Madras High Court
Ramalingam, Balu Alias ... vs State Rep. By Inspector Of Police, ... on 18 April, 2002
Author: A.K. Rajan
Bench: N. Dhinakar, A.K. Rajan
JUDGMENT A.K. Rajan, J.
1. The appellants in Crl.A.No. 897 of 1996 are A.1, A.2, A.3, A.5, A.6 and A.7 and the appellants in Crl.A.No. 936 of 1196 are A.8 to A.11 in S.C.No. 85 of 1996 on the file of the learned Additional Sessions Judge, Nagapattinam. Totally there were 12 accused. After committal, A.4 died. Therefore, the other accused were arrayed as A.1 to A.3 and A.5 to A.12.
2. The charges levelled against the accused are as follows:-
On 25.7.1989 at about 12.00 noon, at Pudhuthurai village, A.1 to A.3 and A.5 to A.7 were armed with deadly weapons like aruval with an intention of murdering Sekar, the deceased in the case, created a riot and hence, they were charged under Section 148 IPC. In the course of the same transaction, A.8 to A.12, who were armed with sticks with an intention of creating riot, were charged under Section 147 IPC. In the same occurrence, A.1 to A.3 and A.5 to A.12 trespassed the house of P.W.1 with an intention to murder Sekar, and hence they were charged under Section 454 IPC. and they were also charged under Section 426 IPC. for an offence of mischief by breaking open the house of P.W.1. On the same day, in the same transaction, A.1 to A.3 and A.5 to A.12 created mischief to the properties of P.W.1 and therefore, they were charged for an offence under Section 440 IPC. In the same occurrence, they trespassed the house of P.W.1 in order to murder Sekar and hence, they were charged under Section 449 IPC. In the course of the same transaction, A.1 to A.3 and A.5 to A.12 abducted Sekar, the deceased, in order to commit murder and hence they were charged under Section 364 IPC. A.1 to A.5 were also charged under Section 449 IPC. for trespassing into the bus bearing registration No.TNR 5913 with an intention to murder Sekar, the deceased. In the course of the same transaction, A.1 to A.3 and A.5 to 12 attacked Sekar, with aruvals and sticks, all over his body, with an intention of killing him and ultimately caused his death. Therefore, they were charged under Section 302 read with 34 IPC.
3. The learned Sessions Judge, who tried the case, acquitted A.1 to A.3 and A.5 to A.11 of the charges under Sections 454, 426, 440 and 449. A.8 to A.11 were acquitted of the charge under Section 302 of 32 IPC. The learned Sessions Judge also acquitted A.12 of the charges under Sections 147, 454, 426, 440, 449, 364 and 302 read with 34 IPC.
4. The learned Sessions Judge convicted A.1 to A.3 and A.5 to A.7 for an offence under Section 148 IPC. and sentenced to undergo two years rigorous imprisonment each. The learned Sessions also convicted A.8 to A.11 under Section 147 IPC. and sentenced to undergo one year imprisonment each; A.1 to A.3 were convicted under Section 364 IPC. and sentenced to one year rigorous imprisonment each. A.8 to A.11 were convicted under Section 363 IPC. and sentenced to one year rigorous imprisonment each; A.1 to A.3 were convicted for an offence under Section 449 IPC. and each of them was sentenced to imprisonment for life; A.1 to A.7 were convicted under Section 302 read with 34 IPC. and sentenced each one of them to imprisonment for life; Against the said conviction and sentence, A.1 to A.7 preferred C.A.No. 897 of 1997 and A.8 to A.11 preferred C.A.No. 936 of 1996.
