Complainant in all appeals Criminal appeals preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional Sessions Judge, Chennai at Poonamallee, made in S.C.No.311 of 2004 dated 8.12.2005.
For Appellants : Mr.K.Kannan in CA 39/2006 Mr.T.K.Sampath in CA 47/2006 Mr.S.Doraisami in CA 85/2006 Mr.R.Sankarasubbu in CA 92/2006 Mr.V.Gopinath Senior Counsel for Mr.L.Mahendran in CA 165/2006 For Respondent : Mr.N.R.Elango Additional Public Prosecutor COMMON JUDGMENT (Judgment of the Court was made by M.CHOCKALINGAM, J.) All these criminal appeals namely C.A.Nos.39, 47, 85, 92 and 165 of 2006 concentrate in challenging a judgment of the Additional Sessions Division, Chennai at Poonamallee, in S.C.No.311 of 2004 whereby the appellants, six in number, stood charged, tried and found guilty as follows:
ACCUSED CHARGES FINDING PUNISHMENT A-1 to A-6 120(B) IPC Deleted A-2 to A-5 A-1 & A-6 364 IPC 120 (B) r/w 364 IPC Guilty 5 years RI with a fine of Rs.2000/- and default sentence A-2 to A-4 A-1, A-5 & A-6 302 IPC 120 (B) r/w 302 IPC Guilty Life imprisonment with a fine of Rs.2000/- and default sentence A-1 to A-5 A-6 201 IPC 120 (B) r/w 201 IPC Guilty 5 years RI with a fine of Rs.2000/- and default sentence
2.Necessary facts for the disposal of these appeals can be stated thus:
(a) P.W.2 the eldest sister of the deceased Prasad Sebastin, and P.W.1, the husband of P.W.2, were residing at Madras. P.W.1 was employed in the Government Secretariat. The deceased Prasad Sebastin, the brother of P.W.2, was a native of Punalur in the State of Kerala. He was an active member of CPI(M) and was also the Opposition Leader of Punalur Municipality. Originally, he was a resident of Madras. He worked at Britania Biscuit Company at Madras when he was staying with his father Mr.Rozario, an Ayurvedic Doctor.
(b) On 25.5.2003, Sebastin came to Madurai in a Jeep of Rural Cooperative Agricultural Development Bank of which he was the President during that time. Then he boarded a train to Chennai. On the morning of 26.5.2003, he went to the house of P.W.2 at Door No.7/7, Peters Colony, had breakfast and went outside to see a Financier, who advanced moneys to one Navasath to purchase a motor vehicle. He did not return that day, but phoned to P.W.2 that he would stay in his friend's house. The next morning that was on 27.5.2003, he came to the house of P.W.2. After breakfast, he went outside telling that he was to meet a Financier, but on the night of 27.5.2003, he did not return. Since he did not return to Punalur as per the original plan on 29.5.2003, and there was no report from him and also he did not return for a few days, P.W.2 spoke to her mother at Punalur. Her mother replied that he did not come to Punalur also. Hence P.W.1 approached D2 Anna Salai Police Station and gave Ex.P1, the report.
(c) P.W.60, the Sub Inspector of Police, attached to the respondent police station, on the strength of Ex.P1, the report, registered a case in Crime No.521/2003 under the caption 'man missing'. The printed FIR in that regard is marked as Ex.P96. Then P.W.60 took up investigation and proceeded to the spot. He enquired both P.W.1 and P.W.2 and recorded their statements. He noted the Caller I.D. Phone used by P.W.1, and further noticed that Prasad Sebastin has contacted P.W.2 on 26.5.2003 from phone No.24510087 and on 27.5.2003 from phone No.24512645. He called police Photographer, P.W.3, and took M.O.2 series in respect of those numbers as found in the Caller I.D. The Caller I.D. Phone is marked as M.O.1., while the series of the photographs are marked as M.O.2. P.W.60 deputed police personnel to find out these numbers as found in the Caller ID. Then he examined P.W.5 Bharath, Susil, the Financier at T.Nagar and Jayachandran, P.W.24, a close friend of the deceased, and recorded their statements.
(d) When the friends of Sebastin came to know about his missing, they phoned to P.W.1 on the night of 30.5.2003. Thereafter, they met P.W.1 at Chennai. They also met Jayachandran. On 31.5.2003 at about 10.30 A.M., one Titus, a friend of the deceased, contacted P.W.1 over phone and requested her to come to Kottivakkam with the police officials. He also further stated that Sebastin was suspected to have been kept in a house secretly. P.W.1 accompanied by P.W.23 and also P.W.60, the Sub Inspector of Police, went to the house at Kottivakkam and found Jayachandran and friends of Sebastin. After several knockings, the door was opened by A-1 Anand. When enquired, he pleaded innocence about the deceased. He also stated that the owner of the house was to Tuticorin with his wife. But, Jayachandran informed that the house belonged to one Indira, A-6. At that time, a courier tapal addressed to Indira Suresh Babu, sent by Suresh Babu from Kerala was received. The tapal contained a cheque for Rs.90,000/-. When P.W.60 questioned, A-1 did not give direct answers. Then, a suspicion arose on the conduct of A-1. Then P.W.60 arranged for surveillance over the movements of A-1. Various steps were taken to trace Prasad Sebastin by issuing notice and passing on information through VHF.
(e) In the meanwhile, on a complaint given by one Suresh Kumar, an Advocate and the friend of Prasad Sebastin, a case in Crime No.240 of 2003 was registered by P.W.59, the Sub Inspector of Police at Punalur, Kerala, on 1.6.2003, for man missing. After doing the preliminary enquiry, he visited Chennai. He met P.Ws.1 and 2. On coming to know that a case was already registered by D2 Anna Salai Police Station, he went back to Kerala and filed the final report before the Judicial Magistrate concerned.
