BAIL SLIP The Appellant / Accused No.1 Viz. (1) Apparu Gounder @ Chinnasamy Gounder has directed to be released on bail as per order of this Court dated 20.6.2006 and made in Crl.M.P.No.3590/06 in Crl.A.No.491/06 on the file of this Court. The Appellants / Accused A3 to A5 viz. (2) Chinnasamy @ Karuppusamy (3) Kurudan @ Subramanian (4) Raghupathy were directed to be released on bail as per order of this Court dated 7.12.2006 and made in Crl.M.P.No.4448/06 in Crl.A.No.491/06 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 4-11-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRL.A.No.491 of 2006 1.Apparu Gounder @ Chinnasamy Gounder 2.Chinnasamy @ Karuppusamy 3.Kurudan @ Subramaniam 4.Raghupathy .. Appellants/Accused 1,3 to A5 vs State by: Deputy Superintendent of Police Gobichettipalayam Varapalayam Police Station (Crime No.81/2005) (Amended as per the order of this Court dated 6.7.2006 in Crl.M.P.No.3878/2006) .. Respondent/Complainant Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Principal Sessions Judge of Erode Division at Erode in S.C.No.135/2005 dated 20.4.2006. For Appellants : Mr.Ashok Kumar Senior Counsel for A-1, A-4 and A-5 Mr.A.Ramesh Senior Counsel for A-3 for Mr.A.K.Kumaraswamy https://hcservices.ecourts.gov.in/hcservices/ For Respondent : Mr.R.Balasubramanian Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Principal Sessions Division, Erode, made in S.C.No.135 of 2005 whereby these appellants four in number along with A-2 stood charged and tried for the offences as follows: I - A-1 to A-3 under Sec.120-B read with 302 IPC read with Sec.3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. II - A-3, A-4 and A-5 under Sec.364 IPC III - A-3, A-4 and A-5 under Sec.302 IPC IV - A-3, A-4 and A-5 under Sec.506(ii) IPC 2.On trial, A-1 was found guilty under Sec.120-B read with 302 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/- with default sentence. A-3 to A-5 were found guilty under Sec.364 of IPC and directed to suffer 5 years Rigorous Imprisonment and to pay a fine of Rs.1000/- each with default sentence. A-3 to A- 5 were also found guilty under Sec.302 of IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/- with default sentence. A-2 was acquitted of the charge levelled against him, while A-1 and A-3 to A-5 were acquitted of the other charge. 3.The necessary facts for the disposal of this appeal can be stated thus: (a) The deceased Kunjan, a resident of Karapadi Village, belonged to Scheduled Caste. He was doing motor fitter work along with the business of iron scraps. He was a subscriber in a chit transaction conducted by A-1, and in that way, the deceased was to pay Rs.60,000/- to A-1. When a demand was made, the deceased replied him that the amounts were actually paid at the time of the instalments of the chit to him. A-2, the cousin brother of A-1, was looking after the business of A-1. Two months prior to the occurrence, A-1 went to the house of the deceased and made the demand, and there was a quarrel. The same was witnessed by P.Ws.2 and 8 when A-1 made a challenge to take the life of the deceased. P.W.8 knew about the quarrel between A-1 and the deceased on the payment of the said amount. Three weeks prior to the occurrence, when P.W.8 went to the house of the deceased, he was informed by his wife that her husband who went outside, did not come back, and she made a request to search him. At about 8.00 P.M., when he was just crossing the garden of A- 1, he was able to hear the words uttered by A-1 "Chakkilia fellow. He was so arrogant, and he should be finished off". The conspiracy was hatched up by A-1 along with two others. P.W.8 shouted at A-1 and then returned home. (b) On 13.4.2005 at about 9.00 A.M., the deceased asked P.W.2 to drop him in his TVS 50 at Puliampatty, and accordingly, he was dropped at Puliampatty. At that time, P.W.4, the brother-in-law of https://hcservices.ecourts.gov.in/hcservices/ the deceased, who was standing at Thoppampalayam bus stop, saw P.W.2 and the deceased travelling in TVS 50. At about 11.15 A.M. on the same day, when P.W.5 was driving the tractor along the road, he saw four persons standing at the road junction. At that time, the deceased person was found sitting in between two of the accused who were going in one motorbike, and the other person was riding the other bike, and they were overtaking the tractor. The deceased who was sitting in the middle, was waving his hands to save him. Since P.W.5 was driving the tractor, he could not pick up speed. After