Madras High Court
Shanmugam S/O Saminathan vs State Represented By Inspector Of ... on 26 February, 2008
Author: D. Murugesan
Bench: D. Murugesan, V. Periya Karuppiah
JUDGMENT D. Murugesan, J.
1. The appellant was put on trial as sole accused on file of the learned Additional Sessions Judge, Fast Track Court No. II, Coimbatore in S.C. No. 19 of 2006. He was convicted under Section 302 of I.P.C. and under Sections 224 r/w 511 of I.P.C. and sentenced to undergo imprisonment for life and also to pay a fine of Rs. 5,000/- in default to undergo rigorous imprisonment for one month for the offence under Section 302 of I.P.C. and to undergo rigorous imprisonment for one year for the offence under Section 224 r/w 511 of I.P.C.
2. The appellant/accused was put on trial for the offences for which he was found guilty on the following facts:
The accused was arrested on 09.09.2005 at about 7.30 p.m. by P.W. 1, the Sub Inspector of Police, Video Piracy Cell, Coimbatore and was brought to the Office of the Video Piracy Cell at 11.30 p.m. At the time of arrest, the deceased Constable was also along with P.W. 1 and the appellant/accused. A case was registered in Cr. No. 50 of 2005 of Video Piracy Cell, Coimbatore against the accused under Sections 51 r/w 52A, 68A, 65 of The Copy Right Act. The accused was kept in custody in the Office of the Video Piracy Cell and as there was no separate lock up room both the accused and the deceased were left in the same room by P.W. 1, the Sub Inspector of Police and thereafter, he locked the room and went to his home. At that time when P.W. 1 left the Office of the Video Piracy Cell, the accused asked him whether he would be booked under Goondas Act to which P.W. 1 had replied, that if he had involved in any previous cases, he may be booked under the Goondas Act. On hearing that the accused may be confined in detention under Goondas Act, he attacked the deceased Kaliappan with iron stool and caused his death. The occurrence had taken place between 2.00 and 2.30 a.m. on 10.09.2005. The accused thereafter, phoned to the police control room as well as G.K.N.M. Hospital, Coimbatore, expecting, that people may come and open the door and he may escape. P.W. 9 who was working in police control room (Phone No. 100) received a call from one Shanmugham, the appellant/accused stating that there was some commotion near Kalyan Silks in 6th Street of 100 feet Road and thereafter she informed P.W. 10 who was working in the control room as an operator. On receipt of such information, P.W. 1 informed P.W. 7, the Sub Inspector of Police who was on patrolling duty to go to the place. P.W. 9 went to the place along with one Mr. Manickkam, the Inspector of Police, All Women Police Station, Kattur and found the gate of the Office of the Video Piracy Cell was locked from outside and therefore, he left the place on the ground that no incident had taken place. In the mean time on receipt of the phone call, the Staff of the Kuppusamy Naidu Memorial Hospital viz., P.W. 8, 11 and 12 went to the place around 3.30 a.m. Inspite of search for about 45 minutes in the street, no one came to see them and therefore, they returned to the hospital. P.W. 1 who came back to the Office of the Video Piracy Cell at about 3.30 a.m. on 10.09.2005 along with P.W. 2 Head Constable and when he opened the door, the accused tried to escape but, was caught by both the P.W. 1 and 2. Thereafter, both P.W. 1 and 2 came to know that the Constable by name Kaliappan was found dead with number of injuries on the body. Thereafter, P.W. 1 informed the Sub Inspector of Police at about 7.45 a.m. that the accused had committed murder of the deceased. On receipt of the information, P.W. 23 went to the place of occurrence along with two constables and received a complaint, Ex. P.1 from P.W. 1. Thereafter, he came to Kattur police station around 9.00 a.m. and registered a case in Cr. No. 1610 of 2005 under Sections 302 and 224 r/w 511 of I.P.C. and prepared Ex. P.18 Printed First Information Report. Then, he sent the original Express F.I.R. to the Magistrate and copies to his higher-ups viz., P.W. 25 Inspector of Police, In-charge of Kattur Police Station.
