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PANDIYARAJAN & OTHERS V/S GAJENDRAN , decided on Wednesday, February 20, 2008.
[ In the Before the Madurai Bench of Madras High Court, CRL.A.(MD) Nos.407 and 477 of 2007 . ] 20/02/2008
Judge(s) : M. CHOCKALINGAM & S. PALANIVELU
Advocate(s) : K. Jeganathan, Veerakathiravan. P.N. Pandithurai Additional Public Prosecutor.
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    Criminal Procedure Code - Section 378 - Appeal against acquittal - Appreciation of evidence ? Circumstantial evidence - Offence under Sections 302 read with 34 and 201 404 of IPC - As far as A-1 was concerned there is evidence of P.Ws.2 and 6 and also P.W.20. According to them on 11.8.2004 in the noon hours A-1 came over and there was a wordy altercation between A-1 and the deceased in respect of the demand of money and A-1 informed her that he will take her to the temple and if she makes assurance before the deity he is ready to pay the amount. P.Ws.2 6 and 20 have witnessed A-1 taking the deceased to the temple in the vehicle. Thereafter the deceased did not return home till the dead body was found - The next circumstance was the extra-judicial concession which was made by A-1 before P.W.1 the V.A.O - P.W.1 is an independent witness and he is the V.A.O. of that place. At the time when he deposed before the Court he has already retired from service and therefore he was not under any compelled circumstance to speak in favour of the prosecution. There is nothing to show that at any point of time he is ever inimical to the accused and hence he has deposed before the Court that A-1 appeared before him and gave a confessional statement; that it was recorded by him and then he was taken to the Police Officer to whom he gave a confessional statement; and that the same was also recorded. Following the same A-1 has also produced M.Os.4 5 and 6 which were identified by him. It is pertinent to point out that the vehicle namely TVS 50 XL in which A-1 had taken the deceased was identified by him and it has also been recovered. This Court is of the considered opinion that the above circumstances would suffice to indicate the complicity of A-1 in the crime - As regards A-2 the strong circumstance according to the prosecution was the recovery of the jewels of the lady which were marked as M.Os.8 and 9 the gold chain and gold stud respectively. P.W.9 is the pawn broker from whom a chit has also been recovered. According to P.W.9 it was pledged for Rs.7 000/-; but the amount found in the chit is only Rs.1 000/-. That apart the person who pledged the same was not A-2; but it is found to be his wife. Under the circumstances the evidence what is available to that extent cannot be accepted for the purpose of finding A-2 guilty. It is true that P.W.9 was in possession of the jewels which were actually identified by P.W.2 that it belonged to the deceased. P.W.9 would say that it was pledged through the wife of A-2. As far as that evidence was concerned A-2 had no explanation to offer; but at the same time there is no nexus in order to find him guilty as per the charge of murder or abetment or he had conspiracy to hatch up. To that extent it can be held so. Though not the charge of murder is proved at the best he could be found guilty under Sec.414 of IPC for assisting in concealment of stolen property and hence A-2 has got to be convicted so. For this 3 years Rigorous Imprisonment would meet the ends of justice - As far as A-3 was concerned the evidence produced by the prosecution was too flimsy and there is no connecting link at all. A-3 has got nothing to do with the offence and there is nothing to indicate that he was found in the company of the deceased. Hence A-3 has got to be acquitted of all the charges levelled against him.Para 12 to 15(DB)Indian Penal Code 1860 ? Section 302 304(i) ? Nature of the act of accused - Even according to P.W.2 and also P.W.5 there was a wordy altercation between the deceased and A-1 during the noon hours and at that time when she was demanding money A-1 replied that he had no money to pay and the deceased told him ?if you do not have any money you can hire your wife and bring money?. Quite natural one would be provoked by the same. The occurrence has taken place within a few hours and there is all possibility for sustained provocation and by that A-1 has acted so. In such circumstances the act of A-1 cannot be termed as one of murder. But it would attract the penal provisions of Sec.304(Part I) of IPC and awarding punishment of 7 years Rigorous Imprisonment would meet the ends of justice in the opinion of the Court. Para 16(DB)     (Criminal appeals preferred under Sec.378 of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge Ramanathapuram made in S.C.No.99 of 2006 dated 31.7.2007.)Common JudgmentM. Chockalingam J.This judgment shall govern these two appeals in C.A.Nos.407 and 477 of 2007. The former is brought forth by A-1 and A-2 while the latter is filed by A-3.2. All these three appellants stood charged under Sections 120-B 302 read with 34 404 and 201 of IPC. On trial A-1 to A-3 were found guilty under Sections 302 read with 34 and 201 of IPC and A-2 was found guilty under Sec.404 of IPC. In respect of charges under Sec.120-B of IPC against A-1 to A-3 and under Sec.404 of IPC against A-1 and A-3 they were acquitted. A-1 to A-3 were awarded life imprisonment along with a fine of Rs.1 000/- and default