Madras High Court
S.Ramalingam vs State Rep. By on 1 September, 2015
Author: V.S.Ravi
Bench: V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.09.2015
CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
and
THE HONOURABLE MR. JUSTICE V.S.RAVI
Crl.A(MD)No.15 of 2011
1.S.Ramalingam
2.T.R.Ganesan
3.Raja @ Arakkattai Raja @ Rajaram
4.T.Ganesan
.. Appellants/
Accused Nos.1, 2, 4 & 5
Vs.
State rep. By
The Inspector of Police,
Thiruchirappalli Police Station,
Sivagangai District.
(Crime No.166 of 2001) .. Respondent/
Complainant
PRAYER: Criminal Appeal filed under Section 374 of Cr.P.C. against the
conviction and sentence, dated 07.12.2010, made in S.C.No.84 of 2006, by the
Principal Sessions Court, Sivagangai.
For Appellants : Mr.P.Andiraj
For Respondent : Mr.C.Mayil Vahana Rajendran
Additional Public Prosecutor
:JUDGMENT
(Judgment of the Court was delivered by S.NAGAMUTHU, J.) The appellants are the accused Nos.1, 2, 4 and 5 in S.C.No.84 of 2006, on the file of the learned Principal Sessions Judge, Sivagangai. Including these appellants, altogether, there were 12 accused in the case. The trial Court framed as many as eight charges against the accused. The first accused stood charged for the offences under Sections 120(b), 147, 342, 114, 302 read with Sections 149 and 201 I.P.C; the second accused stood charged for the offences under Sections 120(b), 147, 342, 302 read with Sections 149 and 201 I.P.C; the fourth accused stood charged for the offences under Sections 120(b), 148, 342 and 302 I.P.C; the fifth accused stood charged for the offences under Sections 147, 342, 302 read with Sections 149, 201 and 182 I.P.C and the accused Nos.6 to 11 stood charged for the offences under Sections 147, 342, 302 read with Sections 149 and 201 I.P.C and the charges abated as against the accused Nos.3 & 12/deceased. By Judgment dated 07.12.2010, the trial Court acquitted accused Nos.6 to 11, but convicted the accused Nos.1, 2, 4 and 5, as detailed below:-
Accused Conviction under Section Sentence imposed A1 Section 147 IPC To undergo Rigorous imprisonment for one year and to pay a fine of Rs.200/-, in default, to undergo rigorous imprisonment for 3 months Section 342 IPC To undergo rigorous imprisonment for one year and to pay a fine of Rs.200/-, in default, to undergo rigorous imprisonment for 3 months Section 201 IPC To undergo rigorous imprisonment for three years and to pay a fine of Rs.200/-, in default, to undergo further period of six months Sections 120(B) & 302 read with 149 IPC To undergo imprisonment for life each and to pay a fine of Rs.500/- each, in default, to undergo rigorous imprisonment for 2 years each. A2 Section 147 IPC To undergo Rigorous imprisonment for one year and to pay a fine of Rs.200/-, in default, to undergo rigorous imprisonment for 3 months Section 342 IPC To undergo rigorous imprisonment for one year and to pay a fine of Rs.200/-, in default, to undergo rigorous imprisonment for 3 months Section 201 IPC To undergo rigorous imprisonment for three years and to pay a fine of Rs.200/-, in default, to undergo further period of six months Sections 120(B) & 302 read with 149 IPC To undergo imprisonment for life each and to pay a fine of Rs.500/- each, in default, to undergo rigorous imprisonment for 2 years each.
