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CHIDAMBARA KANNAN versus STATE REPRESENTED BY THE

High Court of Madras

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Chidambara Kannan v. State represented by the - Criminal Appeal(MD)Nos.159 of 1999, [2007] RD-TN 2120 (29 June 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 29/06/2007

CORAM:

THE HONOURABLE MR.JUSTICE D.MURUGESAN

and

THE HONOURABLE MR.JUSTICE P.MURGESEN

Criminal Appeal(MD)Nos.159 of 1999,

Criminal Appeal(MD)Nos.205, 220, 267 & 540 of 1999 1.Chidambara Kannan ... Appellant in Crl.A.No.159 of 1999 2.Balan ... Appellant in Crl.A.No.205 of 1999 3.Moorthy

4.Pandiarajan ... Appellants in Crl.A.No.220 of 1999 5.Balan ... Appellant in Crl.A.No.267 of 1999 6.R.Pandi ... Appellant in Crl.A.No.540 of 1999 vs.

State represented by the

Inspector of Police,

J1, Sellur Police Station,

Madurai. ... Respondent in all the appeals Prayer

Criminal appeals have been filed under Section 374 Cr.P.C., against the judgment dated 25.01.1999 passed in S.C.No.178 of 1996 by the learned II-Additional Sessions Judge, Madurai.

For Appellant in

Crl.A.No.159/1999 ... Mr.N.Mohideen Basha For Appellant in

Crl.A.No.205/1999 ... Mr.C.Godwin For Appellants in

Crl.A.No.220/1999 ... Mr.K.Jegannathan For Appellant in

Crl.A.No.267/1999 ... Mr.C.Godwin For Appellant in

Crl.A.No.540/1999 ... Mr.M.Chinnaswamy

For Respondent in ... Mr.M.Daniel Manoharan, all the appeals Additional Public Prosecutor

:COMMON JUDGMENT



(Judgment of the Court was delivered by P.MURGESEN, J)

These criminal appeals have been preferred against the judgment dated 25.01.1999 passed in S.C.No.178 of 1996 by the learned II-Additional Sessions Judge, Madurai. The Crl.A.No.159 of 1999 is by accused No.4; Crl.A.No.205 of 1999 is by accused No.5; Crl.A.No.220 of 1999 is by accused Nos.1 & 2; Crl.A.No.267 of 1999 is by accused No.6 and Crl.A.No.540 of 1999 is by accused No.3.

2. The prosecution case is briefly as follows: (a)PW-3 is a resident of Pakkiyanathapuram, AK.K. Thankgamani Nagar. PW-3 is the husband of PW-4. PW-5 is the son of PWs.3 & 4. The deceased Raja @ Elayaraja was another son of Pws.3 & 4. The deceased Elayaraja was in love with one girl by name Agalya (PW-6) and he had tattooed her name on his body. The accused are the friends of the deceased Elayaraja. Just few days before the death of Elayaraja, Elayaraja informed his father and mother that he proposed to go to Tiruppur. The mother advised him to take clothes, but he refused to take clothes. PW-1 solaiyappan is a resident of Ththaneri and he is a painter by profession. On 05.05.1995 at 11.30 hours he went to vaigai river and saw a dead body in a decomposed stage. So he gave a complaint, Ex.P1 to PW-11, the Sub-Inspector of Police, attached to Sellur Police Station. After receiving the same, PW-11 registered a case in Crime No.681 of 1995 under Section 174 Cr.P.C. The FIR is marked as Ex.P15.

(b) Then, on the same day, at 14.15 hours he rushed to the spot where the body of the deceased was found and in the presence of panchayators, conducted inquest over the dead body. Inquest report is marked as Ex.P17. Then, he sent the body for post-mortem to the Hospital. Ex.P19 is the Requisition Letter given by the PW11 to the Doctor. He prepared Observation Mahazar, Ex.P2 and Rough Sketch, Ex.P16. Then, he caused the publication of the photograph of the dead body along with identification marks in the news paper. (c) The father of the Elayaraja saw the newspaper and came to know that a dead body with the tattooed name of Agalaya in the mortuary. So, he rushed to mortuary along with PW-4. He found that the deceased was his son. Then, he gave a complaint, Ex.P3 to the effect that all the accused had murdered his son. This was also received by PW-11. Then, he altered the offences into 147, 148, 302 and 201 IPC and sent altered First Information Report, Ex.P18, to the Judicial Magistrate and Superior Officers and recorded the statement of witnesses. Thereafter the investigation in the case was taken over by P.W.13, the Inspector of Police. PW-12, Doctor attached to Madurai Medical College Hospital, conducted post-mortem over the dead body of the deceased. Post- morterm report is marked as Ex.P-20.

