THE HONOURABLE MR.JUSTICE S.NAGAMUTHU and THE HONOURABLE DR.JUSTICE ANITA SUMANTH Criminal Appeal No.836 of 2016 Lakshmanan (A2) .. Appellant - Vs -
State rep by Inspector of Police, Pappireddypatty Police Station, Dharmapuri District.
(Cr.No.37 of 2010) .. Respondent Prayer:- Appeal filed under Section 374 of the Code of Criminal Procedure against the judgment passed by the learned Principal Sessions Judge, Dharmapuri in S.C.No.39 of 2010 dated 26.10.2016.
For Appellant : Mr.S.Sakthivel for Mr.M.G.Udayashankar For Respondent : Mr.P.Govindaraj Additional Public Prosecutor - - - - -
J U D G M E N T
(Judgment of the Court was delivered by S.Nagamuthu,J.)
The appellant is the second accused in S.C.No.39 of 2010 on the file of the learned Principal District and Sessions Judge, Dharmapuri. One Mr.Raja @ Kattu Raja was also an accused as per the police report, but he died before framing of charges. The first accused in this case was one Mr.Gunasekaran @ Udayakumar @ Kumar. The trial Court framed as many as five charges against the accused 1 and 2, as detailed below:
By judgment dated 26.10.2016, the trial Court convicted both the accused only for the offences under Sections 394 and 302 I.P.C. and sentenced them to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for two years for offence under Section 394 I.P.C. and to undergo imprisonment for life and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for three years for the offence under Section 302 I.P.C. The trial Court acquitted these accused from all the other charges. Challenging the said conviction and sentence, the appellant / second accused alone is before this Court with this appeal.
2. The case of the prosecution in brief is as follows:
2.1. The deceased in this case was one Mr.Selvakumar. He was a lorry driver by profession. P.W.1 is his nephew. During the relevant time, P.W.1 was a lorry cleaner by profession. In those days, the deceased was driving the lorry bearing Reg.No.TN 30 L 2526 in which P.W.1 was working as a cleaner.
2.2. On 28.11.2010, the deceased and P.W.1 started their journey in the lorry from Salem to go to Andhra Pradesh. The lorry was fully loaded with materials. The lorry was proceeding via Manjawadi Kaalvai. At around 11.30 p.m, the deceased stopped the lorry and went to Vellaiamman temple. Both of them had darshan in the temple and then started the journey around 03.30 a.m. When the lorry was nearing Nonanganur branch road, two persons were standing by the side of the road and they gestured to the deceased to stop the lorry. One of them was wearing a khaki shirt and black pant. The other one was wearing ladies nighty and covered the face with a kerchief.
P.W.1 and the deceased believed the person in nighty clad was a woman. Stopping the lorry by the side of the road, the deceased got down from the lorry and went with those two persons. He asked P.W.1 to remain in the lorry cabin itself.
2.3. Approximately after an hour, two persons came to the lorry. One among them was the one who earlier accompanied the deceased (P.W.1 has identified him as the first accused). These two persons got into the cabin of the lorry and searched for money in the cabin and other places, but nothing was found. Then, they snatched away the cell phone of P.W.1 and his silver waist chord at knife point. Then, by force, took him to a nearby place. The said place was filled with bushes. There P.W.1 found the deceased lying down and his hands and legs were tied with nylon ropes. He also noticed injuries on the head and chest of the deceased. The first accused warned P.W.1 not to disclose anything to anyone. They further warned him that he would also be killed in the event he discloses the same to anyone. Then, they took him to a distance of one kilometer. Two persons who were standing at the place where the deceased was laying also accompanied them. These four people including the first accused led P.W.1. The person who was wearing nighty all through removed the nighty and it came to light that the said person was a male (P.W.1 has identified the second accused as the one who was in the nighty). Then, at a distance of about one kilometer, they allowed P.W.1 to slip away from the said place.