A4 Section 148 IPC To undergo Rigorous imprisonment for one year and to pay a fine of Rs.200/-, in default, to undergo rigorous imprisonment for 3 months Section 342 IPC To undergo rigorous imprisonment for one year and to pay a fine of Rs.200/-, in default, to undergo rigorous imprisonment for 3 months Section 201 IPC To undergo rigorous imprisonment for three years and to pay a fine of Rs.200/-, in default, to undergo further period of six months Sections 120(B) & 302 IPC To undergo imprisonment for life each and to pay a fine of Rs.500/- each, in default, to undergo rigorous imprisonment for 2 years each A5 Section 147 IPC To undergo Rigorous imprisonment for one year and to pay a fine of Rs.200/-, in default, to undergo rigorous imprisonment for 3 months Section 342 IPC To undergo rigorous imprisonment for one year and to pay a fine of Rs.200/-, in default, to undergo rigorous imprisonment for 3 months Section 201 IPC To undergo rigorous imprisonment for three years and to pay a fine of Rs.200/-, in default, to undergo further period of six months Section 182 IPC To undergo rigorous imprisonment for six months and to pay a fine of Rs.100/- , in default, to undergo rigorous imprisonment for one month Sections 302 r/w 149 IPC To undergo imprisonment for life and to pay a fine of Rs.500/-, in default, to undergo rigorous imprisonment for 2 years Challenging the said conviction and sentence, the appellants/accused Nos.1, 2, 4 and 5 are before this Court with this appeal.
2. The case of the prosecution, in brief, is as follows:
2.1. In the year 1998, there was a murder of one Mr.Pitchaimani. The first accused and his companions were the accused in the said case. On the allegation that the first accused and his companions had threatened the witnesses in the said murder case, the bail granted to the first accused was cancelled. The first accused had a doubt that it happened at the instigation of one Mr.Selvam. This developed into an enmity between the two groups, one headed by the first accused and the other headed by Selvam.
2.2. In the present case, the deceased was one Mr.Sippai @ Vellaisamy.
The sister of the deceased Sippai @ Vellaisamy was given in marriage to the first accused. But, the first accused developed illicit intimacy with many other women. Apart from that, on one occasion, the first accused attempted to sexually exploit one Valli, the yet another sister of the deceased Sippai @ Vellaisamy. On account of the said incident, the husband of Mrs.Valli died. Because of these events, there arose very strong enmity between the accused and the deceased.
2.3. While so, it is alleged that on 12.10.2001, at midnight, at the political office of the first accused, the accused 1 to 4 gathered and hatched a conspiracy to commit murder of Sippai @ Vellaisamy and to throw the blame on their enemy Mr.Selvam. Since the election was nearing, in order to prevent the brother of Selvam and the others from working in the election against the first accused, they had chosen to commit the murder of the deceased and throw the blame on Selvam and others.
2.4. In pursuance of the said conspiracy, it is alleged that on 14.10.2001, at about 12.30 a.m., all the twelve accused formed into an unlawful assembly and gathered in front of the house of one Mr.Baskaran. The accused No.4-Raja @ Arakkattai Raja @ Rajaram (the third appellant herein) was armed with a knife. There was enough light from the sodium-vapor lamp from the street light post. At that time, the deceased came there. The accused Nos.1, 2 & 4 to 11 surrounded the deceased. Then, the first accused directed the accused Nos.2 and 3 to catch hold the deceased. Accordingly, they did. Then, the first accused directed the fourth accused to stab the deceased. Immediately, the fourth accused stabbed the deceased on the right side of the chest. The deceased fell down. One Puli Ganesan, the brother of the deceased, came there and on seeing the deceased with injury, he lost his cool and fainted. The accused Nos.1 and 2 put him aside and took the deceased in the car and proceeded towards South. While so going, they shouted as if the deceased were stabbed by Mr.Selvam and his companions. He was taken to the Government Rajaji Medical College Hospital. On examining the deceased, the Doctor declared him dead. Thereafter, the fifth accused went to Thiruppachethi police station and made a complaint at 03.00 a.m., on 15.10.2001. Ex.P.1 is the complaint. P.W.7-Ponnambalam was the then Sub- Inspector of Police, Thiruppachethi police station. On receipt of the said complaint, under Ex.P.17, P.W.7 registered a case in Crime No.166 of 2001 under Sections 147, 148, 341, 323, 324 and 302 I.P.C. Ex.P.18 is the First Information Report. He forwarded Exs.P.17 and P.18 to the Court and handed over the case diary to the Inspector of Police, one Mr.Pugalendhi.
