Srinivasan v. The Inspector Of Police

BAIL SLIP That the Appellant/Accused namely Viji,S/o.Manikandan, was directed to be released on bail as per the order of this Court dt.30.4.15 in Crl.MP.No.1/15 in Crl.A.NO.40/15. That the Appellant/Accused namely Srinivasan, S/o.Manickam, was directed to be released on bail as per the order of this Court dt.23.3.15 in MP.No.1/14 in Crl.A.No.524/14.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Date: 30.06.2016

CORAM:

THE HONOURABLE MR.JUSTICE S.NAGAMUTHU and THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN Crl.A.No.524 of 2014 and Crl.A.No.40 of 2015 1.Srinivasan 2.Velaiyan @ Katchakara Gounden ... Appellants/Accused 1 &2 (in Crl.A.No.524 of 2014) Viji ... Appellant/Accused 3 (in Crl.A.No.40 of 2015) vs.

The State,by The Inspector of Police, B-4, Annadhanappatty Police Station, Salem District.

(Crime No.674 of 2012) ... Respondent (in both appeals) Criminal appeals preferred under Section 374(2) Cr.P.C., against the judgement dated 09.10.2014 passed by the learned II Additional Sessions Judge, Salem, in S.C.No.193 of 2014. For Appellants : Mr.K.Selvakumaraswamy (in Crl.A.No.524 of 2014) Mr.P.Jagadeesan (in Crl.A.No.40 of 2015) For Respondent : Mr.M.Maharaja,Addl.P.P.

COMMON JUDGMENT (Judgement of the Court was delivered by V.Bharathidasan, J.) The appellants in these appeals are the accused 1 to 3 in Sessions Case No.193 of 2012, on the file of the learned II Additional Sessions Judge, Salem. They stood charged for an offence under Sections 364, 302 r/w 34 and 201 r/w 302 r/w 34 of IPC. The trial Court, by judgement dated 09.10.2014, convicted the appellants/accused for the offence under Section 364 of IPC and sentenced each of them to undergo life imprisonment and imposed a fine of Rs.1000/-, in default, to undergo rigorous imprisonment for three months, convicted them for the offence under Section 302 r/w 34 of IPC and sentenced each of them to undergo life imprisonment and imposed a fine of Rs.

1000/-, in default, to undergo rigorous imprisonment for three months, and convicted them for the offence under Section 201 r/w 302 r/w 34 of IPC and sentenced each of them to undergo rigorous imprisonment for two years and imposed a fine of Rs.1000/-, in default, to undergo rigorous imprisonment for one month. The trial Court ordered the said sentences to run concurrently. Challenging the above said conviction and sentence, the appellants/accused are before this Court with these appeals.

2. The case of the prosecution, in brief, is as follows: (i) The deceased in this case is one Anandhamuthu. The deceased and the accused were accused in another criminal case and on 13.08.2012 all of them appeared before the Court for hearing, at Tiruppur. Thereafter, they were consuming liquor together. At that time, there was a quarrel between them, due to the same, in order to murder the deceased, all the accused took the deceased in a motor cycle near Vemban lake, where, they consumed liquor and had sex with a lady. Thereafter, A-1 attacked the deceased with beer bottle on his neck, A2 and A-3 attacked him with another beer bottle and thereafter all the accused strangulated him with a belt and caused his death. and, they buried the body near a tree.

(ii) P.W.1, father of the deceased, found his son not returning home and he enquired about the same to P.W.2. P.W.2, sister of the deceased, informed that on 13.08.2012 at about 5.00 p.m., A-3 and the deceased upon receiving a sum of Rs.1,000/- from her, left for home. Since the deceased did not return home, his father gave a complaint. On 23.08.2011, P.W.11, Head Constable, working in the respondent police station, received the complaint and sent the same to the Inspector of Police.

(iii) P.W.13, Inspector of Police, working in the respondent police, on receipt of the complaint,(Ex.P1) registered a case in Crime No.674 of 2012 for "man missing" and prepared FIR (Ex.P21),and commenced the investigation, visited the house of the deceased and prepared an Observation

Mahazar Ex.P2, a Rough Sketch, Ex.P25. During the course of investigation, on 23.08.2012, the second accused, namely, Vijayan @ Katchakara @ Goundan @ Manikandan appeared before P.W.5, the Village Administrative Officer, and gave an extra judicial confession, admitting the guilt, stating that he along with other two accused, murdered the deceased and buried the body. P.W.5 recorded the extra judicial confession of A-2 and produced him before P.W.13 along with extra judicial confession, Ex.P23. Then, P.W.13 altered the FIR into Sections 364, 302, 201 of IPC and the altered report Ex.P24. He arrested the second accused and on such arrest, he voluntarily gave a confession and based on the disclosure statement, the second accused identified the place where the dead body was buried. P.W.13 sent a memo to P.W.

