Bail Slip That the 1st Appellant/Accused No.1 viz.Nagarajan,S/o.Ponnusamy was directed to be released on bail as per order of this Court dt. 9.6.2008 made in Crl.M.P.No.1/2008 in Crl.A.No.99/2008 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 5-11-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH CRL.A.No.99 of 2008 1.Nagarajan 2.Ranjithkumar 3.Senthil Murugan 4.Iyyappan .. Appellants/Accused 1,3,4 & 5 vs The State rep. By its Inspector of Police Perambalur Police Station Perambalur District .. Respondent/Respondent Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Principal District and Sessions Judge, Perambalur, made in S.C.No.4 of 2005 dated 26.9.2007. For Appellants : Mr.Sirajudeen for M/s.Siraj & Siraj for A-1, A-4 & A-5 Mr.B.Rajamani Amicus Curiae for A-3 For Respondent : Mr.Babu Muthu Meeran Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the Principal Sessions https://hcservices.ecourts.gov.in/hcservices/ Division, Perambalur, in S.C.No.4 of 2005 whereby the appellants four in number, along with one another shown as A-2, stood charged, tried and found guilty as follows: ACCUSED CHARGES FINDING PUNISHMENT A-1, A-3 to A-5 120B IPC Guilty Life imprisonment A-3 to A-5 341 IPC Guilty 1 month Rigorous Imprisonment A-3 to A-5 302 r/w 34 IPC Guilty Life imprisonment with a fine of Rs.5000 and default sentence A-1 302 r/w 109 IPC Guilty Life imprisonment with a fine of Rs.5000 and default sentence A-5 3(2)(V) of SC/ST Act Not guilty 2.Short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is the brother of the deceased Selvaraj. A-1 to A-5 also belonged to the same place. During the relevant time, the deceased was holding the post of Secretary to ADMK party, Perambalur Town, and also in the post of Panchayat President. The deceased helped one Periyasamy in purchase of a land in which A-1 was carrying on a mutton stall. In order to help the purchase of the property, the deceased took steps to vacate A-1 who was running his business, and there was a wordy altercation between the parties just before 15 days prior to the occurrence. In that altercation, all the accused took a vow and challenged that they would see to that. (b) On the date of occurrence namely 12.1.2003 after watching the news in the television at about 8.30 A.M., the deceased asked P.W.1 to take him to the hospital since he was not doing well. When they were just proceeding near Government Higher Secondary School, all the five accused who stood there, constituted an unlawful assembly and waylaid them. At that time, A-3 threw the chilly powder on the face of the deceased. Then P.Ws.1 and 2 fell down from the two wheeler. Immediately A-2 cut the deceased on his right leg. Then, the deceased in order to save himself, was just running. All the accused chased him and stabbed him to death. This incident was witnessed by P.Ws.1 to 5. When the crowd gathered and questioned the conduct of the accused, all of them fled away from the place of occurrence. (c) P.W.1 proceeded to the respondent police station and gave a complaint, Ex.P1. P.W.22 was the Sub Inspector of Police present at that time, and on the strength of Ex.P1, a case came to be registered in Crime No.13 of 2003 under Sections 120B, 341 and 302 https://hcservices.ecourts.gov.in/hcservices/ of IPC. The printed FIR, Ex.P12, was despatched to the Court. (d) P.W.23, the Inspector of Police, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P19, and also a rough sketch, Ex.P13. Then, he recovered bloodstained earth and sample earth, M.Os.2 and 3 respectively, under a cover of mahazar Ex.P3. He conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P14. Then the dead body was sent to the Government Hospital along with a requisition for the purpose of autopsy. (e) On receipt of the said requisition, P.W.19, the Civil Surgeon, attached to the Government Head Quarters Hospital, Perambalur, conducted autopsy on the dead body of Selvaraj and has issued a postmortem certificate, Ex.P9, with his opinion that the deceased would appear to have died 4-6 hours prior to the postmortem and died of shock and haemorrhage due to injury to the vital structures heart, lungs, blood vessels in the neck, trachea. (f) P.W.19, the Doctor, also gave treatment to A-5 for the injuries sustained by him, and the injuries found on him were actually noted in Ex.P10, the accident register copy. (g) The Investigator was informed that A-3 fell into the well, and the fire squad was actually called, and he was rescued. At about 5.30 P.M., he was arrested. Then he gave a confessional statement. The admissible part is marked as Ex.P15. Pursuant to the same, M.O.9, pant, and M.O.10, shirt, produced by him, were recovered under a cover