2.4. P.W.1, escaped from the place and went to a tea shop situated near Nonanganur branch road and informed the people there about the occurrence. Then all of them came to the place of occurrence and found the deceased dead. P.W.1 thereafter went to Pappireddypatty police station and made a complaint on 29.01.2010 at 07.00 a.m. Ex.P1 is the complaint and Ex.P15 is the F.I.R. In the complaint P.W.1 mentioned that the assailants were four in number who can be identified.
2.5. P.W.15 took up the case for investigation. He went to the place of occurrence, prepared an observation mahazar and a rough sketch in the presence of witnesses. He recovered the bloodstained earth and sample earth from the place of occurrence. He conducted inquest on the body of the deceased between 10.00 a.m. to 12.00 noon and forwarded the body for postmortem.
2.6. P.W.14 Dr.S.Angayarkanni conducted autopsy on the body of the deceased on 29.01.2010. She found the following injuries:
“Injuries: (1) A lacerated wound over the left frontal area 1.5 cms above the left eyebrow measuring 3x2.5 cms x bone deep with surrounding contusion. (2) A lacerated wound over the left frontal area 4 cms above wound No.1 measuring 3.5x0.50x0.25 cms with surrounding contusion. (3) A lacerated wound over the left frontal area 3 cms above wound No.2 measuring 2.5x0.50x0.50 cms with surrounding contusion. (4) A lacerated wound over right fronto temporal region 3 cms above and behind the either end of right eyebrow measuring 3x0.50x0.25 cms. (5) A lacerated wound over the mucosal surface of left side of the lower lip measuring 0.5cms x lineally, 0.75 cms lineally on dissection, bruising of the tissues underneath the tip of the nose, upper and lenear lip measuring 8x5 cms noted. Fracture of the tip of the nasal septum noted and flattering of the nose noted. Dark reddish brown abrasion noted (a) inter end of left eyebrow 1x0.5 cm (b) front of the nose 2x0.5 cms. (6) Findings: Finger and toe nails found blue and flattening of nose noted. (7) Head: subscalp contusion noted near the left frontotemporo parietal region measuring 4x3cm, over the left fronto temproparental region measuring 5x4 cms. Cranial vault and dural memberance – intact. Brain c/s congested. Base of the skull intact. (8) Neck: All neck structures are normal hyoid bone – intact, Thorax: No rib fracture, Heart – normal in size. Chambers contained fluid blood, valves, corneas and great vessels patent. Lungs c/s congested. (9) Abdomen – stomach contains about 15 ml of brown coloured fluid with no specific odour. Liver, Spleen and Kidneys c/s congested. Bladders – empty. External genitalia – no injuries made out. Pelvics and spinal column – intact.”
Ex.P14 is the postmortem certificate. She gave opinion that the death of the deceased was due to smothering.
2.7. P.W.15 during the course of investigation, on 31.01.2010, on the Harur to Salem main road arrested Mr.Raja @ Kattu Raja. The first accused Mr.Gunasekaran and the second accused Lakshmanan were also arrested. On such arrest, all the three gave independent voluntary confession one after the other. Mr.Raja @ Kattu Raja in his confession, disclosed the place where he had hidden a suri knife, a cell phone, a silver waist chord, bloodstain pant and a kaki colour full hand shirt. In pursuance of the same, he took the police and the witnesses to his house and produced M.Os.6 to 10. Similarly, the first accused Mr.Gunasekar in his confession, disclosed the place where he had hidden a suri knife, cell phone, a waist chord made of silver and jeans pant. In pursuance of the same, he took the police and the witnesses to his house and produced M.Os.11 to 14. The second accused in his confession has disclosed the place where he had hidden an arruval, nokia cellphone, a pant and a shirt. In pursuance of the same, he took the police and the witnesses to the place of hideout and produced M.Os.15 to 18. P.W.15 recovered all the material objects in three different mahazars.
2.8. On returning to the police station, he forwarded the accused to Court for judicial remand. At his request, test identification parade was conducted by the learned Magistrate, in which, P.W.1 identified these two accused. At his request the material objects were sent for chemical examination. On completing the investigation, he laid chargesheet against the accused.