(d) On 09.05.1995 PW-7, Village Administrative Officer was present in his house in Door No.184-A, opposite to ESI Hospital. At about 2.00 clock 5th accused, Balan, appeared before him and gave a confession statement to the effect that he murdered Elayaraja along with other accused in the Vaigai river and buried him. He recorded the confession statement of accused No.5, Ex.P4 and prepared a report, Ex.P5 and on the same day, he handed over accused No.5 and Exs.P4 & P5 to PW13, the Inspector of Police. On the basis of confession statement, PW-13 at about 16.30 hours recovered MO.1, knife in the presence of PW-7 under Ex.P-6. On the same day at 17.45 hours, he arrested the first accused, Moorthy and one Jayaraman in Annathoppu Puttuthoppu Mandabam and recorded their confession statement. Ex.P8 is the admitted portion of the confession statement given by the first accused. On the basis of his confession statement, he recovered Mos.4 & 5, Bloodstained Clothes in the presence of witnesses. On 10.05.1995 at about 05.30 a.m. he arrested the accused Chithambar Kannan (A4), Pandiyarajan (A2), Pandi(A3) in the Vaigai river near the Gandhi statue and at 18.00 hours he arrested 6th accused, Balan in Jaihindupuram Bharathi Road. On 21.07.1995 PW-14, Inspector of Police, took up the investigation and sent a Requisition Letter Ex.P10 to PW10, Subramaniam who was working under Judicial Magistrate No.II, Madurai, for sending material objects to the Forensic Lab. The Chemical Analysis Report is marked as Ex.P-12. PW-14 after completing the investigation, filed charge sheet against the accused before the Magistrate Court.

3. Before the trial Court PWs-1 to 14 were examined and P-1 to P-22 and MOs.1 to 9 were marked. When the accused questioned under Section 313 of the Code of Criminal Procedure Code, they denied their complicity in the crimes and claimed to be tried. No oral and documentary evidence has been filed on the side of the accused.

4. On consideration of oral and documentary evidence, the trial Court found the accused guilty under Section 147 IPC and sentenced them to undergo two years rigorous imprisonment; under Section 302 r/w 149 IPC and sentenced them to undergo life imprisonment and imposed a fine of Rs.1,000/- each and in default to undergo one year rigorous imprisonment and under Section 201 r/w 149 IPC and sentenced them to undergo seven years rigorous imprisonment and imposed a fine of Rs.1,000/- each and in default to undergo one year rigorous imprisonment.

5. Challenging the judgment of the trial Court, these appeals have been filed.

6. Point for Determination:

Whether the prosecution has proved its case beyond reasonable doubt?

Point:

7. P.W.3, is the father of deceased Elayaraja, Palpandi (PW5) and the husband of PW4. The accused are the friends of the deceased Elayaraja. Elayaja was an unemployed youth. He used to quarrel with his friends i.e. the accused, frequently. Just few days prior to his death, he informed his parents that he would proceed to Tiruppur along with his friends viz., the accused. After few days, PW-1 Solaiyappan went to the river Vaigai and found a body. Then, he gave a complaint to PW-11, the Sub-Inspector of Police attached to Sellur Police Station. Then, the Police registered a case and took up the investigation. On the dead body, the name of one Agalya (P.W.6) was tattooed. The Police published about this news in the News Paper.

8. On seeing the paper, PW3 proceeded to Hospital along with his wife PW-4. They saw the dead body and found that it is their son, Elayaraja and thereafter PW-3 gave a complaint to PW-11, the Police Officer to the effect that all the accused murdered his son. Then, PW-13 sent the dead body of Elayaraja to postmortem under Ex.P-19, Requisition Letter. On receiving Ex.P-19, PW-12, Doctor, has conducted Postmortem on the dead body of deceased Elayaraja. He found the following injuries:

"1. An oblique stab injury back of right side of the abdomen 4.5 cms. X 1 cm x entering the abdominal cavity. On dissection: the wound passes obliquely downwards and inwards piercing the liver 3cms x linear x 2.5 cms and ends as a point.

