CA 834/2008
1.Karuna @ Karunakaran
2.Hary @ Harikrishnan .. Appellants in CA 776/2007 vs State rep by The Inspector of Police H-3 Thondaiyarpet Police Station Chennai (Cr.No.398/2006) .. Respondent in CA 651 & 776/2007 and Appellant in CA 834/2008 C.A.Nos.651 and 776 of 2007 preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional Sessions Judge, Fast Track Court No.II, Chennai, made in S.C.No.138 of 2007 dated 6.7.2007.
C.A.834/2008 preferred under Sec.377 of the Code of Criminal Procedure against the judgment of the Additional Sessions Judge, Fast Track Court No.II, Chennai, made in S.C.No.138 of 2007 dated 6.7.2007.
For Appellants : Mr.P.Prince Premkumar for appellants in C.A.651/2007 & for respondents in CA 834/2008 Mr.V.Gopinath Senior Counsel for Mr.T.Shanmugamuthu in CA 776/2007 For Respondent : Mr.N.R.Elango Additional Public Prosecutor for respondent in CA 651 & 776/2007 and for appellant in CA 834/2008 COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Both these appeals namely C.A.Nos.651/2007 by A-1 and A-5 to A-7 and 776/2007 by A-2 and A-3, challenge a judgment of the Additional District and Sessions Court, Fast Track Court No.II, Chennai. They stood charged along with A-4 since deceased, under
Sections 120(b),147, 148,
341 and
302 of IPC. On trial, A-1 and A-5 to A-7 were found guilty under
Sections 120(b) r/w
302 and
341 of IPC and sentenced to undergo 3 years Rigorous Imprisonment and 1 month Rigorous Imprisonment respectively. A-2 and A-3 were found guilty under
Sections 148 and
302 of IPC and awarded 3 years Rigorous Imprisonment and life imprisonment along with a fine of Rs.10000/- and default sentence respectively.
2.The State has preferred C.A.No.834 of 2008 for enhancement of sentence imposed on A-1 and A-5 to A-7.
3.The short facts necessary for the disposal of these appeals can be stated as follows;
(a) P.W.14 is the mother and P.W.2 is the younger brother of the deceased Veera. They were residents of Seniyamman Koil Street, Tondiarpet. The deceased Veera and A-3 were on inimical terms pursuant to a quarrel. One month before the occurrence, the deceased Veera beat A-2, A-3 and A-4. Before 15 days, A-1, A-5, A-6 and A-7 were standing in front of their house. P.W.14 came to know that A-1 belonged to Kasimedu. P.W.14 told P.W.2 that she came to know that A-1 and his henchmen had a plan to murder Veera.
(b) On the date of occurrence namely 16.7.2006, at about 9.00 A.M., A-2, A-3 and A-4 since deceased, restrained the deceased in a place near a tea shop. Thereafter, the deceased Veera went to his work. At about 8.30 P.M., Veera and his brother P.W.1 went in a Bajaj M80. At that time, A-3's mother was speaking with P.W.2, and she was holding a cell phone. She told P.W.2 that A-3 was speaking. She further told that A-3 had done something and he would come after some time. P.W.1, the younger brother of the deceased, seated on the back of a Bajaj M80 which was driven by the deceased Veera. The vehicle was proceeding towards Kodungaiyur through Elaiya Mudali Street. At that time, A-2 and A-3 and the deceased Dilli Babu waylaid the deceased. All of a sudden, A-2, A-3 and A-4 took out knives and attacked the deceased Veera. When he tried to prevent the same, they kicked him on his stomach. When he raised a distressing cry, the accused attacked Veera with knives. On hearing the same, public gathered in the place of occurrence. Then the accused persons ran away from the scene of occurrence. At about 8.45 P.M. P.W.14 was informed that her son Veera was murdered.
(c) The severely injured Veera was brought to Stanley Government Hospital where P.W.5, the Doctor, who was on duty, declared him dead. The accident register copy is marked as Ex.P4, and the death intimation is marked as Ex.P5.
