sketch Ex.P-16. The material objects like blood stained samples of earth were recovered. Thereafter, the body was handed over to P.W.13 Doctor for post-mortem.
(e) P.W.13 Dr. Ravindran attached to the Royapettah Government Hospital conducted post-mortem on 11.12.1996. He found 15 injuries all over the body. He issued Ex.P-15 post-mortem certificate. According to him, the deceased died after shock and haemorrhage due to multiple injuries.
(f) P.W.14 Inspector of Police came to know that A1 to A4 surrendered before the Judicial Magistrate No.1, Tuticorin on 27.12.1996. He applied for police custody. Accordingly, the custody was granted. In pursuance of the confession, M.O.1 series were recovered from the accused. Then the material objects were sent for chemical analysis.
(g) P.W.14 Inspector of Police continued the investigation. After completion of the same, he filed the charge sheet against all the accused.
(h) A5 was subsequently arrested. A common trial was conducted against all the accused.
(i) During the course of trial, on behalf of the prosecution, P.Ws.1 to 14 were examined, Exs.P-1 to P-16 were filed and M.Os.1 to 7 were marked.
(j) When the accused were questioned under Section 313 Cr.PC, they denied their complicity in the crime. However, no evidence was adduced on their side in support of the plea made by them.
(h) The trial Court, after having analysed the materials available on record, concluded that the prosecution has established its case beyond reasonable doubt and found the accused guilty of the offence under Section 302 IPC Page 1435 read with Section 149 IPC and sentenced them to undergo life imprisonment and to pay a fine of Rs.2,500/- This is the subject matter of appeal filed before this Court.
3. Mrs.R.T.Shyamala, learned counsel for the appellant, while assailing the judgment of conviction, would take us through the entire evidence and contend that out of the 5 witnesses, only 3 witnesses, viz., P.Ws 3 to 5 supported the prosecution case and the other two witnesses P.Ws 1 and 2 turned hostile and the evidence of P.Ws 3 to 5, who are police Constables were not able to give graphic details about the manner in which the attack was made on the deceased and as such, the conviction on the basis of their evidence is not justified. She would also submit that though the accused had a motive against all the persons, viz., the deceased, P.W.1, P.W.2 and others who were seen together proceeding towards the police station, there is no reason for them as to why they chose Thoppaiah, the deceased alone and allowed the others to escape and as such, the evidence of P.Ws 3 and 4, who admittedly identified the accused only in the Court for the first time, cannot be accepted. Therefore, the accused are liable to be acquitted.
4. On these aspects, we have heard Mr.E.Raja, the learned Additional Public Prosecutor.
5. We have given our thoughtful consideration to the submissions made by the learned counsel for the parties.
6. There is no dispute in the fact that the deceased Thoppaiah, P.W.1 Ganesan and P.W.2 V.Murugan are the accused in the murder case in which the father of A1 to A3 was murdered earlier. It is not also disputed that these three persons, viz., the deceased, P.W.1, P.W.2 and two others were arrested in that case and after some time, they were released on bail subject to the condition to reside at Chennai and report to Saidapet Police Station. During that time, the earlier murder case was at the stage of investigation. The deceased and P.W.2 are brothers and P.W.1 is their brother-in-law. A1 to A3 are brothers and A4 and A5 are closely related to them.
7. In order to take revenge upon the deceased and other people for the murder of their father committed by them, all the accused persons were waiting near the police station on 10.12.1996. The deceased and others got down form the bus and from the bus stop they were proceeding towards the police station in order to report to the police station. When they were crossing the road, all the accused suddenly appeared at the scene and surrounded the deceased, gave indiscriminate cuts all over the body. This was witnessed by both P.W.1 and P.W.2 and the Constables standing near the police station. On noticing the ghastly sight, the Constable and others came running towards the accused in order to apprehend them. However, they escaped from the scene place. Since the deceased was gasping for life, P.W.10 Head Constable attached to the police station took him to the Royapettah Government Hospital, where P.W.13 Doctor declared him dead. Only thereafter, P.W.11 Sub-Inspector of Police obtained a statement from P.W.1. Then, P.W.14 Inspector of Police took up investigation and observed all the formalities. On 27.12.1996, A1 to A4 surrendered before the Court of Judicial Magistrate, Tuticorin. On police custody, their confession were recorded and M.O.1 series knives were recovered.
