Arjunan, Gopalan, Chellasamy and Alangamony vs State

M. Chockalingam, J.—This judgment shall govern the above three criminal appeals, namely, Crl. A. (MD) Nos. 175, 320 and 400 of 2005. The appellants in Crl.A. No. 175 of 2005 are accused Nos. 1 and 4, the appellant in Crl.A. No. 320/2005 is accused No. 3 and the appellant in Crl.A. No. 400/2005 is accused No. 2 in the Sessions Case No. 226 of 2002 on the file of the learned Sessions Judge, Kanyakumari Division at Nagercoil. One of the accused by name Appadurai, involved in the case, was absconding and therefore the case was split up and the trial went on in S.C. No. 226/2002 in respect of the above accused alone. These four accused stood charged, tried and found guilty by the trial court as under:

Accused No. Charge Conviction and setence Accused 1 to 4 u/s 120-B IPC All the accused found guilty, but no separate sentence was imposed. Accused 1 to 4 u/s 147 IPC All the accused found guilty and each of them were sentenced to undergo six months rigorous imprisonment and to pay a fine of Rs. 100/-, in default to undergo one month rigorous imprisonment. Accused 1 to 4 u/s 364 IPC All the accused found guilty and each of them were sentenced to undergo three years rigorous imprisonment and to pay a fine of Rs. 100/-, in default to undergo one month rigorous imprisonment. Accused 1 to 4 u/s 302 r/w 149 IPC All the accused found guilty and each of them were sentenced to undergo life imprisonment and to pay a fine of Rs. 100/-, in default to undergo one month rigorous imprisonment. Challenging the above stated conviction and sentence, the appellants have filed these appeals.

The short facts necessary, sans unnecessary facts, for the disposal of the appeal can be stated thus:

(a) P.W.1 Kamalabai is the wife of the deceased and residing in Poottetri village. P.W.1''s husband Kamalaiyan (since deceased) was working as a constable in the Armed Reserved Force. On 01.01.1997, since it was New Year Day, at about 11.00 a.m., the deceased came to the house on permission. In the evening hours, the deceased told P.W.1 that he should be present at 8.00 p.m. for Roll Call and therefore he came out of the house at 5.00 p.m. and P.W.1, who was in the house, also came out of the house. At that time, the absconding accused Appadurai came there and scolded the deceased using filthy words and the same was questioned by the deceased. Thereafter the deceased proceeded towards the nearby bus-stop and at that time, accused Appadurai got into an Ambassador Car bearing Regn. No. TCK 5070, in which some more persons were also inside, and proceeded in the direction in which the deceased was proceeding and doubting the conduct of the accused Appadurai, P.W.1 followed the car. The accused dashed the car against the deceased who was standing in the bus-stop and also went near to him and accused Nos. 2 and 4, who got down from the car, pushed the deceased inside the car which was driven by accused No. 1 and thereafter the car proceeded about 200 to 300 feet and inside the car the deceased was beaten by all the accused and thereafter the accused pushed down the deceased from the car. The entire incident was not only witnessed by P.W.1 but also by P.W.2 and others. When there was a crowd gathered, they proceeded to the place where the deceased was lying and since he was in a serious condition, P.W.1 took her husband directly to Government Hospital, Kottar without informing the matter to the police at that time.

(b) P.W.15, the doctor attached to Government Headquarters Hospital, Nagercoil, examined the injured Kamalaiyan and gave him first aid treatment for the injuries sustained by him and Ex.P-16 is the Accident Register given to him. The referred Kamalaiyan to Tiruneveli Medical College Hospital for better treatment.

(b) P.W.10, the Head Constable, attached to respondent police station, on receipt of intimation from Traffic Police at 08.30 p.m. on 01.01.1997, proceeded to the said police, obtained Ex.P-6 intimation and went to the Government Hospital, where he obtained Ex.P-1, the complaint, given by P.W.1, returned to police station and registered a case in Crime No. 1/1997 under Sections 279, 337 and 307 IPC at 03.00 a.m. on 02.01.1997 and prepared Ex.P-7, the First Information Report, and sent the original FIR to the Court through P.W.12, Grade-I Constable and the copies to the higher police officials.

