Rajalingam vs State Rep.By Inspector Of Police

RAJALINGAM .... APPELLANT

Versus

STATE REP. BY INSPECTOR OF POLICE .... RESPONDENTS

O R D E R

1. Three accused, including the sole appellant herein, were put on

trial for offence under Section 302/34 of the Indian Penal Code,

alternatively under Section 304-A of the Indian Penal Code. The Trial

Court convicted the appellant under Section 302 and other two accused

under Section 302/34 of the Indian Penal Code and sentenced them to

undergo life imprisonment.

2. Aggrieved by the conviction, they preferred C.A. No. 287 of 1998

and the Madras High Court by the impugned judgment maintained the

conviction of the sole appellant but set aside the conviction and sentence

of the other two accused persons and that is how the appellant is before

us with the leave of the Court.

3. According to the prosecution, the appellant was employed as

wireman while the other accused persons were employed as lineman at

the Divisional Office of the State Electricity Board, Pallapatty. The

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deceased Anandhan, the son of P.W.-1 Ponnambalam and P.W.-17

Shanmigathai were employed as contract labourers in the Board.

According to the prosecution, prior to the date of incident, the staff of the

Electricity Board collected donation during the Ramzan festival but the

deceased refused to be associated with the collection of donation. It is

alleged that during that period, appellant told him that he would be killed

by electrocution. The prosecution has further alleged that on 6th of

August,1991 at about 5.30 p.m., the appellant alongwith other accused

came to the residence of the deceased and told him that an electric fault is

to be rectified at Chinna Odai Street, Pallapatti. The deceased Anandhan

was taken to the said place for rectification of the fault and was asked to

climb on the electric post. According to the prosecution, appellant was

standing down the electric post while the other accused were near the

transformer and had switched off the electric line. It has further been

alleged that while the work was going on, the appellant informed the

other accused that work is over and they can switch on the line and as

directed, the line was switched on and the deceased who was at work was

electrocuted. In relation to the incident, a report was submitted by

Kannan (P.W.-15), Junior Engineer of the Electricity Board to the Police

Station and after investigation, charge sheet under Section 304-A of the

Indian Penal Code was filed. It is relevant here to state that P.W.-1

Ponnambalam, the father of the deceased filed complaint inter alia alleging

that the appellant alongwith other accused committed the murder of his

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son in furtherance of their common intention.

4. The trial of the accused persons, for offence under Section 304-A of

the Indian Penal Code was pending before the Magistrate whereas the

prosecution under Section 302/34 of the Indian Penal Code was before

the Sessions Judge. As both the prosecutions related to the same offence,

the matter pending before the Magistrate for trial was sent to the Sessions

Judge and both the cases were tried together in which common evidence

was led.

5. The Trial Court, on appreciation of the evidence, came to the

conclusion that all the accused in furtherance of their common object

caused the death of the deceased Anandhan and accordingly convicted

and sentenced all of them as above.

6. On appeal, the High Court acquitted the other accused persons but

convicted the appellant under Section 302 of the Indian Penal Code and

while doing so, observed as follows:

"18. Therefore, from the circumstances available, it would

be abundantly clear that it was A-1 who with his previous motive

aggrieved over the non-cooperation of the deceased in respect of

collection of amounts during Ramzan festival has taken him to

the electric post No. 235 and asked him to do the work. When

the deceased was carrying on the work, A-1 gave instruction to

A-2 and A-3 to switch on the transformer and caused his death."

7. Mr. S. GuruKrishna Kumar, learned counsel appearing on behalf of

the appellant submits that in the police case and in the complaint case,

different allegations have been levelled, which renders the prosecution

story unreliable. He points out that the evidence of P.W.-2 Rengan, P.W.-3

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Azhagan and P.W.4 Sampath were recorded for the first time in Court and

they have admitted this fact in their cross-examination. He has referred to

the topography of the place of occurrence as had surfaced in the evidence

of prosecution witnesses and submits that from their evidence, it is clear

that distance between transformer and the electric post was not only large

but intervened by several buildings and therefore it was not possible for

the appellant to give signal for switching on the line to the other accused.

He has also referred to the evidence of P.W.-5 and submits that from his

evidence, it would be evident that the prosecution has not come up with

the true story. On all these grounds, the appellant deserves to be granted

the benefit of doubt, submits Mr. Kumar.

8. Ms. Promila, learned counsel, however, representing the

respondents submits that both the Courts have concurrently found the

appellant guilty, his conviction does not deserve any interference by this

Court.

9. We have appreciated the rival submissions and find substance in

the submission of Mr. S. GuruKrishna Kumar. P.W.-2 Rengan is a road

side astrologer and claimed to be a witness to the occurrence but has

admitted that his statement was never recorded by the police during the

course of investigation and for the first time he is deposing during the

trial. Similar is the admission of P.W.-3 Azhagan, a rickshaw puller and

P.W.-4 Sampath, a Tailor. P.W.-5 Gopal has stated in his evidence that

the accused Sundararaj (since acquitted) had gone to the work at Chinna

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Odai Street after switching off the line from the transformer and after

completing the work, he returned and switched on the electricity line.

According to his evidence, while the acquitted accused was near the

transformer, the appellant herein, came and asked to switch off the line as

the deceased had got shock on the pole. He has not been declared hostile

by the prosecution. From his evidence, it seems that the transformer was

at a distance from the electric pole where the deceased got electrocuted

and the appellant rushed there to ensure that the line is switched off.

Thus, this witness has come out with an entirely different story. Further

from the topography of the place of occurrence, it was not feasible for the

appellant to instruct other accused standing near the transformer to

switch on the line. In the face of the aforesaid, we are of the opinion that

it would be unsafe to sustain the conviction of the appellant on the basis

of the evidence on record. Accordingly, he is entitled to be given the

benefit of doubt and we grant him that.

10. The appellant is on bail. He shall be discharged of his bail bonds.

11. In the result, the appeal is allowed, impugned judgment of

conviction and sentence is set aside with the direction aforesaid.

................................................J.

( HARJIT SINGH BEDI )

................................................J.

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( CHANDRAMAULI KR. PRASAD )

NEW DELHI,

FEBRUARY 23, 2011.