(d) P.W.1 went to H3 Tondiarpet Police Station and lodged Ex.P1, complaint, on the strength of which P.W.17, the Inspector of Police, registered a case in Crime No.398/2006 under
Sections 147,148,341 and
302 of IPC. The printed FIR, Ex.P17, was despatched to the Court. At about 10.50 P.M., P.W.17 took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P3, and also a rough sketch, Ex.P18. He also recovered bloodstained earth and sample earth under a cover of mahazar. He conducted inquest on the dead body of Veera in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P18. The place of occurrence and the dead body were photographed through P.W.7, a Photographer.
(e) The dead body was subjected to postmortem by P.W.6, the Professor and Head of Department, Department of Forensic Medicine, Stanley Medical College and Hospital, Chennai, who has given his opinion in Ex.P6, the postmortem certificate, that the deceased would appear to have died out of shock and haemorrhage due to multiple injuries.
(f) P.W.17 examined the witnesses and recorded their statements. He came to know that A-2, A-3 and A-4 surrendered before the Judicial Magistrate, Poonamallee. Then, he applied for police custody, and the same was ordered. At the time of interrogation, they made confessional statements which were recorded in the presence of witnesses. The admissible part of the confessional statements of A-2, A-3 and A-4 are Exs.P19, P20 and P21 respectively. Pursuant to the confession, A-2 produced a patta knife and a half sleeve shirt, M.O.10, which were recovered under a cover of mahazar. Equally, A-4 produced M.O.11, shirt, and a patta knife, which were recovered under a mahazar. A-3 produced a knife and M.O.12 half shirt.
(g) Pending investigation, on 21.7.2006, the Investigator arrested A-5, A-6 and A-7. They came forward to give confessional statements, which were marked in the presence of witnesses. The admissible part is marked as Exs.P23, P24 and P25 respectively. They also produced knives and shirts which were recovered under separate mahazars.
(h) On 26.7.2006, A-1 was arrested. He gave a confessional statement voluntarily, which was recorded. The admissible part is Ex.P27, and he also produced a Hero Honda Splender motorcycle, which is marked as M.O.19, which was recovered under a cover of mahazar. Then, the finger print expert P.W.9 was called. He visited the place of occurrence and took the finger prints found in the beer bottles at the place of occurrence. He also compared them with that of the deceased and also the accused. A-3's finger print and the examination report and A-2's finger print and the examination report were marked as Exs.P11 and P12 respectively. All the material objects recovered from the place of occurrence and from the dead body and also the material objects recovered from the accused were placed for analysis. Accordingly, Ex.P16, report, was received and placed before the Court. On completion of investigation, the Investigator filed the final report.
4.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 17 witnesses and also relied on 29 exhibits and 22 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. No defence witness was examined. 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 C.A.Nos.651 and 776 of 2007 at the instance of the appellants. Aggrieved over that part of the judgment of the trial Court awarding 3 years Rigorous Imprisonment under Sec.120(b) IPC, the State has brought forth C.A.834 of 2008 for enhancement of sentence.
5.Advancing arguments on behalf of the appellants/A-2 and A-3 in C.A.No.776 of 2007, the learned Senior Counsel Mr.V.Gopinath would submit that in the instant case, the prosecution proceeded by resting its case that there was originally a conspiracy hatched up by the accused in order to do away with the deceased Veera, and the same was actually heard by P.W.14, the mother of the deceased; that the only witness examined in that regard is P.W.14; that she has deposed before the Court that when she found the mother of A-3, she was holding a cell phone and was talking to her son A-3, while A-3 informed her that something was done by somebody and hence he would come later; that except this, she has not deposed anything from which nothing could be inferred that there was any conspiracy hatched up by the accused; that it is pertinent to point out that the Investigating Officer has candidly admitted that this evidence as spoken to by P.W.14 was actually not given in her statement recorded under Sec.161 of Cr.P.C.; and that it would be quite clear that the prosecution has miserably failed to prove the conspiracy theory.
