IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 04 .04.2007 Coram The Honourable Mr.Justice R. Balasubramanian And The Honourable Mr. Justice A.C.Arumugaperumal Adityan CRIMINAL APPEAL Nos.151 of 2001 & Crl.R.C.Nos.238 of 2001 C.A.NO.151 of 2001 State by Inspector of Police C.B.C.I.D. All women Police Station B9, Saravanampatty Police Station Coimbatore City. .. Appellant -Vs.- Anbazhagan ..Respondent/Accused Crl.R.C.No.238 of 2001 Bakkiam ..Petitioner/PW1 -vs.- 1. Anbazghagan 2. State rep.by Inspector of Police B3 Kattur Police Station, Kovai. .Respondents/Accused & Complainant Appeal against the judgment dated 8.11.2000 in S.C.No.214 of 2000 and on the file of I Additional Sessions Judge-cum-Chief Judicial Magistrate, Coimbatore. Criminal Revision Petition against the judgment of acquittal dated 8.11.2000 in S.C.No.214 of 2000 on the file of I Additional Sessions Judge-cum-Chief Judicial Magistrate, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/ For Appellant in C.A.Nos.151 & R.2 in Crl.RC.No.238/2001 : Mr.N.R.Elango For Petitioner in Crl.R.C.No.238/2001 : Mr.M.Venkataraman For R.1 in C.A.No.151/2001 & Crl.R.C.No.238/2001 : Mr.K.V.Sridharan J U D G M E N T (Judgment of the Court was delivered by R.Balasubramanian, J) This appeal is by the State challenging the acquittal of the respondent herein by the Court of Sessions, Coimbatore in S.C.No.214 of 2000. The revision is by P.W.1 in that sessions case. The respondent in that sessions case was tried under Section 201 I.P.C. At the end of the trial, he was acquitted. As noted earlier, that judgment of acquittal is challenged before this court in the appeal filed by the State and in the revision filed by P.W.1. Heard Mr.N.R.Elango, learned Additional Public Prosecutor for the State and Mr.K.V.Sridharan, learned counsel for the respondent. We heard Mr.M.Venkataraman for the revision petitioner and Mr.K.V.Sridharan again for the respondent. 2. The sum and substance of the prosecution case is that a young girl, aged about 16 years and who is the daughter of P.W.1, left the house on the evening of 22.12.1995 to attend her night shift work in Sundaram Mills situated at Chinnavedampatti Village within the jurisdiction of the Court of Sessions; she did not return on the next day after her duty; this resulted in a hue and cry in the house of P.W.1; people gathered and ultimately the body was found dead in a dry well on the evening of 23.12.1995. Thereafter Law was set on motion by a complaint coming to be registered on the file of the police station concerned in Crime No.81 of 1995 - the crime was registered under Section 174 of the Code of Criminal Procedure, being "suspicious death". Investigation commenced on the registration of the crime and the respondent herein, who was the then Inspector of Police - investigating officer, was incharge of the investigation from 23.12.1995 till 23.3.1996. The respondent though knew fully well, who the real offenders are, yet, collected materials to bring home the prosecution case against only one person by name Sundaram alias Sundarasamy and as a result of those materials collected, a final report came to be filed on 28.8.1996 by the officer then incharge of the police station against Sundaram alias Sundarasamy under Sections https://hcservices.ecourts.gov.in/hcservices/ 376, 302 and 201 I.P.C., in the very same Court of Sessions, which was taken on file as S.C.No.110 of 1998 and therefore with the intention of screening the offender from legal punishment, he gave information regarding that offence (by collecting materials pointing out the guilt of another person) which he knows or believes to be false. The prove their case, the prosecution examined P.Ws.1 to 25 besides marking Exs.P.1 to P.52 and M.Os.1 to 23. The defence did not let in any oral evidence. But however the defence marked Exs.D.1 to D.7. Since the charge against the accused is only under Section 201 I.P.C. - the sum and substance of which we have already given earlier, we are of the opinion that we need not give the entire evidence let in by the prosecution to prove the offence under Sections 376 and 302 I.P.C., since it would be suffice to advert to the relevant material namely, whether during the course of investigation the respondent knew, who the real offenders are and yet did he proceed to collect materials with a view to screen them and project a scapegoat in court for the purpose of trial? To complete the narration of facts, we would like to state that when S.C.No.110 of 1998 was taken up for recording evidence on 11.11.1998 and 12.11.1998 the witnesses examined therein turned hostile. P.W.25 in the present