9, the Tahsildar for conducting inquest over the dead body and also sent an intimation to the Doctor, for conducting postmortem, he also informed the same to the complainant. Thereafter, he took A-2 and other witnesses, namely, P.W.7 V.A.O and P.W.9 Tahsildar Pethapalayam Village, where, the dead body was buried. The second accused identified the place where the dead body was buried. P.W.12, Head Constable, working in the respondent police, took photograph of the scene place and the photos were marked as Ex.P20. Based on the disclosure statement of A-2, P.W.13 seized the broken beer bottles and two pairs of chappals, blood stained stone, two spade with wooden handle M.Os.6 to 12, under seizure mahazar. Then, P.W.9, the Tahsildar, conducted inquest over the dead body in the presence of panchayatars and prepared inquest report Ex.

P18 and also sent a report to the Judicial Magistrate Court. P.W.13, on receipt of inquest report, sent a request to the Government Hospital for conducting postmortem over the dead body. On the same day, at about 3.00 p.m., the medical team with Doctor reached the place where the body was buried. These, the body was identified by P.Ws.2 and 3. (iv) P.W.6, the Doctor, working in the Government Mohan Kumaramangalam Hospital, Salem, conducted postmortem on the dead body of the deceased and found the following injuries.

Left forearm and hand shows lose of muscles and bones exposed. Tooth loosened. Right upper jaw central incisor reconstructed. Reddish brown pressure abrasion seen over upper aspect of right side of mandible with dislocat6ion of left lower jaw. Laceration seen over right occipital region M 3 x 0.5 x 0.5 cms contusion seen over right temporal region M 5 x 3 cms comminuted fracture of nassal and cheek bones fracture left maxillary bones fracture lower part of left orbital bone.

Other findings:

O/D: Head: (1) Scalp contusion over left tempera parietal region M 10 x 8 x 0.5 cms, fracture over left temporal bone M 7 cms

long. Fracture seen over lower aspect of right Lamboid suture brain - Liquefied and foul smelling and decomposing base of skull intact.

(2) O/D Thorax no ribs fracture, Heart : Flabby, Chambers contained empty.

C/S Decomposing. Lungs both on C/S Decomposing. (3) O/D. Neck. Neck muscles normal, Hyoid bone intact. (4) O/D Abdomen; Stomach contains 35 gms of partly digested cooked meat like food particles with fruity odour C/S decomposing liver, spleen and both kidneys. C/S Decomposing, Bladder empty. Pelvis and spinal column intact.

He was of the opinion that the deceased would appear to have died of head injuries sustained by him. He issued Postmortem Certificate Ex.P9.

(v) Thereafter, P.W.13, returned to the Police Station and sent the second accused for judicial custody. Since A-1 and A-3 have already been remanded to judicial custody in connection with another crime, P.W.3 made a request to the learned Judicial Magistrate for effecting a formal arrest and also took them in to police custody. The first accused, on enquiry voluntarily gave confession before P.W.9 and other witnesses and based on the disclosure statement, P.W.13 recovered a Motor cycle, a sandal colour pant, shirt and one belt M.Os.1 to 5 under Ex.P28. Then, P.W.13 handed over the case records to the Inspector of Police, Annathanapatti Police Station.

(v) P.W.14, Inspector of Police, Annathanapatti Police Station, continued the investigation, examined the Doctor who conducted postmortem and other witnesses and recorded their statements. He altered the FIR into Sections 364, 302 r/w 34 and 302 r/w 201 r/w 34 IPC, and received Chemical Analysis report Ex.P30 and after completion of investigation, he laid charge sheet.

3. Based on the above materials, the Trial Court framed charges as detailed above and the accused denied the same as false. In order to prove the case of prosecution, as many as 14 witnesses were examined, 32 documents were exhibited and 12 material objects were marked.

