In the High Court of Judicature at Madras Dated: 15.06.2006 Coram The Honourable Mr.JUSTICE R.BALASUBRAMANIAN and The Honourable Mr.JUSTICE M.JEYAPAUL Criminal Appeal No.1498 of 2003 Acit Boran Sam .... Appellant/Accused Vs. State by Inspector of Police, Avadi Tank Factory Police Station, Chengai East Dt. .... Respondent/Complainant APPEAL under Section 374 of Criminal Procedure Code against the judgment dated 29.8.2003 made in S.C.No.253 of 1996 on the file of learned Principal Sessions Judge, Chengalpattu. For Appellant : Mr.S.Shanmugavelayutham For Respondent : Mr.N.R.Elango, Addl. Public Prosecutor J U D G M E N T (Judgment of the Court was delivered by R.BALASUBRAMANIAN,J) The appellant stands convicted under Section 449 and 302 IPC in S.C.No.253 of 1996 on the file of the Court of Sessions and stand sentenced to undergo five years rigorous imprisonment together with fine of Rs.1,000/- for the former offence and imprisonment for life with fine of Rs.1,000/- for the latter offence. Default sentence is also provided for. Hence the appeal. 2. Heard Mr.S.Shanmugavelayutham, learned counsel appearing for the appellants and Mr.N.R.Elango, learned Additional Public Prosecutor for the State. 3. The prosecution case is that by trespassing into the house of Abheysingh – since deceased, the accused shot him with his rifle and thereby caused his death. The occurrence according to the prosecution is shown to have taken place at 4.00 a.m. on 5.2.1995 i.e., in the early hours immediately after the mid night of 4.2.1995. https://hcservices.ecourts.gov.in/hcservices/ P.Ws. 1 and 5 are the sons of the deceased, while P.W.4 is the wife of the deceased. Admittedly, in this case P.W.1 alone had been examined as an eye witness to the occurrence and it is he who lodged Ex.P.1 with P.W.38, the Sub-Inspector of Police. Therefore, we summarise the evidence of P.W.1 here under: "He was studying in +2 during the relevant time; on 4.2.1995, he told his father to wake him up at 4.00 a.m. in the next day morning and then went to bed; in the early hours of the next day morning, calling bell went on ringing, which made everybody in the house to wake up; P.Ws.1 and 5 were living in the house along with the deceased and his wife P.W.4; his father went out to open the door, but however he could not open the door, as it was noticed later that it was bolted from outside; P.W.4 advised them not to go out, but however the deceased insisted in going out with a stick in his hand; P.W.1 followed him and they were going by the small aisle just by the side of the house; as they were going, his father shouted as to who is outside; as they went to the front side of the house, he saw the accused standing with a gun in his hand and the accused fired once at his father; on receiving the gun shot injury near the right collar bone, his father fell down and shouted; the witness seeing the accused shouted that he had seen him and he started chasing him; before proceeding further, he opened the front door from outside and as accused was running, he chased him; as he could not reach the accused, he came back to attend to his father and in that process, he shouted for help from the neighbours; P.W.16 is his neighbour and as he tried to reach his house, he found that his house door was also bolted from outside; the upstairs portion of the house, where he and his father were living were occupied by P.Ws6 and 18; he found the doors for those respective portions were also bolted from outside and he opened it; in the meantime, P.W.s 4 and 5 also came out of the house and were making calls over phone for help; ambulance came in which his father was taken to the hospital by him, P.Ws.4,5 and 6; P.W.7 another doctor also joined them en route; on finding that the condition of the injured was precarious, they entered the Stedford Hospital, Ambattur for treatment, where P.W.3 was working; P.W.3 gave him immediate treatment and then advised that the injured to be taken to the Government Kilpauk Medical College Hospital; en route, Abhey Singh told them that the accused alone had committed the crime; they reached the Government Kilpauk Medical College Hospital, where P.W.2 was on duty and P.W.2 on examination, pronounced his https://hcservices.ecourts.gov.in/hcservices/ father dead; police came to the hospital to whom he gave Ex.P.1 the complaint; since there were electric lamps in his house as well as street lights were burning, he could see the accused; M.O.1 is the weapon used by the accused in committing the crime." 