IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 4.12.2006 Coram The Honourable Mr.Justice R.Balasubramanian and The Honourable Mr.Justice A.C.Arumugaperumal Adityan CRIMINAL APPEAL Nos.735 & 738 of 2004 & 668 of 2005 C.A.Nos.735 and 738 of 2004: Ramasamy ... Appellant in C.A.No.735/2004 (Accused No.3) 1. Anthonysamy 2. Veerasamy ... Appellants in C.A.No.738/2004 (Accused No. 1 and 2) -Vs.- State rep.by Deputy Superintendent of Police CCIW (CID) Cuddalore CBCID Madras Head Quarters. ... Respondent in both the appeals. C.A.No.668 of 2005:- State rep.by Deputy Superintendent of Police CCIW (CID) Cuddalore CBCID Madras Head Quarters. ... Appellant in C.A.No.668 of 2005 -Vs.- Dr.Ramachandiran ..Respondent in C.A.No.668 of 2005 (Accused No.3) Crl.A.Nos.735 and 738 of 2004 against the judgment and conviction dated 31.5.2004 made in S.C.No.183 of 1995 on the file of Additional District and Sessions Judge (Fast Tack Court No.3), Vridhachalam. https://hcservices.ecourts.gov.in/hcservices/ Crl.A.No.668 of 2005 is against the acquittal of A.6 ( A.3 in S.C.No.150/1997) as per judgment dated 31.5.2004 in S.C.No.183 of 1997 on the file of Additional District and Sessions Judge, Fast Track Court No.III, Vridhachalam. For Appellants : Mr.S.Ashok Kumar, SC in C.A.Nos.735 for Mrs.P.V.Rajeswari & 738/2004 in C.A.No.735 of 2004. Mr. T.Munirathnam Naidu for Mr.R.Karunagaran for A.1 in C.A.No.738 of 2004 Mr.S.Ashok Kumar, SC for Mrs.P.V.Rajeswari for A.2 in C.A.No.738 of 2004. For Respodent in C.A.Nos.735 & 738 of 2004 & for appellant in in C.A.No.668/2005 : Mr.N.R.Elango, APP For Respondent in C.A.No.668/2005 : Mr.S.Ashok Kumar, SC for Mr.C.D.Johnson J U D G M E N T (Judgment of the Court was delivered by R. Balasubramanian, J) In respect of one occurrence namely, custodial death, a crime was registered in Crime No.5 of 1994 on the file of C.B.C.I.D Head Quarters, Chennai against six persons. However, it appears from the materials on record, that two sessions cases came out of that one incident namely, S.C.No.183 of 1995 and S.C.No.150 of 1997. In each case three accused were put up for trial. Substantial evidence was recorded in both the sessions cases separately, though the evidence was almost similar. Almost at the fag end of the trial, it appears wisdom dawned not only on the investigating agency but also on the trial court as well as the counsel for the accused, as a result of which, all the six accused were brought under one umbrella namely, in S.C.No.183 of 1995. The evidence of some witnesses examined in the latter case was transposed as evidence in S.C.No.183 of 1995. Then analysing the evidence of the witnesses in S.C.No.183 of 1995 by a common judgment dated 31.5.2004 in both the Sessions cases the Court of Sessions, namely, Fast Track Court No.III, Vridhachalam acquitted A.4 of all the charges levelled against him; convicted A.5 - we will refer to the details of the offences later on, and https://hcservices.ecourts.gov.in/hcservices/ sentenced him to pay only a fine and acquitted A.6. A.5 has accepted the conviction and sentence and therefore he had not filed any appeal against his conviction before this court. A.3 is before this court in C.A.No.735 of 2004 and A.1 and A.2 are before this court in C.A.No.738 of 2004 . The State is before this Court in C.A.No.668 of 2005 challenging the acquittal of A.6. Heard Mr.S.Ashok Kumar, learned Senior Counsel appearing for all the convicted accused and for the acquitted accused in the appeal filed by the State and Mr.N.R. Elango, learned Additional Public Prosecutor vice versa. 