Kaleeswaran vs State

M. Chockalingam, J.—Challenge is made to a judgment of the Sessions Division, Sivagangai, made in S.C. No. 73 of 2006 whereby the appellant/A-1 along with two others ranked as A-2 and A-3, stood charged namely A-1 to A-3 u/s 120-B of IPC, A-1 u/s 302 of IPC and A-2 and A-3 u/s 302 read with 109 of IPC, and on trial, A-1 was found guilty u/s 302 of IPC and awarded life imprisonment along with a fine of Rs. 1000/- and default sentence, while the trial Judge acquitted A-1 of the charge u/s 120-B of IPC and acquitted A-2 and A-3 of all the charges.

Shorn off unnecessary details, the facts of the prosecution case can be stated as follows:

(a) P.W.1 is the wife of the deceased Rajendran. The deceased, his wife P.W.1 and A-1 to A-3 are the residents of Thiruppuvanam. A-1 and the deceased are closely related. A-2 is the friend of A-1. A-3 is the close relative of A-1. The deceased Rajendran and A-1 owned an immovable property jointly. Rajendran was demanding for the sale of the same. On that count, there were litigations, and they were quarrelling also. On that ground, A-1 had developed grudge against the deceased. A-2 was owning a rice mill where a shed was raised. On that ground, A-2 and the deceased were on inimical terms.

(b) On 3.9.2003, at about 6.00 P.M., A-1 to A-3 hatched up a conspiracy in order to do away the said Rajendran. On the next day i.e., 4.9.2003, P.W.1 accompanied by her husband Rajendran, proceeded to the bazaar at about 6.30 P.M. After purchase of the household articles, she was standing on the one side of the road when Rajendran went to the shop on the other side. At that time, A-1 armed with veecharuval attacked him indiscriminately. This was witnessed not only by P.W.1, but also by P.Ws.2, 3 and 5 to 7. When there was a distressing cry, a huge crowd gathered since it was a bazaar. Then the appellant/accused was running with the weapon of crime. The same was witnessed by P.Ws.4, 8 to 11, 20 and 21. The said Rajendran met instantaneous death at the spot.

(c) Immediately, P.W.1 proceeded to the respondent police station where P.W.24, the Inspector of Police of the Circle, was present to whom she gave a complaint, Ex.P1, on the strength of which a case came to be registered in Crime No. 280 of 2003 under Sections 341 and 302 read with 109 of IPC. The printed FIR, Ex.P17, was despatched to the Court. Then P.W.24 took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P18, and also a rough sketch, Ex.P19. He conducted inquest on the dead body of Rajendran and prepared Ex.P21, the inquest report.

(d) While the investigation was on, on 5.9.2003 at about 2.00 A.M., A-1 appeared before the Village Administrative Officer (VAO) namely Sundararajan, who is no more, and gave a confessional statement. The same was recorded by the VAO, and A-1 along with M.O.1, veecharuval, and Ex.P23, the extra-judicial confession given by him, was produced before the Investigator. Then, P.W.24 caused arrest of A-1 and also sent him for judicial remand. P.W.24 also recorded the statements of witnesses, and the dead body was sent to the Government Hospital for the purpose of autopsy.

(e) P.W.17, the Assistant Surgeon, attached to the Government Headquarters Hospitral, Sivagangai, on receipt of the requisition, conducted autopsy on the dead body of Rajendran and has issued a postmortem certificate, Ex.P6, with his opinion that the deceased would appear to have died due to haemorrhage and shock and injury to the brain and died 16 to 18 hours prior to autopsy.

(f) All the material objects recovered from the place of occurrence and from the dead body, and also M.O.1, weapon of crime, were subjected to chemical analysis by the Forensic Sciences Department pursuant to a requisition given by the Investigator through the concerned Judicial Magistrate''s Court. Exs.P10 and P11 are the chemical analyst''s reports, and Ex.P12 is the serologist''s report. On completion of investigation, P.W.24 filed the charge sheet against all the three accused under Sections 120(b) and 302 of IPC.

(g) In the meantime, P.W.1 moved this Court by way of Crl.O.P. for re-investigation. The same was dismissed. Then she presented a petition before the Chief Minister''s Cell, and the same was ordered. Then the investigation was directed to be done by the CB CID by a Government Order marked as Ex.P26. Thereafter, the further investigation was taken up by P.W.25, the Inspector of Police, CB CID. He also recorded the statement of P.W.4, and on completion of investigation, filed the final report against the accused under Sections 120(b), 341 and 302 read with 109 of IPC.

The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution marched 25 witnesses and also relied on 32 exhibits and 9 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned u/s 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. But Exs.D1 to D5 were marked on their side. The trial Court heard the arguments advanced on either side, and took the view that the prosecution has proved the case beyond reasonable doubt in respect of the charge levelled against A-1 u/s 302 of IPC and hence found him guilty and awarded the punishment as referred to above. However, the trial Judge found A-2 and A-3 not guilty and acquitted them of all the charges levelled against them, while A-1 was acquitted of the other charge u/s 120(B) of IPC. Hence this appeal at the instance of A-1 before this Court.

