Back
2008 Supreme(Mad) 3627
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE D. MURUGESAN & THE HONOURABLE MR. JUSTICE M. SATHYANARAYANAN
Kitchan Buhari & Others
Versus
State rep. by the Dy. Superintendent of Police, Tirunelveli
Crl. A. (MD) Nos. 420 and 422 of 2007
Decided on : 30-09-2008
For the Appellants:N. Natarajan, Senior Counsel, S.I.A.K. Bagadur Sha, K. Jaganathan, K. Thirumalai Raj, Senior Counsel, S. Chandrasekaran, V.S. Balakrishnan, Advocates.
For the Respondent: V. Kasinathan, Additional Public Prosecutor.
Ratios:
a. Courts are established for discovery of truth.
b. Delay in forwarding FIR to Magistrate by itself is not fatal to the case of the prosecution.
c. In case of contradictions in evidence, Courts are to separate grain from the chaff.
d. Examination of defence witness is a valuable right of the accused.
e. Non-production of case diary even after it is summoned raises adverse presumption against the prosecution.
f. Accused is entitled to summon case diary to contradict the police officer.
Headnote:(A) Indian Penal Code, 1860(45 of 1860)-Secs.302, 120B, 149-Murder-Three persons murdered in day light-FIR registered and investigated-Investigation transferred to CBCID-16 persons prosecuted-Theory of prosecution disbelieved by trial Court-Evidence of eye-witnesses believed-Appellants convicted-Appeal-Conviction challenged by appellants-Held-General diary not produced-FIR is doubtful-Delay in forwarding FIR to Magistrate-Contradictions and improvements in eye-witnesses account-Eye witnesses disbelieved-Appeal allowed.
(B) Code of Criminal Procedure, 1973(2 of 1974)-Sec.172-Case diary-Not a substantive evidence-Accused may use it for contradicting evidence of police officer.
Though the Case Diary / Daily Diary / General Diary is not substantive evidence nevertheless, in the event accused seeks to contradict the evidence of a police officer, certainly, he would be entitled to call for such Diary to be produced before the Court. Para 18.6
(C) Criminal Trial-Rights of accused-Defence witnesses-Adducing witness for defence is a valuable right-Denial violated rights of accused.
Adducing evidence in support of defence is a valuable right. The denial of that right amounts to denial of a fair trial. Para 18.6
(D) Indian Evidence Act, 1872(1 of 1872)-Sec. 114-Averse presumption-Non-production of case diary-Benefit goes to accused.
Though the prosecution is not bound to produce such General Diary in every case, in the present case even when the production of such Diaries are sought for, the failure on the part of the prosecution to produce the General Diary throws a serious doubt over the very presence of both the police constables who alleged to have recorded the FIRs in respect of both occurrence but at two different points of time. When an application for production of case diary was filed, strangely, the Investigating Officers of Melapalayam and Perumal Puram claimed that they have not even enquired about the existence of the General Diary till such time the investigation was transferred to the C.B.C.I.D. and they have pleaded ignorance of the presence of the General Diary in the police station……. On the facts and circumstances of the case, non production of the General Diary throws a very serious doubt as to the presence of both the Head Constable who claimed to have registered the FIRs. The Court can reasonably draw an adverse inference as to the non production of the General Diary in favour of the defence and against the prosecution in terms of Section 114(g) of the Indian Evidence Act, 1872. Para 18.7
(E) Indian Evidence Act, 1872(1 of 1872)-Sec.3-Appreciation of evidence-FIR-Unfilled up sheets of FIR form in between two consecutive crime numbers-FIR doubted.
It is also admitted case of the prosecution that six sheets provided with the same serial numbers for getting original and five copies of First Information Reports on every crime registered in the FIR Book and if one crime is registered under a particular serial number, the next immediate crime would be registered under the next serial number. In the case on hand, the second complaint concerned in Cr.No.234 of 1997 was registered under Sl.No.279023 and in between Sl.No.279020 and 279023, there are twelve sheets left over unfilled and admittedly there was no crime registered in between the two complaints in the case on hand. There is no explanation on the part of the prosecution, as to why those sheets were left over unfilled.
Para 18.7
(F) Indian Evidence Act, 1872(1 of 1872)-Sec.3-Appreciation of evidence-Delay in forwarding FIR to Magistrate-Not itself fatal-Along with other circumstances doubt is created on its genuineness.
Delay in FIR reaching the Magistrate by itself cannot be a ground to doubt the case of the prosecution, nevertheless, on the given facts and circumstances in the present case, when both the complainants claimed that they have lodged the complaint immediately after the occurrence and the complaints were registered at 10.00 p.m. and 10.30 p.m. respectively on 11.08.1997 and the residence of the Judicial Magistrate is situated just within 4 kilo meter from the police station, the FIRs in the murder cases that too involving triple murders with a very strong motive behind it, the delay of 3 hours in FIR reaching the Judicial Magistrate further adds to the doubt entertained by this Court as to the FIR on the other grounds. Para 19.1
(G) Indian Evidence Act, 1872(1 of 1872)-Sec.3-Appreciation of evidence-Contradictions-Duty of Court-Entire evidence not to be rejected-Courts to separate grain from the chaff.
