IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18-8-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN CRL.A.No.125 of 2010 Kannan .. Appellant vs State: Inspector of Police Belukurichi Police Station Namakkal District Crime No.220/2005 .. Respondent 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, Namakkal, made in S.C.No.71 of 2006 dated 23.11.2009. For Appellant : Mr.Rajakumar For Respondent : Mr.V.R.Balasubramanian Additional Public Prosecutor JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)
Challenge is made to a judgment of the Additional Sessions Division, Namakkal, made in S.C.No.71 of 2006 whereby the appellant/accused along with three others stood charged, tried, found guilty and awarded the punishment as follows:
ACCUSED
CHARGES
FINDING
PUNISHENT
A-1 & A-2
120-B IPC
Not guilty
Acquitted
A-1 & A-2
364 IPC
A-1 guilty & A-2 not guilty
7 years RI with a fine of Rs.5000/- and default sentence
A-2 acquitted
A-1 & A-2
302 IPC
A-1 guilty & A-2 not guilty
Life imprisonment with a fine of Rs.10000/- and default sentence
A-2 acquitted
A-1 & A-2
404 IPC
A-1 guilty & A-2 not guilty
2 years RI with a fine of Rs.3000/- and default sentence
A-2 acquitted
A-1 to A-4
201 r/w 302 IPC
A-1 guilty & A-2 to A-4 not guilty
5 years RI with a fine of Rs.4000/- and default sentence
A-2 to A-4 acquitted
2.Short facts necessary for the disposal of this appeal can be stated as follows:
(a) P.W.1 is the father, and P.W.2 is the wife and P.W.3 is the father-in-law of the deceased Nandakumar. A-1 to A-4 were close associates. Nandakumar was moving with A-1 and A-2 friendly since they were all employed in the same Farm. A-1 desired to marry one Selvi, the granddaughter of P.W.12. For that, A-1 had a plan with A-2; but, the same was refused, and hence they thought of kidnapping Selvi. For that, A-1 requested the deceased to help him by taking his car. The family members of Selvi came to know about the same. When A-1 came to know about the same, he thought that it was the deceased who informed them and hence developed a grudge against the deceased on that. A-1 hatched up a conspiracy with A-2 on 1.6.2005, in order to do away with Nandakumar.
(b) On the night hours of 2.6.2005, Nandakumar along with his wife P.W.2, left to his father-in-law’s house and were staying over there. During night hours, there was a phone call from one Selvam, the friend of A-1, to the medical shop of P.W.4 situated very near to the house of P.W.3. The phone was attended by P.W.2 whereby she was informed by Selvam that Nandakumar was to meet A-1 in view of some financial transaction. Accordingly, on 3.6.2005, Nandakumar proceeded to one Vettukadu where he met A-1. At that time, P.W.5 who was carrying on a partnership business in Cable TV with A-1, was also available.
(c) At about 7.30 P.M. on 3.6.2005, A-1 took Nandakumar in M.O.25, TVS 50. The same was witnessed by P.W.5. A-1 and the deceased proceeded to the tea stall of P.W.6 where they had tea, and thereafter, they left from that place. On the way, A-2 as per the plan, was waiting. He was also taken in the same TVS 50. All the three proceeded to the farm house of A-1. There was a wordy altercation, and A-1 informed the deceased that it was he who gave information to the family members of Selvi. Following the same, A-1 pushed him down and closed his mouth when A-2 caught hold of him by facilitating the crime. When he made an attempt to escape, A-1 attacked him with the wooden part of the spade twice on his head as a result of which the deceased succumbed to the injuries. The dead body was taken and buried within the garden which belonged to A-1, for screening the evidence.
(d) P.W.1 when he was in his house on 5.6.2005, P.W.3 came in search of the deceased. P.W.1 gave a reply that he did not come. Then they entertained a suspicion. They started searching him. On their way, they came to know that it was A-1 who took him and who was also in the company of the deceased. P.W.1 after making a thorough search, gave a complaint on 12.6.2005, to P.W.31, the Sub Inspector of Police of the respondent police station. Ex.P1 is the complaint, on the strength of which a case came to be registered in Crime No.220 of 2005 under Sections 302 and 201 of IPC. The printed FIR, Ex.P32, was despatched to the Court.
(e) On receipt of the copy of the FIR, P.W.33, the Inspector of Police, took up investigation, proceeded to the spot, made an inspection of the place where the bloodstains were found and prepared an observation mahazar, Ex.P12, and also a rough sketch, Ex.P49. Thereafter, the sniffer dog was brought, and it was taken to the place where bloodstains were found. Then it went to the place where the dead body was buried. A requisition was given to P.W.15, the Tahsildar, and on receipt of the same, P.W.15 went to the spot where the dead body was buried, and he caused exhumation of the body in the presence of witnesses and prepared an inquest report, Ex.P11. P.Ws.1 to 3 have also identified the dead body.