case was the Station House Officer when the trial commenced in the earlier sessions case. That trial was proceeded against only one accused namely, Sundaram alias Sundarasamy. On the witnesses turning hostile in that sessions case, P.W.25 moved the Court of Sessions at that time for permission to re- investigate and accordingly such permission was granted. On such permission to re-investigate granted, S.C.No.110 of 1998 was brought to an abrupt end without allowing it to reach its logical end. After thorough re-investigation, P.W.25 filed a final report in Court in respect of the same occurrence against six accused, in which, the present respondent was A.6. That sessions case was taken on file as S.C.No.96 of 2000. However on an application taken out by A.6 in that sessions case that there is misjoinder of parties, the then learned Sessions Judge passed a detailed order on merits splitting up the case against A.6 in that sessions case and trial in S.C.No.96 of 2000 went on only against the remaining five accused. The split up case against A.6 in that sessions case was taken on file as S.C.No.214 of 2000, out of which the present appeal and the revision had arisen. S.C.No.96 of 2000 also ended in acquittal and the State and the private party came before this court in C.A.Nos.152 of 2001 and Crl.R.C.No.239 of 2001. By separate judgment we have disposed of both the above proceedings reversing the judgment of acquittal. 3. As we indicated earlier, the crux of the issue in the proceedings before us is, whether the respondent knew, who the real offenders are and yet did he collect materials (thereby giving an information) that the accused is somebody else other than the real offenders? With the limited scope as indicated above, let us proceed to state in sum and substance what the witnesses spoke in the court of sessions. P.W.1 is the mother of the victim. She only speaks about https://hcservices.ecourts.gov.in/hcservices/ her daughter going for duty; not returning home; dead body found in the well and she set the Law on motion. Therefore at the best , her evidence would only show that her daughter, who left for work on the previous evening to the mill did not return home on the next day morning and she was found her dead body in a dilapidated well on that evening. Of course, she on her own and with a backing of a political party had sent a complaint to the higher ups that the investigation is not going on proper lines, as a result of which P.W.20, the Inspector of Police, Crime Brach CID was ordered to conduct an enquiry on that complaint, which he held for three days in the first week of April, 1996 and sent his report. P.W.1's evidence, in our considered opinion, do not take the prosecution case any further. Therefore we leave the evidence of P.W.1 as it is. P.W.2 is examined as an eye witness to the crime of rape, murder and screening the evidence of the offence. His evidence in sum and substance on the issue concerned in this case is the following:- "He was on duty on that day; after attending to some odd job, he went into the mill once again; as he entered the mill, he found the food basket of the victim in this case; on hearing the victim's voice, he asked A.2 as to what is happening; A.2 answered that the boss is doing like that and when he (the witness) asked A.2 as to how he can say like that, A.2 asked him to go to his department and watch if anybody is coming; A.2 called him a little later stating that the victim has become unconscious because of the act performed by the boss;................. the girl was taken to the bed room and after some time when he went back to the mill, he found that the food basket of the victim was not there; A.2 called him; the boss told him that since he did like that to the girl, she died; he (P.W.2) expressed his anguish by stating that since they informed him earlier that the girl is unconscious and that she may taken to the bed room to rest and how can they say that she is dead now, for which A.2 answered that they would manage everything and if he (P.W.2) discloses this to anyone, his mother and his entire family would be eliminated, for which he prostrated at their legs and promised that he would not divulge; on the following Sunday (must be 24.12.1995) when he was grazing the cattle he was summoned by the mill owners and he accordingly went; A.2's father and others took him in their car to the police station and enroute he was informed that if he is questioned of any incident in the mill, he must plead ignorance; he was taken to the police station and he was called inside; the Inspector of Police Anbazhagan (the respondent) was