BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 04/03/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU CRL.A.(MD) No.515 of 2007 CRL.A.(MD) Nos.525, 641 and 656 of 2007 1.S.Jimmi Pandi 2.Muthaiah @ Prabhu .. Appellants in CA 515/2007 Veerapandi @ Bathri Pandi .. Appellant in CA 525/2007 Kali alias Kaliappan .. Appellant in CA 641/2007 Kannan alias Kuttai Kannan .. Appellant in CA 656/2007 vs The State rep. by The Inspector of Police Silaiman Police Station Madurai (Crime No.181/2005) .. Respondent in
all appeals
Criminal appeals preferred under Sec.374 of Cr.P.C. against the judgment
of the Principal District and Sessions Judge, Madurai, made in S.C.No.126 of
2007 dated 30.8.2007.
!For Appellants in
CA 515/2007 … Mr.A.P.Muthupandian
For Appellant in
CA 525/2007 … Mr.Ananth C.Rajesh
For Appellant in
CA 641/2007 … Mr.V.S.Balakrishnan
For Appellant in
CA 656/2007 … Mr.A.Jeyaram
^For Respondent … Mr.V.Kasinathan
Additional Public Prosecutor
:COMMON JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)
This judgment shall govern these four appeals in C.A.No.515/2007 by A-1
and A-5, C.A.No.525/2007 by A-4, C.A.No.641/2007 by A-6 and C.A.No.656/2007 by
A-2.
2.All the above appeals challenge the judgment of the Principal Sessions
Division, Madurai, made in S.C.No.126 of 2007 whereby these appellants stood
charged i.e., A-1 to A-5 under Sec.148 IPC, A-6 under Sec.147 IPC and A-1 to A-6
under Sec.302 read with 34 IPC.
3.On trial, A-1 to A-5 were found guilty under Sec.148 IPC and awarded one
year Rigorous Imprisonment. A-6 was found guilty under Sec.147 IPC and
sentenced to undergo six months Rigorous Imprisonment. A-1 to A-6 were found
guilty under Sec.302 read with 34 IPC and awarded life imprisonment along with a
fine of Rs.1000/- and default sentence.
4.Necessary facts for the disposal of these appeals can be stated thus:
(a) P.W.1 is the elder brother of the deceased Mahalingam, while P.W.2 is
the brother-in-law. The deceased was running a parota stall in Indira Nagar,
LKB Nagar Bus Stop. On 20.2.2005, the marriage function of P.W.1 was held. On
13.3.2005, the close relations of P.W.1 came to his house to attend certain
customary function. After the function was over, there was a quarrel between A-
1 and the deceased. At that time, A-1 threatened the deceased “you would live
or I would live”. P.W.1 was informed about the same. The matter was not
brought to the notice of the police since it was a function in P.W.1’s house,
and the incident has taken place at that time.
(b) On 14.3.2005 at about 9.45 p.m., P.Ws.1 and 2 and the deceased went to
the parota stall of the deceased for cleaning work since the shop was kept
closed for a few days earlier. At about 10.30 p.m., while the deceased was just
sleeping on a cement pial situated at Saravana Telephone Boothe, both P.Ws.1 and
2 were actually doing cleaning work. At that time, A-1 to A-6 and others armed
with deadly weapons, came over there and began to attack the deceased. P.Ws.1
and 2 on hearing the distressing cry, came out. Immediately, all the accused
attempted to stop a running bus and tried to get in; but, they could not. At
that time, the deceased who was attacked by the accused, woke up, and on seeing
this, they came back and all of them attacked him indiscriminately. He
succumbed to the injuries.
(c) P.W.1 proceeded to Silaiman Police Station, the respondent herein, and
has given an oral complaint to P.W.14, the Sub Inspector of Police, which was
reduced into writing. The said complaint is Ex.P1, on the strength of which a
case came to be registered at 23.45 hours in Crime No.181 of 2005 under Sections
147, 148, 306 and 302 of IPC. The printed FIR, Ex.P31, was sent to the Court
and reached the Magistrate by 1.30 a.m. A message was given through VHF to the
Inspector of Police concerned.