sentence under Sec.302 read with 34 of IPC and A-2 was awarded three years Rigorous Imprisonment along with a fine of Rs.500/- and default sentence under Sec.404 of IPC. Hence these appeals have been brought forth by the appellants.3. The short facts necessary for the disposal of these appeals can be stated as follows:(a) P.W.2 is the son of P.W.20. P.W.21 is the brother-in-law of P.W.2. The deceased Vasantha was the sister of P.W.20. The deceased had no issues. She brought up P.W.2. A-1 had financial transactions with the deceased and in that account he was to pay Rs.20 000/-. There was an occasion in which she abused A-1 on a particular day which was witnessed by P.W.5. On the date of occurrence i.e. 11.8.2004 A-1 came to the house of the deceased and following a wordy quarrel A-1 informed her that she must make assurance before the deity at Muniappa Temple and then only he will be ready to make the payment. So saying he took her in the TVS 50 XL and this was witnessed by P.W.2 and also by P.W.6. Some time later P.W.6 found A-1 alone returning with the TVS 50 XL and also taking A-2 and A-3. All of them went together and this was witnessed by P.W.20 also. (b) P.W.1 is the Village Administrative Officer (V.A.O.) of Pattanakathan Group. At that time on 14.8.2004 when he was at Seethakadhi Stadium he was informed at about 6.30 p.m. by the village assistant one Ramesh that on the field side of Pattanakathan Village a dead body of a female was found. Immediately he proceeded to the place along with him and after seeing the dead body he proceeded to Kenikkarai Police Station the respondent herein. He gave a complaint to P.W.22 the Sub Inspector of Police under Ex.P1 on the strength of which a case came to be registered in Crime No.429 of 2004 under Sec.174 of Cr.P.C. Ex.P25 the printed FIR was despatched to the Court.(c) P.W.23 the Inspector of Police of that Circle on receipt of the copy of the FIR took up investigation proceeded to the spot made an inspection and prepared an observation mahazar Ex.P2 and a rough sketch Ex.P40. He also conducted inquest on the dead body of Vasantha in the presence of witnesses and panchayatdars and prepared Ex.P39 the inquest report. Following the same the dead body was sent to the Government Hospital along with a requisition for the purpose of autopsy.(d) P.W.16 the Assistant Surgeon attached to the Government Head Quarters Hospital Ramanathapuram on receipt of the requisition conducted autopsy on the dead body of Vasantha and has issued a postmortem certificate Ex.P16 with his opinion that the deceased died due to the burn injuries sustained by her. (e) The Investigator examined the witnesses and recorded their statements. Further on 15.8.2004 at about 3.00 p.m. when P.W.1 the V.A.O. was in his office A-1 appeared before him and made a confession which was recorded. Immediately A-1 was produced before the Investigator and he also gave a confessional statement which was recorded in the presence of witnesses. The admissible part of the said statement is marked as Ex.P7. Following the same A-1 identified A-3. A-3 also gave a confessional statement in the presence of witnesses which was recorded. The admissible part is Ex.P8. Following the same A-1 and A-3 took the Investigator to a bush and produced a plastic bottle M.O.4 false hair M.O.5 and a kerchief M.O.6 which were recovered under a cover of mahazar Ex.P9 in the presence of witnesses. Both A-1 and A-3 identified A-2. A-2 also gave a confessional statement. The admissible part is marked as Ex.P10. Then he took the Investigator to P.W.9 from whom M.O.8 a gold chain and M.O.9 a pair of gold stud were recovered under a cover of mahazar Ex.P13 since they were pledged with him by A-2. Thereafter P.W.9 took the Investigator to the STD Booth where from he produced M.O.12 pledge chit which was recovered. Then A-1 took the Investigator and produced M.O.10 TVS 50 XL which was recovered under a cover of mahazar Ex.P14. Following the same all were sent for judicial remand. (f) The Investigator altered the case to Sections 302 and 379 read with 201 of IPC and the express report Ex.P26 was sent to the Court. The material objects recovered from the place of occurrence from the dead body and from the accused pursuant to the confessional statements were subjected to chemical analysis which resulted in Exs.P19 P21 and P23 the Chemical Analysts reports and Ex.P22 the Serologists report. On completion of investigation the Investigator filed the final report.4. The case was committed to Court of Sessions and necessary charges were framed. In order to substantiate the charges the prosecution examined 23 witnesses and also relied on 40 exhibits and 13 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. They denied them as false. No defence witness was examined. The trial Court heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt in respect of the murder and also screening evidence and not in other respects. Accordingly the Court below found them guilty and sentenced them to imprisonment which is the subject matter of challenge before this Court.5. Advancing arguments on behalf of the appellants the learned Counsel made the following submissions:(i) In the instant case the prosecution had no direct evidence to offer. The circumstances relied on by the prosecution were very feeble and very weak. Even the circumstances placed were not proved by the prosecution pointing to the complicity