Chokkalingam v. The Inspector Of Police

BAIL SLIP The Appellant/Accused namely Chokkalingam be and hereby was directed to be released on bail wide Court order dated 08.07.2013 in M.P.No.1 of 2013 in Crl.A.No.430 of 2013.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 22.03.2016

CORAM:

THE HON'BLE MR.JUSTICE S.NAGAMUTHU And THE HON'BLE MR.JUSTICE M.SATHYANARAYANAN Criminal Appeal No.430 of 2013 Chokkalingam ... Appellant Vs.

State by The Inspector of Police, Balu Chetty Chathiram Police Station, Crime No.444/2010 Kanchipuram District.

... Respondent Prayer:

Appeal filed under Section 374(2) of the Code of Criminal Procedure against the judgment passed by the learned Sessions Judge, Sessions Court No.II, Kanchipuram District in S.C.No.41 of 2011 dated 30.04.2013.

For Appellant : Mr.M.G.Udaya Shankar for Mrs.S.Shanthakumari For Respondent : Mr.M.Maharaja Additional Public Prosecutor

JUDGMENT

(Judgment of the Court was delivered by M.SATHYANARAYANAN, J.) The appellant is the sole accused in S.C.No.41 of 2011 on the file of the Sessions Court No.II, Kanchipuram and he stood charged, trialled and convicted and sentenced as follows, vide impugned judgment dated 30.04.2013:

Conviction Sentence 302 I.P.C.

Rigorous imprisonment for life, fine of Rs.1,000/- in default to undergo six months rigorous imprisonment.

The Trial Court also granted set off under Section 428 of Cr.P.C. The accused aggrieved by the said conviction and sentence passed by the Trial Court, filed this appeal. 2.The facts leading to the filing of this appeal briefly narrated are as follows:

(i)P.W.1 is the brother of the deceased namely, Arasu who was eking out his livelihood as a Photographer in Sathya Studio, Moongil Mandapam, Kanchipuram.

According to P.W.1, on 10.12.2010 at about 5.30 p.m., his younger brother Arasu (since deceased) along with Shankar (P.W.3) and Neelakandan (P.W.2) went to the TASMAC shop at Thamal junction road for the purpose of consuming liquor and at that time, the appellant/ accused came there. The appellant/ accused asked Arasu to get a cutting of; "brandhi" and there was an altercation between the appellant/accused on the one side and Arasu, P.Ws.2 and 3 on the other side. Thereafter, the deceased and the above said witnesses went to the Sub Registrar Office, Thamal village. The appellant/accused followed them and with the help of wooden log damaged the wind shield of the car belonging to Shankar (P.W.3) and also attacked him on the jaw, chest and right hand and thereafter, chased Arasu who ran to the rear side of the Sub Registrar Office. On 12.

12.2010, P.W.1 was informed that a body was found on the rear side of the Office of the Sub Registrar and it appears to be that of his younger brother. P.W.1 proceeded to the spot and saw the body of his brother lying with injuries and he proceeded to the Balu Chetty Chathiram Police Station and lodged a complaint to the Inspector of Police attached to the said police station (P.W.12) who, on receipt of the complaint (Ex.P1) has registered a case in Crime No.444 of 2010 for the commission of offence under Section 302 of I.P.C. at 10 hours on 12.12.2010.

(ii)The printed F.I.R. was marked as Ex.P.10. P.W.12 despatched the original of the Ex.P1 - complaint and F.I.R. to the jurisdictional Magistrate Court as well as copies to his higher officials and proceeded to the scene of occurrence. At about 10.30 a.m. on 12.12.2010, in the presence of P.Ws.7 and 4 prepared Observation Mahazer (Ex.P2) and Rough Sketch (Ex.P11) and also summoned the services of Photographer to take photographs. At about 12 noon on 12.12.2010 in the presence of Panchayatdhars, conducted inquest on the body of the deceased and the Inquest Report was marked as Ex.P12. P.W.12 also made arrangements to send the body of the deceased to post mortem through P.W.11.