2.9. Based on the above materials, the trial Court framed charges as detailed in the first paragraph of this judgment. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as 15 witnesses were examined, 18 documents and 18 material objects were marked.
2.10. Out of the said witnesses, P.W.1 is the sole eyewitness to the occurrence. He has vividly spoken about the entire occurrence and he has also spoken about the complaint made to the police. He has further stated that he identified these accused in the test identification parade held by the learned Magistrate. P.W.2 is the wife of the deceased. She has stated that she heard about the occurrence. P.W.3 is the brother in law of the deceased. He has spoken about the preparation of the observation mahazar and the rough sketch at the place of occurrence. P.W.4, is the tea shop owner at the Nonanganur branch road. According to him, around 04.30 a.m. one person came to the tea shop and told that his maternal uncle was killed by somebody. He has not stated anything about the accused or P.W.1. P.W.5 has stated that at that time, he was at the tea shop along with P.W.4. He has stated that at that time one person came to the tea shop and told that his maternal uncle was killed by somebody. He went to the place of occurrence and found the dead body.
2.11. P.W.6 is the head of the sniffer dog squad, he has stated that he took the sniffer dog to the place of occurrence and the said attempt proved futile. P.W.7 is a photographer. He has spoken about the photographers taken at the place of occurrence on the directions of P.W.15. P.W.8 is a finger print expert. He has stated that at the request P.W.15, he went to the place of occurrence and examined the lorry in question thoroughly and from the cabin of the lorry, he lifted three chance fingerprints. Out of the same, one tallied with the fingerprint of the deceased. The other two were photographed and later on compared with the admitted fingerprint of Mr.Raja @ Kattu Raja. It was found that the fingerprint of Mr.Raja @ Kattu Raja tallied with the chance fingerprint lifted from the lorry.
2.12. P.W.9, the learned Judicial Magistrate, Harur has spoken about the test identification parade conducted. According to him, the test identification parade was held on 11.02.2010, in which, Mr.Raja @ Kattu Raja, the first accused Gunasekar and the second accused Mr.Lakshmanan were put up for test identification parade. In the test identification parade P.W.1 identified all the three correctly. P.W.12 Mr.Selvam also participated in the test identification parade and identified all the three accused. However, he turned hostile during trial and he has not supported the case of the prosecution in any manner.
P.W.10 the Village Administrative Officer has spoken about the preparation of the observation mahazar and the rough sketch at the place of occurrence and also the arrest of Mr.Raja @ Kattu Raja, these two accused and consequential recoveries of material objects from out of the disclosure statements made.
P.W.11 a driver in a different lorry has stated that he saw the deceased and P.W.1 lastly at Vellaiamman temple on the day of occurrence. P.W.13 a scientific expert has spoken about the chemical examination conducted on the material objects and he found that there were bloodstains on the material objects.
M.O.14 has spoken about the postmortem conducted and her final opinion regarding the cause of death. P.W.15 has spoken about the registration of the case, investigation done and the final report filed.
3. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., they denied the same as false. However, they did not choose to examine anyone nor mark any documents. Their defence was a total denial. Having considered all the above, the trial Court convicted them as detailed in the first paragraph of this judgment and that is how the appellant / second accused alone is before this Court with this appeal. It is informed that the first accused has not filed any appeal so far.
4. During the pendency of this appeal, the prosecution filed Crl.M.P.No.2877 of 2017 requesting the Court to permit them to let in additional evidence by recalling P.W.1 for identifying M.Os.7, 12 and 13. The said petition was allowed on 24.02.2017 after affording sufficient opportunity to the learned counsel for the appellant. Accordingly, P.W.1 was recalled and further examined by the prosecution on 13.03.2017. In his evidence, he identified M.O.12 Nokia cellphone as the one which was snatched away from him by the accused. He has further identified M.O.7 cellphone as that of the deceased. Further, he has also identified M.O.13 the silver waist chord belonging to the deceased. The accused was thereafter questioned by this Court under Section 313 Cr.P.C. on 16.03.2017 in respect of the said additional evidence. He denied the same.