(f) Continuing with the investigation in Crime No.521/2003 of D2 Anna Salai Police Station, P.W.60 enquired Prakas, the brother of Prasad Sebastin and Gurudas on 1.6.2003, and recorded their statements. P.W.14, the STD Booth owner in Kottivakkam and A-6 were also enquired, and their statements were recorded. On 3.6.2003, a search was made in the Mortuary of Government Hospital. On 7.6.2003, P.W.60 enquired one Rajendran, the Special Branch Sub Inspector of Thiruvallur District, and came to know that a case has been registered in Thiruvelangadu Police Station, a few days ago in Crime No.163/2003 under Sec.174 Cr.P.C. on the basis of the complaint given by P.W.6, the Village Administrative Officer, in Ex.P4 on 5.6.2003 stating that a dead body of a male was found.
(g) P.W.57, the Sub Inspector of Police, who took up the investigation in Crime No.163/2003 as found in Ex.P88 FIR, went to the place of occurrence and prepared a rough sketch, Ex.P89, and also an observation mahazar, Ex.P6, in the presence of P.Ws.7 and 8. Then P.W.57 conducted inquest as found in the report, Ex.P90, and secured M.O.38, plastic bottle, found near the dead body under a cover of mahazar, Ex.P5. Then the dead body was sent to the Government Hospital for the purpose of postmortem through P.W.11, the Head Constable. P.W.9, the Photographer, took photographs in various angles as found in M.Os.8 to 15, and also the negatives were marked as M.Os.39 to 46. At that time, the dead body was in a highly decomposed stage.
(h) P.W.51, the Assistant Surgeon, attached to the Government Hospital, Tiruvallur, on the requisition made, conducted autopsy and gave his finding in Ex.P57. To a question raised by the Investigating Officer, he gave the particulars as found in Exs.P58 to P63. Then, the dead body was also buried in Periyakuppam Burial Ground.
(i) P.W.60, who was continuing with the investigation, compared the photographs in M.Os.8 to 15 along with M.O.50, the photographs of Mr.Prasad Sebastin, and they were found to be materially tallying. Thereafter, P.W.60 came to know that it became evident that Sebastin was kidnapped and was also done to death.
(j) In the meanwhile, the investigation was taken up by P.W.61, the Inspector of Police, who enquired the witnesses on 7.6.2003 and recorded their statements. In order to ascertain the cause of death and to further ascertain the identity of the victim through scientific methods, P.W.61 thought it fit to make a request for exhumation with the Tahsildlar. Accordingly, on 9.6.2003, at Periyakuppam Burial Ground in the presence of P.W.10, the Tahsildar, P.W.47, the scientific assistant, P.W.54 Dr.Durairaj and in the presence of police officials, the dead body of the male was exhumed from the earth. The brothers and friends of Prasad Sebastin after seeing the corpus identified that it was that of Sebastin. Dr.Durairaj removed the head, M.O.59, and left femur, M.O.60, from the dead body, and they were properly packed and preserved by P.W.47, the expert from Forensic Science Laboratory.
(k) P.W.61 enquired P.W.10, the Tahsildar, and other witnesses and recorded their statements. P.W.10, the Tahsildar, in her proceedings marked as Ex.P7, recorded the events happened during the course of exhumation.
(l) On 12.6.2003, P.W.15 Shankar and P.W.19 Arumugam reported to P.W.61 Investigator, to have seen the person in the photograph shown to them. Their statements that at about 6.30 A.M. on 28.5.2003, three identifiable persons forcibly pushed another person into TATA Sumo Car bearing registration No.TN 02 D 4462 and kidnapped; that the same car was also followed by another person in a Hero Honda Motorcycle; and that the motorcyclist collected a purse and papers fell on the floor and followed the four wheeler were recorded.
(m) On enquiry from the City Traffic Police, P.W.61 came to know that the TATA Sumo Car belonged to one Gilbert living at No.3 Adiyaman Street, Manavala Nagar. The Investigating Officer immediately approached Gilbert and enquired him. He replied that his brother Sanjay Sudanthiranathan shown as A-5, was driving the vehicle, and it was Anand A-1 residing at Sevvaipet hired the car a few days ago to go to Chennai. When A-5 was enquired, he came forward to give a confessional statement voluntarily. The same was recorded in the presence of Shankar and P.W.19 Arumugam. The admissible part of the confessional statement is marked as Ex.P100. Pursuant to the confession made, the case was altered to
Sections 363,302,201 r/w 120(B) of IPC. The amended FIR Ex.P99 was despatched to the Judicial Magistrate concerned. Following the confessional statement, TATA Sumo Car bearing Registration No.TN 02 D 4462 was seized under Ex.P12 mahazar. Then A-5 took the Investigator to the New Colony in Kottivakkam and identified A-2 who was arrested the very day. He came forward to give a confessional statement voluntarily. The same was recorded in the presence of witnesses and the admissible part is Ex.P101. Equally, A-4 was arrested on the very day at about 8.00 P.M. A-3 was also arrested. He came forward to give a confessional statement voluntarily. The admissible part is Ex.P102.
(n) The Investigator examined P.W.25, Selvakumar, a Traffic Police Constable, who gave a statement that he saw the deceased and A-2 to A-5 in the TATA Sumo Van on the particular day. P.W.25 identified the accused and the person who was kidnapped as Prasad Sebastin on seeing the photograph. Then the Investigator went to Thiruvanmiyur and Kottivakkam, and the scene of occurrence was identified to him by P.W.13 and one Manoharan. An observation mahazar and also a rough sketch were prepared. They are marked as Exs.P8 and P9 respectively. The statements of P.Ws.19, 15, 25 and 13 were recorded.
(o) On the information by the other accused, A-1 was arrested at North Bazaar Railway Gate, Sevvaipet, at 7.00 A.M. in the presence of P.W.30, Revenue Inspector, and one Sundaram. A-1 came forward to give a confessional statement. The same was recorded, and the admissible part is Ex.P103. As per the statement, A-1 showed the route of kidnapping and also the places where the personal belongings of the deceased were thrown. On 18.6.2003, A-2 gave further confessional statement. Likewise A-4 also gave further confessional statement. The admissible part is marked as Ex.P104. Likewise, the further confessional statements of A-3 and A-5 were also recorded. At Pattarai Perumpudur, A-2 produced M.O.58 knife, which was seized under Ex.P38, mahazar. A-4 produced M.O.6, ash coloured full sleeve shirt, from the hiding place on the roadside which was secured under Ex.P39 mahazar. He also produced from a thorny bush on the roadside at Thiruthani Road near Kanagavallipuram, a black coloured jeans pant and a pair of grey coloured socks which were marked as M.Os.5 and 7 respectively. The accused were sent for judicial custody. The properties were sent to Court.
(p) In view of the seriousness of the case, the investigation was transferred to CB CID (Organised Crime Unit), Chennai East District, by the proceedings of the Director General of Police dated 16.7.2003.
(q) P.W.62, Sathyanarayan, the Deputy Superintendent of Police, CB CID, was nominated for the purpose by virtue of proceedings of the DGP under Ex.P109. The records relating to Thiruvelangadu Police Station in Crime No.163 of 2003 under Sec.174 of Cr.P.C. were handed over to P.W.62. Then P.W.62 inspected the places where from Prasad Sebastin was allegedly kidnapped and also where the dead body was found. He enquired all the witnesses. He collected information about A-1 to A-5. The statements of witnesses were recorded. Ex.P26 is the attendance register of the Italian Restaurant in which A-4 was allegedly working. A requisition was forwarded under Ex.P30 on 10.10.2003, with reference to phone number 28593186, the telephone of P.W.1's house. The same was provided by P.W.33, Divisional Engineer, BSNL, under Ex.P31. The call details of 9444126413 and 9444118099 for the months of May, June and July which belonged to A-4 and A-1 respectively, were received under Ex.P32. Equally, the printout of call details for the months of May and June 2003 relating to 9840054214 and 9840054216 were furnished by P.W.35, the Airtel Officer, which is marked as Ex.P33.
(r) Thereafter, the Investigator enquired the Doctors, Forensic Experts, Tahsildar and other witnesses and recorded their statements. On 20.8.2003, after appraisement of the evidence collected, the Investigator strongly believed that A-6 Indira was also behind the crime. He went to Kottivakkam and arrested her after informing the reasons for the arrest. She was brought to CB CID Office and was interrogated. Then the Investigator went to Kerala and enquired P.W.59, Abdul Razeed, the Sub Inspector of Police, Punalur, and recorded his statement. A requisition was placed before the learned Chief Metropolitan Magistrate for recording the statements of witnesses under Sec.164 of Cr.P.C. Accordingly, P.W.53, Vijaya Kanth, Judicial Magistrate, recorded the statements of the witnesses as found in Exs.P76 and P77. On completion of the investigation, the Investigating Officer filed the final report.
3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 62 witnesses and also relied on 111 exhibits and 62 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. On the side of the defence, one witness was examined as D.W.1 and 9 documents were marked. Apart from that, two Court documents were marked as Exs.C1 and C2. The trial Court heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt and hence found the appellants guilty and awarded punishment as referred to above. Hence these appeals at the instance of the appellants.
4.Advancing arguments on behalf of A-1, the learned Counsel would submit that the entire case rested upon the theory of conspiracy hatched up by A-1 and A-6; but, there is no evidence as to the meeting of A-1 along with the other accused on the previous night namely 27.5.2003 to hatch up a plan to do away with the deceased; that the only witness examined by the prosecution that he has seen A-1 with A-6 was P.W.15; that the evidence of P.W.15 could not be relied for the reasons that he has given different addresses; that he has categorically admitted that he was living at Peters Colony, Royapettah, 30 kilometers away from Kottivakkam; that the theatre where he is claimed to have employed is situated about 15 kilometers from the house of A-6 situated at Kottivakkam; that the Investigator has not even cared to examine the theatre owner where P.W.15 was employed during the relevant time; that he was actually involved in a case registered by D2 Anna Salai Police Station, and he has also claimed that he was already known to the Sub Inspector of Police of that particular police station; that his statement was recorded after a period of two months and that too, after the CB CID took up the case; and that all would go to show that his evidence has got to be rejected.
5.Added further the learned Counsel that in respect of conspiracy that was alleged to have been hatched up between A-1 to A-4, the witnesses examined were P.Ws.17 and 18; that P.W.17 has categorically admitted that he was examined by the CB CID 10 days after the occurrence; but, his statement was recorded on 21.7.2003 by P.W.62 under Sec.161 Cr.P.C.; that the statement also reached the Court on 21.11.2003, and thus it would be quite clear that he was a witness introduced later in order to speak to the factum of conspiracy; that equally, the very reading of the evidence of P.W.18 would clearly indicate that he could not have seen any one of the accused as claimed by him; that his statement was recorded on 17.6.2003, by P.W.61; but it has reached the Court on 8.7.2003; that the very reading of the entire evidence would clearly indicate that an incident of conspiracy as narrated by P.W.18 could not have happened at all, and thus the evidence of P.Ws.17 and 18 who were examined in order to prove conspiracy should have been rejected.
6.Added further the learned Counsel that the prosecution in order to prove the offence of kidnapping, had relied on the evidence of P.W.25, a traffic constable; that he has deposed that he was on duty at about 0730 hours at Ashok Pillar where the TATA Sumo Car, M.O.47, came in such a speed, and on seeing the vehicle crossing the line, he stopped the Car and found inside the deceased in the back seat, and on both sides A-2 to A-4 were sitting, and A-5 was found in the Driver's seat, and he found blood oozing on the ear of the deceased, and when he questioned, they replied that it was due to the closing of the door; that if really P.W.25 had seen the same as claimed by him, the deceased who was sitting on the back seat on seeing him, would have raised his voice or sought his help, but did not do so; that it is also improbable that even after seeing the blood oozing from the ear of the deceased, P.W.25 being a Police Constable, would not have allowed them to go free; and that the conduct of P.W.25 at that time would be indicative of the fact that he was actually a witness introduced by the police agency in order to strengthen its case of kidnapping.
7.The learned Counsel would further add that equally, P.W.26 was also a witness introduced by the prosecution; that according to P.W.26, he was sitting in front of a tea stall near Manavur Railway Station along with his friend, and at that time, a Car was stopped nearby, and it was A-5 who asked a tumbler of water, and his (P.W.26) friend Panneerselvam got water from the shop and handed over to him, and he took the water and handed over to A-5, and A-5 in turn handed over to the deceased, and at that time, A-1 came in a two-wheeler and shouted at A-5 to start the Car, and accordingly the Car was started, and the tumbler was thrown outside. Making comments over this evidence, the learned Counsel would contend that the statement of P.W.26 was recorded only on 27.7.2003 by P.W.62, the Investigating Officer, after CB CID had taken up investigation; that it is highly doubtful once the accused had taken a decision to finish him off, whether they would have stopped the Car and asked for a cup of water in a tea stall; that if really it has taken place, the deceased who was sitting in the Car would have naturally asked for a help from P.W.26 and that too, when 25 persons are sitting in the tea stall, but not done so; and that all would go to show that P.W.26 was a planted witness.
8.The learned Counsel would further add that there was a specific charge that it was A-2 to A-4 who stabbed the deceased to death; that the postmortem Doctor has given his opinion in Exs.P57 and P58, certificate and final opinion respectively, that in view of the advanced decomposition, no definite opinion could be given regarding the cause of death; that according to the prosecution, the body was originally thrown and after four days, it was found by P.W.6 and when it was brought to the notice of Thiruvalangadu police, a case came to be registered; that following the inquest, the dead body was subjected to postmortem by P.W.51, the Doctor, and thus the cause of death was not known; and that under the circumstances, the prosecution was unable to show that either A-2 to A-4 stabbed him or as a result of the injuries caused by stabbing, he died.
9.The learned Counsel would further add that no specific question was also put to A-2 to A-4 at the time when they were questioned by the trial Court under Sec.313 of Cr.P.C. that pursuant to the conspiracy, A-2 to A-4 caused injuries by stabbing, and as a result, the deceased died, and thus the prosecution has miserably failed either to prove the conspiracy or the nexus between A-1 and A-6 or the part played by A-2 to A-5, and hence A-1 is entitled for acquittal.
10.The learned Counsel arguing for A-2 and A-3 would submit that insofar as P.Ws.17 and 18, they have been marched to speak about the alleged conspiracy that had taken place between A-2 to A-4 during the night hours of 27.5.2003; that the very reading of the evidence as put forth before the trial Court would clearly indicate that such an incident could not have taken place at all; that one claimed to be a coconut vendor who was sleeping on the roadside and the other claimed to be a cook who was walking on the roadside; and that according to them, A-2 to A-4 actually parked their Car, and they were talking to each other and conspired to do away with the deceased, and it was overheard by them which could not be believed.
11.Added further the learned Counsel that the statements of these witnesses were recorded long afterwards; that apart from that, as far as P.W.19 was concerned, he has categorically spoken to the fact that he went to the police station, and he was actually employed by the police for two purposes one for arrest, confession and recovery and the other for statement as if he has seen the offence of kidnapping; that the evidence of P.W.19 would clearly show that on 12.6.2003, he did not go for work, and A-2 to A-4 were arrested at about 6.00 A.M. on 12.6.2003, and till 3.00 P.M. on that day, he was actually staying in his house, and afterwards he went to the police station, and he was enquired, and thereafter, he gave the statement; and that his statement recorded by the police under Sec.161 Cr.P.C., would clearly indicate that it was an after thought in order to strengthen the prosecution case.
12.The learned Counsel commenting upon the evidence of P.W.25, a Police Constable, would submit that he claimed that he was actually at the traffic, and he was on duty at about 7.30 A.M. on 28.5.2003, and at that time, the Car actually crossed the line, and hence the vehicle was stopped, and he happened to see all the accused persons; that according to his evidence, he was actually at the spot from 5.00 A.M. itself; and that the Diary produced by him would clearly indicate that he was actually posted for duty at 7.30 A.M.; but the evidence that he happened to be by 5.00 A.M. would indicate that it was a falsity.
13.Added further the learned Counsel that there are no documents to show that at that time P.W.25 was available at the spot, as claimed by him; that it is quite unnatural for a police constable to keep quiet, when he found the persons in a drunken mood and also blood oozing from the ear of the deceased, and he has not booked anybody or has not taken them; that it is further to be pointed out that his statement was recorded only on 12.6.2003; that if really such a matter came to his notice, one would expect him to immediately go to the police station and inform the same, but not done so; that as far as the evidence of P.W.26 was concerned, he was actually sitting in front of a tea stall, and at that time, the Car was actually stopped, and the Driver A-5 called for a cup of water, and one Panneerselvam sitting by his side got water, and he got water from Pannerselvam and handed over to A-5; that even from his evidence, it would be quite clear that the Car was stopped for a few minutes within which he could not have noticed what he has stated now; and that in a case like this, identification parade should have been conducted but not done so. The learned Counsel would further add that the statement of this witness was recorded only on 29.7.2003 and that too after the investigation was taken up by P.W.62, the Investigating Officer, attached to CB CID, but not before; that the same itself would indicate that he was a planted witness, and hence his evidence is liable to be rejected and if rejected, the prosecution had no further evidence to offer, and hence A-2 and A-3 are entitled for acquittal.
14.Advancing arguments on behalf of A-4, the learned Counsel would submit that there is no evidence forthcoming from the prosecution that prior to 28.5.2003, the date of occurrence, A-1 to A-4 were known to each other or they were found in the company of each other. Insofar as P.Ws.17, 18, 19, 25 and 26, the learned Counsel adopted the criticisms levelled by the other Counsel as stated above which are equally applicable to these witnesses.
15.The learned Counsel made much reliance on the evidence of P.W.31, who was the Watchman of a Restaurant where A-4 was employed during the relevant time. Pointing to Ex.P26, the attendance register, wherein Exs.P27 and P28, the entries, are found, the learned Counsel would submit that on the morning hours of 28.5.2003, A-4 has attended his work and has signed the register; that P.W.31 has categorically admitted at the time of the cross-examination that A-4 has attended his work, and at that time, the work has actually commenced by 9.30 A.M.; that the occurrence has taken place within the jurisdiction of Tiruvalangadu Police Station situated about 60 or 70 kilometers away, and that too at about 8.30 A.M.; that if to be so, it would be humanly impossible for a person to come back for his work; that under the circumstances, the plea of alibi put forth by the defence, should have been accepted by the trial Court; that in the instant case, identification parade was a must, but not conducted, and hence A-4 is entitled for acquittal.
