Prayer Crl.O.P.(MD) No.14801 of 2014: Petition filed under Section 482 of Code of Criminal Procedure to direct the 2nd and 3rd respondents to make further investigation of the case in Cr.No.984/2011 dated 17.06.2011 which was registered by the 4th respondent and file final report before the concerned J.M. court within the time limit may be stipulated by thsi Honourable Court.
Prayer Crl.O.P.(MD) No.11044 of 2016: Petition filed under
Section 482 of Code of Criminal Procedure to direct the 2nd and 3rd respondents to make further investigation of the case in Crime No. 984/2011 dated 17.06.2011 which was registered by the 4th Respondent and file final report before the concerned Judicial Magistrate Court within the time limit that may be stipulated by this Honourable Court.
The petitioner in both these petitions seeks to direct the 2nd and 3rd respondents to make further investigation of the case in Crime No.984 of 2011 dated 17.06.2011, which was registered by the 4th respondent and file a final report before the concerned Court
2. For the sake of convenience, the parties will be referred to by their name.
3. Solariraj / Defacto Complainant (LW1) is the son of Solaiammal/LW2. The deceased Azhaguraja is the younger brother of Solairaj (LW1) and the son of Solaiammal (LW2). On 17.06.2011 around 5.45pm, the deceased Azhaguraja came to the shop of his brother Solairaj and at that time, Solaiammal was also in the shop. After talking to his brother, Azhaguraja left the shop by cycle. At that time, Solairaj saw Periyasamy (A1), Solaiappan (A2), Ravichandran (A3), Velraja (A4) and Madhan Kumar @ Madhan Raj (A5) following Azhaguraja and suspecting that something would happen, since there was some enmity between the two, Solairaj and his mother Solaiammal went behind them. Soon they saw Azhaguraja being intercepted by the above said five persons and he was attacked indiscriminately with deadly weapons. After attacking, they fled and when Solairaj and Solaiammal went near the fallen Azhaguraja, they found him dead.
4. On the complaint given by Solairaj, a case in Aruppukkottai Town Police Station Crime No.984 of 2011 was registered under
Sections 147,148,341 and
302 IPC by the Sub Inspector of Police against the above named five persons and the investigation was taken up by the Inspector of Police. During the course of investigation, it came to light that apart from the five named persons in the FIR, one Sakthivel, Sankar and Ramkumar were also involved in the murder. Since Sankar and Ramkumar were juveniles, the Investigating Officer filed two final reports, namely, one against the two juveniles before the Juvenile Justice Board and the other against the six accused before the regular Magistrate. The case against the juveniles was taken on file as J.C.No.82 of 2013 by the Juvenile Justice Board, Virudhunagar and the case against other six accused is now pending in S.C.No.39 of 2012 before the Additional District and Sessions Judge, Virudhunagar.
5. Solairaj (LW1) obtained certified copies of the charge sheets, 161 statements and other records and found that the Investigating Officer had deliberately batched up the case in such a manner that the accused would stand benefited, inasmuch as he has recorded the statements of two witnesses by name Ramasubbu (LW3) and Aathiappan (LW4) and in the memo of evidence attached to the final report, the Investigating Officer has averred that these two witnesses are false witnesses. Therefore, Solairaj has filed the above two petitions for de novo investigation by the CBCID.
6. Mr.Balamurugan, Inspector of Police, Aruppukkottai Town Police Station has filed a counter, wherein in Paragraph No.6, he has stated as follows:
"6. With respect to the averments of the petitioner herein in grounds are denied as false and after-thought. The investigation was conducted thoroughly and in a fair manner even though investigation is the exclusive dominion of the respondent police. The area where in the murder was committed being inhabiteted by people belonging to same clan where everyone is related in some way or have similar business dealings. Hence casting aspersions on the police is unwarranted and devoid of truth, in-fact during enquiry, it is the Petitioner herein who has stated that the witness Ramasubbu has informed him about the murder and that he alone informed him of the conspiracy hatched by the accused in murdering the deceased. Hence the witnesses A.Ramasubbu, Athiappan were enquired and their signed statement obtained which proved that they eyewitnesses who saw the aforesaid crime in the scene of crime. Tvl.C.Ramasubbu, Athiappan were taken before the Jurisdictional Magistrate namely Learned Judicial Magistrate No.II who recorded their statements under
section 164 Cr.P.C who has stated before the Learned Magistrate that he witnessed the crime being committed by accused. It is the Petitioner herein and his mother on the basis of hearsay confused the issue by deviating from Panchayatdars, ocular witnesses etc. which prompted the Assistant Director, Prosecution Department to observe that the versions stated by PW1 and PW2 are totally deviated from the versions of the occurrence witnesses. On the other hand the versions of the occurrence witnesses and the admissible portion of the confession made by the accused corroborates and further observed that the statements of occurrence witnesses namely Ramasubbu, Athiappan, Mathivanan and Thangapandian, the further 161(3) statements of the witnesses 1 and 2 the 161(3) statements of the occurrence witnesses namely Murugan, Karuppasamy, Jegannathan and Pugalenthi, the confession of the accused Mathanraj, Velraj and Sakthivel and part 1 diary of the IO and the conclusion of the IO posses 'prima facie' case against the accused and that the 161(3) statements of the witnesses Madhan and Suresh are establishing the crux of the criminal conspiracy head by the accused 1 to 8. Thus it is clear that the investigation was properly done and it is the petitioner herein and his mother as PW1 and PW2, who do not witness the crime, in their haste is confusing allegation against the respondent police which is liable to be rejected."