2.5. As per Exs.P.17 and P.18, one Selvam, Prabhakar, Dhanabalan, Muthu, Karthikeyan, Sethupillai, Kesavan and Duraisamy were shown as the accused. According to the allegations, all the eight accused formed into an unlawful assembly, armed with deadly weapons and caused injuries on A.2 herein as well as the deceased. It is alleged that the deceased was stabbed by Mr.Prabhakar with a long size knife on the chest. When Mr.Prabhakar attempted to stab him again, the deceased warded off with his right hand and as a result, the blow fell on the right thumb of the deceased.
2.6. The said case, thereafter, was taken up for investigation by the Inspector of Police one Mr.Pugalenthi. Mr.Pugalenthi, during the course of investigation, held inquest on the body of the deceased and forwarded the dead body for post-mortem. One Dr.Meialaghan of Madurai Medical College, Madurai, conducted autopsy on the body of the deceased on 15.10.2001. [Since Dr.Meialagahan was indisposed and unable to speak, Dr.Alavudeen-P.W.8 gave evidence before the Court]. Ex.P.20 is the post-mortem certificate. According to P.W.8-Dr.Alavudeen, the death was due to shock and hemorrhage due to the cumulative effect of all the injuries. Thus, the investigation was taken in a direction by Mr.Pugalenthi, the then Inspector of Police, Thiruppachethi police station, as if the named persons in the First Information Report were the culprits, who were responsible for the death of the deceased.
2.7. While so, five persons by name Angusamy Servai (P.W.1), Muthuraja (P.W.2), Jaya, Veeramuthu and Murugan filed Crl.O.P.No.25843 of 2001 before the Principal Bench of this Court seeking transfer of the investigation of the case to some other agency. In that petition, it was alleged that the accused persons named in the First Information Report were not responsible for the death of the deceased and the persons responsible for the death of the deceased were the accused herein and their companions. It was alleged before the Principal Bench by the petitioner therein that Mr.Pugalenthi, the Inspector of Police, procured witnesses, who were close relatives of the deceased and recorded their statements which were contrary to the truth. It was further alleged that the villagers jointly sent several representations to the Honourable Chief Minister, His Excellency, the Governor and the Director General of Police, complaining about the above false case. When the said petition came up for hearing before a learned Single Judge of this Court on 26.02.2002, the learned Government Advocate, on instructions from the police, submitted that a total number of five persons were examined as witnesses by the Inspector of Police to speak about the occurrence. Out of the said five witnesses, two of them are brothers of the deceased and the other three were not the residents of Sivankoil Street, where the occurrence had taken place. The learned Single Judge by order dated 26.02.2002 in paragraph Nos.5 to 7 held as follows:-
?5.It is no doubt true that the own sister of the deceased Vellaichamy is also mother-in-law of the second accused Prabakaran. The fact remains that none of the residents Sivan Koil Street was examined to speak about the occurrence by the investigating officer namely the second respondent herein. The villagers of Tiruppachetty have sent representations to various authorities on various dates seeking for impartial investigation in the case. It is also alleged that political rivalry lead to the occurrence.
6.Considering the circumstances of the case and in the interest of justice, it is better of investigation is conducted by some other agency other than the second respondent.
7.Hence, the petition is allowed and the investigation in Crime No.166 of 2001 is transferred from the file of the second respondent to the file of C.B.C.I.D and the Inspector of Police, C.B.C.I.D Sivaganga is directed to verify the earlier investigation, continue and complete the same according to law as expeditiously as possible.?
2.8. The said order of the learned Single Judge has been marked as Ex.P.1. Based on the said order, the investigation was taken up by the Inspector of Police, by name, Mr.Dharmarajan of CBCID. He also focussed as though the persons named in the First Information Report were the culprits.
However, the investigation was further transferred by the Department to P.W.10-Mr.Balasubramanian, the then Inspector of Police, CBCID., Chennai. During the course of investigation, he examined P.Ws.1 and 2 and few more witnesses, who, for the first time, implicated all the 12 accused in the present case as the one who were responsible for the murder of Sippai @ Vellaisamy. Then, these two witnesses were sent to the learned Judicial Magistrate's Court for recording statement under Section 164 Cr.P.C.
