State, Rep. By Inspector Of Police, T.N vs Subair @ Mohamed Subair & Ors

The State of Tamil Nadu rep. by Secretary to Government ...Appellant

Versus

Subair @ Mohamed Subair and Ors. ...Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division Bench of the

Madras High Court directing acquittal of the respondents. Originally five

persons faced trial. The trial Court held the respondents guilty of offence

punishable under Section 302 of the Indian Penal Code, 1860 (in short the

`IPC'). It however held that the charge levelled against all the five accused persons under Section 120-B, IPC was not established. It also held that the

charge against 5th accused under Section 302 read with Section 120B, IPC

was not established. The four accused persons preferred appeal before the

High court which by the impugned judgment directed their acquittal.

2. Prosecution version in a nutshell is as follows:

Veeraganesh (hereinafter referred to as `deceased') and his friend

Ganesh (PW-1) @ Ganeshamoorthy and M. Ganesh (PW-2) were having

involvement in Hindu Munnani said to be a branch of R.S.S. The three

were friends. On 26.8.1989, Ganeshamoorthy (PW-1), M. Ganesh (PW-2)

met Veeraganesh at Rangakonar Street in Kattoor and spoke to him for

about ten minutes. Babu (PW-4) the brother of Veeraganesh was also

present at the spot when PW-1 and PW-2 spoke to Veeraganesh at the said

place. After a brief discussion among themselves for a while, Veeraganesh

went to Ganapathy along with PW-1 and PW-2 to meet his friend. As his

friend was not available at Ganapathy, they returned back to RSS office in

Ram Nagar and the three discussed among themselves for about ten

minutes. Then all the three came to the over-bridge via Kattoor. At about

7:30 in the night, the three were going from the round about of the over-

bridge towards the Post office road. On hearing somebody asking them to

2 stop, they looked back. At that time, A-I to A-4 who were armed with

weapons came towards Veeraganesh and PW-I and PW-2. A-1, A-2 and A-3

were armed with knives and A-4 armed with Aruval (sickle). On

approaching towards Veeraganesh, they asked him to stop, and stated that

he was caught now and can not escape and was lost once for all. Saying so,

A-I stabbed Veeraganesh on his abdomen and chest. A-2 who was armed

with a knife stabbed Veeraganesh on the left side of his head, left shoulder,

left thigh and on his leg. A-3 armed with knife assaulted Veeraganesh on

the back of his chest and on the side of his chest. A-4 armed with aruval

assaulted Veeraganesh on his head and face. PW-I and PW-2 pleaded to

leave him. The injured Veeraganesh bled profusely and fell into a pool of

blood. A sodium vapour light was glowing at the place of occurrence at the

said over-bridge. PW-19, the line man of Electricity Board, Coimbatore

Corporation stated that on the day of occurrence he switched on the lights in

the over bridge area at 6 PM in the evening and switched them off at 6 AM

on the next morning. PW-1 and PW-2 who pleaded to the accused to leave

Veeraganesh fled when they were threatened by the accused rushing

towards them with weapons saying that they would also be done away with.

When they returned to the place after some time, they noticed large quantity

of blood. They learnt from the conversation of two or three persons at the

3 spot that the injured had been removed to Hospital. The weapon of offence

used by A-4 at the time of occurrence is MO-1. The knives used by A-1 to

A-3 as weapons of offence are MOs:2 to 4.

PW-3 Selvaraj drove the Auto TAR-6474 from Railway function,

Coimbatore to flower market via the over bridge. At that time a person was

lying with bleeding wounds at the round about of the over bridge. He asked

PW-3 to take him to Hospital. PW-3 accordingly took him to Hospital and

admitted him.

