Madras High Court
Mayil Alias Mayilvahanan vs State Rep. By The on 23 June, 2004
Author: M.Chockalingam
Bench: N.Dhinakar, M.Chockalingam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23/06/2004
CORAM
THE HONOURABLE MR.JUSTICE N.DHINAKAR
AND
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
C.A.No.123 of 2001 and C.A.No. 208 of 2003
Mayil alias Mayilvahanan .. Appellant in
CA 123 of 2001
Shanmuganathan .. Appellant in
CA 208 of 2003
-Vs-
State rep. by the
Inspector of Police
North Police Station
Rajapalayam .. Respondent
These criminal appeals are preferred under Sec.374 of the Code of
Criminal Procedure against the conviction and sentence passed by the
Additional District Judge cum Chief Judicial Magistrate, Virudhunagar District
at Srivalliputhur in S.C.No.44/98 on 18.12.2000.
!For Appellant in
C.A.123/2001 : Mr.Dhanasekaran for
M/s.S.Silambannan and
A.Abdul Hameed
For Appellant in
C.A.208/2003 : Mr.P.Kumaresan
For Respondent : Mr.S.Jayakumar
Additional Public Prosecutor
:COMMON JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern the two appeals in C.A.Nos.123 of 2001 and 208 of 2003. The first one is filed by A-2, while the second one is filed by A-1.
2. The appellants/A-1 and A-2 along with one Super Subramanian, who was arrayed as A-3, before the trial Court stood charged, tried and found guilty under Sections 120(b), 302 read with 34, 201 and 379 of Indian Penal Code, and they were sentenced to undergo 3 years Rigorous Imprisonment each for the offences under Sections 120(b) and 201 I. P.C., 1 year Rigorous Imprisonment for the offence under Sec.379 I.P. C. and life imprisonment for the offence under Sec.302 read with 34 I.P.C. Aggrieved over the same, the first and the second accused have brought forth these two appeals.
3. The short facts necessary for the disposal of these two appeals are:
(a) P.W.1 Thilakar, owner of a Taxi bearing Registration No.TNZ 7336 , was carrying on the business of hiring Taxi at Rajapalayam. While so, he had two drivers by names Sundarrajan, since the deceased, and Kaalaipandy. On 7.4.1992, the said Sundarrajan took the Car after informing the other driver that he took it on hire basis. But, he did not return for a period of four days. Entertaining suspicion, P.W.1 gave a complaint Ex.P1 to the Deputy Superintendent of Police, Rajapalayam, who in turn forwarded the same to one Muthukaruppan, Sub Inspector of Police, North Police Station, Rajapalayam.
The Sub Inspector registered a case in Crime No.210/92 under Sec.406 of I.P.C. While the investigation was pending in that crime number, the Central Crime Branch, Tirunelveli, which was investigating a case in Crime No.902/92, pertaining to the Crime Branch, on 5.8.1992 at 5.00 A.M. arrested the first accused at Tuticorin Bus Stand. On enquiry, he gave a confessional statement voluntarily in the presence of P.W.5 Rengaraj, Village Administrative Officer, and another witness. His confessional statement was recorded, and the admissible part is Ex.P6. P.W.29 Yoosuf, the then Inspector of Police, came to know that A-1 was involved in a case, registered by Rajapalayam Police Station in Crime No.210/92. He sent all the papers and connected records and copy of the confessional statement to the Police Station, Rajapalayam. (b) The said Muthukaruppan, Sub Inspector of Police, Rajapalayam Police Station, received all the connected papers and converted the case originally registered under Sec.406 I.P.C. in Crime No.210/92, into one under Sections 302 and 379 I.P.C. While so, he received an information from P. W.29 that the earlier case under Sec.406 I.P.C., subsequently converted into Sections 302 and 379 I.P.C., could not be further proceeded with; but, a separate case has got to be registered. Accordingly, he registered a separate case in Crime No.498/92 under Sections 302 and 3 79 I.P.C. Ex.P28 First Information Report was sent to the Court concerned.