3. P.W. 25 Inspector of Police took up further investigation on 10.09.2005 and at about 9.30 a.m. he inspected the scene of occurrence, prepared mahazar, Ex. P.21 , drew rough sketch, Ex. P.22 in the presence of witnesses P.W. 4 and another. He found the Head Constable by name Kalliappan who was working in Video Piracy Cell, Coimbatore was found dead with bleeding injuries on his head. The accused was under the custody of two Head Constables. He summoned for dog squad, finger print expert and photographer. At about 10.00 a.m. , he recovered blood stained iron stool, M.O. 3; Stool bush, M.O. 4; Nokia Cell Phone, M.O. 5, blood stained mosaic flooring stone, ordinary mosaic flooring stone under the cover of mahazar, Ex. P.23 in the presence of the very same attesting witnesses. He held inquest on the body of the deceased Kaliappan in the presence of panchayadars and some other witnesses between 10.30 a.m. and 1.30 p.m. and prepared inquest report, Ex. P.24. Thereafter, he sent the corpse for postmortem to the Government Medical College Hospital at Coimbatore through Head Constable along with a requisition.
4. Upon identification by the Head Constable (H.C.350) attached to Kattur Police Station and at the request of the Inspector of Police, Kattur Police Station conducted autopsy on the body of the deceased Kaliappan and found the following ante-mortem injuries:-
1. Incised like wound 8 x 1 x 1 c.m. x bone deep over right side forehead and temporal region. Its anterior end is 5 c.m. above middle of right eye brow with surrounding sub scalpal contusion.
2. An oblique incised like wound 8 x 1 x 1 c.m. X bone deep over right fronto temporal region. Its anterior end is 9 c.m. Above middle or fight eyebrow and 1 c.m. Inner to wound No. 1 with surrounding sub scalpal contusion.
3. Lacerated wound over right temporal region 8 c.m. In length. Underlying bone was visible. The breadth of the wound is varying 2 c.m. in front and 4 c.m. in the back. The wound starts 6 c.m. above upper end of right ear and goes backwards with surrounding sub scalpal contusion. On dissection underlying temporal bone fractured comminutedly over an area of 9 x 5 c.m., the vault fracture extending down to right middle cranial fossa and has caused comminuted fracture in right middle cranial fossa 4 x 3-2 c.m. Extra dural blood clot about 50 grams. Diffuse sub dural and sub arachnoid hemorrhage over right cerebral hemisphere. Laceration of brain 4 x 3 x 1 x 0.5 c.m. in right temporal lobe.
4. Lacerated wound 7 x 0.5 x 0.25 c.m. exposing underlying cartilage seen on lateral border of the right ear.
5. A vertically oblique lacerated wound 4 x 1 x 1 c.m. bone deep on right side of scalp. The center of the wound is 1 c.m. behind middle of right ear with surrounding sub scalpal contusion.
6. An oblique lacerated wound 2 x 1 x 0.5 c.m. muscle deep over left side forehead. Its lower inner end is 5 c.m. above inner end of left eyebrow.
7. Vertically oblique lacerated wound 1 x 0.5 x muscle deep over inner aspect of right eyebrow, 1 c.m. from medial end.
8. Horizontal lacerated wound 3 x 0.5 x 0.5 c.m. muscle deep in the right cheek 1 c.m. below the middle of right lower eyelid.
9. Laceration 2 x 0.5 x 0.5 c.m. bone deep over knuckle of left middle finger.
10. 4 x 1 c.m. abrasion with surrounding contusion over the outer aspect of right shoulder.
11.7 c.m. vertically oblique crack fracture over left temporal and adjoining parietal bone.
The Doctor, P.W. 19 issued the post-mortem certificate, Ex. P.16 with her final opinion, Ex. P.17 based on the chemical examiner's report, Ex. P.31 that the deceased would appear to have died of head injuries sustained by him.