about one kilometer, he found the deceased in a pool of blood with cut injuries. He saw all the three persons moving from there, and due to fear, he went back home. (c) P.W.1, the Village Administrative Officer, when he was in his office, came to know about the murder, and he went to the place of occurrence. After making an inspection, he proceeded to the respondent police station and gave Ex.P1, the report. P.W.18, the Head Constable, who was on duty, on the strength of Ex.P1, the report, registered a case in Crime No.81 of 2005 under Sec.302 of IPC. The printed FIR, Ex.P28, was despatched to Court. (d) P.W.20, the Inspector of Police of the said Circle, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and a rough sketch, Ex.P32. Then, he caused the photographs to be taken through P.W.15, the Photographer. He further conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P27. Then, he recovered the material objects from the place of occurrence. The dead body was sent to the Government Hospital along with a requisition, Ex.P11, for the purpose of autopsy. (e) P.W.10, the Civil Surgeon, attached to the Government Hospital, Gobichettipalayam, on receipt of the said requisition, conducted autopsy on the dead body of the deceased and found 13 external injuries. The Doctor has issued a postmortem certificate, Ex.P9, and has opined under Ex.P10 that the deceased would appear to have died of shock and haemorrhage and also injury to the head and brain. (f) On 20.4.2005 at about 7.30 A.M., A-1 appeared before P.W.9, the Village Administrative Officer of Karappadi Village, who in turn produced him before P.W.20, and he was arrested. He voluntarily gave a confessional statement, which was recorded, and he was sent for judicial remand. (g) On 21.4.2005 at 11.30 A.M., P.W.20 arrested A-2, A-3 and A-5 in the presence of P.W.12, the Village Administrative Officer. They gave the respective confessional statements, pursuant to which A-5 produced M.O.13, billhook, which was recovered under a cover of mahazar. They were sent for judicial remand. On 22.4.2005, P.W.20 gave a requisition to the Tahsildar for issuance of community certificates regarding the deceased and also the accused. On coming to know that the deceased belonged to Schedule Caste, he handed over the case to P.W.21, the Deputy Superintendent of Police of Gobichettipalayam. https://hcservices.ecourts.gov.in/hcservices/ (h) P.W.21 further proceeded with the investigation, and he came to know that A-4 has actually surrendered before the Judicial Magistrate No.I, Gobichettipalayam. Then, he sought for police custody, and accordingly, it was ordered. A-4 was taken to police custody. He gave a confessional statement, the admissible part of which is marked as Ex.P14. Pursuant to the same, he produced M.O.14, billhook, and M.O.15, TVS Victor motorcycle, which were recovered under two separate mahazars. Then, he was sent for judicial remand. (i) A requisition was made by P.W.21 for the purpose of test identification parade. The same was conducted by P.W.7, the Judicial Magistrate No.I, Gobichettipalayam. In the test identification parade, P.W.5 identified A-3, A-4 and A-5. The identification parade proceeding was marked as Ex.P5. (j) On a requisition made, P.W.24, the Judicial Magistrate, Sathyamangalam, recorded the statement of P.W.5 under Sec.164 of Cr.P.C. All the material objects were subjected to chemical analysis by the Forensic Sciences Department pursuant to the requisition made. Ex.P22 is the Chemical Analyst's report and Exs.P23 and P24 are the Serologist's reports. On completion of investigation, P.W.21 filed the final report. 4.The case was committed to Court of Sessions, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 24 witnesses and also relied on 43 exhibits and 21 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which they flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced and gave an outright acquittal to A-2. A-1, A-3, A-4 and A-5 were found guilty and sentenced to imprisonment as referred to above. Hence, this appeal at the instance of these accused. 