(c) P.W.30 Amalanathan, Inspector of Police, Rajapalayam Police Station, took up the investigation and arrested A-3 near Rajapalayam Bus Stand on 8.8.1992, in the presence of P.W.6 Lingam, Village Administrative Officer. The confessional statement given by A-3 voluntarily was recorded in the presence of witnesses, the admissible part of which is Ex.P7. In his confessional statement, A-3 has stated that he would point the place where the dead body of Sundarrajan was buried. A requisition was forwarded to the Tahsildar, Rajapalayam, for the exhumation of the body; but, the same was returned on the next day stating that the place, where according to the statement of A-3, the dead body was buried, fell outside his jurisdiction, and hence, he could not do so. Then, another requisition was given to P.W.25 Kesavaraman, Tahsildar, Sankarankovil. On receipt of the same, on 9.8.1992, he visited the place of occurrence, and A-3 identified the place called Subbiah Thevar Garden, and an observation mahazar Ex.P8 and a rough sketch Ex.P30 were prepared by P.W.30 in the presence of P.W.6 V.A.O. and another. Then, A-3 identified the garden of P.W.11 Ramachandran, where according to him, the dead body was buried, and an observation mahazar Ex.P9 and a rough sketch Ex.P31 in that regard were also prepared by P.W.30 in the presence of P.W.7 Mariappan, Village Administrative Officer and another. After the dead body was taken, P.W.30 prepared an observation mahazar Ex.P12.
(d) With the assistance of P.W.9 Azhagar and P.W.10 Velu, the menials of the village, the dead body was exhumed by the Tahsildar P.W.25. In the presence of panchayatars and other witnesses, an inquest was conducted, and Ex.P20 inquest report was prepared in that regard. The dead body was identified by the parents of the deceased Sundarrajan and the other Driver Kaalaipandy. The statements of P.Ws.1, 2 and 8 were also recorded by the Tahsildar, and they are marked as Exs.P4, P5 and P13. The Tahsildar also recorded the statement of A-3, which is marked as Ex.P22. All the accused were sent to the Court immediately. A requisition Ex.P19 was also sent to the Medical Officer concerned for conduct of postmortem over the dead body.
(e) On receipt of the requisition Ex.P19, P.W.31 Dr.Ragupathy, Assistant Surgeon, attached to Government Hospital, Sankarankovil, conducted autopsy on the dead body and has issued Ex.P34 postmortem certificate stating that the condition of the dead body was highly decomposed, and due to the same, viseras were not available. But, the skull and bones were recovered, and they were sent to Forensic Sciences Department for analysis. P.W.32 Ranjith Cecil, Scientific Officer, attached to Forensic Sciences Department, received the skull and bones of the deceased and conducted superimposition test. With the help of the photographs of the deceased, it was found the skull which was subjected to superimposition was that of Sundarrajan. P.W.32 issued a report Ex.P35. P.W.31 the Doctor has opined that final opinion could not be given due to highly decomposition state.
(f) On 12.8.1992 at about 6.15 A.M., P.W.30 arrested A-2, who gave a confessional statement, and the same was recorded, the admissible part of which is Ex.P11. A-2 took the investigating party to Madurai, where he identified one Manokaran, to whom the car was actually sold. The said Manokaran was enquired by the Investigating Officer, but was not examined before the trial Court. Manokaran informed that the car was then sold to one Thangaraj, who in turn sold it to P.W.34 Mohammed Ali Jinnah, and the car M.O.1 was recovered by P.W.29. P.W.38 Chinniah, Inspector of Police, took up further investigation. He sent the recovered material objects and the Car sent for chemical analysis along with a requisition. The chemical analyst's report is Ex.P4 5, and the serologist's report is Ex.P46. On completion of the investigation, P.W.38 laid the final report.
4. The lower Court framed the above charges. In order to prove the charges, the prosecution marched 38 witnesses and relied on 46 exhibits and 16 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of the Code of Criminal Procedure as to the incriminating circumstances found in the evidence. They flatly denied the same. No defence witness was examined, and no exhibit was marked on their side. The lower Court, on consideration of the rival submissions made and scrutiny of the materials, found the first and second accused in the case guilty as stated above and inflicted the punishment on them. Aggrieved over the finding of the lower Court, A-2 has preferred the first appeal, while A-1 has preferred the second appeal.