of the appellants. (ii) P.Ws.2 and 6 according to the prosecution saw A-1 taking her to Muniappa Temple on 11.8.2004 and thereafter she did not return. But the dead body was found only on 14.8.2004 and in between there were two intervening days. Thus evidence is available to show that it came to the knowledge of the witnesses earlier. In the instant case the prosecution has come forward with a false story to state that this was brought to the notice of P.W.1 the V.A.O. by A-1 and thereafter he went to the police station and gave a complaint on the next day as if A-1 appeared before him and gave an extra-judicial confession. All the available materials are actually prepared by the Police Officer in the Police Station itself and both these persons namely P.W.1 the V.A.O. and his Assistant Ramesh have signed the papers which would be indicative of the fact that the investigation was not at all done. All the records were prepared in the Police station and hence that would suffice to reject the prosecution case. (iii) Apart from the above even assuming that P.Ws.2 6 and 20 have witnessed A-1 taking the lady that was on 11.8.2004 the dead body was found after a few days and a complaint was also given. Merely because of the reason that A-1 took her to the temple on that day it would not mean that he was responsible for the death. (iv) It is true that the vehicle belonged to A-1. But this vehicle was neither identified nor recovered on confession. All these confessional statements were prepared by the Police Personnel for the purpose of strengthening the prosecution case. Mere signing of all the papers by P.W.1 and his assistant Ramesh would suffice to reject the same.6. Added further the learned Counsel that in the instant case as far as A-2 was concerned some of the documents were recovered as if they were chits for pledge; that a perusal of the same would clearly indicate that it cannot be a one which was maintained by the Pawn Broker; that it was actually not pledged by him; that even according to P.W.9 it was pledged by the wife of A-2 and not by A-2; that P.W.9 would say that the pledge amount was Rs.7 000/-; but as per the chit it was only Rs.1 000/-; that all these details would go to show that it is not a proof at all; and that as far as A-2 was concerned there is nothing to connect him with the crime in question.7. It is further contended by the learned Counsel that as regards A-3 according to the prosecution A-2 and A-3 accompanied A-1 and they were found in the company of the deceased; that as far as A-3 was concerned he along with A-1 produced M.Os.4 to 6 and the witnesses are exactly the same; that all would go to show that A-2 and A-3 have no nexus to the crime and hence they are entitled for acquittal in the hands of this Court.8. Added further the learned Counsel that even assuming that it was A-1 who caused the death of the lady he has got sufficient provocation to act so; that even as per the evidence during day hours she asked A-1 demanding money; that at that time when he replied that he had no money the deceased appeared to have told him ?you make payment or hire your wife and make payment?; that this gave him provocation which in the ordinary course of things is a sustained one; that because of that he has acted so; that under the circumstances the act of A-1 would not attract the penal provision of murder and hence this legal aspect has got to be considered by this Court.9. The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.10. It is not in controversy that the dead body of Vasantha the sister of P.W.20 was found on the southern field of Pattanakathan Village. Following the inquest made by the Investigator the dead body was subjected to postmortem by P.W.16 the Doctor who has opined that she died out of the burn injuries sustained by her. This fact that she died out of burn injuries was not a subject matter of controversy raised by the appellants before the trial Court and hence without any impediment it could be factually recorded so.11. In order to substantiate the charges levelled against the accused the prosecution had no direct evidence to offer; but it rested its entire case on the circumstantial evidence. The Court is mindful of the caution made by law and the rulings of the Supreme Court that in a given case like this where the prosecution rests its case entirely on the circumstantial evidence the necessary circumstances must be placed thereby making a complete chain without a snap and pointing to the hypothesis that except the accused no one could have committed the offence. In the case on hand the Court has to consider whether the prosecution has placed sufficient circumstances to accept its case. 12. As far as A-1 was concerned there is evidence of P.Ws.2 and 6 and also P.W.20. According to them on 11.8.2004 in the noon hours A-1 came over and there was a wordy altercation between A-1 and the deceased in respect of the demand of money and A-1 informed her that he will take her to the temple and if she makes assurance before the deity he is ready to pay the amount. P.Ws.2 6 and 20 have witnessed A-1 taking the deceased to the temple in the vehicle. Thereafter the deceased did not return home till the dead body was found. 