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2006 DIGILAW 1702 (MAD)

Chakkarai & Another v. R. Selvakumar & Others

2006-07-07

A.C.ARUMUGAPERUMAL ADITYAN, M.KARPAGAVINAYAGAM

body2006
Judgment :- (Appeals filed under Section 374 Cr.P.C. against the judgment of conviction and sentence passed by the Additional Sessions Judge (Additional Fast Track Court), Ariyalur in S.C.No.235/2002 dated 28.03.2003.) Common Judgment: (M. Karpagavinayagam, J.) The appellants are Accused 1 to 9. A1 has been convicted for the offence under Sections 148 and 302 I.P.C. and sentenced to undergo one year RI for the offence under Section 148 I.P.C. and life imprisonment for the offence under Sections 302 and to pay a fine of Rs.10,000/-, in default to undergo six months SI; and A2 to A9 have been convicted for the offence under Sections 147 and 302 read with 114 and 149 IPC and each sentenced to undergo six months SI for the offence under Section 147 IPC and to pay a fine of Rs.500/-, in default to undergo SI for one month and life imprisonment for the offence under Section 302 read with 114 and 149 IPC and A2 to A7 alone have been sentenced to pay a fine of Rs.5,000/- in default to undergo SI for three months and the sentences were ordered to run concurrently. Challenging the same, A4 has filed Crl. Appeal No.719/2003, A2, A3 and A5 to A9 have filed Crl. Appeal No.940/2003 and A1 has filed Crl. Appeal No.962 of 2003. 2. The facts leading to the conviction are as follows:- a) The deceased Rangaswamy had two wives. The first wife is Rajamani/A7. The second wife is P.W.1 Malar. Both wives lived separately in the adjacent portion of the house. A2 Selvakumar, son of the deceased born through the first wife was working in military. He came to the village on obtaining leave from military during the relevant time. The deceased was a drunkard. So, he went on selling his properties to others. On coming to know that the deceased planned to sell some more properties, A7 Rajamani got afraid that her husband would sell away all the properties leaving anything to her and her son. Therefore, A7 Rajamani hatched conspiracy with A2 and also took help from seven other persons, viz., the other accused to kill the deceased so that the remaining properties would be safeguarded. b) The fateful occurrence took place on 16.6.1999. On the said night, the deceased was sleeping in front of the house in a cot. Therefore, A7 Rajamani hatched conspiracy with A2 and also took help from seven other persons, viz., the other accused to kill the deceased so that the remaining properties would be safeguarded. b) The fateful occurrence took place on 16.6.1999. On the said night, the deceased was sleeping in front of the house in a cot. P.W.1 the second wife of the deceased and son P.W.4 Ramesh were taking bed inside the house. At that point of time, all the accused came to the house of the deceased. A8 and A9 were standing near to the place keeping vigil over the other persons in order to see any other person coming to the place of occurrence. A4 and A7 caught hold of the head of the deceased, A5 and A6 caught hold of the legs, A2 and A3 caught hold of the body and A1 with knife (M.O.1) gave a cut on the neck and caused serious injury. The deceased died at the spot. On hearing the sound both P.W.1, the second wife of the deceased and P.W.4 son came out and saw the deceased was being cut by A1, while the other accused persons caught hold of the body of the deceased. She raised a alarm. c) On hearing the alarm, P.W.2 Pichapillai and P.W.3 Natarajan came and saw this occurrence. On seeing the witnesses, the accused ran away from the place of occurrence. P.W.1 went and informed the same to the VAO at about 6.30 a.m. The same was reduced into writing. Ex.P.1 is the complaint and Ex.P.5 is the report of the VAO. Both the documents were handed over to P.W.8 Head Constable at 8.30 a.m. through the Thalayari P.W.6. A case was registered for the offences under Sections 147,148,302 read with 34 I.P.C. in Crime No.145/1999 on the file of Irumbulikurichi Police Station. d) P.W.9, the Inspector of Police, on receipt of the message, went to the scene of occurrence at 10.30 a.m. He drew the rough sketch (Ex.P.11) and prepared observation mahazar (Ex.P.2). He recovered bloodstained earth and sample earth. He conducted inquest at 11.00 a.m. Ex.P.12 is the inquest report. He recovered the mat M.O.4 and bloodstained pillows M.Os. 5 and 6. He sent the body for postmortem examination. e) P.W.7, the Doctor conducted postmortem examination on 17.6.1999. Ex.P.9 is the postmortem certificate. He recovered bloodstained earth and sample earth. He conducted inquest at 11.00 