5. Thereafter, P.W. 15 in continuation of his investigation at about 1.30 p.m. On 10.09.2005 recovered General Diary of Video Piracy Cell, M.O. 8; Coimbatore, Physical Search Register of the Accused persons, M.O. 9; Copy of First Information Report relating to Cr. No. 50 of 2005, M.O. 10; Lock and key, M.O. 11, Paper publication regarding pirated video, M.O. 12; and also publication regarding the arrest under Goondas Act , M.O. 13 under the cover of mahazar, Ex. P.25. He arrested the accused in the presence of P.W. 5 and another, recorded the voluntary confession of the accused, and recovered the blood stained shirt, M.O. 1 and blood stained pant M.O. 2 worn by the accused on his person after giving dresses for change under the cover of mahazar, Ex. P27 in the presence of the very same attesting witnesses. Thereafter, he sent the accused with all protection through Head Constables to Kattur Police Station. Thereafter, he rushed to the Government Hospital, where he examined P.W. 18, the wife of the deceased Kaliappan her father and recorded their statements. Thereafter, he rushed to the Coimbatore City Police Control Room and examined, P.W. 9, 10 and another and recovered General Diary Extract, Ex. P.28 under the cover of Ex. P.25. Thereafter, he examined the wife of the accused and his mother. He also examined the Inspector of Police attached to Kattur Police Station. After the post-mortem was over, the Head Constable attached to Kattur police recovered a ragged blood stained pant, M.O. 15; blood stained banian, M.O. 16; brown coloured jatty M.O. 17; and Black colour belt, M.O. 18 from the person of the deceased and handed over the same to P.W. 25 who in turn recovered the same under the cover of the Special Report, Ex. P.29. On 10.0-9.2005 at about 8.00 p.m. ,. he subjected the deceased to judicial remand after he was being produced before the Judicial Magistrate concerned. On 11.10.2005, he examined some of the witnesses and on 12.09.2005, he gave a letter to P.W. 13, the Manager, Aircel Services requisitioning the particulars of phone calls relating to Cell Phone No. 9865745620 who in turn gave Cellphone calls statement, Ex. P.12. Thereafter, he recovered Log Book, Ex. P.10 relating to vehicle bearing Regn. No. TN 37 E 1307 under the cover of mahazar, Ex. P.30 and examined the witnesses. On 14.09.2005 and 15.09.2005 he examined some other independent witnesses and also other formal witnesses viz., Doctor and others. After complying with usual formalities and upon completion of his investigation, P.W. 25, the Inspector of Police laid final report on 30.09.2005 against the sole accused under Sections 302, 224 r/w 511 of I.P.C.
6. In order to substantiate the charges, prosecution has examined 28 witnesses and marked 29 exhibits and produced 31.
7. When the accused was questioned under Section 313 of the Criminal Procedure Code as to the incriminating materials appearing against him, he totally denied them as false. On behalf of the defence, no document was marked and no witness was examined. However, learned trial Judge found the accused guilty of the offence, convicted and sentenced him as stated earlier.
8. In questioning the legality of the conviction and sentence, Mr. K.V. Sridharan, learned Counsel appearing for the appellant/accused would submit that it is a case based on circumstantial evidence. According to the prosecution, the accused was arrested in connection with an offence of video piracy by the Video Piracy Cell at about 7.30 p.m. On 09.09.2005 by P.W. 1, the Sub Inspector of Police, Video Piracy Cell, Coimbatore. At the time of arrest, the deceased was also along with P.W. 1. Though the accused was taken to the Office of the Video Piracy Cell, it is highly strange that P.W. 1 had left both the accused and the deceased constable in the Office of the Video Piracy Cell and locked the door from outside. He would submit that the entire case of the prosecution is foisted on the accused. According to the defence, after the accused was being brought to the Office of the Video Piracy Cell, there was an altercation between P.W. 1, the Sub Inspector of Police, Video Piracy Cell and the deceased constable over sharing of the booty and thereafter, P.W. 1 had left both the deceased and the accused inside and went outside after locking the door outside and came back after half an hour with some goondas and he asked some of them to take the accused outside for just half an hour and bring him back. Accordingly, the accused was taken from the Office of the Video Piracy Cell in an omni van and he was brought back after half an hour and he was again lodged inside the office and at that time when the accused noticed that the deceased was injured seriously and was fighting for his life, he questioned P.W. 1 as to what had happened to the injured (since deceased). However, P.W. 1 had warned him that he should not reveal what had happened inside the Office and thereafter, he went away along with those henchmen after locking the door outside again. In order to save the life and also in order to inform the police, the accused used the mobile phone of the deceased and contacted control room as well hospital and he also shouted by knocking the doors to open, but nobody came forward to open the door. P.W. 1 came back at about 7.30 a.m. and staged managed a show by arresting the accused for the commission of the offence of murder.