5. The case of the prosecution is this:-
P.W.1 is the mother of the deceased, Sekar; She had three daughters and all of them were married; She also had two sons by name Veeramani and Sekar, the deceased in the case. They were agriculturist by profession; Sekar's left hand was deformed due to an accident in his early age; Two years prior to the date of the incident he was convicted for an offence and undergone sentence for a period of two years; After completing the sentence, he came to the village. Sekar was teased by the accused by pointing out his defects; He was complaining about this to his mother. One day prior to the date of occurrence, at about 9.00 p.m., A.2, along with the other accused, came to the house of P.W.1 and called the deceased to come out by shouting his name. The other accused also shouted. When P.W.1 came out, she saw A.1 to A.3, A.5, and A.7 to A.11. Then she pacified them and sent them away. On the next day, at about 1.00 pm, all the accused assembled before the house of P.W.1 with aruvals and sticks. At that time, Sekar, the deceased, was repairing a cycle in front of his house. On seeing the accused with weapons, Sekar went inside the house and hid himself. The house was bolted by P.W.1. At that time Amutha and Manoranjitham, the two daughters of P.W.1 were also in the house. The accused broke open the doors by using aruvals and sticks and entered into the house and dragged Sekar out of the house. P.W.1 and her daughters could not prevent. The accused took Sekar near the Mariamman temple, where he was beaten by all the accused. Sekar escaped from there and ran towards the house of P.W.3, which was at a distance of 200 feet and entered into the house. All the accused surrounded the house and threatened that the house will be set on fire and asked Sekar to come out of the house. At that time P.W.3, was not there in the house. On hearing about the threat, P.W.3 came there and questioned all the accused. They demanded Sekar to be sent out of the house. P.W.3 refused for their request and instead, he told the accused that he would hand over Sekar to the Panchaydars. By that time, Rengasamy and Gurusamy, the Panchayatdars, came there. P.W.3 went and reported to them and at that time Sekar came out of the house and got into a bus, which was passing on. The bus stopped at a place called Kannikoil temple, which was about 120 feet away from the house of P.W.3. All the accused ran behind the bus and got into the bus. On seeing the accused armed with deadly weapons and entering into the bus, all the passengers got down. At that time, A.1, A.2 and A.3 cut Sekar with aruvals repeatedly inside the bus. Thereafter, Sekar was dragged out of the bus and once again, A.1 to A.3 cut him indiscriminately. A.4 to A.6 also cut Sekar indiscriminately and other accused beat him with sticks. Sekar, who got injuries all over his body, died at the spot itself. All the accused ran away from the scene of occurrence with weapons. The entire attack started in the bus at about 1.45 pm and ended at 2.00 p.m. Thereafter, P.W.1 went to Thiruvenkadu police station and reached it by 4.00 p.m and gave a complaint to P.W.9, the Sub Inspector of Police. The said complaint stands marked as Ex.P.1. On the basis of Ex.P.1, P.W.9 registered a case in Crime No. 230 of 1989 for the offence punishable under sections 147, 148, 448, 427, 341 and 302 IPC. Ex.P.19 is the printed first information report. He sent the first information report to the Magistrate and the copies to the higher officials. He informed the Inspector of Police over V.H.F. P.W.12, the Inspector of Police, on receipt of information over V.H.F. went to the scene of occurrence at 5.10 p.m., where he obtained a copy of the first information report. On 26.7.1989 at 5.15 a.m. he prepared an observation mahazar, Ex.P.5 in the presence of witnesses. He also drew a rough sketch, Ex.P.20. He seized M.Os.1 and 2, the blood-stained earth and sample earth respectively under a mahazar Ex.P.6 attested by witnesses. Inquest was conducted between 6.00 p.m. and 9.00 p.m. in the presence of Panchayatdars, during which period, P.Ws.1, 2, Amudha, Manoranjitham and others were examined and their statements were recorded. Thereafter, a requisition was issued through a Police Constable along with the dead body for conducting autopsy.
6. On receipt of requisition, P.W.2, the Assistant Surgeon attached to Government Hospital, Sirkali conducted autopsy on the dead body of Sekar and found the following external injuries:-
1. A cut injury 6" x 3" bone departing the bones, muscles and the vessles found on the right shoulder joint. Head of the right humerus is cut into two pieces.
2. A cut injury - incised wound 3" x 1 " muscle deep found on the front of the neck, extending from below the right side thyroid cartilage crossing the mid line ending just 1" above the carotid 1/3rd of left clavicle.