16.Advancing arguments on behalf of A-5, the learned Counsel would submit that A-5 was called to be the Driver of M.O.47, TATA Sumo Car, which belonged to the brother of A-5; that the owner of the car was not examined; that any records in that regard were not produced; that how long A-5 was the driver of the Car was not made known; that as far as the presence of A-5 was concerned, P.W.17 has been examined; that according to him, he saw only for a few seconds; that in such a situation, identification parade was a must; that apart from that, when a question was raised by the trial Court whether it was dark, he stated that he was able to see, but through the headlight and that too for a few seconds; and that such evidence could not be relied upon at all.
17.Added further the learned Counsel that P.Ws.18 and 19 have not spoken about A-5; that as far as P.W.25 was concerned, his statement was recorded under Sec.161 Cr.P.C., after two months; that the fact that a police personnel who was actually on duty came to know such an incident and the statement was recorded after two months would go to show that it was only a cooked up evidence; that all would go to show that the prosecution has miserably failed to prove its case, and hence A-5 is entitled for acquittal in the hands of this Court.
18.Advancing arguments on behalf of the appellant/A-6 in C.A.No.165 of 2006, the learned Senior Counsel Mr.V.Gopinath would submit that the prosecution came forward with the specific allegation that A-6 and the deceased Sebastin fell in love with each other, but they could not marry in view of the objections raised by the family members, and Sebastin got married, and equally A-6 married Suresh Babu and was living at Madras during the relevant time, and Sebastin who was residing at Punalur, Kerala State, frequently visited Madras in order to meet her, and he also stayed over in her house and had sexual pleasure, and A-6 who developed intimacy with A-1, the driver-cum-paramour, wanted to get rid of the deceased, and according to her plan, a conspiracy was hatched up, and in execution of that conspiracy, she identified the deceased to A-1 on the morning hours of 28.5.2003, and following the same, A-2 to A-4 kidnapped him in a TATA Sumo Car driven by A-5 and A-1 also followed in a two wheeler, and Sebastin was done to death, and his dead body was thrown.
19.The learned Senior Counsel would further submit that though the prosecution has examined the family members, they have not spoken anything either about the love affair between the deceased and A-6, or they could not marry, or he developed illicit intimacy with A-6 at Chennai at any point of time; that it was not even evidence either to show that A-1 was either the Driver or the Manager of A-6 at any point of time; that the prosecution examined P.W.16, a neighbour of A-6, and also P.W.15 to speak to the factum of the company of the deceased with A-6 at about 5.00 or 5.30 A.M. on 28.5.2003; that the very reading of the evidence of P.W.16, the neighbour, would clearly indicate that he could speak that about 10 days prior to the occurrence, he saw a fair male person aged 40 or 45 in the garden of A-6, and at that time, A-6 was also present along with him; but he could not identify whether the person found in the photograph, M.O.50, was the person found in the company of A-6; and that under the circumstances, his evidence was of no use to the prosecution.
20.It is further submitted by the learned Senior Counsel that equally, the evidence of P.W.15 should not have been believed by the trial Court; that as per his evidence, on 28.5.2003 at about 5.00 A.M., he was pasting a poster on a wall nearby the house of A-6, and at that time, he found both A-6 and the deceased, and thereafter, the beard man was walking fast, and at that time, A-6 pointing to the deceased told A-1 to finish him off, and immediately A-1 made a phone call, and three persons came in a TATA Sumo Car, and they were A-2 to A-4, and the deceased was pushed inside the Car, and when the Car was started, A-1 also followed in a two wheeler; that P.W.15 has categorically stated that he was actually residing at Peters Colony, Royapettah, which is situated about 25 to 30 kilometers from Kottivakkam where the house of A-6 is situated; that he has categorically admitted that he was employed for the purpose of pasting the posters relating to Aravind Theatre which is situated about 15 kilometers from Kottivakkam; that he gave different addresses at different stages; that even the Court summons could not be served in the address which was claimed by him as Peters Colony; that he has further admitted that Kottaisamy, the Sub Inspector of Police, P.W.60, attached to D2 Anna Salai Police Station, was known to him; that actually a case was registered by the said police against him on the previous occasion; that under the circumstances, it is highly doubtful whether he went to the nearby house of A-6 at Kottivakkam; that it is further admitted by him that on 28.5.2003, a film by name Dham was screened at Aravind Theatre; but he actually pasted the poster for another film; and that it is also highly doubtful whether the person who belonged to Peters Colony at Royapettah and who was employed at Aravind Theatre situated about 15 kilometers away from Kottivakkam, could be employed for pasting the posters as claimed by him.
21.Added further the learned Senior Counsel that according to P.W.15, he was enquired by the police a week or 10 days after 28.5.2003; that P.W.15 voluntarily came forward to give a statement, and the same was recorded on 21.7.2003; that apart from the above, the statement of P.W.15 reached the Court on 25.11.2003; that it is pertinent to point out that the statement of P.W.15 was recorded by P.W.62 only after the case was taken up by the CB CID; and that all would go to show that his evidence was a created one in order to implicate A-6 to the case.
22.Added further the learned Senior Counsel that the witness P.W.15 has categorically admitted that he has given evidence in S.C.No.423/2004; that he has gone to the extent of stating that his signatures were obtained by the Court and the remaining part was filled thereafter; and that it is to be noted that it was the evidence of P.W.15 recorded by the Court in S.C.No.423/2004.
