Bail Slip That the petitioner 2/Accused No.2 viz. Panchalingam @ Panchaan,S/o.Palaniappa Thevarn was directed to be released on bail as per order dt. 13.8.2008 made in MP 1/2008 in Crl.A.288/2008 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.01.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRIMINAL APPEAL NO.288 OF 2008 1.Chinna Kaalai @ Vellaisamy 2.Panchalingam @ Panchaan .. Appellants/Accused 1 & 2 Vs. State rep. by Inspector of Police, Pollachi Police Station (West) Coimbatore District (Crime No.425 of 2005) .. Respondent/Complainant This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Additional District and Sessions Judge, Fast Track Court No.1, Coimbatore made in S.C.No.124 of 2007, dated 6.11.2007. For Appellants : Mr.C.M.Gunasekaran for Mr.V.Purushothaman For Respondent : Mr.P.Kumaresan, APP - - - - JUDGMENT (The judgment of the court was delivered by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the Additional District and Sessions Division, Fast Track Court No.1, Coimbatore made in S.C.No.124 of 2007, whereby the first accused/first appellant stood charged under https://hcservices.ecourts.gov.in/hcservices/ Sections 302 and 201 IPC and the second accused/the second appellant stood charged under Sections 341, 302 r/w S.34 and 201 IPC and tried and A-1 was found guilty under Sections 302 and 201 IPC and the second accused was found guilty under Sections 341, 302 r/w S.34 and 201 IPC and A-1 and A-2 were sentenced to undergo life imprisonment each and to pay a fine of Rs.2000/-, in default to undergo 3 months S.I. under Section 302 and 302 r/w S.34 IPC respectively and 3 years R.I. each and to pay a fine of Rs.500/-, in default to undergo 3 months S.I. under Section 201 IPC and A-2 was also sentenced to undergo 1 month R.I. under Section 341 IPC and the sentences were ordered to run concurrently. 2.The short facts necessary for the disposal of this appeal can be stated as follows: a)P.W.1 is the wife of the deceased Barathamannan. P.W.4 is the brother of P.W.1. One year prior to the occurrence, the deceased purchased a piece of land from the first accused. A-1 was demanding more money, but the deceased refused to pay and the relationship between the deceased and the accused was strained. On 12.8.2005, when the deceased was in his house at about 6.30 p.m., A-1 and A-2 came there and took him in the TVS 50 bearing registration No.TN 41/X 5181. The same was driven by the deceased, while A-1 and A-2 were also travelling with him in the same vehicle. This was witnessed by P.Ws.1 and 4. Since the deceased did not return, P.W.1 along with P.W.4 went to the house of A-1 at about 9.00 p.m. and found all the three, namely A-1, A-2 and the deceased, taking liquor. When P.W.1 asked her husband to come, both A-1 and A-2 informed that he would come back and she can go earlier. They also detained him from moving and both P.W.1 and P.W.4 returned home. b)P.W.5, who was employed in a factory, was returning home at 10.00 p.m. and he found all the three were just chatting in front of the house of A-1. At that time, there arose a quarrel and the deceased was scolding them in the filthy language. A-1 informed A-2 that even without making payment, he was uttering filthy language and that he would be finished off. A-2 caught hold of the deceased, while A-1 took M.O.5, cricket bat, attacked him and caused his death. Both of them took the dead body and threw it into the Well of A-1 and thereafter, they left the place. c)P.W.1 went to the house of A-1 next day and asked about her husband. A-1 replied that he had gone to Udumalpet. Believing his words, she returned home. On 16.8.2005, she was informed that a dead body was found in the Well of A-1 and others. Immediately, she went there and ascertained that it was the body of her husband. She immediately proceeded to the respondent police station and gave Ex.P.1, the report to P.W.20, the Inspector of Police. On the strength of Ex.P.1, P.W.20 registered a case in Crime No.425 of 2005 under Sections 302 and 201 IPC. Ex.P.19, the F.I.R. was despatched to the Court. d)P.W.20 took up the investigation, proceeded to the spot. He also gave a message to the fire squad. P.W.20 made an inspection in the presence of the witnesses and he prepared Ex.P.20, the observation mahazar and Ex.P.21, the rough sketch. The dead body was taken out from https://hcservices.ecourts.gov.in/hcservices/ the Well. P.W.20 conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.22, the inquest report. Then, the dead body was sent to the Government Hospital, Coimbatore for the purpose of autopsy. e)P.W.3, the Doctor attached to the Government Hospital, Coimbatore, on receipt of the requisition, has conducted post-mortem on the dead body of the deceased and has issued Ex.P.6, the post-mortem certificate and Ex.P.8, final opinion, wherein he has opined that the deceased would appear to have died of head injury. f)Pending investigation, on 19.08.2005, A-1 was arrested and he came forward to give confessional statement, which was recorded in the presence of the witnesses. The admissible part of the same was marked as Ex.P.23. Pursuant to the same, A-1 produced bottles and cricket bat, which were recovered under a cover of mahazar. On 27.11.2005, A-2 appeared before the Tahsildar and gave Ex.P.16, extra judicial confessional statement and then, he was arrested by P.W.20. The accused were sent for judicial remand. All the material objects recovered were sent for chemical analysis by the Forensic Science Department and the reports were obtained. On completion of the investigation, the Investigating Officer has filed the final report. 3.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 20 witnesses and also relied on 31 exhibits and 11 M.Os. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which they flatly denied as false. No defence witness was examined The trial court, after hearing the arguments advanced, took the view that the prosecution has proved the case beyond reasonable doubt and found the accused/appellants guilty as stated above and awarded punishments as referred to above. Hence this appeal at the instance of the appellants. 4.Pending appeal, it is brought to the notice of the court that the second accused died and hence the appeal in his regard becomes abated and this appeal was actually prosecuted in respect of A-1. 5.Advancing arguments on behalf of the appellants, the learned counsel would submit that in the instant case, the prosecution rested its entire case on the evidence of P.W.5; that according to the prosecution, the occurrence has taken place on the night hours of 12.8.2005; that according to P.W.5, he has actually witnessed the entire occurrence, but he ran away from the place of occurrence; that he has not even whispered about the occurrence to his family members, but he has come forward to give statement to the police after 4 months, namely only on 08.12.2005; that in the instant case, statement of P.W.5 under Section 164 Cr.P.C. was recorded by P.W.2, the Judicial Magistrate, which was marked as Ex.P.4; that when Ex.P.4 was looked into, P.W.5 has given a statement to the effect that A-1 attacked the deceased with the bottle and not with the cricket bat; that he has developed his evidence https://hcservices.ecourts.gov.in/hcservices/ before the court as if A-1 attacked the deceased with the cricket bat and thus, there was a thorough inconsistent in his statements and that, for these two reasons, the evidence of P.W.5 should have been rejected by the trial court. 6.Added further the learned counsel that barring the evidence of P.W.5, the prosecution rested its case on the evidence of P.Ws.1 and 4; that the occurrence has taken place on 12.8.2005; that A-1 and A-2 came to the house of the deceased and also took him in the TVS 50 and thereafter, the deceased did not come; that P.Ws.1 and 4 went to the house of A-1 and found all of them, namely A-1, A-2 and the deceased were taking liquor and that they came back; that thereafter, she has not made any attempt or taken steps to search for her husband nor has she given complaint to the police for a period of 4 days; that it is highly improbable; that it is pertinent to point out that after the dead body was found in the Well, P.W.1 went to the police station and gave Ex.P.1, the complaint and that in order to wreak vengeance against A-1 and A-2, their names have been included in Ex.P.1, the complaint. 7.The learned counsel would further add that in the instant case, it is the evidence of P.W.20, the Investigating Officer that the dead body was found in the common well; that it is true, it belonged to A-1, but it also belonged to 2 or 3 other persons; that it was a common well and it was under use; that if to be so, the dead body could not have been allowed to be inside for a period of 4 days and it should have been noticed by the other co-owners and they would have brought the same to the notice of the police or others, but not done so; that this would go to show that the dead body was found in the well and the police could not ascertain the assailants and they roped the accused persons falsely and P.W.1 has given a false complaint as if it was the act of the accused and for that purpose, they have taken P.W.5 as a witness in order to strengthen the case of the prosecution, but in vain and under these circumstances, the prosecution has miserably failed to prove its case and hence they are entitled for acquittal in the hands of this court. 8.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 9.It is not in controversy that the dead body of Barathamannan, the husband of P.W.1, was found in the Well and when the dead body was taken out by the fire squad, it was ascertained that it was the husband of P.W.1. On the complaint given by P.W.1, a case came to be registered by P.W.20 under Sections 302 and 201 IPC. Following the inquest made by the Investigating Officer, the dead body was subjected to post-mortem by P.W.3, the Doctor, who has given his opinion before the court as a witness and also through the post-mortem certificate that the deceased would appear to have died of head injury. Thus, the fact that the deceased died out of homicidal violence was never questioned by the appellants before the trial court and hence without any impediment, it can be recorded so. https://hcservices.ecourts.gov.in/hcservices/ 10.In order to substantiate the act of the accused, the prosecution rested its case both on the direct evidence by marching P.W.5 and also by two main circumstances. As rightly pointed out by the learned counsel for the appellants, the trial court should have rejected the testimony of P.W.5, the so-called eyewitness for two reasons. Firstly, the occurrence has taken place on 12.8.2005. P.W.5 claimed before the trial court that he witnessed the occurrence. Had it been true, one would expect naturally and that should be the reasonable conduct of a prudent person under such situation to speak about the said incident. P.W.5, contrarily, has not even whispered to anybody including his family members about the incident for a period of 4 months. For the first time, the statement of P.W.5 was recorded only on 08.12.2005. This silence of P.W.5 would cast a doubt whether he could have seen the occurrence at all. The added circumstance, which in the mind of the court, was the discrepancy found in Ex.P.4, the statement of P.W.5 before P.W.2, the Judicial Magistrate under