In Re: Kaliaperumal - Court Judgment

Excerpt:
criminal - homicidal violence - section 236 of criminal procedure code, 1898, sections 201 and 302 of indian penal code, 1860 and sections 101 to 103 and 114 of evidence act, 1872 - appellant murdered deceased to rob him - lower court convicted and sentenced him under section 302 - sentence challenged - prosecution could not prove charge beyond reasonable doubts - deceased caused death due to homicidal violence - appellant convicted under section 201 instead of section 302. - t.n. district police act, 1859 [act no. 24/1859]. section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explanation (1); [a.p. shah,c.j., f.m. ibrajhim kalifulla & v. ramasubramanian, jj] rule 14(b),ci.(iv) explanation (1) providing that a person acquitted or discharged on benefit of doubt shall be treated as person involved in criminal case - validity being questioned - held, the impugned rule 14(b) ci.(iv) explanation (1) has been issued in exercise of the power conferred upon the government under the tamil nadu district police act, the criminal city police act and the proviso to article 309 of the constitution., the rule is not assailed on the ground of lack of competence. it is challenged only on the ground that it is violative of articles 14 and 16 of the constitution. but it is well settled that if a rule passes the twin tests of (i) being founded on an intelligible differentia, and (ii) such differentia having a nexus with the object sought to be achieved, it cannot be said to be violative of articles 14 and 16 of the constitution. the impugned rule creates a classification of persons, who were not involved in criminal cases and persons, who were involved in criminal cases. the object of creating such a classification is to ensure that only those persons, whose character and antecedents were beyond and shadow of doubt alone, are permitted entry into the police service of the state. the rule is only a reflection of the intention of the government to maintain purity of administration. the rule merely provides a check post or a filter point, to ensure that only those, who had a clean record of personal life, are admitted into the system. that the existing system, has already come under heavy dose of criticism, cannot be swept under the carpet. therefore, as an employer, the government is entitled to prescribe, especially in a disciplined force like the police force, such a restriction at the entry level. there cannot be a dispute about the proposition that an employer has the right to prescribe any qualifications for appointment to a post. if that be so, an employer has a concomitant right even to prescribe disqualifications when it comes appointment to a post. persons who were never involved in criminal cases, need not be treated as equals to or on par with persons who were involved in criminal cases merely because they are acquitted later, especially in the matter of selection to the police service of the state. the classification made between them, is not only reason able but also has a nexus with the object sought to be achieved. the employer does have the right to choose a person untainted with any allegations. the attempt made to assail the impugned rules on the ground of violation of articles 14 and 16 of the constitution is fragile. the impugned rules themselves appear to be a product of the application of the right to equality. a person, who was never involved in any criminal case, cannot be equated to a person, who was involved in a criminal case, merely because he is acquitted later, at least insofar as matters of public employment are concerned. therefore, the challenge to the impugned rule on the ground of infringement of articles. 14 and 16 of the constitution must fail. -- section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explantion (1); appointment - state police service - disqualification of a person acquitted on benefit of doubt or discharged in a criminal case - validity? held, by virtue of explanation 1 to clause (iv) of rule 14(b) of the t.n. special police subordinate service rules, a person acquitted on benefit of doubt or discharged in a criminal case, can still be considered as disqualified for selection to the police service of the state and that the same cannot be termed as disqualified for selection to the police service of the state and that the same cannot be termed as illegal or unjustified. the reason as to why cr.p.c. does not make a distinction between an acquittal on benefit of doubt and an honourable acquittal, is to ensure that no person shall be tried for a second time for the same offence for which he is tried and convicted or acquitted once. what is provided under section 300(1) of cr.p.c. is only a reassurance of the constitutional right guaranteed under article 20(2). the principle behind this prescription under section 300 of cr.p.c. is to avoid double jeopardy to a person. if the code recognizes such a distinction, it may make inroads into this concept of double jeopardy. but the concept of double jeopardy, to some extent, is allergic to service law. in many cases the supreme court has made it clear - (i) that the imposition of a punishment and the denial of promotion did not amount to double jeopardy, and (ii) that the conviction by a criminal court and the disciplinary proceedings initiated either on the basis of conduct which let to the conviction or on pure questions of misconduct, did not amount to double jeopardy. since the concept of acquittal is an acquittal, is an off shoot of the principle of double jeopardy underlying section 300(1) of the code, it cannot be imported into service law, where the principle of double jeopardy itself is looked down upon. therefore, the explanation 1 to rule 14(b) of the impugned rules, treating a person acquitted on benefit of doubt, as a person involved in a criminal case, is only in tune with well settled principles applicable to service jurisprudence. a person discharged does not even have