of mahazar. M.O.11 series, patta knives, were also recovered under a cover of mahazar. He was sent for judicial remand. (h) A-4 and A-5 were arrested, and they gave confessional statements, pursuant to which M.O.4, pant, M.O.5, shirt, M.O.6 belt, M.O.7, T.Shirt, and M.O.8, pant, respectively were recovered from them under a cover of mahazar. All the material objects recovered from the place of occurrence and from the dead body and also from the accused on their production pursuant to the confessional statements were subjected to chemical analysis by the Forensic Sciences Department. Ex.P18 is the chemical report received by the Court. Since the deceased belonged to Scheduled Caste, the further investigation was taken up by the Deputy Superintendent of Police, P.W.24. On completion of investigation, the Investigator filed the final report. 3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 24 witnesses and also relied on 19 exhibits and 15 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 https://hcservices.ecourts.gov.in/hcservices/ advanced and took the view that the prosecution has proved the case beyond reasonable doubt in respect of A-1, A-3, A-4 and A-5 and awarded the punishment as referred to above. As far as A-2 was concerned, pending the trial he died, and hence the charges as against him stood abated. 4.Advancing arguments on behalf of A-1, the learned Counsel would submit that in the instant case, the prosecution proceeded on the footing that there was a conspiracy hatched up by A-1 along with the other accused on 11.1.2003, as a result of which, A-1 to A-5 at the time of the occurrence waylaid the deceased when he was accompanied by P.W.1, cut him indiscriminately and caused his death instantaneously; that it is not the case of the prosecution that A-1 was present at the time of occurrence; that the prosecution has miserably failed to show that there was any conspiracy either, or A- 1 was a participant in that conspiracy; that two witnesses were examined by the prosecution in order to prove the conspiracy theory; that they were P.Ws.6 and 7; that P.W.7 has failed to put forth evidence what was expected by the prosecution; that what was available for the prosecution was only that of P.W.6; and that P.W.6 in his evidence has stated that on 11.1.2003, when he was proceeding to witness a cinema to Perambalur, he was proceeding in Elambalur Road, and nearby the Government water tank he found all the five accused chatting to each other, and he was able to over hear when they were talking that they would finish off the deceased within the dawn of the next day. The learned Counsel took the Court to the evidence of P.W.23, the Investigating Officer, wherein he has categorically admitted that in the statement though claimed to have been recorded under Sec.161 of Cr.P.C. the next day, it is not stated so; that this is the only part of the evidence which the prosecution relied on before the trial Court; and that apart from that, the statement recorded under Sec.161 of Cr.P.C. has reached the Court after a month that was on 10.2.2003. 5.Added further the learned Counsel that P.W.6 was also one of the Secretaries of the political party in which the deceased was also functioning as a Secretary; that under the circumstance, that witness was actually interested; that all the above would falsify the theory of conspiracy; that under the circumstances, the prosecution has miserably failed to prove that there was a conspiracy hatched up by A-1 along with the other accused; and that the trial Court has erroneously found A-1 guilty along with the other accused since he was one of the conspirators and has also erroneously found that he has also participated in the crime of murder. 6.The learned Counsel took the Court to the earliest document Ex.P1, wherein the name of A-1 was not found; that even at the time when the statements were recorded from P.Ws.1 to 5 who were the so- called eyewitnesses, under Sec.161 Cr.P.C., the name of A-1 was not found; that under the circumstances, the judgment of the trial Court recording a finding that either he was a conspirator or he has also participated in the commission of murder has got to be set aside, and A-1 is entitled for acquittal in the hands of this Court. https://hcservices.ecourts.gov.in/hcservices/ 7.As far as A-3 to A-5 are concerned, the learned Counsel would submit that the evidence put forth by the prosecution was that of P.Ws.1 to 5 as eyewitnesses; that the evidence was not only discrepant to each other, but also self-contradictory; that apart from that, the medical evidence was also not in support of the prosecution; that the recovery of the material objects and the evidence adduced by the prosecution for the alleged confession and recovery of the material objects were only shaky; and that under the circumstances, the trial Court should have acquitted these accused also. 8.