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2006 DIGILAW 2470 (MAD)

Gopu & Another v. State by Inspector of Police

2006-09-19

K.RAVIRAJA PANDIAN, M.CHOCKALINGAM

body2006
Judgment :- (Criminal Appeals filed under section 374 of the Code of Criminal Procedure against the judgment dated 23.02.2004 made in Sessions Case No.568 of 2000 on the file of the VII Additional Sessions Judge, Chennai.) M. Chockalingam, J. This judgment shall cover two appeals – Criminal appeals No.488 and 875 of 2004. While the former one is filed by the fifth accused, the latter is brought forth by the second accused in sessions case No.568 of 2000 on the file of the VII Additional Sessions Judge, Chennai. 2. These two appellants, along with three others, who were ranked as accused 1, 3 and 4, stood charged, tried by the Sessions Judge for the offences punishable under sections 148, 302 read with 34, 201 read with 302 of the Indian Penal Code. On completion of the trial, these appellants (A2 and A5) alone were found guilty and were awarded rigorous imprisonment for two years for the offence under section 148, IPC; life imprisonment along with a fine of Rs.500/- carrying a default sentence of rigorous imprisonment for three months for the offence under section 302 read with 34, IPC; and rigorous imprisonment for five years for the offence under section 201 read with 302, IPC, while the others (A1, A3 and A4) were acquitted of all the charges. Hence, the present appeals by accused 2 and 5. The appellants and the acquitted accused will, hereinafter be referred to as accused 1 to 5, as they were referred before the trial Court. 3. The short facts, shorn of unnecessary details, are as follows : P.W.1 is the mother of the deceased Ilangovan. P.W.5 is the paternal grandfather of the deceased and P.W.6 is the maternal uncle of the deceased. All the accused and the prosecution witnesses belong to Thiruvanmiyur colony. On 29.03.1999 the said Ilangovan went to temple festival at Thiruvanmiyur. As he did not turn up till 02.04.1999, his mother P.W.1 went to the respondent police station and gave a complaint, based on which a case under the caption 'man missing' was registered and was pending. On 13.07.1999, i.e., after lapse more than three months, the second accused came to P.W.2, who was a watchman in a tank, situated just opposite to the respondent police station and made a confession statement stating that the deceased along with all the accused were involved in number of theft cases. On 13.07.1999, i.e., after lapse more than three months, the second accused came to P.W.2, who was a watchman in a tank, situated just opposite to the respondent police station and made a confession statement stating that the deceased along with all the accused were involved in number of theft cases. They had a dispute over the share. In that dispute, all the accused attacked the deceased Ilangovan and threw him into a well. P.W.2 immediately went to the respondent police station and informed them about the confession of the second accused. On the basis of the information, the case was altered into one under section 302 of the Indian Penal Code in crime No.329/1999. Investigation was taken up by the Inspector of Police and accused 2 and 5 were arrested. They gave confession statements, following which they took the investigating officer to a well, which is situated within the compound of IRT, from where the dead body was taken out, following which the investigating officer prepared an observation mahazar, Ex.P.12 and rough sketch, Ex.P.13. Pursuant to their confession, the other accused were also arrested, following the same, the dead body was subjected to autopsy. Ex.P.9 is the post mortem certificate. The skull and skeletal remains were recovered and were sent for analysis to the Forensic Department, following which the superimposition test was conducted and it was certified that the skull was found to be that of Ilangovan. Apart from that, when the dead body was taken out, P.Ws.1, 5 and 6 identified that it was the dead body of Ilangovan. The other accused were also arrested. They were also sent for judicial remand. On completion of the investigation, the investigating officer filed the final report against all the five accused. The case was committed to Court of Sessions. Necessary charges were framed. In order to substantiate the charges the prosecution marched 15 witnesses, marked 18 exhibits and 12 material objects. 4. On completion of the evidence on the side of the prosecution, the accused were procedurally questioned under section 313 of the Code of Criminal Procedure and they denied them as false. No defence witness was examined. Necessary charges were framed. In order to substantiate the charges the prosecution marched 15 witnesses, marked 18 exhibits and 12 material objects. 