a.m. Ex.P.12 is the inquest report. He recovered the mat M.O.4 and bloodstained pillows M.Os. 5 and 6. He sent the body for postmortem examination. e) P.W.7, the Doctor conducted postmortem examination on 17.6.1999. Ex.P.9 is the postmortem certificate. He opined that the deceased would appear to have died of injury to vital structure due to neck injury. f) Then, P.W.9 arrested A4, A5 to A9 on 18.6.1999. He arrested A2 on 22.6.1999 and on his confession, he recovered M.O.1. He came to know about the surrender of A1 before the Court. His successor P.W.10, the Inspector of Police, took up further investigation. He examined the other witnesses and sent all the material objects for chemical examination. After completing the investigation, he laid the charge sheet against all the accused on 29.5.2000 for the offences under Sections 147, 148, 302 read with 34 I.P.C. g) During the course of trial, the prosecution examined P.Ws.1 to 10, filed Exhibits P.1 to P.13 and marked M.Os.1 to 10 before the trial Court. h) When the accused were questioned under Section 313 Cr.P.C. with reference to the incriminating materials, they denied their complicity in the crime. On the side of defence, D.Ws. 1 to 3 were examined. i) The trial Court, having regard to the circumstances available on record, concluded that the prosecution has established its case beyond reasonable doubt and convicted and sentenced the accused as stated above. This is the subject matter of challenge in these appeals before this Court filed by the appellants. 3) We have heard Mr. Deivanandam, learned counsel appearing for the appellant in Crl. A. No.719/2003, Mr. A. Padmanabhan, learned counsel appearing for the appellants in Crl. Appeal Nos. 940 and 962/2003 and Mr. C.T. Selvam, learned Additional Public Prosecutor appearing for the respondent State. 4) It is contended on behalf of the appellants that the evidence available on record is not reliable and as such, the accused are liable to be acquitted. It is also pointed out during the course of arguments that A9 has already died. 940 and 962/2003 and Mr. C.T. Selvam, learned Additional Public Prosecutor appearing for the respondent State. 4) It is contended on behalf of the appellants that the evidence available on record is not reliable and as such, the accused are liable to be acquitted. It is also pointed out during the course of arguments that A9 has already died. 5) In respect of various points urged by the counsel for the appellants, the learned Additional Public Prosecutor would submit that the materials available on record would be sufficient to hold the accused guilty and as such, the conviction and sentence passed by the trial Court are justified. 6) We have considered the above submissions and perused the entire records. 7) Since it is reported that A9 died during the pendency of the appeal, it is necessary to record his death and accordingly, the same is recorded and the appeal as regards A9 is abated. 8) Let us now consider the other aspects of the irregularities pointed out by the learned counsel for the appellants. On going through the materials and also on hearing the learned counsel for both sides, we are of the view that the evidence adduced by the ocular witnesses does not inspire confidence and as such, we are constrained to hold that the prosecution has miserably failed to prove its case beyond all reasonable doubt. 9) Let us now give the reasons for the above conclusion. According to the prosecution, when P.W.1 and P.W.4 were inside the house, the deceased was taking bed in a cot in front of the house. At about 12.00 mid night, all the accused came and A2 to A7 caught hold of the deceased, A8 and A9 were watching the movement of other persons standing nearby and A1 gave a cut on the neck of the deceased, which resulted in his death. 10) The occurrence is said to have taken place at 12.00 mid night. According to P.W.8, the Head Constable, the complaint was given at about 8.30 a.m. on 17.6.1999 in the police station. In the complaint, there are clear details about the involvement of the 9 accused and also the presence of all the witnesses. The First Information Report which had been registered at 8.30 a.m. reached the Magistrate Court at 7.15 p.m. on 17.6.1999. In the complaint, there are clear details about the involvement of the 9 accused and also the presence of all the witnesses. The First Information Report which had been registered at 8.30 a.m. reached the Magistrate Court at 7.15 p.m. on 17.6.1999. P.W.1 in her cross- examination admits that she gave the information about the death of her husband to one Muthamizhselvan, the Panchayat Board President at 1.00 mid night. P.W.6 