9. The learned Counsel would further submit that the above defence is true as could be seen from the prosecution witnesses. P.W. 1 is an interested witness as the offence itself was committed by him and in order to escape from the clutches of law, he implicated the appellant/accused falsely and therefore, his evidence should be totally discarded. He would also submit that P.W. 2, the Head Constable who accompanied P.W. 1 at around 7.30 a.m. on 10.09.2005 did not speak anything about P.W. 1 questioning the accused as to how the injured (since deceased) sustained injury. This would show that neither P.W. 1 nor P.W. 2 had come with true version. He would also submit that even before the occurrence, as alleged by the prosecution, the owner of the house in which the Office of the Video Piracy Cell is also functioning had deposed that he heard noise from the Office at around 1.00 a.m. on 10.09.2005 and it would only show that P.W. 1 was also inside the Office of the Video Piracy Cell as admittedly, he had left the Office only at around 2.00 a.m.
10. The learned Counsel would further submit that the prosecution has suppressed the vital material as to the telephone calls made by the accused to the control room as well as the hospital. According to the learned Counsel, though the prosecution has filed Ex. P.12 to prove incoming calls as well out outgoing calls details in respect of Mobile No. 9865745620 which belonged to the deceased constable, strangely there was no investigation conducted for two Short Messaging Service (S.M.S.) sent from the same cellular phone to two telephone numbers between 05.57 a.m. and 06.04 a.m. Similarly, there was no investigation in respect of two telephone calls received in the said cellular phone from two telephone numbers at 02.33 a.m. and 06.06 a.m. respectively. Therefore, the suppression of the details as to the above telephone calls throw serious doubt about the prosecution case as the prosecution has not come with true version. Had the above details were also collected and placed before the court, the real assailant could have been identified to prosecution. He would also submit that there was no occasion for the appellant/accused himself to talk to police control room and the hospital if at all he had committed the offence of murder and the conduct of the appellant/accused is also relevant in the context of the defence statement in this case. Therefore, he would submit that it is highly unnatural for P.W. 7, the Sub Inspector of Police, Kattur P.S. to go to the place of occurrence and return after seeing that the doors were locked outside when the deceased and the accused were present. Equally, it is the fact that the staff of the Kuppusamy Naidu Memmorial Hospital viz., P.W. 8, 11 and 12 came to the scene of occurrence and waited for about 45 minutes in the street and they returned back to the hospital as nobody came to see them for any assistance. That apart, Ex. P.12 would show that the accused had contacted both the control room and the hospital and in the circumstances he would not have committed the murder.
11. The learned Counsel would further submit that it is the specif case of P.W. 1 that when he opened the doors, the accused tried to escape and thereafter, he was caught hold of by P.W. 1. This is a vital incriminating material spoken against the accused. However, the accused was not given opportunity to respond to the above incriminating material when he was examined under Section 313 of Criminal Procedure Code. Equally, the extra judicial confession said to have been given by the accused was not put against him. Hence, the learned Counsel would submit that failure on the part of the court in questioning as to the above incriminating materials under Section 313 of the Criminal Procedure Code, would consequently prejudice the accused and therefore, the judgment of conviction and sentence cannot be sustained. In support of the said submission the learned Counsel would rely upon the judgment of the Hon'ble Supreme Court reported in (2007) 1 SCC (Cri) 732 Vikramjit Singh v. State of Punjab. He would therefore submit that that the investigation is tainted as there was no proper investigation as to the phone calls received and as no particulars were collected in respect of all incoming and outgoing calls received and made in the Cellular phone No. 98657 45620 at the relevant point of time when the occurrence had allegedly taken place.
12. The learned Counsel would further submit that in so far as the evidence of P.W. 7 is concerned, there is no reference in Ex. P.12 in respect of the outgoing call from the cellular phone at 2.30 a.m. which throws a serious doubt about his evidence. He would also submit that especially when the appellant/accused had taken a serious defence in his written explanation while he was examined under Section 313 of the Criminal Procedure Code, not only in respect of his evidence, but also his involvement of P.W. 1 in the offence., the investigation as to the complicity of the offence of murder should have been done without any laxity in all aspects. The prosecution has not brought the real accused before the court of law and therefore, the learned Counsel would submit that the judgment and conviction is liable to be set aside.
