A. Rajiv Gandhi Vs. State by the Inspector of Police - Court Judgment

SooperKanoon Citationsooperkanoon.com/1178556
CourtChennai High Court
Decided OnFeb-05-2016
Case NumberCRL.A. No. 235 of 2012
JudgeM. Jaichandren &Amp; S. Nagamuthu
AppellantA. Rajiv Gandhi
RespondentState by the Inspector of Police
Excerpt:
(appeal filed u/s.374 [2] cr.p.c., against the judgment in sc.no.425/2007 dated 10.02.2012 on the file of the learned additional district judge, fast track court no.1, chidambaram). s. nagamuthu, j. 1. the appellant is the first accused in sc.no.425/2007 on the file of the learned additional district and sessions judge, fast track court no.1, cuddalore. including the appellant, there were three accused. they stood charged for the offence u/s.302 ipc and the trial court, acquitted a2 and a3 from the above charge and convicted the appellant alone and sentenced him to undergo imprisonment for life and to pay a fine of rs.10,000/-, in default, to undergo rigorous imprisonment for six months. challenging the said conviction and sentence, the appellant is before this court, with this appeal. 2. the case of the prosecution, in brief, is as follows:- [a] the deceased kaliyamoorthy was a resident of thambikunallanpattinam. a1 and a2 are brothers and a3 is the maternal uncle's son of a1 and a2. on 16.08.2007, at about 11.30 a.m., it was alleged that a1 attempted to commit theft which was noticed by the deceased kaliyamoorthy. the deceased reprimanded a1. this is stated to be the motive for the occurrence. it is alleged further that on 18.08.2007 at about 9.30 p.m. when the deceased was at his house, all the accused came to the house and challenged the authority of the deceased to scold a1 on the previous occasion, in connection with the earlier occurrence. this resulted in a wordy altercation. in the said quarrel, it is stated that a1 pushed the deceased on the floor and a2 and a3 stamped him. then, all the accused ran away from the scene of occurrence. the occurrence was allegedly witnessed by p.ws.1 to 3. the deceased was taken to raja muthaiah medical college hospital at annamalai nagar, chidambaram. at about 10.10 p.m., on the same day, dr.sivakannappan [p.w.10] who examined him, found him dead. he recorded the same in the accident register [ex.p.10] and forwarded the body to mortuary. thereafter, he informed the police about the same. [b] p.w.1 is the brother's son of the deceased. after having seen the occurrence, according to him, he also accompanied the deceased to the hospital and after the doctor informed him that the deceased was no more, he went to bhuvanagiri police station and made a complaint under ex.p.1. [c] p.w.14, the then sub inspector of police of bhuvanagiri police station, on receiving the said complaint, registered a case in cr.no.158/2007 for the offence u/s.302 ipc against all the three accused. ex.p.14 is the fir. he forwarded both the documents to the court and handed over the case diary to p.w.15, the inspector of police, for investigation. [d] p.w.15, the then inspector of police attached to bhuvanagiri police station took up the investigation ; proceeded to the scene of occurrence ; prepared the observation mahazar [ex.p.2] in the presence of p.ws.5 and 6 and lso prepared a rough sketch [ex.p.15]. he went to the hospital and held inquest on the dead body of the deceased in the presence of panchayatdars. ex.p.16 is the inquest report. he then sent the dead body for postmortem. [e] p.w.12, dr.raman, conducted autopsy on the body of the deceased on 19.08.2007 at 10.05 a.m. he found that there were no external injuries on the body of the deceased and on opening the skull, he found 15 ml of clotting of blood on the occipital region. he opined that the deceased would appear to have died of shock. ex.p.13 is the postmortem certificate. [f] continuing the investigation, p.w.15, came to know that all the three accused surrendered before the learned judicial magistrate, perambalur on 04.09.2007. he took police custody of the accused and examined them. the accused came forward to give independent, voluntary confession statements, which were marked as exs.p.6 to p.8. on 08.09.2007, the accused were sent for judicial remand. after examining few more witnesses and on completion of the investigation, he laid the charge-sheet against the accused. [g] based on the above materials, the trial court framed charge against the accused persons as detailed in the first paragraph of the judgment. the accused denied the same as false. in order to prove the case on the side of the prosecution, as many as 15 witnesses were examined and 16 documents were marked. [h] out of the said witnesses, p.ws.1 to 3 claimed to be the eyewitnesses to the occurrence. p.w.4 is the neighbour of the