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2015 DIGILAW 3552 (MAD)

Ibrahim Sha v. State

2015-10-29

S.NAGAMUTHU, V.S.RAVI

body2015
JUDGMENT : S. Nagamuthu, J. 1. The appellants are the accused 1 to 4 in S.C. No. 64 of 2013 on the file of the learned Sessions Judge, Trichy Division at Trichy. There was yet another accused by name Umar Farooq, S/o. Abdul Azeel, the case against him has been split up and the same is pending trial, as he is absconding. The appellants 1 to 3 have been found guilty under Section 302, 201 and 379 IPC and the 4th accused has been found guilty under Section 414 IPC. The trial Court convicted and sentenced them as follows: Accused Conviction under Section Sentence imposed A1 to A3 302 IPC To under go imprisonment for life and to pay a fine of Rs. 1,000/- each, in default, to undergo rigorous imprisonment for 6 months A1 to A3 201 IPC To undergo rigorous imprisonment for three years and to pay a fine of Rs. 1000/-, in default, to undergo rigorous imprisonment for three months each. A1 to A3 379 IPC To undergo rigorous imprisonment for three years. A4 414 IPC To undergo rigorous imprisonment for three years, and to pay a fine of Rs. 1000/-, in default, to undergo rigorous imprisonment for three months. Challenging the said conviction and sentence, the appellants are before this Court with these appeals. 2. The case of the prosecution in brief is as follows: "The accused 1 to 3 and the absconding accused hatched a conspiracy to commit murder of the deceased. The deceased in this case was one Mr. Veeramani and he was a Driver in a Taxi bearing registration No. TN 45 T 7299. The deceased was plying the said Taxi in Trichy. As per the conspiracy, the accused 1 to 3 and the absconding accused had conspired to engage the Taxi driven by Mr. Veeramani under the guise of going for a Tour and then to commit murder of the deceased and to take away his properties including the Car. In pursuance of the said conspiracy, it is alleged that on 24.04.2005, at about 8.00 p.m., the absconding accused contacted the deceased over phone and wanted him to be ready to go to Coimbatore by taking the Taxi for hire. The deceased was, therefore, waiting for the passengers to come. Till 12 mid night, nobody turned out. Thereafter, the 1st accused told the deceased that they would go to Pondicherry. The deceased was, therefore, waiting for the passengers to come. Till 12 mid night, nobody turned out. Thereafter, the 1st accused told the deceased that they would go to Pondicherry. Accordingly, the deceased and the 1st accused went in the Taxi to Pondicherry along with the accused 2 and 3. On returning from Pondicherry, they stopped the vehicle at Mutharasanallur and all of them had bath in Kaveri River. At that time, the deceased was washing the Car. As per the earlier conspiracy, the 1st accused caught hold the deceased and the absconding accused attacked him with a steel rod. The deceased fell down unconscious. Then, the absconding accused and the accused 1 to 3 took the deceased in the Car to Kumular - Sangenthi road, where they threw the body in a vacant site near the road side. The absconding accused poured kerosene on the body and the 1st accused set fire. Then, the accused 1 to 3 and the absconding accused took away the Car, sold it to the 4th accused for Rs. 50,000/- and shared the amount among themselves. The 4th accused purchased the vehicle knowing fully well that it was a stolen vehicle." 2.1. On the basis of these allegations, the trial Court framed as many as 6 charges as detailed below: Changes Accused Penal Provisions 1 A1 to A3 120(B) IPC 2 A1 to A3 120(B) r/w 302 IPC 3 A1 to A3 201 IPC 4 A1 to A3 379 IPC 5 A4 414 IPC 6 A1 to A4 379 r/w 201 IPC The accused denied the same. In order to prove the charges, on the side of the prosecution as many as 28 witnesses were examined, 38 documents and 10 material objects were marked. 2.2. P.W.1 is the wife of the deceased. According to her, on 24.04.2005, her husband, who was driving the Taxi bearing registration No. TN 45 T 7299 left Trichy by around 8.30 p.m. Thereafter, he did not return at all. She, along with her relatives, went in search of the deceased to various places. But, he was not found. Therefore, she made a complaint to the K.K. Nagar Police at Trichy on 01.05.2005. 2.3. P.W.24 was the then Sub Inspector of Police, at K.K. Nagar Police Station, Trichy. On 01.05.2005, at 2.30 p.m., he received the complaint from P.W.1 under Ex. But, he was not found. Therefore, she made a complaint to the K.K. Nagar Police at Trichy on 01.05.2005. 2.3. P.W.24 was the then Sub Inspector of Police, at K.K. Nagar Police Station, Trichy. On 01.05.2005, at 2.30 p.m., he received the complaint from P.W.1 under Ex. P1 and registered a case in Crime No. 182 of 2005 for 'man missing' Ex. P34 is the FIR. Then, he forwarded both the documents to the Court and handed over the Case Diary to the Inspector of Police for investigation. 2.4. P.W.25 the Inspector of Police, K.K. Nagar Police Station took up the said case for investigation on 01.05.2005. He prepared an observation mahazar, rough sketch and examined many witnesses. But there was no clue about the whereabouts of the deceased. 