2.9. P.W.4, the then Judicial Magistrate, Ilayankudi, recorded the statements of P.Ws.1 and 2 and seven others. From the statements of P.Ws.1 and 2 and the other witnesses, P.W.10 concluded that the persons named in the First Information Report were not the culprits and the accused herein, including the appellants herein, were responsible for the commission of the murder. Accordingly, on 09.01.2003, he altered the case and sent an alteration report on 15.12.2002. He arrested the accused Nos.2 and 3, at Thiruppachethi bus stop. He arrested the seventh accused on 08.01.2003 at 02.30 p.m. The fourth accused had surrendered before the Court. On the orders of the jurisdictional Magistrate, PW-10 took custody of the fourth accused, on 18.09.2002 and 19.09.2002. While in custody, the fourth accused gave a voluntary confession, in which, he disclosed the place where he had hidden the knife. Accordingly, he produced M.O.1, the knife and the same was recovered. He examined many more witnesses and finally filed charge sheet against these accused.
2.10. Based on the above materials, the trial Court framed charges, as detailed in the first paragraph of this Judgment. When the accused were questioned in respect of the charges, they denied the same as false. In order to prove the charges, on the side of the prosecution, as many as 10 witnesses were examined, 35 documents and 6 material objects were marked.
2.11. Out of the said witnesses, P.Ws.1 and 2 claimed to be the eye witnesses to the occurrence. They have vividly spoken about the overt act of each accused. More particularly, they have stated that the fatal injury on the deceased was caused by the fourth accused. P.W.3 has spoken about the conspiracy hatched on 12.10.2001 between the accused to commit murder of the deceased and to throw the blame on Selvam and others. P.W.4 is the learned Judicial Magistrate, who recorded the statement of the accused under Section 164 Cr.P.C. P.W.5 was examined to speak about the preparation of the observation mahazar and the recovery of bloodstained earth from the place of occurrence. But, he has turned hostile and he has not supported the case of the prosecution in any manner. P.W.6 has spoken about the disclosure statement made by the fourth accused and the consequential discovery of M.O.1-knife. P.W.7, the then Sub-Inspector of Police, Thiruppachethi police station has spoken about the registration of the case on the complaint of the first accused. P.W.8-Dr.Alavudeen has spoken about the post-mortem conducted by Mr.Maialaghan and the final opinion given by Mr.Maialaghan regarding the cause of death. P.W.9-Dr.Jeyaraj has stated that on 15.10.2001 at about 01.15 a.m., when he was in the Madurai Government Rajaji Hospital, one Mr.Meenakshi Sundaram had brought the deceased to him for treatment. On examination, he found him already dead. He forwarded the dead body to the mortuary for postmortem and gave intimation to the police regarding the same. P.W.10 has spoken about the investigation done by him.
2.12. When the above incriminating materials were put to the accused under Section 313 of Cr.P.C., the accused denied the same as false. However, they did not choose to examine any witness nor mark any document on their side.
2.13. Having considered all the above materials, the trial Court has convicted the appellants as detailed in the first paragraph of the judgment and accordingly, punished them. That is how, the appellants are before this Court with this appeal.
3. We have heard the learned counsel appearing for the appellants and the learned Additional Public Prosecutor appearing for the State. We have also perused the records carefully.
4. The learned counsel appearing for the appellants would submit that the prosecution mainly relies on the evidence of P.Ws.1 to 3. According to the prosecution, P.W.3 had witnessed the conspiracy to commit the murder of the deceased and to throw the blame on Selvam and others. This happened, according to P.W.3, on 12.10.2001, at 12.00 p.m. He would further submit that this witness did not disclose about the same for more than one year and for the first time, he came forward and disclosed about the same only when he was examined by P.W.10. Similarly, in respect of P.Ws.1 and 2, the learned counsel would submit that though they claimed to be eye witnesses to the occurrence, they did not disclose the occurrence to anybody for one year and for the first time, they disclosed about the same only when they were examined by P.W.10. There is no explanation at all for the non-disclosure of the occurrence for more than a year. Thus, according to him, the evidences of these witnesses cannot be believed. He would further submit that the Trial Court has disbelieved the evidences of these witnesses in respect of the rest of the accused, though they have specifically stated about the alleged participation of all the accused.