(d) P.W.15, 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 in
the presence of witnesses and prepared an observation mahazar, Ex.P32, and a
rough sketch, Ex.P33. The photographs were caused to be taken. M.O.9,
bloodstained earth, and M.O.10, sample earth, and other material objects were
recovered from the place of occurrence under a cover of mahazar. Then, the
Investigator conducted inquest on the dead body of Mahalingam in the presence of
witnesses and panchayatdars and prepared an inquest report, Ex.P35. A
requisition, Ex.P2, was given to the hospital authorities for the conduct of
autopsy on the dead body.
(e) P.W.3, the Professor of Forensic Medicine and District Police Surgeon,
Madurai Medical College, on receipt of the said requisition, conducted
postmortem on the dead body of Mahalingam and has given a postmortem
certificate, Ex.P3, wherein he has opined that the deceased would appear to have
died of shock and haemorrhage due to external injuries No.1 to 9 and their
corresponding internal injuries and cumulative effect of all other injuries 10
to 12 hours prior to autopsy.
(f) On 24.3.2005, the Investigator arrested A-1, A-5, A-6 and one
Manimaran in the presence of P.W.4, the V.A.O., and another witness. A-1 came
forward to give a confessional statement. The admissible part is marked as
Ex.P4, pursuant to which, he produced a knife, which was recovered under a cover
of mahazar, Ex.P6. A-5 also gave a confessional statement, pursuant to which he
produced M.O.16, knife, and M.O.7 series, wooden logs, which were recovered
under a cover of mahazar, Ex.P7. Pending investigation, the Investigator also
arrested one Kannan and he was also taken to custody.
(g) P.W.16, the Inspector of Police, took up further investigation. He
came to know that A-3 and A-4 were actually arrested in connection with Crime
No.1242/2005 of Teppakulam Police Station, and they were in custody. They were
also produced before the Court under P.T. warrant, and police custody was asked
for. It was also ordered. A-3 gave a confessional statement, which was
recorded. The admissible part is marked as Ex.P8, pursuant to which he produced
a patta knife, which was recovered under a cover of mahazar. A-4 has also given
a confessional statement, which was recorded. The admissible part is marked as
Ex.P9. He produced a patta knife, which was recovered under Ex.P10, the
mahazar. On 23.5.2005, the accused Murugesan was arrested, and he gave a
confessional statement, pursuant to which a knife produced by him, was
recovered.
(h) The Investigator gave a requisition to the Court for the conduct of
identification parade. He took A-2, who was arrested in Crime No.1637/2005 of
Thideer Nagar Police Station, to police custody. A-2 has also given a
confessional statement, the admissible part of which is marked as Ex.P13. He
produced an aruval, which was recovered under a cover of mahazar, Ex.P14.
(i) Pursuant to the requisition made, P.W.13, the Judicial Magistrate
No.III, Madurai, conducted the test identification parade on 8.4.2005, where
P.Ws.1 and 2 participated. At that time, P.W.1 identified A-5 and A-6 and one
Manimaran, and P.W.2 also identified Manimaran, the absconding accused. On
7.6.2005, he conducted the identification parade for the second time. At that
time, P.W.1 identified A-3 and A-4 and one Murugesan. On 14.7.2005, for the
third time, identification parade was conducted in which P.W.1 identified A-2.
Those identification parade proceedings were marked as Exs.P26, P28 and P30
respectively. Following the same, all the material objects recovered from the
place of occurrence and from the dead body, were sent for chemical analysis.
Accordingly, they were subjected to which resulted in two reports namely the
Chemical Analyst’s report, Ex.P17, and the Serologist’s report, Ex.P18. On
completion of investigation, the Investigator filed the final report.