13. The learned Counsel would also submit that the evidence of P.W. 6 who had spoken about P.W. 1 leaving the Office of the Video Piracy Cell at 2.00 a.m. on 10.09.2005 and had lastly seen the deceased and the accused inside the Office of the Video Piracy Cell and P.W. 1 had locked the gate from outside is highly unreliable as his presence itself is doubtful. His house is not shown in the rough sketch, Ex. P.22 drawn by the Investigating Officer, P.W. 25. Though his statement was recorded early on 09.00 a.m. on 10.09.2005, the same reached the court only on 14.10.2005.
14. The learned Additional Public Prosecutor on the other hand would submit that the appellant/accused was arrested at 7.30 a.m. On 09.09.2005 and the same is not in dispute. Equally, the fact that the accused was brought to the Office of the Video Piracy Cell is also not in dispute while it is the prosecution case that both the accused and the deceased constable were left inside the office by P.W. 1 and P.W. 1 locked the door from outside and went away, it is the case of the accused that the offence was committed by P.W. 1. In order to prove its case the prosecution has not only examined, P.W. 7, the then Sub Inspector of Police who came to the scene of occurrence after hearing the message from P.W. 10, but also examined P.W. 9 and 10, the constable working in the control room for having received the message over phone from one Shanmugham, the appellant/accused. They have spoken specifically about the name of the accused and there cannot be any doubt as to why these two witnesses viz., P.W. 9 and 10 should refer the name of the appellant/accused while they did not know as to even that a murder had been taken place in the Office of the Video Piracy Cell except the information that there was commotion in 6th Street on 100 feet road near Kalyan Silks. Their evidence is also corroborated by the evidence of P.W. 8, 11 and 12, the staff of the Kuppusamy Naidu Memorial Hospital while they also refer the name of the the accused. Hence, it is established beyond any reasonable doubt that after the commission of the offence of murder, the accused had made an attempt to escap and as the doors were locked up outside, he had informed both to the police control room and the hospital so that somebody could come and open the doors and in that process he could manage to escape from the custody. He would also submit that the defence throwing blame on P.W. 1 is only to escape from the clutches of law. A mere defence without there being any supporting material is only liable to be to be rejected. He would also submit that P.W. 6 would also corroborate P.W. 1 while he spoke that he saw the deceased around 2.00 a.m. On 10.09.2005 before P.W. 1 locked the doors from outside and leaving the deceased as well as the accused inside the Office of the Video Piracy Cell. Had the defence version has to be accepted, there is no question of P.W. 6 speaking the salute of the deceased to P.W. 1. The failure on the part of the investigating officer to show the house of the P.W. 6 is a minor irregularity in the investigation which would not affect the case of the prosecution. P.W. 6 has specifically spoken that even though he used to leave his office premises early, due to heavy work, he was staying in the office on the date of occurrence. In the wake of the above evidence, the prosecution case has been established.
15. The learned Additional Public Prosecutor would further submit insofar as the failure on the part of the court to put the incriminating circumstances to the accused, it cannot be the ground to disbelieve the entire case of the prosecution, especially when the prosecution has placed other materials to prove the guilt of the accused for the offence.
16. We have carefully considered the above submissions. As rightly pointed out by the learned Additional Public Prosecutor, there is no dispute that the accused was arrested at 7.30 p.m. on 09.09.2005 by P.W. 1, the then Sub Inspector of Police, Video Piracy Cell and at that time the deceased was also with him. From the evidence of P.W. 1 it is seen that the deceased was posted in the station temporarily for a short period and therefore, he had no place of residence and for the said reason only, the deceased himself had requested P.W. 1 to permit him to stay in the Office itself along with the accused. It is also not disputed that after the arrest, the accused was brought to the Office of the Video Piracy Cell and from the evidence of P.W. 6 it is seen that till 2.00 a.m. on 10.09.2005, P.W. 1 was in the Office and only thereafter he left the Office, after leaving both the deceased constable and the accused inside the office and after locking the doors from outside. It is true, that it is highly strange that P.W. 1 locked the doors leaving the deceased and the accused together inside the Office of the Video Piracy Cell. But, the fact remains that the deceased was posted temporarily in the station and as he had no place of residence nearby and therefore, the deceased had only requested P.W. 1 to permit him to stay in the station. This portion of the evidence of P.W. 1 is unchallenged in the cross-examination. Therefore, we have no hesitation to accept the said evidence. If the said evidence is accepted, it must be held that the accused has come with the case to falsely implicate P.W. 1 only in order to escape from the clutches of law.