protection under section 300 of cr.p.c. and hence such a person cannot assail the explanation 1 to the impugned rule 14(b). -- section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explantion (1); - appointment to state police service - failure of a person to disclose in the application form, either his involvement in a criminal case or pendency of a criminal case against him - effect? - held, the failure of a person to disclose his involvement in a criminal case, at the earliest point of time, when the application form is filled up, is fatal. his subsequent disclosure, whether before acquittal or after acquittal, will not cure the defect. in any case, the subsequent disclosure may not have any effect upon his selection, since his case will then fall under any one of the two explanations under clause (iv) of rule 14(b) and make him ineligible for the current selection or for all future selection depending on whether the acquittal is honourable or otherwise. -- t.n. district police act, 1859. section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explanation (1); rule 14(b),ci.(iv) explanation (1) providing that a person acquitted or discharged on benefit of doubt shall be treated as person involved in criminal case - validity being questioned - held, the impugned rule 14(b) ci.(iv) explanation (1) has been issued in exercise of the power conferred upon the government under the tamil nadu district police act, the criminal city police act and the proviso to article 309 of the constitution., the rule is not assailed on the ground of lack of competence. it is challenged only on the ground that it is violative of articles 14 and 16 of the constitution. but it is well settled that if a rule passes the twin tests of (i) being founded on an intelligible differentia, and (ii) such differentia having a nexus with the object sought to be achieved, it cannot be said to be violative of articles 14 and 16 of the constitution. the impugned rule creates a classification of persons, who were not involved in criminal cases and persons, who were involved in criminal cases. the object of creating such a classification is to ensure that only those persons, whose character and antecedents were beyond and shadow of doubt alone, are permitted entry into the police service of the state. the rule is only a reflection of the intention of the government to maintain purity of administration. the rule merely provides a check post or a filter point, to ensure that only those, who had a clean record of personal life, are admitted into the system. that the existing system, has already come under heavy dose of criticism, cannot be swept under the carpet. therefore, as an employer, the government is entitled to prescribe, especially in a disciplined force like the police force, such a restriction at the entry level. there cannot be a dispute about the proposition that an employer has the right to prescribe any qualifications for appointment to a post. if that be so, an employer has a concomitant right even to prescribe disqualifications when it comes appointment to a post. persons who were never involved in criminal cases, need not be treated as equals to or on par with persons who were involved in criminal cases merely because they are acquitted later, especially in the matter of selection to the police service of the state. the classification made between them, is not only reason able but also has a nexus with the object sought to be achieved. the employer does have the right to choose a person untainted with any allegations. the attempt made to assail the impugned rules on the ground of violation of articles 14 and 16 of the constitution is fragile. the impugned rules themselves appear to be a product of the application of the right to equality. a person, who was never involved in any criminal case, cannot be equated to a person, who was involved in a criminal case, merely because he is acquitted later, at least insofar as matters of public employment are concerned. therefore, the challenge to the impugned rule on the ground of infringement of articles. 14 and 16 of the constitution must fail - section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explantion (1); appointment - state police service - disqualification of a person acquitted on benefit of doubt or discharged in a criminal case - validity? held, by virtue of explanation 1 to clause (iv) of rule 14(b) of the t.n. special police subordinate service rules, a person acquitted on benefit of doubt or discharged in a criminal case, can still be considered as disqualified for selection to the police service of the state and that the same cannot be termed as disqualified for selection to the police service of the state and that the same cannot be termed as illegal or unjustified. the reason as to why cr.p.c. does not make a distinction between an acquittal on benefit of doubt and an honourable acquittal, is to ensure that no person shall be tried for a second time for the same offence for which he is tried and convicted or acquitted once. what is provided under section 300(1) of cr.p.c. is only a reassurance of the constitutional right guaranteed under article 20(2). the principle behind this prescription under section 300 of cr.p.c. is to avoid double jeopardy to a person. if the code recognizes such a distinction, it may make inroads into this concept of double jeopardy. but the concept of double jeopardy, to some extent, is allergic to service law. in many cases the supreme court has made it clear - (i) that the imposition of a punishment and the denial of promotion did not amount to double jeopardy, and (ii) that the conviction by a criminal court and the disciplinary proceedings initiated either on the basis of conduct which let to the conviction or on pure questions of misconduct, did not amount to double jeopardy. since the concept of acquittal is an acquittal, is an off shoot of the principle of double jeopardy underlying section 300(1) of the code, it cannot be