Section 164 Cr.P.C. and the evidence recorded before the trial court. A perusal of Ex.P.4, the statement recorded by P.W.2, the Judicial Magistrate, would indicate that P.W.5 has stated that A-1 attacked the deceased with bottle, but at the time of evidence before the court, he has stated that A-1 attacked the deceased with the cricket bat. This discrepancy would clearly go to the root of the matter and also cast a doubt whether P.W.5 could have seen the occurrence at all. Hence the trial court should have rejected the testimony of P.W.5, but has failed to do so. 11.However, the court is of the considered opinion after careful scrutiny of the records available and the evidence adduced before the trial court that the prosecution was able to bring home the guilt of the accused by placing and proving two circumstances. From the evidence of P.Ws.1 and 4, it would be quite clear that on 12.8.2005, A-1 and A-2 came to the house of the deceased and took him in the TVS-50 and after some time, both P.Ws.1 and 4 went to the house of A-1 and found all the three, namely A-1, A-2 and the deceased taking liquor and both the accused and the deceased uttered that she may go back and the deceased would be coming back. But, thereafter, the deceased did not come back at all. Thus, it would be quite clear that P.Ws.1 and 4 have seen the deceased in the company of A-1 and A-2 on the night of 12.8.2005, on which night the occurrence has taken place. The second circumstance is that the dead body was found in the common well, which belonged to the accused and also two others. The fact that the dead body was found in the Well, which belonged to the accused also, in the considered opinion of the court would be pointing to the nexus of the accused with the crime. It is only for the first accused to explain as to how the dead body of the deceased happened to be in the Well. It could be further stated that the said fact could be only within the special knowledge of the first accused, who alone could explain the same, but he had no explanation to offer. In a given case where the prosecution rested its case on circumstantial evidence and the particular circumstance is well within the special knowledge of the accused, it is for him to explain that circumstance and to come with truth. If he suppressed the circumstance or came with false explanation, the court can infer that he is involved in the crime. In the instant case, so long as the accused was unable to explain as to how the dead body of the deceased was found https://hcservices.ecourts.gov.in/hcservices/ in the Well, which belonged to the first accused, it could be easily inferred that he has kept an hand and had a role to play in the crime committed. This circumstance coupled with the last seen theory spoken by P.Ws.1 and 4, in the considered opinion of the court, would be sufficient pointing to the guilt of A-1 and A-2 in the crime in question. This court is not unmindful of caution made by the Apex Court and also settled proposition of law that in a given case where the prosecution rested its case on circumstantial evidence, it must place and prove necessary circumstances pointing to the hypothesis that except the accused no one could have committed the offence. The above circumstances, which were placed and proved by the prosecution, in the considered opinion of the court would be sufficient pointing to the guilt of the accused. Thus, the prosecution has proved the fact that it was these accused who attacked the deceased and caused his death and threw the dead body into the Well. The contentions put forth by the learned counsel for the appellants in this regard, on the face of such evidence as narrated above, cannot be countenanced. 12.So far as the second line of argument is concerned, even as per the evidence adduced by the prosecution, all were in drunken mood and the deceased was actually uttering filthy language and there was a quarrel and being provoked by the filthy language, A-1 attacked the deceased with the cricket bat, which was facilitated by A-2. Under these circumstances, the act of the accused cannot be termed as murder, but it would come within the exceptions of murder. Hence the act of the first accused would attract the penal provision of Section 304(I) IPC and awarding punishment of 7 years R.I. would meet the ends of justice. So far as A-2 is concerned, pending appeal he died and hence the appeal in his regard becomes abated. 13.Accordingly, the conviction and sentence imposed on A-1 under Section 302 IPC is modified and instead, A-1 is convicted under Section 304(I) IPC and sentenced to undergo 7 years R.I. The fine amount and default sentence imposed on A-1 under Section 302 IPC will hold good. The conviction and sentence imposed on A-1 under Section 201 IPC are confirmed. The period of sentence already undergone by A-1 is ordered to be given set off. Both the sentences are ordered to run concurrently. Accordingly, this criminal appeal is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk https://hcservices.ecourts.gov.in/hcservices/ To 1.The Additional District and Sessions Judge, Fast Track Court No.1, Coimbatore. 2.The Principal District and Sessions Judge, Coimbatore . 3.The Judicial Magistrate No.II, Pollachi. 4.-do- thro' The Chief Judicial Magistrate,Coimbatore. 5.The Superintendent Central Prison, Coimbatore. 6.The District Collector, Coimbatore. 7.The Director General of Police,Mylapore, Chennai-4. 8.Inspector of Police, Pollachi Police Station (West) Coimbatore District. 9.The Public Prosecutor, High Court, Madras. 10.The Section Officer, Criminal Section, High Court of Madras, Madras. RJ (CO) km/20.1. CRL.A.NO.288 OF 2008 https://hcservices.ecourts.gov.in/hcservices/