4. P.W.2 is the doctor in Government Kilpauk College Hospital at 5.05 a.m. on 5.2.1995, Abhey Singh – since deceased was brought before him by P.W.7 accompanied by P.W.s 1,4 and 5. She found the injured already dead and Ex.P.2 is the death report. Ex.P.3 is the intimation sent by her to the police. P.W.38 is the Sub-Inspector of Police in the investigation police station. On receipt of the intimation from the hospital at 6.25 a.m., on 5.2.1995, he reached the Government Kilpauk Medical College Hospital and by examining P.W.1 recorded the statement at 7.30 a.m. He also examined P.W.4 by recording the statement. As they were narrating in Hindi, with the help of the Inspector of Police, he got it translated. Ex.P.1 is the said complaint. He registered the complaint in his police station Crime No.51 of 1995 under Section 302 IPC. Ex.P.37 is the printed first information report prepared by him. As regular Inspector of Police was on other duty, he handed over the material records to the in-charge Inspector. Ex.P.38 is the rough sketch prepared by him in the presence of witnesses. P.W.39 had been examined to prove the steps taken by P.W.38 in registering the complaint and preparation of the observation mahazar. He had also given evidence about the investigation done by the Inspector of Police by name, Chandrasekar. Inspector of Police, Chandrasekar on receipt of the material records examined witnesses and recorded their statements. Chandrasekar conducted inquest over the dead body between 3.00 p.m. and 5.00 p.m. on 5.2.1995 and prepared Ex.P.40 inquest report. Chandrasekar also recovered blood stained earth, sample earth, wooden log with hole, tin sheet with hole under a mahazar attested by witnesses. He sent the case properties to the Court with a requisition Ex.P.22 for subjecting the same to chemical examination. P.W.30 is the Magisterial Clerk, who speaks about the receipt of the case properties along with Ex.P.22 requisition given by Chandrasekar, Inspector of Police. P.W.33 is the police constable, who carried the case properties and delivered it to the Court. As an enclosure to Court's letter Ex.P.23, the case properties were sent to the laboratory. Again three more case properties were received by the Court along with Ex.P.24 requisition given by the Inspector of Police Chandrasekar. As an enclosure to Court's letter Ex.P.25, those properties were also sent to the laboratory. Ex.P.26 is the chemical examination report. Ex.P.27 is the serologist report. Exs.P.28 and P.29 are the chemical examiner's and serologist's report for the properties sent along with Court's letter Ex.P.25. Chandrasekar, Inspector of Police had sent a requisition to the hospital to conduct post mortem on the dead body of Abhey singh. P.W.34 is the police constable, who carried the requisition for post mortem to the https://hcservices.ecourts.gov.in/hcservices/ hospital, where he identified the dead body and he was present through out the post mortem. After post mortem, he removed M.O.4 Kurdha from the dead body and hand over the same to the Inspector of Police, which was recovered under Form 95. P.W.35 conducted post mortem on the dead body at 11.00 a.m. on 6.2.1995 on receipt of requisition for post mortem. During post-mortem, he found various symptoms, as noted by him in Ex.P.35 the post-mortem report. The symptoms noted therein are as here under: "1) A circular, contused laceration of 1cm x 1cm, just below the middle third of right collar bone, found entering the thoracic cavity, through the second intercostal space. 2) A contused laceration of 1cm x 1cm over the upper aspect of right upper lobe of the lung in front, with a contused laceration of 3cms x 2 1/2 cms over the interlobar surfaces of the upper and middle lobes of the lung. 3) A vertical, contused laceration of 4 1/2 cms x 3cms over the back of chest near the midline on the right side, with comminuted fracture of 5th and 6th ribs on the right side near the vertebral column, with diffuse bruising over the chest wall. The right thoracic cavity contained 250 cc of blood. OTHER FINDINGS: BRAIN : Surface vessels empty HEART : All chambers contained minimal amount of blood. LUNGS : Both pale HYOID BONE: Intact. STOMACH : Contained 100 cc of whitish fluid. Mucosa:Pale No specific smell could be made out. All the other internal organs were found pale." The doctor is of the opinion that death is due to haemorrhagic shock, as a result of gun shot injuries. According to him a rifle like M.O.1 would have caused the injuries noted in the post-mortem report. Ex.P.36 is the blood group certificate. 