Madras High Court
Biyaskan vs State Represented By on 9 January, 2019
Author: P.N.Prakash
Bench: P.N.Prakash
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.01.2019
CORAM:
THE HONOURABLE Mr.JUSTICE P.N.PRAKASH
Crl.A.Nos.581 and 648 of 2011
Biyaskan .. Appellant/A2
in Crl.A.No.581 of 2011
Vijayakumar .. Appellant/A1
in Crl.A.No.648 of 2011
Vs.
State represented by
The Inspector of Police,
B-14 Kuniyamuthur Police Station,
Coimbatore. .. Respondent
in Crl.A.No.581 of 2011
State represented by
The Inspector of Police,Pile,
Kuniyamuthoor Police Station,
Coimbatore. .. Respondent
in Crl.A.No.648 of 2011
Criminal Appeals filed under Section 374 Cr.P.C. against
the judgment dated 26.08.2011 in S.C.No.26 of 2011 on the file of
the Additional District and Sessions Court (Fast Track Court No.1),
Coimbatore.
For Appellant
in Crl.A.No.581/2011 : Ms.Nathiya
for Mr.Pugalenthi
For Appellant
http://www.judis.nic.in in Crl.A.No.648/2011 : Mr.R.Md.Nasurullah
for Mr.K.V.Shanmuganathan
For Respondent
in both appeals : Mrs.P.Kritika Kamal
Government Advocate
(Crl. Side)
2
COMMON JUDGMENT
These criminal appeals have been preferred seeking to set aside the conviction made by judgment dated 26.08.2011 in S.C.No.26 of 2011 on the file of the Additional District and Sessions Court (Fast Track Court No.1), Coimbatore.
2 The brief facts leading to the filing of these criminal appeals are as under:
2.1 It is the case of the prosecution that, on 16.05.2006, around 3.00 a.m., Sundharam (PW1), Sub Inspector of Police and Ayyasami (PW2), Head Constable of Police, both attached to B14, Kuniyamuthur Police Station, were conducting regular vehicle check along with other police personnel in Coimbatore-Palakkad Highway; at that time, they saw a Tempo Van proceeding towards Palakkad and signalled the Tempo Van driver to stop; the driver, instead of stopping the vehicle, raised the speed of the vehicle and tried to mow down the police; the policemen ran helter skelter and escaped death. However, the police chased the Tempo Van and intercepted it. Vijayakumar (A1) was on the wheels and Biyaskan (A2) was in the cabin. Apart from Vijayakumar (A1) and Biyaskan http://www.judis.nic.in (A2), A3 to A5 were in the carriage portion of the Tempo Van. On checking the Tempo Van, it was found to have 100 bags of rice, which the police suspected to be PDS (Public Distribution System) 3 rice. The Tempo Van and the 100 bags of rice were seized under the cover of Mahazar (Ex-P1). The Tempo Van along with five accused were brought to the jurisdictional Police Station viz., B13 Bothanur Police Station.
2.2 On the complaint lodged by Sundharam (PW1), the Sub Inspector of Police, a case in Crime No.631 of 2006 was registered on 16.05.2016 under sections 6(iv) of the Tamil Nadu Civil Supplies (RDCS) Act, 1982 ( for brevity “ the TNCS (RDCS) Act”), r/w Section 7(a)(11) of the Essential Commodities Act, 1955 ( for brevity “the EC Act”) and Section 307 IPC.
2.3 The investigation of the case was taken over by Vivekanandhan (PW7), the Investigating Officer, who recorded the statement of Biyaskan (A2) in the presence of Balasubramaniam (PW3), Village Administrative Officer and based on the disclosure made by Biyaskan (A2), 40 bags of rice were seized in his residence under the cover of Mahazar (Ex-P4), attested by Balasubramaniam (PW3), Village Administrative Officer and Vivekanandhan (PW4). All the five persons were arrested and were produced before the jurisdictional Magistrate, for remand.
2.4 At the request of the police, Dhandapani (PW5), http://www.judis.nic.in Quality Inspector of Civil Supplies Department, took samples from the 140 seized bags and the same was examined by Muthupillai 4 (PW6), Deputy Manager, Coimbatore region, Tamil Nadu Civil Supplies Corporation, who in his evidence and in the certificates (Exs-P7 and P8) has opined that the rice was PDS (Public Distribution System) rice. Vivekanandhan (PW7), the Investigating Officer, completed the investigation and filed final report in P.R.C.No.34 of 2008, before the Judicial Magistrate No.VII, Coimbatore, against, Vijayakumar (A1), Biyaskan (A2), Mohammed Ali (A3), Gabair (A4) and Mohammed Sherif (A5) for the offences under Sections 6(iv) of the TNCS (RDCS) Act, r/w Section 7(a)(11) of the EC Act and Section 307 IPC.