2. In this judgment, we will refer to the parties to the appeals in the same rank in which they were arrayed before the trial court in S.C.No.183 of 1995. In short, the prosecution case is that in the course of investigation in another crime registered on the file of Kammapuram Police Station for the offence of burglary and suspecting the involvement of Rajakannu in that case, brought to the police station some persons at the first instance; some other persons at the second instance; in the interregnum the suspected accused Rajakannu was also apprehended and brought to the police station and in the course of their presence in the police station, some of the persons were assaulted and Rajakannu was done to death in the police station. The police personnel also attempted to outrage the modesty of P.W.6 and therefore punishable under Section 354 I.P.C. is also one of the accusations. We will give in detail, a little later in this judgment the nature of the charges framed; finding rendered by the court below and the sentence imposed. The prosecution, to substantiate their case, examined P.Ws.1 to 56 besides marking Exs.P.1 to P.75 and M.Os.1 to 5. The defence did not let in any oral evidence. But however they marked Exs.D.1 to D.12 on their side. 3. As we noted earlier, though the trial started in two sessions cases in respect of the same transaction, ultimately, all the accused were brought under one sessions case namely, S.C.No.183 of 1995 and only in that judgment, a judgment of conviction and acquittal as indicated above is pronounced. It may be noticed that before bringing all the accused for trial in one sessions case, additional charges were framed in S.C.No.150 of 1997 and those charges also are dealt with. The following are the charges framed in S.C.No.183 of 1995 CHARGE RANK OF ACCUSED U/S. I.P.C. 1 A.1 & A.2 U/S.342(9) 2 A.3 U/S.342(2) 3 A.1 & A.2 U/S.348(9) 4 A.3 U/S.348(2) https://hcservices.ecourts.gov.in/hcservices/ CHARGE RANK OF ACCUSED U/S. I.P.C. 5 A.1 U/S.330 6 A.1 U/S.330(3) 7 A.1 & A.2 U/S.330 r/w 34 8 A.1 & A.2 U/S.324 r/w 34 9 A.1 & A.2 U/S.330 r/w 34 10 A.1 & A.2 U/S.324 r/w 34 11 A.1 & A.2 U/S.330 r/w 34 12 A.1 & A.2 U/S.324 r/w 34 13 A.1 U/S.330 14 A.1 U/S.324 15 A.3 U/S.331 16 A.3 U/S.326 17 A.3 U/S.355 18 A.1 & A.2 U/S.330 r/w 34 19 A.1 & A.2 U/S.324 r/w 34 20 A.1 U/S.330 21 A.1 U/S.330 22 A.3 U/S.330 23 A.3 U/S.354 24 A.1 U/S.330 25 A.1 U/S.324 26 A.1 & A.2 U/S.302 r/w 34 27 A.1 & A.2 U/S.201 r/w 34 28 A.1 U/S.220 (9) 29 A.1 U/S.218 30 A.4 U/S.201 r/w 109 31 A5 & A.1 U/S.201 r/w 34 32 A.5 U/S.217 33 A.5 U/S.218 34 A.6 U/S.201 The following are the charges framed in S.C.No.150 of 1997. https://hcservices.ecourts.gov.in/hcservices/ CHARGE RANK OF ACCUSED U/S. I.P.C. 1 A.1 U/S.201 r/w 109 2 A.2 & A.4 U/S.201 r/w 34 3 A.2 U/S.217 4 A.2 U/S.218 5 A.3 U/S.201 6 A.1 to A.5 U/S.120-B r/w 218, 201 & 465 7 A.3 U/S.465 At the end of the Trial, the learned Trial Judge found A.1 and A.2 guilty under the following sections. "342 I.P.C.(9 counts); 348 I.P.C. (9 counts); 330 read with 34 I.P.C; 324 read with 34 I.P.C.; 302 read with 34 I.P.C.; 201 read with 34 I.P.C. and sentenced the convicted accused for the offence of murder to imprisonment for life together with a fine of Rs.2,000/- carrying a default sentence. A.1 was also found guilty under Sections 330 (2 counts); 324 (2 counts); 220(9 counts) and 218 I.P.C., for which separate sentences were imposed. A.2 was found guilty under Sections 201 read with 34 I.P.C.; 217 and 218 I.P.C. for which he stands sentenced to pay only a fine amount. A.3 was found guilty under Sections 331, 326 and 354 I.P.C. for which he stands sentenced to undergo various periods of imprisonment. A.5 was found guilty under Sections 201 read with 34 I.P.C., 217 and 218 I.P.C., for which he stands sentenced to pay only a fine amount. As noted earlier, A.4 and A.6 were acquitted of all the charges. A.1, A.2, A.3 and A.5 were also acquitted of the remaining charges." 