5.The learned Senior Counsel Mr.Ashok Kumar arguing for A-1, A-4 and A-5, in his sincere attempt of assailing the judgment of the Court below made the following submissions: (i) In the instant case, the prosecution commenced its case with the theory of conspiracy. According to the prosecution, P.W.8 was the only witness in that regard. According to him, he was just proceeding towards the garden of A-1 at about 8.00 P.M., 10 days prior to the occurrence, and at that time, A-1 was hatching up a conspiracy with other two persons in order to finish off the deceased. It is pertinent to point out that against A-1 to A-3, a charge was framed for conspiracy; but, the lower Court has acquitted A-2 and A-3 on the charge of conspiracy and found A-1 alone guilty under Sec.120-B which has got to be set aside on the legal ground for the simple reason that it is not the case of the prosecution that A-1 hatched up conspiracy along with some others, but only with A-2 and A-3. In order to substantiate the same, a charge has been drawn for conspiracy that was hatched up between A-1 and A-2 and A-3. A-2 and A-3 have been acquitted, and hence A-1 should have also been acquitted on that ground. Thus, the conspiracy as regards A-1 fails. https://hcservices.ecourts.gov.in/hcservices/ If the theory of conspiracy goes, then A-1 could not be roped in for murder. (ii) As far as the evidence of P.W.8 was concerned, it should have been rejected by the trial Court for the reason that according to P.W.8, within 10 days prior to the occurrence, he went to the house of the deceased, and the wife of the deceased informed him that the deceased who went out, did not return, and she made a request for searching him, and then, he went in search of him. On the day when the conspiracy was hatched up, though he was able to hear the entire conspiracy to finish off the deceased, he did not reveal the same to anybody immediately. That apart, he went to the extent of stating that A-1 looked at him, and shouted as to his presence. If to be so, it is quite natural one would expect him to inform to his wife or anybody for the matter; but, he has not informed to anybody. Thus, it would be quite clear that P.W.8 was nothing but a planted witness in order to make it convenient for a case of conspiracy; but, the prosecution has thoroughly failed. It is not the case of the prosecution that P.W.8 was present at the time of the occurrence. In such circumstances, as far as A-1 was concerned, the evidence was lacking, and in fact, there was no evidence at all. Hence, A-1 was entitled for acquittal. 6.The learned Senior Counsel would further submit that as regards A-4 and A-5, the entire case rested upon the evidence of P.W.5; that the occurrence has taken place on 13.4.2005 between 11.00 A.M. and 12.00 Noon; that there was no eyewitnesses at all; that according to the prosecution, P.W.5 saw A-2, A-3, A-4 and A-5 taking the deceased, and they were going in two motorbikes, and when P.W.5 was going in a tractor, he found these two motorbikes overtaking him, and the deceased person who was sitting in between the two of the accused, was waving his hands for help, and further he shouted "save me, save me", and after some time, on the way, he found the deceased with all cut injuries, and further, he also saw the accused persons moving from the place of occurrence; that the lower Court if made the appreciation of evidence, should have rejected the same for the reason that the witness has also been produced before the Judicial Magistrate for recording the statement under Sec.164 of Cr.P.C.; and that in the statement under Sec.164 Cr.P.C., number of discrepancies are found. 7.The learned Senior Counsel took the Court to those discrepancies found in the statement under Sec.164 Cr.P.C. as to the waving of hands or calling of P.W.5 for rescue; that all would go to show that P.W.5 could not have seen anything at all; that even assuming that P.W.5 has seen so, he should have been a witness at the time of inquest; but, Column Nos.3 and 4 of the inquest report did not show the name of P.W.5 which would be clearly indicative of the fact that P.W.5 could not have been in the nearby place either before or after the occurrence or seen the accused persons; that this would suffice to reject the testimony; that these two instances would clearly indicate that P.W.5 could not have been in the nearby place at all; that only after a few days, his statement has reached the Court which would also indicate that he could not have been in the place, and hence his evidence should have been rejected and A-4 and A-5 are entitled for acquittal. https://hcservices.ecourts.gov.in/hcservices/ 8.The learned Senior Counsel Mr.A.Ramesh arguing for A-3 with vigor and vehemence would submit that according to the prosecution, A-4 and A-5 gave confessional statements which were also recorded in the presence of witnesses, and M.Os.13 and 14, billhooks, were recovered from them; that according to P.W.5, after two or three days of the occurrence, they were found in the police station; that if to be so, the question of confession and recovery would be nothing but false; and that in such circumstances, the identification parade conducted would be of no avail. 