there; the Inspector asked his name and questioned him https://hcservices.ecourts.gov.in/hcservices/ as to whether the victim had come for work on the day; without knowing what to tell, he put his head down; Sundarasamy (the sole accused in S.C.110 of 1998) was summoned inside the police station; when he was questioned by the police A.1, A.2 (in S.C.96 of 2000) and their relatives were there; two days later he was taken to a room in the upstairs in the police station where he was confined for two or three days; A.1, A.2 (in S.C.96 of 2000), A.2's father and other relatives were there; Inspector of Police (the respondent) asked him whether he can read and he answered that he knows by stating that he had studied upto sixth standard; he (P.W.2) was given a paper containing written material and he was asked to read; he read twice or thrice; Inspector of Police Anbazhagan (the respondent) threatened him that he must speak only as written in the paper given to him in all the places, as otherwise, he (P.W.2) would also be locked up with Sundarasamy (sole accused in S.C.No.110 of 1998); he agreed and signed; five or six months later, A.1 (in S.C.96 of 2000) told him that C.I.D. police is summoning him; he (P.W.2), A.1, A.2 (in S.C.96 of 2000) and Palanisamy went in their car; in another car mill owner and another lady worker came; enroute A.2 told him (P.W.2) that if he is asked, he must tell only what he was already told in the police station, as otherwise he (P.W.2) would also be put in the case and he would be tortured with pins; he (P.W.2) agreed and went with them; C.I.D. police asked him whether the victim had come for work and he answered in the negative; they asked him, who committed the crime and at that time A.1 and A.2 (in S.C.96 of 2000) were by his side and he said, he did not know; two days before attending the court, he (P.W.2) was asked to meet their lawyer; A.1 (in S.C.96 of 2000) took him to their lawyer, who asked his name and then, he (the lawyer) advised him that he (P.W.2) need not have any connection with the owners and for all the questions to be asked in court, he (P.W.2) should say that he did not know; he agreed to say so; he (P.W.2) was taken to the court in a Car and he was asked to sit in a place away from the view of the police." When he was cross examined he had admitted that neither in the trial in the earlier sessions case nor before the Inspector of Police Anbazhagan (the respondent) nor before C.B.C.I.D. police he disclosed what he deposed in court in the present sessions case. https://hcservices.ecourts.gov.in/hcservices/ 3. P.W.3 is not an eye witness to the crime. But however his evidence shows that he was on night shift in the mill on 22.12.1995 and he worked till 11.30 a.m. in the following morning namely, Saturday. When he was cross examined by the defence he would state as hereunder:- "After finishing his night shift on the Saturday morning he went home and slept; at about 6.30 p.m. Sundarasamy (the sole accused in S.C.No.110 of 1998) and others met him on their way to their house; Sundarasamy came back within fifteen minutes and when asked Sundarasamy said that as police is there he (Sundarasamy) had come back and he wanted to see his Uncle; after seeing his Uncle he came back stating that the police is enquiring everybody in the company and therefore taking him (P.W.3) in his cycle Sundarasamy went to the police station; leaving P.W.3 outside, Sudarasamy went inside; though P.W.3 waited there for half an hour,Sundarasamy did not come out; therefore P.W.3 returned to his house and at 12.00 on that night, two policemen came in a Car with the mill owner's son and took P.W.3 to the police station, where P.W.3 was enquired and then asked to go." P.W.4 states that he is the friend of Rathinam (A.1 in S.C.No.96 of 2000) and on the day following the occurrence day, he went to the police station to see Rathinam, where the police inspector (the respondent) asked him to sign. P.W.4 asked as to why he must sign, for which the Inspector of Police told P.W.4 that as he (P.W.4) is the friend of A.1 (in S.C.No.96 of 2000) he can sign and accordingly he had signed. P.W.4 was also examined to prove that the Inspector of Police did not prepare the inquest report at the spot but only at the police station. When he was cross examined by the defence he asserted that since Rathinam (A.1 in S.C.No.96 of 2000) is his friend he went to see him in the police station. P.W.5 had been examined to prove that the inquest was not conducted at the spot and the inquest report was prepared only at the police station. P.W.6 is examined for a similar purpose. P.W.7 is