(iii)P.W.9 was the Assistant Surgeon attached to the Government Headquarters Hospital, Kanchipuram and on receipt of the body commenced post mortem at about 10.30 a.m. on 13.12.2010 and noted the following features:

"A moderately nourished male body lying on its back in the PM shed.

External examination:

Body started decomposing with maggots present all over the body. Skin peeling present. Face Bloated.

Blisters over the thighs and lower abdomen.

Rt face - Blackish discolouration present. Greenish discolouration over the anterior chest present.

Internal Examination: 1.Hyoid bone intact 2.Heart - 350 gms c/s pale 3.Lungs 350 gms R, 300gms L - c/s pale 4.stomach - dissented with gas and partially digested food particles. 5.Liver 1200 gms c/s pale 6.Spleen - 100 gms c/s pale 7.Kidneys 100 gms each c/s pale 8.Skull - Rt side Temporal bone fracture present.

Corresponding meninges had discolouration. Brain started liquefaction necrosis.

Following viscera sent for chemical analysis: 1.Stomach with contents 2.Intestine with contents 3.Piece of Liver 4.Piece of kidney 5.Preservative NaCl."

After concluding the postmortem, had issued Post Mortem Certificate under Ex.P6 opining that "the deceased would appear to have died of severe head injury with intracranial haemorrhage and shock."

(iv)P.W.12 effected arrest of the accused at about 4.30 p.m. on 12.12.2010 in the presence of P.W.5 and another and the accused voluntarily came forward to give confession statement and as per the admissible portion of the confession statement marked as Ex.P13, appellant/ accused took them to the Sub Registrar Office, Thamal village and produced M.O.1 - casuarina wooden log from the thorny bush and it was seized under the Mahazer (Ex.P5) in the presence of the above said witnesses. At about 2.30 p.m on that day, P.W.12 also seized M.O.2 - blood stained Earth, M.O.3 - sample Earth under the Mahazer (Ex.P3) and sent M.O.1 under Form 95 to the jurisdictional Magistrate Court and also sent M.Os.4 to 6 to the said Court. P.W.12 made a requisition for examining the material objects under Ex.P16 and examined P.Ws.1 to 7, 8 and 11 and other witnesses and recorded their statements. On 13.12.2010, P.W.12 sent the appellant/accused to judicial custody and on transfer handed over the investigation to P.W.13.

(v)P.W.13 continued the investigation and examined P.W.9 Doctor who conducted autopsy and also the Expert who gave chemical opinion and recorded their statement and also obtained the Serology Report. P.W.13 on completion of investigation, has filed charge sheet charging the accused for the commission of offence punishable under Section 302 of I.P.C. to the Court of Judicial Magistrate - II, Kanchipuram who took it on file in P.R.C.No.7 of 2011. The Committal Court had issued summons to the appellant/accused and on his appearance, furnished copies of documents, under Section 207 Cr.P.C. The Committal Court having found that the case is exclusively triable by the Sessions Court, committed the case to the Principal Sessions Court, Kanchipuram District which in-turn made over the case to the Sessions Court No.II, Kanchipuram who took it on file in S.C.No.41 of 2011.

(vi)The prosecution, in order to sustain their case, had examined PWs.1 to 13 and marked exhibits Ex.P1 to Ex.P17 and also marked M.Os.1 to 6.

(vii)The appellant/accused was questioned under Section 313 (1)(b) of Cr.P.C. with regard to incriminating circumstances made out against him in the evidence rendered by the prosecution and he denied it as false. The appellant/accused did not examine any witness and no documents were marked. (viii)The Trial Court, on consideration of oral and documentary evidence and other materials, had convicted and sentenced the accused as stated above and hence this appeal. 3.The learned counsel appearing for the appellant/ accused made the following submissions:

(i)Admittedly, there was a counter case but the said case has been totally burked by the prosecution for the reasons best known to them.

(ii)According to P.W.3, his car was attacked by the appellant/ accused and he has also lodged a complaint in that regard, however, the fate of the said complaint has not been made known.