3. A cut injury extending from below the tragus of the left ear, cutting pinna into two - 4" x 1 ". Bone deep ending posteriorly 1" below the mid occipital region. Muscle, bones, blood-vessels being cut.
4. A cut injury 3 " x 2" muscle deep found on the back of the neck at the level of c - b and the 6th cervical vertebra being exposed not fractured.
5. An incised wound 1" x " x " found " below wound No.4.
6. An oblique cut injury 6" x 2" x muscle deep extending from below the mid xiphisternum ending near the right anterior axillar line found in the chest. 4th and 5th ribs exposed.
7. An incised wound 1 " x " x " left upper abdomen with a continuous groove of 3" in length from the right end of the wound which is continued by an incised wound 1" x " x " on the right side upper abdomen followed by a groove of 1 " in length ending with an incised wound of 1" x " x " on the lateral aspect of the right abdomen.
8. A cut injury 1" x " x " on the right shoulder.
9. A cut injury 3 " x 1 " muscle deep exposing the bone found on the lateral aspect of the left upper arm with both ends of the wound run in continuous with a groove mark of 1" on either side.
10. A stitch mark 2" x 1" with bluish discolouration found on the left arm.
11. A stitch mark 3" x 1 " with bluish discolouration found on the posterior aspect of the left forearm.
12. Left shoulder joint found dislocated with bluish discolouration of the skin of 3" x 2" over that, with skin peeled off.
13. A cut injury 1 " x " muscle deep found on the back just below the left shoulder.
14. A cut injury 5" x 1 " muscle deep found on the left side of the back extending from below the left scapula ending at the middle of the back 2" below the nape of the neck with a groove on which crossing the midline followed by an incised wound 1 " x " x " on the right side of the back near the middle border of the right scapula.
15. An oblique cut injury 4" x 1 " muscle deep found on the back extruding from between the right scapula ending at the middle of the back at the level of T-10.
16. A cut injury 2 " x 1 " muscle deep found on the mid back just below the wound No.15 with both ends of the wound in continuous with a groove mark of about 3" on either side with the lower end of the groove ending with an incised wound of 1" x " muscle deep.
17. A cut injury 3" X 2" muscle deep found on the lateral aspect of the mid back just 3" below left scapula.
18. A cut injury 1" x " muscle deep oblique in shape found on the mid back at the end of T-11.
19. A cut injury 1" x " muscle deep found above the right gluteal region.
20. A lacerated cut injury 3" x 1" muscle deep found above the left gluteal region.
21. A cut injury 2 " x 2" muscle deep found on the outer aspect of the right upper arm muscles blood vessles and nerves being cut.
22. A cut injury 1" x " x 1" found on the right upper arm just above the elbow.
23. A lacerated cut injury 3" x 2" muscle deep found on the back of the right fore arm 2" below the elbow.
24. A cut injury 2" X 2" bone deep found on the back of the right wrist joint with fractured pieces of right radius and ulna exposed out.
25. A cut injury 3" x 1 " muscle deep, just on the lateral aspect of the right thigh just abvoe the knee.
26. A cut injury 1" x " muscle deep found 1" medial to wound No.25.
27. A lacerated oblique cut injury found below the left politial fossa. Muscles, vessels, nerves being cut.
28. A lacerated cut injury 2 " x 1 " muscle deep found 1" above the wound No.27.
29. An incised wound 1" x 1 " muscle deep found on the anterior aspect of the left leg.
30. An incised wound 1" x " x " found on the right index finger.
The doctor issued Ex.P.6, the post-mortem certificate, with his opinion that the deceased would appear to have died of haemorrhage and shock due to multiple injuries.