2. An Oblique stab injury back of right side of the abdomen 3.5cms below the previous wound measuring 5 cms x 5 cm, passes obliquely downwards and inwards piercing the underlying muscles and upper police of the right kidney 2 cms x linear x 1 cm and ends as a point. Retroperitoneal area contains 400 gms of blood clots.

3. An oblique stab injury back of right side abdomen 4.5 cms x .25 cm x entering the abdominal cavity 1.5 cm below the previous wound, passing obliquely downwards and inwards cutting the underlying muscles and cutting the outer border of the right kidney in the middle for a distance of 3.5 cms x linear x 2 cms and ends as a point.

4. An oblique stab injury on the right buttocks in the lower glutial fold 4.5cms x linear x 5.5 cm depth and ends as a point cutting the underlying muscles obliquely forwards and inwards; surrounding area contains full of extra vasated blood clots.

5. An oblique stab injury left side back of chest 4.5 cm x .25 and entering into the thoracic cavity passing along the 7th intercostal space and piercing the left lung measuring 3.5 cms x linear x 4.5 cms and ends as a point. Lungs found to be collapsed.

6. An oblique stab injury back of left side of the abdomen close to the midline measuring 4.5 cms x linear x entering the abdominal cavity passing obliquely downwards. On dissection: the wound passes obliquely inside cutting the muscles and small intestine in 2 places through which intestinal contents are oozing out measuring 1 cm x linear x through and through separated from 100 cms and 125 cms from the ilio-caecal junction.

7. An oblique stab injury left side back of abdomen measuring 5 cms x linear x 8.5 cm passing obliquely downwards and inwards cutting the left kidney into two in the lower pole; surrounding area contains full of extravasated blood clots. Retro peritoneal area contains 250 gms of blood clots.

8. An oblique stab injury on the back of outer side of the left upper thigh measuring 5 x .5 cm x 8.5 cms passing along the muscle plane and ends as a point.

All the stab injuries are having regular margins and pointed ends.

9. An oblique cut injury left temporal area 8 x .5 cm x bone deep obliquely downwards cutting the temporal bone for a distance of 4 cms with extension of the fracture anteriorly and posteriorly each 3 cms; surrounding area contains full of extravasated blood clots.

10. Incised wound above downwards on the left cheek below eye 6 x .5 cm x bone deep; skin flap tailing for 1 cm downwards.

11. Incised wound on the left lower jaw 12 x .5 cm muscle deep tailing for 1 cm downwards.

On bloodless dissection of the neck and on opening the thorax:

12. Neck reveals blood clots and laceration of ribbon group of muscles and fracture of hyoid bone with greater horns from the body with bruising of surrounding area.

13. Contusion of the chest with fracture of ribs 2, 3, 4 on left side and 2 to 5 on right side close to the costochondral junction and fracture body of sternum. All the fractured sites contained blood clots and laceration of lungs both sides - right side 3 and left side 2 in number, measuring 2 cms x .5 cm x 1 cm; Lungs found to be collapsed.

Pleural cavity contains 200 gms of blood clots each side. Pelvic cavity contains 300 gms of blood clots with intestinal contents." Post-mortem report is marked as Ex.P-20. From the evidence of the Post-mortem Doctor coupled with Ex.P-20, it is clear that the death of Elayaraja was not natural, but it was a homicidal death.

9. The prosecution relied on two grounds namely last seen theory and confession statement of accused No.5 to P.W.7, the Village Administrative Officer, to prove its case which were accepted by the trial Court. (i)Last seen theory:

10. PW-3 has spoke that his son was sent with his friends i.e. accused, to Tiruppur. Though, PW-5 who is the brother of the deceased Elayaraja, claimed in the chief examination that he saw the accused with his brother and he spoke with them, but in the cross-examination he admitted that he saw them from the riverbed situated at Teachers Colony. So he is not definite about the presence of the other accused with his brother. On careful scrutiny of his evidence, it is clear that his evidence as to last seen theory is not clinching.

11. PWs-3 & 4, who are the parents of the deceased also did not say that the accused had grudge against their son, viz., the deceased. There was a quarrel between the friends. Naturally the friends may quarrel for any reason and they were advised by PWs-3 & 4, to be friendly. PWs 3 & 4 have not stated that the accused had grudge against the victim. Further, the victim wanted to go to Tiruppur, but he did not take any clothes. This is also weakens the case of the prosecution. Naturally, whoever leaving from one place to some other place, will take some clothes. But the theory of the prosecution that the victim proceeded to Tiruppur without taking any clothes with his friends is highly artificial.