5.The case was committed to Court of Session, and necessary charges were
framed. In order to substantiate the charges, the prosecution examined 16
witnesses and also relied on 35 exhibits and 17 material objects. On completion
of the evidence on the side of the prosecution, all 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 Court below heard the arguments advanced,
took the view that the prosecution has proved the case beyond all reasonable
doubts, and found the appellants guilty. Hence, these appeals at the instance of
the appellants before this Court.
6.Advancing arguments on behalf of A-1 and A-5, the learned Counsel
Mr.A.P.Muthupandian would submit that the prosecution has miserably failed to
put forth any evidence worth mentioning; that the occurrence has taken place on
14.3.2005 at about 10.30 p.m.; that at that time, since it was dark, there
should have been light to witness the occurrence; that even the sketch prepared
by the Investigator, would indicate that there was a light, but, there was no
evidence to show that the light was burning; that even as per the prosecution
case, the accused immediately after attacking the deceased, made an attempt to
board a running bus; but, they could not, and when the deceased woke up, again
they came back and attacked him; that this fact was not mentioned in Ex.P1, the
earliest document; that further the prosecution attempted to prove the charges
levelled against the appellants by examining P.Ws.1, 2, 5 and 6 as occurrence
witnesses; that out of these witnesses, P.Ws.2, 5 and 6 have turned hostile, and
hence, it was of no use to the prosecution; that the prosecution had no other
evidence to rely on except P.W.1; that P.W.1 could not have been an eyewitness
to the occurrence at all for more reasons than one; that the fact that the
accused after attacking the deceased attempted to board a running bus; but, they
could not, and when the deceased woke up, they came back and attacked him was
not mentioned in Ex.P1 by P.W.1; that under the circumstances, the document
itself is highly doubtful; that further, the prosecution came with the specific
motive to state that A-1 entertained a suspicion that it was the deceased who
was the informant to police regarding his criminal activities, and hence, he
attacked all of them; and that this motive was nowhere found in the FIR.
7.Added further the learned Counsel that as far as all other accused are
concerned, their names are not found in the FIR; that what is mentioned therein
was they are aged between 18 and 25; that no physical features are mentioned
therein; that at random, it is mentioned as 18 to 25; that in the instant case,
in Ex.P1, the report, it is mentioned as 4 or 5 persons excepting A-1; but, at
the time of evidence, P.W.1 has stated 8 or 9 persons as assailants; that it is
a thorough deviation from Ex.P1; that all would indicate that P.W.1 could not
have been an eyewitness to the occurrence; that he has not even narrated the
overt acts attributed to them, in Ex.P1; but, at the time of evidence, he
developed such a story; that at the time of Ex.P1 or the statement under Sec.161
Cr.P.C., he has not mentioned any names at all; but, at the time of evidence, he
has completely developed and gave full narration of all the accused with
father’s name, all the weapons wielded at the time of occurrence, and also the
individual overt act; that these are all developments and improvements made at
the time of evidence, and thus, the evidence of P.W.1 could not be believed;
that it is true that identification parade was conducted; that as regards these
accused, some of them have already been arrested in connection with some other
crime, and they were actually in custody, and they were all produced under P.T.
warrant; that in view of the same, there is all possibility for the witnesses to
see them before they identified before the Judicial Magistrate at the time of
the identification parade; and hence, that cannot be taken to be as evidence
which is pointing to the guilt of the accused; that under the circumstances, the
evidence of P.W.1 is highly improbable and unbelievable; that it would be highly
unsafe to sustain a conviction on the solitary testimony of P.W.1, and hence,
they are entitled for acquittal.
8.As regards A-5, the learned Counsel would submit that according to the
prosecution, he had a knife, but not wielded, and thus, he has not caused any
injury; that all the points which are available for the other accused, are
equally available to him, and hence, he is also entitled for acquittal.
