IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 09/04/2003 Coram THE HONOURABLE MR. JUSTICE M. KARPAGAVINAYAGAM And THE HONOURABLE MR. JUSTICE AR. RAMALINGAM CRIMINAL APPEAL No.207 of 2000 1. Kumar @ Kumaravel 2. Kannan 3. Chakravarthi .. Appellants -Vs- State by Inspector of Police, Cuddalore O.T. Police Station. .. Respondent Criminal Appeal against the Judgment dated 04.01.2000 made in S.C. No.85 of 1999 on the file of the Principal Sessions Judge, Cuddalore. !For Appellant-1 : Mr.V. Gopinath, S.C. for Mr.L.Mahendran For Appellants 2&3: Mr. V. Parthiban, Amicus Curiae ^For Respondent : Mr. E. Raja, Addl. P.P. :JUDGMENT M. KARPAGAVINAYAGAM, J. A neatly planned and draftly executed murder of the deceased by using a mini lorry as the weapon of offence is the subject matter of the prosecution. 2. Kumar (A1) is the younger brother of Sivaraman, the first deceased, who brought him up, gave education and got employment as a Police Constable. The said Kumar (A1) due to family dispute hatched a conspiracy along with A2 Kannan and A3 Chakravarthy to commit the murder of the deceased Sivaraman, his elder brother and in pursuance of the conspiracy, a mini lorry was engaged which was driven by A2 Kannan on 18.8.1998 and dashed against the TVS 50 in which the first deceased Sivaraman was riding, as a result of which, the second deceased Sarathambal, his grandmother sitting as a pillion-rider as well as Sivaraman were thrown on the road with injuries, which resulted in the instantaneous death. Initially, the case was treated as accident case and registered under Section 304-A I.P.C. Ultimately, truth that was a murder was found out during investigation. Then, all the three accused were charged and tried for the offences under Section 120-B and 30 2 I.P.C. A1 was convicted for the offences under Sections 120-B and 302 I.P.C. (two counts) and sentenced to undergo imprisonment for life concurrently. A2 was convicted for the offences under Section 120-B and 302 I.P.C. (two counts) and sentenced to undergo life imprisonment for each of the offences and the sentences were directed to run consecutively. A3 Chakravarthy was convicted for the offences under Sections 120-B and 302 (two counts) and sentenced to undergo life imprisonment for each of the offences and sentences to run concurrently. 3. The short facts leading to the conviction are as follows: "(a) Kumar (A1) was working as a Police Constable attached to Nellikuppam Police Station. A2 Kannan and A3 Chakravarthy are lorry drivers known to each other. P.W.1 Ramalingam, the approver, is the resident of Karamanikuppam village. A2 Kannan and the approver Ramalingam belong to same village and as such, they are close friends. P.W.1 Ramalingam along with his wife P.W.6 Chitra is running a Tea stall at the village. P.W.1's brother died in a motor accident one year back. A1 Kumar being a Police Constable helped P.W.1 to get the body quickly after post-mortem. He also arranged to engage a counsel for getting compensation for the death of his brother. That was how both A1 and P.W.1 became close. (b) The first deceased Sivaraman is the elder brother of A1 Kumar. After the death of their father, A1 was brought up and given education by the first deceased Sivaraman. He also helped him in getting the employment as Police Constable. He also arranged marriage for A1 with one Baby, the sister of his wife P.W.6 Chitra. Within a few years, misunderstanding arose between the said Baby and A1. After driving her out from his house, A1 who had developed illicit intimacy with one Sundari, another woman Police Constable married her. Baby was given shelter in the house of the first deceased, since she happens to be sister of his wife P.W.6. While she was in the house of the first deceased, she gave a complaint against A1, her husband for the offence under Section 498-A I.P.C. She also filed a petition seeking maintenance from him. In these cases, the first deceased was a witness. Aggrieved by that, A1 filed a suit in civil Court against the first deceased for partition and obtained injunction restraining the first deceased from alienating the properties. (c) In the meantime, on the basis of the criminal cases, the first accused Kumar and his second wife Sundari were suspended from service by the Police Department. The first accused thought that the cases were filed against him by his wife only at the instance of his elder brother, the first deceased Sivaraman. Therefore, the first accused had strong grudge against the first deceased. (d) Since P.W.1 became a close friend of A1, A1 told his family affairs to P.W.1 and also about the troubles being given to him by the first deceased and about his suspension. Then, the