(c) P.W.13, the Inspector of Police, on receipt of copy of Ex.P-7, took up the investigation, proceeded to the spot, made an inspection of the place of occurrence, prepared Ex.P-2, the observation mahazar, in the presence P.W.6 and other witnesses. He also drew Ex.P-12, the rough sketch. He received Ex.P-13 intimation as to the death of the injured Kamalaiyan, who died at Thiruvanandapuram Medical College Hospital and based on that he altered the case u/s 279, 338 and 302 IPC and prepared Ex.P-14, the Express FIR. On 03.01.1997, at 8.00 p.m., he went to Thiruvanandapuram Medical College Hospital, conducted inquest on the dead body in the presence of panchayatdars and prepared Ex.P-15, the inquest report and sent the body for postmortem.

(d) P.W.9, the doctor attached to Thiruvanandapuram Medical College Hospital, on receipt of Ex.P-4 requisition from the investigator, conducted postmortem on the body of the deceased at 1.45 p.m. on 03.01.1997 and after postmortem she issued Ex.P-5, the postmortem certificate, wherein she has opined that the death was due to head injury sustained. In continuation of his investigation, P.W.13, the Inspector of Police, recovered the bloodstained clothes of the deceased, namely M.Os. 1 and 2, produced by his wife under Ex.P-3 mahazar, attested by P.W.7. He examined some witnesses and recorded their statements.

(e) P.W.16, the Inspector of Police, arrested accused No. 2 Alangamony and accused No. 4. Gopalan at 4.00 a.m. on 10.01.1997 in the presence of witnesses and recorded their confessional statements and thereafter subjected them to judicial custody. On 29.01.1997, in the presence of P.W.8 and two other witnesses, he recovered M.O.3, the car bearing Regn. No. TCK 5070, M.O.4, stepne tyre and M.O.5, used tyre, under Ex.P-17 mahazar. He gave Ex.P-8 requisition to the Court to subject the material objects to chemical examination. The material objects were sent to the Forensic Department under Ex.P-9, the letter of the Court, which resulted in two reports, namely Ex.P-10, the Chemical Examiner''s Report and Ex.P-11, the Serologist''s Report.

(f) P.W.14, the Inspector of Police, who conducted further investigation, arrested accused No. 1 Arjunan at 5.30 p.m. on 03.04.1998 in the presence of witnesses and remanded him to judicial custody. P.W.17, the Inspector of Police, took up the further investigation, verified the papers, completed the investigation and filed the final report against the accused/appellants.

The case was committed to the Court of Session and necessary charges were framed. To substantiate the charges levelled against the accused, the prosecution marched 17 witnesses as P.Ws.1 to 17 and relied on Exs.P-1 to P-17 as well as M.Os.1 to 5. On the completion of the evidence on the side of the prosecution, the accused were questioned u/s 313 of the Code of Criminal Procedure as to the incriminating circumstances found in the evidence of the prosecution witnesses. The accused denied them as false. No defence witness was examined. On completion of the evidence, the trial court heard the arguments advanced on either side and took the view that all the accused/appellants committed the offence alleged against them, convicted and imposed the sentences as referred to earlier. Hence, these appeals at the instance of the appellants.

Advancing their arguments on behalf of the appellants, the learned Counsel inter alia made the following submissions:

(a) According to the prosecution, the occurrence has taken place at about 05.30 p.m. on 01.01.1997 at Thazhayankottai Bus-Stop and the respondent police station is situated within 3 k.ms., from the place of occurrence. In the instant case, according to the prosecution, the statement of P.W.1 was recorded by P.W.10 at about 11.00 p.m. on 01.01.1997 when she was in the hospital and on the strength of which a case came to be registered by the respondent police at 03.00 a.m. on 02.01.1997. The learned Counsel for the appellants would submit that in the instant case, the F.I.R reached the Court only at 01.30 p.m. on 02.01.1997 and thus delay is noticed both in the registration of the case and the F.I.R. reaching the Court and the same remains unexplained, which would go to the root of the case and thus there was all possibilities to add all versions possible and also embellished versions and hence Ex.P-1, the complaint, could not be relied on.