Thalayari would state that P.W.1 came and informed him at 3.00 a.m. itself. According to the prosecution, the Village Administrative Officer came to the scene and reduced the complaint into writing at about 6.30 a.m. As stated earlier, while P.W.6 informed the Village Administrative Officer at about 3.00 a.m. itself, there is no reason as to why the complaint was reduced into writing at 6.30 a.m. even though the information was given by P.W.1 to the Panchayat Board President at 1.00 midnight and to the Village Administrative Officer at 3.00 a.m. P.W.8 would state that P.W.6 Thalayari came with P.W.1 and gave Ex.P.1 and Ex.P.5 report of the Village Administrative Officer. However, P.W.2 would state that the information was sent to the police through telephone and on receipt of the telephonic message, the police came to the scene at 7.30 a.m. and received the complaint from P.W.1 at the spot. 11) So, if this evidence is taken into consideration, it would be clear that the police came at 7.00 a.m. even before the receipt of the complaint from P.W.1 In that context, we cannot believe the evidence of P.W.1, who stated that she accompanied the Thalayari to the police station and gave the complaint at 8.30 a.m. Consequently, we cannot place reliance on the evidence of P.W.8, the Head Constable, who stated that he received Exs.P.1 and P.5 from P.W.1 at 8.30 a.m. As a matter of fact, Ex.P.5 report prepared by the Village Administrative Officer would indicate that one Dhanakoti, Thalayari went to the police station along with P.W.1 and handed over Ex.P.1 and Ex.P.5 to P.W.8 Head Constable. But, P.W.8 would state that one Azhagan, another Thalayari came to the police station. On the other hand, P.W.6 would state that the information was given by P.W.1, who in turn informed the Village Administrative Officer at 3.00 a.m. He did not say anything about the complaint having been reduced into writing by the village Administrative Officer. But, P.W.8 would state that one Azhagan, another Thalayari came to the police station. On the other hand, P.W.6 would state that the information was given by P.W.1, who in turn informed the Village Administrative Officer at 3.00 a.m. He did not say anything about the complaint having been reduced into writing by the village Administrative Officer. 12) This evidence would indicate that even though the information was conveyed to Panchayat Board President at 1.00 a.m., the complaint was received by the Magistrate at 7.15 p.m. This delay has not been properly explained. The prosecution would have examined the Village Administrative Officer to explain the delay. But, it is said that the said Village Administrative Officer was not alive during the course of trial and therefore, he was not examined. However, Dhanakoti, who handed over the complaint Ex.P.1 and Ex.P.5 report of the VAO to the police station has not been examined. Instead, another Thalayari by name Azhgan has been examined. Further, the Panchayat Board President Muthamizh Selvan, who was present throughout the inquest, has not been examined to show how the delay has happened. Admittedly, he was not also examined. Therefore, in our view, the First Information Report would not have been come into existence at the relevant time, i.e. 8.30 a.m., especially in the light of the fact that it reached the Court only by 7.15 p.m. on 17.6.1999. In our view, this long delay has been used by the investigating agency to implicate more number of persons in the murder case. 13) In this context, it would be relevant to refer to some of the observation made by the Supreme Court in THULIAKALI VS STATE OF TAMIL NADU ( 1972 SCC (Crl) 543) which reads as under: "First information in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of the commission of offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. The object of insisting upon prompt lodging of the report to the police in respect of the commission of offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report could often results in embellishment which is a creature of after thought. On account of the delay, the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of the coloured version, exaggerated account or concocted story s a result of deliberation and consultation. It is therefore, essential that the delay in lodging of the first information report should be satisfactorily explained" 14) Keeping in view of the above observation, if we look at the facts of the case, we are of the opinion that the delay has not been properly explained and the prosecution has used the delay in implicating number of persons as accused in this case. Therefore, this inordinate delay creates a doubt and makes us to believe that the preparation of the FIR is one of concoction and deliberation. 