At about 8.15 PM, the deceased was brought to Emergency Ward by

Selvaraj (PW-3), the Auto driver. Dr. Radhakrishnan (PW-13) was on duty

at that time in emergency ward. At that time, the said Veeraganesh told PW-

13 that on that night, at about 7.30 p.m., at the over-bridge near the Head

Post office, Coimbatore, 4 known persons whose identity was well known

to him, assaulted him with knives and aruvals. When PW-13 examined

Veeraganesh, he noticed various injuries on his body. PW-13 gave Tetanus

injection to Veeraganesh who had sustained the injuries and admitted him as

inpatient in the Trauma ward. PW-13 gave his opinion in which he had

stated that the injuries caused to Veeraganesh could have been caused by

the weapons which are MO-1 and MO-2 to 4 and has also issued a copy of

4 the Accident Register in this regard marked exhibit P-3. He sent the

information furnished in exhibit P-14 to the out-post Police station located

in the premises of the Hospital.

While PW-20 Vivekanandan was on duty at the Out Post Police

Station of Coimbatore Medical College Hospital on 26.08.1989, received

the copy of the intimation regarding the admission of Veeraganesh with stab

injuries and at 7.45 PM, he informed Coimbatore B-I Bazaar Police station

over telephone. Subsequently, the information was entered in the OP Police

Station records, and the Head Constable subsequently came and received

the intimation.

At about 8.15 PM while Raja Shanmugam (PW-22), the Head

Constable was on duty in Coimbatore B-1 Bazaar Police Station, on the

information given by PW-20, he visited the OP Police Station of the

Hospital and received the intimation. He visited the Trauma ward and

recorded the statement of the said Veeraganesh and read over the same to

him and on his acceptance that it was recorded correct, he got his signature

in the statement. The said statement is exhibit P-21. Veeraganesh was in a

condition to give the statement at that time. Dr. Jayaprakash (PW-25) who

5 was present with PW-22 at that time gave a certificate to the effect that

Veeraganesh was conscious and well oriented at the time of giving the

above said statement. The said certificate (Exhibit P-30) is incorporated in

Exhibit P-21. PW-22 returned to Police Station at 9.30 PM and registered

the case in Cr.No.1027/1989 u/s 307 IPC and sent the FIR along with the

complaint to the Chief Judicial Magistrate. He sent the copies of the FIR to

the concerned Superior officers. The FIR prepared by him is PW-22.

Chandrasekar (PW-27) was the inspector of Police of B-1 Bazaar

PS. He came to the Police station at 21.30 hrs before setting out on night

rounds. He came to know of the registration of this case by PW-22. As law

and order problem existed at that time within the area under his control, he

had to be present in that area in his station limits in view of the same.

While leaving the Police Station, he gave instructions to bring the FIR to

the SOC and accordingly after attending the law and order situation in his

limits, he came to the spot of occurrence in the night at 10.30 PM. The

place of occurrence was on the over bridge at Avinashi Road, Head Post

office road junction. He observed the scene of occurrence in the presence

of PW-5 Krishnan and Anand and prepared the observation mahazar

Exhibit P-1. The sketch of the scene is Exhibit P-31. PW-27 seized blood

6 stained earth from the spot of occurrence, the control earth from the spot of

occurrence (unstained tar portion of the road), the torn four yard dhoti,

currency notes, Hawai chappal and other materials (MOs 5 to 15

mentioned therein) under the cover of mahazar, in the presence of

witnesses. After making arrangements to bring a photographer to the spot

of occurrence, he visited the Hospital, examined and recorded the

statement of Veeraganesh, seized the blood stained shirt, brief worn at the

time by Veeraganesh, Exhibit P-16, Exhibit P-17 in the presence of PW-5

and in the presence of Anand under the cover of mahazar. As instructed by

PW-27, Johan (PW-26), the photographer, visited the spot of occurrence

on 26.08.1989 at 12 p.m and took photographs, which are MOs 19 to 26.

The negatives of the said photographs are MOs 27 to 34.

Smt.S. Kalavathi who was the Judicial Magistrate on 26.08.1989

received the requisition for recording the dying declaration (PW-11) at 10

PM, visited the Trauma ward in the Hospital and after knowing the details

regarding the concerned person, she examined him. After confirming that he

was conscious and well oriented, she recorded his statement. She took the

left thumb impression of the injured person on the dying declaration. The

said statement is Exhibit P-12. Doctor Balasubramaniam (PW-12), gave a

7 certificate to the effect that the injured was conscious at the time of giving

the dying declaration.