5. The learned Counsels appearing for both the appellants at the time of advancing their arguments with vigour and vehemence made the following submissions:
The prosecution had no direct evidence to offer before the lower Court. Much reliance was placed by the prosecution on the circumstantial evidence, and that has also been accepted by the lower Court. In the instant case, there was recovery of the skull and the other bones from the place, where the dead body was exhumed, and superimposition test was conducted. After the scientific process, it was found that the skull subjected to test was that of Sundar rajan. The accused have no quarrel about the same. But, the prosecution has thoroughly failed to show that the appellants have got any nexus to the crime in question. According to the prosecution, A-1 was arrested, and a confessional statement was recorded from him on 5.8.1992; but, till 8.8.199 2, the police officials did not proceed to the spot. It is further pertinent to point out that A-3 was arrested on 8.8.1992. Only after his arrest, the first requisition that was given to the Tahsildar, Rajapalayam, was returned, since it was out of his jurisdiction, and then, the second requisition was given to the Tahsildar, Sankarankovil, who was examined as P.W.25. From his evidence, it would be quite evident that at the time of exhumation of the dead body of Sundarrajan, A-3 was by his side and not A-1, and thus, it would be clear that only after the arrest of A-3 and his confessional statement recorded by the Investigating Officer, a requisition was given to the Tahsildar, and A-3 has also accompanied, and the body has also been exhumed. From the available evidence, it would be clear that neither A-1 nor A-2 was present at that time, and none of the appellants identified the place, where the body was buried. Thus, it cannot be stated that there was nexus between the appellants and the crime in question. In that regard, the evidence on the side of the prosecution would fall to ground. The prosecution has also much relied on the recovery of the vehicle. According to P.W.1, the vehicle that was involved in the case, was a Car bearing Registration No.TNZ 7336 with a particular chassis number. According to the prosecution, pursuant to the confession, the recovery was made. But, the vehicle that was recovered, was actually subjected to chemical examination by P.W.24, and from his evidence, it would be very clear that it is true that what was found in the vehicle was the original chassis number, and a plate was also affixed therein, and when the plate was removed, two chassis numbers were also found. When enquired about the same, P.W.1 would clearly indicate that there are number of chassis numbers found in the vehicle including his chassis number also, and thus, it was highly doubtful whether it was the vehicle belonging to him. Thus, the prosecution was unable to show that it was the vehicle that belonged to P.W.1., and the prosecution has failed in that regard. When the prosecution could not brought forth any evidence as to the recovery of the vehicle and the dead body, then the prosecution has collapsed its entire case. But, the lower Court on an erroneous consideration has found that the prosecution has proved that there is nexus between the accused and the crime and that the circumstantial evidence constituted a chain leading to the hypothesis that it was the accused, who committed the crime. The prosecution has miserably failed in its attempt to prove the charges, and hence, the appellants should be acquitted of the charges levelled against them.
6. This Court heard the learned Additional Public Prosecutor on those contentions.
7. The Court paid its full attention on the rival submissions made and had a thorough scrutiny of the materials available.
8. The gist of the prosecution case as could be seen above is that P.W.1 was owning a Car bearing Registration No.TNZ 7336 and a particular chassis number also, and the same could be seen from Ex.P1 complaint given by him at the earliest. Originally a case under Sec.406 I. P.C. was registered at the instance of P.W.1, when he gave a complaint to the Deputy Superintendent of Police, Rajapalayam. The said D.S. P. has handed over the same to Muthukaruppan, Sub Inspector of Police, who registered a case under Sec.406 I.P.C., since the driver of the car namely Sundarrajan who took the Car on 7.4.1992, did not return the Car for a period of four days. Thus, the investigation was pending nearly for a period of more than four months. While so, the Central Crime Branch, Tirunelveli, which was investigating a case in Crime No.902/92 on its file, on 5.8.92 arrested A-1 in connection with that case, and when he was enquired, according to the prosecution, he made a confession with regard to the present case, and a copy of the confessional statement recorded by that police, was sent to Rajapalayam Police Station. Hence, the case which was originally registered under Sec.406 I.P.C. was converted into one under Sections 302 and 379 of I.P.C. It is a matter of surprise to note that having converted the case in Crime No.210/92, originally registered under Sec.406 I.P.C., into Sections 302 and 379 I.P.C., the police have closed the case for reasons best known to them. But, the concerned Police Officer has registered another case in Crime No.498/92 under Sections 302 and 379 I.P.C. and has proceeded with the case. It is true that two First Information Reports Exs.P27 and P28 have been despatched to the Court in respect of the same occurrence in question. The prosecution has no explanation to offer how two cases came to be registered. It remains to be stated that the first F.I.R. has been closed; but, the case has been registered on the basis of the second F.I.R. for the second time and has been proceeded with.
9. As rightly pointed out by the learned Counsel for the appellants, the lower Court has found that the nexus of the appellants with the crime in question was proved by both the recovery of the dead body while the place of burial was pointed to by the accused and also the recovery of the vehicle. It is not in controversy that the dead body of one Sundarrajan, the driver of P.W.1, was actually found in the garden of P.W.11, and the Tahsildar of Sankarankovil, examined as P.W.2 5, with the assistance of P.Ws.10 and 11 has exhumed the body, and he has also given a report, and the skull and the bones were actually taken out and sent to the Forensic Sciences Department for analysis. It is pertinent to note that the superimposition test would clearly reveal that it was the dead body of Sundarrajan, and the parents of the deceased have also identified the body. Thus, no doubt, he has died out of homicidal violence.