2.5. While so, on 27.04.2005, the dead body of the deceased was found at Kumalur to Sangenthi Main Road. The Village Administrative Officer P.W.6 found an unidentified half burnt body and made a complaint to the police at 8.30 p.m. on 27.04.2005. P.W.20 registered a case in Crime No. 232 of 2005 on the file of the Siruganur Police Station under Section 174 Cr.P.C. Ex. P3 is the complaint made by P.W.6 and Ex. P18 is the FIR. He forwarded the said documents to the Court and handed over the investigation to the Inspector of Police. 2.6. P.W.21 took up the case for investigation on 27.04.2005, visited the place of occurrence, prepared an observation mahazar and a rough sketch in the presence of P.W.8 and another witness. Near the dead body, a key chain M.O.3 and few more articles were found. They were all recovered by P.W.21 under a mahazar. Then, he held inquest on the body and sent the body for postmortem. 2.7. P.W.23 conducted autopsy on the body of the deceased on 30.04.2005 at 9.00 a.m. He found the following injuries: "1. Superficial burns wound, on the head, neck, front and back of trunk, upper extremities and upper two third of lower extremities. O/E. The base of the burnt area is pale, no signs of lividity present. Singeing of hairs present. Peeling and carbonisation of cuticle present. 2. Heat ruptures, on the front of neck, right shoulder, axilla, right elbow, right inguinal region, right thigh, right leg, left inguinal region, left axilla and back of left elbow. O/E. The base of the burnt area is pale, no signs of lividity present. Singeing of hairs present. Peeling and carbonisation of cuticle present. 2. Heat ruptures, on the front of neck, right shoulder, axilla, right elbow, right inguinal region, right thigh, right leg, left inguinal region, left axilla and back of left elbow. Coil of intestine is protruding out from the wound on the left inguinal region. 3. Bruising of the frontal region of the scalp. Dark red. 4. Fissured fracture of right parietal bone, right temporal bone, in a single line, communicating with right side of lambdoid suture. 5. Bony bruising of floor of anterior cranial fossa." Wound Nos. 1 and 2 are postmortem in nature and wound Nos. 3, 4 and 5 are antemortem in nature. No other external or bony wound present. Ex. P31 is the postmortem certificate. There was no poison or alcohol found in the visceral organs. He opined that the deceased would appear to have died of head injuries. 2.8. P.W.21 continued the investigation. He forwarded the articles and the cloths of the deceased to the Court. Then, he handed over the investigation to the successor. P.W.22 continued the investigation from 29.04.2005 onwards. He made extensive publicity in newspapers about the unidentified dead body and the investigation under progress. On seeing the same, P.W.1 and other family members came to the police station and from the photograph of the dead body and the other personal belongings of the deceased, they identified the dead body as that of the deceased. This happened on 03.05.2005. He examined few more witnesses and then handed over the investigation to his successor. 2.9. P.W.26 the Inspector of Police of K.K. Nagar Police Station continued the investigation in Crime No. 182 of 2005. P.W.25 altered the case in Crime No. 182 of 2005 into one under Sections 302 and 379 IPC. During the course of investigation, he arrested the absconding accused in the presence of the witnesses. On the confession made by the absconding accused, the 4th accused herein was identified and from the 4th accused, M.O.8 the Car seat cover was recovered. P.Ws. 13 and 14 told that they saw the accused 1 to 3 and the absconding accused in the company of the deceased on 24.04.2005. On the confession made by the absconding accused, the 4th accused herein was identified and from the 4th accused, M.O.8 the Car seat cover was recovered. P.Ws. 13 and 14 told that they saw the accused 1 to 3 and the absconding accused in the company of the deceased on 24.04.2005. P.W.27 has stated that he saw the accused 1 to 3 and the absconding accused in the company of the deceased in the year 2005. Based on the above materials, charge sheet was laid against the accused. 3. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., they denied the same as false. However, they did not choose to examine any witnesses on their side nor to mark any documents. Having considered all the above, the trial Court convicted and sentenced the accused as detailed herein above. That is how, they are before this Court with these appeals. 4. We have heard the learned counsel for the appellants, the learned Additional Public Prosecutor for the respondent and we have also perused the records carefully. 5. This is a case based on circumstantial evidence. The first circumstance is that the deceased left his house in the Car in question on 24.04.2005 at 8.30 p.m. After that, he was not seen. The dead body was found on 27.04.2005. Thus, the prosecution has established that the deceased would have been done to death somewhere between 24.04.2005 and 27.04.2005. The Superimposition conducted by the Expert has clearly established the identity. Apart from that P.W. 1 and other family members have identified the dead body from the photograph as that of the deceased. They have also identified the personal belongings of the deceased. The Doctor, who has conducted autopsy, has stated that the deceased died due to head injury. Thus, the prosecution has clearly established that the deceased died of homicidal violence, which would have occurred somewhere between 24.04.2005 and 27.04.2005. 