On 29.08.89, as per the information received by him, PW-27 arrested

the accused A-1 Zubair, A-2 Mohammed Khan, A-3 Rafi at 12.00 a.m. at

Podanur-Pollachi Road Junction at Aathupalam. When he enquired them

separately, they gave separate statements, which were recorded. On the

basis of these statements recoveries were made.

On 29.08.1989 at 7.30 P.M. while Dr. Govindaraj (PW-18) was on

duty in emergency ward, the accused Mohammed Zubair along with the

medical memo given by the inspector of Police, B-I Bazaar Police station,

came for treatment. He was having following injuries on his person:

1. A skin deep cut injury on his left index finger, it was of 2 cuts

length on the outer aspect of the finger. It was in a half healed state.

2. A small cut injury on his left thumb.

3. A contusion beneath his left ear.

8

He was treated as out patient. In this regard a copy of the exhibit P-19 was

issued. On the same day PW-18 examined A-3 Rafi and found the following

injuries on his person:-

1. A small cut injury on his right index finger.

2. A cut injury of about 1cm length sking deep on his left thumb.

He was also treated as out patient and a copy of the AR register, Exhibit P-

20 was issued.

Dr. Perumalrajan (PW-14) gave treatment to Veeraganesh on

27.08.89. He treated him to stabilise his general condition and blood

pressure to prepare him for the surgical operation. He performed the

surgery on him at 10:45 PM.

Dr. Baskaran (PW-16) examined Veeraganesh on the night of

31.08.89 at 9.30 PM and found his condition critical. Despite the intensive

treatment given Veeraganesh died at 11.25 PM on that night. In this regard

he sent an intimation Exhibit P-15. PW-27, the Inspector of Police who

received the intimation altered the section of law and submitted the express

9 report, altering the section into 302 IPC, Exhibit P-32, to the Judicial

Magistrate. Subsequently, he held inquest on the dead body of Veeraganesh

in the presence of witnesses at the Hospital and prepared the inquest report,

Exhibit P-33. He sent the requisition for post mortem examination of the

dead body, Exhibit P-17 through PW-21, the Police constable John

Viswanathan. On receipt of the requisition PW-17 Dr. Diwakaran, the

Additional Professor of Coimbatore Medical College Hospital, commenced

the post mortem examination at 8 AM on 01.09.89. During post mortem

examination he noticed abrasions with reddish brown scab, over the right

fore arm, over the back of the left shoulder, over the outer aspect of the left

arm, over the front of right knee and above the right big toe. Apart from

them, he noticed incised sutured wounds of muscle deep over the center of

the forehead, over the root of the nose, over the bridge of the nose, below

the lower lips, over the right side of the chin, over the right cheek, over the

lower portion of the right ear, over the right side of the angle of the jaw,

over the right side of the outer aspect of the neck, behind the right ear on the

scalp, over the parieto-occipital area, over the mid-occipital area, over the

root of the neck and left side of the front chest, over the right side aspect of

the chest, over the right side outer aspect of the chest. These injuries were

mentioned from 6 to 22. He also gave the measurements of the wounds.

10 Further, he mentioned the surgical wounds from 23 to 44. He also gave the

locations of the wounds and their measurements. He gave post mortem

certificate with his opinion, Exhibit P-28 stating that the deceased would

have died of septic complication of stab injuries over the abdomen. He

further stated that the injuries 41 to 44 were sufficient to cause the death of

an ordinary man. These injuries 41 to 44 were found on the small intestines.

PW-27 submitted a requisition, Exhibit P-23 sending the properties

seized in this case for chemical analysis. Rajamani (PW-23), the Head Clerk

deposed about the details regarding the details of the forwarding note sent

to the Forensic science Laboratory, Exhibit P-24 and regarding the reports

received from the said lab, Exhibit P-25 and Exhibit P-26.