the Village Administrative Officer during the relevant time for Chinnavedampatti Village. We extract his evidence as hereunder:- "The occurrence was on 22.12.1995; at that time I was the Village Administrative Officer of Chinnavedampatti; on 23rd, 24th and 25th I was not in town; on 26th I returned and went for tax collection; on 27th morning I was contacted over the phone available in a shop close to my office asking me to come to the police station; accordingly I went; the Inspector of Police (the respondent) asked me to give a report that Sundaram alias Sundarasamy (the sole accused in https://hcservices.ecourts.gov.in/hcservices/ S.C.No.110 of 1998) surrendered before me on his own; I initially refused stating that it is a police case; however I reduced into writing what the Inspector of Police told me at that time; I was told to write that Sundarasamy (wrongly typed as Sundaramoorthy) surrendered on 23.12.1995; however I do not remember the time of surrender as mentioned by them; Ex.P.9 is the document which I wrote and I wrote that document in the police station; the contents of Ex.P.9 are false and it is incorrect to say that the said accused surrendered; I have not taken the accused to the police station but however he was already there; then the Head Constable (P.W.21) recorded the statement of the accused, in which I have signed and Ex.P.10 is my signature in that statement." When he was cross examined he admitted that when he was examined by the Magistrate under Section 164 of the code of Criminal Procedure he did not disclose that he wrote Ex.P.9 in the police station because he was threatened. P.W.21 is the Head Constable in the then Investigating Police Station. He would depose that though he was on earned leave for twenty days, his earned leave was cancelled by the Inspector of Police Anbazhagan (the respondent) with a call to him to report at the police station and accordingly he reported for duty in the police station on 23.12.1995. On 27th of that month he reduced into writing the confession statement of the accused (the sole accused in S.C.No.110/1998) as dictated to him by the Inspector of Police and when he was recording the confession statement he saw the accused in the police station. He would also depose that at that time he saw on the Inspector's table a wire basket and a tiffin carrier, which he identified as M.O.8 (wire basket) and M.Os.11 and 12 (Tiffin carrier). When he was cross examined, he would admit that he did not know whether pursuant to the confession statement given by the accused he produced any properties. 4. P.Ws.8 and 9 are friends. P.W.8 would state that he went to the police station on 27.12.1995 to get a licence to use the amplifier and at that time he saw in the police station, the Inspector of Police (the accused) and the Village Administrative Officer of Chinnavedampatti (P.W.7). P.W.7 was being enquired at that time. P.W.8 would depose that at that time he saw on the Inspector's table a wire basket and a tiffin carrier. He identified M.O.8 as the wire basket and M.Os.11 and 12 as tiffin carrier. As the Inspector of Police asked him to sign, he signed. P.W.9 is the friend of P.W.8,who would also state that on their way to the police station to get licence he saw the Inspector (the respondent) examining P.W.7. P.W.10 is not an eye witness to the occurrence and his evidence also do not throw any light on the present prosecution case except stating that P.W.1 was examined by the Crime Branch C.I.D. Police Officers and at https://hcservices.ecourts.gov.in/hcservices/ that time he was standing away and therefore he did not know what was the nature of enquiry. But however he would admit that he had signed in that statement as requested by the police officer. P.W.11 has affiliation to a political party. He would only state that the complaints have been sent to higher ups in the police when the investigation in this case was not going on the right lines. P.W.12 is the Head Constable in the then investigating police station, who had accompanied the dead body to the hospital for post-mortem. She would state that after post-mortem she removed the personal belongings found on the dead body and handed over the same to the investigating officer along with her special report. PW.13 is another Head Constable, who would state that he prepared Ex.P.19 the Special Report given by P.W.12. P.W.14 is working as an Office Assistant in the office of the Commissioner of Police, Coimbatore, who only speaks about the complaints given expressing doubts on the investigation done, which were forwarded to the office of the Commissioner of Police and the reports arising therefrom. P.W.15 would depose that he is acquainted with A.1 (in S.C.No.96 of 2000) and he reached the then investigating police station at about 6.00 on 23.12.1995 and on that day A.1 (in S.C.No.96 of 2000) was in the police station for interrogation. P.W.15 was asked to sign for the release of A.1 from the police station and accordingly he signed. When he was cross examined he would state that he went to the police station at 6.00 a.m. on 24.12.1995 at which point of time only he was asked to sign and it is true that he had stated in his evidence in chief that he went to the police station at 6.00 p.m. on 23.12.1995 to meet Rathinam (A.1 in S.C.No.96 of 2000). 