10. The question that came up for consideration before the Court below and equally here also is whether the appellants before this Court have got any connection to the crime in question. According to the prosecution, it was A-1 who gave a confessional statement to the Investigating Officer, and it was recorded at the earliest on 5.8.1992. It is pertinent to point out that though it was recorded on 5.8.1992, the police officials did not proceed to the spot, where the dead body was buried. Thus, it would be clearly indicative of the fact that the confessional statement of A-1 did not reveal the place where actually the dead body was buried. Had it been true, as put forth by the prosecution, that A-1 gave the confessional statement indicating the place of burial of the dead body, there could not have been any impediment for the police officials to proceed to that place immediately. The prosecution is unable to give any acceptable explanation in that regard.
11. Further, the confessional statement of A-2 was recorded on 8.8.1
992. The requisition that was given to the Tahsildar, Rajapalayam, was returned, since it was outside his jurisdiction, and the second requisition was given to P.W.25, the Tahsildar of Sankarankovil. In the presence of the witnesses and the Investigating Officer, P.W.25 exhumed the body. A scrutiny of the evidence of P.W.25 would go to show that at the time of exhumation of the body of Sundarrajan at P.W.11's garden, it was only A-3 who was present with him and not A-1. Even, the Investigating Officer has categorically admitted that it was only after the confessional statement of A-3 was recorded, the body was exhumed from the place. Thus, it would be quite evident that it was only A-3, who gave the confessional statement pointing the place, where the body was buried. At this juncture, it has to be pointed out that the statement of A-1 was not in any way helpful for exhuming the body, nor was it helpful for the prosecution to show the nexus of A-1 with the crime.
12. So far as A-2 was concerned, he was arrested. To make out a nexus as regards A-2, the prosecution comes forward to say that the property in question namely the Car was recovered pursuant to his confessional statement to the Investigating Officer. The evidence what was adduced by the prosecution as to the identity of the property namely the Car, cannot be accepted. To start with, according to P.W.1, the Car what he was owning, was bearing Regi stration No.TNZ 7336 with the particular chassis number, which is also affirmed in his evidence. It is pertinent to point out that originally one Manokaran to whom the car was sold, was identified by the accused and enquired by the Investigating Officer. But, the said Manokaran was not examined in Court. He has identified three persons, and all of them were examined. The totality of the circumstance would clearly indicate that the Car actually recovered under the mahazar, which according to the prosecution, belonged to P.W.1., when put to chemical examination through P.W.24, he has given a certificate Ex.P17 stating that there was originally a small plate fixed over it; that when it was removed, it contained two other numbers also, and thus, the three chassis numbers were found in the same vehicle. When a question was put to P.W.1, he would say that there were number of chassis numbers found in the vehicle what was shown to him; and that his number was also included therein. The lower Court has not properly considered this aspect of the matter. While questioned, the prosecution before this Court is unable to give satisfactory explanation how the Car in question could contain 3 chassis numbers, if P.W.1's Car with the said Registration Number contained only one chassis number, what is given in Ex.P1. Under the stated circumstances, it cannot be stated that the property namely the Car originally belonged to P.W.1. If the property what has been seized on a confessional statement alleged to have been given by A-2 does not belong to P.W.1, that part of the evidence cannot be accepted in any way to hold that there was nexus between the appellants/ accused and the crime in question.
13. In view of the above reasons, the recovery of the dead body and the recovery of the Car pursuant to the confessional statement, as discussed above, would not in any way advance the case of the prosecution, and thus, the prosecution has failed to establish the nexus of the appellants with the crime. The lower Court, without proper consideration of the entire evidence, has found them guilty, which has got to be set aside only by upsetting the judgment of the Court below.
14. In the result, both these criminal appeals are, accordingly, allowed. The conviction and sentence imposed on the appellants/A-1 and A-2 by the learned Additional District Judge cum Chief Judicial Magistrate, Virudhunagar District, Srivalliputhur, in S.C.No.44 of 1998 are set aside, and the appellants/A-1 and A-2, who are lodged in the Central Prison, Madurai, are directed to be set at liberty forthwith, unless their presence is required in any other case.
Index: yes Internet: yes To:
1. The Additional District Judge cum Chief Judicial Magistrate, Virudhunagar District at Srivilliputhur
2. The Additional District Judge cum Chief Judicial Magistrate, Virudhunagar District at Srivilliputhur Through The District Judge, Virudhunagar District.
3. The District Collector, Virudhunagar District.
4. The D.G.P., Chennai.
5. The Public Prosecutor, Madras.
6. The Superintendent, Central Prison, Madurai.
nsv/