7. Learned counsel for the petitioner submitted that the accused are influential local politicians and that is why, they have managed to influence the Investigating Officer.
8. Heard the learned counsel for the petitioner and the learned Government Advocate (Crl.Side) appearing for the State and this Court gave its anxious consideration to the rival submissions.
9. This Court called for the records from the learned Additional District and Sessions Judge, Virudhunagar and perused the same. On a perusal of the records, it is seen that in the complaint given by Solairaj (LW1), which formed the basis for registration of the FIR, he has clearly stated that he and his mother were the eyewitnesses to the occurrence. The Investigating Officer has recorded the 161(3) statements of Solairaj (LW1) and Solaiammal (LW2) on 17.06.2011, wherein they have stated that they had seen the actual murder. Strangely the Investigating Officer has recorded a further statement from Solairaj (LW1) and Solaiammal (LW2) on 18.06.2011 as if they had not seen the occurrence and that they were told about the occurrence only by Ramasubbu (LW3) and Aathiappan (LW4).
10. According to the counter filed by the Police, they have recorded the signed statements of Ramasubbu (LW3) and Aathiappan (LW4) to the effect that they were the actual eyewitnesses to the incident. It is also stated in the counter that the Police have got the 164 Cr.P.C. statements of Ramasubbu (LW3) and Aathiappan (LW4) recorded by the learned Judicial Magistrate No.II, Virudhunagar, but the same does not find place in the Case Diary. This could either be in the Court of Judicial Magistrate No.II, Virudhunagar or it could be in the Police Station. But the fact remains that Ramasubbu (LW3) and Aathiappan (LW4) were examined before the Juvenile Justice Board in J.C.No.82 of 2013 and they turned hostile. Thus, it appears that there is an attempt by the Investigating Officer to derail the prosecution by converting Solairaj (LW1) and Solaiammal (LW2) from eyewitnesses to hearsay witnesses. It is not explained in the counter as to why in the memo of list of witnesses filed with the charge sheet, the Police have stated that Ramasubbu (LW3) and Aathiappan (LW4) are false witnesses. Though de novo investigation can be ordered by this Court, even though charge sheet has been filed, this Court is of the view that if a slew of directions are given, it would serve the interest of justice and safeguard the right to fair trial of the accused and the defacto complainant. Accordingly, these Criminal Original Petitions are ordered with the following directions:
i) Solairaj (LW1) will be entitled to the assistance of an Advocate of his choice during trial and the Public Prosecutor conducting the trial shall hold interview with Solairaj and Solaiammal before putting them in the witness box as held by the Supreme Court in the case of Banti @ Guddu vs. State of Madhya Pradesh, reported in 2003 (7) Supreme Today 691;
ii) The Deputy Superintendent of Police, Aruppukkottai shall personally monitor the Trial and attend the Sessions Court during Trial. He shall provide sufficient protection to Solairaj and Solaiammal, when they come to the Court for giving evidence.
iii) Solairaj (LW1) and Solaiammal (LW2) shall be examined by the Trial Court on the same day and they should be cross examined by the defence on the date of their examination in chief in the light of the law laid down by the Supreme Court in the case of Vinod Kumar vs. State of Punjab reported in 2015 (1) Scale 542. If the accused adopt any dilatory tactics, they can be remanded to custody as laid down by the Supreme Court in the case of urt in State of U.P. v. Shambu Nath Singh [2001(4)SCC 667];
iv) If the Public Prosecutor handling the case attempts to derail the prosecution, the Trial Court shall send a report to the District Collector and to the State Government with a copy to the High Court for appropriate action;
v) The Trial Court shall find out whether 164 Cr.P.C. statement of the witnesses have been recorded as averred by the Inspector of Police in his counter affidavit and ensure that it is brought on record and copies of the same shall also be furnished to the accused, if recorded;
vi) In the opinion of this Court, there has been an attempt by the Police to hurry up the disposal of the case in J.C.No.82 of 2013 by hurriedly examining Ramasubbu as P.W.1 and Aathiappan as P.W.2 and that they have turned hostile. Therefore, this Court is of the view that it will be in the interest of justice, if the Trial in J.C.No.82 of 2013 before the Juvenile Justice Board is stayed until the disposal of S.C.No.39 of 2012 by the Additional District and Sessions Judge, Virudhunagar. Accordingly, until disposal of S.C.No.39 of 2012, all further proceedings in J.C.No.82 of 2013 on the file of the Juvenile Justice Board, Virudhunagar is hereby stayed;
vii) The Additional District and Sessions Judge, Virudhunagar is directed to complete the trial in S.C.No.39 of 2012 within three months from the date of receipt of a copy of this order and if any of the accused absconds, a fresh FIR shall be registered against them under Section 299-A IPC by the respondent Police;
viii) After the delivery of judgment in S.C.No.39 of 2012, the Additional District and Sessions Judge, Virudhunagar shall send a communication to the Juvenile Justice Board, Virudhunagar for proceeding with the trial of the case in J.C.No.82 of 2013. Consequently, connected miscellaneous petitions are closed.
To:
1. The Additional District and Sessions Judge, Virudhunagar.
2. The Juvenile Justice Board, Virudhunagar.
3. The Superintendent of Police, Virudhunagar District, Virudhunagar.
4. The Superintendent of Police, CBCID, Chennai.
5. The Deputy Superintendent of Police, Aruppukkottai
6. The Inspector of Police, CBCID, Virudhunagar District.
7. The Inspector of Police, Aruppukkottai Town Police Station, Aruppukkottai, Virudhunagar District.
8. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..