IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 7-10-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.No.467 of 2010 Babu .. Appellant/A-1 vs State by: The Inspector of Police Karumathampatti Police Station Karumathampatti Coimbatore District (Crime No.135/2003) .. Respondent/Complainant Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge, Fast Track Court No.II, Coimbatore, made in S.C.No.227(A)/2005 dated 9.12.2009. For Appellant : Mr.P.M.Duraiswamy For Respondent : Mr.V.R.Balasubramanian Additional Public Prosecutor JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)
This appeal challenges a judgment of the Additional Sessions Division, Fast Track Court No.II, Coimbatore, made in S.C.No.227(A) of 2005 whereby the appellant/A-1 stood charged along with five others and on trial, found guilty and awarded punishment as follows:
ACCUSED
CHARGES
FINDING
PUNISHMENT
A-1 to A-5
120(B) r/w 364, 392, 302 IPC
Not guilty
Acquitted
A-1 to A-3
364 IPC
Not guilty
Acquitted
A-2
A-1 & A-3
392 IPC
392 r/w 397 IPC
A-2 Not guilty
A-1 guilty
A-3 not guilty
7 years Rigorous Imprisonment along with a fine of Rs.10000/- and default sentence
A-2 & A-3 acquitted
A-1 & A-3
A-2
302 IPC
302 r/w 34 IPC
A-1 guilty
A-2 & A-3 not guilty
Life imprisonment along with a fine of Rs.10000/- and default sentence
A-2 & A-3 acquitted
A-1 to A-3
201 IPC
A-1 guilty
A-2 & A-3 not guilty
3 years Rigorous Imprisonment along with a fine of Rs.5000/- and default sentence
A-2 & A-3 acquitted
A-4 & A-5
302, 364, 392, 302 r/w 109 IPC
Not guilty
Acquitted
2.Short facts necessary for the disposal of this appeal can be stated as follows:
(a) P.W.3 is the owner of the vehicle Tata Qualis bearing registration No.KL 7 AB 3240, marked as M.O.1, which stood in the name of his mother. The appellant/A-1 along with the other accused hatched up a conspiracy to engage a vehicle and after causing the death of the driver of the vehicle, to steal the same. As per the conspiracy, A-1 and A-3 met P.W.3 on 13.5.2003 at about 11.30 A.M. and after making a payment of Rs.500/-, they informed their desire to take the vehicle to Bangalore that evening. Accordingly, all the accused persons went to P.W.3’s place and took the vehicle. The vehicle was also driven by the deceased John @ Johni. When the vehicle was actually proceeding on its way, they stopped the same nearby a place called Karumathampatti in order to have tiffin in a shop run by P.W.5. After they had the food, the deceased driver made a request that they could go sometime later. But, it was not agreed by the accused. Immediately, there was a quarrel, and it was P.W.5 who pacified the same. Then the car was taken therefrom, and nearby the place of occurrence, the car was stopped on the roadside, and the driver Johni was sleeping. Taking advantage of the same, as per the plan hatched up, A-2 tied him with a towel, while A-3 was watching. A-1 stabbed him on his chest with a knife, and A-3 also joined with him later in stabbing him, and thus they caused the death of Johni and threw the dead body near, and they also removed M.O.6, the seat of the car, which was actually bloodstained. Then they left the place of occurrence.
(b) On 14.5.2003 at about 7.30 A.M., when P.W.1, the Village Administrative Officer (VAO) of Karuthampatti, was in his office, he was informed by P.W.2, Village Assistant, that a dead body of a male was found in the place of occurrence. Immediately, P.W.1 proceeded to the spot and after ascertaining the fact, went to the respondent police station and gave Ex.P1, the report, on the strength of which a case came to be registered by P.W.16, the Sub Inspector of Police, in Crime No.135 of 2003 under Sec.302 IPC. The printed FIR, Ex.P27, was despatched to the Court.
(c) P.W.17, the Inspector of Police of that Circle, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P7, and also a rough sketch, Ex.P37. Then he recovered from the place of occurrence M.O.5, towel, and M.O.6, car seat cover, and other material objects under a cover of mahazar. He conducted inquest on the dead body of Johni in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P35. The dead body was sent to the Government Hospital along with a requisition for the purpose of autopsy.
(d) P.W.10, the Civil Surgeon, attached to the Government Hospital, Tiruppur, on receipt of the requisition, has conducted autopsy on the dead body of Johni and has given his opinion in Ex.P14, the postmortem certificate, that the deceased died of shock and haemorrhage due to multiple injuries.
