Research › Search › Judgment

Madras High Court · body

2005 DIGILAW 1165 (MAD)

Mohan & Another v. State, Inspector of Police

2005-07-25

M.KARPAGAVINAYAGAM, S.SARDAR ZACKRIA HUSSAIN

body2005
Judgment :- S.Sardar Zackria Hussain,J. The appellant in the earlier appeal Crl.A.No.830 of 1999 is the third accused and the appellant in the later appeal Crl.A.No.489 of 2000 is the first accused in S.C.No.225 of 1997 on the file of the Principal District and Sessions Court, Coimbatore. The first accused was convicted and sentenced to undergo life imprisonment for the offence under Section 302 I.P.C. The third accused and also the second accused were convicted and sentenced to undergo life imprisonment for the offence under Section 302 read with 34 I.P.C. Both the appeals have been filed by the accused 1 and 3 challenging such conviction and sentence. No appeal has been preferred by the second accused Jothi alias Jothimani. 2. The facts that led to the filing of both the appeals are as follows:- "(a) The deceased Baskaran is the son of Lakshmanan and belongs to Kallal village near Karaikudi. The deceased was working in Sivagami Hotel at Udumalpet Bus stand and he had illicit intimacy with the second accused Jothi alias Jothimani and the second accused was also having illicit intimacy with the first accused. Second accused got married the first accused after separation from her husband Chittan. (b) P.W.1, Doraisamy, was the Village Administrative Officer, Kadathur and P.W.2, Azhagirisamy is his assistant. On 13.10.1994 at 5.00 p.m., P.W.2 came and informed P.W.1 about an unidentified dead body of a male person below the Amaravathi river bridge. P.W.1 went to the place and on seeing the dead body, he sent report Ex.P-1 to the Madathukulam Police Station through P.W.2. (c) P.W.14, Marimuthu, Sub Inspector of Police, Madathukulam on receiving the report Ex.P-1 registered the case in Crime No.307/94 under Section 174 Cr.P.C. P.W.14 went to the scene of occurrence and on finding injuries on the dead body at about 6.00 p.m. on 14.10.1994, altered the case as suspicious death under Section 174 Cr.P.C. He prepared printed F.I.R. Ex.P-10. He also prepared Express F.I.R. Ex.P-11 and forwarded the same to P.W.15, S.Gopalan, Inspector of Police, Madathukulam. (d) P.W.15 took up investigation and inspected the scene of occurrence and prepared observation mahazar Ex.P-2 in the presence of P.W.9 Saminathan and one Siddik and rough sketch Ex.P-12. He made arrangements for taking photographs (M.Os.4 to 7) by photographer P.W.4 Venkatraman. P.W.15 conducted inquest on the unidentified dead body in the presence of witnesses and panchayatars. The inquest report is Ex.P-13. He made arrangements for taking photographs (M.Os.4 to 7) by photographer P.W.4 Venkatraman. P.W.15 conducted inquest on the unidentified dead body in the presence of witnesses and panchayatars. The inquest report is Ex.P-13. P.W.15 examined P.Ws.1 to 3 and also others. He sent the unidentified body for post-mortem through P.W.12 constable with a requisition Ex.P-6. (e) On receiving the requisition Ex.P-6, P.W.11, Dr.Pathmanabhan attached to Udumalpet Government Hospital conducted post-mortem on the unidentified dead body. The post-mortem certificate is Ex.P-7. (f) On receiving the post-mortem certificate Ex.P-7 on 17.10.1994, P.W.15 altered the F.I.R. under Section 302 I.P.C. and sent the Express F.I.R. Ex.P-14 to the Judicial Magistrate, Udumalpet and other High Officials. The constable P.W.12 produced the clothes (shirt is M.O.1 and the banian is M.O.2.) of the unidentified dead body which have been recovered under mahazar Ex.P-8. P.W.15 went to P.W.6 and on seeing the shirt M.O.1 and M.O.3 label, P.W.6 informed that he stitched the shirt M.O.1 to Baskaran, who was working as server in a hotel. P.W.6 also identified the photo M.O.8 as that of Baskaran. (g) P.W.7 was working as Manager in Sivagami Hotel at Udumalpet bus stand. On seeing the photograph M.O.8, P.W.7 identified that it is of Baskaran along with the second accused. P.W.7 also informed that the second accused used to come to the hotel regularly and the deceased Baskaran used to provide tiffin to her. (h) On 22.10.1994, the second accused appeared before P.W.10, Thirumalaichami, V.A.O. of S.K.Puthur, and made extra-judicial