7. Meantime, P.W.12, searched for the accused, but they were found absconding. On 26.7.1989 he questioned P.Ws.7, 9, 10 and 11 and other witnesses. He seized the clothes worn by the deceased, which were produced by the Police Constable after post-mortem was over, under Form 95. He also examined the doctor, who conducted autopsy, on 7.8.1989. On 11.8.1989 at 6.00 a.m., on information, he arrested A.1, A.2, A.3 and A.3 near Thiruvali lake at Pudhuthurai village in the presence of the Village Administrative Officer. A.1 was questioned and he voluntarily gave a statement, which was reduced into writing, the admissible portion of which stands marked as Ex.P.22. At 7.45 a.m. A.2 was arrested and when questioned, he gave voluntary statement, the admissible portion of which is marked as Ex.P.23. At 9.15 a.m. A.3 was arrested and when questioned, he gave a voluntary statement, the admissible portion of which stands marked as Ex.P.24. In pursuance of the statement given by A.1, he took the police party to his house and produced M.O.3, a blood-stained aruval, which was seized under a mahazar Ex.P.7 attested by witnesses. Thereafter at 11.30 a.m., A.2, in pursuance of Ex.P.23, took the police party to his house and produced M.O.4, a blood-stained aruval, which was seized under a mahazar Ex.P.8 attested by witnesses. At 12.30 p.m., the police party were taken to a thorny bush by A.3 and produced M.O.5, a blood-stained aruval, which was seized under a mahazar Ex.P.9 attested by witnesses. On 12.8.89, P.W.12 arrested A.6, A.7 and A.11. They were questioned and A.7 gave a voluntary statement, the admissible portion of which stands marked as Ex.P.13. At 8.30 a.m., A.6 was questioned and he gave a voluntary statement, the admissible portion of which is marked as Ex.P.14. At 10.00 a.m., A.11 was questioned and he gave a voluntary statement, the admissble portion of which is marked as Ex.P.15 attested by witnesses. In pursuance of Ex.P.13, A.7 took the police party to a buidling, from where M.O.6, aruval, was produced, which was seized under a mahazar Ex.P.16, attested by witnesses. At 12.30 p.m., A.4 took the police party to a bush and produced M.O.7, a blood-stained aruval, which was seized under a mahazar Ex.P.17, attested by witnesses. At 1.30 p.m. A.11 took the police party to his house and produced M.O.8, stick, which was seized under a mahazar Ex.P.18 attested by witnesses. The material objects were sent to Court with a requisition to forward them for chemical analsyis. Thereafter P.W.12 was sent for training and further investigation was taken up by his successor, P.W.13 on 7.3.1993. P.W.13 after verifying the investigation conducted by P.W.12, filed the final report against the accused under Sections 147, 148, 448, 427, 449, 364, 506(2) and 302 IPC. on 15.5.1993.
8. When the accused were questioned under Section 313 of the Cr.P.C. on the incriminating evidence appearing against them, they denied all of them. No defence witness was examined by them.
9. The learned counsel appearing for the appellants/ accused submitted that the only available evidence against the accused is that of P.Ws.1 and 3. According to P.w.1, she was present in the house and all the accused gather in front of the house of P.W.1 on the previous day evening and asked Sekar to come out. P.w.1 pacified them and sent them away. On the date of occurrence, again all the accused came to her house and they were all armed with deadly weapons like aruvals. On seeing the accused with deadly weapons, the deceased went inside the house and bolted the doors. The case of the prosectuion is that the door was broken upon by using aruvals and sticks and the deceased was dragged out. But there is no evidence even in the observation mahazar to show that the doors of the house of P.W.1 were found damaged, and this aspect of the prosecution case has not been proved at all. Further according to P.W.1, all the accused took Sekar to a nearby Mariamman temple and P.W.1 ran behind the accused about 200 feet, where the deceased was beaten by the accused. According to the prosecution, the accused were armed with deadly weapons; but no cut injury was inflicted on the deceased at that place. Thereafter, the deceased escaped from there and ran into the house of P.W.3. From the evidence of P.W.3, it is seen that the house of P.W.3 has no doors. If really they went to cut the deceased, nothing prevented them from entering into the house of P.w.3 and dragging the deceased out of the house of P.w.3. The case of the prosecution is that none of the accused entered into the house of P.W.3 and