IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 14.08.2008 Coram The Honourable Mr. Justice M. CHOCKALINGAM and The Honourable Mr. Justice M. VENUGOPAL Crl. A. Nos.988 of 2005 and 745 of 2006 Rajendran ... Appellant in Crl.A. No.988/2005 Gopi @ Govindasamy ... Appellant in Crl.A. No.745/2006 ..Vs.. State by Inspector of Police, Pennadam Police Station, Pennadam, Cuddalore District. ... Respondent in both appeals Appeals filed against the judgment dated 29.10.2004 passed in S.C. No.72 of 2004 on the file of the Additional District Court (Fast Track Court III), Vridhachalam. For Appellants : Mr. V. Sairam For Respondent : Mr. V.R. Balasubramanian, Addl. Public Prosecutor JUDGMENT
(Judgment was delivered by M. CHOCKALINGAM, J.)
This judgment shall govern these two appeals. Crl.A. No.988 of 2005 has been filed by the first accused whereas Crl.A. No.745 of 2006 has been filed by the second accused.
2. These appellants along with another, who is the third accused, stood charged and tried for the following offences in S.C. No.72 of 2004 on the file of the Additional District Court, Fast Track Court No.III, Vridhachalam.
” Accused 1 and 2 stood charged under Sections 328 and 302 (4 founts) I.P.C. and Sections 4(1-A) and 4(1)(i) of the Tamil Nadu Prohibition Act and third accused stood charged under Sections 4(1)(A) and 4(1)(i) of the Tamil Nadu Prohibition Act, 1937.”
On trial, accused 1 and 2 were found guilty under Sections 4(1)(A) and 4(1)(i) of the Tamil Nadu Prohibition Act and they were acquitted of other charges and third accused was acquitted of all the charges. Hence at the instance of the accused 1 and 2, these appeals have been brought forth by them.
3. The short facts necessary for the disposal of the appeals can be stated thus:-
(i) First and third accused were jointly engaged in illegal arrack trade. Thereafter, on separation, they were doing independently. The second accused was aiding the first accused in his business. There was a business rivalry between the first and the third accused. The first and the second accused planned to demolish entire business and also tarnish the name of the third accused. On the request of the first accused, the second accused went to the house of the third accused and brought one litre of illicit poisonous arrack and handed over the same to the first accused, who, in turn, mixed pesticide viz. “Organophosphorus” with illicit arrack and asked him to sell the same. Accordingly, the second accused sold the arrack to four persons viz. Arumugam, Panchavarnam, Ganesan and Balu on 29.4.2003. After consumption, within a short span of time, all of them died.
(ii) On 29.4.2003 at about 8.30 p.m., P.W.1, agnate of Arumugam, on seeing Arumugam lying near the Pillayar temple and also found to be unconscious, enquired Arumugam, who informed him that it was Gopi, second accused, who was working in the tea shop of Angamuthu examined as P.W.17, gave him a pocket of arrack and he consumed the same. On enquiry, he further stated that when P.W.1 enquired the second accused, he told him that it was the first accused who gave him two pockets of illicit arrack for selling, out of which, one was sold to the said Arumugam for Rs.8.50. Arumugam died at about 5 a.m. on 30th April, 2003. A complaint was lodged by P.W.1 in Pennadam police station.
(iii) The case was registered by P.W.26 in Crime No.100 of 2003. The F.I.R. was sent to the higher Officials and investigation was conducted by P.W.26. He went to the place, where Arumugam was found lying and he prepared an Observation Mahazar Ex.P29 and also sketch Ex.P30. Pending investigation, it was reported that three more persons referred to above were also died due to the same cause. P.W.2, neighbour and P.W.3 wife of Arumugam have also given statements, which are consistent to the statement of P.W.1. P.W.4, the wife of P.W.1 was also examined.
(iv) Pending investigation, the statement of P.W.7, who is the sister of Panchavarnam the other deceased, was recorded. She has deposed that when she came from work, she found that Panchavarnam was lying unconscious due to consumption of arrack and on 30.4.2003, she took the said Panchavarnam to her mother’s house at Neyveli and thereafter, she died there. The younger sister of the deceased Panchavarnam was examined as P.W.8 and her statement was also recorded. P.W.9, the husband of the said Panchavarnam was also examined.
(v) P.W.11, the father of the deceased Ganesan was examined. He has given a statement to the effect that the deceased Ganesan has taken arrack from the second accused and when Ganesan was found unconscious in the house, he enquired his son Ganesan, who informed him that previous night he has taken one pocket of arrack from the second accused and consumed the same. He was taken to Pennadam Government Hospital and thereafter to Vridhachalam Government Hospital, where he died.
(vi) P.W.13, the younger brother of the deceased Balu has given statement to the effect that his brother bought illicit arrack from the second accused and consumed the same and he was taken to the Government Hospital, where he died.