4. P.W.1 is the wife of the deceased. P.Ws.4 and 5 are their children. P.Ws.3 and 6 are the elder brother and elder sister of Rajakannu, since deceased. P.W.8 is the sister of P.W.6 while P.W.7 is the nephew of P.W.6. P.W.3 and the deceased are living in the same house at Mudanai Village. The prosecution witnesses and the deceased belong to Kurava community. Seven years prior to the date when P.W.1 was examined in court (her examination was on 17.4.2000). A.1, A.2 and four more police personnel came to P.W.1's house in a van. P.W.1 identified A.1 and A.2 present in court as the persons, who came to her house on that day. P.W.1's husband had left for work early on that day morning. Police enquired P.W.1 as to where https://hcservices.ecourts.gov.in/hcservices/ her husband is, for which, she answered that her husband had already left for work. Immediately the police personnel made P.W.1, P.W.3, P.W.4 and P.W.5 to board the van, in which they came (P.W.16 is the driver), stating that jewellery valued at Rs.1,50,000/- had been stolen; her husband's involvement is suspected and therefore they are taken to the police station for interrogation. Thereafter the witnesses and the police travelled to a nearby Rice Mill where they picked up another individual by name Govindaraju (this court is informed that Govindaraju died pending investigation). Govindaraju is related to P.W.1. The police party travelled to several places on that day along with P.Ws. 1, 3, 4, 5 and Govindaraju and reached the police station at 6.00 p.m. on that day (we state from the records that this was on 20.3.1993). P.W.17 and 24 knew police picking up the witnesses from the Village as referred to above. In the police station, P.W.1 was asked to stand in the thatched shed near the front verandah of the police station and the remaining four were taken to the western room inside the police station. A.1 with lathi beat P.W.1 telling her that she must bring the stolen property as well as her husband, resulting in contusion all over her body. Tying the hands of P.W.3 from behind, A.1 beat him with lathi and likewise P.W.4 was also beaten by A.1. A.1 fisted P.W.5. Making Govindaraju, since deceased to sit in the floor with the legs wide apart, A.1 beat him with lathi. A.1 was insisting that Rajakannu had stolen the property and therefore the stolen property must be immediately restored. Then the persons, who were taken to the western room inside the police station were brought out at 10.00 p.m on that night. All the witnesses were given dinner. Later, at 11.00 p.m. A.1 left for his house. On the next day namely, on 21.3.1993 at about 12.00 noon, police brought P.Ws.6,7 and 8 from Pandannallur to the Police Station. In the same van the police went out and came back at 4.00 p.m. with Rajakannu, since deceased. On the arrival of Rajakannu, police allowed P.Ws.1,3,4 and 5 to go home by A.1 giving a sum of Rs.10/- to them. A.1 advised P.W.1 to bring some non-vegetarian food on the next day when she comes back to the police station. P.Ws.1,3,4 and 5 boarded a bus to reach their Village. On the next day namely, on 22.3.1993 P.W.1 alone came to the police station with cooked food by about 1.00 p.m. At that time she found her husband naked and tied to a window. He was being assaulted by lathi. When P.W.1 questioned the police as to why he is assaulting like that, the police beat her also asking her to keep quite. P.W.1 noted bleeding injuries on the person of her husband. Then A.1 and A.2 by giving shoulder support to her husband slowly moved him to the thatched shed outside the police station. P.W.7 and Govindaraju, since deceased were also brought to the thatched shed. P.W.1 served food to P.W.7, Govindaraju, since deceased and her husband, since deceased. However her husband could take food only four mouthful and thereafter he could not take. P.W.1's husband became unconscious. Stating that Rajakannu, since deceased, is pretending, A.1 and A.2 fisted on the flanks of her husband. It was around 2.00 p.m. P.W.1 asked them as to why they are assaulting her https://hcservices.ecourts.gov.in/hcservices/ husband and she was also beaten, which made her fall down. Then a Doctor (P.W.9) was brought to the police station, who gave two injections to P.W.1 and her husband, since deceased. Some