accused 1 and 2 and P.W.1 Ramalingam, the approver hatched a conspiracy to do away with the first deceased by hitting him with a mini lorry while the first deceased Sivaraman was riding in the Moped and to make it appear as an accident. (e) In pursuance of the said criminal conspiracy, P.W.1, the approver watched the movements of the first deceased. Then, on information given by him, A2 Kannan with the help of A3 Chakravarthy had a mini lorry from P.W.2 Mani on 18.8.1998. One Sankar was the driver of the mini lorry. On that day, A2 Kannan, driver Sankar and cleaner Balachander (P.W.3) were proceeding in the lorry slowly, waiting for the first deceased to come on the way with his Moped. Meanwhile, A2 and A3 found that Sivaraman, the first deceased was driving the vehicle along with pillion rider Sarathambal, the second deceased. This was informed to both A1 and P.W.1, who in turn asked them to hit against both. Then, at about 3.00 p.m., the mini lorry was parked near the Railway gate expecting the arrival of the deceased in the Moped. (f) In the meantime, expecting danger at the hands of the first accused, the first deceased went to the Office of the Superintendent of Police, Cuddalore and presented a complaint Ex.P8 on the same day, i. e. on 18.8.1998 against A1 and others, seeking police protection. Thereafter, he was driving his TVS 50 proceeding towards his village along with the pillion rider, his grandmother Saradambal. (g) Meanwhile, A2 gave brandy to the driver Sankar and after consumption, Sankar went to the top of the Cabin and slept. At that time, the first deceased along with the pillion rider, the second deceased, was driving the Moped. Then, A2 himself started the mini lorry and drove the same while A3 was following in another TVS 50 belonged to P. W.1. Then, the second accused drove the vehicle speedily and dashed against the Moped in which the deceased 1 and 2 were travelling. Due to the impact, both the deceased were thrown on the street with crush injuries, which resulted in their instantaneous death. (h) P.W.3, the cleaner who was inside the lorry questioned the act of A2. In the meantime, Sankar, the driver on hearing the sound woke up and asked about the accident. Then, the mini lorry was driven to the Tea shop of P.W.1. There, Sankar, the driver, A2 Kannan and P. W.3 Balachander took food in the Tea shop. Then, A2 used the telephone in the house of P.W.1 after getting permission from P.W.6, the wife of P.W.1, phoned up to A1 and informed that they executed their plan and both of them died. (i) Meanwhile, P.W.8 Ramalingam who witnessed the "accident" went to the police station and gave a complaint Ex.P5 to P.W.24, Head Constable. The case was registered for the offence under Section 304-A I. P.C. The printed F.I.R. is Ex.P22. (j) P.W.25, the Inspector of Police, on receipt of message, took up the investigation and reached the scene of occurrence on the same day evening. He prepared observation mahazar and rough sketch. He seized M.O.3 TVS 50 driven by the first deceased. He conducted inquest over both the bodies. Exs.P26 and P27 are the inquest reports. Then the bodies were sent for post-mortem. (k) P.W.17 Dr. Veerasigamani conducted post-mortem on the dead body of the first deceased on 19.8.1998 at 11.50 a.m. He found crush injury on the head and skull bone fractured into multiple pieces and crush injury on the left leg. He opined in Ex.P14 post-mortem certificate that the deceased would appear to have died of shock and haemorrhage due to head injury. (l) P.W.18 Dr.Karpagavalli conducted post-mortem on the dead body of the second deceased Saradhambal on 19.8.1998 at 11.15 a.m. She found crush injury on the skull, legs, hands and fracture in the right hip bone. She gave opinion in Ex.P16 post-mortem certificate that the deceased would appear to have died of shock and haemorrhage due to head injury and fracture of bones. (m) P.W.2, who came back to his house on 20.8.1998 enquired P.W.3 cleaner as to the details of the accident. P.W.3 Balachander told him as to what really happened. Then, on 21.8.1998 at about 7.00 a.m., P.W.2 along with P.W.3 went to the police station and met P.W.25, the Inspector of Police and gave the statement. In pursuance of the said statement, the case was altered from Section 304-A I.P.C. to 302 I.P.C. against the accused 1 to 3 and sent the Express Report Ex.P28. (n) At about 8.00 a.m., on being pointed out by P.W.3, P.W.25 arrested A2 Kannan in the presence of P.W.9 V.A.O. At about 11.30 a.m., he arrested A3 Chakravarthy. Thereafter, P.W.1's house was shown by A2 and A3. At abut 1.00 p.m., P.W.25 arrested P.W.1 Ramalingam, the approver and on his confession, he seized M.O.1 TVS 