(b) The learned Counsel would further add that in the instant case, the occurrence, according to the prosecution, had taken place at about 05.00 p.m, and P.Ws.1 to 6 have witnessed the occurrence. But, P.Ws.2, 5 and 6 have turned hostile and therefore from the evidence of P.W.1, it would be very clear that she has not seen the occurrence at all. Further, in her earliest statement given to P.W.15, the doctor who admitted the deceased in the hospital, she has stated that it was a road accident and thus it would be clear that the entire prosecution case that the appellants/accused committed the offence pursuant to the conspiracy was either false or P.W.1 could not have seen the occurrence.

(c) Learned Counsel added further that among the evidence available to them, the prosecution much relied on the evidence of P.W.3 for the purpose of making out a case of alleged conspiracy and the lower court also relied on the same. It is pertinent to point out that in so far as the evidence of P.Ws.3 and 4 are concerned, though their statements u/s 161 Cr.P.C were came to be recorded by the Investigating Officer on the next day of occurrence itself i.e. on 02.01.1997, they have reached the court only in the month of June, 1999, i.e. after nearly 2-1/2 years and thus it would be quite clear that had they been eye-witnesses and their statements were recorded immediately, there was no reason for sending them after 2-1/2 years. Thus, the evidence of only witness for conspiracy, namely P.W.3, could not be believed in that regard and therefore that part of the case of the prosecution for conspiracy would go and if the case of conspiracy is not believed, the entire case of the prosecution must fall.

(d) The learned Counsel would further add that in the instant case, so far as P.W.3 and P.W.4 are concerned, they could not have seen the occurrence at all. According to prosecution, the inquest report reached the Court on 04.01.1997 and in that report there is reference only to four accused, namely accused No. 1, the absconding accused Appathurai and two other accused and it does not contain the name of the 4th accused. Learned Counsel further submitted that insofar as accused Nos. 2 and 3 are concerned, their names, fathers'' name and the place to which they belong mentioned in the inquest report would differ from the other materials available and thus it would be quite clear that the inquest report even does not refer to the names of accused Nos. 2 and 3, who were before the Court and thus their involvement in the occurrence is highly doubtful. In the instant case, so far as accuse Nos. 2 and 3 are concerned, the only evidence available for the prosecution is that of P.Ws.3 and 4 but, their evidence could not be relied on for the aforesaid reasons.

(e) So far as accused No. 4 is concerned, learned Counsel would further add that P.W.1 does not refer to him either in Ex.P.1 complaint or in her evidence. P.W.4, though claimed to be an eye-witness, does not refer to the name of accused No. 4 or his participation or his role and the inquest report also does not speak about accused No. 4. Apart from this, no identification parade was conducted in respect of all these accused.

(f) Added further, in the instant case, the Doctor who actually admitted the deceased alone was examined, but the doctor who examined the deceased in the Thiruvanandapuram Medical College Hospital and gave treatment was not examined and further even the case sheet and the doctor''s certificate who actually gave treatment have not been produced before the Court.

(g) Insofar as P.W.3''s evidence is concerned, learned Counsel for the appellants submitted that P.W.3 would state that the entire occurrence had taken place outside the car, while the prosecution case is that the entire occurrence has happened inside the car and thus it would go to show that P.W.3 and P.W.4 could not have seen the occurrence at all. Under such circumstances, P.W.1 also could not have seen the occurrence. P.W.2, P.W.5 and P.W.6 have turned hostile and the evidence of P.W.3 and P.W.4 could not be believed for the reasons stated above. Apart from the above, no other evidence is available for the prosecution and in such circumstances, all the accused are entitled for an acquittal in the hands of this Court.

The Court heard the learned Additional Public Prosecutor on the above contentions. The Court paid its anxious consideration to the submissions made by the counsel on either side and also scrutinised the materials available on record.