5. P.W.16 is the finger print expert working in the finger print bureau in Coimbatore. We extract hereunder her evidence:- "On a call from the then investigating police station on 24.12.1995 I went to the crime scene to lift chance prints; there were no chance prints at the crime scene; Ex.P.31 is the report; on 27.12.1995 an eversilver tiffin carrier was sent to us for lifting finger prints; on examination of the same I found three finger prints, which were marked as Y1, Y,2 and Y,3; those finger prints tallied with the specimen left hand middle finger, left hand ring finger and left hand small finger of the suspected accused Sundaram, S/o Arusamy (the sole accused in S.C.No.110 of 1998) sent to the laboratory; Ex.P.32 is the said report and Ex.P.33 is the paper containing finger prints of the suspected accused; on receipt of the finger prints Ex.P.33, they were photographed and then compared; the eversilver tiffin carrier was sent back to the police station; Ex.P.34 is the notes for taking photographs of the finger prints; the tiffin carrier also was photograhed; https://hcservices.ecourts.gov.in/hcservices/ she would depose that if the tiffin carrier was washed or wiped off, all the finger prints available in the tiffin carrier would vanish; when I examined the tiffin carrier I do not find any food or spoiled food; the tiffin carrier was cleanly washed and wiped dry and the tiffin carrier which I examined resembles M.O.12." P.W.17 is a Mason by profession and he was examined to prove that he witnessed the conduct of the inquest. P.W.18 is a private medical practitioner, who was examined to prove the falsity of the plea of alibi set up by Rathinam (A.1 in S.C.No.96 of 2000) and his mother. P.W.19 is having a photo studio. In the month of December, 1995 as requested by the then Investigating police station, he deputed his friend Kaliappan with a Camera to take photographs. M.O.21 are the developed prints. P.W.20 during the relevant time was the Inspector of Police, Crime Branch CID, Coimbatore. On receipt of the complaint forwarded to his office by the higher ups, he conducted enquiries on 5.4.1996, 6.4.1996 and 7.4.1996 at which point of time Sundarasamy (the sole accused in S.C.No.110 of 1998) was in judicial remand. He sent his report to the higher ups. Since the report was asked for very urgently he examined only the available witnesses and not others. In cross examination he had admitted that Exs.D.1 and D.2 as the statements of P.W.1 and P.W.2 given at that time. (But we find from the records that Ex.D.2 is the deposition of P.W.1 in S.C.No.110 of 1998 on the file of the same court of sessions). P.W.23 is the police photographer, who would state that on 24.12.1995 at 10.15 a.m. on a call made by the then investigating police station, he went to the hospital where he photographed the dead body from different angles. M.O.22 series are the photographs and the negatives. He enlarged those photographs and the enlarged photographs are M.O.23 series. When cross examined, he would admit that for taking the enlarged photographs, M.O.23 series, the negatives were given to him by the Court. M.O.22 series photographs were collected from him by the then investigating officer on 31.12.1995. P.W.24 is the police constable, who prepared Ex.P.47, the rough sketch as directed by the then investigating officer. 6. P.W.25 is the investigating officer. He would depose that S.C.No.110 of 1998 taken for offences under Sections 376, 302 and 201 I.P.C., came for trial before the Court of Sessions on 11.11.1998 and 12.11.1998. Since re-investigation was ordered, he took up investigation in Crime No.85 of 1995 on the file of All Women Police Station (S.C.No.110 of 1998 had arisen out of Crime No.85 of 1995 on the file of All Women Police Station). He examined P.W.1 and other witnesses on several dates. He prepared Ex.P.48, the Observation Mahazar and Ex.P.49, the rough sketch. As noted earlier, he examined almost