5. The learned counsel for the appellants would further submit that as per the law laid down by the Hon'ble Supreme Court in Vadivelu Thevar and another Vs. The State of Madras reported in AIR 1957 SC 614 in the absence of corroboration from independent sources, the evidence of these witnesses cannot be acted upon. The learned counsel would further submit that there is no convincing evidence to show that the persons named as accused in the First Information Report are not the real culprits. Thus, according to the learned counsel, the appellants are entitled for acquittal.
6. The learned Additional Public Prosecutor would, vehemently, oppose this Criminal Appeal. According to him, P.Ws.1 and 2 have explained that though they told about the occurrence that they witnessed the same, Mr.Pugalenthi, the then Inspector of Police, Thiruppachethi police station, did not come forward to record the statement, instead he took the investigation as though the persons named in the First Information Report were the culprits. It was only after the transfer of investigation on the orders of this Court to the CBCID, the statements were recorded and thus, they disclosed about their witnessing the occurrence for the first time to P.W.10. Similarly P.W.3 has also explained. Thus, according to the learned Additional Public Prosecutor, there is no reason to reject the evidences of P.Ws.1 to 3. He would further submit that the motive has been clearly spoken to by P.W.5. He would further submit that the medical records also duly corroborate the eye witness account. Therefore, according to him, there is no reason to interfere with the conviction and sentence imposed by the trial Court.
7. We have considered the above submissions.
8. P.Ws.1 and 2 had disclosed about the occurrence for the first time only to P.W.10, after the case was taken up by him for investigation, on 11.09.2002, whereas the occurrence was on 14.10.2001. Thus, for about 11 months P.Ws.1 and 2 did not disclose about the occurrence that these accused were responsible for the death of the deceased. Now, the question is whether they have any explanation to offer?. Their explanation is that Mr.Pugalenthi, the then Inspector of Police, Thiruppachethi police station, who investigated the case, did not record the statement, though they disclosed about the same. But, Mr.Pugalenthi, the then Inspector of Police, Thiruppachethi police station, has not been examined. Assuming that this explanation of P.Ws.1 and 2 can be considered, absolutely there is no explanation as to why these two witnesses did not disclose anything about the occurrence to Mr.Dharmarajan, the Inspector of Police, CBCID, who initially took up the case for investigation on the orders of the Principal Bench of this Court. P.W.10 has categorically admitted that when Mr.Dharmarajan, the Inspector of Police, CBCID, interrogated P.Ws.1 and 2, in their statements, they stated that they did not know anything about the occurrence. PW-1 and PW-2 have been duly contradicted by that also. Thus, as of now, there is no explanation as to why P.Ws.1 and 2 did not disclose about the occurrence involving these two accused at least to Mr.Dharmarajan, the Inspector of Police, CBCID. There is no explanation as to why they disclosed that they did not know anything about the occurrence. Similarly, P.W.3 was also examined only on 11.09.2002. He also did not say anything about the occurrence to Mr.Dharmarajan, the Inspector of Police, CBCID. Thus, in our considered view, absolutely, there is no explanation for the belated disclosure of the occurrence by P.Ws.1 to
3.
9. The trial Court has disbelieved P.Ws.1 to 3 and has acquitted all the other accused from all the charges, though it is the case that all of them formed an unlawful assembly and in prosecution of the said common object, the fourth accused stabbed the deceased. The trial Court has, thus, disbelieved these three witnesses in respect of the other accused. The State has not made any appeal against the acquittal of the other accused. Thus, P.Ws.1 to 3 are only partly believable. As per the Judgment of the Hon'ble Supreme Court in Vadivelu Thevar and another Vs. The State of Madras reported in AIR 1957 SC 614, if a witness is partly believable, the same cannot be acted upon, unless there is corroboration from independent sources. In this case, absolutely, there is no corroboration from any independent source to corroborate the evidence of PW-1 to PW-3.