15) It is true that P.W.1 refers to the presence of P.W.4 at the time of occurrence. As a matter of fact, in Ex.P.1, P.W.1 not only refers to the presence of P.W.4, but also make a reference about the presence of P.Ws.2 and 3. But curiously, P.Ws. 2 and 3 would not speak anything about the presence of P.W.4. If we look at the evidence of P.W.4, it is clear that he did not refer to anything about the involvement of A8 and A9 as referred to in Ex.P.1 and in the evidence of P.Ws. 2 and 3. As a matter of fact, when P.W.9 was cross-examined, he admitted that P.W.4 did not refer to about the presence and involvement of any other accused except A2 and A7. However, it creates a doubt that P.W.4 made an attempt during the course of cross-examination before the Court to introduce a new story. According to the prosecution, A2 and A7 caught hold of the body of the deceased, while A1 gave a cut on the neck of the deceased. However, it creates a doubt that P.W.4 made an attempt during the course of cross-examination before the Court to introduce a new story. According to the prosecution, A2 and A7 caught hold of the body of the deceased, while A1 gave a cut on the neck of the deceased. Now, P.W.4 would state that even in the chief examination that A2 handed over knife (MO1) to A.1, who in turn received the same and gave a cut on the neck of the deceased. This again creates a doubt about the presence of P.W.4. 16) P.W.1 both in Ex.P.1 and in the chief examination stated that A2 and A7 openly declared that in order to prevent the deceased from selling the remaining properties to third parties, they decided to engage some other persons to kill the deceased. According to P.W.1, this conspiracy was declared by A2 and A7 in the presence of P.W.1 P.W.1 went to the extent of saying that this fact was informed to the deceased and he was warned. If it is so, then there is no reason as to why P.W.1 did not complain to the police or to the Panchayat Board President Muthamizhselvan, who was very much available in the village. Further, if such a threat was really there, it is quite doubtful to say that the deceased would have come out of the house and taken the bed in the cot in front of the house. It is also noticed from the observation made in the mahazar and also the evidence of P.W.9 that there is no light near the place of occurrence. Of course, there is a street light near the house of A7. In Ex.P.2 observation mahazar, it is mentioned that street lights were found burning. Admittedly, the observation mahazar was prepared by P.W.9 at 10.00 a.m. So, it could not be possible for P.W.9 to mention in Ex.P.2 that those street lights were burning. 17) In the light of the above fact, we are inclined to place reliance on the evidence of D.W.1 Thangaraj, whose house is mentioned in the sketch as item No.8. According to D.W.1, at the time of occurrence, one Saraswathi, wife of P.W.5 Appaswamy, came and saw the dead body of the deceased lying in a pool of blood and P.W.1 was not available in the house and P.W.1 went to her sister's house along with P.W.4. According to D.W.1, at the time of occurrence, one Saraswathi, wife of P.W.5 Appaswamy, came and saw the dead body of the deceased lying in a pool of blood and P.W.1 was not available in the house and P.W.1 went to her sister's house along with P.W.4. This evidence,in our view, merits acceptance in view of the fact that a suggestion was put that P.W.1 was brought to the village at 7.30 a.m. and then arrangements were made to give a complaint to the police. 18) It is also noticed that D.Ws.2 and 3 would state that A8 and A9 were available in their house. According to them, they did not participate in the occurrence. This also could be relied on for the reason that P.W.4, as indicated above, did not choose to implicate A8 and A9. It is also to be pointed out that the knife M.O.1 used by A1 for causing injury on the neck of the deceased was recovered only on the confession of A2 and not from A1. So, for all the above reasons, we are of the view that the prosecution has miserably failed to prove its case beyond all reasonable doubt and consequently, the appellants are entitled to be acquitted. 19) In fine, all the three criminal appeals are allowed and the conviction and sentence imposed upon the appellants/accused 1 to 8 by the trial Court are set aside and the appellants/A1 to A8 are acquitted. The fine amounts, if paid by them shall be refunded to them. The bail bonds executed by them shall stand cancelled. The Criminal Appeal No.940/2003 as against Appellant No.7/Accused No.9 is abated.