VENKATESAN Vs. STATE

JUDGEMENT

(1.) THE appellant in this appeal is A1 in SC No.54 of 1999 on the file of Principal Sessions Judge, Chengalpattu. In that sessions case he was tried along with five other accused under Sections 364, 148, 302 read with 34 and 149 IPC. At the end of trial, the learned Judge found A1 alone guilty for the offence under 302 read with 34 IPC and accordingly sentenced him to undergo imprisonment for life. Rest of the accused were acquitted. THE State had not challenged the judgment of the learned Sessions Judge acquitting A2 to A6 of all the offences and A1 under Sections 364 and 148 IPC and therefore the said judgment had become final. A1 aggrieved over his conviction as referred to above, is before this Court in this appeal. Heard Mr.N.Dorisamy learned counsel appearing for the appellant and Mr.V.M.R.Rajendran learned Additional Public Prosecutor for the State.

(2.) AKRAM Khan is the elder brother of the deceased in this case by name Afzal Khan. The case of the prosecution is that A1 was collecting rowdy mamool, which was not liked by AKRAM Khan. AKRAM Khan, Afzal Khan and other family members appeared to be the members of Jihad Committee. When the first accused was questioned by AKRAM Khan about his collecting rowdy mamool, the first and second accused did not like it and the prosecution case is that in that context, the first accused had caused injury on AKRAM Khan, which had resulted in deprivation of his right eye. Therefore the prosecution proceeds on the basis that the accused are inimically disposed of towards the prosecution party. In the above factual scenario, the occurrence is shown to have taken place at about 7 p.m. on 27.5.1998 by the accused kidnapping Afzal Khan (since deceased) in an auto-rickshaw accomplished the object of the unlawful assembly by murdering Afzal Khan and leaving his dead body on the west of "F" Road. To substantiate their case the prosecution examined PWs 1 to 13 besides exhibiting ExP1 to ExP22 and marking MO1 to MO11. There is a planning committee for managing Koyambedu Whole Sale Vegetable Market. PW1 was working as the Assistant Planning Officer in that committee during the relevant time. He was informed at about 4.30 p.m. on 28.5.1998 that a body of a male is lying dead west of "F" Road, which made him to go over there where he observed a 25 year old male lying dead. He gave ExP1 complaint and handed over MOs 1 and 4 - a full sleeves shirt and a jeans pant, which were on the dead body to the Investigating Officer. PW13 is the Investigating Officer in this case. At 4.30 p.m. on 28.5.1998 PW1 appeared before him and gave a written complaint ExP1 which he registered in his police station Cr No.753 of 1998 for the offence under Section 302 IPC. ExP14 is the printed first information report. He sent the material records to the Court as well as to the higher officials. He reached the scene of occurrence and in the presence of PW2 and another prepared the observation mahazar ExP2 and the rough sketch ExP15. PW2 in his evidence had stated that he is selling tender coconuts; he did not know why he signed; he did not see anything and as he was asked to sign he put his signature. He admits his signature in the observation mahazar as well as recovery mahazar. He was treated as hostile. Even at this stage we would like to point out that the evidence of this witness which was recorded prior to he being treated as hostile and after he was treated as hostile is of no use either to the State or to the defence. At 5.50 p.m. on the same day PW13 recovered blood stained earth MO8; sample earth MO9; a bail order copy MO10 from the pant pocket of the deceased under ExP17 in the presence of PW2 and another.

(3.) PW10 is one of the brothers of the deceased. He knew the accused. He had given evidence about the enmity, which the accused had for his another brother Akram Khan as spoken to by PW3 and the injury caused to Akram Khan also. He would then state that at about 6.30 p.m. on 27.5.1998 when he was near M.R.Hospital at Aminjikarai the accused came in an auto-rickshaw bearing Reg.No.TN-01-K-4622 and then attempted to cut him. However he made good his escape. MO4 is the auto-rickshaw. As he had escaped, the accused gave an open threat that somebody in their family would be killed that day. Then he sent a person to his house by way of caution. At 9.30 p.m. on that night he went home. When he saw his mother crying, on enquiry his mother told him that A1 and his associates kidnapped Afzal Khan (since deceased) from the place where he normally used to sit. He was asked by his mother to go and search, which he did. He had come that his father PW3 had already gone to lodge a complaint. He identified the dead body of his brother in the mortuary. PW11 is the photographer, who took photographs of the deceased at 5 p.m. on 29.5.1998. PW13 speaks about the arrest of A2 and A4 on 11.6.1998 near Rohini Theatre as spoken to by PW6. He also deposed about the recovery of MO4 under ExP5 at that time. PW13 sent the arrested accused to judicial remand. He came to know that A1 surrendered before Fifth Metropolitan Magistrate, Chennai and took him into police custody on 31.7.1998. On examination the first accused gave a voluntary confession statement, the admissible portion of which is ExP21. Pursuant to ExP21, MO11 came to be recovered under ExP22 attested by Sekar and Marimuthu. It must be noticed here that Sekar and Marimuthu were not examined in this case at all. After completing the investigation PW13 filed the final report against the accused in Court as referred to above.