all of them were waiting outside the house and threatening to set fire to the house. On coming to know about the same, P.W.3 came to the house and on seeing him, all the accused demanded that the deceased will be sent out of the house. But P.W.3 refused to send him out instead, he has stated the he would hand over the deceased only to the Panchayatdars and not to them. According to P.W.3, Gurusamy and Rengasamy, the Panchayatdars also came there and they also refused to hand over the deceased to the accused, instead, they stated that they will hand over the deceased only to the police. Thereafter, Sekar came out of the house of P.W.3 and got into a bus which was passing on the nearby road and all the accused said to have chased the bus and got into the bus and cut the deceased inside the bus. But no observation mahazar has been prepared in this regard to show that there was blood-stains found in the bus. No sample has been taken from the bus. The counsel for the appellant/accused further argued that P.W.3 was not an eye witnesses at all to the occurrence. Only to implicate the accused in the crime, the prosecution has deliberately planted P.W.3. In support of his argument, the counsel argued that there was no door in the house of P.W.3 and nothing prevented the accused from entering into the house and dragging the deceased out of the house of P.W.3. P.W.3 has been deliberately planted only to get an eye witness to the occurrence; the Panchayatdars, who said to have come to the place immediately after the arrival of P.W.3, were not even examined by the polcie under Section 161 Cr.P.C., nor they were examined in the Court. Further according to P.W.3, he was informed about the occurrence by one Thangarasu and only on getting information through Thangarasu, P.W.3 came to his house, where he found all the accused surrounding the house of the P.W.3, and the deceased was said to be inside the house. But this Thangarasu has also not been examined in Court. Further, the two other daughters of P.W.1, who were said to be inside the house, were also not examined. Therefore, the counsel submits that, the evidence of P.Ws.1 and 3 must be taken together, and this case has to be viewed; the evidence of P.W.1 should not be looked in isolation and the evidence of P.W.3 also should not be looked in isolation; They must be taken together to find out whether the occurrence has taken place as put forth by the prosecution; No passenger, who travelled in the bus at the time of incident, was examined; Further according to the prosecution version, all the accused were armed with deadly weapons; They never attacked the deceased immediately; They dragged the deceased out of the house of P.W.1 and then the deceased was taken to a nearby temple, which was 120 feet away from the house of P.W.1, even there the deceased was not inflicted cut injuries. Even, when the deceased was inside the house of P.W.3, the accused could have entered into the house of P.W.3 and dragged him out. But according to the prosecution, all the accused were waiting outside the house patiently and when the deceased get into the bus, which was passing on the nearby road, all the accused chased the bus, entered into the bus and inflicted cut injuries on the deceased. Even to prove that the occurrence had taken place inside the bus, the conductor of the bus has not been examined. According to the defence, the driver of the bus gave first information report immediately after the occurrence and that complaint has not been brought to Court at all; The said complaint has been burked; Further, according to the prosecution, P.W.1 went all the way to Thiruvenkadu police station by walk and gave a complaint. When her son is found dead, it is unbelievable that a mother, walked all the way, alone, to the police station, which is at a distance of 8 kms away from the scene of occurrence. Therefore, the counsel argued that the prosecution has not come out with full facts and instead, it has burked the first information report, which was given by the driver of the bus. Therefore, on the basis of the evidence, the case of the prosecution cannot be sustained and the learned Judge was not correct in convicting the accused. The first information report, which was given by the bus driver at the very beginning stage, has not been produced before Court and therefore, the prosecution has not come out with full facts and the case of the prosecution has to fail; The learned Sessions Judge has erred in finding the accused guilty of the charges and all the accused are to be acquitted on this ground.
