Rafeeq vs State by Inspector of Police

V. Kanagaraj, J.—The above Criminal Appeal has been preferred against the judgment dated 25.9.2001 rendered in S.C.No. 73 of 2001

by the Court of Additional Sessions Judge, Vellore , thereby convicting the appellant for the commission of offences under Sections 302 and

506(ii) I.P.C and sentencing him to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default to undergo R.I for one year for the

offence proved under Sec. 302 IPC and further to undergo sentence of one year R.I for the commission of the offence u/s 506(ii) I.P.C and further

ordering both the above sentences to run concurrently.

The case of the prosecution as projected before the trial Court was that the appellant/accused Rafeeq and P.W.1 Aslam Basha''s uncle''s son

Ali were friends; that the appellant was in Bangalore at the relevant point of time and he used to visit his sister Kurshied located at Ponniamman

Koil Street in Thirupattur; that P.W.1''s sister Haseena-P.W.6 is also residing in the same street; that while so, on 31.10.2000 when P.W.1 went

to see P.W.6 at about 9.30 p.m, in Ponniamman Koil Street, near a borewell, he witnessed the scene of the appellant and the said Ali quarreling

among themselves and when Ali asked the appellant as to why he was beating him, replying that he would do so and that he would not retire

without killing him; that P.W.1 and P.W.6 having witnessed this scene, they intervened and compromised them, as a result of which the appellant

and the said Ali went towards New Cinema Theatre in Tirupattur and P.W.7 Murugan, owner of a Tea-stall, opposite to the said Theatre also saw

both of them going towards Sarathy Lodge at 10.45 p.m, on that day; that suspecting some foul play, P.W.1 followed them while in the lane, near

a Mechanic Shop, the appellant pushed the said Ali on the ground and picking up M.O.1- stone from near by and assaulted him on his head

shouting that he would finish him; that the said Ali having sustained grievous injuries particularly on the head died on the spot and the entire episode

was witnessed by P.W.1 and since the accused threatened him that he would also kill him if he leaked out the occurrence, frightened, he did not

complain the same to anybody.

The further case of the prosecution is that the next morning P.W.1 hearing from others about the murder of Ali near the Mechanic shop, came

there, when P.W.2 Firoz, the brother of the deceased P.W.5 Balikies, sister of the deceased and P.W.3 Parveen, wife of the deceased were also

present and he saw the dead body and M.O.1 blood stained stone nearby and P.W.1 told his uncle what had happened the previous night and on

his advise, his uncle and himself went to Thirupathur Police Station, wherein P.W.1 gave Ex.P.1 complaint to P.W.14 Kannan, Sub Inspector who

registered the case and sent Ex.P.13 Express F.I.R to the Court and copies to higher police officials through P.W.11. Mohandoss Gr.I. Police

Constable.

The further case of the prosecution is that thereafter P.W.16, Loganathan, Inspector, received copy of the F.I.R and took up investigation and

went to the scene of occurrence and in the presence of P.W.4, Anumanadhan, V.A.O, Thirupathur and one Uthirakumar, prepared Ex.P.2

observation Mahazar, drew Ex.P.14 rough sketch and at his request, P.W.12 Gopalakrishnan, Photographer, photographed the dead body, which

have been marked as M.Os 8 to 10 and M.O.11 series; that in the presence of Panchayathars, P.W.16 Inspector held the inquest over the dead

body and prepared Ex.P.15 the inquest report; that thereafter he sent the dead body to the Government Hospital, Thirupathur with Ex.P.5

requisition for post-mortem through Constable P.W.13 Sivaji; that P.W.16 also recovered M.O.1 stone, M.O.2 blood stained soil and M.O.3

sample soil from the scene of occurrence in the presence of P.W.4 and Uthirakumar under Ex.P.3 Mahazar.

