(a) P.W.1 Rengaraj, is the husband of the deceased Rani.They wereliving at Ammapalayam Village.They used to take the cattle for grazing.Onthe date of occurrence namely 3.3.1999 at about 3.00 P.M., she took her cowfor grazing.Till 5.00 P.M., she did not return.P.W.3 Narayanan, whobelonged to the same place, was working at the field of one Poosigounder.Atthat time, the cow of the deceased got into the field.Immediately, he tiedthe same.At about 6.00 P.M., he returned with the said cow and informedP.W.1 about the same.When P.W.3 was proceeding, he found the accused sittingunder a banyan tree.P.W.10 Radhakrishnan, who belonged to the same village,found the accused sitting under a karuveli tree.The next morning, P.W.1 wasinformed by a boy that the dead body of his wife was found near the bushes.P.W.1 accompanied by his relatives, went over to the spot and found the deadbody of his wife in the bushes.They have also noticed that 7 + sovereigns ofgold jewels marked as M.Os.1 to 5, were found missing.Then, P.W.1 went toP.W.4 Arjunan, Village Administrative Officer, and gave a report.Based on Ex.(b) P.W.4 placed both Exs.P1 and P2 before P.W.9 Elangovan, SubInspector of Police, attached to Perambalur Police Station, who on thestrength of which, registered a case in Crime No.222/99 against the accusedunder Sections 302 and 379 of I.P.C. The First Information Report Ex.P8 wasdespatched to the Court.On receipt of the copy of the F.I.R., P.W.12 SyedMohamed, Inspector of Police, took up the investigation and proceeded to thespot.In the presence of witnesses, he made an inspection and prepared Ex.P3observation mahazar and Ex.P15 rough sketch.The bloodstained earth M.O.6 andthe sample earth M.O.7 were collected from the place under Ex.P4 mahazar.Inthe presence of witnesses and panchayatdars, he conducted inquest on the deadbody of Rani and prepared Ex.P16 inquest report.Through a Constable, thedead body along with a requisition was sent to the Government Hospital forpostmortem.Abrasion on the both heel posterior aspect 6 cm x 3 cm.The Doctor had issued a certificate Ex.P6 opining that the deceasedwould appear to have died of asphyxia 48-50 hrs before postmortem due to strangulation.(d) On 13.6.1999 at about 15.00 hours, the first accused was arrestedby P.W.13 Ramachandran, Inspector of Police, Padalur Police Station, at thetime of the investigation in some other case.The accused volunteered to givea confessional statement, and the same was recorded, pursuant to which he tookthe police personnel to his residence, and from there M.Os.1 to 5 the goldjewels, were recovered under a search list.The said articles were sent toCourt.Apart from that, the accused was also produced before the Court.Index: yesInternet: yesTo:The Additional Sessions Judge cum Chief JudicialMagistrate, Perambalur.The Inspector of Police, Perambalur Police Station.(Judgment of the Court was delivered by M.CHOCKALINGAM, J.) The first accused in a case of murder, in which he stood charged underSections 302 and 404 of Indian Penal Code along with the second accused, whostood charged under Sections 302 read with 109 and 404 read with 109 ofI.P.C., on being found guilty as per the charges and awarded punishment oflife imprisonment along with a fine of Rs.1,000/-, in default of which toundergo 6 months Rigorous Imprisonment, for the offence under Sec.302 ofI.P.C. and Rigorous Imprisonment for two years along with a fine ofRs.1,000/-, in default of which to undergo Rigorous Imprisonment for sixmonths for the offence under Sec.404 of I.P.C., has preferred this appeal.The second accused was acquitted of both the charges by the trial Court.The short facts necessary for the disposal of this appeal are:(c) On receipt of the requisition, P.W.7 Dr.Ganeshbabu, attached tothe Government Hospital, Perambalur, conducted the autopsy on the dead body ofRani and found the following injuries.External Injuries:ILL defined abrasion seen encircling the neck above the hyoidbone, the abrasion becomes broken at the back of neck.2. Abrasion 3 cm x 2 cm on the back of Right elbow, through whichfluid blood oozing.3. Abrasion in the back of left elbow 4 cm x 2 cm through whichfluid blood oozing.Abrasion left popliteal fossa 15 cm x 6 cm.Multiple abrasions over the left thigh which extends to the lower part of left buttocks.20 cm x 10 cm.Multiple abrasions over the both scapular region 6 cm x 4 cm.A-2was also arrested and produced before the Court.P.W.14 Panneerselvam,Inspector of Police, took up further investigation.A requisition wasforwarded to the Court for sending the material objects for chemical analysis.Accordingly, they were subjected to chemical analysis.P25 ChemicalAnalyst's report and Ex.P26 Serologist's report were received.On completionof the investigation, the Investigating Officer filed the final report, whichwas taken cognizance by the trial Court.In order to substantiate the charges levelled against the accused,the prosecution examined 14 witnesses and relied on 26 exhibits and 11material objects.On completion of the evidence on the side of theprosecution, the accused were questioned under Sec.313 of the Code of CriminalProcedure as to the incriminating circumstances found in the evidence of theprosecution witnesses.Both the accused flatly denied the same.No defencewitnesses were examined.The trial Court on consideration of the rivalsubmissions made and scrutiny of the materials, has found the first accusedguilty as per the charges and awarded the punishment referred to above, buthas acquitted the second accused.Hence, the first accused has assailed thejudgment of the lower