4. Out of the said witnesses examined, P.W.1 is the father of the deceased. According to him, his son was found missing from 13.08.2012 and hence he gave complaint before the respondent police and a case was registered for "man missing". He has further stated that after 4 days, police arrested the second accused and asked him to identify the body of the deceased. P.W.2 is the sister of the deceased. According to her, on 13.08.2012, the deceased and A-3 came to her house and received a sum of Rs.1,000/- from her. P.W.3 is the brother of the deceased. He has spoke about the missing of the deceased and identification of the dead body of the deceased

and also the dress owned by the deceased. P.W.4 is a mahazar witness to the Observation Mahazar and Rough Sketch. P.W.5 is the Village Administrative Officer, Seelanaikkan Patti Village, before whom A-2 gave extra judicial confession. He is also a witness to recovery of certain materials objects. P.W.6 is the Doctor who conducted postmortem on the dead body of the deceased and issued Postmortem Certificate Ex.P9. P.W.7, another Village Administrative Officer, Pudhupalayam Village is a witness to the Observation Mahazar and Rough Sketch(Ex.P11 and P25) and also recovery of M.Os.1 to 12. P.W.8 turned hostile. P.W.9, Tahsildar, Edapady, conducted inquest over the dead body and prepared inquest report Ex.P18 and sent a report to the Judicial Magistrate Court (Ex.

P19) and also sent a request to the Government Hospital for conducting Postmortem. P.W.10 turned hostile. P.W.11, Head Constable, working in the respondent Police has spoken about submitting material objects for chemical examination. P.W.12, Head Constable, working in the respondent Police has spoken about taking of photographs of the scene of occurrence and also the dead body. P.W.13, Inspector of Police, working in the respondent police has deposed that on receipt of the complaint, registered a case for "man missing", commenced investigation, prepared Observation Mahazar and Rough Sketch and examined the witnesses and recorded their statements, altered the FIR into Section 364, 302, 201 of IPC, arrested the first accused, recovered material objects and handed over the case records to P.W.14, another Inspector of Police. P.W.

14, Inspector of Police, working in the respondent police station, continued the investigation, examined the Doctor who conducted postmortem and recorded his statement, altered the FIR into Sections 364, 302 r/w 34 and 302 r/w 201 r/w 34 of IPC and after completion of investigation, he filed the charge sheet.

5. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., they denied the same as false. Their defence was a total denial. The accused did not examine any witness, but marked two documents Ex.D1 and Ex.D2, the sentry book maintained by the respondent police. In the sentry book, it has been proved that on 22.08.2012 itself all the accused were brought to the police station and A1 and A3 were detained under Goondas Act and they were remanded to the judicial custody on 23.08.2012 at 11.20 a.m.,

6. Considering the above materials, the Trial Court convicted the accused/appellants for the offences as stated in the first paragraph of this judgment. Challenging the above conviction and sentence, the appellants/accused are before this Court.

7. We have heard Mr.K.Selvakumaraswamy, learned counsel appearing for the appellants 1 and 2 in Crl.A.No.524 of 2014 and Mr.P.Jagadeesan, learned counsel appearing for the

appellant in Crl.A.No.40 of 2015 and Mr.M.Maharaja, learned Additional Public Prosecutor appearing for the State and we have also perused the records carefully.

8. It is a case of circumstantial evidence. The prosecution has mainly relied upon the extra judicial confession given by the second accused to P.W.5 Village Administrative Officer. It is the version of the prosecution that on 23.08.2012 at about 9.30 p.m., the second accused is said to have appeared before the P.W.5, the Village Administrative Officer and gave an extra judicial confession and subsequently, P.W.5 produced the second accused before P.W.13, the Inspector of Police at 11.00 p.m. On such production, P.W.13 has arrested the second accused and on such arrest, the second accused has voluntarily given a confession and based on his disclosure statement, the second accused has identified the place where the dead body was buried.

All the above facts were within the exclusive knowledge of the second accused and only based on his confession, the dead body was recovered. It is a strong circumstance against the second accused. The argument of the learned counsel appearing for the 2nd appellant is that the second accused was already arrested and he was on police lock-up on 23.08.2012. From the perusal of Exs.D1 and D2, it is clear that he was taken to the police station only at 11.20 p.m., only after giving confusion Hence, the defence that the second accused was already arrested and he was in the police custody and therefore, the extra judicial confession cannot be believed, cannot be accepted. The evidence of P.Ws.6 and 13 are that the second accused appeared before P.W.5, the VAO, at about 9.00 p.m., and gave an extra judicial confession and thereafter P.W.

5 took the accused to the police station at about 11.00 p.m., and only at about 11.00 p.m., P.W.13 has arrested the second accused and hence there was no arrest of the second accused prior to that. It is clear that the extra judicial confession given by the second accused as at 9.30 pm. and hence the argument of the learned counsel appearing for the appellant has no force. In the above said circumstances, we have no reason to disbelieve the extra judicial confession given by the second accused.