(vii) P.W.26, after recording the statement of these witnesses, proceeded with the investigation and recorded the statements of other witnesses, prepared rough sketches, where the deceased were found lying and also the Observation Mahazars, noting down the physical features of the places. The second accused was arrested on 2.5.2003 and he gave confession statement in the presence of witnesses Aranganathan and Rajendran. The admissible portion of the said statement is marked as Ex.P4. The second accused took the police Officer along with witnesses to one Mani Chettiar’s house and produced yellow colour bag , which is marked as M.O.1 and the same was recovered under the cover of Mahazar Ex.P5.
(viii) Thereafter, the third accused was arrested on 3.5.2003 and he gave confession statement, pursuant to which a cane was recovered from him under seizure Mahazar Ex.P33. The first accused was arrested on 19.8.2003 and he has given confession statement, pursuant to which, he produced a tin box, which is marked as M.O.2 and the same is recovered under the cover of Mahazar Ex.P7.
(ix) Following the inquest made, all the dead bodies were sent for the purpose of autopsy. P.W.19 Doctor Krishnamoorthy conducted autopsy on the dead body of Ganesan and gave post-mortem Certificate Ex.P12 and chemical analysis report Ex.P13. The same Doctor conducted autopsy on the dead body of Panchavarnam and gave Certificate Ex.P14 and Chemical analysis report Ex.P15. P.W.20 Doctor Maheswari conducted autopsy on the dead body of Arumugam and gave post-mortem Certificate Ex.P16 and also Chemical analysis report Ex.P17. The autopsy was conducted on the body of Balu and post-mortem Certificate is marked as Ex.P25 and Chemical analysis report is Ex.P26.
(x) The material objects recovered from accused 1 to 3 and viscera taken from the dead bodies were subjected to analysis. P.W.21, the Analyst, attached to Forensic Department, apart from giving analytical reports Ex.P17 to P21, gave evidence to the effect that it all contains Organophosphorus and ethyl alcohol.
(xi) The further investigation was taken up by P.W.28, who completed the investigation and filed the final report. The case was committed to the Court of Sessions. Necessary charges were framed against the accused.
4. In order to substantiate its case, the prosecution examined 28 witnesses as P.Ws.1 to 28 and relied on documents Exs.P1 to P35 and also relied on M.Os.1 to 3. On completion of examination of witnesses on the side of the prosecution, when the accused were questioned under Section 313 of the Criminal Procedure Code, they denied them as false. No defence witness was examined.
5. The Trial Court, after hearing the arguments advanced by either side and scrutinised the materials available on record, took the view that the prosecution has proved its case in so far as accused 1 and 2 are concerned for the offences under Sections 4(1-A) and 4(1)(i) of the Tamil Nadu Prohibition Act and awarded the imprisonment referred to above. In so far as other charges against accused 1 and 2 are concerned, they were acquitted of those charges and third accused was acquitted of all the charges. Hence at the instance of the accused 1 and 2, these appeals have been brought forth by them.
6. Advancing arguments on behalf of the appellants, learned counsel would submit that in the instant case, the prosecution had no direct evidence to prove the case against the appellants. Even as per the case of the prosecution, all those persons, when they were about to die, had stated that they had purchased the arrack from the second accused. It was only hearsay evidence. There was no evidence to the effect that it was the first accused, who sent the second accused to the third accused; the second accused brought one litre of illicit arrack fom the third accused; the first accused mixed the same with poisonous substance and it was sold by the second accused to all the deceased. There is no proof for all these facts.
7. Learned counsel added further that in order to bring home the guilt of the appellants, the intention of the appellants should be proved, but no circumstance is available to show that both the appellants had got an intention to commit the said crime. When the trial Court has found that there is no evidence to prove the charges framed against the appellants under Sections 302 and 328 I.P.C., the same parameters are equally applicable to the charges on which they are found guilty also. Learned Trial Judge, who has acquitted the appellants for the offences under Sections 302 and 328 I.P.C., should have acquitted the appellants in respect of other charges also.
8. This Court heard the learned Additional Public Prosecutor on the above contentions.
9. This Court paid its anxious consideration on the submissions made by either side. It is a case where accused 1 and 2, who are appellants herein, along with one other accused shown as third accused, stood charged for the offences under Sections 328 and 302 (4 counts) I.P.C. and Sections 4(1-A) and 4(1)(i) of the Tamil Nadu Prohibition Act. Learned Trial Judge, on consideration of the evidence available on record, took the view that the prosecution, though examined 28 witnesses, unable to bring home the guilt of the appellants under Sections 302 and 328 I.P.C., but found guilty under Sections 4(1-A) and 4(1)(i) of the Tamil Nadu Prohibition Act.