5. We have heard the learned counsel appearing for the appellant, the learned Additional Public Prosecutor appearing for the State and also perused the records carefully.
6. The learned counsel for the appellant would submit that the evidence of P.W.1 cannot be given any weightage because the identification of the appellant made by him during the test identification parade cannot carry any weightage. In order to substantiate this argument, the learned counsel would submit that the photographs of the accused appeared in newspapers and thus P.W.1 had occasion to see the photographs of the accused. This argument, in our considered view is baseless.
P.W.1 during cross examination has stated that in the newspapers only there was a news item stating that four or five persons were responsible for the death of the deceased. He has not at all stated that the photographs of the accused appeared in the newspapers and that he had occasion to see it. Thus, absolutely there is no evidence that P.W.1 had any occasion either to see the accused or their photographs before he was taken for test identification parade. In the test identification parade, he has clearly identified the appellant on all the three occasions. There is no reason to reject the said identification made by him.
7. But the learned counsel for the appellant would submit that the identifying features of the accused were not mentioned by P.W.1 during investigation and therefore no weightage should be given to the said witness. In this argument also, we do not find any force. In fact, in the chief examination itself, he has stated the identifying features of the accused. Further, it is not as though P.W.1 had occasion to see the accused for a very short while. It is in evidence that they took P.W.1 with them to a distance of about one kilometer, thus P.W.1 would have had enough opportunity to notice the features of the accused and that is how he was able to identify the accused during test identification parade. Therefore, we hold that the test identification parade conducted by the learned Magistrate does not suffer from any infirmity and so the identification of the accused made by P.W.1 during test identification parade should carry full weightage. He has identified the accused during trial also. Nothing has been elicited during the cross examination of P.W.1 so as to create any doubt regarding the credibility of P.W.1. Thus, we hold that from out of the evidence of P.W.1, the prosecution has established the involvement of the appellant in the crime.
8. Apart from the above, the recovery of material objects after the arrest of the accused also gives assurance to the said conclusion. The evidences of the persons in the tea shop viz., P.Ws.4 and 5 who have stated that around 04.00 to 04.30 a.m. one person came and informed that his maternal uncle was killed would also duly corroborate the evidence of P.W.1 more particularly about his presence. They have gone to the place of occurrence and found the dead body and then only P.W.1 gone to the police station. Thus, the evidence of P.W.1 coupled with other circumstances would clearly go to prove that the appellant was one of the accused who had caused the death of the deceased and committed robbery. The fact that the deceased was tied and smothered to death would go to prove that the death of the deceased was a homicide.
9. The chance fingerprint lifted from the lorry tallied with the finger print of Mr.Raja @ Kattu Raja, who also participated in the occurrence along with the appellant. This would also led further assurance that it was these accused who had committed the above offences and the trial Court was right in convicting the accused.
10. Now turning to the quantum of punishment, the trial Court has imposed only the minimum punishment, which also does not require any interference at the hands of this Court.
11. In the result, we do not find any merit at all in this appeal, the appeal fails and the same is accordingly dismissed. The conviction and sentence imposed on the appellant by the learned Principal Sessions Judge, Dharmapuri in S.C.No.39 of 2010 dated 26.10.2016, is hereby confirmed.
(S.N.J.) (A.S.M.J.) 21.03.2017 Speaking Order / Non-speaking Order Index : Yes kk To
1. Principal Sessions Judge, Dharmapuri
2. The Inspector of Police, Pappireddypatty Police Station, Dharmapuri District.
3. The Public Prosecutor, Madras High Court.
S.NAGAMUTHU,J.
& ANITA SUMANTH,J.
kk
Crl.A.No.836 of 2016
21.03.2017 http://www.judis.nic.in