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 9.It is not in controversy that one Selvaraj met with his death in an occurrence that has taken place on 12.1.2003 at about 8.30 A.M. Following the case registered by P.W.22 directly under Sec.302 IPC, the investigation was taken up by P.W.23, the Inspector of the Circle, who went over to the spot, made an inspection and prepared the inquest report in the presence of witnesses which is marked as Ex.P14. Thereafter, the dead body was subjected to postmortem by P.W.19, the Doctor, who has given a categorical opinion that the deceased died out of shock and haemorrhage due to the injuries sustained. The time and cause of death as put forth by the prosecution was never disputed by the appellants before the trial Court, and hence no impediment was felt by the trial Court in recording so and rightly too. 10.As could be seen from the available materials, the prosecution commenced its story that there was a conspiracy hatched up between all the accused on 11.1.2003 during night hours; that pursuant to the conspiracy, the accused persons waylaid P.W.1 and the deceased when they were proceeding in a two wheeler near Government Higher Secondary School, and they attacked him and caused his death instantaneously. As rightly pointed out by the learned Counsel for the appellants, this Court is highly afraid whether it could accept the theory of conspiracy as put forth by the prosecution before the trial Court for the following reasons. Two witnesses were marched before the trial Court in order speak about the theory of conspiracy. They were P.Ws.6 and 7. P.W.7 has not supported the prosecution case. According to P.W.6, he was proceeding to witness a cinema at Perambalur, and when he was proceeding in Elambalur Road at about 9.00 A.M., he found all the accused persons standing nearby the Government water tank and also talking to each other that they would finish off the deceased before the dawn of the next day, and pursuant to the same, the crime has taken place. The only piece of evidence put forth by the prosecution and also relied on by the trial Court for the conspiracy theory was the evidence of P.W.6. But, the evidence of P.W.6 cannot be accepted for the reason that though P.W.6 has stated so as mentioned above, he has not given any such statement to the Investigating Officer P.W.23 while his statement was recorded under Sec.161 Cr.P.C. the next day. This has also been candidly admitted https://hcservices.ecourts.gov.in/hcservices/ by P.W.23 at the time of the cross-examination. Apart from that, though the statement was actually recorded by the Investigator the very next day of the crime, it has reached the Court only after one month. 11.Now, at this juncture, the learned Additional Public Prosecutor took the Court to the inquest report. It is true that the inquest report speaks of a conspiracy. But, at the same time, it did not say that the conspiracy was by five persons; but it was pursuant to the conspiracy hatched up by A-1 and not others. Added further, there is no whisper by the witnesses that they over heard the conspiracy alleged to have been hatched up. 12.Further, in the instant case, the Additional Public Prosecutor made a stress on motive for A-1 and not for other accused. Even assuming that A-1 had got a motive, in the absence of the conspiracy theory being proved by sufficient evidence which was acceptable by the Court, the Court cannot accept the same. It is well settled proposition of law that the conspiracy theory need not be proved by a direct evidence, but it can be inferred from the circumstances placed and proved at the time of the trial. But, in the instant case, this Court is unable to make any inference from any circumstance placed before the Court, that A-1 could have participated in the so-called conspiracy. Insofar as the conspiracy theory, this Court has to record a finding that the prosecution has miserably failed to prove the same. 13.Apart from the above, in the instant case, the prosecution also came forward with the case to state and a charge has also been framed that A-1 has also participated in the crime. But, in the earliest document Ex.P1, the report, given by P.W.1, there was no whisper about the presence of A-1 at the time of commission of crime. Even in the statements recorded under Sec.161, the witnesses have also not whispered anything about the same. Had it been true that P.W.1 was an eyewitness who is the brother of the deceased and who accompanied him, and who also knew A-1 all along in the past and had it also been true that A-1 was present at that time, there could not have been any impediment for P.W.1 mentioning the name of A-1, but not done so. Further, it would be quite clear that A-1 could not have been present at the place of occurrence at all, and thus, the lower Court has erred in finding A-1 guilty, and he is entitled for acquittal in the hands of this Court. 