(f) On a requisition made, P.W.9, the Civil Surgeon, attached to the Government Hospital, Rasipuram, came to the place and conducted autopsy on the dead body and gave his opinion that death would have been caused 8 to 14 days prior to the autopsy, and he died due to the injuries that were found in the skull.
(g) The skull was actually taken for the purpose of superimposition test. The photo which was recovered from P.W.1, was also sent to the Forensic Sciences Department for the purpose of superimposition test. The expert was examined as P.W.26, and the report is marked as Ex.P34 which was to the effect that it was the skull of Nandakumar.
(h) Pending the investigation, A-2 was arrested on 14.6.2005 at 1.00 P.M. He came forward to give a confessional statement. The same was recorded in the presence of witnesses. The admissible part of the confessional statement was marked as Ex.P17. He also produced M.O.24, mat, which was recovered under a cover of mahazar. He was sent for judicial remand.
(i) A-1 was arrested on 23.7.2005. He gave a confessional statement. The admissible part is Ex.P19. He produced M.O.25, TVS 50, and M.O.26, RC Book, which were recovered under a cover of mahazar. Then he took the Investigator to the Agricultural Cooperative Bank, where P.W.8 was the Secretary, and from the bank, M.O.1, gold chain, was recovered. M.O.3, the Register, whereby M.O.1 was pledged by A-1, was also recovered under a cover of mahazar. He was sent for judicial remand.
(j) The Investigator came to know that A-3 surrendered before the Judicial Magistrate, and police custody was sought for and ordered on 16.8.2005. Accordingly, A-3 was taken to police custody, and he gave a confessional statement which was recorded in the presence of witnesses. Ex.P22 is the admissible part of the said confessional statement. M.O.2 gold ring, produced by him, was recovered.
(k) A-4 was arrested on 17.8.2005, pursuant to the confessional statement of A-3. A-4 came forward to give a confessional statement. The admissible part is marked as Ex.P24. He also produced M.O.29, spade, and M.O.28, crowbar, which were recovered under a cover of mahazar. Then he was sent for judicial remand.
(l) The other witnesses were examined and their statements were recorded. On completion of investigation, the Investigator filed the final report against all the four accused.
3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 33 witnesses and also relied on 52 exhibits and 32 material objects. On completion of 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, but one document was marked on their side. On completion of evidence on both sides, the trial Court heard the arguments advanced on either side, and took the view that the prosecution has proved the case beyond reasonable doubt insofar as A-1 and hence found him guilty under the above provisions of law and awarded the above punishment. However, the trial Judge did not believe the case of the prosecution in respect of the conspiracy and acquitted A-1 in respect of that charge and in respect of all the charges levelled against A-2 to A-4, made an order of acquittal. Hence this appeal 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 relied only on the circumstantial evidence. He also made a caution that the prosecution has miserably failed to place or prove any circumstances which was connecting the accused.
5.The learned Counsel would submit that insofar as the motive, it is the specific case of the prosecution that A-1 desired to marry one Selvi, the granddaughter of P.W.12, and the same was refused, and A-1 had a plan to kidnap her, and the same was informed to the deceased, and he was requested to get the car also, and it came to the knowledge of the family members of Selvi, and it passed in the mind of A-1 that it was the deceased who gave that information, and then he planned to wipe him out, and accordingly, he hatched up a conspiracy with A-2; but the trial Judge was not ready to believe the conspiracy theory put forth by the prosecution and acquitted A-1 and A-2 in that respect.
6.Added further the learned Counsel that no one has spoken about the alleged motive; that even the said Selvi was not examined by the prosecution which would indicate that the prosecution had no direct evidence to offer in the case; that once the case rests upon the circumstantial evidence, a duty is cast upon the prosecution to prove the motive, but it has miserably failed; and that under the circumstances, the case of the prosecution at that stage itself has become shaky.
7.The learned Counsel would further submit that the prosecution relied on the last seen theory by examining P.Ws.1 to 3 and 5 to 7 out of whom P.W.7 has turned hostile; that as far as P.Ws.1 to 3 are concerned, they have not seen any one of the accused and in particular A-1, in the company of the deceased; that insofar as the last seen theory, their evidence cannot be relied; that as far as P.Ws.5 and 6 are concerned, according to P.W.5, the deceased came to the place where he along with A-1 was available, and at about 7.30 P.M., both of them left the place; and that merely because A-1 took the deceased from the place, it cannot be taken as last seen theory.
8.Added further the learned Counsel that as far as P.W.6, tea shop owner, is concerned, he has also spoken to the fact that A-1 and the deceased came to the shop, had tea at about 7.45 P.M. and left the place in the TVS 50. At this juncture, the learned Counsel pointed out that as far as TVS 50 is concerned, it was not identified by P.W.5 or 6.