6. Now, the question is, "who is/are the perpetrators of the crime?" In order to prove the same, the prosecution mainly relies on the evidence of P.Ws. 13 and 14. P.Ws. 13 and 14 have stated that on 24.04.2005, at about 10 p.m., at the Central Bus stand, Trichy, near Ananda Hotel, they found the deceased standing. P.Ws. 13 and 14 went near him. 13 and 14. P.Ws. 13 and 14 have stated that on 24.04.2005, at about 10 p.m., at the Central Bus stand, Trichy, near Ananda Hotel, they found the deceased standing. P.Ws. 13 and 14 went near him. At that time, the deceased told them that he was getting ready to go to Coimbatore in his Taxi. At that time, he was found in the company of four other persons. P.Ws. 13 and 14 have identified the accused 1 to 3 in Court, as the persons found in the company of the deceased. But, it is the admitted case that the accused 1 to 3 were not previously known to P.Ws. 13 and 14. There was no Test Identification Parade conducted also. They identified these accused for the first time in Court. They were examined by the Inspector of Police, only in the year 2011. It is not explained to the Court as to how, the Inspector of Police fixed these two witnesses, as having some useful information about the case. In our considered view, the evidence of P.Ws. 13 and 14 cannot be believed at all for the above reasons. It is not explained to the Court as to why they did not disclose the above facts for five years. Therefore, we reject the evidence of P.Ws. 13 and 14. 7. The next evidence, upon which, much reliance has been placed by the prosecution is P.W.27. P.W.27 has stated that in the year 2005, when he was cleaning his shop, 5 persons including the deceased were taking liquors in the nearby TASMAC shop. The prosecution relies on this evidence. In our considered view, this evidence is of no use for more than one reason. First of all, though, he has identified the accused 1 to 3, as the persons found in the company of the deceased, they were not previously known to P.W.27. There was no Test Identification Parade conducted. Further, he has not given the date, time and other details, at which, the occurrence had taken place. His evidence is very vague. Therefore, his evidence is also liable to be rejected. 8. Apart from that the prosecution lastly relies on the recovery of M.O.8, that is the Car seat cover from the 4th accused. The 4th accused has been convicted under Section 414 IPC. According to the case, on the confession of the absconding accused, A4 was identified. Therefore, his evidence is also liable to be rejected. 8. Apart from that the prosecution lastly relies on the recovery of M.O.8, that is the Car seat cover from the 4th accused. The 4th accused has been convicted under Section 414 IPC. According to the case, on the confession of the absconding accused, A4 was identified. The Car seat cover has been identified as the one, which was in the car in question. The car has not been recovered. Though, it is stated by the prosecution that the car was dismantled, absolutely, there is no evidence to prove that fact also. There are no special identification features found in the car seat cover. Therefore, it cannot be conclusively held that car seat cover (M.O.8), which was allegedly recovered from A4 belonged to the car in question. Assuming that this car seat cover was the one, which was in the car in question, it will not go to conclusively prove the murder. 9. Apart from the above evidence, the prosecution has not let in any evidence to prove the case. As we have already pointed out, though the prosecution has succeeded in establishing that the deceased was done to death, the prosecution has not proved that the deceased was so done to death by the accused 1 to 3. The prosecution also has not proved that the 4th accused had committed the offence punishable under Section 414 IPC. It is too well settled that in a case based on circumstantial evidence, the prosecution is required to prove all the circumstances projected by it beyond reasonable doubts and such proved circumstances should establish a close link with each other, so as to form a complete chain unerringly pointing to the guilt of the accused and there should not be any other hypothesis, which would be inconsistent with the guilt of the accused. Here, in this case, absolutely, there is no evidence against the accused pointing to the guilt to the accused. Therefore, we hold that the prosecution has failed to prove the case beyond all reasonable doubts. In such view of the matter, the conviction and sentence is liable to be set aside. 10. In the result, the criminal appeals are allowed, the conviction and sentence imposed on the appellants are set aside and they are acquitted of all the charges. Therefore, we hold that the prosecution has failed to prove the case beyond all reasonable doubts. In such view of the matter, the conviction and sentence is liable to be set aside. 10. In the result, the criminal appeals are allowed, the conviction and sentence imposed on the appellants are set aside and they are acquitted of all the charges. Fine amount, if any paid by them, shall be refunded to them. Bail bond shall stand terminated.