50 from him. (o) On 22.8.1998, P.W.25 Inspector of Police gave a requisition to P.W.16, the Judicial Magistrate-III, Cuddalore to record the 164 statements of P.Ws.1 to 3. On 31.8.1998, P.W.25 gave another requisition to record the 164 statements of A2 and A3. Accordingly, all of them gave statements under Section 164 Cr.P.C. to P.W.16, the Judicial Magistrate on 2.9.1998. The statement of P.W.1 is Ex.P1. The statements of others including the statements of A2 and A3 are Ex.P12 series. (p) In the meantime, P.W.25 came to know that A1 Kumar surrendered before the Judicial Magistrate-II, Chengleput. Therefore, on 1.9.1998, P.W.25 filed an application for police custody of A1 and accordingly, police custody was granted. After examination, he was produced before Court for judicial remand. He also filed an application before the Chief Judicial Magistrate, Cuddalore requesting to grant pardon to P.W.1 Ramalingam. After observing the formalities, on being satisfied with the statement given by P.W.1 Ramalingam, P.W.15, the Chief Judicial Magistrate tendered pardon to him on 9.11.1998 through Ex.P11 proceedings under Section 306 Cr.P.C. (q) P.W.25 examined the other witnesses and collected the documents relating to enmity between the first deceased and the first accused, namely Ex.P8, the petition presented by the first deceased on the date of occurrence seeking police protection, Ex.P10, the complaint given by Baby against A1 under Section 498-A I.P.C., Ex.P18, the copy of the petition filed by Baby under Section 125 Cr.P.C. and Exs.P19 to P2 1, the plaint, written statement and the interim order passed by the civil Court in the suit filed by A1 against the first deceased. (r) During the course of investigation, M.O.1 TVS 50 belonged to P. W.1, M.O.2 mini lorry belonged to P.W.2 and M.O.3 new TVS 50 belonged to the first deceased were sent for inspection. P.W.19 Motor Vehicles Inspector found damage in the vehicles M.Os.2 and 3 and gave inspection report Ex.P17. (s) After completing the investigation, P.W.25 Inspector of Police filed the charge sheet against the accused for the offences under Sections 120-B and 302 I.P.C. (t) During the course of trial, P.Ws.1 to 25 were examined, Exs.P1 to P32 were filed and M.Os.1 to 17 were marked. (u) The accused were questioned under Section 313 Cr.P.C., with reference to the incriminating evidence available on record. The defence of the accused is one of total denial. They stated that the false case had been foisted against them. (v) On appraisal of the materials produced by the prosecution, the trial Court convicted A1 to A3 for the offence under Section 120-B as well as 302 I.P.C. (two counts) and sentenced them to undergo imprisonment for life under each count. Aggrieved by that, a common appeal has been filed by all the three accused." 4. When the matter was taken up for final disposal, it was represented that the bundle has been handed over to respective parties long back by the erstwhile counsel on record. It is now noticed that A1 alone has engaged the counsel Mr.L.Mahendran and no counsel has entered appearance on behalf of A2 and A3. Therefore, this Court appointed Mr.V.Parthiban as Amicus Curiae to appear on behalf of A2 and A3. 5. Mr. V. Gopinath, the learned senior counsel representing the counsel on record and Mr. V. Parthiban, Amicus Curiae appearing for A2 and A3, both have taken us through the entire evidence and contended that the evidence placed by the prosecution against the accused is not reliable and further, the same is not sufficient to hold the accused guilty of the offences with which they were convicted. 6. The submissions made by Mr.Gopinath, the learned senior counsel appearing for A1, in brief, are as follows: "P.W.1 approver has not passed twin tests as he cannot be held to be a reliable witness and his evidence is not corroborated by the material particulars. The acquaintance of P.W.1 with A1 was not clearly established as he himself stated that A1 was suspended by the Police Department even one year prior to the date of occurrence. Moreover, the details of the acquaintance with A1 were not mentioned in the statement given to P.W.25 by P.W.1. Further, the role played by P.W.1 as per his evidence in this case is so minimal, but the judicial confession of A2 and A3 would show that P.W.1 has taken the main role and as such, the evidence of P.W.1 cannot be believed. Furthermore, the conduct of P.W.1 in not informing to any other person regarding the incident is so artificial. According to P.W.1, he was arrested on 21.8.1998 early morning at 1.30 a.m., but the arrest was shown by P.W.25 only as 21.8.1998 at 1.30 p.m. and in view of the above contradiction, the arrest cannot be believed. Once P.W.1 is held to be unreliable witness, the other materials including the confession of the coaccused (A2 and A3) projected to be the corroborative pieces would not be of any use for the prosecution. Even though P.W.3 was the eye witness, he did not choose to give complaint regarding the occurrence immediately either to his employer or to the police and as such, he also is an unreliable witness. Therefore, A1 is liable to be acquitted. The counsel would also cite the following decisions: 1) MAHABIR BISWAS v. STATE OF W.B.