(iii)The motive for commission of the offence projected by the prosecution, was feeble and un-believable. (iv)The prosecution has miserably failed to adduce any reasons as to why no efforts has been taken to trace the deceased Arasu who is none other than the brother of P.W.1. (v)The evidence of the sole eye witness namely, P.W.6 also cannot be believed for the reason that though he is said to have witnessed the commission of the crime, he did not inform anybody and failed to lodge any complaint and thereby his conduct was

highly artificial and his conduct was not that of a normal human with average intelligence.

4.In sum and substance, it is the submission of the learned counsel appearing for the appellant/ accused that the case of the prosecution is bristled with very many infirmities and inconsistencies. Hence, the Trial Court ought to have given the benefit of doubt to the appellant/ accused and acquitted him and prays for allowing of this appeal.

5.Per contra, learned Additional Public Prosecutor would submit that the motive aspect has been clearly spoken to by P.Ws.2 and 3 and the damaging of the vehicle owned by P.W.3 was also been spoken to by P.Ws.2 and 4 and P.W.6, the sole eye witness has categorically stated that it was the appellant/ accused who attacked the brother of P.W.1 with wooden log which resulted in fatal injury and the prosecution through scientific evidence has proved its case beyond all reasonable doubt and therefore, the trial Court, on consideration of oral and documentary evidence, has rightly convicted and sentenced the appellant/accused and prays for dismissal of the appeal. 6.This Court has carefully considered the rival submissions and also perused the oral and documentary evidence, the other materials and also the original documents.

7.The question that arises for consideration in this appeal is whether the prosecution was able to prove the murder of Arasu - brother of P.W.1 at the hands of the appellant/accused beyond all reasonable doubt?

8.Brother of the deceased was examined as P.W.1 and admittedly, he was not an eye witness to the occurrence and he was also not aware of the altercation that took place in the TASMAC shop on 10.12.2010 between the appellant/ accused and P.Ws.2, 3 and the deceased. P.W.1 further deposed that somebody told him about seeing the body of his brother and P.W.3 has informed that his brother was attacked by the appellant/ accused on his head with the wooden log.

9.P.W.2 would depose that on the date of occurrence on 10.12.2010, there was a wordy altercation with regard to the demand made by the appellant/ accused to get brandhi and the damaging of the wind shield by him and the appellant/ accused chased the brother of P.W.1. In the cross-examination, P.W.2 depose that the appellant/ accused had an altercation with the Salesman of TASMAC shop namely, P.W.8 and they did not fight with P.W.8. P.W.2 would further depose that when he was examined by the police during investigation, he has stated that there was altercation between two groups and himself, P.W.3 and deceased as one group and another group consisted of the appellant/ accused and P.W.8. P.W.2 would further depose that he has seen the damaging of the wind shield by the appellant/ accused and in this regard, P.W.3 also lodged a complaint and

the police made enquiry on the same day and he did not witness the attack on the deceased. The evidence of P.W.2 would disclose that there was an altercation between two groups and with regard to the damaging of wind shield of his car, P.W.3 has lodged a complaint on the same day and the police has also conducted enquiry.

10.P.W.3 would depose that during the course of altercation, he was attacked by the appellant/ accused with wooden log on his jaw, right forearm and chest and thereafter, the appellant/ accused chased the deceased who ran on the rear side of the Sub Registrar Office and he immediately proceeded to the police station, lodged a complaint and thereafter took treatment in the Government Hospital, Kanchipuram as inpatient. P.W.3 in the cross examination has deposed that there was no altercation between him and P.W.8 in the TASMAC shop and thereafter, there was an altercation between him and the appellant/ accused and he has no previous enmity between the appellant/ accused. P.W.3 would further depose that at about 5 p.m. on 10.12.2010, the appellant/ accused had altercation with them near the Sub Registrar Office and when the wind shield of the car was damaged, public had also witnessed it and they also saw the accused chasing the deceased. He also took treatment for three days.

11.P.W.4 would depose that he has seen the attack made by the appellant/ accused on P.W.3 and also damaging the wind shield of his car and he was a witness to the Mahazer. P.W.6, according to prosecution had witnessed the commission of the offence and in the chief examination would state that on 10.12.2010 at about 7 p.m., he along with Ravichandran went to answer call of nature and at that time, he saw the appellant/ accused attacking Arasu - brother of P.W.1 with wooden log and on seeing that, they fled away from the scene and fearing something, both of them returned home and they came to know about the body found near the office of the Sub Registrar thereafter and identified him. P.W.