deceased, who have spoken about his hearing of the previous occurrence and about the death of the deceased in the hospital. he was treated hostile. p.w.5 has spoken about the preparation of the observation mahazar. p.w.6 is the signatory to the observation mahazar. he was treated hostile. p.ws.7 and 8 are the witnesses to the disclosure statement made by the accused persons. p.w.7 was also treated hostile. p.w.9, forensic expert, has stated that he examined the internal organs of the deceased and submitted his report ex.p.9, wherein he has stated that no toxic substances were found in the organs. p.w.10, dr.sivakannappan, has spoken about the deceased being brought to the hospital by an ambulance driver palanisamy and that on examination, he was found dead. he also issued the accident register [ex.p.10]. p.w.12, dr.raman, has spoken about the postmortem conducted on the dead body of the deceased and his final opinion regarding cause of death. p.w.13, the police constable grade6 i, has spoken about the sending of the internal organs of the dead body of the deceased for chemical examination. p.w.14, has spoken about the registration of the case and p.w.15 has spoken about the investigation done. 3. when the above incriminating materials were put to the accused under section 313 cr.p.c., they denied the same as false. their defence was a total denial. however, they did not chose to examine any witness nor marked any documents on their side. 4. having considered all the above, the trial court convicted the appellant herein. challenging the said conviction and sentence, the appellant are before this court with this appeal. 5. we have heard the learned counsel for the appellant and the learned additional public prosecutor appearing for the state and we also perused the materials placed on record. 6. in this case, p.ws.1 to 3 claimed to be the eyewitnesses. p.w.1 is the brother's son of the deceased. the deceased was the uncle of p.w.2 and p.w.2 was residing in a different village. p.w.3 is the wife of the deceased. thus, all the three eyewitnesses are closely related to the deceased and highly interested in the case of the prosecution. as per the settled law, their evidence require more close scrutiny. 7. p.w.1 claims, during cross-examination, that he was the only person who witnessed the occurrence. according to him, except the deceased, himself and the accused, nobody else was present at the time of occurrence and from the evidence of p.w.1, the presence of p.ws.2 and 3 becomes doubtful. p.w.2 lives in a different village and there was no occasion for him to come over to the place of occurrence to witness the same. he has not offered any explanation as to how he was present at the time of occurrence. p.w.3, the wife of the deceased claims to have witnessed the occurrence is doubtful also for the simple reason that she did not go to the hospital along with her husband/the deceased. by all natural human conduct, anyone, out of p.ws.1 to 3, who have witnessed the occurrence, would have gone to the hospital accompanying the deceased. but, p.w.1 states that he alone went to the hospital along with the deceased. quite shockingly, p.w.10, dr.sivakannappan, has recorded in ex.p.10 [accident register], which is the earliest document, mentioning that the deceased was brought only by an ambulance driver by name palanisamy. the said palanisamy has not been examined. the doctor has recorded that the deceased was brought dead and the doctor was informed by the said palanisamy that the deceased was found in an unconscious state and was brought to the hospital in the ambulance. had it been true that p.ws.1 to 3 had really seen the occurrence and had it been true that they accompanied the deceased to the hospital, certainly these entries in ex.p.10 would not have come to be recorded. thus, at the earliest opportunity at 10.10 p.m., on 18.08.2007, it was stated that the deceased was found elsewhere unconscious and was brought by the ambulance driver palanisamy. this would only go to prove that p.ws.1 to 3 would not have witnessed the occurrence and the alleged occurrence would not have happened as projected by them. in the light of ex.p.10, we find it difficult to believe p.ws.1 to 3. in such view of the matter, we are of the considered view that the appellant/a1 is entitled for acquittal. 8. in the result, the criminal appeal is allowed and the conviction and sentence imposed on the appellant herein are set aside and he is acquitted of all charges levelled against him. fine amount, if any paid, shall be refunded to him.
Judgment:

(Appeal filed u/s.374 [2] Cr.P.C., against the judgment in SC.No.425/2007 dated 10.02.2012 on the file of the learned Additional District Judge, Fast Track Court No.1, Chidambaram).