(1995 S.C.C.(Cri.) 308); 2) RAMPAL PITHWA RAHIDASS v. STATE OF MAHARASHTRA (1994 CRI.L.J.2320); 3) PEDDIREDDY SUBBAREDDI v. STATE OF ANDHRA PRADESH (1991 CRI.L.J.1391); 4) CHANDAN v. STATE OF RAJASTHAN (1988 CRI.L.J.842); 5) THULIA KALI v. STATE OF T.N. (1972 CRI.L.J.1296); 6) SHESHANNA v. STATE OF MAHARASHTRA (AIR 1970 SC 1330); 7) HARICHARAN KURMI v. STATE OF BIHAR (AIR 1964 SC 1184). 7. Mr.Parthiban, the Amicus Curiae counsel appearing for A2 and A3 would make the following contentions: "The evidence of P.W.1, the approver cannot be relied upon as he has no direct participation in the occurrence. P.W.3 did not refer to his presence in the scene. In the absence of the evidence regarding participation of P.W.1, A2 and A3 cannot be convicted on the basis of the deposition of P.W.1, who simply implicated the other accused. The conduct of P.W.3 in not informing to the police about the occurrence immediately and merely accompanying the other accused to hotel and taking food would be so artificial. Having known about the fact that the driver Sankar was arrested on 19.8.1998 itself, he did not choose to inform his employer P.W.2 immediately. Therefore, his evidence is unreliable. Ex.P12 series, the confession statements recorded by P.W.16 from A2 and A3 would show that they are not voluntary and as such, the same cannot be used against them. Consequently, they are liable to be acquitted. In support of his contentions, the counsel would cite the decision in SARAVANABHAVAN v. STATE OF MADRAS (A.I.R.196 6 S.C.1278). 8. The Additional Public Prosecutor would submit in reply that the abundant materials available through the evidence of P.W.1 approver, the eye witness P.W.3 and the judicial confession made by A2 and A3 and other witnesses, namely P.Ws.5 and 6 would clearly prove that the murder had taken place by using the mini lorry in pursuance of the conspiracy hatched by them over the family enmity between A1 and the first deceased and as such, the conviction is legal. He has also cited the authorities in PRAKASH DHAWAL KHAIRNAR (PATIL) v. STATE OF MAHARASHTRA (2002(1) Crimes 18(SC), C. CHELLAPPAN v. STATE OF KERALA ( A.I.R.1979 S.C.1761) and NARAYAN CHETANRAM CHAUDHARY v. STATE OF MAHARASHTRA (A.I.R.2000 S.C.3352). 9. We have given our anxious consideration to the rival contentions urged by the counsel for the parties and also gone through the entire records. 10. To bring home the guilt of the accused, the prosecution has placed the following materials: (1) The evidence of approver P.W.1, who speaks about the conspiracy along with other accused to commit the murder of the first deceased, and the details of the help rendered by him for the execution of the plan to A1 to A3. (2) The evidence of P.W.3, the eye witness for the occurrence. (3) Ex.P12 series, the judicial confession from A2 and A3 recorded by P.W.16 Judicial Magistrate. (4) The motive and the threatening incident spoken to by P.W.7, the wife of the first deceased, the documents such as Exs.P10, P18, P19, P20, P21 and P31 showing the criminal cases and civil cases pending between the first deceased and A1 marked through P.Ws.13, 14, 21, 22 and 23 and Ex.P8 police protection sought by the first deceased against the first accused marked through P.W.13. (5) The evidence of P.Ws.5 and 6 who speak about the arrival of A2 and others in a mini lorry involved in the incident to their Tea shop and by using their telephone A2 talked to A1 immediately after the occurrence. (6) The arrest of A2 as identified by P.W.3 and A3 and on A1's information, the arrest of P.W.1 from whom M.O.1 TVS 50 was recovered. 