5. Chandrasekar, Inspector of Police, continued the investigation by examining further witnesses. The accused was produced in the police station on 8.2.1995 at about 1.00 p.m. by a https://hcservices.ecourts.gov.in/hcservices/ team of people from Patna. Accordingly, Chandrasekar, Inspector of Police arrested him. At that time, the accused was examined by him in the presence of P.Ws.31 and 32 and the accused gave a voluntary confession statement, the admissible portion of which is Ex.P.32. Pursuant to Ex.P.32, Mos.1 to 9 series were recovered under mahazar attested by witnesses. Further witnesses were examined by Inspector of Police Chandrasekar. Inspector of Police Chandrasekar examined witnesses at Patna by recording their statements. As Inspector of Police Chandrasekar went on medical leave P.W.39 continued the investigation thereafter. P.W.39, verified the investigation already done. P.W.39 continued the investigation, as already stated, from where it was left by Inspector of Police Chandrasekar. He also examined further witnesses by recording their statements. He recovered Ex.P.41 the railway warrant issued to the detenu on 2.2.1995. Ex.P.42 contains the name of the accused in serial number 2. Exs.P.43 and 44 are the xerox copies of the warning memo issued to the accused. Ex.P.45 is another proceeding on the file of employer of the accused against him. Ex.P.46 is the amendment order issued by the employer of the accused. Ex.P.47 is the office order relating to the accused. Ex.P.48 is another office order of the employer of the accused against him. Ex.P.49 is the attested copy of the Mid term Test Scheme Examination for senior cadre post and Ex.P.50 is the attested xerox copy of the movement order. 6. P.W.2 is the doctor in Government Kilpauk Medical College Hospital, who on examining Abhey Singh pronounced him dead and gave Ex.P.2 death report and sent Ex.P.3 death intimation to the police. P.W.3 is the doctor in the Stedford Hospital at Ambattur, who gave initial treatment to the victim. P.W.4 is the wife of the deceased. She also deposed that on hearing the calling bell noise in the early hours of 5.2.1995, her husband went outside the house along with P.W.1 and as they went out, she heard a gun shot sound. On hearing that, she and P.W.5- her son came out. She would correct herself by stating that on hearing the gun shot sound, they moved from one room to another room and when they peeped through the window, they saw the accused running away from the scene and then only they came out. Her husband told her that he had received gun shot wound and that it is the accused, who had shot him. Her evidence as to what steps were taken thereafter in taking her husband to the hospital is on the same lines as spoken to by P.W.1. P.W.5 is the other son of the deceased and P.W.4. He would also state that he heard the gun shot sound from outside the house and heard P.W.1 shouting that the accused had shot his father. He would then state that as he and his mother P.W.4 were peeping through the window, they saw the accused with the rifle running chased by P.W.1. When they came out, his father told them that the accused had shot at him. His evidence as to what happened thereafter is on the same lines as spoken to by P.Ws.1 and 4. P.W.6 during the relevant time was working as Assistant Commandant in C.R.P.F. at Avadi and he was staying in the upstairs of the building https://hcservices.ecourts.gov.in/hcservices/ where the deceased was staying. P.W.18 was also occupying another portion in the upstairs of the same house. However, P.W.6 was treated as hostile, since he did not speak that he saw the accused running from the scene of occurrence with the rifle. But however, before he was treated as hostile, he would state in his evidence that P.W.1 told him that his father was shot by a Bengali boy and the said assailant is the accused. He would then give evidence on the same lines as spoken to by P.Ws.1,4 and 5 as to the transport of the injured from one place to another and ultimately they reached the Government Kilpauk Medical College Hospital. P.W.7 was the Chief Medical Officer in-charge of the CRPF Station Hospital at Avadi. He was also treated as hostile, since he did not speak, that P.W.5 told him that his father was shot by the accused. P.W.8 is the wife of the accused himself and she also turned hostile, since she did not speak in Court that the accused, without authority from his employer, visited the house on 4.2.1995. P.W.9 is the witness to the preparation of Ex.P.4 observation mahazar and recovery of Mos.2 and 3 under Ex.P.5 and M.Os.9 and 10 under Ex.P.6. P.W.10 was the Assistant Commandant of CRPF at Avadi during the relevant time. He was also treated as hostile, since he did not support the prosecution case, that he told during