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     IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 11 OF 2005

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.