9.Advancing arguments on behalf of A-4, the learned Counsel would submit
that on 24.3.2005, A-1 was arrested; that he is alleged to have given a
confessional statement wherein he has pointed out all other accused; that A-4
was arrested in connection with a case in Crime No.1242/2005; that he was in
custody; that he was actually taken for the purpose of identification parade on
7.6.2005, and thus, there was a delay of 30 days; that the delay caused in the
identification would nullify the result of the same; that no weapon was also
recovered from him; that no weapon was attributed to him or held by him; that
the prosecution had no case against A-4, and hence, he is entitled for
acquittal.
10.The learned Counsel appearing for A-6 would submit that P.W.1 was the
only witness; that he knew A-6; and that if A-6 is really known to him, there
was no need for any identification parade. Added further the learned Counsel
that according to the prosecution, he was having a stick; but, there was no
corresponding injury found; that all the injuries noted in the postmortem
certificate, would clearly reveal that those injuries were caused by a knife;
that if to be so, the stick was not wielded at all; that P.W.1 was the only
witness, who has categorically spoken to the fact that there were six weapons
which were produced before the Court; that all these six weapons were held by
all those accused before the Court; that if to be so, even according to P.W.1,
A-6 was not holding a knife; that in the FIR, excepting A-1, it is mentioned as
4 or 5 persons, and hence, A-6 could not have been present at the place of
occurrence; that originally, the charge against A-6 was under Sec.147 IPC; that
under the circumstances, it is highly doubtful whether A-6 could have been
present in the place of occurrence at all, and hence, he is to be acquitted.
11.The learned Counsel for A-4 would further submit that P.W.14, the Sub
Inspector of Police, has given evidence that P.W.1 came to the police station
and gave an oral complaint, and the same was reduced into writing; but, P.W.1
would state that he gave complaints both by oral and also in written form; that
the same would cast a doubt in Ex.P1; that as regards the test identification
parade, there was all possibility for P.W.1 to see the accused before the
accused were shown to him in the parade; that the entire narration of the
accused by P.W.1 in evidence before the Court was actually contra to the
physical features, and hence, the evidence of P.W.1 could not be relied, and
under the circumstances, he is entitled for acquittal.
12.The learned Counsel appearing for A-2 would submit that he never gave
any confession as alleged by the prosecution; that the test identification
parade was conducted after the alleged confessional statement was taken in the
police custody; that the witnesses could not identify him at the identification
parade; that under the circumstances, the identification proceedings should not
have been believed; that there is no specific description about the accused
either in the FIR or in the statement under Sec.161 Cr.P.C., and hence, he is
entitled for acquittal.
13.The Court heard the learned Additional Public Prosecutor on the above
contentions and made its anxious consideration on the submissions made.
14.It is not a fact in controversy that in an occurrence that took place
at 10.30 p.m. on 14.3.2005, the deceased Mahalingam was attacked brutally, and
as a result, he died instantaneously at the spot. After the registration of the
case by the Sub Inspector of Police, the Investigator proceeded to the spot and
made an inspection and after the inquest, he made a requisition to the hospital
authorities for postmortem. The Doctor, P.W.3, after doing the postmortem, has
given his opinion in Ex.P3, the postmortem certificate, and also deposed before
the Court that the deceased would appear to have died due to cumulative effect
of all the injuries both external and corresponding internal, sustained. The
fact that Mahalingam died out of homicidal violence was never disputed by any
one of the appellants. Hence, it could be recorded so.
15.In order to substantiate the charges that all the accused before the
trial Court along with three others in furtherance of the common object, armed
with deadly weapons, proceeded to the spot and attacked the deceased
indiscriminately, the prosecution marched P.Ws.1, 2, 5 and 6 as occurrence
witnesses. It is true that out of those four witnesses, P.Ws.2, 5 and 6 turned
hostile. Thus, their evidence was not available to the prosecution. What was
left for the prosecution was the uncorroborated testimony of P.W.1. True it is,
P.W.1 was a close relative of the deceased. Merely because, he was a close
relative, his evidence cannot be discarded; but, the Court has to apply the test
of careful scrutiny. It is also further to be pointed out that merely because
there is a solitary testimony of P.W.1, the case of the prosecution cannot be
rejected, if his evidence has inspired the confidence of the Court. Even after
applying the both the tests as stated above, the Court is thoroughly satisfied
that the prosecution has brought home the guilt of A-1, A-2, A-4 and A-5 as
narrated below.