9.The learned Counsel would further add that in the instant case, though P.Ws.1 and 2 would claim that they had suspicion at the earliest and went to the field of A-1, and there also they found some suspicion, they did not bring to the notice of the police till 12.6.2005, and it is highly doubtful; that if really they had suspicion against A-1, they would have gone to the police station at the earliest, but they have not done so for a period of more than 10 days; that it would cast a doubt on their evidence; and that apart from that, after the dead body was actually found, all the documentary evidence have been cooked up.
10.Added further the learned Counsel that according to P.Ws.1 and 2, after the case was registered, the investigator was taken to the place where the dead body was buried, and thereafter, P.W.15, the Tahsildar was required to cause exhumation of the body; that though the prosecution would claim that the dead body was actually buried in the field of A-1 and exhumed, no documentary evidence was produced to prove the fact that the land belonged to A-1, and even P.W.15, the Tahsildar, or P.W.16, the Assistant, attached to the Collectorate, have not spoken to the fact that the particular survey number belonged to A-1, and hence it would be quite clear that the claim of the prosecution that the dead body was actually found in the field of A-1 cannot be accepted since it lacked thoroughly in proof.
11.It is further urged by the learned Counsel that another circumstance relied on by the prosecution was the recovery of M.O.1, chain. The learned Counsel pointing to the recovery mahazar in respect of M.O.1, chain, would submit that there was a description as Nandakumar, but when the complaint Ex.P1 was given, it is found as N.Kumar, and thus there is discrepancy; that it would be quite clear that P.Ws.1 to 3 have not at all given any description earlier and did not identify the chain, and thus the recovery of gold chain, M.O.1, will not in any way be taken as an incriminating circumstance.
12.Added further the learned Counsel that when the dead body was recovered on exhumation, it was thoroughly decomposed; that even there is no evidence to show that how the Investigator got the photograph of the deceased, and thus it would be quite clear that the dead body of some person which was actually buried in that place, was exhumed; that there is nothing to indicate that the identity of Nandakumar was fixed; that the prosecution has miserably failed to prove the motive and did not bring forth any circumstance pointing to the nexus of the crime; that even the identity of the dead body was not at all ascertained; and that under the circumstances, all the benefits of doubt should be given to the appellant/accused who is entitled to the same.
13.Added further the learned Counsel that on the same evidence, the trial Judge was not ready to believe the case of the prosecution in respect of A-2 to A-4; that the same reasons are applicable to the present appellant also, and hence he is entitled for acquittal in the hands of this Court.
14.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
15.As could be seen from the available materials, pursuant to the complaint given by P.W.1 to P.W.31, the Sub Inspector of Police of the respondent police station, a case came to be registered under Sections 302 and 201 of IPC. Pursuant to a requisition given to P.W.15, the Tahsildar, the dead body was exhumed from the place of burial. P.W.9 the Doctor, on requisition has conducted autopsy and has given his opinion that the death has occurred 8 to 14 days prior to autopsy, and that was actually due to the injuries sustained. Thus it would be quite clear that the death was caused due to homicidal violence.
16.As far as the identity of the dead body was concerned, though serious comments were made by the learned Counsel for the appellant, they have got to be rejected for the reasons that when the dead body was exhumed, it was actually identified by P.Ws.1 to 3. Apart from that, at the time of postmortem, the skull was recovered, and the photograph of the deceased was taken by the Investigator from P.W.1 and was sent to the Department for the purpose of superimposition test. On conduct of the test, the report was given by the expert examined as P.W.26. The same is marked as Ex.P34, which was to the effect that it was the skull of the deceased as found in the photograph. It is pertinent to point out that when the photograph was actually placed before the Court and was actually shown as the husband of P.W.2, and the same has actually been sent for the purpose of superimposition test, now the contention put forth by the learned Counsel for the appellant that the identity of the deceased was not known cannot be countenanced. Added further, the cause of death was actually spoken to by the medical person, and hence it leaves no doubt in the mind of the Court as to the identity of the deceased Nandakumar and also the cause of death as put forth by the prosecution.
17.True it is, in the case on hand, the prosecution had no direct evidence to offer. It relied upon certain circumstances. It is not that this Court is unmindful of the caution made by the Apex Court and also by the settled principles of law that in a given case like this, all the circumstances must be clinchingly pointing to the hypothesis that except the accused, no one could have committed the offence. In the instant case, the following circumstances are noticed by the Court. P.W.1 has spoken to the fact that the deceased Nandakumar along with his wife P.W.2 left to the house of P.W.3, the father-in-law of Nandakumar, on the night hours of 2.6.2005. P.W.2 has given evidence to the effect that a phone call was received through the phone which was available in the medical shop of P.W.4, and when she attended the same, one Selvam, the friend of both the deceased and A-1, informed her that the deceased was to come and meet A-1 in the next day. She has also given evidence to the effect that the deceased left the house of P.W.3 on 3.6.2005. Thus, as far as last seen theory is concerned, it is true that these witnesses have spoken about the last seen theory; but, the evidence of P.W.2 was to the effect that there was a request from the side of A-1 that the deceased should come and meet him on the next day. To that extent, her evidence was available.