investigation that he was informed that the accused has committed the crime. But however, he would speak in his evidence before he came to be treated as hostile that on instructions from his superior P.W.7, he went to the Central Railway Station with P.W.15 to watch the movement of CRPF personnel and at that time, he did not know, who the assailant is. His evidence, till he was treated as hostile, also shows that on reaching the Railway Station, he found the accused boarding a train bound for Avadi with his service rifle hanging on his shoulder and he was also in his CRPF uniform. When he asked him as to where he was going, the accused had replied that he is coming from Patna and going to Avadi. P.W.11 is the wife of a CRPF constable. She knows the accused. She was treated as hostile, since she did not support the prosecution case that she saw the accused at 9.00 p.m. on 4.2.1995 in the CRPF campus at Avadi. P.W.12 is the witness to the preparation of Ex.P.4 observation mahazar and recovery of Mos.1 to 8 under Ex.P.5 and Mos.9 and 10 under Ex.P.6. He also witnessed the arrest of the accused on 8.2.1995. He would then depose that he took charge of the accused on 8.2.1995 when he was brought from Nandal in Maharashtra from the Railway Station at Chennai and then surrendered him in the investigation police station. M.O.9 series were recovered from him at the Railway Station. P.W.13 was attending to the telephone calls from 6.00 a.m. to 8.00 a.m. on 5.2.1995. At about 7.00 or 7.05 a.m. on that date, P.W.10 called over telephone from the Railway Station at Chennai stating that the accused is boarding a train bound for Avadi from Chennai and that the accused was boarding the train, when it was on its move. He was asked to pass on the message to the Principal and accordingly, he did it. P.W.14 is the Principal of the Recruitment Training Centre No.2 at CRPF, Avadi. The deceased was https://hcservices.ecourts.gov.in/hcservices/ employed in that company. In the year 1994, the deceased sent the communication to him complaining about the conduct of the accused and on that, he enquired the accused as well as the deceased. Then he advised the accused to respect the seniors in the office. Despite that the accused was continuously misbehaving and therefore, a warning memo was given to the accused. Ex.P.7 is the warning memo given by the deceased to the accused and the same was acknowledged by the accused. Again on 12.1.1994, the deceased had sent a detailed report Ex.P.8 to this witness. Ex.P.9 is the warning memo issued by the deceased on 13.1.1994 to the accused and it contains his acknowledgement. P.W.15 examined in this case was treated as hostile, since he did not support the prosecution case that he was informed to go and apprehend the accused by his superiors as the person responsible for the crime. But however, he would admit that P.W.10 was working as Assistant Commandant in the head office of CRPF, where the deceased was also employed and the accused was employed under the deceased. He and P.W.10 went to the Central Railway Station at about 6.30 a.m. on the occurrence day. In the suburban Railway platform, they noticed the accused, who was in his uniform having a rifle on his shoulder. As the train was moving out, the accused boarded in it. P.W.16 during the relevant time was working in the CRPF campus at Avadi as Assistant Commandant. He resides just opposite to the quarters, where the deceased was residing. P.W.17 is his wife. He knows the family of the deceased. At 4.00 a.m. on 5.2.1995, when he was sleeping in his house, he heard a sound hitting the tin sheet and also heard the foot steps of somebody running on the road. He also heard a lady shouting for help. He tried to come out of the house, but the entrance door was bolted from outside. He heard P.Ws.1 and 4 shouting for help and when they opened the door, he came out and at that time, P.W.1 told him that his father was shot at by the accused. However, he was also treated as hostile, since he did not support the prosecution case that on coming out he saw the accused running away with the rifle. P.W.17 is the wife of P.W.16, She was also treated as hostile, since she did not support the prosecution case that on coming out she saw the accused running away with the rifle. But however in her evidence that was recorded before she was treated as hostile, she had admitted that P.W.1 and P.W.4 opened their house door and when she came out, she noticed Abhey Singh lying on the ground in a pool of blood. P.W.18 was residing in a portion of the upstairs of the house, where the deceased was living. He would state that he