6.As far as the factual position put forth by the prosecution was concerned, the learned Senior Counsel would submit that the prosecution miserably failed in its attempt; that the prosecution failed to bring home the guilt of the accused by placing direct or circumstantial evidence; that the case of the prosecution was that the occurrence has taken place on 16.7.2006 at about 8.30 P.M. when P.W.1 accompanied by the deceased went in a Bajaj M80 marked as M.O8, taking food to the wife of the deceased, and on the way, they were intercepted by the accused, and then the occurrence has taken place; that it is the case of the prosecution that P.W.1 has given Ex.P1 report; that a reading of Ex.P1 would indicate that at the time of occurrence, A-2, A-3, A-4 and A-6 attacked the deceased Veera and inflicted the injuries, and two others were also present at the time of occurrence; that when he gave evidence before the Court, he has not whispered anything about A-6, but has simply stated that the attacks were made by A-2, A-3 and A-4, and 4 or 5 others have also joined in that attack, and thus it is a vital discrepancy found.
7.The learned Senior Counsel would further add that according to the prosecution, P.W.1 was the sole eyewitness who spoke about the occurrence; that admittedly, he was the own brother of the deceased; that according to him, he proceeded along with his brother Veera taking food for the wife of the deceased, and at that time, they travelled in a Bajaj M80 motorbike, and he has witnessed the occurrence; but, contrarily, P.W.14, the mother of the deceased, has categorically stated that all the family members including P.W.1, were present in the house, and only on hearing the information of murder, all proceeded to the hospital; that in such circumstances, the evidence of P.W.14 would clearly rule out the presence of P.W.1 at the scene of occurrence at that time, and hence the evidence of P.W.1 and that too, an interested testimony, should have been rejected by the trial Court.
8.Added further the learned Senior Counsel that according to P.W.1, he is an illiterate, and he went to the police station, and the report was written and handed over; but, according to the Investigating Officer, a written complaint was handed over to him pursuant to which a case was registered; that the Investigator has actually failed to investigate by whom the report was written and if at all, by a Constable; and that it is highly doubtful how Ex.P1 report has come into existence.
9.Added further the learned Senior Counsel that according to the prosecution, one knife was recovered from each accused along with one shirt; that all were subjected to chemical analysis; that though they were found to be bloodstained, no human blood was found; that and no serology report was placed before the Court; that apart from that, the prosecution claimed that the finger print expert was called to the place; that he also recovered beer bottles; that the finger prints found therein were also compared with that of A-2 and A-3, and they were found to be tallying with each other; and that a report was also given. The learned Senior Counsel commenting upon the same would submit that the finger prints of the accused, according to the Investigator, P.W.17, were taken from the accused by the constables; but those constables were not examined; that further according to the Investigator, beer bottles were recovered from the place of occurrence as per the recovery mahazar at about 12.30 A.M. night; but, according to P.W.9, the Finger Print Expert, he was called to the spot, and beer bottles in which the finger prints of A-2 and A-3 were available, were actually recovered at about 2.30 A.M.; that if to be so, there is a vital discrepancy as to the recovery of beer bottles; and that all would go to show that that apart of the evidence should have been rejected by the trial Court.
10.The learned Senior Counsel would further add that the prosecution though rested its entire case on the conspiracy, failed; that the prosecution examined P.W.1 the sole testimony, which stood uncorroborated and which also did not stand scrutiny; that under the circumstances, the prosecution failed to prove its case, and hence they are entitled for acquittal.
11.Advancing arguments on behalf of the appellants in C.A.No.651 of 2007 while adopting the arguments of the learned Senior Counsel recorded above, in short would submit that the names of A-1 and A-5 to A-7, the appellants herein, were not stated in the FIR; that they have not been attributed with any overt act; that under the circumstances, they are entitled for acquittal; that they have been roped in by the prosecution by resting its case on the conspiracy theory; that if the conspiracy theory failed for the reasons stated above, they are also entitled for acquittal in the hands of this Court, and thus the trial Court has taken an erroneous view.
