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2008 Supreme(Mad) 2477
Before the Madurai Bench of Madras High Court
THE HONOURABLE MS. JUSTICE PRABHA SRIDEVAN & THE HONOURABLE MR. JUSTICE M. JEYAPAUL
Vijayan & Others
Versus
State through Inspector of Police, Pudur Police Station, Tuticorin District
Crl.A. MD. No. 570 of 2007
Decided On : 17-07-2008
C. Ramachandran for Appellants.
P. N. Pandidurai, Addl. Public Prosecutor, for Respondent.
Headnote:A. INDIAN PENAL CODE - SECTIONS 302, 307, 147 and 148 - Homicide in group violence - Deceased was police constable on duty - Violence erupted between two castes over election to local body - 300 people of one community gathered blocking traffic - Police party arriving at place of occurrence - Scuffle among police and the crowd - Deceased constable was attacked by one of crowd members - FIR in the name of 53 persons with their father/husband’s name - Out of 171 person roped in as accused by Government order, 160 persons discharged-Conviction of accused persons by Court - HELD, many doubts as regards M.Os taken from scene of occurrence, one hour delay in lodging FIR, inordinate delay in FIR reaching Court - Case of recovery of weapon is very fragile, failure to arrest accused at scene of occurrence, though as per eye witness accused were available, created doubt, eye witnesses said that police collided against each other in scuffle, crowed also injured and Prosecution has not come out with truth, recovery of sample blood stained earth and sample earth from scene of occurrence not possible since scene of occurrence was wet with rain - Conviction and sentence set aside - Villagers who gathered during occurrences were suggested to collect Rs.1,00,000/- and give to legal heirs of deceased police - Conviction and sentence setaside.
B. INDIAN EVIDENCE ACT - SECTION 27 - A3 & A8 refused to sign in confession statement - Such refusal created a dent in credibility of recovery of MO’s made, not safe to rely on (para 44).
Result: Criminal Appeal Allowed.
Per MS. PRABHA SRIDEVAN, J.
1. We are disturbed that in an incident an officer of the law enforcement agency, who went to the scene of occurrence in discharge of his duties lost his life. However, this fact cannot come in the way of our assessing the materials available on record to see if the prosecution has proved its case.
2. The accused were convicted and sentenced as follows by the trial Court.
Rank of Provision
Sl.No. the under which Sentence
accused convicted
(1) (2) (3) (4)
A1 and 6 months R.I. and to pay a
1 A2 148 I.P.C. fine of Rs.500/- with default
sentence.
A3, A5 6 months R.I. and to pay a
2 and A7 147 I.P.C. fine of Rs.500/- with default
sentence.
Sentenced to undergo Life
3 A3 and 302 I.P.C. Imprisonment and to pay a
A5 fine of Rs.2,000/- each with
default sentence.
4 A1, A2 302 read Life Imprisonment and to pay
and A7 with.149 I.P.C a fine of Rs.2,000/- each with
default sentence
A1 and 5 years R.I. and to pay a fine
5 A2 307 I.P.C. of Rs.1,000/- with default
sentence.
Section 3 of
A1 and Explosive 3 years R.I. and to pay a fine
6 A2 Substances of Rs.1,000/- with default
Act sentence
2 years R.I. and to pay a fine
7 A7 332 I.P.C. of Rs.1,000/- with default
sentence.
3. On the side of the prosecution, as many as 44 witnesses were examined and 67 documents and 46 Material Objects were marked. Neither oral nor documentary evidence was let in on the side of the defence.
4. The sum and substance of the case of the prosecution, in brief, as unfolded by the witnesses examined is as follows:-
Selvamani, P.W.38 was the Deputy Superintendent of Police, Vilathikulam Police Station. Pudur Police Station was under his control. One Mr.Balkrishnan belonging to Naicker Community and one Mr.Vijayan belonging to Adi Dravidar Community contested for Sankara-lingapuram Panchayat Election during the year 2001. There were frequent quarrels between them as the contest was critical.
5. On 17.10.2001 at about 11.00 p.m., the 2nd accused Ponraj lodged a complaint as against Saudhi @ Saudhiraj alleging that the said Saudhiraj belonging to Naicker Community abused him by calling his caste name. A case in Crime No.89 of 2001 on the file of Pudur Police Station for offences punishable under Sections 342, 294(b), 323, 324 of I.P.C. and Section 3(1)(x) of SC/ST Act was registered. The case was later on closed as ‘mistake of fact‘.
6. On 18.10.2001, one Vasudeva Naicker alleging that he was prevented from canvassing for the candidate Balakrishnan Naicker, lodged a complaint as against one M/s.Solairaj, Vijaya Kumar and Vijayan, the 1st accused herein. Thereupon a case in Crime No.90 of 2001 on the file of the said police station for offences under Sections 294(b), 323 and 324 I.P.C. was registered as against them. There was tension in the village in connection with the election for the office of Panchayat President, Sankaralingapuram.
7. On 15.11.2001, a case in Crime No.91 of 2001 on the file of Pudur Police Station was registered for offences under Sections 294(b) and 506(2) I.P.C. on the basis of the complaint given by Jothi Basu as against the 2nd accused Ponraj.
8. Esakki P.W.1 was serving as Sub-Inspector of Police at Pudur Police Station. When he was at the police station at about 6.00 a.m. on 16.11.2001, there was an anonymous call from Challichettypati. The telephonic message was that the houses were being attacked in the aftermath of the quarrel between the people belonging to Adi Dravidars and Chettiars in Challichettypatti. The Inspector of Police Shajahan, P.W.39, Esakki P.W.1, Murugan (deceased), Veerapandian, Muniyasamy P.W.7, Arumugam, Seetharaman P.W.4 and Constable Esakki P.W.6 went along with the Armed Force Constables Muniyasamy P.W.7, Devarajan P.W.2 and Chelladurai proceeded to Challichettypatti. Alleging that a false case was foisted on the 2nd accused Ponraj, the 1st accused Vijayan, the 3rd accused Gurusamy, the 5th accused Sivasankar along with 100 persons belonging to Adi Dravidars attacked and
