IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04-11-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH CRIMINAL APPEAL No.390 of 2009 Boopalan ..Appellant ..vs.. The State of Tamil Nadu, rep.by The Inspector of Police, Kanchi Taluk Police Station, Kanchipuram. ..Respondent Criminal Appeal filed under Section 374(2) of Criminal Procedure Code, against the judgment of the learned Additional Sessions Judge, Fast Track Court No.II, Kanchipuram, made in S.C.No.284 of 2007, dated 09.06.2008. For Appellant : Mr.S.Anand For Respondent : Mr.Babu Muthu Meeran, A.P.P., JUDGMENT
(Judgment of the court was delivered by M.CHOCKALINGAM, J.)
Challenge is made to a judgment of the Additional Sessions Division, Fast Track Court No.II, Kanchipuram, made in S.C.No.284 of 2007, whereby the appellant stood charged, tried and found guilty as follows:
Accused
Charges
Findings
Sentence
Sole accused
S.302 IPC
Guilty
Life imprisonment and to pay a fine of Rs.5,000/-, i/d to undergo one year R.I.
Sole accused
S.201 IPC
Guilty
One year R.I. and to pay a fine of Rs.1,000/- i/d to undergo three months R.I.
The sentences imposed on the accused were ordered to run concurrently.
2. Short facts necessary for the disposal of the appeal can be stated as follows:
(a) One Selvam is the owner of the lorry bearing registration No.TN-05-4677, which was used for transporting sand. P.W.6 is his younger brother, who was residing at C.I.T.Nagar, Madras. The accused was serving as a driver and the deceased Kalimuthu was working as a cleaner in the said lorry.
(b) On 22.08.2006, as usual, both the accused and the deceased proceeded to Kancheepuram from Madras in the said lorry and at about 1.00 AM (night hours), the accused alone came back and when P.W.6 questioned about the absence of the deceased, the accused replied that he got down on the way to take tea, but he did not come. Thereafter, P.W.3 was asked to assist and the accused along with P.W.3, took the lorry towards Kanchipuram.
(c) On the next day i.e.on 23rd August 2006, when P.W.1, the Village Administrative Officer, along with P.W.2-the Village Assistant and the President of the Panchayat, was in his Office, the accused appeared before them and gave a confessional statement, admitting the crime and the same was recorded by P.W.1, marked as Ex.P-1 and prepared Ex.P-2 report. P.Ws.1 and 2 went to the respondent Police Station and presented Exs.P-1 and P-2 and also handed over the accused.
(d) P.W.13, the Inspector of Police, on receipt of Exs.P-1 and P-2 registered a case in Crime No.1212 of 2006 under section 302 of I.P.C.at 1.00 PM. Ex.P-16, the express F.I.R.was sent to the court along with the documents. The accused took the police party to the place of occurrence, wherein they found a male body with face smashed. Thereafter, P.W.13 Inspector prepared Ex.P-3 observation mahazar and also Ex.P-17 rough sketch. He recovered M.Os.1 and 2, blood stained earth and sample earth under the cover of mahazar Ex.P-4 in the presence of witnesses. Thereafter, he conducted an inquest over the dead body in the presence of witnesses and panchayatdars and prepared Ex.P-18 inquest report. The investigator caused the photographs to be taken through P.W.8 and the photos and the negatives are marked as M.Os.6 and 7 series. Following the inquest, the dead body was sent for the purpose of post-mortem along with a requisition through P.W.12 Head Constable.
(e) On a requisition, P.W.11, Scientific Officer, Mobile Forensic Science Laboratory, Kancheepuram, visited the place of occurrence, who was able to find out the tyre marks in that place. P.W.13 recovered the lorry in question, marked as M.O.4 under Form 95. Thereafter, the lorry was inspected and noticed the blood stain in the right rear side tyre, which is marked as M.O.10, and the same was removed for chemical analysis.
(f) On receipt of the requisition, P.W.9, doctor attached to the Government Headquarters Hospital, Kanchipuram, conducted autopsy on the dead of the deceased Kalimuthu and gave a postmortem certificate Ex.P-10, after getting viscera report Ex.P-9, wherein he opined that the deceased would appear to have died of shock and haemorrhage due to multiple vital organ injuries.
(g) P.W.13 then came to the station and examined P.Ws.1 and 2. The accused came forward to give a confessional statement and the admissible portion of which was marked as Ex.P-19. Following which, M.O.3 spanner was recovered under the cover of mahazar Ex.P-6 and he sent the same with other M.Os. for chemical analysis and the accused was sent for judicial remand. After getting serology report Ex.P-12, P.W.13 filed the final report under Sections 302 and 201 IPC.
(h) The case was committed to Court of Additional Session, Kanchipuram and necessary charges were framed. In order to substantiate the charges, the prosecution examined 13 witnesses and also relied on 19 exhibits and 12 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which he flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced, found the appellant/accused guilty and awarded the punishment referred to above, which is the subject matter of challenge before this Court.