(e) While the investigation was pending, the car which was taken by the accused, actually met with an accident. They left the car at that place and went away. The same was witnessed by P.W.7, and thereafter, this was reported to Salem T.W. Police Station by an auto driver by name Sankar. On the strength of the same, a case was registered by P.W.15, the Sub Inspector of Police of that police station, in Crime No.263/2003 under Sec.279 IPC. Then the Motor Vehicle Inspector, P.W.11, was summoned. He also made an inspection of the vehicle and also gave a report, Ex.P15. After verification of the records, P.W.3 was informed about the accident of the vehicle. Then P.W.3 went to the spot and came to know about the same.
(d) Pending investigation, on 24.5.2003, A-4 and A-5 were arrested, and on the statement, the case was converted to Sections 302, 109, 120(B) and 379 IPC. The amended FIR, Ex.P36, was despatched to the Court. On 3.6.2003 near Salakudi Village, Kerala State, P.W.13, the Inspector of Police of that Circle, when he was on patrol, arrested A-1 and A-2, and a case came to be registered in Crime No.255/2003 under Sec.41(1)(c) of Cr.P.C. An intimation was given to P.W.18, the Inspector of Police in that regard. Immediately, both of them were arrested and brought by the Investigating Officer. Insofar as A-1 and A-2, a requisition was given for the test identification parade. P.W.9, the Judicial Magistrate, Palladam, conducted identification parade and the identification parade proceedings are marked as Ex.P26. During the identification parade, P.W.3 identified the accused. Insofar as A-3, identification parade was conducted by P.W.9, and the proceedings are marked as Ex.P13.
(e) On 18.6.2003, A-1 to A-3 were actually taken to police custody. A-1 gave a confessional statement, and the admissible part is marked as Ex.P3. He also produced M.O.3, knife, which was recovered under a cover of mahazar, Ex.P5. Apart from that, A-3 gave a confessional statement, the admissible part of which is marked as Ex.P2. Following the same, he produced M.O.2, knife, which was recovered under a cover of mahazar. Thereafter, A-3 came forward to make a confession before the Court admitting the guilt, and he wanted to be an approver. Accordingly, the statement given by A-3, was recorded by P.W.19, the Chief Judicial Magistrate, Coimbatore, under Sec.164 of Cr.P.C. The proceedings are marked as Ex.P40.
(f) All the material objects were subjected to chemical analysis, which resulted in two reports Ex.P19, the chemical analyst’s report, and Exs.P20 and P21, the serologist’s reports. On completion of the investigation, the Investigator filed the final report.
3.The case was committed to Court of Sessions. Since A-1 was absconding for sometime, the case was split up in his regard. Since he was also subsequently secured and he was produced, he was shown as A-1 in the instant case as per the charge sheet. The trial was taken up, and necessary charges were framed. In order to substantiate the charges, the prosecution marched 19 witnesses and also relied on 40 exhibits and 11 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses which they flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced on either side, and found the appellant/A-1 guilty under Sections 302, 392 r/w 397 and 201 of IPC and awarded the above punishment. The trial Judge accepted the evidence put forth by A-3, and he was treated as approver and was acquitted in view of the confession made by him. A-2, A-4 and A-5 were actually acquitted from all the charges on the merits of the matter. Under the circumstances, this appeal has arisen at the instance of A-1.
4.Advancing arguments on behalf of the appellant, the learned Counsel would submit that in the instant case, the prosecution had no direct evidence to offer, and it has relied only upon circumstantial evidence; and that according to P.W.3, he was the owner of the vehicle, and on 13.5.2003, A-1 along with A-3 came over there and took the vehicle M.O.1, Tata Qualis, and at that time, the deceased Johni who was the driver, also went along with them. The learned Counsel pointing to the evidence of P.W.3, would submit that though P.W.3 has stated that there was a payment of Rs.500/- as advance, no record was recovered in that regard; that apart from that, there is no trip sheet or nothing to indicate that the vehicle was actually taken by A-1 or A-3 or the vehicle was driven by the deceased, and no record was secured, and hence the evidence of P.W.3 cannot be believed.
5.Added further the learned Counsel that as far as the evidence of P.W.5, hotelwala, was concerned, at the time of cross-examination, he has categorically stated that he saw four persons, but not A-1; and that under the circumstances, the evidence of P.W.5 cannot be accepted.