confession orally and P.W.10 took her to the police station and produced before the P.W.15, Inspector of Police, Madathukulam. (i) P.W.15 recorded her statement, the admissible portion is Ex.P-5. The second accused took P.W.15 and V.A.O. P.W.10 to the scene of occurrence. P.W.15 prepared observation mahazar Ex.P-3 in the presence P.W.10 and one Rajamanickam. The second accused produced one stone as used by the accused at the time of the occurrence for causing the death of the deceased and the stone (M.O.11) was recovered under mahazar Ex.P-4. P.W.15 sent the second accused for remand. P.W.15 examined P.W.8, Kalimuthu at Kaniyur bus stand who informed that he had seen the accused 1 and 3 along with a lady and another five years before examination in the Court, and on the next day morning accused 1 and 3 and lady alone there. P.W.15 sent the second accused for remand. P.W.15 examined P.W.8, Kalimuthu at Kaniyur bus stand who informed that he had seen the accused 1 and 3 along with a lady and another five years before examination in the Court, and on the next day morning accused 1 and 3 and lady alone there. (j) On the retirement of P.W.15, further investigation was taken up by P.W.16, Subramaniam, Inspector of Police. Accused 1 and 3 surrendered before Court. The first accused surrendered on 5.3.1996. The third accused got anticipatory bail on 6.1.1995. After completing the investigation, P.W.16 filed the charge-sheet on 9.10.1995." 3. The accused were questioned under Section 313 Cr.P.C. with regard to the incriminating evidence let in against them by the prosecution and they denied the evidence let in against them as false and stated that a false case has been foisted against them. 4. The prosecution in proving the guilt of the accused, examined P.Ws.1 to 16, marked Exs.P-1 to P-15 and produced M.Os.1 to 11. The Sessions Court in considering such evidence let in on the side of the prosecution, convicted all the accused as above. 5. We have heard Mr.R.Karthikeyan, learned counsel appearing for the appellant in both appeals and Mr.E.Raja, learned Additional Public Prosecutor appearing for the State in both appeals. 6. The learned counsel appearing for the appellants/accused 1 and 3 vehemently contended that the prosecution has not proved the charges levelled against the accused, that the unidentified body recovered from the scene of occurrence had not been identified as that of the deceased Baskaran and no super imposition test was also conducted to identify the dead body recovered from the scene of occurrence as that of the deceased Baskaran. As regards the Extra judicial confession made orally by the second accused to P.W.10 V.A.O., it is submitted by the learned counsel for the appellants that it is unbelievable in view of the fact that it was not reduced into writing by P.W.10. With regard to the identity of the deceased said to have been made by P.W.6 Shanmughanathan, tailor on seeing the photograph M.O.8, it is argued by the learned counsel that such evidence is unacceptable and even if it is true, it cannot be said that M.O.1 shirt was recovered from the body of the deceased Baskaran. With regard to the identity of the deceased said to have been made by P.W.6 Shanmughanathan, tailor on seeing the photograph M.O.8, it is argued by the learned counsel that such evidence is unacceptable and even if it is true, it cannot be said that M.O.1 shirt was recovered from the body of the deceased Baskaran. Further, the learned counsel also argued that the unidentified dead body recovered from the scene of occurrence has not been identified as that of the deceased Baskaran. With regard to the evidence of P.W.8, Kalimuthu about his seeing lastly the deceased along with the accused and seeing the accused alone on the next day morning, according to the learned counsel, such evidence cannot be believed in view of the fact that P.W.8, who is a coolie at Kaniyur Bus stand gave such statement on 23.10.1994 and which was received by the Court only on 10.10.1995. 