ABUTHAGIR Vs. STATE

JUDGEMENT

(1.) Challenge in this appeal is to the judgment of a Division Bench of the Madras High Court upholding the conviction of the appellants for offence punishable under Section 302 read with Section 34, Section 120-B and Section 148 of the Indian Penal Code, 1860 (in short the 'IPC'). However, the conviction and consequential sentences imposed for offence punishable under Section 341, IPC was set aside.

(2.) Background facts in a nutshell are as follows : Balan Alagiri (PW-5) was working as a Superintendent of Madurai Central Prison during the period May 1996 to October 1998. During that period Krishnan (PW7), Chokkalingam (PW20) were also working on 30/05/1997. One accused detained under TADA was brought from Chennai Central Prison and produced before Coimbatore Court and returned back to Madurai Central Prison. When the Assistant Jailor Jayaprakash intend to have body search and examination of identification marks the accused-Sahul Hameed refused to allow him to have body search and refused to show identification marks. The intimation was given to PW-20. The accused was taken to his office and was instructed to concede for body search. But he declined to do so. The said Jayaprakash tried to remove the shirts. At the time the Sahul Hameed has proclaimed that "Insha Allah! you have to answer for this" after that he was examined and sent to 6th block and detained in a separate cell. Whenever the relatives visit the jail, the Assistant Jailor Jayaprakash used to verify the things as per Rules and Regulations. Enraged by this, the said Sahul Hameed had complained to PW-5 that the Assistant Jailor has assaulted and insulted his religion. Some members of an association also made an agitation before the District Collector, and affixed wall-posters. Sahul Hameed also reported the matter against the Jayaprakash to his superior officers and gave a statement also. The association members of Sahul Hameed also wrote a letter informing to identify the person who has caused annoyance to him and we will teach him a lesson. The said letter was received by PW-5 and handed over to Superior Officer for further proceedings. The letter sent to Sahul Hameed is Ex.P2 series. Letter containing some religious verses is EX-P-3 and the cover is EX-P.4, printed format sent to a High Court Judge of the Madras High Court. This case relates to an incident on 29.8.1997 around 3 p.m. near the central jail. According to the first report and the preliminary investigation of police, three or four unidentified persons came on motor cycles and attacked the deceased with sickles and knives and having killed him fled away. The usual investigation proceeded without much progress on the identity of culprits. The C.B.C.I.D. Police of the State took up further investigation. Even they could not get any clue immediately. While the big breakthrough of the case is the Crime No.741/1998 of Kodambakkam Police Station; The first appellant was arrested in that crime registered under Sections 120-B, 307, IPC. His interrogation disclosed the involvement of all the appellants and the other absconding accused in this case. Resulting orders of police custody of the appellants, and their interrogation leading to discovery of incriminating facts under Section 27 of Indian Evidence Act, 1872 (in short the 'Act') connecting the accused with crime; the fact of arrest of appellants are published in the media with their photographs. On seeing their photographs the two witnesses i.e. PW3 and PW4 gave statements to police that they witnessed the murder and appellants are the assailants. Later the charge-sheet was laid. As accused persons pleaded innocence, trial was held. Saroja (PW-2) is a Sugarcane vendor in front of Madurai Prison. Shanmugam (PW-3) is a mason, Lakshmi (PW-4) is doing Textile business. PW-3 has stated that 4 years before at about 3 p.m., when he was proceeding on the west to east by his bicycle to Arsaradi in front of the Jail main gate, he found a sugarcane juice vehicle and he was taking a sugarcane juice. At that time a person wearing jail Sub-Inspector Uniform, was riding a bicycle near to Sugarcane vehicle two Yamaha vehicles were parked. While the Sub-Inspector has crossed the sugarcane vehicle the person has taken the Aruval from his blue colour jeans bag and assaulted him on his neck and he has resisted by his left arm and also a cut