IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.3.2008
CORAM
THE HONOURABLE MR.JUSTICE P.D.DINAKARAN
AND
THE HONOURABLE MR.JUSTICE R.REGUPATHI
Criminal Appeal No.1027 of 2007
Kanagavel .. Appellant
Vs.
State rep. by
Inspector of Police
Neyveli Thermal Police Station
Cuddalore District. .. Respondent
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Appeal against the judgment dated 12.1.2007 made in S.C.No.437 of 2006 on the file of learned Principal Sessions Judge, Cuddalore.
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For Appellant : Mr.Philip Ravindran Jesudoss
For Respondent : Mr.N.R.Elango
Addl. Public Prosecutor
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J U D G M E N T
(Delivered by P.D.DINAKARAN,J.)
The appellant is the first accused among two accused. The appellant was convicted for an offence under Section 302, IPC and sentenced to undergo life imprisonment for the offence under Section 302, IPC and to pay a fine of Rs.5,000/-, in default, one year rigorous imprisonment. The second accused was acquitted, on conclusion of the trial. No appeal against the acquittal of the second accused has been preferred by the State.
2. For the sake of convenience, the appellant is referred to as the first accused.
3. As per the charges framed, it is alleged that on 20.4.2006 at about 3.45 am, the first accused alleged to have thrown a grinding stone on the head of the deceased and in the result, the deceased succumbed to injuries, thereby committed an offence punishable under Section 302, IPC. For instigating the first accused, a charge has been framed against the second accused for an offence punishable under Section 302 read with 109, IPC. However, the second accused was acquitted.
4. The prosecution, to substantiate the allegation, examined P.Ws.1 to 18, marked exhibits P1 to P32 and produced material objects M.Os.1 to 11.
5.1. It is the case of the prosecution that the deceased was a Pastor and running a prayer house. The second accused is the wife of the deceased. The first accused was also staying with the deceased to assist him. Under such circumstances, the second accused/wife of the deceased developed illicit intimacy with the first accused and on coming to know about the same, the deceased sent the second accused to his sister’s place at Bangalore, from where the second accused instigated the first accused over phone to commit the murder of the deceased and accordingly, the first accused also committed the offence.
5.2. P.W.2 is the neighbour of the deceased and it is his evidence that on the previous day, viz. 19.4.2006, the deceased went out and returned back at about 9.45 pm, requested P.W.3 to arrange for his bed and accordingly, P.W.3 brought four mats, in which, the deceased, accused, P.W.2 and P.W.3 and her daughter-in-law slept. At about 3.45 am, P.W.2, on hearing a noise, woke up and at that time, he saw the accused throwing a grinding stone on the head of the deceased. The head of the deceased got crushed. When P.W.2 made an attempt to shout, the appellant threatened him that the same will be the fate in the event of revealing the occurrence to anybody. Therefore, P.W.2 kept quite. When P.W.2 questioned as to how can he kill the deceased, the first accused replied that he was having illicit intimacy with the second accused/wife of the deceased and further stated that he would give a report to the Police.
5.3. P.W.3 was working as a watchman in the prayer house and she also witnessed the occurrence which took place after hearing a noise. On account of the threat unleashed by the first accused, she did not divulge the occurrence to anybody.
5.4. P.W.15 is the Sub Inspector of Police. On 20.4.2006, he received a complaint, Ex.P26 given by the first accused at 7 am and registered a case in Crime No.64 of 2006 for an offence punishable under Section 302, IPC. Ex.P27 is the printed FIR. He despatched the same to the Judicial Magistrate, through P.W.14, Constable and a copy of the same was forwarded to the higher officials.
5.5. P.W.18 is the Inspector of Police, who, on receipt of the FIR, proceeded to the scene of occurrence on 20.4.2006 at about 7.45 am and prepared observation mahazar, Ex.P24 and rough sketch, Ex.P29. P.W.9 is observation mahazar witness. He conducted inquest over the body of the deceased. Ex.P30 is the inquest report. He recorded the statements of P.W.2, P.W.3, P.W.9 and mahazar witnesses. The place of occurrence was photographed by P.W.7. M.Os.10 and 11 are the photographs and negatives. M.Os.2, 3, 8 and 9 were seized under mahazar, Ex.P25.
5.6. P.W.1 appeared before the Investigating Officer, P.W.18 on 21.4.2006 at about 10 am, along with the first accused and produced the statement, Ex.P1 given by the first accused and his report Ex.P2. It is the evidence of P.W.1 that the first accused appeared before him on 21.4.2006 at 8 am when he was in the Office and has given the statement, Ex.P1. In the said statement, he has confessed that the deceased came to know about the illicit intimacy of his wife with him and therefore, committed the death of the deceased by throwing a grinding stone on his head. After preparing his report, Ex.P2, he produced the appellant before the Investigating Officer, P.W.18.
5.7. P.W.18 arrested the accused and based on his voluntary statement given in the presence of P.W.8, in which he had stated that he would produce the grinding stone used for committing the offence, the grinding stone, M.O.1 was recovered under mahazar, Ex.P23, attested by P.W.8 and it was found to be blood stained. The admissible portion of the confession statement is Ex.P22. Thereafter, the first accused was remanded to judicial custody. The further statements of P.Ws.1, 2, 3 and 8 were recorded, in which P.Ws.2 and 3 narrated the actual occurrence as eye witnesses. With a requisition, the witnesses were forwarded to the learned Magistrate for recording statement under Section 164, Cr.P.C. On 23.4.2006 at about 12.30 pm, the second accused was arrested and subsequently remanded to judicial custody.
5.8. During the course of investigation, P.W.10 was examined. It is his evidence that he knew the first accused and his illicit intimacy with the second accused. On 18.4.2006, the second accused wanted to talk to the first accused through the cellphone of P.W.10 and therefore, his cellphone was given to the first accused. In the discussion of the first accused with the second accused, the first accused stated to the second accused that he would complete the job within one or two days. On the next day, 19.4.2006 at about 12.. when the second accused spoke to the first accused, the first accused replied that he would finish during that night. When the same was enquired, the first accused stated that his illicit intimacy with the second accused/wife of the deceased came to be known to the deceased and therefore, the deceased was ill-treating the second accused and under such circumstances, the second accused was sent to Bangalore and therefore, he would finish the chapter of the deceased.
5.9. P.W.12 was examined to substantiate that the deceased was having illicit intimacy with her and this was known to the first and second accused. However, P.W.12 did not support the case of the prosecution and therefore, treated as hostile.
5.10. P.W.11 is the sister of the deceased, whose evidence is that the deceased sent his wife and son for staying with her, two days prior to the date of occurrence and on 20.4.2006, she came to know about the death of the deceased.
5.11. P.W.4 is the Assistant Divisional Engineer, Bharat Sanchar Nigam Limited, Salem, who deposed that a mobile phone bearing No.9442656698 was in operation from 1.4.2006 to 2.5.2006 and issued the details as per Ex.P4. Ex.P6 is the covering letter. He further stated that on 18.4.2006, a call had been received from a phone bearing No.08028917860 at 7.46 pm, 7.47 pm on 18.4.2006 and 12.37 pm on 19.4.2006.
5.12. P.W.16 is an BSNL Agent, Neyveli and as per his evidence, cellphone prepaid card has been issued to P.W.10.
5.13. P.W.5, Judicial Magistrate, Panruti recorded the statements of P.Ws.2 and 3 under Section 164, Cr.P.c.
5.14. P.W.17 is the photographer who had caused the photograph of the scene of occurrence.
5.15. P.W.6, Medical Officer attached to General Hospital, Panruti, on receipt of requisition, Ex.P9 produced by P.W.13, Constable conducted autopsy and issued post mortem Certificate, Ex.P10 reserving opinion till the receipt of chemical analysis report. The blood stained clothing of the deceased, M.Os.4 to 6 were recovered under Ex.P31, after completion of the post mortem.
5.16. P.W.7 is the Head Clerk in Neyveli District Munsif cum Judicial Magistrate Court, who received the requests Exs.P14, P15 and P16 from the Investigating Officer to send the Hyoid Bone, viscera and material objects respectively for chemical analysis.
5.17. P.W.6, on receipt of Hyoid Bone Test Report, Ex.P11 and Viscera report, Ex.P12, issued final opinion, Ex.P13 opining that the deceased would appear to have died of shock and heamorrhage due to head injury.
5.18. On conclusion of the investigation, P.W.18, filed the final report on 29.7.2006. The case was committed to Court of Sessions and charges were framed and since the accused denied their complicity in the offence, the case was taken up for trial. On completion of the evidence, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses and the accused denied them as false. Neither any witness was examined nor any documentary evidence was produced on his side.
5.19. The learned trial judge, on perusal of the materials, oral and documentary and after hearing both sides, convicted and sentenced the first accused aforementioned. However, the second accused was acquitted. Aggrieved against the conviction and sentence, the first accused has preferred the present appeal.
6. The learned counsel for the first accused challenges the conviction and sentence on the following grounds:
(a) It is the first accused who reported the occurrence at the first instance at 7 am on 20.4.2006, in which it has been stated that some unknown assailant committed the death of the deceased, when he was sleeping. Accordingly, his presence at the time when the initial investigation was conducted by the police at the place of occurrence, immediately after registration of the case would make it clear the first accused had not committed the offence.
(b) It is the case of the prosecution that P.Ws.2 and 3 were threatened by the first accused and therefore, they did not divulge the actual occurrence to the police initially. If that is true, there is no necessity for the first accused to meet P.W.1 and give extra judicial confession. The facts and circumstances put forth by the prosecution is not consistent, as, such an evidence has been created with the help of P.W.1. If the occurrence had taken place in the manner put forth by the prosecution, P.Ws.2 and 3 would have informed the police even at the first time when the police visited the scene of occurrence. Further, they have supported the version which has been given by the first accused initially. In view of the conduct of P.Ws.2 and 3, their evidence cannot be taken as truthful and must be disbelieved.
(c) If the evidence of P.Ws.1 to 3 are disbelieved, then, there is no material to connect the first accused with the crime and therefore, the first accused is entitled to acquittal.
(d) As the other evidence examined by the prosecution is of no value, the offence under Section 302, IPC against the first accused has not been made out.
7. Per contra, learned Additional Public Prosecutor retaliates as under:
(a) The fact that the first accused lodged a complaint and was present at the scene of occurrence, when the police visited immediately after registration of the case, would not entitle him to claim that he is innocent.
(b) The motive part of the case of the prosecution has been substantiated through the evidence of P.Ws.2 and 3. Moreover, the conversation between the first and second accused has been clearly established through the evidence of P.W.10, to whom the first accused has given extra judicial confession about the motive as well as the actual occurrence. It is only because of the threat unleashed by the first accused, P.Ws.2 and 3 could not divulge the occurrence to the police at the time when the police initially visited the scene of occurrence and soon after the arrest of the accused, the real truth was divulged. More over, it is the first accused who appeared before P.W.1 and has given confession admitting the offence. Therefore, the evidence of P.Ws.2 and 3 in coming out with the real fact, after the arrest of the first accused, cannot be disregarded.
(c) As per the statement of the first accused after his arrest, the grinding stone was recovered and it contained the blood stain of the deceased, which is corroborated by the evidence of the Medical Officer, P.W.6, the death of the deceased was due to homicidal violence.
(d) P.W.11, sister of the deceased, at whose place the second accused was staying during the time of occurrence, also supports the case of the prosecution.
Accordingly, he contends that the prosecution has proved its case against the first accused beyond reasonable doubts.
8. We have perused the materials available on record and heard the submissions made on behalf of both sides.
9.1. Admittedly, the first accused was helping the deceased in running the prayer house along with the second accused. The motive part of the case of the prosecution has been clearly established through the evidence of P.W.2 and
P.W.3 and other witnesses. The deceased came to know about the illicit intimacy of the second accused with the first accused. During the fateful night, the first accused was waiting for an opportunity and when P.Ws.2 and 3 were sleeping by the side of the deceased, the first accused had thrown the grinding stone on the head of the deceased and the same was witnessed by P.Ws.2 and 3. Soon after the occurrence, when P.Ws.2 and 3 questioned the first accused, they had been silenced by the first accused and further threatened that they would have to face the consequences. It is only the first accused who created a story as if some unknown assailant committed the murder of the deceased. But, only due to the threat, P.Ws.2 and 3 could not divulge the real fact at the time when the police examined them and soon after the arrest, they have come out with the real fact. The mere fact that they had not come out with the fact to the police at their initial visit, due to the threat unleashed by the first accused, would not make their evidence untrustworthy.
9.2. Moreover, when a specific question was put against the first accused as to whether he had lodged the complaint Ex.P6 before P.W.15, he denied the same as false. Therefore, when the first accused himself had denied the suggestion of his lodging the complaint, we have no reason
to accept the contention that the first accused would not have committed the offence.
9.3. On the next day of occurrence, the first accused appeared before P.W.1 and has given extra judicial confession admitting the guilt of the commission of offence. On production of the first accused before the Investigating Officer and pursuant to his voluntary statement, the grinding stone was recovered and the same contained the blood stain of the deceased. The same is corroborated by the evidence of the Medical Officer, P.W.6, that the death of the deceased was due to homicidal violence.
9.4. Even though a contention was raised by the learned counsel for the appellant that the deceased was having illicit intimacy with P.W.12 and therefore, non examination of the husband of P.W.12 is fatal to the case of the prosecution as there is a possibility of the husband of P.W.12 in committing the offence, since the illicit intimacy between the first accused and the second accused has been proved by the evidence of P.Ws.1 to 3 and 10 and the motive has also been clearly established by the prosecution, we do not see any merit in the contention that non examination of the husband of P.W.12 vitiates the case of the prosecution.
9.5. On perusal of the entire materials available on record, we are of the view that the evidence is consistent and reliable leading to an irresistible conclusion that it is only the first accused who has committed the offence and consequently, we are unable to agree with the contentions made on behalf of the first accused. Therefore, we are satisfied that the prosecution has proved its case beyond reasonable doubts and hence, the conviction and sentence of the learned trial judge are confirmed.
In the result, the appeal fails and accordingly, the same is dismissed.
Index : Yes/No (P.D.D.J.) (R.R.J.) Internet : Yes/No 26.3.2008. kpl To The Principal Sessions Judge Cuddalore. P.D.DINAKARAN, J, AND R.REGUPATHI, J. kpl Crl.A.No.1027 of 2007. 26.3.2008.