9.The learned Senior Counsel would further add that in the instant case, P.W.5 gave a statement under Sec.164 of Cr.P.C. before the Judicial Magistrate from which it would be quite clear that there was only one vehicle, and only two persons came; but, when he came before the Court, he would say that there were two two-wheelers; that if to be so, three persons were actually travelling in one vehicle and the deceased was sitting in the middle; that who is the third one riding the other vehicle remained unknown; that in a given case like this, there was no charge drawn under Sec.149 of IPC; that even for common intention, there was no charge under Sec.34 IPC; that even assuming that the prosecution came forward to state that there was common intention, in the absence of any proof or circumstance to infer so, Sec.34 IPC cannot be taken for any one of these accused; that under the circumstances, the prosecution was unable to show that all the three accused have shared the common intention to commit the murder of the deceased, and hence A-3 is entitled for acquittal along with the other accused. 10.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 11.It is not in controversy that one Kunjan who belonged to Scheduled Caste, was done to death in an incident that had taken place between 11.00 A.M. and 12.00 Noon on 13.4.2005. Following the inquest made by P.W.20, the Inspector of Police, the dead body was subjected to postmortem by P.W.10, the Doctor, who has issued a postmortem certificate. The Doctor has opined that the deceased died out of shock and haemorrhage due to the injuries sustained. Either at the time of trial or before this Court, the fact that Kunjan died out of homicidal violence was never disputed by the appellants. Under the circumstances, the prosecution has proved the said fact, and without any impediment, it could be recorded so. 12.In the instant case, the prosecution proceeded with the case that A-1 who could not get back Rs.60,000/- on a chit transaction from the deceased, decided to finish him off, and thereby he hatched up a conspiracy with A-2 and A-3, and A-3, A-4 and A-5 have committed the act of murder. The specific charge as could be seen was that the conspiracy was hatched up by A-1 along with two others who, according to the prosecution, were A-2 and A-3. The trial Court has acquitted A-2 and A-3 from the said charge. Thus, under the said charge, the only remaining person was A-1. If to be so, for the application of Sec.120-B of IPC, the law requires minimum two. Since A-1 was the only person available, Sec.120-B cannot be applied to the https://hcservices.ecourts.gov.in/hcservices/ case on hand. Under the circumstances, the lower Court was not correct in law in applying Sec.120-B, and hence, that finding has got to be set aside. 13.Apart from the above, as far as the charge of conspiracy is concerned, the prosecution rested its case on the evidence of P.W.8. In the considered opinion of the Court, the evidence of P.W.8 has got to be rejected for more reasons than one. P.W.8 was closely acquainted to the family of the deceased. According to him, 10 days prior to the occurrence, he went to the house of the deceased where the deceased was not found, and he was informed by the wife of the deceased to make a search, and when he went on that day during night hours i.e., at 8.00 P.M., he saw the conspiracy going on, and he was actually warned by A-1. If to be so, it is quite natural one would expect him and the reasonable conduct of a prudent person under the stated circumstances would be to inform the same to the relatives or the wife of the deceased, but not done so. This has taken place just 10 days prior to the occurrence, and if to be so, this is the telling circumstance to reject the evidence of P.W.8. Accordingly, it has got to be rejected. 