2.5 On the appearance of the accused, they were furnished with the copies of the relied upon documents under Section 207 Cr.P.C and the case was committed to the Court of Session in S.C.No.26 of 2011 and was made over to the Additional District and Sessions Court (Fast Track Court No.1), Coimbatore, for trial.
2.6 The Trial Court framed charges under Sections 147 and 307 IPC and Section 6(iv) r/w 7(a) of the Essential Commodities Act and when questioned, the accused pleaded “not guilty”.
2.7 To prove the case, the prosecution examined http://www.judis.nic.in seven witnesses and marked eight exhibits.
5
2.8 When the accused were questioned under Section 313 Cr.P.C, about the incriminating circumstances appearing against them, they denied the same. On behalf of the accused, no witness was examined nor any document marked.
2.9 After hearing either side and considering the evidence on record, the trial Court, by judgment dated 26.08.2011 in S.C.No.26 of 2011, acquitted A3 to A5 of all charges and convicted and sentenced Vijayakumar (A1) and Biyaskan (A2) as follows:
Provision under Accused Sentence which convicted Vijayakumar (A1) Section 307 IPC One year rigorous imprisonment and fine of Rs.1,000/-, in default to undergo three months rigorous imprisonment.
Biyaskan (A2) Section 307 r/w 109 One year rigorous
IPC imprisonment and
fine of Rs.1,000/-, in
default to undergo
three months rigorous
imprisonment.
2.10 Challenging the conviction and sentence,
Vijayakumar (A1) has filed Crl.A.No.648 of 2011 and Biaskan (A2) has filed Crl.A.No.581 of 2011.
3 Heard Mr. R.Md.Nasurulla, learned counsel on http://www.judis.nic.in behalf of Mr.K.V.Shanmuganathan, learned counsel on record for Vijayakumar (A1) in Crl.A.No.648 of 2011 and Ms.Nathiya, advocate on behalf of Mr. P.Pugalenthi, learned counsel on record for Biyaskan 6 (A2) in Crl.A.No.581 of 2011 and Mrs.P.Kritika Kamal, learned Government Advocate (Crl. Side) appearing for the State/respondent.
4 Sundharam (PW1), Sub-Inspector of Police, in his evidence, has stated that on 16.05.2006, around 3.00 a.m., he along with the police party comprising Head Constables 1554 and 1728, was conducting vehicle check in Coimbatore-Palakkad Highway in P.K.Pudhur Bus Stop; they saw a 407 Tempo Van coming from North to South; they signalled the Tempo Van driver to stop the Tempo Van; instead of stopping the Tempo Van, the driver raised the speed and tried to run over the police; he, along with the policemen, ran helter skelter for safety and thereafter, chased the vehicle and intercepted it at Kovai-Pudhur Junction; Vijakumar (A1) was on the wheels and Biyaskan (A2) was beside him in the cabin; when he questioned Vijakumar (A1) rebukingly, as to why, he tried to run them over, Vijakumar (A1) told him that it was Biyaskan (A2), who asked him to do so; on checking the vehicle, A3 to A5 were there and 100 bags of rice were found in the Tempo Van; when he questioned, the accused told him that, they had procured the rice from ration shop at a lower price and were taking them to Balayar for sale at a higher price. This piece of evidence, in my opinion, amounts to confession to the police under Section 25 of the Evidence http://www.judis.nic.in Act. He has further stated that, he seized the vehicle and the 100 bags of rice under the Mahazar (Ex-P1); in the presence of Head 7 Constables 401 and 1554, he took the accused along with the seized articles to B13 Bothanur Police Station and registered a case in Crime No.631 of 2006.
5 In the cross-examination of Sundharam (PW1), he has stated that there were no independent witnesses available at the time when the chase, interception and seizure took place, since, it all happened in the Coimbatore-Palakkad Highway, at wee hours. He has further stated that he did not have any special authorisation from the Inspector to conduct vehicular check and that he was doing vehicle check as regular part of his duty along with the police Constables. He denied the suggestion that a false case has been slapped on the accused.
6 Iyyachami (PW2) in his evidence has stated that, he was part of the police party along with Sundharam (PW1); on 16.05.2006, while conducting vehicular check in Coimbatore- Palakkad Highway around 3.00 a.m., he saw a van coming from Coimbatore side and when the police signalled the driver to stop the vehicle, the driver tried to run them over and so, they ran for cover and thereafter, chased the vehicle and intercepted it near Kovai- Pudhur Junction; when Sundharam (PW1), enquired Vijayakumar (A1), the driver, as to why he drove the vehicle like that, http://www.judis.nic.in Vijayakumar (A1) said that, it was Biyaskan (A2), who asked him to do like that. He has further stated that on checking the vehicle, they 8 found 100 bags of rice and the same was seized under the cover of Mahazar (Ex-P1) and the accused, along with ceased articles were brought to the Police Station and a case in Crime No.631 of 2006 was registered.