Some of the witnesses spoke regarding the motive for the murder of

Veeraganesh and the criminal conspiracy hatched by the accused to murder

him. Durai (PW-7) stated to have witnessed all the accused on the night of

13.7.1989 at Oppanakara Street and also witnessed A-5 having a notice in

his hand and accused Hyder Ali having a tin box with glue in his hand. PW-

7 also witnessed them pasting the notice on a petty shop located opposite to

a bank. The notice contained the wordings, "Islamic Fatwa. We would

murder the RSS Mookambigai Mani, Sampath, Paramasivam who incite

11 religious ill-feelings, within a week" which also contained the word "jihad"

in it. PW-7 also spoke about having witnessed the four accused coming out

of a mosque discussing among themselves and later, going to the shop of

one Bilal Hajiyar and continuing the discussion in his shop about four days

prior to the occurrence. In the deposition given by Devan (PW-8), has

spoken about having witnessed the accused two or three times, at Bilal

Hardwares shop and discussing among themselves and also about having

witnessed the accused A-5 threatening Veeraganesh at Race course, in front

of cosmopolitan club, saying that "my anger would subside only if you are

murdered", Prior to a week before the occurrence. PW-8 further spoke about

having witnessed the four, five accused secretly discussing among

themselves in front of big mosque and their subsequent going in to the Bilal

Hardware shop.

In the evidence given by Sankar (PW-10), has stated that in about the

first week of August 1989, on a particular day, when he was going with

Veeraganesh near the over-bridge, the said five accused stared at him and

A-5 told Veeraganesh, "we are waiting for you only, wait" and further stated

that, when PW-10 hurriedly took Veeraganesh in an Auto and fled the

scene, A-5 told Veeraganesh, "you escaped today, how many days will you

have some one with you".

12 Sekar (PW-24), the Inspector of Police has given evidence with

regard to the cases registered against Veeraganesh and the accused. PW-24

has deposed about the Coimbatore B-1 Bazaar PS Cr. No.440/1998 u/s 141,

302, 149 IPC registered against Veeraganesh and 22 others, B-1 Bazaar PS

Cr.No.420/1998 u/s 141, 148, 341, 302 r/w 149 IPC registered against

Ramnarayan, Veeraganesh, Mookambikai Mani, Paramasivam and

Sampath; B-1 Bazaar PS Cr.No.3Z55/1998 registered against Basha and 10

others belonging to Muslim community. The accused were muslim

fundamentalists and the deceased Veeraganesh and others belonged to the

organisation Hindu Munnani and that a number of cases were registered

against them. Saraswathy (PW-9) is the mother of Veeraganesh. She had

spoken that her son was the District organiser in Hindu Munnani and that he

used to speak in the Public Platforms and that the muslims had an animosity

against him as a result of his speeches made in the public meetings.

Murugasamy (PW-5), the Inspector of Police, CB-CID, took

examination in this case on 2.9.1989. After examination of witnesses as per

the information received by him, he arrested the accused Hyder Ali at

Ambrampalayam on 7.9.1989 at 6 AM and subsequently sent him to

Judicial custody.

13 Mukkambu (PW-29), the Inspector of Police, CB-CID., arrested A-5

at Bilal Hardware in N.H, Road, Coimbatore on 23.09.1989. As per the

statements of witnesses Devan, Durai and Sankar, he arrested A-5 and

remanded him. He completed the investigation in this case and on 20.8.1990

he submitted the charge sheet against the accused u/s 120(B), 302 and 120

(B) read with Section 302 IPC against the accused.

After taking the evidences of the prosecution witnesses, as per the

Section 313 of Code of Criminal Procedure, 1973 (in short the `Code') the

accused were questioned with regard to the evidence led against them by the

prosecution. A-1 stated that it was a false case foisted against him and that

was not concerned in that case. A-2 submitted that the case was a false case

and that he was the first younger brother of Basha. A-3 stated that the case

registered against him was a false case and his father's name was Hanifa

and that Shajahan was not his father's name. A-4 stated that he was not at

all concerned in the case. A-5 stated that it was a false case intentionally

foisted against them. No defence witness was examined on behalf of the

accused.

14 On the basis of complaint filed, first information report was lodged

and investigation was undertaken. On completion of investigation, charge

sheet was filed. Since the accused persons pleaded innocence, trial was

held. Twenty nine witnesses were examined to further the prosecution

version. The trial Court found the accused guilty. In appeal, the High Court

found the evidence of PWs 1 and 2 as well as the so called dying declaration

to be not credible and cogent and directed acquittal.