injury and he has fallen down. Along with a person who has assaulted, yet another 4 persons have inflicted injury by knife and Aruval. After that three persons on one bike and two persons on another bike has started proceeding towards east. The occurrence was seen by Saroja (PW-2), Shanmugam (PW-3) and PW-4 Lakshmi. On 29-8-1997 around 3 p.m. Mohammed Sulaiman (PW-1) when he was in the guard duty a person parked his scooter and informed him that near to the prison main gate a Sub-Inspector who was riding bicycle with uniform was assaulted by four persons and ran away towards east. Immediately he rushed to the spot and found that the Assistant Jailor Jayaprakash was found dead and he has given intimation to his officers. On their instructions PW-1 has preferred a complaint to the Karimedu P.S. The Inspector of Karimadu P.S. Mary George (PW-21) has received the complaint Ex. P1 and preferred an F.I.R. Ex. P27 and sent to Magistrate and other officers. Subsequently she has visited the place of occurrence and preferred observation mahazar in the presence of Alamarathan (PW-6) and Pandi Ex.P 29 is a observation mahazar and Ex.P28 a rough sketch was prepared. The police Photographer Shanmugasundaram (PW-18) has taken the photographs of the place of occurrence and a dead body in different angles. MO 6 is a negative and MO 17 are Photographs. An inquest was conducted in the presence of Panchayathdar and inquest report was prepared and dead body was sent through David Shamuvel (PW-19) for post-mortem. MOs 19 to 24 were recovered in the presence of PW-20 and witnesses were examined and evidences were recorded. Dr. Maiyazagan (PW-12) has started post-mortem on 30-8-1997 at 10.10 a.m. On receipt of the requisition which is Ex.P 15 from the Inspector (PW-21), he found 21 injuries and the first injury would be the cause of death. And injuries 2, 3 and 6 can cause death in natural course. Dr. Maiyazagan has suggested that all the injuries together would cause death and the rest of injuries, though it is simple would cause death in future. The injuries were inflicted by a sharp edged weapon like Aruval and deep injury would cause by one side sharped weapon and issued a post-mortem certificate Ex.P. 16. After post-mortem the MOs 8 to 12 were seized and dead body handed over to his relatives and the recovered material objects handed over to PW-21. During the examination of PW-21, during the pendency of this case as per the order of Government, the case was handed over to CBCID, Madurai on 21-09-1997. During the course of investigation by the Inspector of CBCID, Sundaram (PW-22) on the basis of statement given by 1st accused Abuthagir in connection with Kodambakkam Cr.No.741/98, u/Ss. 307, 305 and 120-B I.P.C. he came to know that all the accused and the absconding accused Raja @ Tailor Raja have murdered Jayaprakash. On 4-5-1998 accused Abuthagir was produced under PT warrant and brought to Madurai and Police Custody was taken from 26-5-1998 to 30-5-1998 for four days and he has given a confession before the Village Administrative Officer, Sethu Ramasamy (PW-9) and Thalaiyari Ganesh. On the basis of an admitted portion of Ex.P.7 the Hotel Service occupance Register from 17-9-1997 to 27-9-1997 MO1. Bill No. 2501, dated 8-8-1997 to Bill No. 2600, dated 2-9-1997 Cash Bill Book MO2, and lodge maintenance register for Room No. 107 from 25-8-1997 to 16-5-1998 anti Room No. 111 from 21-8-1997 to 24-5-1998 maintenance register MO4 were recovered under Ex.P-8. Further the Model signature denoted as R. Kumar was obtained in the presence of witnesses. MOs 1 to 4 were recovered from PW-10 Mayavan, who is a lodge clerk and cashier. Further an affixation for PT Warrant has been given to Accused Aasik and he was remanded on 23-6-98 subsequently he was taken to police custody from 23.6.98 to 25.6.98 and he was examined in presence of Village Administrative Officer (PW-14) Velusamy and Thalaiyari Shanmugavel and confession was recorded. On the basis of an admitted portion of Ex.P.33 in the presence of witnesses the accused was taken to Trichy bus stand and was identified by the accused. Yamaha Motor Cycle (MO5) was recovered from the two wheeler stand under Ex. P34. On 24.6.1998 he was sent to Judicial Custody. Further on 24-6-1998 an application was given for PT warrant for accused-Aslam and Jafru, and they were remanded on 2-7-1998. From 2-7-1998 to 3-7-1998 