Madras High Court
Muniyappan vs State Represented By Inspector Of ... on 24 April, 2018
Bench: S.Vimala, T.Krishnavalli
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24.04.2018
Date of Reservation: 15.03.2018
Date of Judgment: 24.04.2018
CORAM
THE HONOURABLE DR. JUSTICE S.VIMALA
and
THE HONOURABLE MRS.JUSTICE T.KRISHNAVALLI
Crl.A.(MD)No.192 of 2016
1.Muniyappan
2.Ranjitkumar
3.Vijayakumar : Appellants/Accused
Vs.
State represented by Inspector of Police,
Mayanoor Police Station.
(Crime No.98/2014) : Respondent/Complainant
Prayer:-Criminal Appeal has been filed under Section 374 of Cr.P.C.
against the conviction and sentence, dated 26.04.2016 passed in Sessions Case
No.63 of 2015 by the Mahalir Neethi Mandram (Fast Track Mahila Court), Karur.
For 1st Appellant : Mr.B.Saravanan
^For 2nd Appellant : Mr.SMA.Jinnah
For 3rd Appellant : Mr.K.Suresh
For Respondent : Mr.R.Anandharaj
Additional Public
Prosecutor
:JUDGMENT
(Judgment of the Court was made by T.KRISHNAVALLI,J) The present appeal is directed against the conviction and sentence passed in Sessions Case No.63 of 2015 by the Sessions Judge, Magalir Neethimandram (Fast Track Mahila Court), Karur, holding the appellants/accused guilty of the offences under Sections 302 and 120-B of Indian Penal Code and awarding sentence of Life Imprisonment for each offence with fine.
2.The case of the prosecution is that the deceased Lenin Prakash had illicit intimacy with PW6, who is the wife of A1 and due to which, on 14.05.2014, A1 along with A2 and A3, who are close associates of him, hatched a conspiracy and in furtherance of the conspiracy, they murdered the deceased Lenin Prakash.
3.On receipt of the Complaint (Ex.P1) from Karikalan (PW1), who is the father of the deceased, PW19 Subbiah, the Inspector of Police, attached to Mayanoor Police Station has registered the First Information Report (Ex.P15) in Crime No.96 of 2014 under Section 302 of IPC.
4.In continuation of the investigation, PW19 the Inspector of Police attached to Mayanoor Police Station took up further investigation and proceeded to the scene of occurrence, made investigation in the presence of Ranjith Kumar (PW3) and one Krishnan, prepared the Observation Mahazar (Ex.P2) and Sketch (Ex.P16) and collected material objects MO1 to MO13 by Athachi (Ex.P3) and he conducted inquest on the body of the deceased in the presence of the witnesses and panchayadhars. The Inquest report is Ex.P17. After completion of inquest, he sent the body of the deceased to the Government Headquarters Hospital, Karur through PW15 Manickam, Head Constable, for postmortem. PW17 Dr.Dhanapal, had conducted the postmortem. The postmortem report is marked as Ex.P11. PW15 had seized the material objects 17 to 20 found on the body of the deceased and by Special Report (Ex.P6) handed over the same to the Inspector of Police.
5.That on 22.05.2014 at 10.00 am, PW19 arrested A1 and A2 near R.Pudukottai Bus Stop in the presence of witnesses and based on the statement of A1, they went to the house of A2 and on identification by A2, seized the material objects 14 to 16 under the cover of a seizure mahazar (Ex.P5). Thereafter, A1 and A2 were sent to Court for being remanded to judicial custody and A3 surrendered before the court.
6.That on 30.05.2014, PW19 taken the custody of A3 and recorded his statement in the presence of PW13 and one Murugesan and sent him for Judicial custody. Thereafter, PW20 had taken up the case for further investigation and after examination of the witnesses, has filed a final report under Sections 120-B, 364 and 302 IPC on the file of the Judicial Magistrate No.2, Kulithalai and the same has been taken on file in PRC No.111 of 2014.
7.The learned Judicial Magistrate No.2, Kulithalai, after considering the fact that the offences alleged to have been committed by the accused is triable by the Sessions Court, has committed the case to the Principal District & Sessions Judge, Karur and the same has been taken on file in Sessions Case No.63 of 2015 on the file of the Mahalir Neethi Mandram (Fast Track Mahila Court), Karur.
8.The trial court, after hearing both sides and upon perusing relevant records, has framed charge against the accused as afore-stated and the same had been read over and explained to them. The accused denied the charges and claimed to be tried.
9.To prove the charges against the accused, on the side of the prosecution, PW1 to PW20 have been examined and Exs.P1 to P20 and MOs.1 to 20 have been marked. After examining the prosecution witnesses, the accused had been questioned under Section 313 of the Code of Criminal Procedure, 1973 in respect of the incriminating materials available in evidence against them, they denied their complicity in the crime. On the side of the accused, one witness was examined and no document was marked.
10.The trial Court, after considering the materials available on record, has found that the accused are found guilty, thereby convicting the accused under Section 120-B of IPC and sentencing each of them to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default to undergo three months of simple imprisonment and under Section 302 of IPC, sentencing each of them to undergo imprisonment for life and to pay a fine of Rs.1,000/- , in default to undergo three months of Simple Imprisonment. The sentences are ordered to run concurrently.
11.The specific case put forth on the side of the prosecution is that the deceased had illicit intimacy with PW6, who is the wife of A1 and due to which, on 14.05.2014, A1 along with A2 and A3, who are close associates to him, hatched a conspiracy and in furtherance of the conspiracy, they murdered the deceased Lenin Prakash.
12.The trial Court, based on the materials available on record, has come to the conclusion that the occurrence has taken place on 20.05.2014 and ultimately convicted and sentenced the accused as set out earlier.
13.Heard Mr.B.Saravanan, learned counsel for the 1st appellant, Mr.SMA.Jinnah, learned counsel for the 2nd appellant, Mr.K.Suresh, learned counsel for the 3rd appellant and Mr.R.Anandharaj, learned Additional Public Prosecutor appearing for the respondent/State and also perused the materials available on record.
14.The learned counsel for the appellants/accused submitted that the prosecution has failed to prove the chain of circumstances against the accused, especially when the accusations as against the accused are only on circumstantial evidence and the evidence of PW10 cannot be acceptable one as he alleged to have known the conspiracy one week prior to the date of alleged occurrence, but he has not disclosed the same to the police or to the deceased Lenin Prakash or to his family members, despite the fact the deceased Lenin Prakash is his Cousin and the trial court erred in coming to the conclusion that the charge under Section 120-B IPC has been proved by believing the evidence of PW10 only without considering the settled position of law that great burden is cast upon the prosecution as far as the charge of conspiracy is concerned and the trial court failed to consider the fact that PW10 is the close relative of the deceased Lenin Prakash and hence, his evidence cannot be taken into account and in this case, the statement of PW10 said to have been recorded as early as on 23.05.2014, but it has been sent to the Court only on 18.02.2015 with a delay of 9 months and it creates serious doubt about the prosecution case and the alleged intimacy between PW6 and the deceased has not been proved by the prosecution and the evidence of PW8 against the character of PW6 is one of ill motive and hence, his evidence ought to have been rejected by the trial court and the prosecution has failed to prove the case beyond reasonable doubt and therefore, the accused are entitled to acquittal and prays that the criminal appeal may be allowed.
15.On the other hand, on the side of the prosecution, it is argued that the prosecution has proved the case by examining the witnesses and also by producing relevant documents and there is no contradiction between the evidence of the prosecution witnesses and hence, the prosecution has proved the case beyond reasonable doubt and the accused are not entitled for acquittal and prays that the criminal appeal has to be dismissed.
16.In this case, PW1 is the father of the deceased. PW6 is the wife of A-1. PW1 gave Ex.P1 complaint.
17.PW1 during his evidence stated that on 20.05.2014, the deceased told him that he is going to K.P.Kulam to attend a dinner, which was hosted by his friends and till night, his son did not turn up and on the next day at 8.30 am, he heard from one Ravi Raj that his son was found dead in the thorny forest near Manavasi Samathuvapuram and then, he went to the above place and found that his son was found dead with contusion on his face and bleeding in the nose and mouth and the two wheeler Splendar Plus belonged to his relative Nepolian was found near the body of the deceased and further, he came to understand that due to illegal intimacy between the deceased and the wife of the A1, A1 to A3 murdered him by way of beating with hands and by kicking the deceased with legs and beat the head of the deceased on the ground.
18. The complaint given by P.W.1 is also on similar lines as his deposition before the Court.
19.The case has been filed on circumstances evidence and hence, motive plays vital role.
20.PW1 in his complaint and evidence stated that due to illegal intimacy between the deceased and the wife of A1, A1 to A3 assaulted the deceased and murdered him.
21.At this juncture, it is necessary to refer the cross examination of PW1. PW1 in his cross examination stated that:-
?????'''??'?????vd; kfDf;F jpUkzk; Mftpy;iy fiyr; bry;tpf;Fk; vd; kfDf;Fk; bjhlh;g[ nUe;jJ vd;gJ Blhy;gpshrhtpy; Btiy bra;j gpughfud; brhy;ypj;jhd; vdf;F bjhpa[k; kw;Wk; xU rpyh; Bgrpf; bfhz;lij itj;J ehd; Bfs;tpg;gl;Bld;.??'''??????
22.It is pertinent to note here that in this case, the person, who told the illegal intimacy of the deceased was examined as PW8. PW8 during his evidence stated that he, the deceased and the wife of A1 worked as Cashiers in the Manavasi Toll Plaza and there was illegal intimacy between the deceased and the wife of A1 and the same was intimated to PW1 and he advised the deceased not to have the intimacy with the wife of A1 and due to the illegal intimacy between A1 and the deceased, A1 to A3 murdered the deceased.
23.PW9 is working as Tailor in Manavasi. He has stated during his evidence that A1 controlled his wife not to have any contact with the deceased and he advised PW6 to oblige the words of her husband.
24.It is not denied on the accused side that PW9 is not a Tailor and his Tailoring Shop is nearer to Toll Plaza. Further, PW9 stated that his shop is adjacent to the main road. Hence, there is possibility for PW9 to know the intimacy between PW6 and the deceased. Hence, PW9 evidence is believable.
25.The learned counsel for the appellants/accused mainly argued that in the case of circumstantial evidence, motive plays vital role and when the motive was not proved, the accused are entitled to benefit of doubt and consequently, they are entitled to acquittal. For that, the learned counsel relied upon the judgment reported in (2018)1 SCC 296 (Kuna alias Sanjaya Behera).
26.In the case of illegal intimacy, there is no direct eye witness and hence, the motive must be established at least indirectly.
27.In the case on hand, PW8 and PW9 have categorically stated that there was illegal intimacy between the deceased and the wife of A1.
28.In this case, PW10 is cited as witness to speak about the conspiracy and illegal intimacy between the deceased and the wife of A1. PW10 stated during his evidence that on 14.05.2014, he went to Malaipatti to receive money from one Ganapathi and when he returned to his native place and in order to answer nature's call, he saw A1 to A3 were drinking liquor and then, when he went to answer the nature's call, at that time, he heard A1 telling A2 and A3 that one person had illegal intimacy with his wife and he must be done away with and on the next day, he saw the body of the deceased in the place, where A1 to A3 conspired together.
29.The learned counsel for the appellants/accused argued that as per the prosecution, PW10 only heard the conspiracy of A1 to A3 on 14.05.2014, but the alleged occurrence took place on 20.05.2014 and in between 14.05.2014 and 20.05.2014, PW10 has not intimated the conspiracy of the accused to PW1 or to the deceased or to his relatives and hence, the alleged conspiracy is only an after-thought and hence, the accused are entitled to acquittal.