3. It was submitted that the reasons given by the High Court to direct

acquittal are without any basis. There is no appearance for the respondents.

4. It is seen that PWs 1 and 2 stated that they had left the injured in

lurch and had disappeared from the scene making deceased to cringe an auto

driver to take him to hospital. Would any close friend of a person involved

in the movement allow such a thing to happen to him is the question

looming large and there is no explanation for it. Further, it is curious to note

that both PWs 1 and 2 have stated that they did not inform about the

occurrence to anybody till they were asked by the police in the mid night of

the date of occurrence. The conduct of PWs 1 and 2 is un-natural and

unbelievable and their presence at the time of occurrence is doubtful and the

testimonies of PWs 1 and 2 cannot be accepted.

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5. Veera Ganesan did not state in his dying declaration before the

Judicial Magistrate that accused Nos. 1 to 4 were his assailants in the

occurrence. Ex.P-12 is the dying declaration of deceased recorded by,

Judicial Magistrate Kalavathi (PW-11) at Coimbatore Medical College

Hospital. According to dying declaration of deceased from the hospital at

10.00 p.m. on 26.8.1989 she went and saw deceased in the Trauma Ward

and she put some questions to him and was satisfied that the injured was in

a fit condition and she recorded Ex.P-12 statement given by deceased in the

presence of PW-12 and she obtained the left hand thumb impression of him

in it. PW-12 has also given a certificate in Ex.P-12 that the patient was fully

conscious and was able to speak throughout the recording of the statement.

From the above, it is clear that the Judicial Magistrate after observing

formalities had recorded the dying declaration of deceased in the presence

of duty doctor. In that Ex.P-12 dying declaration. Deceased had stated as

follows:

"Today night four persons chased and stabbed me near the fly-over. Their names are not known. One month before, they exhibited posters that we would all be killed. It is not known who are they."

(Underlined for emphasis)

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6. Deceased in the above statement has stated that four persons attackd

him and he did not know their names. According to the prosecution case,

deceased knew all the accused very well since he had an encounter with all

of them a few days before the occurrence as is evident from the testimony of

PW-10. In such circumstance, if really accused Nos. 1 to 4 had attacked

deceased, definitely he would have told the names or identification of the

assailants. The prosecution relied on Ex.P-21 statement given by deceased

to PW-22 Head Constable in the Coimbatore Medical College Hospital as

his dying declaration. According to PW-22 Head Constable, he received

intimation about the admission of deceased in Government Hospital at 8.15

p.m. and he went to Trauma Ward in the hospital and enquiry deceased at

9.30 p.m. and recorded Ex.P-21 statement given by him and Dr.

Jayaprakash (PW-25) had given a certificate in it. PW-25 was not the doctor

on duty in Trauma ward at the time of recording Ex.P-21 statement and he

himself in the cross examination has stated that usually the doctor incharge

of the ward alone would certify in the dying declaration. Ex.P-21 statement

of deceased runs to two full pages and the names of the accused and the

overt acts on their part were mentioned in detail and the signature of

deceased is also found in it. Ex.P-21 was recorded at 9.30 p.m. by the Head

constable and Ex.P-12 was recorded at 10.15 p.m. by the Judicial

17 Magistrate. There is vast difference in both the statements with regard to the

contents and it is pertinent to note that Ex.P-22 first information report

based on Ex.P-21 complaint was received in the court at 6.40 a.m. on

27.8.1989 and Ex.P-21 statement as such had reached the court only on

28.8.1989. The actual complaint was not sent along with the first

information report and it leads to a serious suspicion as noted by the High

Court. In the circumstances, the dying declaration recorded by Judicial

Magistrate (PW-11) deserves acceptance and in it deceased did not

implicate accused Nos. 1 to 4 as his assailants.

7. The High Court highlighted the above said aspects to direct acquittal.

We find that the analysis made by the High Court to direct acquittal cannot

be faulted. The appeal is without merit and dismissed accordingly.

............................................J. (Dr. ARIJIT PASAYAT)

...........................................J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, December 18, 2008

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