10. At the outset, it has to be pointed out that the specific case of the prosecution was that four persons viz. Arumugam, Panchavarnam, Ganesan and Balu died due to consumption of illicit arrack mixed with poisonous substance. In order to prove the same, the material objects recovered from accused 1 to 3 and viscera taken from the dead bodies were subjected to analysis. P.W.21, the Analyst, attached to Forensic Department, apart from giving analytical reports Ex.P17 to P21, gave evidence to the effect that it all contains Organophosphorus and ethyl alcohol. Though, the cause of death was due to the consumption of poisonous arrack, the same was never questioned by the appellants at any stage of proceedings. The only question that was raised by the appellants is whether it was the appellants, who were responsible for the death and the act committed by them.
11. It is the specific case of the prosecution that the first and third accused were jointly doing business and thereafter they got separated and they were doing independent business. The second accused was assisting the first accused in his business. Both the first and the second accused planned to put an end to the business of the third accused and also tarnish his name. On the date of occurrence, i.e. on 29.4.2003, it was the first accused, who sent the second accused to the place of third accused to get one litre of illicit arrack mixed with poisonous substance. Accordingly, he brought and handed over the same to the first accused, who, in turn mixed with poisonous substance and handed over to the second accused for the purpose of selling.
12. Accordingly, on instructions of the first accused, the second accused sold the same to four persons, who consumed the same and found their fate. There is no ioto of evidence at all to connect third accused with the charges framed. Hence, he was acquitted, which, in the opinion of the Court, is rightly to.
13. In so far as first accused is concerned, on a complete analysis of evidence, what are all available is that P.W.12 has spoken to the fact that he enquired Ganesan, who was found unconscious and it was he told him that the arrack was sold by the second accused and he immediately approached the second accused, who informed him that it was handed over by the first accused and thereafter, he sold the same. Except this piece of evidence, there is no evidence to point out the guilt of the first accused. Added further, P.W.11, the father of Ganesan was informed by Ganesan that it was Gopi, the second accused, who gave him arrack and the second accused told him that he got from the first accused. The Court is of the considered opinion that all these circumstances, at no stretch of imagination, connect the first accused with the crime.
14. It is the case of the prosecution that the second accused went to the home of third accused at the instance of the first accused and he brought one litre of illicit arrack from the third accused and handed over the same to the first accused and it was the first accused, who gave him for distribution. The Court is of the considered opinion that all these relevant facts would show that there is no direct evidence, acceptable or convincing. Under such circumstances, it cannot be stated that the prosecution has brought home nexus of crime with the first accused. Hence, the prosecution has not proved its case beyond any reasonable doubt in so far first accused is concerned and he is entitled for acquittal.
15. In so far as second accused is concerned, the Court is able to see sufficient and acceptable materials available on record. According to the witnesses, who have been examined and who are close relatives of the deceased, the deceased were all found by the witnesses in an intoxicated condition and on enquiry, they were informed by the deceased that the arrack consumed by them was served by the second accused.
16. It is pertinent to point out that in so far as first deceased is concerned, when he was found intoxicated, P.W.7 enquired him, he informed that he purchased arrack for Rs.8 1/2 from the second accused and consumed the same. Apart from the same, no information was passed on to him. It is pertinent to point out that all the deceased have spoken that it was the second accused, who sold the arrack, which was purchased by them. Apart from the above, the second accused has given confession statement in the presence of witnesses and the same has been recorded by P.W.26. Consequent to the statement given by the second accused, yellow bag has actually been recovered from the second accused. In so far as confession statement and also recovery of yellow bag, marked as M.O.1 is concerned, witnesses have been examined. Therefore, their evidence remained intact. The recovered property were subjected to analysis and subjected to forensic examination. P.W.21 Analyst has categorically spoken that it contains poisonous substance and also ethyl alcohol.
17. All these would indicate the fact that it was the second accused, who has actually served and distributed the arrack to all the deceased. Since he has no intention to cause death, the Court has found him not guilty under Sections 302 and 328 I.P.C. The acts of the second accused as could be seen above by the true fact would attract the penal provisions of Sections 4(1)(A) and 4(1)(i) of the Tamil Nadu Prohibition Act. Therefore, the sentence of life imprisonment, which, in the opinion of the Court, does not require any disturbance. The conviction and sentence imposed on second accused is sustained.
18. Hence appeal filed by second accused in Crl.A. No.745 of 2006 is dismissed and the appeal filed by the first accused in Crl.A. No.988 2005 is allowed and the first accused is acquitted from the charges.
(M.C.J.) (M.V.J.)
14.08.2008
Index :- Yes
Internet:- Yes
ssa.
To
1. The District Munsif-cum-
Judicial Magistrate,
Thittagudi.
2. The Additional District Court
(Fast Track Court No.III),
Vridhachalam.
3. The Public Prosecutor,
High Court, Madras.
M. CHOCKALINGAM, J. &
M. VENUGOPAL, J.
ssa.
Crl.A. Nos.988 of 2005 and
745 of 2006
14.08.2008