14.As far as A-3 to A-5 are concerned, the prosecution has proved the case beyond reasonable doubt in the considered opinion of this Court. The prosecution to its advantage had the evidence of P.W.1, the brother of the deceased. Apart from that, P.Ws.2 to 5 all have categorically spoken to the fact that at the place of occurrence the deceased was accompanied by P.W.1, and they were coming in a two wheeler and waylaid by the accused. All were armed with deadly weapons namely aruvals, attacked him at the place of occurrence, instantaneously caused his death and fled away from the place of occurrence. The medical opinion was canvassed by the prosecution to prove the same. The Medical Person has been examined https://hcservices.ecourts.gov.in/hcservices/ as P.W.19, who conducted postmortem. The Doctor has given his opinion that he died out of shock and haemorrhage due to the injuries sustained. Also the contents of the postmortem certificate would indicate the same and the manner in which the injuries could have been caused. Thus the medical opinion canvassed by the prosecution is proper and in full corroboration of the ocular testimony projected by the prosecution through P.Ws.1 to 5. 15.Added further, pursuant to the confessional statement made by A-5 at the time of arrest, he has produced M.O.4 pant, M.O.5 shirt, and M.O.6 belt. Further A-4 when he was under police custody, has also produced M.Os.7 and 8, shirt and pant respectively, pursuant to the confessional statement. Further, the aruvals four in number, which were actually weapons of crime, have been recovered, and they have been subjected to chemical analysis. Thus, the recovery of the material objects and in particular weapons of crime from the accused, would clearly indicate the nexus of the crime with A-3 to A-5. Now the contention put forth by the learned Counsel for A-3 to A-5 is that as far as the evidence of P.Ws.1 to 5 are concerned, there were discrepancies. It is true that the discrepancies are bound to occur. But, in the case on hand, they are only minor most. The Court need not give much weight to those discrepancies noticed by the Court. In the instant case, unless and until they have got common intention to share with, they could not have been present at the place of occurrence and that too in a public place, armed with deadly weapons like aruvals and attacked the deceased instantaneously who remained unarmed. Under the circumstance, it can be well stated that the prosecution has proved its case as regards A-3 to A-5, and the act of A-3 to A-5 would, no doubt, attract the penal provision of Sec.302 read with 34 of IPC. The punishment of life imprisonment awarded by the trial Court in that regard has got to be affirmed. 16.Accordingly, the judgment of the trial Court finding A-3 to A-5 guilty under Sections 341 and 302 read with 34 IPC and awarding the punishment as referred to above is confirmed. The conviction and sentence imposed on A-3 to A-5 under Sec.120B IPC are set aside, and they are acquitted of that charge. 17.As regards A-1, the conviction and sentence imposed on him by the trial Court are set aside. A-1 is acquitted of all the charges levelled against him, and the bail bond executed by him shall stand terminated. The fine amount if any paid by him, will be refunded to him. 18.In the result, this criminal appeal is partly allowed. https://hcservices.ecourts.gov.in/hcservices/ 19.Mr.B.Rajamani, appointed by this Court as Amicus Curiae to argue the appeal on behalf of A-3, is entitled to get remuneration from the Legal Aid, Madras. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv To: 1.The Principal District and Sessions Judge Perambalur 2.The Judicial Magistrate, Perambalur 3.-do- Thro The Chief Judicial Magistrate,Perambalur. 4.The Inspector of Police Perambalur Police Station Perambalur District 5.The District Collector, Perambalur. 6.The Director General of Police, Mylapore, Chennai. 7.The Superintendent of Central Prison, Trichy. 8.The Secretary, Tamil Nadu Legal Services Authority, Chennai. 9.The Public Prosecutor High Court, Madras. Copy to : The Section Officer, Criminal Section, High Court,Madras. +1cc to M/s. Siraj & Siraj, Advocate Sr 59005 RJ(CO) km/23.11. CRL.A.No.99 of 2008 https://hcservices.ecourts.gov.in/hcservices/