12. The last seen theory as projected by the prosecution was not established the manner known to law. This Court is of the considered view that this theory based upon the evidence of prosecution witnesses is not proved. (ii) The confession statement given by the accused No.5 to PW-7:

13. PW-7 was the Village Administrative Officer. He claimed that on 09.05.1995 at about 2.00 clock, the accused No.5 appeared before him and gave a confession

statement, Ex.P4, then he prepared report Ex.P5 and proceeded to Police Station and handed over accused No.5 and Ex.P4 & P5. Then the wheel of the criminal law was set in motion and the Inspector took up the case for investigation and arrested all the accused. A thorough scrutiny of evidence of PW-7 would go to show that the alleged confession of accused No.5 cannot be true. First, the body of the victim was found on 05.05.1995 and confession of 5th accused recorded on 09.05.1995. As per Rule, whenever a crime is reported or accused gave confession, the Village Administrative Officer must prepare three copies of the confession statement of the accused and he must sent one copy to the Revenue Divisional Officer, another to the Judicial Magistrate. Even though PW-7 knew the procedure, he did not follow the same. This also shakes the root of the prosecution case.

14. In the chief examination, PW-7, VAO, has stated that the 5th accused gave his confession and the same was prepared by him in his house, but in his cross-examination, he admitted that Exs.P4 & P5 were written in the Police Station and it was written by a Police Officer. So it is clear that Exs.P4 & P5 are not written in the house of the VAO and they were created in the Police Station. When it is clear that Exs.P4 & P5 created in the Police Station, the case of the prosecution falls to ground.

15. Further, reason to reject the case of the prosecution is that PW3 gave a complaint to the Police on 06.05.1995. In the cross-examination he stated that when he went to the Police Station, he found all the accused there. Such evidence is confirmed by PW-5 also. So it is clear that on 06.05.1995 all the accused are in the custody of the Police officer. PW-3 gave a complaint charging all the accused by name, but in the cross-examination he admitted that the names of the accused were given to him by the Police Inspector. So it is clear that PW-3 gave a complaint on the direction of the Police Inspector and the names of the accused were included in the complaint given by him.

16. Since all the accused were in the custody of the Police and the complaint was given on the direction of the Police Inspector, it losses its value and it cannot be acted upon. Further, one more interesting aspect is that in the complaint the name of all the accused were found and the accused were also in the Police Station, but the Inspector of Police did not take action to arrest them then and there. On the other hand, the prosecution has relied on the evidence of PW-8, Karuppaiah to prove the case of arrest of accused and recovery. PW-8 spoke about the case of arrest and recovery as stated by the Police Inspector. The knife was recovered as per the case of the prosecution, but the knife was not sent to the Forensic lab and the witnesses also are not able to speak about the use of the knife by the accused. So it is clear that the case of recovery is not correct. The alleged confession of the accused No.5 to PW7 is not true. So the case of recovery also is not true as the evidence of PW-8 is artificial and falls to ground.

17. In these backdrop of the case, it is evident that Ex.P3 cannot be true because of the presence of accused in the Police Station even before lodging of the complainant by PW-3. At this juncture, it is clear that the prosecution cannot be true.

18. Next, Investigating Officer also is not able to say that the accused are dangerous people and they are the responsible for the death to the deceased. Further, there is a alteration of time in the report given by the Village Administrative Officer and the FIR has reached belatedly to the concerned Court. The prosecution is unable to give any explanation for the despatch of the FIR at the belated stage. This also weakens the case of the prosecution.

19. On a careful consideration of evidence, we find that the evidence of prosecution witnesses are not trustworthy. The prosecution stands on a quicksand and it is bound to fall for the reasons stated above. The prosecution has failed to prove its case against the accused and therefore, the appellants/accused are entitled for acquittal.

20. Accordingly, these appeals are allowed. The conviction and sentence passed by the trial Court are set aside and the appellants are acquitted of the charges leveled against them. It is reported that the appellants are on bail. Hence, the bail bonds executed by them shall stand terminated. Fine amount paid by them shall be refunded. gcg

To

1.The II-Additional Sessions Judge,

Madurai.

2.The Inspector of Police,

J1, Sellur Police Station,

Madurai.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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