accused were taken under police custody and examined in the presence of the witnesses and confession was recorded. As specimen signature name as David in Tamil as well as English was obtained and the same was sent along with the accused for judicial custody on 3.7.1998. Accused-Jafru was produced under PT warrant on 16.7.1998 and police custody was ordered from 16.7.1998 to 18-7-1998 on an application. He was examined and confession was recorded in the presence of Village Administrative Officer Kamaraj (PW-5) and Thalaiyari Mohan. On the basis of an admitted portion of Ex-P.35 he has taken witnesses and the Inspector and identified the STD Booth, run by Ponnazlagu, Tel.No.705564 situated on the 1st floor of Door No. 66A, and he has confessed that he has made a call to Chennai and in between the periods 27-7-1997 to 12-10-1997 the note book maintained in the office for day time, and charges for Telephone calls were recovered under Ex-P.26. The requisition was given to the Manager, Tele Communication, Trichy for seeking the Computer printout for the periods 18-8-1997 to 15-10-1997 regarding the communication to telephone No.705564 and on 17-7-1998 the accused-Jafru was remanded to Judicial Custody. The requisition given under Ex-14 to Judicial Magistrate No.VI, Madurai for comparison of the signature of the A1 and A2 to handwriting Expert Murali (PW-11), Bakhyam Hotel Cash receipt No. 2590, dated 29-8-1997 and the English Signature of David was marked as Q1. Hotel receipt No. 2589, dated 29-8-1997 the Carbon Signature of K. Kumar is "Q2" and Carbon signature of David in the lodge attendance register dated 27-8-1997 at Page 564 is "Q3". Carbon signature of K. Kumar in the lodge attendance register dated 27-8-1997 at Page 564 is "Q4". Specimen name of Aslam sent for report containing 10 papers Ex.P.11 letters marked as S1 to S60 as such specimen signature of Abuthagir containing 6 papers which is Ex.P2 the letters were marked as S61 to S144 and after research PW-13 has given an opinion that the letters marked as S1 to S24 were written by a person who has signed Q3, S61 to S144 letters were written by a person who has signed Q2 and Q4. Since accused Raja was absconded the case was split up against him before the lower Court. Twenty two witnesses were examined, 39 documents were exhibited and 25 material objects were marked. The trial Court held that the prosecution had established the accusations and accordingly convicted and sentenced them. Four of the accused persons filed appeal before the High Court. Before the High Court the primary stand was that PWs-3 and 4 stated to be the two eye-witnesses. Identification of the accused by PWs-3 and 4 was not established. The so-called discovery/recovery at the instance of the accused persons is not believable. No motive was established and no conspiracy was proved. The High Court held that the appeal was sans merit. It did not find any substance in the plea of the appellants that there was an inordinate delay in examination of PWs-3 and 4. So far as the identification is concerned the High Court found that the stand of the appellants that the identification was not truthful is not correct. So far as the discovery of the various photos, the High Court noted that the circumstances of the recovery on its own may not be sufficient to connect the accused, but the cumulative effect of several factors coupled with the evidence of PWs-3 and 4 strengthened the case of the prosecution. It also held that the motive was clearly established and so was the conspiracy. Apart from re-iterating the stand taken before the High Court learned counsel for the appellants submitted that on the purported basis of confession of A-3 that he has informed through STD booth Trichi informing to Batcha Bai on a particular telephone that he finished the matter, there was no corroboration.

(3.) Learned counsel for the appellants submitted that incrimination materials were not put to the accused in the examination under Section 313 of the Code of Criminal Procedure, 1973 (in short the 'Code'). Original prosecution case was that four accused persons attacked the victim and there were no motor cyclists. The first investigation suspected four different accused. The second investigation came up with five different accused persons without any evidence against them excepting their so-called admission before the eye-witnesses.