23.The learned Senior Counsel would further add that before the trial Court, the prosecution had relied on M.O.1, Caller ID Phone, and M.O.2, photographs, showing the entry to prove that on 26.5.2003, a call was received from a public booth and the same was made by the deceased to P.W.2 informing that he was staying in a friend's house and that he would come in the next morning; that P.W.14, the STD Booth owner, was examined; that equally on 27.5.2003, a call was received by P.W.2 from the cell phone which belonged to the husband of A-6 and the same was used by A-6 during the relevant dates; that these pieces of evidence should have been rejected by the prosecution; that the prosecution has claimed that two cell phone numbers 9840054214 and 9840054216 were actually owned by the husband of A-6 and those numbers were recorded in the Caller ID Phone attached to the landline of P.W.2; that P.W.35, the official from the BSNL, has categorically deposed that no evidence was produced to show that Suresh Babu, the husband of A-6, was the owner of those two cell phone numbers; that under such circumstances, even assuming these numbers were actually recorded in the Caller ID Phone of P.W.2, it could not convey that it was used by A-6; and that equally, the Investigator claimed that M.O.1 was the Caller ID Phone, and M.O.2 series was the photographs taken, and both these material objects were taken on 30.5.2003.
24.The learned Senior Counsel would further add that the first call was made on 26.5.2003 night hours and the second call was made on 27.5.2003; that both the days were Monday and Tuesday respectively; that when these photographs were taken, the numbers of the cell phones which were alleged to be used by A-6 were shown, but the day was shown in both the photographs taken for both the days 26.5.2003 and 27.5.2003, as Friday; that had it been true that these numbers were actually recorded on 26.5.2003 and 27.5.2003, the Monday and Tuesday should have been shown; that on the contrary, it showed only Friday, and thus it would be quite clear that these numbers were actually recorded on Friday and photographs were taken; and that this piece of evidence should be of no worth and should have been rejected by the trial Court.
25.The learned Counsel would further submit that another piece of evidence relied on by the prosecution was that of P.W.24 who claimed that he was staying at Padi and he was a good friend of the deceased, and A-6 used to write letters to the deceased which were addressed to P.W.24, and he used to collect those letters and deliver to the deceased; that he has also deposed that in the year 2002, the deceased came to Chennai and went to the house of A-6 where she was residing with her husband, and it was the deceased who introduced P.W.24 to the husband of A-6 and also A-6 at that time; that the evidence of P.W.24 before the trial Court cannot be attached with any evidentiary value for the simple reason that P.Ws.60 and 62, both the Investigating Officers have categorically admitted that these statements made before the Court were not made before them, and hence they were to be rejected.
26.Added further the learned Senior Counsel that when an application for anticipatory bail was moved by A-6 before the Court of Session in Cr.M.P.No.5299/2003 on 17.6.2003, P.W.61 has filed a counter stating that no case was registered against A-6; that this would also clearly indicate that they had no suspicion against A-6 at all; that she has been added in the case as an afterthought; that in the instant case, the prosecution has miserably failed to prove the conspiracy theory or produce any evidence connecting A-6 with the deceased or the crime in question; that the trial Court has taken an erroneous view and hence A-6 is entitled for acquittal.
27.The Court heard the learned Additional Public Prosecutor on all the above contentions and considered the elaborate deliberations made on either side and also made a thorough scrutiny of the documents available.
28.As could be seen from the available evidence, the dead body of Prasad Sebastin was found at Thiruvalangadu. It was actually noticed by P.W.6. Then he brought the same to the notice of Thiruvalangadu Police Station, and a case was registered in Crime No.163 of 2003 by P.W.57, the Sub Inspector of Police. Following the inquest made, the dead body was subjected to postmortem by P.W.51, the Doctor, and he has also given his opinion that in view of the advanced decomposition, cause of death could not be fixed. Once the prosecution came forward with a case that the death has actually occurred due to the homicidal violence, nowhere at any point of time, any one of the appellants questioned this fact before the trial Court. Thus there cannot be any impediment, in the opinion of the Court, to record that Prasad Sebastin died out of homicidal violence.
29.Apart from the above, in order to prove that the dead body was that of Prasad Sebastin, the prosecution had three pieces of evidence, firstly M.O.10, photograph of the dead body of Sebastin which was shown to the relatives, and they have also identified as that of Sebastin. Secondly, the Chemical Examiner has been examined as P.W.55 through whom the reports Ex.P83 and P84 have been filed. As a result of the superimposition test, it would also be pointing to the fact that the dead body was that of Sebastin. Thirdly, the DNA test was conducted, and the report has also been filed as Ex.P85 through P.W.56, Scientific Assistant. Apart from all the above, nowhere the appellants have questioned that the dead body in respect of which inquest or postmortem or exhumation was made, was that of Prasad Sebastin at any point of time. Hence it could also be recorded so.
30.As could be seen above, the case of the prosecution in short is that the deceased and A-6 originally belonged to Punalur, Kerala State; that they fell in love with each other, but could not marry, and thereafter each of them contracted marriage separately; that during the relevant time, A-6 was living in Madras with her husband at Kottivakkam, while the deceased was at Kerala; that he made frequent visits over her and had shared the sexual pleasure; that while the matter stood thus, she employed A-1 as a driver and she developed intimacy with him; that thereafter, he was made as a Manager; that she felt the presence of the deceased as a hurdle for the continuance of the company of A-1, and then she decided to finish him off, as a result of which a conspiracy was hatched up by A-6 with A-1; that A-2 to A-4 were hired for the purpose of causing the death of the deceased for which they used M.O.47, TATA Sumo Car, which was driven by A-5, and thus the crime has taken place.
31.As far as the first part of the case that there was a conspiracy which was hatched up was concerned, this Court on scrutiny of the evidence has to come to the irresistible conclusion that the prosecution has not proved its case. Needless to say that in a given case when the prosecution has come forward with the story of conspiracy against all the accused, direct evidence must be available. It is also settled proposition of law that conspiracy could be inferred from the circumstances proved. But, in the instant case, the prosecution has miserably failed to place either the direct evidence or the circumstances from which conspiracy could be inferred. The prosecution in order to prove the conspiracy between A-1 and A-6 and also along with A-2 to A-4, rested its case on the evidence of P.Ws.15, 17 and 18. The very reading of the evidence of P.Ws.17 and 18 would clearly indicate that it cannot but be a cooked up one or introduced for the purpose of making an attempt to prove the conspiracy theory. P.W.17 has categorically admitted that he was actually a coconut vendor, and his place of vending was somewhere else; but he was sleeping in another place; that on that day he woke up at 11.00 P.M., when he found a TATA Sumo Car just parked nearby, and he also found all the accused speaking about the causing of death of a person. At the time of his cross-examination, it could be found that the evidence of the witness thoroughly became shaky.