imported into service law, where the principle of double jeopardy itself is looked down upon. therefore, the explanation 1 to rule 14(b) of the impugned rules, treating a person acquitted on benefit of doubt, as a person involved in a criminal case, is only in tune with well settled principles applicable to service jurisprudence. a person discharged does not even have protection under section 300 of cr.p.c. and hence such a person cannot assail the explanation 1 to the impugned rule 14(b). - section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explantion (1); - appointment to state police service - failure of a person to disclose in the application form, either his involvement in a criminal case or pendency of a criminal case against him - effect? - held, the failure of a person to disclose his involvement in a criminal case, at the earliest point of time, when the application form is filled up, is fatal. his subsequent disclosure, whether before acquittal or after acquittal, will not cure the defect. in any case, the subsequent disclosure may not have any effect upon his selection, since his case will then fall under any one of the two explanations under clause (iv) of rule 14(b) and make him ineligible for the current selection or for all future selection depending on whether the acquittal is honourable or otherwise.rajagopalan, j.1. the accused was charged under section 302 i. p. c. with having murdered viswalingam, a boy aged about 13, on 21-12-1953 by drowning viswalingam in vari voikkal, an irrigation channel with water about 3 feet deep in vellamperambur to rob viswalingam of the petty jewels he wore then, two rings, m. os. 1 and 2 and a pair of ear-rings m. os. 3 and 3 (a). the. learned sessions judge convicted the accused under section 302, i. p. c. and sentenced him to death subject to the confirmation of that sentence by this court. 2. in the absence of direct evidence to prove that it was the accused that had drowned viswalingam in the channel, the prosecution relied oncircumstantial evidence, and also on an extra-judicial confession the accused was alleged to have made to p. ws. 1, 3 and 8 in the village on the night of 22-12-1953 before the occurrence was reported by p. w. 1 to the karnam, p. w. 9. 3. the learned sessions judge, however, declined to take into consideration this extra judicial confession sworn to by p. ws. 1, 3 and 8 and also embodied in ex. p. 1 mainly on the ground, that it had not been satisfactorily proved that the confession was voluntary. no doubt it was on the information given by the accused that the dead body was later found in the channel and m. os. 1, 2, 3 and 3 (a) were recovered. but the more limited question is whether, whatever the accused might have told p. ws. 1, 3 and 8 among others, that statement is legally admissible in evidence against him. the learned public prosecutor contended that the learned sessions judge should not have applied the same standards which would have been properly applicable had the questioning been by the police; but whether, what are commonly known as 'third degree methods' are alleged to have been used by the police or by others, the real question for determination is whether a confession on which the prosecution relies is proved to have been voluntary, p. ws. 1, 3 and 8 admitted that it was after persistent questioning from about 6 p. m. in the night till about 3 a. m. during the whole of which period the accused had to go without food and sleep, that the accused finally admitted that he along with two others, who were subsequently examined as c. ws. 1 and 2, drowned the boy, and that it was he that disposed of the jewels. apart from the fact that the learned judge rightly held that the confession was not proved to have been wholly voluntary, the learned judge also pointed out that even the precise scope of the statement said to have been made by the accused in the village that night was not proved. whether the accused admitted that he himself participated in the murder or whether he was one of the three, one or more of whom committed the murder, could not be gathered even from the statements by p. ws. 1, 3 and 8, nor from what was recorded in ex. p. 1. it is not the case of the prosecution that all the three persons murdered viswalingam or that whoever might have actually drowned the boy, all the three were constructively liable for the murder under section 34 read with section 302 i. p. c. but none of these questions really arises for further discussion, because we agree with the learned sessions judge in holding as legally inadmissible the statement said to have been made by the accused to p. ws. 1, 3 and 8 in the village. 4. before we consider the circumstantial evidence on which the prosecution relied to prove the charge against the accused, we have to consider the question, whether it was proved beyond all reasonable doubt that the death of viswalingam was due to homicidal violence. (after discussion of the medical evidence his lordship proceeded.) on the evidence on record, principally the information furnished by the accused himself during the preliminary enquiry -- though he went back upon that during the trial in the sessions court -- the learned judge, in our opinion rightly found that the death of viswalingam was due to homicidal violence. it might be that in throwing the boy into the water the assailant intended viswalingam to drown; but if meanwhile, laryngeal spasm made the intake of water impossible, and the laryngeal spasm itself directly resulting from the act of the assailant brought about the death of the deceased, the assailant is as guilty under section 302 as he would have been had the boy been eventually drowned. 