3. Advancing the arguments on behalf of the appellant, the learned counsel would submit that in the instant case, the occurrence was taken place in the night hours at about 1.00 AM on 22.08.2006 and the prosecution had no direct evidence to offer; that it mainly rests upon the extra-judicial confession alleged to have been given by the accused to the the Village Administrative Officer of Attuputhur; that according to P.W.1, he was in the office along with P.W.2 and at that time, the accused gave a voluntary statement, which was recorded by him and marked as Ex.P-1; but in so far as the recording of confessional statement, the evidence of P.Ws.1 and 2 is found to be discrepancy; that it is highly doubtful whether the accused appeared and gave voluntary statement before them and thus, it will be quite clear that in order to strengthen the case, the prosecution has fabricated those documents; that apart from that, even the post mortem certificate also did not support the case of the prosecution; that in the instant case, the prosecution has no direct evidence but only circumstantial evidence leading to the hypothesis that except the accused, no one committed the offence, and that even Form 95 through which the lorry was produced before the Magistrate concerned, would indicate that the tyre was removed, which casts a doubt whether M.O.4 could have been produced before the Magistrate at all.
4. Added further the learned counsel that in the instant case, when P.W.6 was informed that the deceased was missing and he did not return, naturally one would expect him to give a complaint before the police, but not done so; that apart from that, the evidence of P.W.2 would clearly indicate that he was not at all present on the spot; that the column No.9 in Ex.P-18 also indicates the falsity of the prosecution case; that the prosecution had no further evidence to offer and that without considering the above aspects of the matter, the trial court has taken an erroneous view and hence, he is entitled for acquittal.
5. The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
6. It is not in controversy that the dead body was found and following the registration of the case and the inquest made by the investigating officer and the preparation of Ex.P-18 inquest report, the dead body was subjected to post mortem by P.W.9, who has given a categorical opinion before the Court and also through the contents of the post-mortem certificate marked as Ex.P-10 that the deceased would appear to have died of shock and haemorrhage due to multiple vital organ injuries. The cause of death, as put forth by the prosecution, was never disputed by the appellant before the trial court and hence, there is no impediment in recording so.
7. In order to substantiate the charge that it was the accused, who caused the death of the deceased, the prosecution had no direct evidence to offer. But the prosecution had sufficient evidence to prove its case. It is not in dispute that the accused was actually employed under one Selvam, who was owning the lorry in question and P.W.6 was his younger brother. On 22.08.2006 the accused has actually taken the lorry to Kancheepuram from Chennai along with the deceased as cleaner and at about 1.00 AM (night hours), he alone came back and when P.W.6 questioned the same, he has given an evasive answer that on the way, he got down from the lorry for tea; but on the contrary, when the trial was going on, he has stated that he fell down from the lorry and sustained the injuries. Further, it was the admitted position that when the accused started along with the clearer to a particular point and before reaching the destination, the cleaner was found missing, and naturally one would expect the driver, who is the accused, to give a correct explanation; but in the instant case, the explanation was thoroughly inconsistent. In a given case where a particular circumstance is missing and the particular circumstance is within the knowledge of the accused and when it is found that he has come forward with a false explanation and suppressed the fact, it could be inferred that he is responsible for the missing of the circumstance and the Court can fill up the circumstance to render conviction. In the given case, when he started along with the deceased, he has given an inconsistent version about the absence of the deceased; on the contrary, the prosecution has sufficient material to prove that it was he, who caused the death. In the first instance, it was noticed by the Court that on 23.08.2006, when P.W.1, the Village Administrative Officer was in his office along with P.W.2, the accused appeared before them and gave the confessional statement about the occurrence taken place on 22.08.2006 and the same was recorded as Ex.P-1 and thereafter, he was taken to the police station and on the strength of Ex.P-1, the case was registered under section 302 IPC. It is well settled proposition of law that a conviction could be sustained solely on the basis of the extra-judicial confession, if accepted by Court. Before accepting the extra-judicial confession, the Court has to comply two tests,
firstly, to whom and under what circumstances, the extra-judicial confession was given; and
secondly, whether the evidence of the person, to whom the extra-judicial confession was made, inspires the confidence of the Court.
8. In the instant case, there is no necessity or reason for P.W.1, the Village Administrative Officer, before whom the confessional statement was made, to produce the accused before the police officer and to give such a report. Apart from that, the appellant is unable to show any reason to disbelieve the evidence of P.W.1. Hence, the evidence of P.W.1 has got to be accepted. The other circumstances stated are in favour of the prosecution, namely, it was the accused who took the police officer to point out the place where the dead body was found and only thereafter, the prosecution came to know about the occurrence. Thus, the confessional statement given by the accused to the police officer led the police to find out the dead body and without which, the police could not have come to know about the occurrence. Further, he has also produced M.O.3 spanner, with which the deceased was attacked by him. Added further, the rear right side tyre of the lorry was recovered and when it was also found to be blood stained and the same was sent for chemical analysis and Ex.P-12 serology report shows that it was human blood. Apart from that, the tyre marks found in the place of occurrence would indicate that after hitting was made with the spanner, the accused has actually crushed the body by running over the vehicle over the head of the deceased two times, which is supported by the medical opinion put forth by the prosecution and all these circumstances would be clearly indicative of the fact that it was the accused and none else who has committed the crime. Further, in order to screen the evidence, he has given a false information as if the deceased got down on the transit for the purpose of taking tea. All would go to show that he was the person who committed the offence of causing death intentionally and also screening the evidence and hence, the trial court was perfect in recording the finding that the appellant was guilty under sections 302 and 201 IPC and awarding of life imprisonment, which, in the considered opinion of the Court, rightly too and hence, the judgment of the trial court does not require any disturbance either factually or legally in the hands of the Court.
Accordingly, the appeal fails and the same is dismissed.
gl
To
1.The Additional Sessions Judge,
Fast Track Court II,
Kanchipuram.
2.The Inspector of Police,
Kanchi Taluk Police Station,
Kanchipuram.
3.The Public Prosecutor
High Court,
Madras