12.The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.
13.It is not in controversy that one Veera, the brother of P.W.1 and the son of P.W.14, was taken to the hospital where he was declared dead by P.W.5, the Doctor, and thereafter, a case came to be registered for murder directly, and the investigation was taken up by P.W.17. After the preparation of the inquest report, the dead body was subjected to postmortem by P.W.6, the Doctor, who has given categorical opinion that Veera died out of shock and haemorrhage due to multiple injuries sustained by him. He has given a postmortem certificate apart from giving evidence before the Court. The fact that Veera died out of homicidal violence was never disputed by the appellants/accused before the trial Court, and hence it has got to be recorded so as rightly done by the trial Court.
14.From the available materials, it could be seen that the prosecution rested its case to start with on a conspiracy theory. It is well settled proposition of law that the theory of conspiracy can be proved either by direct evidence or by circumstances proved from which conspiracy could be inferred. In the instant case, this Court is unable to see either direct evidence or the necessary circumstances from which conspiracy could be inferred. The only witness examined by the prosecution in that regard is P.W.14. According to P.W.14, when she was on her way, she found the mother of A-3 holding a cell phone and talking to her son A-3 who told her that something was done by somebody and thus he would be coming later, from which it cannot be inferred that there was any conspiracy. Apart from that, this evidence adduced before the Court was actually not found in the statement given by the witness before the Investigator and recorded under Sec.161 of Cr.P.C. Barring this evidence, the prosecution had no direct or indirect evidence to offer. Under the circumstances, it could be well stated that the prosecution has miserably failed to prove the case of conspiracy.
15.Coming to the occurrence spot, the case of the prosecution was that P.W.1 accompanied by the deceased went in a Bajaj M80 taking food to the wife of the deceased. According to P.W.1, when they were proceeding, the accused waylaid them, and the occurrence has taken place. The occurrence, according to him, has taken place at about 8.30 P.M.. Immediately after the occurrence, he took the injured Veera to the hospital. P.W.5, the Doctor, has been examined, who has categorically spoken to the fact that at about 9.15 P.M., the injured Veera was brought to the hospital by P.W.1, and when he medically examined him, he was found dead, and he has noted the same in Ex.P4, the accident register copy. Now, the learned Senior Counsel for the appellants much commented upon the evidence of P.W.1 that he could not have seen the occurrence at all for the reasons stated by him and recorded above. This Court is unable to agree with the learned Senior Counsel for the following reasons.
16.The occurrence has taken place at about 8.30 P.M. P.W.1 has deposed that immediately after the occurrence, he took the injured Veera to the hospital. P.W.5, the Doctor, has categorically deposed that it was P.W.1 who brought his brother Veera, and the same was recorded in Ex.P4 the accident register copy. The Doctor has medically examined him at about 9.15 P.M. That apart, on the report of P.W.1, the case came to be registered at about 9.30 P.M., and the FIR has reached the Magistrate at about 11.30 P.M. All have taken place within a short span of time.
17.The learned Senior Counsel wanted to take advantage of the answer given by P.W.14 that the family members were available in the house when they heard about the occurrence, and they immediately proceeded to the hospital. Now P.W.2 has stated that only he went to the hospital after hearing the news. Now, at this juncture, it is pertinent to point out that the contents found in Ex.P4, the accident register copy, and recorded by P.W.5 that it was P.W.1 who brought the dead body of his brother Veera to the hospital would clearly indicate that the evidence of P.W.14 to the effect that all family members were in the house, therefore, cannot be given much weight. It is true that there are certain discrepancies between the FIR and the evidence before the Court. But, when it is looked into, he has categorically mentioned in the report and also the evidence in Court the participation of A-2, A-3 and A-4 and that they inflicted injuries. This Court is mindful of the caution that in a given case like this, where there is only one eyewitness who happened to be a relative of the deceased, the Court must exercise the careful scrutiny test. Even after exercising the test, this Court is satisfied that P.W.1 should have been present when the occurrence has taken place and because of which he took the dead body to the hospital immediately, and P.W.5 has made such an entry in the accident register copy, Ex.P4. Further the discrepancies between the report and also the evidence before the Court cannot, in the opinion of the Court, stand to the advantage of the accused.