6 in the cross-examination would state that he has witnessed the attack made by the appellant/ accused on the deceased and he did not take any steps to prevent him and also did not inform anybody including P.W.1 and also not lodged police complaint and even on seeing the body on 12.12.2010, he did not inform anybody as to the happenings which took place on 10.12.2010 night hours. 12.P.W.12, Investigation Officer did not speak anything with regard to the wordy altercation between two groups as well as the complaint lodged by P.W.3 with regard to the attack inflicted upon him as well as the damage of the wind shield of his car by the appellant/ accused.

13.It prima facie appears that it was a case in counter and however, nothing has been adduced as to the fate of complaint given by P.W.3. It is the categorical evidence of P.W.3 that after sustaining bodily injuries at the hands of the appellant/

accused, he got admitted at the Government Hospital, Kanchipuram and was inpatient for three days, but no medical records have been marked to that effect.

14.Insofar as the motive is concerned, inconsistency get large in the case of prosecution for the reason that P.Ws.2 and 3 would depose that they have no difference of opinion with P.W.8 - the Salesman attached to the TASMAC shop and later on they say there was an altercation. P.W.8 would depose that the deceased, P.Ws.2 and 3 asked him to give a "cutting" and he refused to give it and there was an altercation and the appellant/ accused came to his support and therefore, there was an altercation between the deceased, P.Ws.2 and 3 on one side and the appellant/ accused on the other side. The cross examination of P.W.8 would disclose that there was only wordy altercation and after it was over both of them went separately. 15.

As already pointed out, it is the case of case in counter and the registration of the case on the complaint given by P.W.3 has been totally bugged by the prosecution. The motive is also been not proved by the prosecution on account of the inconsistency between the testimonies of P.Ws.2, 3 and 8. 16.The prosecution heavily relies upon the testimonies of the eye witness namely, P.W.6 who is said to have witnessed the occurrence along with one Ravichandran. However, in the cross examination, he would admit that he did not inform the said fact either to the brother of the deceased namely, P.W.1 or to anybody. He did not also lodge any complaint with the police and even on seeing the body on 12.10.2010, he did not inform anybody. Thus, the conduct of the alleged eye witness namely, P.W.6 appears to be un-natural.

17.No doubt in pursuant to the admissible portion of the confession, recovery was effected and scientific evidence has also proved that the deceased died on account of the head injuries sustained by him. But the said evidence alone cannot connect the appellant/ accused with the commission of crime for the reason that the important circumstances projected by the prosecution are full of infirmities and there are glaring holes in the case of the prosecution. The Trial Court without properly analysing the oral and documentary evidence, has arrived at the finding and convicted and sentenced the accused. 18.This Court in the light of the reasons assigned above is of the opinion that the case of the prosecution cannot be sustained and the benefit of doubt shall enure in favour of the appellant/ accused.

19.In the result, this criminal appeal is allowed and the conviction and sentence as against the appellant/ accused in the judgment dated 30.04.2013 in S.C.No.41 of 2011 passed by the learned Sessions Judge, Sessions Court No.II, Kanchipuram District are set aside and the appellant is acquitted from the

charge under Section 302 of I.P.C. The fine amount if any, paid by him is ordered to be refunded to him. The bail bonds executed by him, shall stand terminated/ discharged. Sd/- Assistant Registrar(CO) //True Copy// Sub Assistant Registrar pri To

1. The Sessions Judge, Sessions Court No.II, Kanchipuram District.

2. The Judicial Magistrate No.2, Kancheepuram.

3. The Chief Judicial Magistrate, Chengalpattu.

4. The Inspector of Police, Balu Chetty Chathiram Police Station, Crime No.444/2010 Kanchipuram District.

5. The Superintendent, Central Prison, Vellore.

6. The Public Prosecutor, Madras High Court, Chennai.

Criminal Appeal No.430 of 2013 KJI(CO) CA(13/04/2016)