It is not the fact in controversy that one Kamalaiyan, a constable attached to Armed Reserve Force and the husband of P.W.1, at the time of the occurrence, who was just moving out of his house, was dashed with a car, thereafter dragged into the car, attacked and thrown out of the car, following which he was initially taken to the Nagercoil Government Headquarters Hospitals, examined by P.W.15 and despite further treatment given at Tiruvanandapuram Medical College Hospital, he succumbed to injuries. The doctor who conducted post-mortem was examined as P.W.9 and she has given a categorical opinion that Kamalaiyan died out of the injuries sustained on the head and the post-mortem certificate has also been marked as Ex.P-5. The evidence of post-mortem doctor and the contents of the post-mortem certificate would clearly show that Kamalaiyan died out of head injuries. Further, in the instant case, the accused/appellants never questioned the cause of death of Kamalaiyan at any stage of the proceedings and hence, without any hesitation, it has got recorded that Kamalaiyan died due to the injuries sustained and it was a homicidal death.

In order to substantiate its case, the prosecution relied on the direct evidence. The case of the prosecution is that there was a conspiracy among the accused and pursuant to the conspiracy hatched up, all the accused, five in number, i.e. the four appellants in these three appeals and one Appadurai, the absconding accused, committed the offence at the time of the occurrence.

Insofar as the conspiracy part is concerned, the only witness is P.W.3. According to P.W.3, he was a witness to the conspiracy hatched up among the accused and also he witnessed the occurrence in question. The occurrence has taken place on the 1st day of January, 1997 and the statement of the said witness was also recorded on the next day but, it has reached the Court, for the reasons best known to the prosecution, only in June, 1999 and thus there is a delay of 2-1/2 years. Thus, insofar as the conspiracy is concerned, except the evidence of P.W.3, nothing is available for the prosecution. Hence, it has to be stated at this stage itself that the prosecution has not proved the conspiracy portion and thus the prosecution has failed.

Insofar as the occurrence is concerned, according to the prosecution, just prior to the occurrence, when the accused and P.W.1 and their children were in the house, the absconding accused came to the house and used flighty language against the deceased and following which, the deceased went out of the house to board a bus and immediately the absconding accused Appadurai got into a car and proceeded in the direction in which the deceased was proceeding and on seeing this P.W.1 also followed the car. Accused No. 1, who drove the car, dashed it against the deceased and then Accused Nos. 2 and 3 got down from the car, pushed the deceased inside the car and after taking him to some distance and attacking him, they pushed down the deceased and thereafter all the accused fled away from the place of occurrence in the car.

Insofar as the evidence of P.W.1 is concerned, it is true that when she took her husband to the hospital she informed to the Doctor that there was a road accident. From this point of view, it could be easily inferred that she has not seen what took place inside the car. But, her evidence remains intact in respect of two facts that the absconding accused Appadurai came to the house and used flighty language against the deceased, her husband and when the deceased proceeded towards the bus-stop, the absconding accused got into M.O.3, the car, which was driven by Accused No. 1 and Accused No. 1 dashed the car against the deceased and then the deceased was pushed inside the car. To that extent, the evidence of P.W.1 is clear and thus the involvement of Accused No. 1 in the incident in question is clearly spoken to by P.W.1. Apart from that, what she witnessed was only the dashing of the Ambassador Car against her husband and therefore she has narrated the incident as an accident to P.W.15, the Doctor, and thus to that extent the prosecution had the benefit of the evidence of P.W.1.

Insofar as the occurrence part is concerned, the prosecution has examined P.W.2 to P.W.6 examined as eye-witnesses to the occurrence and out of these witnesses, P.W.2, P.W.5 and P.W.6 have turned hostile. The lower Court discussed the evidence of P.W.6 and has also pointed out that his evidence cannot be accepted in respect of the occurrence part but it can be relied on only for the purpose of observation mahazar and it has rightly done so. Thus, the evidence available for prosecution is that of P.Ws.3 and 4. When the evidence of P.Ws.3 and 4 are scrutinised, the Court is of the considered opinion, that for so many reasons, their evidence is highly doubtful. Firstly, according to prosecution, P.W.3 and P.W.4 were also available in the occurrence place at the time of occurrence. The investigator has that he recorded Section 161 Cr.P.C. statements from them on the next day of occurrence, i.e. 02.01.1997 but, they have reached the Court only after 2-1/2 years, along with the charge sheet and there no explanation was forthcoming. This, in the considered opinion of the Court, is a strong circumstance pointing to the doubt whether P.Ws.3 and 4 would have been present in the spot at the time of occurrence.