14.As far as the occurrence part of the prosecution case is concerned, the prosecution rested its entire case on the evidence of P.W.5. According to P.W.5, on the day of occurrence i.e., 13.4.2005, at about 11.15 A.M., he was just proceeding in his tractor, and at that time, two two-wheelers were overtaking him, and in one vehicle, three persons were sitting, and in the middle, the deceased was found sitting, and the other vehicle was driven by the other person, and he could not pick up speed since he was taking the tractor, and within a kilometer, he immediately found the dead body of the deceased with cut injuries. This would be quite clear that the persons who actually travelled in the motorbikes and who actually kidnapped the deceased person in one two-wheeler, alone could have done the same. Further, P.W.5 has gone in evidence to state that these three persons were actually seen moving from the place of occurrence. Now, at this juncture, it is pertinent to point out that after the occurrence, P.W.5, in the test identification parade, has also identified all these three accused. The test identification parade has also taken place on 13.5.2005. As far as A-3, A-4 and A-5 were concerned, they have been arrested, and M.Os.13 and 14, billhooks, were recovered pursuant to the confessional statements. The evidence in that regard also remained unshaken. 15.Now, the comment made by the learned Senior Counsel that the name of P.W.5 was not found in the Column No.3 or 4 of the inquest report by itself cannot be a reason to reject the testimony for the simple reason that the occurrence has taken place on 13.4.2005 between 11.00 A.M. and 12.00 Noon. According to P.W.5, he has seen all the three accused persons even prior to the occurrence and after the occurrence. It remains to be stated that the inquest has taken place in the evening, and the statement of P.W.5 has also been recorded on the very day, and it has also reached the Court on 15.4.2005. Had P.W.5 not seen the same, the statement could not have come forth or reached the Court within a short span of time. This would be indicative of he fact that he has spoken the truth. Added further, it is true that the learned Senior Counsel for the https://hcservices.ecourts.gov.in/hcservices/ appellants are able to bring to the notice of the Court certain discrepancies between the statement made before the Judicial Magistrate and recorded under Sec.164 of Cr.P.C. and also the evidence before the Court and apart from that, the colour of the motorbike. In the considered opinion of the Court, what is all relevant fact is that whether P.W.5 could have seen these three accused near the place and at the time of occurrence along with the deceased or not. These discrepancies, in the considered opinion of the Court, are minor most which cannot either shake the prosecution case or take away the truth of the same. 16.In the instant case, the comments made, in the opinion of the Court, will not in any way affect the prosecution case. A comment was made that these three accused could have been shown to P.W.5 already. But, in the opinion of the Court, when a person has given the statement immediately before the police, and it has also been recorded under Sec.161 of Cr.P.C. and reached the Court within a day or two, and there is no circumstance to disbelieve or discard his testimony, it would suffice pointing to the guilt of the accused. 17.The last comment made by the learned Senior Counsel that the prosecution has failed to bring forth common intention shared by all the accused has got to be discountenanced in law. Attractive though the argument of the learned Senior Counsel at the first instance, it will not stand the scrutiny of law for the reason that when these persons abducted the deceased, they were all going in two motorbikes and at the place of occurrence, the dead body was found, and they also left the place. Had they not proceeded with the deceased with the common intention, they could not have killed him. The act of these three accused would clearly speak that they had the common intention in abducting him and causing his death. Thus, this Court is able to see that they had shared the common intention. As far as A-1 is concerned, the prosecution is unable to show either he has conspired or he has actually participated in the crime and hence, the prosecution was unable to bring home the guilt of A-1. A-1 is entitled for acquittal. 18.As far as A-3 to A-5 are concerned, they had common intention to share with. Accordingly, they caused the death of the person which, in the opinion of the Court, would attract the penal provision of murder. The lower Court was perfectly correct in finding them guilty under Sections 364 and 302 of IPC. There is nothing to interfere in the judgment of conviction and sentence made by the lower Court as against A-3 to A-5. 19.In the result, this criminal appeal