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2009(5) Supreme 138
SUPREME COURT OF INDIA
(From Madras High Court)
Dr. Arijit Pasayat and P. Sathasivam, JJ.
Abuthagir and Ors. — Appellants
versus
State Rep. by Inspector of Police, Madurai — Respondent
Criminal Appeal No. 26 of 2007
Decided on : 08-05-2009
AIR 2002 SC 1661; AIR 1994 SC 2623; (2002)7 SCC 334 – Relied upon.
(b) Administration of Criminal Justice – Prosecution version has to be judged as a whole having regard to the totality of the evidence – Guilt of the accused can be concluded only after analyzing and assessing the evidence by the yardstick of probabilities, its intrinsic value and the animus of the witnesses – Mere delay in examination of the prosecution witnesses by itself ipso facto may not create doubt regarding the veracity of the prosecution’s case. (Para 9)
(2002)6 SCC 470; AIR 1973 SC 1409; (2002) 8 SCC 45; (2004)1 SCC 414; AIR 1004 SC 261 – Relied upon.
(c) Code of Criminal Procedure, 1973 – Section 161 – Independent witnesses coming forward after seeing accused’s photograph in the media – No error in recording their statements. (Para 9)
(2002) 8 SCC 125; AIR 1956 SC 379; AIR 2002 SC 3462 – Relied upon.
(d) Indian Evidence Act, 1872 – Section 27 – Recoveries and discoveries duly proved – No infirmity in impugned judgment. (Para 13)
(2002)7 SCC 334 – Relied upon.
(e) Indian Penal Code, 1860 – Section 120-B – Where trustworthy evidence establishing all links of circumstantial evidence is available, the confession of a co-accused as to conspiracy even without corroborative evidence can be taken into consideration. (Para 15)
AIR 2002 SC 1661 – Relied upon.
Facts of the case :
1. Three or four unidentified persons came on motor cycles and attacked the deceased with sickles and knives and having killed him fled away.
2. The first appellant was arrested in a 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 and discovery of incriminating facts under Section 27 of Indian Evidence Act, 1872 connecting the accused with the crime.
3. The trial Court held that the prosecution had established the accusations and accordingly convicted and sentenced them.
4. Four of the accused persons filed appeal before the High Court. The High Court held that the appeal was sans merit.
Finding of the Court :
There is no infirmity in the impugned judgment.
Result : Appeal dismissed.
JUDGMENT
Dr. Arijit Pasayat, J.—
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 120B 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 PW5 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 break through 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. Shannlugam (PW-3) is a mason, Lakshmi (PW-4) is doing Textile business. PW3 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
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