6.The learned Counsel would further submit that P.W.7 who has witnessed the accident of the vehicle at Salem, has also not spoken anything about the incident in question, and hence his evidence was also not available and could not be used by the prosecution; that as far as the confession and recovery were concerned, according to the recovery mahazar, M.O.5, car seat cover, was stained with blood; but according to the Investigator, it did not contain blood at all; that apart from that, nothing was detected by the Forensic Sciences Department at the time of analysis, and hence it is highly doubtful whether M.O.5, car seat cover, could have been recovered.
7.Added further the learned Counsel that according to P.W.15, after looking into the records of the vehicle, an intimation was given to P.W.3, and P.W.3 came to Salem, and he was informed that his vehicle met with an accident; that it is pertinent to point out that P.W.3 himself came to know about all the affairs only on 16.5.2003; but the inquest was conducted by the Investigating Officer on 15.5.2003 at about 6.00 A.M.; that if to be so, the Medical Officer or the Police Officer who gave the information, could not have known the name of the deceased; but, the inquest report would clearly reveal that the deceased was John @ Johni; that it would be indicative of the fact that P.W.3 already knew about the affairs, and under the circumstances, it would also cast a doubt on the prosecution case.
8.The learned Counsel further add that in the instant case, when the prosecution came forward with a story of conspiracy and the trial Court was not ready to accept the same and acquitted all the other accused, the same parameter and also the reasons should have been applied to this appellant also; and that further all the evidence put forth by the prosecution cannot but be false in order to rope in the appellant/A-1. According to the learned Counsel, the evidence with regard to conspiracy was not believed and hence the trial Judge has acquitted A-2, A-4 and A-5, but has taken an erroneous view in finding the appellant/A-1 guilty, and for the same reasons, A-1 is also entitled for acquittal, and hence the appeal has got to be allowed.
9.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
10.It is not in controversy that the dead body of one Johni was actually found on the roadside nearby the place of occurrence and after the case was registered directly for murder under Sec.302 IPC, P.W.17, the Inspector of Police of the respondent police station, after the preparation of the inquest report, sent the dead body to the Government Hospital for the purpose of autopsy. P.W.10, the Doctor, on receipt of the requisition, has conducted autopsy and has given his opinion that the deceased died of shock and haemorrhage due to the multiple injuries sustained. Thus the cause of death as put forth by the prosecution was never disputed by the appellant before the trial Court. Under the circumstances, the trial Judge was perfectly correct in recording that Johni died out of homicidal violence.
11.In order to prove the charges levelled against the appellant along with others that pursuant to the conspiracy hatched up, A-1 and A-3 engaged the car of P.W.3 namely Tata Qualis, which is marked as M.O.1, at about 11.30 A.M. on 13.5.2003, and accordingly, after making a payment of Rs.500/- as advance, they took the car in the evening hours as if they were to proceed to Bangalore, and on the way they caused the death of the driver Johni and took the car which subsequently met with an accident, the prosecution had no direct evidence to offer. The prosecution relied upon certain circumstances. The circumstances which were relied on by the prosecution can be narrated as follows:
(1) P.W.3, the owner of the car, has given evidence to the effect that on 13.5.2003, A-1 and A-3 came at about 11.30 A.M. and after making the payment of Rs.500/-, they engaged the car, and as engaged, they took the car in the evening hours, and it was Johni, his driver, who drove the car, and A-1 and A-3 left the place.
(2) According to P.W.5, he was running a tea stall at Karumathampatti where the car was parked, and all of them got into the shop and took tiffin, and thereafter, the driver of the car Johni wanted to take some rest to which the accused were not amenable, and then there was a quarrel between them, and he (P.W.5) pacified the same, and later the dead body of Johni was found on the roadside.
(3) On 3.6.2003, A-1 and A-2 were arrested by Kerala Police in connection with a case in Crime No.255/2003 registered under Sec.41(1)(c) of Cr.P.C. and the same was also informed to the respondent police, who caused their arrest on the next day.
(4) The vehicle of P.W.3 namely Qualis Car, met with an accident at Salem, and the same was intimated to Salem T.W. Police Station, and they registered a case in Crime No.263/2003 under Sec.279 IPC, and after verification of the records, they informed to P.W.3, the owner of the vehicle, and thereafter, P.W.3 came to know about the occurrence.
(5) A-1 to A-3 were identified by P.W.3 in the test identification parade conducted by the Judicial Magistrate, P.W.9, as per the identification parade proceedings marked as Exs.P13 and P26 respectively.
(6) Pursuant to the confessional statement given by A-1, M.O.3, knife, the weapon of crime, was recovered under a cover of mahazar.
(7) All the material objects were actually subjected to chemical analysis.