16.P.W.1 has categorically stated that following his marriage on
20.2.2005, there was a function that had taken place on 13.3.2005, where the
relatives were to meet on that day; that after it was over, at that time there
was a quarrel between the deceased and A-1, of which he (P.W.1) was not a direct
witness; that thereafter, that night, P.Ws.1 and 2 and the deceased and others
went over to the parota stall which he was running, for the purpose of cleaning
the same since it was locked for a few days and to keep it open the next day;
that at that time, the deceased was sleeping outside the shop in a cement pial;
that after hearing the distressing cry of the deceased, they came out and saw
the accused attacking the deceased. He would further state that after seeing
these witnesses, the accused tried to fly away by stopping a bus and boarding
into it; that at that time, the deceased who was attacked by them, woke up; that
on seeing this, they immediately came back and attacked him indiscriminately,
and as a direct consequence, he succumbed to the injuries. Now, the earliest
document which has come into existence, was Ex.P1. P.W.14 is the Sub Inspector
of Police, who reduced into writing the oral complaint given by P.W.1, and
within a short span of about half an hour, the FIR has come into existence. It
has also reached the Magistrate in the City of Madurai at about 1.30 a.m. All
would first go to show that immediately after the occurrence, a case came to be
registered; that P.W.1 as an eyewitness has given the narration; and that the
FIR has also reached the Magistrate in point of time. This would speak about
the truth of the prosecution case.
17.It remains to be stated that P.W.1, when he gave the oral complaint to
P.W.14, the Sub Inspector of Police, has mentioned the name of A-1 and would
further add 4 or 5 persons who are aged between 18 and 25. Following the
report, the statement of P.W.1 was recorded by the Investigator under Sec.161 of
Cr.P.C. In those statements, P.W.1 has stated only the name of A-1 and 4 or 5
persons, and he has nowhere mentioned the names of the other accused. This
would go to show that what was the statement given by P.W.1, was truth and
nothing but truth. Had it been the intention of P.W.1 to implicate any one of
the accused falsely, there was no impediment for him to put the names or
description of the other accused at the earliest, but has not done so. Now, at
this juncture, it is pertinent to point out that even as per the FIR, the
assailants were A-1 and 4 or 5 persons. Further in the instant case, except A-
1, they were all to be identified. A requisition was made pending the
investigation, for an identification parade to be conducted. The identification
parade was conducted by P.W.13, the Judicial Magistrate No.III, Madurai. On
three days, identification parade was held. First identification parade was
held on 8.4.2005, where P.W.1 identified A-5, A-6 and one Manimaran, and P.W.2
identified the said Manimaran. The second identification parade was conducted on
7.6.2005, where P.W.1 has categorically identified A-3, A-4 and one Murugesan.
Third identification parade was conducted on 14.7.2005, where P.W.1 has
identified A-2. Thus, P.W.1 has identified the accused persons who are all
either arrested or taken under P.T. warrant as they are already in custody. The
absconding accused were also identified in the identification parade. It is
pertinent to point out that A-3 and A-4 who were involved in other criminal
cases, were in custody. It remains to be stated that their involvement in other
criminal cases are subsequent in point of time, and they were also identified.
It remains to be stated that the identification parade has taken place within a
reasonable time.
18.The learned Counsel for the appellant/A-4 brought to the notice of the
Court that the identification parade in respect of A-4 was conducted after a
period of 30 days. This Court is unable to notice any delay or unreasonable
delay. No material is placed to accept the contention that the identification
parade should not be given effect. As could be seen from the identification
parade proceedings, the procedural formalities have been strictly followed, and
P.W.1 has identified the above accused.