7. The learned Additional Public Prosecutor in supporting the case of the prosecution submitted that the second accused voluntarily appeared before the V.A.O. P.W.10 and gave the extra-judicial confession statement orally implicating her and also the accused 1 and 3 in causing the death of the deceased Baskaran, supported by the evidence of the tailor (P.W.6), who spoken about his tailoring label (M.O.3) taken from the shirt of the deceased that he stitched the shirt of the deceased Baskaran; P.W.7 Natarajan Manager of the Sivagami Hotel, who identified the deceased in the photograph M.O.8 and P.W.8, who stated that he lastly seen the deceased in the company of the accused and seen the accused alone in the next day morning. 8. As rightly argued by the learned counsel for the appellants/accused 1 and 3, the unidentified body recovered from the scene of occurrence has not been identified as that of the deceased Baskaran by conducting super imposition test and by the persons, who knew the deceased Baskaran. P.W.7, the Manager of Sivagami Hotel only stated that the deceased Baskaran was working in the hotel and identified the deceased with the second accused from photograph (M.O.8) shown to him. The accused was lastly seen by P.W.8 is unacceptable since he has admitted in cross-examination that the police requested him to give evidence as if he had seen the accused along with the deceased. The accused was lastly seen by P.W.8 is unacceptable since he has admitted in cross-examination that the police requested him to give evidence as if he had seen the accused along with the deceased. Though it is the evidence of P.W.8 that he was examined by police one week after he had seen the accused along with the deceased, it is the evidence of P.W.15 that he examined P.W.8 on 23.10.1994. The extra-judicial confession said to have been made orally to P.W.10 V.A.O. by the second accused is also not acceptable, in that, the said statement was not reduced into writing and there is no explanation as to why the statement was not reduced into writing. M.O.10 label has also not been recovered under mahazar and since no record has been produced by the tailor P.W.6 that previously he stitched shirt to the deceased Baskaran, his evidence that the label M.O.10 is his tailoring label and he stitched the shirt to the deceased is unreliable. The prosecution has not satisfactorily proved the case against the appellants beyond reasonable doubt. Therefore, the appellants as well the second accused, are entitled to acquittal though no appeal has been preferred by the second accused. 9. It is held by the Hon'ble Supreme Court in Vajrapu Sambayya Naidu – vs. - State of A.P. reported in 2004 Supreme Court Cases (Criminal) 1768 thus:- "In this view of the matter, this appeal succeeds and the appellants are acquitted of all the charges levelled against them. We notice that the cases of Accused 1 and Accused 4, namely, Thammireddy Apparao and Lanka Tatayyalu, stand on the same footing as that of the appellants. For some reason they have not preferred appeals before this Court, but we feel that in the interest of justice they are also entitled to the benefit of this judgment. We, therefore, order their acquittal as well. The appellants herein as well as Accused 1 and 4, namely, Thammireddy Apparao and Lanka Tatayyalu, if in custody, shall be released forthwith, if not required in connection with any other case. We, therefore, order their acquittal as well. The appellants herein as well as Accused 1 and 4, namely, Thammireddy Apparao and Lanka Tatayyalu, if in custody, shall be released forthwith, if not required in connection with any other case. This appeal is accordingly allowed." Therefore, the appellants as well the second accused who has not preferred appeal against her conviction, are entitled for acquittal in view of the fact the second accused stands on the same footing as that of the appellants as held by the Hon'ble Supreme Court that the benefit of the judgment is to be extended to the non-appealing accused when the appellants who filed the appeal are entitled for acquittal. 10. In the result, both the appeals are allowed. The conviction and sentence imposed on the appellants are set aside as well on the second accused Jothi alias Jothimani also who has not preferred any appeal against her conviction, in that, she stands on the same footing as that of the appellants. The bail bonds executed by the appellants are cancelled. The second accused Jothi alias Jothimani is directed to be released forthwith, if not required in connection with any other case.