12.This Court made a thorough analysis of the entire materials available. It is not this Court is unmindful of the caution made by the settled principle of law that in a given case like this, the circumstances must constitute a chain without a snap and also be pointing to the hypothesis that except the accused no one could have committed the offence. In the case on hand, it is true that the prosecution came forward with a story of conspiracy; but the prosecution did not have suffice evidence pointing to the conspiracy. As far as A-3 was concerned, he admitted the offence, and pardon was also granted in his favour. He became a witness before the Court, and he has also spoken in favour of the prosecution. Now, at this juncture, the learned trial Judge has also recorded that in such a situation, A-3 was entitled for acquittal. On that ground, A-3 was acquitted.
13.As rightly pointed out by the learned Counsel for the appellant, the evidence of P.Ws.5 and 7 cannot be accepted. But, this Court is of the considered opinion that the following circumstances placed by the prosecution before the trial Court, stood proved, and the same would suffice pointing to the guilt of A-1 and A-3. According to P.W.3, he is the owner of the Car namely Qualis, in question. His ownership was not a disputed fact. According to him, A-1 and A-3 approached him at about 11.30 A.M. on 13.5.2003, and engaged the car, and they made an advance of Rs.500/- and took the car in the evening, and Johni was the driver who went with them. At this juncture, as regards the comments made by the learned Counsel for the appellant in respect of the payment of Rs.500/- as advance, this Court is unable to see that it can be a reason to suspect the prosecution case. On the contrary, this Court is unable to see any reason or circumstance why P.W.3 an utter stranger and the owner of the car, should come before a Court of law to say that the car was taken by A-1 and A-3, and it was also driven by the deceased Johni. It is pertinent to point out that the car was actually taken on the evening hours of 13.5.2003. The dead body of Johni was found at about 7.30 A.M. on 14.5.2003 by P.W.2, the Village Assistant, who in turn informed to P.W.1, the VAO of Karuthampatti. It would be quite clear from the postmortem certificate that the occurrence has taken place on the night hours of 13.5.2003. If A-1 and A-3 took the vehicle along with Johni, who drove the car as driver, they are bound to explain what happened to the driver who was taken by them along with the car. As far as the car was concerned, it subsequently met with an accident, and it was also placed before the Court marked as M.O.1. Thus the ownership of the car of P.W.3 was a proved fact. At this juncture, the contention put forth by the learned Counsel for the appellant that even assuming that A-1 along with others went, subsequently A-1 would have left the place before the occurrence of murder had taken place, cannot be accepted. In such a situation, it is for A-1 to explain what happened to the driver who was taken by him along with A-3.
14.Apart from the above, the recovery of M.O.3, knife, the weapon of crime, from A-1 pursuant to the confessional statement is also available to the prosecution. P.W.1 has been examined to speak about the confession made by A-1 to the Investigator, P.W.18, and after the same was recorded, he also produced M.O.3, knife, which was recovered and sent to the Court. The same was received by the Court on 18.6.2003, as could be seen from Form 95. Added circumstance is that P.W.3 was able to identify the appellant/A-1 in the identification parade conducted by P.W.9, the Judicial Magistrate. The identification parade proceedings are marked as Exs.P26. No infirmity or illegality is noticed in that process. The evidence of P.W.3 who was able to speak about the engagement of the car and the facts that the driver was also taken along with the car by A-1 and A-3 and subsequently he was able to identify them in the identification parade within a reasonable time from the time of arrest coupled with the recovery of M.O.3, the weapon of crime, would be pointing to the guilt of A-1. A-1 and A-3 were on the same footing, and in respect of the case of murder, they were answerable. But, A-3 has become an approver, and pardon was given to him, and he himself was examined as a witness. The trial Judge has rightly acquitted him along with the others. So far as A-1 is concerned, in the considered opinion of the Court, the trial Judge has properly marshalled the evidence and found him guilty under the charge of murder and awarded the punishment as stated supra. There is nothing to be disturbed in the judgment of the trial Court either factually or legally. Hence the contentions put forth by the learned Counsel for the appellant do not merit acceptance, and they are liable to be rejected, and accordingly rejected.
15.In the result, this criminal appeal fails and the same is dismissed confirming the judgment of the trial Court.
nsv
To:
1.The Additional District and
Sessions Judge
FTC No.II
Coimbatore
2.The Inspector of Police
Karumathampatti Police Station
Karumathampatti
Coimbatore District
(Crime No.135/2003)
3.The Public Prosecutor
High Court
Madras