S. Nagamuthu, J.

1. The appellant is the first accused in SC.No.425/2007 on the file of the learned Additional District and Sessions Judge, Fast Track Court No.1, Cuddalore. Including the appellant, there were three accused. They stood charged for the offence u/s.302 IPC and the Trial Court, acquitted A2 and A3 from the above charge and convicted the appellant alone and sentenced him to undergo imprisonment for life and to pay a fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for six months. Challenging the said conviction and sentence, the appellant is before this Court, with this appeal.

2. The case of the prosecution, in brief, is as follows:-

[a] The deceased Kaliyamoorthy was a resident of Thambikunallanpattinam. A1 and A2 are brothers and A3 is the maternal uncle's son of A1 and A2. On 16.08.2007, at about 11.30 a.m., it was alleged that A1 attempted to commit theft which was noticed by the deceased Kaliyamoorthy. The deceased reprimanded A1. This is stated to be the motive for the occurrence. It is alleged further that on 18.08.2007 at about 9.30 p.m. when the deceased was at his house, all the accused came to the house and challenged the authority of the deceased to scold A1 on the previous occasion, in connection with the earlier occurrence. This resulted in a wordy altercation. In the said quarrel, it is stated that A1 pushed the deceased on the floor and A2 and A3 stamped him. Then, all the accused ran away from the scene of occurrence. The occurrence was allegedly witnessed by P.Ws.1 to 3. The deceased was taken to Raja Muthaiah Medical College Hospital at Annamalai Nagar, Chidambaram. At about 10.10 p.m., on the same day, Dr.Sivakannappan [P.W.10] who examined him, found him dead. He recorded the same in the Accident Register [Ex.P.10] and forwarded the body to Mortuary. Thereafter, he informed the police about the same.

[b] P.W.1 is the brother's son of the deceased. After having seen the occurrence, according to him, he also accompanied the deceased to the hospital and after the doctor informed him that the deceased was no more, he went to Bhuvanagiri Police Station and made a complaint under Ex.P.1.

[c] P.W.14, the then Sub Inspector of Police of Bhuvanagiri Police Station, on receiving the said complaint, registered a case in Cr.No.158/2007 for the offence u/s.302 IPC against all the three accused. Ex.P.14 is the FIR. He forwarded both the documents to the Court and handed over the Case Diary to P.W.15, the Inspector of Police, for investigation.

[d] P.W.15, the then Inspector of Police attached to Bhuvanagiri Police Station took up the investigation ; proceeded to the scene of occurrence ; prepared the Observation Mahazar [Ex.P.2] in the presence of P.Ws.5 and 6 and lso prepared a Rough Sketch [Ex.P.15]. He went to the hospital and held inquest on the dead body of the deceased in the presence of Panchayatdars. Ex.P.16 is the Inquest Report. He then sent the dead body for postmortem.

[e] P.W.12, Dr.Raman, conducted autopsy on the body of the deceased on 19.08.2007 at 10.05 a.m. He found that there were no external injuries on the body of the deceased and on opening the skull, he found 15 ml of clotting of blood on the occipital region. He opined that the deceased would appear to have died of shock. Ex.P.13 is the Postmortem Certificate.

[f] Continuing the investigation, P.W.15, came to know that all the three accused surrendered before the learned Judicial Magistrate, Perambalur on 04.09.2007. He took police custody of the accused and examined them. The accused came forward to give independent, voluntary confession statements, which were marked as Exs.P.6 to P.8. On 08.09.2007, the accused were sent for judicial remand. After examining few more witnesses and on completion of the investigation, he laid the charge-sheet against the accused.

[g] Based on the above materials, the Trial Court framed charge against the accused persons as detailed in the first paragraph of the Judgment. The accused denied the same as false. In order to prove the case on the side of the prosecution, as many as 15 witnesses were examined and 16 documents were marked.