10. Yet another disturbing feature is that Mr.Pugalenthi, the then Inspector of Police, Thiruppachethi police station, concluded the investigation that the persons named in the First Information Report were responsible for the commission of murder. That version has not been falsified till now. Absolutely, there is no evidence let in by the prosecution to show that the persons named in the First Information Report were not the culprits. The materials collected by Mr.Pugalenthi, the then Inspector of Police, Thiruppachethi police station, have not been placed on record so that this Court can analyse those materials and also to find out whether the version projected by Mr.Pugalenthi, the then Inspector of Police, Thiruppachethi police station, is true or the version projected by Mr.Dharmarajan, the Inspector of Police, CBCID is true. Similarly, Mr.Dharmarajan, the Inspector of Police, CBCID also did not project a version that the present accused are the culprits. He also projected the case as though the persons mentioned in the First Information Report were the culprits. Mr.Dharmarajan, the Inspector of Police, CBCID has not been examined before the Court for the reason best known to the prosecution. Thus, an adverse interference needs to be drawn against the prosecution for suppressing this important witness. The materials collected by Mr.Dharmarajan, the Inspector of Police, CBCID, during his investigation, have also not been produced in evidence. P.W.10 has not given any evidence to show that the version projected by Mr.Pugalenthi, the then Inspector of Police, Thiruppachethi police station as well as Mr.Dharmarajan, the Inspector of Police, CBCID are not true versions and the version projected by him against the present accused alone is the true version. When there are two versions, it is not possible for this Court legally to act upon the story propounded by P.W.10 and to reject the story propounded by Mr.Dharmarajan, the Inspector of Police, CBCID. Simply because PW-10 investigated the case on transfer and simply because PW-10 happens to be an officer of CBCID, the Premier Investigating Agency in the State, we cannot rush to the conclusion that the investigation done by him is perfect and the earlier investigation done by Mr.Pugalenthi, the then Inspector of Police, Thiruppachethi police station and Mr.Dharmarajan, the Inspector of Police, CBCID were imperfect.
11. As we have already pointed out, now, there are two versions. The first version being that the persons named in the First Information Report are the culprits and the other version being the persons named in the charge- sheet are the culprits. When there are two such versions, unless there are evidences to prove the version projected in the charge-sheet beyond reasonable doubt, it is not at all possible for this Court to sustain the conviction.
12. In our considered view, in the instant case, though the occurrence appears to be a sensational one, the investigation has not been done thoroughly and the trial has also not been conducted properly. This is evident from the fact that though the statements recorded under Section 164 Cr.P.C of 10 persons were marked, only two persons alone were examined. In other words, Ex.P.2 is the statement under Section 164 Cr.P.C of P.W.1 and Ex.P.3 is the statement recorded under Section 164 Cr.P.C from P.W.2. Exs.P.4 to 11 are also statements recorded under Section 164 Cr.P.C from one Jeya, Pugalendran, Ramalingam, Raman, Ganesan, Chellam @ Chellappa, Sankaranpillai and Sonaimuthu Servai. But none of the deponents was examined in the Court. The trial Court has treated Exs.P.4 to P.11 as substantive evidence. It is too elementary to state that the statement recorded under Section 164 Cr.P.C being a former statement shall not be used as a substantive evidence and the same could be used to contradict the maker of the statement provided he was examined in Court. But, the trial Court has treated these statements as substantive evidences and acted upon the same. The prosecution has not examined the witnesses, who were examined by Mr.Pugalenthi, the then Inspector of Police, Thiruppachethi police station and Mr.Dharmarajan, the Inspector of Police, CBCID for the reasons best known. Thus, the prosecution has not at all come forward with the clean hands. In our considered view, the investigation was not done thoroughly. The persons responsible for the death of the deceased could not be punished ultimately. Thus, with pain, we state that miscarriage of Justice has occurred in this case.
13. In the result, this Criminal Appeal is allowed; the conviction and sentence imposed on the appellants/accused Nos.1, 2, 4 and 5 is set aside and they are acquitted. Fine amount, if any, paid by the appellants shall be refunded to them. Bail bond executed by the appellants and the sureties shall stand terminated.
To
1.The Principal Sessions Judge, Sivagangai.
2.The Inspector of Police, Thiruchirappalli Police Station, Sivagangai District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.