10. On these arguments, the learned Additional Public Prosecutor was heard. He has submitted that P.W.3 is an independent witness and he belongs to a different community and there is no reason whatsoever for him to speak against all the accused. Further P.W.1, who was a woman, could not do anything in the presence of so many persons, who were armed with deadly weapons and since nobody came to her rescue, P.W.1 had gone to the police station and gave a report. Merely because, the deceased was her son, it cannot be said that the mother would not have gone and gave the report. He has further submitted that all the accused were afraid of entering the house of P.W.3, since he belongs to a different community and therefore, nothing abnormal in the accused not entering into the house of P.W.3, when the deceased was inside his house; The case of the prosecution cannot be disbelieved only on that ground; The evidence is sufficient to prove the guilt of the accused and therefore, the learned Sessions Judge was justified in convicting the accused.
11. The main contention of the counsel for the accused is that, the entire occurrence, according to the prosecution, starts at the house of P.W.1 and the doors of the house of P.W.1 were broke open and then only the accused entered into the house and brought the deceased out of the house. But in the absence of any evidence to show that the doors of the house of P.W.1 were damaged, the case of the prosecution cannot be believed. There is not even an observation mahazar prepared by the investigating officer with reference to the house of P.W.1, where the occurrence said to have started and especially when it is stated that the doors of the house of P.W.1 were damaged using deadly weapons like aruvals. Normally any investigating officer would have prepared an observation mahazar with regard to the house of P.W.1; But it has not been done. Further, the house of P.W.3 has no doors at all and P.W.3, admittedly, was not in his house, when the deceased entered into his house and all the accused surrounded his house. P.W.3 came only after informed by one Thangarasu. Even that Thangarasu has not been examined at all; not even during investigation. Therefore, the argument of the counsel for the accused that P.W.3 has been deliberately introduced in order to support the case of the prosecution, cannot be rejected in toto. It has force. Further this conclusion gets strengthened by the fact that the Panchayatdars, Rengasamy and Gurusamy were not examined at all; the daughters of P.W.1, who were said to be inside the house at the time of occurrence, were also not examined before Court; P.W.1 is the mother of the deceased, the evidence of P.W.1 cannot be accepted, especially in the absence of any evidence to prove that the doors of the house of P.W.1 were damaged. Further P.W.3's evidence cannot be believed, because Thangarasu, who gave information to him about the occurrence, has not been examined. The investigating Officer has not taken any steps to examine Thangarasu even during investigation; No passenger, who travelled in the bus at the time of incident, has been examined. But at the same time, the fact remains that the bus was standing near the scene of occurrence throughout the day. Therefore, it cannot be disbelieved that the incident took place inside the bus and the deceased was dragged out from the bus and inflicted injuries. The prosecution succeeds only in proving that there was an incident in the bus and subsequently the deceased was dragged out of the bus and he was done to death.
12. From the evidence of the post-mortem doctor, P.W.2, it is evident that the deceased sustained 30 injuries on his person and therefore, death was due to homicidal violence. But according to the prosecution, he was beaten repeatedly near the Mariamman temple with sticks, but the doctor has not found any contusions, due to the attack with sticks. Therefore, the prosecution version that some of the accused were armed with sticks and attacked the deceased also has not been established. Further the weapons, which were used by the accused, were not even sent for chemical examination. Taking the totality of the evidence in the light of these discussions, this Court is unable to agree with the conclusion of the learned Sessions Judge holding that the charges against the accused have been proved. The above circumstances create a doubt in the minds of the Court as to whether the occurrence would have taken place as put forth by the prosecution. Hence, the benefit of doubt has to be given to the accused and therefore, the conviction and sentence imposed upon all the accused by the learned Sessions Judge are set aside. It is reported that A.1, A.2, A.3, A.5, A.6 and A.7 are confined at Central Prison, Cuddalore. They are directed to be released forthwith, unless they are wanted in connection with any other cases.
12. In a case of serious nature, where a person was done to death by causing 30 injuries indiscriminately in a running bus, the investigation has not been done properly and the real accused were not brought on record. Though we have no doubt that some of the accused, who brought before the Court, could have participated in the occurrence, that suspicion alone cannot sustain the conviction. We, therefore, give the benefit of doubt to all the accused and acquit them of the charges with which they were convicted. The appeal is allowed.