9. So far as A1 and A-3 are concerned, there was no extra judicial confession. As already they were detained under the Goondas Act, P.W.13 made a formal arrest and took them into police custody and on their confessions, motor cycle was recovered and they have been implicated by the confession of A-2.

10. It is settled principle of law that the confession of the co-accused can only be used to lend assurance to other evidence against the co-accused. The Hon'ble Supreme Court in the Judgement reported in Kashmira Singh Vs.The State of Madhya Pradesh, reported in AIR 1952 Supreme Court 159, has held as follows:-

"Translating those observations into concrete terms they come to this. The proper way to approach a case of this kind ism, first to marshal the evidence against the accused excluding the confession altogether from consideration and see whether if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, than of course it is not necessary to call the confession in aid. But cases may be arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept."

11. Except the extra judicial confession of A-2, there is no other evidence available to implicate A1 and A3. So far as the evidence of P.W.2, the sister of the deceased is concerned, she has seen both the deceased and the 3rd accused were came to her house and received a sum of Rs.1,000/- on the date of occurrence. This evidence of P.W.2 is not sufficient to connect A-3 with the commission of the offence. Except the above said piece of evidence, there is no other evidence corroborating the evidence of P.W.2. So far as A-1 is concerned, M.O.1 motor cycle has been recovered based on his confession. In our considered view that it is not sufficient to convict accused 1 and 3. The other circumstance relied upon by the prosecution is recovery of motor cycle M.O.2 TV50 Moped. Based on the disclosure statement of A-3, P.W.13 has recovered M.O.

2 Motor cycle. We are of the considered opinion that recovery of M.Os.1 and 2 alone is not sufficient to convict the accused 1 and 3, under Section 302 r/w 34 IPC. In the above circumstances, the conviction and sentence imposed on the A1 and A3 under Section 302 r/w 34 is liable to be set aside and they are entitled for acquittal. The conviction and sentence imposed on the second accused under Sections 364, 302 r/w 34 and 201 r/w 302 r/w 34 IPC is set aside and instead, A2 convicted under Section 201 r/w 302 IPC and sentencing him to undergo life imprisonment and to pay a fine of Rs.1,000/- in default, to undergo rigorous imprisonment for two years, thereunder would meet the ends of justice.

12. In the result, (i) the Criminal Appeal No.524 of 2014 is allowed only in respect of the first appellant/first accused and the conviction and sentence imposed on him in S.C.No.193 of 2013 dated 09.10.2014 on the file of the learned II Additional Sessions Judge, Salem is set aside and he is acquitted from

all the charges levelled against him and bail bond, if any, executed by him shall stand cancelled. Fine amount, if any, paid by him is ordered to be refunded.

(ii) the Criminal Appeal No.524 of 2014 is partly allowed in respect of the second appellant/second accused and the conviction and sentence imposed on him in S.C.No.193 of 2013 dated 09.10.2014 on the file of the learned II Additional Sessions Judge, Salem, u/s.364,302 R/2.34 and 201 R/w.302 R/w.304 is set aside and instead, he is convicted for an offence under Section 201 r/w 302 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.1000/- in default, to undergo rigorous imprisonment for two years. If the 2nd appellant/2nd accused is not in custody, the trial Court is directed to take appropriate steps to secure him and commit him to undergo the rest of the sentence.

(iii) the Criminal Appeal No.40 of 2015 is allowed and the conviction and sentence imposed on the appellant/3rd accused in S.C.No.193 of 2013 dated 09.10.2014 on the file of the learned II Additional Sessions Judge, Salem is set aside and he is acquitted from all the charges levelled against him and bail bond, if any, executed by him shall stand cancelled. Fine amount, if any, paid by him is ordered to be refunded fourthwith.

Sd/- Asst.Registrar (CCC) /true copy/ Sub Asst. Registrar To 1.The Judicial Magistrate,NO.4, Salem.

2.do thro'The Chief Judicial Magistrate, Salem. 3.The II Additional District and Sessions Judge, Salem.

4.Do thro'The Principle Sessions Judge, salem. 5.the Superintendent, Central Prison, Coimbatore. 6.the District Collector, Salem.

7.The Director General of Police, Mylapore, Chennai.

8.The Inspector of Police, B-4, Annadhanappatty Police Station, Salem District.

9.The Public Prosecutor, High Court, Madras.

mg(co) krd 23/12 Crl.A.Nos.524 of 2014 and Crl.A.No.40 of 2015