Court before this Court.The learned Counsel appearing for the appellant made the followingsubmissions:The prosecution had no direct evidence in the case and had reliedexclusively on the circumstantial evidence.But, the prosecution has failedin both.According to the prosecution, the first accused was arrested on13.6.1999, and the requisition for conduct of the first identification paradewas given after a period of 10 months.The proceedingspertaining to the same, marked as Ex.P11 would clearly indicate that P.W.3could not identify the first accused, though he was shown not only once butalso thrice.Atthat time, P.W.3 identified the first accused.But, the second identificationparade has taken place after a very long time from the time of arrest i.e.,nearly one year and one month.This delay would be sufficient to reject theentire identification parade proceedings.Apart from that, at the time ofidentification parade itself, the first accused has categorically stated tothe Judicial Officer concerned that there were number of occasions when he wasshown to P.W.3, and in particular before the trial Court, where the firstaccused was produced.P.W.3 was already known to him and a relative also, andhence, he has identified the first accused.Under the circumstances, theidentification parade loses its significance in law.Added further, the learned Counsel for the appellant that so faras the recovery relied on by the prosecution, is concerned, there is norecovery under Sec.27 of the Evidence Act at all.Even from the evidence ofP.W.6, it would be clear that the place of arrest, confession and recoverywould differ.Apart from that, so far as the recovery is concerned, a perusalof the document would clearly indicate that it was not a recovery mahazar;but, it was only a search list, and it would also be strengthened by theevidence of P.W.6, who has deposed to the fact that there was no recovery;but, it was only a search, pursuant to which the gold jewels were recovered.Not even a mahazar has also been prepared in that regard.Under thecircumstances, the prosecution cannot place any reliance on the recovery, andthus, the recovery alleged to have been made, loses its importance.Therefore, the prosecution has nothing to put forth before the lower Court.Apart from the identification of thefirst accused by P.W.3, P.W.10 a villager and who was also a member of theHome Guard, has also identified the first accused before the trial Court,which has also been relied on by the lower Court.The learned Government Advocate would further add that so far asthe recovery of the gold jewels M.Os.1 to 5 was concerned, they, according toP.W.1, belonged to his wife.Further,from the evidence of P.Ws.6 and 13, it would be quite evident that thesejewels were recovered from the first accused, pursuant to the confession madeby him.A scrutiny of the evidence of P.W.6 would clearly indicate that itwas the first accused who gave a confessional statement recorded by theInvestigating Officer, pursuant to which the gold jewels have been recovered.Under the circumstances, the lower Court was perfectly correct in drawing thepresumption under Sec.114 of the Evidence Act that it was he who committed theheinous crime of murder, and hence, the defence version was rightly rejectedby the trial Court.In view of these reasons, the appeal is bereft of merits,and hence, it has got to be dismissed.This Court paid its full attention on the rival submissions madeand had a thorough scrutiny of the prosecution case as well as the materialson record.At that time, P.W.3was asked to identify the first accused.On all the three occasions, he couldnot identify.P14, that P.W.3 was able to identify thefirst accused, after a long delay of nearly one year and one month, whichwould be suffice to reject the identification proceedings.Apart from the above, the first accused even at the time of theidentification, has complained to P.W.11 Judicial Officer that he was shown toP.W.3 earlier, and P.W.3 was also known to him, and one occasion, he wasactually shown to P.W.3, who was sitting in the Court hall at the time whenthe other proceedings were going on, in order to identify him in this case.At the time of hiscross-examination, he has categorically stated that he gave an oral statementto the police the very next day, when they came for an enquiry, but, hisstatement was not recorded.When a query was raised by the Court in thisregard, the prosecution was unable to tender any explanation why such astatement was not recorded at that time.On the contrary, it is seen from therecords that the statement of P.W.10 was recorded only in the month ofSeptember 2000 and was sent to the Court.Hence, the conviction of theappellant/first accused under Sections 3 02 and 404 of I.P.C. and theconsequent sentence imposed on him by the trial Court, have got to be setaside, and the appellant is entitled to acquittal.In the instant case, the gold jewels M.Os.1 to 5 have been placedbefore the trial Court, and the first accused has not claimed them as of his,and when P.W.1 came forward to state that those jewels belonged to his wife,the same was not disputed by the appellant.Hence, a direction is issued thatthe gold jewels M.Os.1 to 5 have got to be returned to P.W.1 on his making arequest to the trial Court.In the result, this criminal appeal is allowed.The Principal District and Sessions Judge, Perambalur.The Superintendent, Central Prison, Chennai.The Public Prosecutor, High Court, Madras.

Sections cited: Section 302 in The Indian Penal Code, Section 379 in The Indian Penal Code, Section 3 in The Indian Penal Code