did not know the accused and he had not seen him earlier. However, he would add that about 4.00 a.m. on 5.2.1995, he heard some noise resembling that of a thunder, which made him to wake up. As he peeped through the window, he saw a person in a military uniform running having in his hand something like rifle. As there was no light, he could not see it correctly. As he came down, P.Ws.1,4 and 5 told him that the accused ran away after shotting the victim in this case. P.W.s1,4 and 5 had said that the accused had fired at the victim and ran away. https://hcservices.ecourts.gov.in/hcservices/ 7. P.W.19 is in-charge of the stores of CRPF. He was in particular charge of weapon division. On 17.1.1995, he had issued weapon to the accused. Ex.P.10 is the "In and out Register", which contains the details of the weapons handed over to CRPF personnel. He would state that before issuing the weapons, he would verify whether the weapon is in working condition and then only issue. On 23.1.1995, when the accused in the company of other personnel was deputed to Patna on election duty, he issued a weapon to the accused and the other company people. He issued a rifle to the accused with Butt No.646; Body No.F 6044 and the rifle is double barrelled with 7.62mm calibre. M.O.1 is the rifle. He also issued 100 rounds of cartridges. At page 11 of Ex.P.10, the accused had acknowledged the receipt of the weapon and cartridges. Ex.P.11 is the said acknowledgement. The accused had not returned the weapon till he gave evidence. P.W.20 during the relevant time was working in CRPF campus at Avadi. He had also spoken about the grudge which the accused had against the deceased in this case. His evidence shows that the accused was caught red handed by the deceased, when he was copying in the examination and he was disqualified. Ex.P.12 is the answer paper of the accused and Ex.P.13 is the material used by the accused for copying. The deceased had made an entry on the top of Ex.P.12 itself that the accused was found copying. As already stated, the accused was disqualified from the examination. Ex.P.14 is the result sheet for that examination and again in serial number 90, it is noted that the accused was disqualified. The accused was permitted to take part in the subsequent examination. Ex.P.15 is the result for the subsequent examination. In that examination also, the accused failed. As there was some mistake in the results published, an amendment was issued in Ex.P.16, as a result of that the accused had to undergo the entire period of training all over again. P.W.21 during the relevant time was working as Inspector of Recruitment Training Centre No.3 at Maharashtra. On 6.2.1995, a flash message was received from the Recruitment Training Centre at Avadi that the accused is shown to have been involved in the murder of the victim in this case and therefore, he was required to return back to Recruitment Training Centre No.2, Avadi. P.W.21 was detailed to perform the duty. On the accused reaching Maharashtra, he was checked by the board members and his rifle was also checked by the armourer. The accused was also medically examined by the medical officer. After completion of all the formalities, he took the accused for the onward journey to Avadi. During the course of check, it was found that the accused was found in possession of 100 rounds of 7.62mm cartridges, but out of that one round was of a different lot and whenever ammunitions are issued, it would be issued from one particular lot and it is not possible to issue one round from a different lot. M.O.1 is the rifle. M.O.9 series are the rounds recovered from the accused, which contain a distinct single mark. M.O.10 do not belong to CRPF stores and that type of ammunitions are https://hcservices.ecourts.gov.in/hcservices/ not supplied by them. P.W.22 is the police constable in CRPF at Avadi. He and the accused are having their residence in the same blocks and as such he knows the accused. At 7.45 a.m. on 4.2.1995, when he left his house for duty, he saw the accused going with his child in a cycle. P.W.23 during the relevant time was working as Vice Principal in C.T.C.-II at Avadi. He would state that the deceased caught the accused red handed while he was copying in the examination. Exs.P.12 to P.15 are the various proceedings issued by the deceased against the accused, which he handed over to the police. P.W.24 is also working as a writer in CRPF and he knows the accused and the deceased. On 8.1.1994, the accused did not report for duty and therefore, the deceased issued a warning memo to him, which the accused received. As the accused was continuing