32.As far as P.W.18 was concerned, equally he would state that he was a cook going on his way; that he found all of them in a Car; that they were talking to each other; and that he heard the words "We would finish him off within the night". Apart from this, the statement of this witness was recorded long after the crime in question. Now, at this juncture, it is pertinent to point out that as far as P.Ws.17 and 18 were concerned, on the face of their testimony, it has got to be rejected.
33.As far as P.W.15 is concerned, he would claim that he was actually employed in Aravind Theatre situated about 15 kilometers away from Kottivakkam; that during the relevant time, he was pasting the posters for that theatre; that he was employed for that purpose; that on that day namely 28.5.2003 at about 0530 hours, he went to Kottivakkam for the purpose of pasting the poster; that he went nearby the house of A-6; that at that time, he found both A-6 and the deceased, and the deceased was about to start; that and at that time, A-1 came near A-6, and A-6 identified him to A-1, and from that place, A-1 followed him. Now at this juncture, it is pertinent to point out that the statement recorded from P.W.15 in this regard would clearly indicate that he has given different versions, and by this it cannot at any rate be inferred that there was any conspiracy between A-1 and A-6. The statement of this witness was recorded by P.W.62 after the investigation was taken up by the CB CID from the regular police. All would go to show that as far as conspiracy part was concerned, his evidence cannot be relied for any purpose, and thus the prosecution has miserably failed to prove that there was conspiracy between A-1 and A-6 and consequent upon the same, A-2 to A-4 conspired, and thus the occurrence has taken place. Therefore, the case of the prosecution as to the conspiracy part is liable to be rejected, and accordingly rejected.
34.Coming to the question of kidnapping of Sebastin and also causing his death, the prosecution has relied upon the following evidence. The first witness is P.W.16, the neighbour of A-6. From his evidence it could be seen that he could not identify whether the deceased was the person found in the company of A-6 on the day even after looking into the photograph, and thus his evidence remained unacceptable.
35.Secondly, the prosecution relied on the evidence of P.W.15. As could be seen from his evidence, he would claim that he was employed by Aravind Theatre which is situated at about 15 kilometers away from Kottivakkam; that he came to the place nearby the house of A-6 at about 5.30 A.M. on the date of occurrence namely 28.5.2003, and saw both A-6 and also the deceased; that when the deceased was hastily proceeding from the house, A-1 came near A-6, and A-6 pointing to him, asked A-1 to finish him off; that A-1 made a phone call pursuant to which A-2 to A-4 came in a TATA Sumo Car which was driven by A-5; that A-2 to A-4 pushed the deceased inside the Car; that at that time, A-1 took a purse like thing which fell from the deceased, and he also followed them in a two wheeler. As far as this part of the evidence is concerned, when the same is looked into, it is found to be believable at the first sight. When a careful scrutiny of the evidence of this witness is made, the same, in the considered opinion of the Court, cannot be believed for the following reasons. So far as the address is concerned, he has given different versions, and he also claimed to live in Peters Colony at Royapettah within the jurisdiction of the respondent police namely D2 Anna Salai Police Station. That apart, he was also involved in a particular criminal case, and he was acquainted to P.W.60, the Sub Inspector of Police, of the respondent police station. When he was examined in Court, he has deposed that he was interrogated by the police officer within a week or 10 days from the time of occurrence; but, his statement was recorded under Sec.161 of Cr.P.C. only on 21.7.2003 by P.W.62. That would mean that after the case actually taken up for investigation by the CB CID, his statement has been recorded. It is highly improbable that a person who was employed for the purpose of pasting the poster in a theatre situated 15 kilometers away from Kottivakkam, has gone to the place to do the work. Added circumstance is that if it is true that he has seen such an incident, and he had gone to take water from A-6, naturally one would expect him to enquire how such a thing was happening, but he has not done so, and till he was examined by the police, he has not informed to any one at all. Thus the evidence of P.W.15 is doubtful and cannot be believed.
36.The next piece of evidence much relied on by the prosecution was that of P.W.19, who was a painter by profession. He has claimed that he was also nearby the place, and he found A-2 to A-4 taking the deceased in a Car during the relevant time. His statement was also recorded on 12.6.2003. He has categorically deposed that on 12.6.2003, he was present at the time when A-2 to A-4 were arrested on the morning hours at about 6.00 A.M. and thereafter they gave the confessional statements, and then he left for home. While he was cross-examined, he has stated that he did not go for work on 12.6.2003, and he took rest till 3.00 P.M., and thereafter, he went to the police station. That would mean that the statement now produced before the Court as if he has seen all the persons, has come into existence only after 3.00 P.M., and the same cannot but be an afterthought. It could also be seen that P.W.19 has been used for a dual purpose one for the witness for arrest, confession and recovery and the other for suiting the alleged facts as if he has seen the offence of kidnapping. Apart from this, his statement has also reached the Court very belatedly. No explanation is forthcoming, and hence his evidence cannot be given any effect at all.