Further, Ex.P-15, the inquest report has come into existence in the next day. At the time of inquest, names of four accused are mentioned in the inquest report and the witnesses names were also present. But, from the inquest report, out of these four accused, the name of the 4th accused/2nd appellant in Crl.A. No. 175/2005, namely Gopalan, is not at all found mentioned. A perusal of the inquest report would clearly reveal the names of Accused No. 1 and the absconding accused Appadurai and the names of two accused as Chellasamy, S/o. Muthusamy of Olipuramvillai village and Alangamony, S/o. Madasamy of Iruppichanvillai village. But, the persons who speak about the availability of accused Nos. 2 and 3 are only P.Ws.3 and 4. As already stated, their evidence is highly doubtful. It is also pertinent to point out that the names of these two accused, as found in the inquest report, thoroughly differ from all other materials. As pointed out by the learned Counsel for accused Nos. 2 and 3, as far as the name of accused No. 3 is concerned, in the inquest report it is mentioned as Chellasami, son of Muthusamy of Olippuramvilai village but, actually, in all other materials available before the court, his name is mentioned as Chellasamy, son of Selvamani Nadar of Thanivilai Village. Likewise, as far as the name of accused No. 2 is concerned, in the inquest report, it is mentioned as Alangamony, son of Madasamy of Iruppichanvilai village but, actually, in all other materials before the Court his name is mentioned as Alangamony, son of Madasamy of Pootteteri. Thus, it is not clear as to whether the persons who are shown in the inquest report are the accused before the Court and, as contended by the learned Counsel for the appellants, this would leave a doubt in the mind of the Court whether it was actually the present accused Nos. 2 and 3 who are said to have involved themselves in the crime along with other accused. In so far as accused No. 4 is concerned, his name does not find place in FIR and P.W.1 does not state in her evidence anything about accused No. 4. Further, as stated earlier, the name of accused No. 4 does not find place in the inquest report.

In such circumstances, the Court is of the considered opinion that the prosecution has not proved and brought home the guilt of accused Nos. 2 to 4 and at the same, from the available evidence, the Court is able to see that accused No. 1 Arjunan and the absconding accused Appadurai are involved in the commission of the crime and their common intention was the cause for the death of the deceased. The evidence on record would show that it was accused No. 1 who drove the car and dashed against the deceased and after dragging him inside the car and attacking him, they thrown him out of the car and to that extent the prosecution has clearly established the guilt of accused No. 1 and also the absconding accused Appadurai, who shared the common intention.

In the instant case, the prosecution has miserably failed to prove the alleged conspiracy and also the involvement of accused Nos. 2 and 4 in the crime and thus the judgment of lower court in respect of accused Nos. 2 to 4 and in so far as finding accused No. 1 guilty for the charge of conspiracy has got to be set aside. At the same time, while the judgment of the lower in all other aspects has got to be sustained, the conviction of accused No. 1 u/s 302 read with Section 149 IPC requires to be modified into one u/s 302 read with Section 34 IPC.

In the result,

(i) Crl.A.(MD)No. 175 of 2005 is partly allowed and the conviction and sentence imposed on Appellant No. 2/Accused No. 4 are set aside and he is acquitted of the charges levelled against him. He is directed to be released forthwith, unless his presence is required in connection with any other case. In so far as Appellant No. 1/Accused No. 1 is concerned, the conviction and sentence imposed on him u/s 120-B IPC alone is set aside and while convicting him u/s 302 read with Section 34 IPC and sentencing him to undergo life imprisonment instead of u/s 302 read with Section 149 IPC, in all other aspects, the judgment of trial court in respect of Accused No. 1 is confirmed.

(ii) Crl. A. (MD) No. 320 of 2005 is allowed and the conviction and sentence imposed by the trial court on accused No. 3/Appellant are set aside and he is acquitted of all the charges levelled against him. He is directed to be released forthwith unless his custody is required in connection with any other case.

(iii)Crl.A.(MD)No. 400/2005 is allowed and the conviction and sentence imposed by the trial court on Accused No. 2/Appellant are set aside and he is acquitted of all the charges levelled against him. He is directed to be released forthwith unless his custody is required in connection with any other case.