19.Added further, following the identification parade, the weapons of
crime have been recovered. It is true that as far as A-4 was concerned, no
weapon has been recovered. Nowhere the law mandates that in a given case like
this, the weapon of crime should be recovered. The non-recovery of the weapon
of crime will not in any way affect the prosecution case in view of the settled
propositions of law. Further, in the the case on hand, the recovery of the
weapons of crime from the respective accused pursuant to the confessional
statements made, is a strong circumstance added to the other circumstances.
Now, the evidence of P.W.1 coupled with the identification parade which was
conducted in a reasonable time from the time of the arrest, and also the
recovery of the weapons of crime, in the opinion of this Court, would suffice.
20.Now, at this juncture, the contentions put forth by the learned Counsel
for the appellants have got to be considered. In the instant case, the
contention put forth that P.W.1 could not have seen the occurrence at all cannot
be accepted. Merely because in the FIR, he has mentioned 4 or 5 persons apart
from the named A-1, and at the time of evidence, he has stated 7 or 8 persons,
it did not mean that he had not seen the occurrence. It is true that he has not
attributed any overt acts in Ex.P1. It is quite natural that in a given case
like this, when the occurrence has taken place at about 10.30 p.m., and that
too, a close relative was being attacked with deadly weapons, if P.W.1 was able
to narrate the entire incident attributing the overt acts to each and every
accused with the weapons, that would be nothing but dramatical, and it will be
highly improbable and unbelievable. But, P.W.1 has stated that they
indiscriminately cut the deceased. In the opinion of this Court, it would not
in any way shake the truth of the prosecution case.
21.The other contention put forth by the learned Counsel that motive part
is not mentioned there is of no consequence for the simple reason that P.W.1 was
not at all present at the time when there was a quarrel between A-1 and the
deceased, and hence, the non-mention of the motive in Ex.P1 or at the time when
the evidence was given before the Court, will not affect the truth of the
prosecution case.
22.Apart from the above, the medical opinion canvassed by the prosecution
through P.W.3, the Doctor, and the postmortem certificate, stood fully
corroborated by the evidence of P.W.1. Though the prosecution comes with the
solitary evidence of P.W.1, the Court has to accept his evidence since it
inspired the confidence of the Court, and it has got to be acted upon as rightly
done by the lower Court.
23.As far as A-6 is concerned, this Court is able to see force in the
contention put forth by the learned Counsel for the appellant/A-6. As could be
seen from the FIR, the assailants were excepting A-1, 4 or 5 persons. According
to the prosecution, A-6 was having a stick in hand. According to P.W.1, it was
not wielded. That apart, no corresponding injury is noticed in the postmortem
certificate. P.W.1 at the time of the evidence, has categorically deposed that
six weapons were recovered and were placed before the Court, and those weapons
were actually held by A-1 to A-6 who were before the Court. But, there was no
recovery of any stick either or it was placed before the Court. What were
recovered and placed were only patta knives and aruval. Under the
circumstances, it is highly doubtful whether A-6 could have been present in the
place of occurrence at all. Taking into consideration the evidence of P.W.1 in
that regard and giving effect to the reasonable doubts that are entertained,
this Court is of the considered opinion that as far as A-6 is concerned, he has
got to be relieved of the charges, and hence, he is entitled for acquittal.
24.For the reasons stated above, as regards A-1, A-2, A-4 and A-5, the
judgment of the trial Court is confirmed. As far as A-6 is concerned, the
judgment of conviction and sentence passed by the lower Court, is set aside, and
he is acquitted of the charges. The bail bond executed by A-6, shall stand
terminated, and the fine amount if any paid by him, will be refunded to him.
25.In the result, C.A.No.641 of 2007 is allowed. C.A.Nos.515, 525 and 656
of 2007 are dismissed.
nsv/
To:
1.The Principal Sessions Judge
Madurai
2.The Inspector of Police
Silaiman Police Station
Madurai
(Crime No.181/2005)
3.The Additional Public Prosecutor
Madurai Bench of Madras High Court