30.Further, the learned counsel for the appellants/accused argued that criminal conspiracy required not only an intention, but also an agreement to carry out the object of intention and in this case, A1 to A3 have no intention to murder the deceased and hence, the accused are entitled for benefit of doubt. For that, the learned counsel for the appellants/accused relied upon the decision reported in 2010(8) SCC 233 (S.Arul Raja vs. State of Tamil Nadu).
31.At this juncture, it is necessary to refer the evidence of PW10. PW10 has deposed in his evidence as follows:-
?M$h; vjphpfs; K:tUk; ngrpf; bfhz;L ,Ue;jhh;fs; mjpy; M$h; 1k; vjphp vd; kidtp xU egUld; fs;sj; bjhlh;g[ itj;jpUg;gjhft[k; vd;id kjpg;gjpy;iy vd;Wk; bgah; vJt[k; Fwpg;glhky; 1k; vjphp 2>3 vjphpfsplk; brhy;ypf; bfhz;L ,Ue;jhh; ehd; ky$yk; fHpj;J Koj;Jtpl;L vGe;Jte;J vjphpfis ghh;j;J vd;dg;gh jpl;lk; nghl;Oh;fs; vd nfl;ljw;F vjphpfs; xd;Wk; ,y;iy vd;W brhd;dhh;fs; ehd; tPl;ow;F ngha;tpl;nld; ve;j ,lj;jpy; M$h; vjphpfs; K:tUk; jpl;lk; jPl;odhh;fnsh mnj ,lj;jpy; bydpd; gpufhir bfhiy bra;J tpl;ldh;.?
32.From the evidence of PW10, it is revealed that where A1 to A3 conspired together to murder the son of PW1, the deceased was murdered in the same place. Hence, this court is of the considered view that in this case, the conspiracy of A1 to A3 to murder the deceased is clearly proved.
33.Further, PW8, PW9 and PW10 have categorically stated the illegal intimacy between the deceased and the wife of A1. Hence, it is held that A1 to A3 had motive to murder the deceased is proved on the side of the prosecution.
34.In this case, PW4 is cited as witness, who saw the deceased lastly in the company of A1 to A3. PW4 stated during his evidence stated that on 20.05.2014, while he was returning to his native place, he saw the deceased pushing the vehicle bearing registration No.TN-28-M-7097 and going along with A1 to A3 and he proceeded towards north and when he reduced the speed of his vehicle and with the aid of light in his vehicle, he saw that the deceased going with A1 to A3 and he heard on the next day that Lenin Prakash was murdered. Further, he has stated during his evidence that he saw A1 to A3 and the deceased between 7.45 pm and 8.00 pm on 20.05.2014.
35.At this juncture, it is necessary to refer the cross examination of PW4. In his cross examination, PW4 has stated as follows:-
??rkj;Jtg[uk; Chpd; Kotpy; jhd; bjU iyl; ,Ue;jij ghh;j;njd; me;j iyl; fk;gk; cs;s ,lj;jpy; ,Ue;J Rkhh; 30 mo js;sp ehd; vjphpfis ghh;j;njd; vjphpfs; ele;J ngha; bfhz;L ,Ue;jhh;fs; bydpd; gpuhfh\; rh.bgh.13 tz;oia js;spf; bfhz;L te;jhh; mtuJ tz;oapy; ahiua[k; Vw;wp tutpy;iy bydpd; gpufhRk; vjphpfSk; ngrpf; bfhz;L ngha; bfhz;L ,Ue;jhh;fs;.?
36.It is to be noted that had P.W.4 seen A-1 to A-3 quarrelling with the deceased, he would definitely have reported the same to P.W.1, the father of the deceased. But as per PW4's evidence, while he saw A1 to A3 and the deceased, they were talking to each other. Hence, the failure on the part of PW4 to speak about the deceased accompanying with A1 to A3 to PW1 will not affect the case of the prosecution.