17. The evidence of P.W. 6 is also questioned on the ground that the office premises was not shown in the rough sketch, Ex. P.22. It is to be kept in mind that it is a mere irregularity on the part of the investigating officer in not showing the office premises of P.W. 6 in the rough sketch, Ex. P.22. It is not the case of the defence that he did not have the office in the nearby place at all. The evidence of P.W. 6 is categorical that as his residence is elsewhere and he has no residence nearby the place of occurrence he had stayed on that particular date at the office as he had to finish some work. In that context, a mere laxity in the investigation cannot be the ground to throw away the prosecution case entirely. The question as to laxity or lapses in investigation came up for consideration, the Hon'ble Supreme Court in the follwing cases Chandrakant v. State of Maharashtra and 2001 SCC 247 Himachal Pradesh v. Lekraj has held that a mere laxity on the part of the investigating officer or lapses committed by the officer or irregularity in the investigation by themselves would not be the ground to disbelieve the prosecution case in its entirety. In view of the overwhelming evidence, we are of the considered view that the evidence of P.W. 6 cannot be disbelieved and if the said evidence is accepted, the theory that P.W. 1 had committed the offence of murder and only to escape from the clutches of law, P.W. 1 has falsely implicated the appellant/accused must fail.
18. The evidence of P.W. 1 is also corroborated by the evidence of P.W. 2 who is the constable and who accompanied P.W. 1 at around 7.30 a.m. on 10.09.2005. He has deposed that when P.W. 1 had opened the door, the accused had tried to escape, but he was caught. P.W. 2 has been working in the police department for over a period of 19 years. His evidence as to the above fact has not been challenged in the cross examination. Hence, we have no reason to disbelieve him.
19. Insofar as the challenge to the failure on the part of the investigating officer to investigate into the certain Short Messaging Service from the cellular phone belonged to the deceased as well as two incoming calls said to have been received in the said mobile are concerned, the evidence of P.W. 7, 9 and 10 should be considered into. P.W. 9, who was working in the police control room and attending incoming calls has specifically stated that at about 2.30 a.m. on 10.09.2005 he received a call from one Shanmugham (the appellant herein) stating that there was some commotion in 6th Street on 100 feet Road, near Kalyan Silks. Her evidence does not indicate that she was informed by Shanmugham as to the commission of the offence by P.W. 1. The mere fact that the information was passed on by Shanmugham as to the commotion near Kalyan Silks would show that he wanted to divert the police while they came to the place of occurrence and open the door, he could escape. The evidence of P.W. 9 is also corroborated by P.W. 10 who is also working in the police control room as an operator. He has also deposed that he received an information from P.W. 9 as to the receipt of phone call from Shanmugham (the appellant herein) and thereafter he informed the same to P.W. 7, the S.I. Of Police who was on patrolling duty. The evidence of P.W. 7 also shows that while he was on patrolling duty he received information from police control room and after receiving the mobile No. viz., 9865745620, he proceeded to 100 feet road and found nobody was there. Thereafter, he contacted the mobile number furnished by the police control room and disclosed his identity and immediately, the phone line was disconnected on the other end. The evidence of P.W. 7 for having made a phone call is seen from the 9th entry of the incoming call details in Ex. P.12 and in that entry a phone call was made to the Mobile No. 9865745620 belonged to the deceased constable at about 2.33 a.m. on 10.09.2005. The contention of the learned Counsel for the appellant is that P.W. 1 had stated that the phone call was disconnected when he contacted the number but, the entry shows that there was a talk for about 169 seconds which falsifies the evidence of P.W. 7. In our opinion, the said contention is liable to be rejected as the moment when a call is made to the mobile and the contact is also made and the duration of the minutes are counted and the duration does not depend upon the actual conversation between the caller and the receiver. From the evidence of P.W. 7 it is seen that he made a phone call and only at that time when the call was picked up and he disclosed his identity, the call was disconnected on the other end. Therefore, we are not inclined to disbelieve the evidence of P.W. 7 on this score. A combined reading of the evidence of P.W. 7, 9 and 10 would amply establish that a call was made through the mobile phone belonged to the deceased constable by the accused Shanmugham, the appellant herein to the police control room giving a version as to an incident which had not in fact taken place implying, that he had made such a phone call only to divert the police and in that process if the doors are opened, he could manage to escape from the custody.