5. the next question is, was it the accused that threw the boy into the water with intent to cause his death? as we pointed out before, it was only on circumstantial evidence that this question has to be decided. the boy was out in the fields the whole of that day tending a goat. p. w. 15 swore he saw the accused in the fields in the company of the deceased at about 2 p.m. p. ws. 13 and 14, two harijan women, deposed that at about 4 p.m. they found viswalingam in the company of the accused. there was a quarrel which was specified. that p. ws. 13 and 14 saw viswalingam in the company of the accused was also admitted by the accused all through. the case for the prosecution, it should be remembered, was that it was about half an hour after that that viswalingam should have died. though the medical examination of the body could not furnish precise data for fixing the hour of death, that viswalingam died at about that hour does not appear to admit of any doubt. then at about 5 p.m. the same day the accused pledged m. o. 1 with p. w. 10 and deposited m. os. 2, 3 and 3 (a) with p. w. 11. that the deceased viswalingam had these jewels on his person when he left his house that morning was spoken to by his parents, p. ws. 3 and 4, and by his brother, p. w. 1. that these jewels were on the body of viswalingam at the time of his death was not really challenged by the accused. it was on this evidence i.e., the recovery of the jewels obviously stolen from the body of viswalingam after he had been done to death, that the prosecution relied to prove that it was the accused that committed both the murder and effected the disposal of the property on the body of the deceased. where murder and robbery of the jewels on the deceased person are proved to have been integral parts of the same transaction, the presumption that can be drawn from the possession of property which was on the deceased person may, consistent with all the facts proved in the case, be that the person to whom such possession was traced not only committed the theft of those jewels but also committed the murder which formed part of the same transaction as theft. but before any such presumption can be drawn, the primary thing to be proved is thai the accused had no satisfactory explanation to offer for his possession of such jewels. in this case the accused all along persisted that after the murder of viswalingam the jewels were handed over to him by muthuswami to be disposed of. that was what the accused claimed even during the preliminary enquiry. no such specific statement was ascribed to him by p. ws. 1, 3 and 8. but jt was on what the accused told p. ws. 1, 3 and 8 that ex. p. 1 was drafted, and in ex. p. 1 itself the accused alleged the participation of c. ws. 1 and 2. for what it was worth that was the explanation that the accused offered, that the jewels m. os. 1, 2, 3 and 3-(a) which were certainly proved to have been removed from the dead body of viswalingam, were given to him by c. w. 1, and that the accused pledged m. o. 1 with p. w. 10 and deposited m. os. 2, 3 and 3(a) with p. w. 11. in deciding the question, whether that amounted to a satisfactory explanation or not, as a preliminary to drawing the presumption that the accused committed both the theft and the murder of viswalingam, we have to observe that the burden of proving the truth of that ex-planation affirmatively did not lie on the accused. the burden still rested on the prosecution to prove that the explanation was not true, if it was on the falsity of that explanation that the prosecution relied to invite the court to hold that the possession had not been satisfactorily accounted for. in this case the prosecution never even madeany attempt to shoulder that burden. it wasafter the evidence of the prosecution was closedthat the learned sessions judge himself directedthe examination of c. ws. 1 and 2 as court witnesses. the investigating officer did not even explain whether he had checked up the activitiesof c. ws. 1 and 2 that day, to verify whether itcould be proved beyond all possible doubt thatthey had not participated in the murder of viswalingam. when an accused person gives an explanation, and when the duty of the prosecutionis to show that it is not a satisfactory explanationbecause it is false, what exactly is the scope ofthe evidence the prosecution has to offer to convince the court that it is not a satisfactory explanation? it is impossible to lay down any testof universal application. the scope of the evidence on which the court could come to a conclusion that the explanation was not satisfactory,must depend upon the circumstances of eachcase. and as we have pointed out before, in thiscase the prosecution made no attempt at all toprove that the explanation was not satisfactory;and even after the examination of c. ws. 1 and2 it could not be said that the explanation furnished by the accused was false. therefore the position is that there was an explanation and thefalsity of it was never established. under suchcircumstances it is rather difficult to presume thatthe accused not only removed the jewels from thebody of viswalingam but that he also committedthe murder of viswalingam preparatory to removing the jewels. 6. we therefore set aside the conviction of the accused under section 302, i. p. c. but on the proved and admitted possession of m. os. 1, 2, 3 and 3(a) immediately after viswalingam had met with his death by homicidal violence, and the admitted disposal of these properties by the accused himself, we hold that the accused can be convicted under section 201, i. p. c. despite the fact, that no specific charge was framed under section 201, i. p. c, as pointed out by horwill j. in -- 'nagan-v. emperor',1937 mwn cri 104 (a), the disposal of the properties did certainly result in screening whoeverhad been responsible for the murder; and if theexplanation of the accused was true, the murdererwas c. w. 1. when that was the definite resultof the disposal of the property. it is only reasonable to presume an intention to screen the offenderto satisfy the requirements of section 201, i. p. c. everyperson is presumed to intend the natural consequences of his act. we convict the accused undersection 201, i. p. c. and sentence him to rigorous imprisonment for a period of three years.