The courts should keep in mind the principle of chopping of grain and separating chaff from the grain instead of rejecting the entire case of the prosecution on the ground of improvements made in the Court and find out the truth to the extent possible when the witness makes improvements, while deposing before the Court as against the implication of the accused in the statement under Section 161 of Cr.P.C. before the police. In our considered view that principle may not be applicable to the present case and when there are lot of contradictions of vital importance, resulting in improvement of the case between two statements of the same witnesses before two different Investigating Officers under Section 161 of Cr.P.C. Para 19.4
The maxim "Falsus in uno falsus in omnibus" which means, false in one thing, false in all may not be applicable to the criminal jurisprudence. When there are material contradictions in the statements of the witnesses, the same false the truthfulness of their statement and the credibility of their evidence would cast a doubt. This is more so when the accused would be entitled to contradict their statements made before the investigating officer at the time of cross examination in the course of trial. The improvements made before subsequent investigating officer from C.B.C.I.D. is not minimal and the improvements are to the extent both quantitatively and qualitatively. In our considered opinion, it would be highly unsafe to rely upon the complaints, FIRs and consequently the evidence of the eye-witnesses. Para 19.6
(H) Indian Evidence Act, 1872(1 of 1872)-Sec.3-Appreciation of evidence-Possibility of False implication-Duty of Court-Courts to be cautious in appreciating the evidence.
Normally, the Court would not let go the real culprits free, though the possibility of roping in some more enemies cannot be ruled out and if the foundation of the false implication is laid, the Court should carefully analyze the evidence and must scan the evidence with great care and caution. The first and foremost requirement for the Court in such circumstances is to carefully scrutinize the evidence available on record and found, is there any false implication. The evidence before the being ascribes to be trustworthy or capable of creating confidence, the Court should consider the same upon proper scrutiny. Para 21
(I) Criminology-Burden of proof-Accused is presumed to be innocent-Prosecution to prove the charges beyond reasonable doubt.
(J) Criminal Jurisprudence-Establishment of Courts-Purpose-Discovery and establishment of truth underlies existence of Courts of justice.
Criminal jurisprudence in India portrays only innocence of the accused till such time the charges are proved beyond reasonable doubt. Right from the inception of judicial system, it has been accepted that discovery and establishment of truth are the main purposes underlying the existence of Court of Justice. Even if two possible views are possible one pointing to the guilt of the accused and the other pointing to his innocence, the view which is favourable to the accused should be adopted. Para 23
D. Murugesan, J.
Both the appeals arise from the judgments of conviction and sentence in Sessions Case Nos. 725 and 726 of 2001 respectively on the file of Additional Sessions Judge Fast Track: Court No.1, Tirunelveli.
2. In Sessions Case No. 75 of 2001 on the file of the Additional Sessions Judge, Fast Track Court No.1, Tirunelveli, there were totally 13 accused put on trial on the following charges:
Table
2.1 The learned Additional Sessions Judge, FTC No. 1, Tirunelveli after full trial found A1 to A6 and A8 convicted and sentenced them under various offences as detailed below:
Accused Conviction Sentence
A1 to A6 and A8 Under Section 148 of IPC each of them to under go rigorous imprisonment for 3 years
A1 to A6 and A8 Under Section 449 of IPC each of them to undergo rigorous imprisonment for 10 years
A1 to A6 and A8 Under Section 341 of IPC each of them to undergo simple imprisonment for 1 month
A1 to A6 and A8 Under Section 302 read with 34 of IPC each of them to undergo imprisonment for life
A1 to A6, A8 were found hot guilty under Section 120(B) of IPC and they were acquitted from the Charge under Section 120(B) of IPC alone.
A7, A9 to A13 were found not guilty of any of the charges and they were acquitted from all the charges leveled against them.
2.2 Challenging the above said conviction and sentence recorded in S.C. No. 725 of 2001, the convicts A1 to A6 and A8 preferred Criminal Appeal No. 420 of 2007.
Crl. A. No. 420 of 2007:
3. The appellants in Crl. A. No. 420 of 2007 viz., A1 to A6 and A8 were put on trial along with other accused on the following prosecution case:
(i) All the accused are residents of Melapalayam Village. They founded a Sangam viz., Muslim Youth Sangam. A1 is the leader of the said Sangam. The said Sangam had close contact with a canned organization viz. A1-Umma. The members of the Sangam frequently met and they were closely watching the activities of the active members of
R.S.S. and also Hindu Front. They had a common object to attack the members, who were acting against Muslims. With the above common object in mind, they met in secrecy at Masthan Pallivasal located in Thaicka Street; Melapalayara Village and collected Rs. 100/-from each of the members of the Sangam, hired a Tata Sumo bearing Regn. No. TN 72 B 9191 and went to Courtalam where they purchased 6 Billhooks and 4 Knives for a total sum of Rs. 1,750/-and returned to Melapalayara Village. On returning to the Village, they concealed the above deadly weapons in the said Pall ivasal. Again they met in secrecy in the same pallivasal and hatched conspiracy to murder the supporters of R.S.S., in retaliation of murder of Immam Karishman at Chennai with the above common object at about 9. p.m. On 18. 1997, A1 to A16, whose names are shown in the charge sheet, went to the Flower Shop at Anna Street, run by one Kannan (since deceased (D-1) of Melapalayam; all the accused surrounded the shop and at the instigation of A1 and A2, the other accused via., A3 to A 10 surrounded the deceased Kannan; A1 cut the deceased with bill-hook on his left hand; A2 cut him on his chest, left thigh, left joint and also on his back; A5 cut the deceased on his mouth; A6 cut the deceased on his leg; A7 cut the deceased on his fore head; A3 cut the deceased on his cheek with knife, A8 cut the deceased with knife on his left cheek; A9 cut the deceased on his left chest with knife; as all the accused indiscriminately cut the deceased the deceased succumbed to injuries on the spot. As threw the blood stained aruval used for the commission of the offence of murder on the body of the de-ceased Kannan; and after committing the brutal murder, they left the scene of occurrence.
(ii) P.W.1 the brother of the deceased oft witnessing the occurrence, rushed to the police station and lodged Exhibit P-1 Complaint to P.W.26 the Head Constable attached to Melapalayam Police Station, who in turn registered the same in Cr. No. 233 of 1997 for the alleged offence under Sectio