The further case of the prosecution is that P.W.9 Dr.Indhumathi, on 1.11.2000 at about 11.45 a.m, conducted the autopsy on the dead body of

Ali and found that on his right face grievous multiple injuries and his brain had come out through his ear, a contusion on his right side neck, a

lacerated wound on his three fingers of the right hand and a lacerated wound on his right knee. On internal examination he also noted the brain

grinding with fluid, his lungs and heart with contusion; that she issued Ex.P.6 post mortem certificate opining that the deceased appeared to have

died of hemorrhage and injury to skull and brain; that after postmorotem, P.W.13 Shivaji, Gr.I Police Constable recovered M.O.5 Lungi, M.O.6

shirt, M.O.12, banian, M.O.13 jatti and M.O.6 Silver ring from the dead body and handed over the dead body to the relatives of the deceased;

that he produced the said M.Os to P.W.16 Inspector under his special report Ex.P.12.

On 15.11.2000 at about 8.00 a.m., when P.W.8 Sayeed Karim, V.A.O, Tirupattur and his Assistant Uthirakumar were in their office, the

accused came and confessed to P.W.8 that he murdered Ali on the night of 31.10.2000 near Sarathy Lodge throwing a stone on his head and

requested P.W.8 to hand him over to the police. P.W.8 recorded this confession(Ex.P.4).

At 9.30 a.m, at the Tirupattur Town Police Station, P.W.8 handed over the accused to P.W.15 Periyasamy, Inspector and caused production

of Ex.P.4 Extra Judicial Confession. P.W.15 Inspector arrested the accused and sent him to Court for judicial custody.

P.W.16 came from leave, continued his investigation. He sent the case properties to Court with his requisition Ex.P.7, for chemical analysis.

P.W.10 Nizar Ahmed, Head Clerk of the Court sent them under Ex.P.8 Court''s letter. Later, he received Exs.P.9 to P.11 Biology, Serology

and Chemical Reports.

P.W.16 examined the witnesses and recorded their statements and completing investigation, he filed final report.

After the evidence of prosecution was over, the accused was examined u/s 313 Cr.P.C to explain the incriminating circumstances appearing in

evidence against him and the accused denied the commission of the offence.

During arguments, the learned counsel for the appellant besides furnishing the sequence of events such as the F.I.R framed, the date of

occurrence, the charges, the number of eye witnesses, the arrest of the accused and the extra judicial confession given to P.W.8, would further

submit that P.Ws.1 and 6 since being the interested witnesses, their testimony cannot be relied on; that the evidence of P.W.7 is not corroborating

the occurrence; that the extra judicial confession given by the appellant to P.W.8 cannot be used against the accused and there was no motive to

the occurrence; that the recovery of articles are not proved by the prosecution and also the place of occurrence is doubtful; that P.W.1''s evidence

is not believable since he had not reported the occurrence immediately to the police and the extra judicial confession had been given after the

commencement of the investigation and further there is no independent witnesses to speak to the occurrence.

The learned counsel for the appellant relies on the following judgment reported in 1995 2 L.W 513 (Raja & 2 others vs State), wherein, the

Division Bench of this Court has held that the extra judicial confession given to the Village Administrative Officer nearly two weeks after the

occurrence and after the commencement of the investigation is unreliable. It is further held that "" under R.72 of Criminal Rules of Practice, the

Village Magistrates are absolutely prohibited from reducing to writing any confession or statement whatever made by an accused person after the

police investigation bas begun

On the contrary, the learned Government Advocate (Crl.Side) relies on the decision reported in 2002 MLJ 583 (Ganesan vs State),wherein it

is held as follows:

Under Rle 72 of the Criminal Rules of Practice, ""the Village Magistrates are prohibited from reducing to writing any confession or statement

whatever made by an accused person after the police investigation has begun"". This provision has been intended to prevent false extra judicial

confessions being secured through the help of the Village Munsif after the commencement of the investigation. The value of the extra judicial

confession becomes less when it is obtained by a person in the position of the Village Munsif after investigation of the case by the police has

started. On a careful examination of the relevant provisions relating to the matter, it is not possible to state it is illegal or inadmissible in evidence,

but what should be the probative value of such confession depends upon facts and circumstances of each case"".

Sailing along with the judgment of the Lower Court, the learned counsel would submit that just for the simple reason that the eye witness is

related to the deceased or known to their evidence cannot be discarded from being conceded which depends on very many factors. In the case on

hand, the eye witness is not only related to the deceased, but also to the appellant/accused and there was no motive to the occurrence. The

medical evidence strongly suggests that the death could have been caused only by a weapon of a sort of M.O.1 stone and all other circumstances

favour only the guilt of the accused.

Dealing with the legality of the accused surrendering before P.W.8- Village Administrative Officer and giving confession based on which the

F.I.R has been framed, though Division Benches of this Court have decided that such a confession made to the Village Administrative Officer after

the commencement of the investigation is unreliable, but the same judgments would reveal that in consideration of R.72 of Criminal Rules of

Practice, though the Village Administrative Officers are prohibited from reducing to writing any confession or statement whatever made by an

accused person after the police investigation has begun could only be treated as unreliable, but it is also not possible to state that it is illegal or

inadmissible in evidence and the probative value of such confession depends only upon the facts of each case.

In this context, the learned Government Advocate (Crl.Side) relies on the decision reported in 1987 LW 375 (Valanjiya Chinnammal vs State

), wherein it is held:

On a careful examination of R.72 of the Criminal Rules of Practice, it is not possible to state a confessional statement recorded by a Village

Magistrate after investigation has begun is illegal or inadmissible in evidence, though the weight to be attached to the same may be a relevant

question for consideration on the facts and circumstances of each case"".

In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both , what this

Court is able to say is that it is a case of murder punishable u/s 302 IPC and for criminal intimidation punishable under Sec. 506(ii) IPC, for which

charge sheet has been laid and the trial Court i.e., the Court of Additional Sessions Judge, Vellore having conducted a thorough trial into the facts

and circumstances during which the prosecution, whose burden it is to prove the case beyond all reasonable doubts, since the same being the

standard of proof required under law, has examined 16 witnesses as P.Ws.1 to 16, out of whom P.W.1 is the eyewitness; P.W.2 is the brother,

P.W.3 is the wife and P.W.5 is the sister of the deceased and they all spoke to the occurrence in one form or other, though it is P.W.1, who is the

sole eyewitness in the case to have witnessed the occurrence of the commission of the offence of causing of the death of the deceased by the

appellant.

The other important witness is P.W.4, the Village Administrative Officer, before whom Ex.P.2 Observation Mahazar and Ex.P.14 - rough

sketch have been prepared and he would attest the same. P.W.9 is the doctor, who performed the post mortem on the body of the deceased and

would not only depose to the effect of conducting the post mortem, but also would issue Ex.P.6 Post Mortem Certificate on 1.11.2000, according

to which, she would find the right side face damaged and his brain having come out through his ear. A contusion on his right side neck and

abrasions would also be seen by these witnesses on the body of the deceased particularly on his three fingers of the right hand and a lacerated

wound on his right knee. This witness would also offer his opinion as to the cause of death stating that the deceased would have died of

hemorrhage shock and injury to skull and brain 8 to 12 hours prior to autopsy.

This medical evidence is directly corroborating the oral evidence adduced by the eyewitness P.W.1 and M.O.1 stone recovered from the spot,

since being the weapon of offence, which according to the evidence of P.W.9, is sufficient to cause the death in the manner that it has caused to the

deceased provided he has been pushed on the floor and assaulted by M.O.1 on his head.

The other important witnesses examined in this regard are the photographer through whom M.Os 8 to 11 would be marked and the constable,

who was responsible for the recovery of M.Os 5 to 7, the belongings of the deceased, which would be seized under Ex.P.12 Special Report.

P.W.14 - Sub Inspector of police is one, who received the complaint Ex.P.1 and registered the case in Thirupathur Town Police Station in Crime

No.443/2000 u/s 302 IPC and prepared Ex.P.13 Printed F.I.R, attested by P.W.1 the Express F.I.R has been sent to the Court and copies to the

higher officials.

P.W.15 Inspector of police conducted part of investigation and recorded the confession statement of the accused who was brought by Village

Administrative Officer P.W.8 and entrusted the accused with his custody and this extra judicial confession, which is said to have been given by the

accused with the Village Administrative Officer which is under vehement attack by the defence since the same was done after the registration of the

case by the police and having taken up the same for investigation. The learned counsel for the appellant relies on the following judgment reported in

1995 2 L.W 513 (Raja & 2 others vs State), wherein it has been held that "" under R.72 of Criminal Rules of Practice, the Village Magistrates are

absolutely prohibited from reducing to writing any confession or statement whatever made by an accused person after the police investigation bas

begun"" The learned Government Advocate (Crl.Side) relies on the decision reported in 1987 LW (Cri) 375 (Valanjiya Chinnammal vs State ),

wherein it has been held that it is not possible to state a confessional statement recorded by a Village Magistrate after investigation has begun is

illegal or inadmissible in evidence and therefore the probate value of such confession depends on the facts and circumstances and therefore, though

the confession , said to have been given by the accused before the Village Administrative Officer and recorded by him, cannot be treated for any

purpose of the case, still that is not affecting the case of the prosecution since even prior to that the case of the prosecution having been registered

and brought forth and therefore, the trial Court is able to overcome this minor hurdle that is caused.

The other evidence let in which is vital for consideration is that the Investigating Officer through whom the prosecution has marked many

documents and traced the entire case right from the beginning till the end and no specific mention need be made regarding the evidence of these

witnesses since they have been adduced satisfactorily. P.W.16 who would speak to the examining of the witnesses and recording of the

statements, effecting the recoveries and collecting the documents including Ex.P.9 Biological report, Ex.P.10 Serology Report, Ex.P.11 Chemical

report and Ex.P.12 the Special Report which are vital for consideration to decide the case and also to speak about the collection of M.Os

particularly the seizure of M.O.1 black stone with which the deceased was assaulted and murdered.

The trial court, having traced the facts and circumstances without missing any vital point from the pleadings and having followed the procedures

thoroughly particularly affording sufficient and reasonable opportunity for parties to be heard and framing points for consideration and having

permitted parties to record their evidence both oral and documentary and to record the material objects and in appreciation of those evidence in

the manner required under law, has arrived at the conclusion to hold that the prosecution has proved its case beyond all reasonable doubts for the

offence of murder punishable under Sec. 302 IPC and thus convicting and sentencing the accused to undergo imprisonment for life.

It is a case in which there are certain admitted facts such as that the deceased was not a desirable character and though acquainted with the

appellant/accused , at the time of the occurrence he was fully drunk and was been pestering the appellant/accused for something as a result of

which there arose a quarrel among themselves and the wordy quarrel developed into physical contacts and there had also been a compromise

effected by P.Ws.1 and 6 and thereafter, they went to another place nearby New Cinema Theatre, Thirupathur and from there going nearby

Sarathy Lodge near a mechanical shop, the appellant pushed the deceased on the ground and picking up M.O.1 stone, threw the same on his

head, thus killing him instantaneously.

In the manner in which the above occurrence is taken place, this Court is not able to find any pre-thinking or pre-meditation or pre-determined

notion entertained on the part of the appellant/accused and therefore, it is a case that could be held basically that the appellant has caused the death

of the deceased without any previous intention or motive nor any such ingredients have been brought forth on the part of the prosecution so as to

hold that the degree of gravity of the offence was so high to arrive at the conclusion to sustain a conviction u/s 302 IPC consequently to warrant a

punishment of imprisonment for life.

Though on facts and circumstances have come to be proved in the whole of the case, there is much evidence to hold that the death was caused

by the appellant and that he alone was responsible for the said commission of the offence, but still without any intention or motive, since the

occurrence has been perpetrated on the part of the appellant, only with the knowledge and fully knowing the consequences that such an act is

likely to cause the death of the deceased and therefore, in such circumstance, it is only proper to convict and sentence the accused u/s 304(ii) IPC

and therefore, it has become necessary on the part of this Court to cause its interference insofar as the conviction and sentence are concerned and

hence the following judgment:

i) In result, the above criminal appeal is partly allowed to the extent indicated hereunder:

ii) The conviction u/s 302 IPC and sentence of imprisonment for life as arrived at and imposed by the Court of Additional Sessions Judge, Vellore

is set aside;

iii) Instead the appellant is convicted u/s 304(ii) and sentenced to undergo R.I for five years.

Excepting for the above modification in the conviction and the sentence, for other reasons and conclusions arrived at in the judgment of the

Court of Additional Sessions Judge, Vellore shall persist.