Page 1436
8. Even though there are five eye witnesses, P.Ws.1 and 2 turned hostile and as such, the prosecution is unable to use their evidence in support of the prosecution case. The other witnesses are P.W.3, the Traffic Constable, P.W.4 Police Constable and P.W.5, the Constable attached to the same police station. According to the prosecution, all the three Constables saw the occurrence and in fact, they tried to catch the accused on noticing that the murder was taken place in the middle of the main road opposite to the police station. But, the accused made good their escape with the weapons.
9. The main contention urged by the learned counsel for the appellants is that the accused were for the first time identified in the Court and therefore, the evidence of P.Ws 3 to 5 cannot be relied upon, as it is settled law, as laid down by this Court as well as the Supreme Court, that the evidence relating to identification of the accused for the first time in the Court is valueless.
10. This contention, in our view, does not merit consideration. Even according to the prosecution, the accused (A1 to A4) surrendered before the Court at Tuticorin and after police custody was granted, they were taken to the Saidapet Police Station, where the witnesses, who were working in the police station identified them. Therefore, there was no doubt with regard to the identity of the accused for the police officer which necessitated him not to ask for identification parade. Therefore, these witnesses identified these accused in the Court.
11. It is not a rule of law that in each and every case, identification is a must. This is a case where the occurrence took place in a broad day light and all these witnesses have seen the accused inflicting injuries on the deceased and since they have seen the incident for a considerable time, it cannot be said that identification parade is must, especially in this case, when the accused were brought to the police station on police custody and witnesses P.Ws 3 to 5 who were working in the police station happened to see them.
12. Nextly, it is contended that no details about the overt acts were given in the evidence by these witnesses. On going through the deposition of these witnesses, it is clear that both P.Ws 4 and 5 would state specifically that all the accused who were present in the Court gave indiscriminate cuts on the body of the deceased. Ex.P.15 Post-mortem certificate would indicate that there are 15 injuries all over the body. When according to the prosecution, the witnesses P.Ws.4 and 5 in their evidence stated that the accused gave indiscriminate cuts all over the body, it is not necessary for them to give details about the overt acts attributed to each of the accused.
13. A perusal of the evidence of P.Ws 3 to 5 would show that witnesses are so natural and there is no reason for them to falsely implicate the accused. Further, it is noticed that they chose to identify A3 only in the Court. If police wanted to foist a false case against all the accused, there is no difficulty for the witnesses P.Ws 3 to 5 who are police officers to identify by giving nitty-gritty details about the overt acts. But instead of giving those details, they chose to identify only one accused, viz., A3 and all the other witnesses P.Ws 4 and 5, chose to mention about the attack made by the accused surrounding the deceased by making the general statement. Therefore, in our view, the Page 1437 evidence adduced by the witnesses P.Ws 3 to 5 is inspiring and the same has been corroborated by the medical evidence given by P.W.13, the Doctor in the post-mortem certificate. Consequently, we have to hold that the prosecution has established its case beyond reasonable doubt.
14. However, it is brought to our notice that conviction for the offence under Section 302 read with Sec. 149 IPC cannot be appropriate, since all the accused persons armed with weapons gave indiscriminate cuts on the body of the deceased. Under those circumstances, as laid down by the Supreme Court in Anil Sharma and Ors v. State of Jharkand, 2004 Supreme Court Cases (Cri)1706, Section 302 read with Section 34 IPC would be proper instead of Section 302 read with Sec. 149 IPC.
15. In this context, it is worthwhile to refer to paragraph 21 of the said judgment, which reads as follows:-
"21. The legality of conviction by applying Section 34 IPC in the absence of such charge was examined in several cases. In Willie (William) Slaney v. State of M.P., it was held as follows (AIR p.137, para 86) "86. Sections 34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; 'and the charge is a rolled-up one involving the direct liability and the constructive liability' without specifying who are directly liable and who are sought to be made constructively liable.
In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offences cannot be said to be fatal by itself, and before a conviction for the substantive offence, without a charge, can be set aside, prejudice will have to be made out. In most of the cases of this kind, evidence is normally given from the outset as to who was primarily responsible for the act which brought about the offence and such evidence is of course relevant"
This principle has been reiterated in the latest judgment in Kamalanantha and Ors. v. State of Tamil Nadu, 2005 SCC 1121.
16. In the light of the above principle laid down by the Supreme Court, the absence of the charge under Section 34 would not disentitle this Court to impose the conviction for the offence under Section 302 read with Section 34 instead of Sec. 149 IPC. Accordingly, the accused are convicted for the offence under Section 302 read with Sec. 34 IPC. However, the sentence imposed by the trial Court is confirmed.
17. With the above modification in the conviction alone, the appeal is dismissed.