37.The other piece of evidence relied on by the prosecution was the evidence of a Police Constable, P.W.25. According to him, he was on duty on 28.5.2003 near Ashok Pillar, and at that time, a TATA Sumo Car, M.O.47, driven by A-5 came in a rash speed, and when the Car crossed the line, he stopped the vehicle and found A-2 to A-5 sitting along with the deceased inside. According to him, the deceased was a beard person, and blood was oozing from his ear at that time, and he was also able to smell that they were all in drunken mood. The evidence of P.W.25 and that too a Police Constable, ordinarily could be accepted. But, in the instant case, this Court is of the opinion that his evidence cannot be accepted for the following reasons. Firstly, he has produced Exs.P18 and P19, Pocket Note Book and General Diary respectively, from which it could be seen that he was actually posted to duty at about 7.30 A.M. on that day. But, he has given contra evidence stating that he was available there from 5.00 A.M. onwards. To show that he was actually on duty from 5.00 A.M. onwards there is nothing available. Apart from that, when a police constable came to know that the persons inside the Car were in drunken mood and that too, blood was oozing from the ear of the deceased, naturally he would have made an enquiry, brought them to the police station and take necessary steps thereon in order to initiate action, but he has failed to do so. Further in his statement though claimed to be recorded on 12.6.2003, he has clearly stated that he was summoned by the police, and thereafter, he went there and gave such a statement. Under the circumstances, it is a matter of surprise to note that the police constable who is expected to take immediate action has not taken, and that too his statement was recorded on 12.6.2003, and it also reached the Court in the month of July 2003. Apart from that, no explanation is tendered how he happened to be there at that time. Hence the evidence of P.W.25 loses its significance.
38.Now, the last witness in this regard is P.W.26. According to him, he was actually sitting in front of a tea shop along with his friend Panneerselvam, and the car was stopped, and A-5 asked for a cup of water, and Panneerselvam got water from the shop and handed over to him, and it was he who handed over the water to A-5, and at that time, half of the window of the car was kept open, and he was able to see the persons inside, and at that time, A-1 came in a two wheeler and shouted at A-5, and immediately the Car was stated, and A-1 has also followed them. His statement was actually recorded by the Investigator after it was taken up by the CB CID. Further it has also reached the Court in the month of November 2003. In a given situation like this, when a person is being kidnapped for the purpose of common object of murdering him, it is quite unnatural and unbelievable that the car was stopped for a cup of water. At this juncture, a comment was also made that there were 25 persons inside the tea stall, and the deceased would have asked for help. But, from the very beginning when A-2 to A-4 pushed the deceased inside the car at the instigation of A-1 and when they were actually noticed by P.Ws.19, 25 and 26 all along the period and when the accused were actually travelling in the car, at no point of time he raised his voice or asked for rescue and nothing had happened, and no one witness witnessing such a situation, has questioned the same.
39.Needless to say, the identification parade in every case is not a must. Identification is actually not a substantive piece of evidence, and it is only corroborative piece of evidence. Identifying the accused in Court is a substantive piece of evidence. But, the Court before accepting the contention put forth by the prosecution that identification parade is not necessary in a given case, must see whether the witnesses who are identifying the accused in Court, could have seen them for a sufficient time and the circumstances would have made such a dent in their memory and so that they could identify them clearly. Now at this juncture, it is to be pointed out that the evidence of P.W.18 for the reasons stated supra, has got to be brushed aside. The witnesses could have seen only for a few minutes. If to be so, when there are five persons inside the car, these persons could not have seen or remembered so. It is also to be considered that if they had thought that it was a crime being committed, immediately they would have gone to the next step of at least helping the deceased or bringing the matter to the notice of anybody. But, they have neither gone to the police station nor taken any steps, and in particular, P.W.25, a police constable. Added further in the instant case, the non-conduct of the identification parade, in the considered opinion of the Court, was fatal, and under the circumstances it cannot be stated that the prosecution has proved the case of kidnapping made by A-2 to A-5. The learned Additional Public Prosecutor brought to the notice of the Court that in a given case where the prosecution is able to show that the accused have actually abducted or kidnapped the deceased and if they could not come with the explanation how death has happened, it has got to be inferred that they are the murderers. In the instant case, this Court is of the considered opinion that on the basis of the evidence placed before the trial Court and scrutinized by this Court, it would be highly unsafe to hold that A-2 to A-5 could have actually kidnapped him.
40.Apart from the above, even P.Ws.1 and 2 have not spoken to the fact that A-6 and the deceased had continued their intimacy during the relevant point of time. In the absence of any evidence to indicate that either he stayed over there, or had got illicit intimacy, it can be well stated that there is no evidence that he stayed in the house of A-6 on the night of 27.5.2003.
41.As rightly pointed out by the learned Counsel for the appellants, at the time of questioning of the accused under Sec.313 Cr.P.C. by the trial Court, no question was put to them that pursuant to the conspiracy, A-2 to A-5 have kidnapped the deceased and caused his death by stabbing. It remains to be stated that questioning under Sec.313 Cr.P.C. is not an empty formality, and it should be exercised in accordance with law. The Apex Court has held in a decision reported in 2009(4) SUPREME 429 (SHAIKH MAQSOOD V. STATE OF MAHARASHTRA) that a conviction based on the accused's failure to explain what he was never asked to explain is bad in law. This decision is squarely applicable to the present facts of the case. In the absence of faithful observance of the provisions of Sec.313 Cr.P.C., it would be highly unsafe to base a conviction.
42.Therefore, in the absence of any proof as to the conspiracy part either or from the evidence available pointing that A-1 and A-6 had any conspiracy or in furtherance of the same, A-2 to A-4 had conspired with A-1 or on the day, on the instigation of A-1, A-2 to A-4 have actually kidnapped the deceased from the place and caused the death, it cannot be inferred that they have caused the death. It is true that the dead body was found. It is also proved that the cause of death could not be fixed, but it is not challenged. Even then, the prosecution was unable to prove beyond reasonable doubt that the appellants/accused were actually involved in the commission of the crime. Under the circumstances, the trial Court has taken an erroneous view, which has got to be made undone by upsetting the judgment of the trial Court.
43.Accordingly, all these criminal appeals are allowed setting aside the judgment of the trial Court. The appellants are acquitted of all the charges levelled against them. The fine amount if any paid by them, will be refunded to them. The bail bonds executed by them shall stand terminated.
nsv To:
1.The Additional Sessions Judge Chennai at Poonamallee
2.The Deputy Superintendent of Police Crime Branch CID Organised Crime Unit Chengai East, Chennai 600 002.
(Crime No.521/2003)
3.The Public Prosecutor High Court, Madras