18.The other material which, in the considered opinion of this Court, stood in favour of the prosecution, was the recovery of two beer bottles from the place of occurrence. It remains to be stated that even at the time when the investigation commenced and materials were recovered from the place of occurrence, these beer bottles were available and they have been recovered and finger prints have been taken out of it. They were compared with the finger prints of the accused, and a report has been given, and they were found to be tallying with that of A-2 and A-3. It is true that the bottles were recovered from the place of occurrence immediately within a short span of time, and the finger prints that were found in the bottles were tallying with that of the accused. In such circumstances, it is for the accused to explain how it happened so since it should be only within the special knowledge of the accused, but they have not done so.
19.The comment made by the learned Senior Counsel that the constables who took the finger prints of the accused were not examined and further the time of recovery is found to be discrepant between the evidence of P.W.9 and the Investigator, in the considered opinion of this Court, cannot be given much importance. When there was a specific case of the prosecution that the finger prints were actually taken from the accused, that fact was not denied. Under the circumstances, by whom it was taken was not at all relevant in the opinion of this Court. Further, the Investigator has stated that the recovery was made at about 12.30 A.M.; but P.W.9, the finger print expert, would say that it was recovered at 2.30 A.M. As far as this discrepancy is concerned, the investigation process when it commenced at about 12.30 A.M., would be going on for a few hours. Therefore, that discrepancy in the time factor has arisen between the evidence of these two witnesses, and no weight could be attached to the same.
20.It is true that all the material objects which were recovered from the place of occurrence, from the dead body and also from the accused on production were subjected to chemical analysis; but it did not contain blood group or human blood since the serology report was not placed before the Court. Even in that case also, that cannot be a factor which could tilt the balance in favour of the accused. Now the evidence as placed before the Court through P.W.1 and the other circumstances attendant would clearly indicate that A-2, A-3 and A-4 have inflicted injuries on the accused and as a cumulative effect death has been caused immediately. Pending the case A-4 died. Hence the charge stood abated as against A-4. This Court is of the view that A-2 and A-3 have got to be found guilty for the offence of murder, and the judgment of conviction and sentence passed by the trial Court in their regard has got to be sustained.
21.As far as A-1 and A-5 to A-7 are concerned, their presence or participation cannot be taken as put forth by the prosecution, in the absence of anything being whispered in the FIR. So long as the conspiracy theory is not proved by the prosecution, these accused are entitled for acquittal since they are roped in by resting the case on the conspiracy theory.
22.Insofar as the appeal in C.A.No.834/2008 by the State for enhancement of sentence, the learned Additional Public Prosecutor would submit that while finding A-1 and A-5 to A-7 guilty under Sec.120(b) of IPC for criminal conspiracy, the trial Court awarded 3 years Rigorous Imprisonment, which is not consistent with the provision of law. Now this Court has already held that the prosecution has miserably failed to prove the conspiracy theory. Under the circumstances, the appeal by the State must automatically get the result of failure.
23.In the result, C.A.No.651 of 2007 is allowed, setting aside the judgment of the trial Court in respect of A-1 and A-5 to A-7. A-1 and A-5 to A-7 are acquitted of the charges levelled against them. The bail bonds executed by them shall stand terminated.
24.In the result, C.A.Nos.776 of 2007 and 834 of 2008 are dismissed. It is reported that the appellants/A-2 and A-3 in C.A.776/2007 are on bail. Hence the Sessions Judge shall take steps to commit them to prison to undergo the sentence imposed on them.
nsv/ To:
1.The Additional Sessions Judge Fast Track Court No.II Chennai
2.The Inspector of Police H-3 Thondaiyarpet Police Station Chennai (Cr.No.398/2006)
3.The Public Prosecutor High Court, Madras