20. The said fact is further proved by the evidence of P.W. 8, 11 and 12, the staff of Kuppusamy Naidu Memorial Hospital. According to P.W. 8, they used to make entries of all phone calls received. At about 3.30 a.m. On 10.10.2005 a call was received and the same was entered in Ex. P.10. The said documentary evidence is also attacked by the learned Counsel appearing for the appellant/accused on the ground that initially when Ex. P.10 was filed, it did not contain any entries as to the receipt of phone call at 3.30 a.m. and subsequently the next sheet was marked and hence it is not genuine document.
21. We have carefully perused Ex. P.10. In Ex. P.10, it is stated that an Ambulance was sent to the street near Kalyan Silks on the basis of a telephone call and the same returned after waiting for the period between 3.30 a.m. and 4.30 a.m. It is also seen that though the entry relating to incoming call was marked and the last entry with regard to a phone call received from Cellular Phone No. 9865745620 at about 2.30 a.m. is in the the next sheet and the same was not marked inadvertently. The said entry was the last entry made in the regular course of maintaining the record. On noticing the same, the next page was marked subsequently under Ex. P.28 containing the next sheet relating to the to phone call received at 2.55 a.m. The learned Counsel appearing for the appellant/accused had submitted that the entry made at 2.55 a.m. is an interpolation. In our opinion, for the purpose of the prosecution case last entry at a previous page relating to a phone call received from the cellular phone belonged to the deceased at about 2.30 is alone relevant and merely because the subsequent sheet contained was not produced and marked initially, it will not in any way affect the case of the prosecution. Moreover, the said entry on the subsequent sheet does not have bearing on the prosecution case. Therefore, the prosecution established that the offence had taken place after 2.00 a.m. after P.W. 1 had left the place and as the both the accused and the deceased were alone inside the premises of the office of the video piracy cell. In these circumstances, it is for the accused to explain the circumstances under which the deceased was dead. In our opinion, the circumstances must be available only to point out the guilt by the accused.
22. The learned Counsel appearing for the appellant contended that P.W. 1 had stated that when he opened the doors at about 7.30 a.m. the accused had tried to escape and he had caught hold of the accused. The said evidence is a strong piece of incriminating material against the accused and the accused was not given any opportunity to cross examine.
23. According to the learned Counsel, the evidence of P.W. 1 as to the alleged attempt made by the accused to escape as well as the extra judicial confession were not put to the accused and therefore, the prosecution case must fail. In the judgment of the apex court reported in 2007 (1) SCC (Cri.) 732. The Supreme Court observed that circumstances which according to the prosecution lead to prove the guilt against the accused must be put to him in his examination under Section 313 of Cr.P.C. It has also laid down the law that mere failure on the part of the Court to put to the accused all incriminating materials alone could be the ground to aside the conviction and sentence. The provision for questioning the accused as against the availability of incriminating materials is contemplated under the statutory provisions of Section 313 of Cr.P.C. The object behind the said provision seems to be on the basis of the fundamental principles of fairness while dealing with the accused. In fact, the Section imposes heavy duty on the court to greater care to ensure that the incriminating circumstances are put to the accused and his response solicited. The purpose of the examination of the accused under Section 313 of Cr.P.C. is to given an opportunity for the accused to explain the incriminating material which has surfaced on record. The law on the issue would be that in the event that there are overwhelming materials available against the accused, the mere fact that the court has not questioned the accused as to the material incriminating circumstances available against him under Section 313 of Cr.P.C. by itself would not render the judgment of conviction and sentence illegal and consequently liable to be set aside.
24. In , Rattan Singh v. State of Himachal Pradesh, the Apex Court held that "The examination of the accused under Section 313 of the Criminal Procedure Code, is not a mere formality. Answers given by the accused to the questions put to him during such examination have a practical utility for Criminal Courts. Apart from affording an opportunity to the delinquent to explain incriminating circumstances against him, they would help the court in appreciating the evidence adduced in the court during trial." Having held so the Supreme Court upheld the conviction and sentence on other evidences of the prosecution.