37.PW10 stated during his evidence that A1 told A2 and A3 that his wife had illegal intimacy with one person. PW10 has not stated that A1 stated the name of person, who had illegal intimacy with his wife. Hence, it is not necessary to intimate the above conspiracy to PW1 or his relatives and the above fact does not affect the prosecution case.
38.Further, PW1 stated that while he called his son through his phone on 20.05.2014 at 8.00 pm, the deceased phone remained switched off. Further, from the evidence of PW4 it is evident that on 20.05.2014 at about 7.45 pm to 8.00 pm, he saw the deceased in the accompany of A1 to A3. Hence, from PW4's evidence, the court is of the view that prior to the death of the deceased, he was in the company of A1 to A3.
39.PW5 is the person, who saw A1 to A3 come out from the Seetha Mull Kadu.
40.PW5 stated during his evidence that he asked the accused from where they were coming for which, they replied with shivering that they are coming from the forest area. Hence, from the evidence of PW5, it is revealed that on 20.05.2014 at night, he saw A1 to A3 came out from the Seetha Mull Kadu, which is the place of occurrence.
41.PW6 is the wife of A1. PW6 turned hostile and did not support the case of the prosecution. PW6 during her cross examination stated that there was enmity between her and PW10 and due to it, Lenin Prakesh was murdered. As per her version, enmity was only between her and PW10 and already, she has stated that there was no illegal intimacy between her and the deceased. But she has failed to explain the fact that due to the enmity between her and PW10, why Lenin Prakash was murdered. Hence, the evidence of PW6 is not at all believable.
42.PW7 was cited as witness to speak about the occurrence. But PW7 turned hostile and did not support the case of the prosecution.
43.PW11 is the person, who speaks about A1 to A3 asking him to call the deceased and accordingly he saw Lenin Prakash and intimated that A1 to A3 has called upon the deceased. PW11 during his cross examination stated that he knew the illegal intimacy between the wife of A1 and the deceased.
44.From, PW11's evidence, it is clear that the deceased was called upon by A1 to A3 prior to the occurrence.
45.In this case, the Doctor was examined as PW17. While he was cross examined on the side of the accused, it was suggested that the injuries could be sustained in accident, but the nature of injuries sustained is more towards injury on account of incident than the injury due to accident . Hence, the contention put forth on the side of the accused that the deceased suffered injury due to the accident is not at all acceptable.
46.It was argued on the side of the accused that the prosecution has failed to establish the recovery of material objects used for the commission of the offence and hence, the accused are entitled for acquittal.
47.In this case, the prosecution has recovered the materials objects in the presence of the reliable witnesses and hence, it is held that the prosecution has proved the discovery of material objects, which were used for the commission of the offence.
48.The offence of conspiracy, which is a substantive offence under the Indian Penal Code has been defined under Section 120A and punishment for the same has been delineated under Section 120B of the IPC:-
?120A.Definition of criminal conspiracy.-When two or more persons agree to do, or cause to be done,--(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation.-- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
120-B. Punishment of criminal conspiracy.-
(1)Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2)Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description of a term not exceeding six months, or with fine or with both.?
49.The essential ingredient of the offence of conspiracy, is therefore, an agreement to commit an offence. Mere proof of such agreement is sufficient to establish criminal conspiracy. The offence of conspiracy can be proved either by direct evidence or circumstantial evidence or by both. In this case there is both direct as well as indirect evidence to prove conspiracy.
50.Keeping in view of the above facts, this court is of the considered view that the charges levelled against the accused under Sections 120-B and 302 IPC are proved beyond reasonable doubt and, therefore, the trial court has rightly convicted and sentenced the accused, which warrants no interference at the hands of this Court.
51.In the result the Criminal Appeal is dismissed confirming the conviction and sentence recorded by the trial court. It is reported that the appellants are on bail. The trial court is directed to take steps to secure the accused and commit them to prison to serve the remaining period of sentence imposed upon them.
.