13. The next circumstance was the extra-judicial concession which was made by A-1 before P.W.1 the V.A.O. Before accepting the extra-judicial confession the Court must satisfy whether the evidence of the person to whom the extra-judicial confession is made inspires the confidence of the Court. In this case P.W.1 is an independent witness and he is the V.A.O. of that place. At the time when he deposed before the Court he has already retired from service and therefore he was not under any compelled circumstance to speak in favour of the prosecution. There is nothing to show that at any point of time he is ever inimical to the accused and hence he has deposed before the Court that A-1 appeared before him and gave a confessional statement; that it was recorded by him and then he was taken to the Police Officer to whom he gave a confessional statement; and that the same was also recorded. Following the same A-1 has also produced M.Os.4 5 and 6 which were identified by him. It is pertinent to point out that the vehicle namely TVS 50 XL in which A-1 had taken the deceased was identified by him and it has also been recovered. This Court is of the considered opinion that the above circumstances would suffice to indicate the complicity of A-1 in the crime.14. As far as A-2 and A-3 are concerned this Court is of the considered opinion that they cannot be found guilty of murder in view of the weak evidence available. As regards A-2 the strong circumstance according to the prosecution was the recovery of the jewels of the lady which were marked as M.Os.8 and 9 the gold chain and gold stud respectively. P.W.9 is the pawn broker from whom a chit has also been recovered. According to P.W.9 it was pledged for Rs.7 000/-; but the amount found in the chit is only Rs.1 000/-. That apart the person who pledged the same was not A-2; but it is found to be his wife. Under the circumstances the evidence what is available to that extent cannot be accepted for the purpose of finding A-2 guilty. It is true that P.W.9 was in possession of the jewels which were actually identified by P.W.2 that it belonged to the deceased. P.W.9 would say that it was pledged through the wife of A-2. As far as that evidence was concerned A-2 had no explanation to offer; but at the same time there is no nexus in order to find him guilty as per the charge of murder or abetment or he had conspiracy to hatch up. To that extent it can be held so. Though not the charge of murder is proved at the best he could be found guilty under Sec.414 of IPC for assisting in concealment of stolen property and hence A-2 has got to be convicted so. For this 3 years Rigorous Imprisonment would meet the ends of justice. 15. As far as A-3 was concerned the evidence produced by the prosecution was too flimsy and there is no connecting link at all. A-3 has got nothing to do with the offence and there is nothing to indicate that he was found in the company of the deceased. Hence A-3 has got to be acquitted of all the charges levelled against him.16. As regards the second line of argument advanced by the learned Counsel for A-1 this Court is able to see force in that contention. Even according to P.W.2 and also P.W.5 there was a wordy altercation between the deceased and A-1 during the noon hours and at that time when she was demanding money A-1 replied that he had no money to pay and the deceased told him ?if you do not have any money you can hire your wife and bring money?. Quite natural one would be provoked by the same. The occurrence has taken place within a few hours and there is all possibility for sustained provocation and by that A-1 has acted so. In such circumstances the act of A-1 cannot be termed as one of murder. But it would attract the penal provisions of Sec.304(Part I) of IPC and awarding punishment of 7 years Rigorous Imprisonment would meet the ends of justice in the opinion of the Court. 17. Accordingly the conviction and sentence of life imprisonment imposed on A-1 by the lower Court under Sec.302 read with 34 of IPC are set aside and instead he is convicted under Sec.304(Part I) of IPC and sentenced to undergo seven years Rigorous Imprisonment. The fine amount imposed by the trial Court under Sec.302 read with 34 IPC shall be treated as fine imposed under Sec.304(Part I) of IPC. The conviction and sentence imposed by the trial Court on A-1 under Sec.201 of IPC are confirmed. The sentence already undergone by him is ordered to be given set off. The conviction and sentence imposed on him under Sec.404 of IPC are set aside and he is acquitted of that charge. The fine amounts if any paid by him in that regard will be refunded to him. 18. As regards A-2 the conviction and sentence imposed on him by the lower Court under Sections 302 read with 34 and 201 of IPC are set aside and he is acquitted of that charges. The fine amounts if any paid by him in that regard will be refunded to him. The conviction and sentence imposed on him under Sec.404 of IPC are set aside and instead A-2 is convicted under Sec.414 of IPC and directed to undergo 3 years Rigorous Imprisonment. The sentence already undergone by him is ordered to be given set off. 19. The judgment of conviction and sentence passed by the lower Court in respect of A-3 is set aside and A-3 is acquitted of all the charges levelled against him. The fine amounts if any paid by him will be refunded to him. He is directed to be set at liberty forthwith unless his presence is required in connection with any other case. 20. In the result C.A.No.477 of 2007 is allowed. With the above modification in conviction and sentence C.A.No.407 of 2007 is dismissed.