7 In the cross examination, Iyyachami (PW2) has stated that, on the instructions of the superior officers, he went for vehicle check. He has also admitted that, he does not know the correct measurement of the rice in each bag. He denied the suggestion that the incident had not taken place at all and the false case has been registered for the purpose of statistics.
8 As regards the evidence of Balasubramaniam (PW3) and Vijayakumar (PW4), they have spoken to about the confession statement given by Biyaskan (A2) and the recovery of 40 bags of rice from his residence. Dhandapani (PW5) and Muthupillai (PW6), the officials of the Tamil Nadu State Civil Supplies Corporation have given evidence about the drawal of samples from the 140 bags and testing of the same and issuance of the certificates (Exs-P7 and P8), to the effect that the rice is PDS (Public Distribution System) rice. Though the prosecution have satisfactorily proved the seizure of such a huge quantity of PDS (Public Distribution System) rice, strangely, the trial Court has dropped the charges under Section http://www.judis.nic.in 6(iv) r/w 7(a) of the EC Act, on the ground, that the District Collector has confiscated the rice and the vehicle in adjudication proceedings 9 and had imposed a fine of Rs.40,000/- on the owner of the Tempo Van.
9 Such a conclusion by the trial Judge, is indubitably, erroneous and illegal, because, confiscation proceedings by the District Collector are action in rem and they are independent of criminal prosecution, which is action in personam. Without understanding the fundamental legal concept, the trial Court has dropped the charge under section 6(iv) r/w 7(a) of the EC Act, by giving such a specious reasoning, against which, the State has also not chosen to file any appeal.
10 The learned counsel for the appellants contended that there is no legal evidence to show that Vijayakumar (A1) and Biyaskan (A2) attempted to commit murder of the police inasmuch as no one had suffered injury. It is not necessary that someone should have suffered injury for sustaining a charge under Section 307 IPC. For instance, if 'A' opens fire at 'B' and 'B' ducks, thereby avoiding the bullet, no injury will be there on 'B'. Can 'A' be acquitted for attempt to murder? The answer is an emphatic “no”. In this case, the evidence of Sundharam (PW1) and Iyyachami (PW2) is that, when they signalled the driver of the Tempo Van to stop, the driver did not stop, instead, he increased the speed and tried to run over the police http://www.judis.nic.in party, which cannot be rejected as fanciful. 10
11 It must be borne in mind that the police party were on vehicular check duty around 3.00 a.m. in Coimbatore- Palakkad Highway and trafficking of rice from Tamil Nadu to Kerala via Highway was a regular feature, because, Tamil Nadu is a rice basin and Kerala is a rice consuming state, where the demand is high. The police did not anticipate that such an event would happen for them to have independent witnesses in wait. After the incident, they chased the Tempo Van and intercepted it at Kovai-Pudhur Junction. Sundharam (PW1) and Iyyachami (PW2) saw Vijayakumar (A1) on the wheels and Biyaskan (A2) beside him. Apart from Vijakumar (A1) and Biyaskan (A2), three other persons were in the van and 100 bags of rice was recovered from the van. Therefore Vijayakumar (A1) and Biyaskan (A2) were not ordinary travellers, but were carrying 100 bags of rice in their van.
12 The learned counsel for the appellants contended that the statement of Vijayakumar (A1) to the police, that it was Biyaskan (A2), who asked him to mow down the police, is hit by Section 25 of the Evidence Act. This Court is unable to countenance this statement because, the said statement is not confessional in nature. What is hit by Section 25 of the Act, is an admission of the commission of an offence made to the police officer. Here, Vijayakumar (A1) has not admitted the commission of any offence http://www.judis.nic.in when Sundharam (PW1) questioned him. He has merely stated that it was Biyaskan (A2), who asked him to speed up the vehicle and run 11 over the police. This statement of Vijayakumar (A1) to Sundharam (PW1) was prior to the commencement of investigation, because, only after questioning Vijayakumar (A1) and getting his reply, Sundharam (PW1) and the police party inspected the vehicle and noticed the rice bags. Only then, it must have struck to them that the motive of the accused was to avoid getting caught with the rice bags. Only from that point of time, investigation can be said to have begun.
13 As stated above, from the evidence of Sundharam (PW1) and Iyyachami (PW2), it is clear that, Vijayakumar (A1) was on the wheels and his conduct in not stopping the vehicle when signalled by the police, increasing the speed of the vehicle and trying to mow down the police, has been established. From the evidence of Sundharam (PW1) and Iyyachami (PW2), it has also been established that Biyaskan (A2) was beside Vijayakumar (A1) in the cabin.