tablets were given, which P.W.1 alone was able to swallow and not her husband. P.W.7 and Govindaraju, since deceased were also given some tablets. Some ointment was given to P.W.1 to apply to the wounds on the body of her husband, which she accordingly applied. Even thereafter A.1 and A.2 holding the tuft of her husband's head dragged him to the western room inside the police station. In the movement, the dhoti on the person of her husband came off. A.2 sarcastically commented that Rajakannu is acting, kicked on his chest forcibly. She found her husband's face and body bloated and she also found that her husband was not breathing. A person in the police station tried to give water to her husband, but however water could not get into her husband's system. Then P.W.1 questioned them as to why her husband was beaten like that. The police asked her to leave home by forcibly making her board a bus which came at about 3.00 p.m. that side. Even at that time, P.W.1 noticed that her husband was in a precarious condition. P.W.1 reached the Village at 6.00 p.m. where she was informed by P.Ws.17, 24 and others that police informed them at 4.15 p.m. that Rajakannu had escaped from the police station. P.W.1 responded by stating that when she left the police station, her husband was in a precarious condition and therefore there is no chance for him to escape. On the next day namely, on 23.3.1993, P.Ws.1,3,17,24 and 25 went to the police station to enquire. P.W.25 entered the police station to enquire and he was informed at that time also that Rajakannu had escaped from the police station. The witnesses boarded a bus and reached Vridhachalam. When they were on their way to Kumaramangalam Village, they saw the police van coming in the opposite direction. The villagers stopped the van and questioned the police personnel present in the van as to what happened to Rajakannu. A.1, who was in the van once again said that Rajakannu had escaped from police custody and he invited the witnesses to come to the police station for a talk. However P.W.1 reached the District Head Quarters at Cuddalore where meeting the Superintendent of Police, she gave the complaint Ex.P.1. Then P.W.1 went to Vridhachalam, where to the higher official, she gave the complaint. P.W.1 also gave a complaint to the Revenue Divisional Officer, P.W.41 and in the enquiry conducted by the Revenue Divisional Officer, she had given a statement, in which her left thumb impression was taken by P.W.41. Ex.P.2 is the said statement. The High Court directed compensation to be paid to P.W.1, her daughter, P.W.4 and P.W.5 A direction was given to C.B.C.I.D. to investigate the Crime. She saw her husband's photograph, after his death, shown to her by the police and she identified that the person in the photograph is her husband. Ex.P.3 series are the photographs. P.Ws.3,4 and 5 had given evidence more or less on the same lines as spoken to by P.W.1, except the assault perpetrated on Rajakannu in the police station on 22.3.1993. https://hcservices.ecourts.gov.in/hcservices/ 5. P.W.6 would state that on a particular day namely, Sunday A.1 and A.2 along with some other police personnel came to her house to find out whether Rajakannu, since deceased was in her house and whether Rajakannu had given her the stolen property. P.W.6 answered in the negative. The police yet searched her house. The police made P.Ws.6 and 8 to board the van. The house of P.W.7 was also searched and he was also forced to board the van. P.W.7 was beaten at that time. Then all of them reached the investigating police station. The police made P.W.6, P.W.8 and Govindaraju to sit in the thatched shed outside the police station. A.1 went home. There was some light in the thatched shed. A.3 took P.W.6 inside the room in the police station. At that time, she noticed P.W.7 tied to a window and being beaten. P.W.7's face was found bloated. Then P.W.7 was untied and asked to come near