Advancing arguments on behalf of the appellant, the learned Senior Counsel Mr. V. Gopinath would submit that in the instant case, according to the prosecution, the occurrence has taken place at about 7.30 P.M., and the case was registered by P.W.24 by 8.00 P.M. on the strength of Ex.P1, the complaint, alleged to have been given by P.W.1; that it is highly doubtful whether P.W.1 could have been present at the place of occurrence; that apart from P.W.1, the prosecution marched P.Ws.2, 3 and 5 to 7 as eyewitnesses; but, they have turned hostile; that the prosecution also marched P.Ws.4, 8 to 11, 20 and 21 as persons who witnessed the appellant/accused running with the weapon of crime; that it is unfortunate to the prosecution that they have also turned hostile, and thus the prosecution had the evidence of P.W.1 only before the trial Court; that it is categorically admitted by her that the police station is situated within 100 feet from her residence, and one of her brothers is a practising advocate, and the other is the Sub Inspector of Police; and that all would go to show that Ex.P1 has got all its embellishments and fabrications.

Added further the learned Senior Counsel that the occurrence itself could not have taken place as put forth by P.W.1; that according to P.W.1, after the investigation was over, P.W.24 filed the charge sheet, but not satisfied with the same that the real culprits were not added, she moved a petition before this Court, and this Court also dismissed the same; that thereafter she moved the Government pursuant to which a G.O. came to be passed, and the matter was entrusted to P.W.25 for re-investigation u/s 173 of Cr.P.C.; that P.W.4 was examined and additional statement of P.W.1 was recorded; that all would clearly indicate that P.W.1 was not satisfied with the earlier investigation done and the charge sheet laid; and that apart from that, in the instant case, the trial Judge was not ready to believe the evidence put forth by the prosecution in respect of the conspiracy part or the participation of A-2 and A-3 in the crime in question, and thus rejected the case of the prosecution and acquitted them.

The learned Senior Counsel would further add that according to P.W.1, Ex.P1 was written by one Mr. Rajan; but he was not examined before the trial Court; that the occurrence has taken place at about 7.30 P.M., and the police station is situate within half a kilometre; that according to P.W.1, Ex.P1 was given to the police officials within half an hour; and that it also casts a doubt whether Ex.P1 could have been given.

Added further the learned Senior Counsel that though the prosecution came forward with a specific motive that an immovable property was jointly owned by the deceased Rajendran and A-1, and there was a quarrel over the division of the same, and in such circumstances, Rajendran developed grudge over him, hatched up a conspiracy with A-2 and A-3 and killed him at the time of occurrence; but P.W.1 has not even whispered either in the complaint or in the statement recorded u/s 161 of Cr.P.C., about the said motive; that it is pertinent to point out that the investigation was taken up by P.W.25, the Inspector of Police, CB CID, and the additional statement was recorded from P.W.1 as if there was a motive; and that this would clearly be indicative of the fact that the prosecution had no motive to offer for the alleged act of A-1.

Added further the learned Senior Counsel that as far as the VAO is concerned, since he is dead, his menial has been examined as P.W.19; that according to him, A-1 appeared before the VAO and gave an extra-judicial confession which was also recorded by the VAO in his presence, and M.O.1, weapon of crime, was also recovered from him; that it would be indicative of the fact that it could not be given any evidentiary value; that under the circumstances, no motive could be attributed; that apart from that, it is highly doubtful whether P.W.1 could have seen the occurrence, and how Ex.P1 came into existence is also doubtful; that apart from that, the medical opinion canvassed cannot be relied; that all the witnesses have turned hostile; that under the circumstances, the trial Judge should have acquitted the appellant/accused, but has taken an erroneous view both factually and legally; that for the above reasons, it would be highly unsafe to sustain a conviction, and hence he is entitled for acquittal in the hands of this Court.

The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.

It is not in controversy that one Rajendran the husband of P.W.1, was done to death in an incident that had taken place at about 7.30 P.M. on 4.9.2003, in a public bazaar at Thiruppuvanam. Following the inquest made by P.W.24, the Investigator, the dead body was subjected to postmortem by P.W.17, the Doctor, who has given a categorical opinion as a witness before the Court and also through the contents of the postmortem certificate that he died out of shock and haemorrhage due to the injury to brain. This fact was never disputed by the appellant before the trial Court or before this Court. Hence no impediment is felt in recording so.