4. On completion of the evidence on the side of the prosecution, the accused were procedurally questioned under section 313 of the Code of Criminal Procedure and they denied them as false. No defence witness was examined. On completion of the evidence, the trial Judge heard the arguments advanced and on scrutiny of the materials available found accused 2 and 5 who are the appellants herein guilty of the charges and awarded imprisonment as referred to above, however, acquitted accused 1, 3 and 4 of all the charges. Hence, the appeals at the instance of accused 2 and 5. 5. Learned counsel appearing for the second accused would inter alia submit that in the instant case, the prosecution has no direct evidence to offer. The entire case rests on the circumstantial evidence. Even as per the prosecution, the deceased Ilangovan left for the festival on 29.03.1999, but a report was given by P.W.1, the mother of Ilangovan on 02.04.1999 and a case came to be registered under the caption 'man missing', but he could not be traced. While the matter stood thus, on 13.07.1999 the second accused, who was arrested for some other case, came out of the prison and went to P.W.2, watchman of a tank situated opposite to the respondent police station and spoke to his involvement in the crime in this case, along with other accused. He was taken to the police station, following which his confession statement was recorded. The well in which the deceased was thrown was identified by the second accused along with the fifth accused. Thereafter, the dead body was taken out and further investigation was taken up on the dead body and it was found to be that of the deceased Ilangovan. The circumstances, according to the trial Court, point to the guilt of accused 2 and 5. The lower Court, without considering that the prosecution has not placed sufficient circumstances, has found accused 2 and 5 guilty. 6. Learned counsel laid emphasis that according to prosecution, two witnesses, namely, P.Ws.3 and 4 have seen the deceased in the company of all the accused on 29.03.1999. The lower Court, without considering that the prosecution has not placed sufficient circumstances, has found accused 2 and 5 guilty. 6. Learned counsel laid emphasis that according to prosecution, two witnesses, namely, P.Ws.3 and 4 have seen the deceased in the company of all the accused on 29.03.1999. If to be so, i.e., if the circumstance placed by the prosecution was to be accepted, the lower Court should have accepted the last seen theory against all the accused. But the lower Court was not prepared to believe the case of the prosecution in so far as it related to accused 1, 3 and 4, but relied on the same circumstance, to find accused 2 and 5 guilty. Therefore, the last seen theory put forth by the prosecution becomes shaky. Before the trial Court, the prosecution much relied on the extra judicial confession alleged to have been given by the second accused to P.W.2. The trial Court should have rejected the same outright as improbable and unbelievable. The occurrence had taken place on 29.03.1999. But according to P.W.2, a watchman, who had no close acquaintance with the second accused, the second accused came to him on 13.07.1999, i.e., after lapse of more than three months. In the instant case, it is to be pointed out that even as per the evidence of P.W.2, he is a watchman in a water tank which is situated just opposite to the respondent police station and he has acquaintance with police personnel and there is every likelihood of his services being utilised for the purpose. Apart from this, there are so many contradictions found in his evidence. According to him, it was he who took the second accused to the police station on 13.07.1999, but according to the investigating officer, P.W.15, the second accused was shown to be arrested on 14.07.1999 and therefore, the body could have been taken out even before the arrest of the second accused and under the circumstances, there is no question of confession leading to recovery of the body and on that ground the lower Court should have rejected the case. 7.Added further the learned counsel that the medical evidence did not corroborate the confession statement, as according to the extra judicial confession of the second accused alleged to have been given to P.W.2, he, along with other accused, indiscriminately attacked the deceased, but only one injury on the skull is found and thus the extra judicial confession is not to be believed, not only for the above reason, but also for the reason that it contains number of discrepancies and there are no materials to substantiate the same. Hence the lower Court should have rejected the case outright and acquitted the appellants also as it had acquitted A1, A3 and A4. 