the place where P.W.6 was asked to stand and then A.3 commanded P.W.7 to undress P.W.6. (The trial court noted that this witness started weeping at that stage and closed the face) and beat her. Then P.W.6 was asked to go to the thatched shed. Some one outside questioned A.3 as to why he is putting P.W.6 to shame. Govindaraju, since deceased consoled P.W.6. P.Ws.6 and 8 were lying in the thatched shed. On the next day morning, P.Ws.6 and 8 were asked to leave the police station. Six days later P.W.7 and Govindaraju came home and she found P.W.7 had suffered extensive injuries on his body, which included a fracture in the hand and big toe. P.W.7 had given evidence more or less on the same lines as spoken to by P.W.6. P.W.7 would also state that he had suffered a fracture on his right hand due to the assault by police in the police station. P.W.8 would depose that police forcibly took P.Ws.6,7 and 8 by beating them to the police station and they reached the police station at 12.00 noon. There also he, P.Ws.6 and 7 were beaten. A.1 to A.3 present in court were the persons present at the police station at that time. P.W.8 saw P.Ws.1,3,5 and others in the police station. At 4.00 p.m. on that day, Rajakannu was brought to the police station and at 7.00 p.m. in the night, they were served dinner. P.W.8 identified the person available in Ex.P.3 photographs as that of his uncle - the deceased in this case. P.W.9 is the Doctor, who was called to the police station to treat P.W.1 and Rajakannu as spoken to by P.W.1. P.W.9 was examined by P.W.41 namely, the Revenue Divisional Officer and Ex.P.6 is the statement given by him before P.W.41. However he was treated as hostile at that stage, since he did not support the prosecution case that he treated P.W.1 and Rajakannu by giving allopathic medicine. P.W.10 had given the complaint to the investigating police station that from his house jewels weighing 43 1/2 sovereigns and cash of Rs.1,141/- were stolen and Ex.P.7 is the said complaint. 6. P.W.39 is the Deputy superintendent of Police, who perused Ex.P.7, the complaint given by P.W.10 and registered in Crime No.107 of 1993 under Sections 457 and 380 I.P.C. The complaint was given on https://hcservices.ecourts.gov.in/hcservices/ 20.3.1993 and Ex.P.19 is the printed First Information Report. There is a note on Ex.P.19 that A.5 must investigate that complaint and accordingly A.5 took up investigation on the same day. P.W.39 observed the crime scene in that complaint namely, Ex.P.19. P.W.39 suspected the involvement of Kurava community people in that crime and therefore directed A.5 to proceed with the investigation in that direction. The complaint given by P.W.1 to the Superintendent of Police was sent to P.W.39 on 25.3.1993 and the said complaint is Ex.P.1. On that complaint, P.W.39 made an endorsement to A.5 that he should register that complaint under the caption "man missing" and that he must personally take up the investigation in that case. That complaint stands registered in Crime No.114 of 1993 on 26.3.1993 at about 10.00 p.m. under the caption "man missing" and Ex.P.48 is the printed First Information Report for that complaint. Further enquiry made by P.W.39 revealed that there were materials indicating illegal detention of some persons and torture in the police station and therefore directed the enquiry to be conducted by the Revenue Divisional Officer under Section 145 of Police Standing Orders. P.W.41 is the Revenue Divisional Officer and he conducted the enquiry under Section 145 of the Police Standing Orders. Wide publication was made by beating "tom tom" in the Village and P.W.41 conducted enquiry on that incident on 7.4.1993, 13.4.1993, 19.4.1993 and 5.7.1993 during which time he examined twenty six witnesses. Exs.P.46, P.22, P.50, P.25, P.31, P.24, P.51 (A.1's statement), P.13, P.47, P.45, P.44, P.20, P.52 (A.2's statement), P.15, P.2 (P.W.1's statement), P.5, D.1, P.6 and P.53 are