State, Rep. By Inspector Of Police, T.N vs Subair @ Mohamed Subair & Ors

1. Challenge in this appeal is to the judgment of a Division Bench of the Madras High Court directing acquittal of the respondents. Originally five persons faced trial. The trial Court held the respondents guilty of offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the `IPC'). It however held that the charge levelled against all the five accused persons under Section 120-B, IPC was not established. It also held that the charge against 5th accused under Section 302 read with Section 120B, IPC was not established. The four accused persons preferred appeal before the High court which by the impugned judgment directed their acquittal.

At about 8.15 PM while Raja Shanmugam (PW-22), the Head Constable was on duty in Coimbatore B-1 Bazaar Police Station, on the information given by PW-20, he visited the OP Police Station of the Hospital and received the intimation. He visited the Trauma ward and recorded the statement of the said Veeraganesh and read over the same to him and on his acceptance that it was recorded correct, he got his signature in the statement. The said statement is exhibit P-21. Veeraganesh was in a condition to give the statement at that time. Dr. Jayaprakash (PW-25) who 5 was present with PW-22 at that time gave a certificate to the effect that Veeraganesh was conscious and well oriented at the time of giving the above said statement. The said certificate (Exhibit P-30) is incorporated in Exhibit P-21. PW-22 returned to Police Station at 9.30 PM and registered the case in Cr.No.1027/1989 u/s 307 IPC and sent the FIR along with the complaint to the Chief Judicial Magistrate. He sent the copies of the FIR to the concerned Superior officers. The FIR prepared by him is PW-22.

Chandrasekar (PW-27) was the inspector of Police of B-1 Bazaar PS. He came to the Police station at 21.30 hrs before setting out on night rounds. He came to know of the registration of this case by PW-22. As law and order problem existed at that time within the area under his control, he had to be present in that area in his station limits in view of the same. While leaving the Police Station, he gave instructions to bring the FIR to the SOC and accordingly after attending the law and order situation in his limits, he came to the spot of occurrence in the night at 10.30 PM. The place of occurrence was on the over bridge at Avinashi Road, Head Post office road junction. He observed the scene of occurrence in the presence of PW-5 Krishnan and Anand and prepared the observation mahazar Exhibit P-1. The sketch of the scene is Exhibit P-31. PW-27 seized blood 6 stained earth from the spot of occurrence, the control earth from the spot of occurrence (unstained tar portion of the road), the torn four yard dhoti, currency notes, Hawai chappal and other materials (MOs 5 to 15 mentioned therein) under the cover of mahazar, in the presence of witnesses. After making arrangements to bring a photographer to the spot of occurrence, he visited the Hospital, examined and recorded the statement of Veeraganesh, seized the blood stained shirt, brief worn at the time by Veeraganesh, Exhibit P-16, Exhibit P-17 in the presence of PW-5 and in the presence of Anand under the cover of mahazar. As instructed by PW-27, Johan (PW-26), the photographer, visited the spot of occurrence on 26.08.1989 at 12 p.m and took photographs, which are MOs 19 to 26. The negatives of the said photographs are MOs 27 to 34.

On 29.08.89, as per the information received by him, PW-27 arrested the accused A-1 Zubair, A-2 Mohammed Khan, A-3 Rafi at 12.00 a.m. at Podanur-Pollachi Road Junction at Aathupalam. When he enquired them separately, they gave separate statements, which were recorded. On the basis of these statements recoveries were made.

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7. The High Court highlighted the above said aspects to direct acquittal. We find that the analysis made by the High Court to direct acquittal cannot be faulted. The appeal is without merit and dismissed accordingly.