In order to substantiate that pursuant to the conspiracy hatched up by A-1 along with A-2 and A-3, at the time of occurrence, A-1 attacked the deceased with M.O.1, veecharuval and caused his death instantaneously, the prosecution marched P.Ws. 1, 2, 3 and 5 to 7 as eyewitnesses and also in order to substantiate that the accused was running from the place of occurrence with the weapon of crime, examined P.Ws.4, 8 to 11, 20 and 21. Unfortunately, except P.W.1, all others have turned hostile, and thus, the evidence of P.W.1 was only available for the prosecution. Now, it is pertinent to point out that merely because P.W.1 was the only solitary evidence or because of the reason that she happened to be the wife of the deceased, her evidence cannot be brushed aside since the Court must look for quality of evidence and not the quantity. As far as P.W.1 is concerned, despite careful scrutiny, her evidence, in the considered opinion of this Court, inspired the confidence of the Court. P.W.1 is the wife of the deceased Rajendran. The first comment made by the learned Senior Counsel for the appellant that the motive part was absolutely absent at the time of the earliest document namely Ex.P1, cannot be accepted. The very reading of Ex.P1 would clearly indicate that A-1 had got property dispute with the deceased. On the date of occurrence, according to P.W.1, she accompanied her husband, and they were proceeding in the bazaar, and after the purchase of goods, she was standing on the one side of the road, while her husband went to the other side of the road, and at that time, the occurrence has taken place. Thus, it would be quite clear that the distance between the place where she was standing, and the place where the occurrence has taken place, is not far off, but nearby and that too in a public bazaar. It can be well stated that in the case on hand, P.W.1''s evidence in respect of the incident in the case that it was A-1 who attacked the deceased at the time and place of occurrence, despite cross examination in full, remained unshaken.

The other circumstances which would indicate that her evidence is true and genuine, are that the occurrence has taken place at about 7.30 P.M., and immediately she rushed to the police station and gave Ex.P1, the report, and the case was registered by P.W.24, the Inspector of Police, at about 8.00 P.M. Further, the FIR has also reached the Judicial Magistrate, Manamadurai, on the night hours of the very day, wherein the narration of the incident has been clearly stated. All these factors would clearly indicate that the evidence of P.W.1 cannot but be true.

As far as the other contention put forth by the learned Senior Counsel that after the investigation was made by P.W.24 and after the charge sheet was laid, she was not satisfied, and then she moved this Court by way of Crl.O.P., and that petition was dismissed, and thereafter, she preferred a petition before the Chief Minister''s Cell, and a G.O. was made, and following the same, the further investigation was handed over to the CB CID, and it was also taken up by P.W.25 is concerned, it is pertinent to point out that from the evidence of P.W.25 it would be quite clear that after taking up further investigation, he has examined only P.W.4 and added a few provisions of law, and all the earlier statements made by the witnesses, were found to be actually relied upon. In the considered opinion of the Court, no improvement was made or anything was added when the charge sheet was laid by the CB CID.

Added evidence in favour of prosecution what is noticed by the Court, is the extra-judicial confession made by A-1 to the VAO. The VAO is dead, and hence he could not be examined. It is spoken to by his Menial examined as P.W.19, who was present at that time. Under the circumstances, the trial Judge has relied upon the same. Thus, the prosecution has these two pieces of evidence namely P.W.1 as the direct evidence and also the extra-judicial confession made by the appellant/accused to the VAO. It is pertinent to note that he was also produced before the Investigator, and following the same, M.O.1, veecharuval, has actually been recovered. It is also sent for analysis along with the other material objects, and scientific evidence was also put forth before the trial Judge.

Now the contention put forth by the learned Senior Counsel for the appellant is that had it been really true that P.W.1 purchased the goods from the bazaar, and she was keeping in hand all those things which were scattered on the ground, and in such circumstances, the Investigator, P.W.24, should have recovered the same at the time of investigation, but not done so, and this would cast a doubt on the prosecution case. It is true that it was an irregularity committed by the Investigator. In the considered opinion of the Court, while the other evidence are available clinchingly pointing to the guilt of A-1, such irregularity committed will not stand in the way of taking a correct decision in the case. Apart from the above, the medical opinion canvassed, also stood in favour of the prosecution. Thus, the contentions put forth by the learned Senior Counsel for the appellant, do not carry merit whatsoever. The trial Judge has marshalled the evidence proper, and he did not find any evidence for conspiracy and hence rejected that part of the case.

As far as A-2 and A-3 are concerned, the prosecution had no evidence to offer. Under the circumstances, the trial Judge has rejected the case of the prosecution insofar as A-2 and A-3.

As far as A-1, the present appellant, is concerned, the trial Judge was perfectly correct in holding that there was sufficient evidence pointing to the guilt of A-1 that it was he who attacked the deceased Rajendran at the time and place of occurrence and caused his death instantaneously. Awarding life imprisonment, in the considered opinion of this Court, is correct. Hence no infirmity is noticed in the judgment of the trial Judge either factually or legally.

Accordingly, this criminal appeal fails, and the same is dismissed confirming the judgment of the trial Court.