[h] Out of the said witnesses, P.Ws.1 to 3 claimed to be the eyewitnesses to the occurrence. P.W.4 is the neighbour of the deceased, who have spoken about his hearing of the previous occurrence and about the death of the deceased in the hospital. He was treated hostile. P.W.5 has spoken about the preparation of the Observation Mahazar. P.W.6 is the signatory to the Observation Mahazar. He was treated hostile. P.Ws.7 and 8 are the witnesses to the disclosure statement made by the accused persons. P.W.7 was also treated hostile. P.W.9, Forensic Expert, has stated that he examined the internal organs of the deceased and submitted his report Ex.P.9, wherein he has stated that no toxic substances were found in the organs. P.W.10, Dr.Sivakannappan, has spoken about the deceased being brought to the hospital by an Ambulance driver Palanisamy and that on examination, he was found dead. He also issued the Accident Register [Ex.P.10]. P.W.12, Dr.Raman, has spoken about the Postmortem conducted on the dead body of the deceased and his final opinion regarding cause of death. P.W.13, the Police Constable Grade6 I, has spoken about the sending of the internal organs of the dead body of the deceased for chemical examination. P.W.14, has spoken about the registration of the case and P.W.15 has spoken about the investigation done.

3. When the above incriminating materials were put to the accused under section 313 Cr.P.C., they denied the same as false. Their defence was a total denial. However, they did not chose to examine any witness nor marked any documents on their side.

4. Having considered all the above, the Trial Court convicted the appellant herein. Challenging the said conviction and sentence, the appellant are before this Court with this appeal.

5. We have heard the learned counsel for the appellant and the learned Additional Public Prosecutor appearing for the State and we also perused the materials placed on record.

6. In this case, P.Ws.1 to 3 claimed to be the eyewitnesses. P.W.1 is the brother's son of the deceased. The deceased was the uncle of P.W.2 and P.W.2 was residing in a different village. P.W.3 is the wife of the deceased. Thus, all the three eyewitnesses are closely related to the deceased and highly interested in the case of the prosecution. As per the settled law, their evidence require more close scrutiny.

7. P.W.1 claims, during cross-examination, that he was the only person who witnessed the occurrence. According to him, except the deceased, himself and the accused, nobody else was present at the time of occurrence and from the evidence of P.W.1, the presence of P.Ws.2 and 3 becomes doubtful. P.W.2 lives in a different village and there was no occasion for him to come over to the place of occurrence to witness the same. He has not offered any explanation as to how he was present at the time of occurrence. P.W.3, the wife of the deceased claims to have witnessed the occurrence is doubtful also for the simple reason that she did not go to the hospital along with her husband/the deceased. By all natural human conduct, anyone, out of P.Ws.1 to 3, who have witnessed the occurrence, would have gone to the hospital accompanying the deceased. But, P.W.1 states that he alone went to the hospital along with the deceased. Quite shockingly, P.W.10, Dr.Sivakannappan, has recorded in Ex.P.10 [Accident Register], which is the earliest document, mentioning that the deceased was brought only by an Ambulance Driver by name Palanisamy. The said Palanisamy has not been examined. The doctor has recorded that the deceased was brought dead and the doctor was informed by the said Palanisamy that the deceased was found in an unconscious state and was brought to the hospital in the Ambulance. Had it been true that P.Ws.1 to 3 had really seen the occurrence and had it been true that they accompanied the deceased to the hospital, certainly these entries in Ex.P.10 would not have come to be recorded. Thus, at the earliest opportunity at 10.10 p.m., on 18.08.2007, it was stated that the deceased was found elsewhere unconscious and was brought by the Ambulance driver Palanisamy. This would only go to prove that P.Ws.1 to 3 would not have witnessed the occurrence and the alleged occurrence would not have happened as projected by them. In the light of Ex.P.10, we find it difficult to believe P.Ws.1 to 3. In such view of the matter, we are of the considered view that the appellant/A1 is entitled for acquittal.

8. In the result, the Criminal Appeal is allowed and the conviction and sentence imposed on the appellant herein are set aside and he is acquitted of all charges levelled against him. Fine amount, if any paid, shall be refunded to him.