14 Now, the question is, whether the statement of Vijayakumar (A1) to the police that, it was Biyaskan (A2), who asked him to mow down the police can be admitted in evidence and if so, under which provision of the Indian Evidence Act. As held earlier, the said statement of Vijayakumar (A1) to the police is not confession http://www.judis.nic.in and therefore, it is not hit by Section 25 of the Evidence Act. Since it was made before the commencement of the investigation by the 12 police, it is not barred by Section 162 Cr.P.C.
15 In the opinion of this Court, this statement will be relevant under Sections 6 and 8 of the Indian Evidence Act. Section 6 of the Indian Evidence Act reads as under:
“Relevancy of facts forming part of same transaction.- Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.” A reading of Section 6 shows that, the connecting bridge between the fact that in issue and the fact which is not in issue is whether the fact that is not in issue forms part of the same transaction for it to be relevant.
15.1 In this case, there are two facts in issue:
a) whether Vijayakumar (A1) attempted to run over the police.
b) whether Biyaskan (A2) instigated Vijayakumar (A1).
The fact that Biyaskan (A2) told Vijayakumar (A1) to mow down the police was revealed by Vijayakumar (A1) to the police, immediately on interception, so as to form part of the same transaction in and around the same time. There was neither significant time difference between Biyaskan (A2) instigating Vijayakumar (A1) and Vijayakumar (A1) revealing that fact to the police. The principle of http://www.judis.nic.in res gestae which even permits reception of hearsay evidence rests on the premise that, when something is spontaneously stated, the 13 possibility of it being false will be remote.
16 In this case, after the Tempo Van tried to run over the police, it was chased and intercepted and when questioned by the police, Vijayakumar (A1) spontaneously stated that it was Biyaskan (A2), who asked him to do that . Therefore, the said statement of Vijayakumar (A1) to the police is relevant under Section 6 of the Evidence Act.
17 It may be necessary to state here that, relevancy of it will not automatically result in acceptance of it, because, acceptance of a piece of relevant evidence would fall within the domain of appreciation of evidence. In this contact, Section 8 of the Indian Evidence Act, is usefully extracted below:
“Motive, preparation and previous or subsequent conduct: Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.
The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceedings, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influence by any fact in issue or relevant fact, and http://www.judis.nic.in whether it was previous or subsequent thereto.
Explanation 1.- This word “conduct” in this section does not include statements, unless those statements accompany and explain acts other than 14 statements; but his explanation is not to affect the relevancy of statements under any other section of this Act.
Explanation 2.- When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.” http://www.judis.nic.in 15
18 Explanation (2) extracted above provides a direct answer to the issue under discussion. In this case, the conduct of Vijayakumar (A1) in attempting to mow down the police is relevant. If not for the statement of Biyaskan (A2) who made him run over the police, Vijayakumar (A1), by himself, would have stopped the Tempo Van when signalled by the police. Therefore, the statement of Biyaskan (A2) exerting Vijayakumar (A1) to run over the police has affected the conduct of Vijayakumar (A1) and therefore, that statement of Biyaskan (A2) is relevant.
19 Coming to the domain of appreciation of evidence, the prosecution have established that the Tempo Van carried 100 bags of PDS (Public Distribution System) rice and in further search of the house of Biyaskan (A2), 40 bags of PDS (Public Distribution System) rice have been seized. All these circumstances, if cumulatively viewed, would lead to the inference that Biyaskan (A2) had a strong motive to protect the contraband from falling into the hands of the police and on his instigation Vijayakumar (A1) did not stop the van but attempted to run over the police. http://www.judis.nic.in 16 19 In view of the aforesaid discussion, this Court does not find any infirmity in the conviction and sentence imposed upon the appellants by the trial Court, warranting interference.
In the result, these appeals are dismissed as being devoid of merits. The trial Court is directed to secure the appellants to undergo the remaining period of sentence, if any.
09.01.2019 dua/nsd Index: Yes/No Internet: Yes http://www.judis.nic.in 17 To
1. The Inspector of Police, B-14 Kuniyamuthur Police Station, Coimbatore.
2. The Inspector of Police,Pile, Kuniyamuthoor Police Station, Coimbatore.
3. The Additional District and Sessions Court, (Fast Track Court No.1), Coimbatore.
3. The Public Prosecutor, High Court, Madras.
http://www.judis.nic.in 18 P.N.PRAKASH, J.
dua/nsd Crl.A.Nos.581 and 648 of 2011 09.01.2019 http://www.judis.nic.in