25. In fact, in the judgment State of Punjab v. Naib Din the Hon'ble Supreme Court held as follows:
Where any appellate Court or revisional Court comes across that the trial Court had not put any question to an accused even if it is of a vital nature, such omission alone should be not result in setting aside the conviction and sentence as an inevitable consequence. Effort should be made to undo or correct the lapse. If it is not possible to correct it by any means the Court should then consider the impact of the lapse on the overall aspect of the case. After keeping that particular item of evidence aside, if the remaining evidence is sufficient to bring home the guilt of the accused, lapse does not matter much and can be sidelined justifiably. But, if the lapse is so vital as would affect the entire case, the appellate or revisional Court can endeavour to see whether it could be rectified.
26. We may also usefully refer to the judgment of the Supreme Court rendered long back and reported in 1951 S.C. 441 Tara Singh v. State while considering the provisions of Section 342, a corresponding new Section 313 of Cr.P.C., the Supreme Court has observed as follows:
When an accused has been convicted, and on appeal it is urged before the appellate Court that the accused has been denied a fair trial by reason of non-compliance with the provisions of Section 342 or by reason of such partial or perfunctory compliance that he was deprived of a fair opportunity of giving such explanations as he had about the various circumstances on which the trial Court has relied for his conviction, the question arises as to the effect of such a breach upon the validity and maintainability of the trial. Each case has to be decided on its own peculiar facts, and the question depends upon the degree and enormity of the error which has occurred. Even when the appellate Court is satisfied that in fact such non-compliance has occurred, the trial will not be vitiated straightaway, because errors of this type fall within the category of curable irregularities. It is for the accused to show that prejudice of a grave character was in fact occasioned to him by reason of such non-compliance, or that the disregard of the provisions of Section 342 was so gross that a likelihood of such prejudice having been occasioned has to be assumed. If the accused satisfies the appellate Court as regards such prejudice having been occasioned to him, it must be held that the trial was unfair and in such a case conviction must be set aside and a retrial ordered. On the other hand, if the appellate Court is satisfied that the error or irregularity which occurred was not of a grave character or that no prejudice was occasioned thereby, the defect or omission will be taken as cured by Section 537 of the Code.
27. On a careful consideration of the provisions of Section 313 of the Criminal Procedure Code, we are of the considered view that every error or omission in compliance with the provisions, does not necessarily vitiate the trial and where a trial is vitiated merely on that ground depends upon two factors viz., the degree or gravity of error and whether the prejudice has in fact been caused to the accused or likely to have been caused has its result.
28. In the above back drop of the legal position stated by the Apex Court the contention of the learned Counsel for the appellant/accused as to the failure on the part of the trial court to question the accused in respect of certain incriminating materials should be considered.
29. Insofar as the evidence of P.W. 1 as to the attempt on the part of the appellant/accused to escape when he opened the doors at 7.30 a.m. on the date of occurrence it is seen from the cross examination that the accused has not even challenged the said statement , except a suggestion that the accused has been falsely implicated. In the absence of any stand taken by the appellant/accused during cross examination of P.W. 1, in our opinion, no prejudice is caused by the mere fact that the accused was not questioned as to the alleged attempt made by him to escape from the scene of occurrence.
30. Hence, it must necessarily be automatically held that unless prejudice is shown, the trial shall not be vitiated on the sole ground that the accused was not questioned on certain incriminating material. As we have found that there was no prejudice was caused by the mere fact that the evidence of P.W. 1 as to the alleged attempt on the part of the appellant/accused to escape was not put to him, the contention in this regard is liable to be rejected. Similarly, the trial court has not convicted the accused solely on the extra judicial confession said to have been given and in our order also we have not relied upon the extra judicial confession to hold the accused guilty and convict the accused. Therefore, the mere failure on the part of the trial Court to question the accused as to the extra judicial confession will not cause any prejudice to the appellant/accused and on that score, the prosecution case cannot be disbelieved.
31. For all the above reasons, we are not in agreement with any of the submissions made by the learned Counsel for the appellant/accused in challenging the judgment of conviction and sentence. Accordingly, the criminal appeal fails and the same is dismissed confirming the judgment passed by the learned Additional Sessions Judge, Fast Tract Court No. II, Coimbatore in S.C. No. 19 of 2006 dated 25.04.2007.