the statements recorded by him from various witnesses. P.W.41 was examined as P.W.49 in S.C.No.150 of 1997, in which trial he deposed that on 7.4.1993 he examined A.6 and recorded his statement Ex.P.66. P.W.49 in S.C.No.150 of 1997, who is P.W.41 in S.C.No.183 of 1995, would state that when he examined A.6, he said that at 10.00 p.m. on 22.3.1993 Rajakannu appeared before him complaining body pain and he treated him. A.6 had also sated that as A.5 requested him he gave the certificate to the above effect. Ex.P.67 is the xerox copy of the certificate produced by A.6 before P.W.49 and Ex.P.68 is the original of Ex.P.67. Ex.P.69 is the statement of A.1 (treated as Ex.P.75 in S.C.No.183 of 1997). Exs.P.70, P.47, P.33, P.22, P.39, P.20, P.15, P.48, P.46, P.29, P.27, P.12, P.2, P.11, P.50, P.54, P.53, P.17 and P.71 are the statements recorded by him from the various witnesses. P.W.49 sent Ex.P.71 (Ex.P.71 is Ex.P.53 in S.C.No.183 of 1995) report to the District Collector. P.W.48 is the Inspector General of Police (Crimes). On a proceeding initiated by P.W.1 in the High Court of Madras, the High Court passed the order Ex.P.60 directing his office to investigate the crime. Accordingly, P.W.48 directed the Deputy Superintendent of Police, C.C.I.W., Cuddalore by name Sri. Venkusha to register a crime against the accused in this case. Ex.P.61 is the proceeding issued by P.W.48. Accordingly, the Deputy Superintendent of Police by examining P.W.1 and others recorded their statements and then registered that statement in Crime No.5 of 1994 in C.B.C.I.D. Head https://hcservices.ecourts.gov.in/hcservices/ Quarters (Crimes) under Sections 342, 324, 326, 354 and 302 I.P.C. Exs.P.62 and P.63 are the affidavits of P.W.1 and Govindaraju, since deceased filed in the High Court. Ex.P.64 is the printed First Information report for the complaint registered by the Deputy Superintendent of Police Venkusha as indicated earlier. Exs.P.59 and P.65 are the statements of P.W.1 and Govindaraju given to the Deputy Superintendent of Police. P.W.48 was monitoring the investigation done by the said Deputy Superintendent of Police, who was assisted by P.W.49 and others. The Deputy Superintendent of Police Venkusha died on 25.2.1999 and one of the police inspectors, who assisted him also died. In all, three reports were filed before the High Court by P.W.48 on the investigation already done by Venkusha, assisted by Inspectors of Police. Ex.P.66 is the interim order dated 11.6.1994 passed by the High Court. Ex.P.67 is the final report filed by P.W.48 before the High Court on 21.7.1994. Pursuant to a questionnaire, P.W.48 filed a further final report giving Ex.P.68 on 30.7.1994. Ex.P.69 is the sanction order to prosecute A.1. Ex.P.70 is the sanction order to prosecute A.2 and A.3. Venkusha, Deputy Superintendent of Police, while alive and after completing the investigation filed the final report in court against all the accused on 9.11.1994 under Sections 342, 348, 324, 330, 302, 201, 220, 218 read with 34, 326, 331, 355 read with 109 I.P.C. 7. P.W.49 is one of the Inspectors of Police, who was assisting the Deputy Superintendent of Police Venkusha in the investigation. Since Venkusha is dead, he had deposed on the investigation done by Venkusha. Hereafter in this judgment we will refer Mr.Venkusha, Deputy Superintendent of Police as the "Investigating Officer". "The Investigating Officer went to Kammapuram Police Station on 11.5.1994 and with the help of P.W.34 and another prepared a rough sketch of the police station. P.W.34 is the Senior Draftsman in Neyveli Lignite Corporation and as requested by the Investigating Officer, he prepared the sketch/blue print. The Investigating Officer went to the Village to examine P.Ws.1,3,4 and 5. But as they were not available in the Village, he could not examine them. The Investigating Officer went on probing further from the nearby police station as to whether any crime have come