8. Arguing for the fifth accused, learned counsel, while adopting the arguments of the learned counsel appearing for the second accused, would submit that in so far as the fifth accused is concerned, there is absolutely no material available at all. According to him, confession statement is given by the second accused to P.W.2 and that cannot be said to be binding on the fifth accused. Added further, the learned counsel that in the instant case, the lower Court, in the absence of any direct evidence or any circumstances pointing out to the guilt of the fifth accused, has found him guilty. The lower Court should have been carried away by the fact that at the time of taking out the body from the well, the fifth accused was also present along with the second accused and the police party. But that cannot be a ground to convict the fifth accused, since as already stated, the alleged confession statement is said to have been given by the second accused to P.W.2 and not by the fifth accused. In the instant case, in the absence of any materials available in favour of the prosecution, the lower Court should have applied the principle what it applied to acquit accused 1, 3 and 4. 9. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made on either side. 10. In the instant case, in the absence of any materials available in favour of the prosecution, the lower Court should have applied the principle what it applied to acquit accused 1, 3 and 4. 9. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made on either side. 10. It is not controverted that the Ilangovan, the deceased, son of P.W.1 was done to death and his dead body was taken out from a well on 14.07.1999, following which inquest was conducted and the dead body was subjected to postmortem, whereby it is certified that the death was due to the injuries sustained by him and this fact that he died a homicidal death was never questioned by any of the accused either before the lower Court or before this Court. Therefore, the lower Court has correctly come to the conclusion that Ilangovan died on account of homicidal violence. It has also been found by the lower Court that the body that was taken out from the well was the body of the deceased Ilangovan, which is evident from the evidence of P.Ws.1, 5 and 6 and also from the expert opinion that the skull on which superimposition test was conducted, matches with the photograph sent. Thus, it leaves no doubt in the mind of the Court that the identity of Ilangovan was clearly fixed. 11. In the instant case, it is the case of the prosecution that the occurrence took place on 29.03.1999. Due to the previous enmity in sharing the stolen articles accused 1 to 5 took the deceased and attacked him and threw him into a well and the prosecution relied upon the last seen theory, i.e., by P.Ws.3 and 4 and also on the alleged extra judicial confession alleged to have been given by the second accused to P.W.2. It is to be remembered that the lower Court has marshalled the evidence and has acquitted accused 1, 3 and 4. 12. The first contention that the lower Court should have applied the same principle equally to these appellants, cannot be countenanced, though it is attractive, as it does not stand the scrutiny of law. It is to be remembered that the lower Court has marshalled the evidence and has acquitted accused 1, 3 and 4. 12. The first contention that the lower Court should have applied the same principle equally to these appellants, cannot be countenanced, though it is attractive, as it does not stand the scrutiny of law. It is well settled principle of law that when there are number of accused and evidence is available showing only the involvement of some accused and not the other, the Court has to necessarily sustain the conviction of those accused against whom evidence is available. In the instant case, this Court is of the considered view that the lower Court is correct in convicting the second accused and the finding of the lower Court in so far as it relates to the fifth accused is concerned, it has to be set aside, as it is rightly pointed out by the learned counsel for the fifth accused that there is nothing in the evidence pointing to any circumstance which would substantiate the case of the prosecution in respect of the fifth accused. The first circumstance relied on by the prosecution and accepted by the lower Court is the last seen theory, which is spoken to by P.Ws.3 and 4. Their evidence is that on 29.03.1999 they found accused 1 to 5 along with the deceased. It is pertinent to point out that when P.W.1, the mother of the deceased went to the police station on 02.04.1999 and gave a complaint, she has clearly stated that her son who went for the festival on 29.03.1999 did not return and this would clearly indicate that from 29.03.1999 he was found missing. 