ABUTHAGIR Vs. STATE

JUDGEMENT

(1.) 1.00: Next to war, crime is the most concern of the people. 1.01: The recent trends of violence under the guise of Terrorism, Naxalism, factionalism, communalism, casteism, goondaism is threatening the very existence of the humanity and the development of the society. 1.03: Before we embark upon deciding the core question, viz., the hard core act of appellants, we may note some of the relevant landmark judgments of the Apex Court on criminology which require the attention of all Courts in the county from Kashmir to Kanyakumari for the purpose of deciding their respective criminal cases. (A) Devender Pal Singh v. State N.C.T of Delhi AIR 2002 SC 1661: 2002 (5) SCC 234. The Honourable Justice.Arijit Pasayat is pleased to observe:

(2.) CASE FACTS 2.01: In a daylight violent act, an Assistant Jailer of the central prisonMadurai in the State of Tamil Nadu was murdered: It is commented as a brutal murder. 2.02: The murder is not in dispute. The identity of the murderers is the only dispute. 2.03: Thus the focus of the Court is on that sole point. 2.04: For the purpose of understanding the case, it would be sufficient to refer to some of the material facts effectively and truly placed before the trial Court. 2.05: We do not wish to reproduce the whole content of charge sheet, or the narrations of the trial Judge. We are concentrating on the relevant facts necessary for answering the point. 2.06: This case rests on direct and circumstantial evidence 2.07: MOTIVE (i) Shahul Hammed, an under trial prisoner was arrested under the offence of TADA Act and he was originally lodged in Central Prison, Chennai, and later transferred to Central Prison, Madurai. He is not an accused in the present case, but according to prosecution he is instrumental for the commission of this offence. (ii) The deceased Jayaprakash was working as Assistant Jailor and he is in-charge of admission of prisoners in the Central Prison, Madurai. (iii) On 30.5.1997, the said Shahul Hameed was brought to Central Prison, Madurai. At the time of admitting the prisoner the deceased Jayaprakash wanted to verify the identification marks of the prisoner to note in the records as part of his official duty. But the prisoner Shahul Hameed refused to remove his dress to note identification mark. The deceased insisted as it is mandatory as per the Jail manual. The prisoner got annoyed as the deceased forced him for removing his dress and verified. (iv) The prisoner made complaints to all the higher Officials. On knowing this fact, the followers of Shahul Hameed agitated before the office of the Collector and dragged the issue into streets by pasting wall posters and started condemning the action of the deceased in particular and the prison officials in general. (v) The case of the prosecution is that Shahul Hameed is one of the leader of Al-uma a terrorist outfit indulging in activities of outlaw and is banned by the State. It is stated that the appellants are the sympathizers and followers of Shahul Hameed. The first appellant is his brother. There is written correspondence through letters between the prisoner and his followers disclosing that they would not leave the deceased and others and they will be taught a lesson. 2.08: CONSPIRACY (i) It is further alleged that all the five accused and others conspired with a common object and common intention to eliminate the deceased as he has insulted their leader Shahul Hameed and in pursuance of the criminal conspiracy committed rioting and murder. 2.07: INCIDENT (i) The date of offence is 29.8.1997. (ii)The time of incident is 3.00 p.m. (iii) The place of incident is near the Central Prison, Madurai. (iv) It is said that the deceased was returning back to his duty after having lunch in his house and when he reached the scene of offence he was killed. (v) 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. (vi) While so the big break through of the case is the Crime No.741/1998 of Kodam-bakkam Police Station; the first appellant was arrested in that crime registered under Sections 120(b), 307 I.P.C.; 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 connecting the accused with the crime; the fact of arrest of appellants are published in the media with their photographs. On seeing their photographs the two witnesses i.e., P.W.3 and P.W.4 gave statements to police that they witnessed the murder and appellants are the assailants. Later the charge sheet was laid. (vii) The appellants are defended by advocates of their choice; Necessary charges are framed and the trial proceeded. 2.08: EVIDENCE Prosecution relied on the following: (i) Witnesses (a) The evidence of P.Ws. 1, 2, 3 and 4 about the incident; (2006) 2 MLJ (Crl) 553 at 559 (b) The circumstantial evidence of P.Ws. 5, 7, 8 and 12 on the motive; (c) The expert evidence of P.W.11 and the evidence of P.W.9 and P.W.22 on the conspiracy; (d) The evidence of PWs.9, 10, 14, 15 and 22 on recoveries. (ii)Documents and material objects (a) Ex.P1 is the report to police; Ex P2 to P4 are the letters received by Shahul Hameed from his followers; The expert report; The admissible portion of the confession and the recovery of incriminating articles through Mahzar; (b) The important material objects are, M.O.5 the Motorcycles, and the Lodge registers. (iii) The defence of appellants is total denial; They are examined under Section 313 Cr.P.C; No defence witness was examined. 2.09: The learned trial Judge, convicted all the appellants for the offences uinder Sections 120(B), 148, 341 I.P.C. and 302 read with Section 34 I.P.C and awarded various sentences including life imprisonment and ordered that all sentences to run concurrently. 2.10: ARUGUMENTS In this appeal, appellants are challenging the legality and correctness of the impugned judgment. 2.11: We had the occasion of hearing elaborate arguments on behalf of appellants. 2.12: M. Thirumalai Raj representing A1 and A2 addressed the bench at first following the general practice and procedure; S.Shanmuga Velayutham argued for A3 and A4 and supplemented the points; The Additional Public Prosecutor appeared for the State. 2.13: The learned counsel appearing for appellants made a frontal attack on the direct evidence of the two eyewitnesses i.e., P.W.3 and P.W.4 and contended that they are dubious; Incidentally the counsel have pointed out several other latches and lapses of the prosecution case on conspiracy, on motive, on recovery and strongly contended that the appellants are implicated and they are innocent and are entitled to clean acquittal. The learned Additional Public Prosecutor resisted the arguments.

(3.) MOTIVE: 7.01: The evidence of P.W.5, the Superintendent of Central Prison, P.W.7 and P.W.9, revealed the motive part. They have clearly testified that Shahul Hameed objected for physical examination to be done by the deceased at the time of admission the prisoner into jail and thereafter there was agitation by the followers of the Shahul Hameed and letters received by the Shahul Hameed disclosing that the followers will teach a lesson to all the officers including the deceased for their behavior with Shahul Hameed. Exs.P.2, 3, 4 & 5 would clearly establish that the followers of Shahul Hameed was grudged against the deceased. 7.02: The case of the prosecution is that the first appellant is the brother of the Shahul Hameed. The first appellant did not deny this fact. All the appellants are followers of Shahul Hameed. Therefore, the motive is established by the evidence of PWs. 5, 7 and 9, and Ex P2 to P5. Point 5: