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PETITIONER: PANDIAN @ VEERAPANDIAN

       Vs.

RESPONDENT: STATE OF TAMIL NADU

DATE OF JUDGMENT:       24/10/1997

BENCH: M.M. PUNCHHI, SUJATA V. MANOHAR

ACT:

HEADNOTE:

JUDGMENT:                THE 24TH DAY OF OCTOBER, 1997 Present:               Hon’ble Mr. Justice M.M.Punchhi               Hon’ble Mrs.Justice Sujata V.Manohar U.R. Lalit,  Sr. Adv., Rajinder Singhvi, R. Santhana,, Advs. for Ashok Kr. Singh, Adv. With him for the appellant V.G.Pragasam, Adv. for the Respondent                       J U D G M E N T      The following Judgment of the Court was delivered: Mrs. Sujata V. Manohar,J.      This is  an appeal by the original accused no.1 Pandian @ Veerapandian  from a judgment of the Division Bench of the High Court of Madras convicting him under Section 120-B read with Section  304 Part  I of  the Indian  Penal Code. He has been sentenced  to seven  years’ rigorous  imprisonment. The prosecution case briefly is as follows:-      One Kunju  @ Gonvindraj  who was  the paternal uncle of PW.1 Raja  and was  related  to  accused  nos.1  and  2  had contested the  Preeidentship of  the  village  Panchayat  in 1986.  His   opponent  was  PW.4  Dhanamani.  PW.4  won  the election. Deceased  no.1 had  supported  PW.4  offering  him financial aid  and support  while accused  no.1 the  present appellant, was  a strong  supporter of  Kunju  @  Govindraj. There was,  therefore, enmity  between accused no.1 and PW.1 on the  one side  and deceased  no.1 and  the others  on the other side.  Accused no.1  was a Panchayat Union Contractor. The bills  which were due to him were not passed for payment and he  presumed that  this was done at the instance of PW.4 and his  men. The  stopping go  payment  led  to  a  quarrel between accused  no.1 and  PW.4 on  23.4.1986. In respect of this incident  PW.4 had  preferred a compliant at the police station.      On 25.4.1986  there was  yet another clash at 8.30 p.m. between the  group  supporting  PW.4  and  the  group  owing allegiance the  accused no.1.  In  this  occurrence  accused no.1, his  father and his younger brother sustained injuries and were  admitted to  Government Hospital,  Chidambaram.  A criminal complaint  has also been lodged in this connection. Two days  thereafter on 27.4.1986 there was another incident when PW.1 and other proceeded to house of Rajalaxmi the wife

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of deceased  no.1 and  abused  her  in  vulgar  language  in respect of which also a criminal complaint has been lodged.      It is  the prosecution  case that  some time thereafter the accused  no.1 told  PW.1 that deceased no.1 Kodandaswami was behind  the attach  on him,  his father  and his younger brother and,  therefore, deceased no.1 should not be allowed to live  any more.  Two or  three days prior to the incident accused no.1 escorted PW.1 to the tea shop of PW.13 situated in Melamoongiladi.  Accused no.1 asked PW.1 to fetch accused no.2 from  Chavadikuppam. Accused  no.2 is  also related  to accused no.1  and PW.1  Accordingly no.2  is also related to accused no.1  a bus  from his  village  which  is  about  40 kilometres away.  At about  5.30 P.M. in the evening the two accused and PW.1 came to the tea shop of PW.13. Accused no.1 told accused  no.2 that  deceased no.1  was responsible  for attacking him,  his father  and his  brother  and  hence  he should be killed. Accused No.1 returns to his native village from Bhawangiri  and accused no.2 could hit deceased no.1 by driving his  car over  him so  that it  would appear  as  if deceased no.1 had lost his life in a motor accident. Accused no.2 said  that he  did not know deceased no.1 and would not be able  to identify  him whereupon  PW.1 said that he would accompany  accused  no.2  in  the  car  and  would  identify deceased no.1.      On  25.5.1985  accordingly  in  the  evening  at  about 7.00/7.30 p.m.  PW.1 went  to the  workshop of accused no.2. thereafter both  of them  took Car No.TNJ-69, filled it with petrol and  reached Bhavanagiri.  The car  was  halted  near Chamundeeswari Temple. PW.1 let the car to ascertain whether deceased no.1 was still available in the market place or had left for  his village.  He ascertained that the deceased was in the  vicinity and  he had started his journey towards his village. Deceased  no.1. was  accompanied by deceased nos. 2 and 3  and PW.3  when the car came upon these persons. There were, thus, four person walking along the road. Accused no.2 told PW.1  that he  will not  be able  to hit  deceased no.1 along. He  will have  to hit all the persons. PW.1, however, directed him  to do  so. Accordingly  the accused no.2 drove his car and hit deceased nos. 1,2 and 3 as well as PW.3. The car drove  away thereafter. The car had suffered some damage for which  it had  to be  repaired. In  the meantime several persons had  gathered at  the spot  of the  accident.  As  a result of  the accident  deceased nos.  1,2 and 3 died while PW.3 sustained injuries for which he had to be hospitalised. A Criminal  complaint was lodged. We need to examined at any length the progress of the case. Accused no.2 surrendered on 11.6.1986.  PW.1  was  arrested  on  27.5.1987.  He  made  a confession on  1.6.1987. Ultimately  he has  turned Approver and was  pardoned on  14.7.1987. The  judicial confession of accused no.2  was recorded on 6.6.1987 which he has alter on retracted. Five charges were framed against the accused. The first charge  indicted both the accused for having conspired in the  company of  PW.1 to commit the murder of Kodandapani deceased no.1  in pursuance of which conspiracy accused no.2 did  commit   his  murder   by  driving   the  car   bearing registration No.  TNJ 69  and hitting the car against him at about 11.30.  p.m. on  22.5.1986 on Bhvanagiri-Kodalore main road. Conspiracy was allegedly hatched between 25.4.1986 and 22.5.1986. The  first charge also states that in the process of dashing  against deceased no.1, A2 dashed the car against Sundaram deceased  no.2, Vellaian  @ Arumukum  deceased no.3 and Harikrishnan  PW.3 resulting  in the  death of D2 and D3 and causing grievous injuries to PW.3. The second charge was framed against  A2 alone under Section 302 Indian Penal Code for having caused the death of D1 by dashing the car bearing

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No.TNJ 69  against him resulting in his death. The third and fourth charges  indicted A2  similarly for having caused the death of  D2 and  D3 and  the fifth  charge was  also framed against A2  under Section  307 Part II Indian Penal Code for having attempted  to murder  PW.3. in the course of the same transaction by dashing the car against him. On conclusion of the trial  the Learned  Sessions Judge  acquitted  both  the accused of  the first  charge  framed  under  Section  120-B I.P.C. A2,  however, was  found guilty of charges 2, 3 and 4 and was  sentenced to  undergo imprisonment for life on each count. He  as also  found guilty  under the fifth charge and was sentenced  to undergo  rigorous  imprisonment  for  five years; sentences  to run  concurrently. The  State  appealed before the High Court.      The High Court, in a detailed judgment, has re-examined the entire evidence which was led before the Sessions Court. The two  important pieces of evidence before the High Court, namely the  evidence of PW.1 who has turned Approver and the judicial confession  of A2 which was later retracted by him, have been considered by the High Court in the light of other evidence which  materially corroborates  these two pieces of evidence. The  High Court  has held  the evidence of PW.1 as reliable. It has also relied upon the evidence of PW.13, the owner of  the tea  shop who  has deposed  to the presence of both the accused and PW.1 in his tea shop at about 5.30 p.m. two or  three days prior to the incident. The High Court has held this meeting to be significant since accused no.2 was a resident of  a village  40 kilometres  away and  the unusual visit of the accused no.2 in the company of accused no.2 and PW.1 in  the tea   shop  of PW.13, has been taken note of as corroborative material.  The High Court has also relied upon the evidence  of PW.3  who has  spoken about the presence of PW.1 at  the shop of PW.24 at about 10.30. p.m. on the night of the incident. This witness has also spoken his leaving in the company of deceased no.1 and other for his village since it was  nearing 11.00 p.m. The High Court has also noted the evidence of  PW.2 who was present at the workshop of accused no.2 on  that particular  evening. He  has deposed that PW.1 came to  the workshop and stated that accused no.1 had asked for the  car after which accused no.2 and PW.1 left with the car. PW.15 who is an Attendant at the petrol pump where PW.1 and A2  stopped the  car to  fill it up with petrol has also deposed to their presence at the petrol pump. The High Court has also  referred to the testimony of PW.17 relating to the damage to  the car which was involved in the incident, which fits in with the nature of the damage spoken of by PW.1.      The High  Court has  also dealt at length on the motive for the  commission  of  the  crime  and  has  come  to  the conclusion that  the strongest  motive was  that of  accused no.1. The  High Court  has come to the conclusion that it is the machinations of accused no.1 which led to the commission of the  offences alleged.  The High  Court has gone into the question of  delay at  length regarding  the initial  report which  indicated   accidental  death   and  the   subsequent developments which  ultimately led  to the  framing  of  the present charges.  After a  detailed reasoning the High Court has come  to the  conclusion that  the  view  taken  by  the Sessions  Judge   is  not   a  plausible  view  at  all  and consequently there has been miscarriage of justice. The High Court has  reversed the  order of  acquittal of accused no.1 passed by  the Session  Judge. On the nature of the offence, the High  Court has looked to the nature of the evidence and convicted accused no.1 for conspiracy. It has, however, held that though  the  evidence  of  the  Approver  is  that  the conspiracy was  for commission  of murder  of deceased no.1,

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the  court   could  not  close  its  eyes  to  the  judicial confession of  accused no.2 which indicated that the offence expected to  be committed  was limited  to breakage of hands and legs  of deceased  no.1. The  High Court  said that  the benefit that  arises out  of the  confession of accused no.2 cannot be  denied to  accused no.1. Hence the High Court has convicted accused no.1 under Section 120-B read with Section 304 Part  I of  the I.P.C.  Similarly accused  no.2 has also been convicted  by the  High Court  under Section 120-B read with Section 304 Part I of the I.P.C. The detailed reasoning given by  the High  Court in  its judgment in exhaustive and convincing. There  is not  reason to  take a  view different from the  view taken  by the  High Court.  Hence the present appeal is dismissed.