13. The second contention is that investigation was taken up after more than three months i.e., on 13.07.1999 on which date the extra judicial confession statement was given by the second accused to P.W.2. Now, at this juncture it is to be pointed out that the extra judicial confession cannot be termed as a weak piece of evidence. But before accepting the extra judicial confession, the Court has to apply two tests. Firstly, to whom the extra judicial confession is given and secondly, whether the evidence of the person to whom the extra judicial confession is given, inspires the confidence of the Court. But before accepting the extra judicial confession, the Court has to apply two tests. Firstly, to whom the extra judicial confession is given and secondly, whether the evidence of the person to whom the extra judicial confession is given, inspires the confidence of the Court. In the instant case, the Court is fully satisfied that the evidence of P.W.2 is acceptable even after applying the two tests. No circumstance is brought out to show that P.W.2 was in inimical terms with the second accused, but at the same time it is pertinent to point out that merely because the tank is situated just opposite to the police station and that he knows certain police officials, it would not mean that he could only be a stock witness of the respondent police or he has been utilised by the police for the purpose of this case. He has clearly stated in the cross examination that he has not given any evidence in any other case in court. In the chief examination P.W.2 has clearly stated that he knew the accused already. His evidence remains in tact so, in cross examination as well. Not even a suggestion is put to P.W.2 in that regard. The extra judicial confession was given after three months. In normal circumstances, the extra judicial confession should have been rejected as improbable and unbelievable, but in the instant case, the circumstance is that the second accused was arrested in respect of another case and after serving the sentence, he had come out and has given the extra judicial confession to P.W.2. Apart from that, according to P.W.2, it was he who caught the second accused and produced before the police, but according to the police, the second accused was arrested on 14.07.1999. The Court is not able to see any discrepancy on that ground for the simple reason that P.W.2 was an uneducated man and in order to claim that it was he who caught him in such a case, has spoken like that. The arrest card in respect of the second accused produced before the Court clearly shows that the second accused was arrested on 14.07.1999. The arrest card in respect of the second accused produced before the Court clearly shows that the second accused was arrested on 14.07.1999. From the evidence available before the Court, it is quite clear that the second accused was arrested on being produced by P.W.2 on 14.07.1999 and he has taken the police personnel to the well where the dead body was thrown and from where the dead body was taken out in the presence of witnesses, following which an observation mahazar and a sketch could have been prepared by the Inspector. Under the circumstances, it is quite clear that it was the second accused who took the investigating officer to the place where the well was situated in which the body was found. Now, at this juncture it is to be pointed out that, had the second accused not brought the police personnel to the well, then the body could not have been unearthed at all and the crime could not have been altered into one under section 302 of the Indian Penal Code and investigation could not have proceeded any further. 14. It is the opinion of the Court that the last seen theory, as spoken to by P.Ws.3 and 4 in respect of the second accused and the extra judicial confession given by the second accused to P.W.2 leading to the recovery of the dead body, which was identified by not only P.Ws.1, 5 and 5, but also certified to be that of the deceased by the analyst are sufficient circumstances to hold that the second accused is involved in the crime. It is not a case where the prosecution relied on direct evidence by examining eye witnesses, but it is a case where the dead body was found after a longtime with an injury on the skull and the second accused has spoken about the circumstances to P.W.2. Hence, it is a case where the prosecution has made a case in its favour so far as the second accused is concerned. 15. In the circumstances, on the available materials, we hold that the circumstances, as narrated above, would be sufficient to point out the guilt of the second accused. Hence, it is a case where the prosecution has made a case in its favour so far as the second accused is concerned. 15. In the circumstances, on the available materials, we hold that the circumstances, as narrated above, would be sufficient to point out the guilt of the second accused. As rightly pointed out by the learned counsel for the fifth accused, the prosecution is unable to find any circumstance against him and hence, he has to be acquitted of the charges giving him the benefit of doubt. 16. In the result, criminal appeal No.875 of 2004 filed by the second accused is dismissed confirming the conviction and sentence imposed on him and Criminal appeal No.488 of 2004 filed by the fifth accused shall stand allowed setting aside the conviction and sentence imposed on him. The learned Sessions Judge is directed to take steps to secure the second accused to undergo the remaining period of sentence. The bail bonds executed by the fifth accused are directed to be cancelled. The fine amount, if any, paid by the fifth accused shall be refunded to him.