11. According to the prosecution, the first deceased Sivaraman, the elder brother of the first accused brought him up, gave education to him and also got an employment for him in the Police Department. The first deceased married Kalavathi (P.W.7) and arranged for the marriage of A1 with her sister Baby in the year 1985. Initially, both the families lived together. There was no issue to Baby, the wife of A1 for a long time. In course of time, matrimonial relationship between Baby and A1 began to be bitter and A1 developed illicit intimacy with one Sundari, woman Constable working in the same police station. He also married her without the consent of the said Baby. After putting her to torture for dowry, he drove her out. The said Baby thereafter had to take shelter in the house of P.W.7, her sister Kalavathi. The first deceased, husband of P.W.7, advised A1 to take his sister-in-law back by disassociating from the said Sundari and to lead amicable life. Despite the said advice, A1 continued his marital life only with the second wife. A1 filed a suit for partition against the first deceased and obtained injunction. By this time, Baby preferred a police complaint against A1 and the said Sundari for the torture meted out to her. She also filed separate maintenance application against A1. In these cases, the first deceased was one of the witnesses. In pursuance of the criminal complaint, A1 and his second wife Sundari were suspended from service by the Police Department. Under those circumstances, A1 took the help of P.W.1 Ramalingam, approver, and A2 Kannan who are his friends and conspired to commit the murder of the first deceased by hitting him with a lorry to make it appear as an accident. In pursuance of the said conspiracy, at the instance of A1 and P.W.1, A2 and A3 hired a mini lorry from P.W.2 and after watching the movements of the first deceased, they went and parked the vehicle near the Railway gate and after noticing that the first deceased was coming in his TVS 50 along with the second deceased towards the village, A2 drove the vehicle and dashed against the Moped causing crush injuries on the bodies of both the deceased, resulting in their instantaneous death, thereby committed double murder. 12. The motive for the occurrence is that A1 had strong enmity against the first deceased, his elder brother, who helped his first wife Baby to file a criminal complaint against him due to which, he was suspended from service by the Police Department. It is not disputed that A1 got married to Baby, the sister of P.W.7 Kalavathi. The first deceased only arranged the marriage for A1 with his sister-in-law Baby. A1 had illicit intimacy with another Woman Constable through whom a child was born. That apart, Baby, the first wife was tortured and then driven out. Thereafter, Baby had to take shelter in the house of the first deceased, the husband of her sister. A1 did not heed to the advice of the first deceased to lead an amicable marital life with the said Baby. On the other hand, A1 filed a suit in O.S.No.282 of 1996 for partition and obtained injunction against the first deceased from alienation of the properties. Ex.P19 is the plaint filed by the first accused against the first deceased. Ex.P10 is the written statement filed by the first deceased. The injunction order obtained by A1 against D1 is Ex.P21. In the meantime, Baby filed a police complaint against A1 and his second wife Sundari for the offence under Section 498-A I.P.C. and Section 4 of the Dowry Prohibition Act. On the basis of this complaint, the first accused as well as his second wife Sundari were suspended on 13.2.1997. In this case, the charge sheet was filed on 3.2.1997 against A1 and his second wife Sundari. Ex.P10 is the charge sheet. That apart, Baby filed a maintenance application Ex.P18 under Section 125 Cr.P.C. against her husband A1. In both these cases, the first deceased was a witness. Apart from that, a case was registered for affray against both A1 and the first deceased under Section 160 I.P.C. under Ex.P31. The details of the criminal case and the suspension order in pursuance of the same have been spoken to by P.W.14 Woman Sub Inspector of the concerned Police Station. The factors relating to the pendency of civil and criminal cases have been spoken to by P.W.7 Kalavathi, the wife of the first deceased. As a matter of fact, these things have not been disputed by the first accused either in the cross-examination or in the statement given by him under Section 313 Cr.P.C. Thus, it is clear that A1 had strong motive against the first deceased since he thought that the first deceased was responsible for filing of the criminal cases against the first accused, in pursuance of which, A1 and his second wife were suspended. 13. With this background, we have to analyse the evidence adduced by the prosecution with reference to the conspiracy hatched by the accused. Regarding conspiracy, the prosecution has placed the evidence of P.W.1, the approver, the judicial confession Ex.P1 made by him and the judicial confession Ex.P12 series made by A2 and A3 and the evidence of P.W.7 and Ex.P8, the complaint given by the first deceased seeking police protection apprehending danger at the hands of the first accused.