18.Apart from the above, the last seen theory is clearly spoken to by P.Ws.5 and 6. P.W.5, admittedly, was a partner in the Cable TV business along with A-1, and both of them were closely associated to the deceased Nandakumar. According to P.W.5, at about 7.30 P.M., Nandakumar came to the shop where both himself and A-1 were available, and after sometime, Nandakumar was about to start, and A-1 also went out, and at that time, it was A-1 who took him in TVS 50. At this juncture, P.W.5 has categorically stated that thereafter, Nandakumar was not found. P.W.6 was running a tea stall. According to him, both Nandakumar and A-1 came to his shop and had tea at about 7.45 P.M., and both of them left in the same TVS 50. It is pertinent to point out that the occurrence has taken place on the night hours of that day. Even in Ex.P1, the complaint, it has been clearly stated that on enquiry, P.W.1 came to know that the deceased was in the company of A-1 on the night hours of 3.6.2005. It remains to be stated that on that day, when P.W.3 came to the house of P.W.1 and asked about the whereabouts of the deceased, all of them began to search, and after making a thorough search, the complaint was given on 12.6.2005, wherein the entire incident has clearly been narrated. At this juncture, it is pertinent to point out that after the registration of the case the Investigator proceeded to the spot and had a suspicion and found the bloodstains in the house of A-1 where the sniffer dog was taken. The sniffer dog after going to the spot, proceeded to the place where the dead body was actually buried. At this juncture, it is pertinent to point out that a requisition was made to P.W.15, the Tahsildar, who caused exhumation of the body, and he conducted inquest and prepared, Ex.P11, the inquest report. The incriminating circumstance, at this juncture, noticed by the Court, is that the dead body has actually been buried in the field of A-1. Now the contention put forth by the learned Counsel for the appellant that there is no evidence to show that the place in which the dead body was buried, belonged to A-1 cannot be countenanced in view of the evidence of P.Ws.15 and 16. Both P.Ws.15 and 16 have categorically stated in the chief-examination that Survey No.207 actually belonged to A-1. This evidence, in the considered opinion of the Court, would suffice and it remained uncontroverted.
19.Added further, M.O.1 was the chain which was actually worn by the deceased at the time of the occurrence. It is actually mentioned in the earliest document Ex.P1, the complaint. It is true that in Ex.P1, P.W.1 has stated that what is described in the chain is N.Kumar, but not Nandakumar, and in the chain it is found as Nandakumar. The learned Counsel pointed out the discrepancy found therein. But, this Court is of the considered opinion that at the earliest, P.W.1 has stated in Ex.P1 that he was wearing a gold chain and also the description is there. Hence this discrepancy cannot in any way be taken to disbelieve the evidence. Further, M.O.25, TVS 50, and M.O.26, RC Book, have actually been recovered from A-1. This was the vehicle in which A-1 carried the deceased as witnessed by P.Ws.5 and 6. P.W.5 has categorically stated that it was the vehicle of A-1, and he was closely associated for a long time. Thus, this is another incriminating circumstance.
20.All the above circumstances would clearly indicate that it was the appellant who was responsible and who caused the death of the deceased. It is true that the prosecution has miserably failed to prove its conspiracy theory. Merely because the prosecution could not prove the conspiracy theory or motive, the Court cannot reject the case of the prosecution since the motive is one of the ingredients to be proved by the prosecution. Therefore, in the instant case, evidence is available pointing to the guilt of A-1 that it was he who actually abducted the deceased, caused his death and also buried the dead body in order to screen the evidence. In such circumstances, this Court has to necessarily accept the case of the prosecution as rightly done by the trial Judge. Thus the contentions put forth by the learned Counsel for the appellant as narrated above, do not carry merit whatsoever, and the judgment of the trial Court cannot be disturbed either factually or legally.
21.In the result, this criminal appeal fails and the same is dismissed confirming the judgment of the trial Court.
(M.C.,J.) (M.S.N.,J.)
18-8-2010
Index: yes
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nsv
M.CHOCKALINGAM, J.
AND
M.SATHYANARAYANAN, J.
nsv
To:
1.The Additional District and
Sessions Judge
Fast Track Court
Namakkal
2.The Inspector of Police
Belukurichi Police Station
Namakkal District
Crime No.220/2005
3.The Public Prosecutor
High Court, Madras.
CRL.A.No.125 of 2010
Dt: 18-8-2010