BAIL SLIP The Appellants/Accused namely 1.Palaniammal, W/o.Subramani; 2.Madhappan, S/o.Chinnakannu; 3.Murugan, S/o.Thalaikondan, 4.Boopathy, S/o.Chinnakannu were directed to be released on bail in and by the order of this Court dated 19.8.2006 and made in Crl.M.P.No.1/2006 in Crl.A.NO.646/2006. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.11.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NO.646 OF 2006 1.Palaniammal 2.Madhappan 3.Murugan 4.Boopathy .. Appellants Vs. The State rep. by the Inspector of Police, Palacode Police Station, Dharmapuri District (Crime No.168 of 2000) .. Respondent This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Additional Sessions Judge, Fast Track Court, Dharmapuri made in S.C.No.191 of 2004, dated 16.6.2006. For Appellants : Mr.K.Udayakumar For Respondent : Mr.V.R.Balasubramanian, APP - - - - JUDGMENT (The judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges the judgment of the Additional Sessions Division, Fast Track Court, Dharmapuri made in S.C.No.191 of 2004, https://hcservices.ecourts.gov.in/hcservices/ whereby the appellants 4 in number along with 3 others ranked as A- 5 to A-7 stood charged as follows: I Charge - A-1 to A-3 - S.302 r/w S.34 IPC II Charge - A-2 - S.506(2) IPC III Charge- A-1 to A-7 - S.302 r/w S.201 IPC On trial, A-1 to A-3 were found guilty under Section 302 r/w S.34 IPC and sentenced to undergo life imprisonment each and also to pay a fine of Rs.1000/- each, in default to undergo 3 months R.I. and A-1 to A-4 were found guilty under Section 302 r/w S.201 IPC and were sentenced to undergo 3 years R.I. and to pay a fine of Rs.1000/- each, in default to undergo 3 months S.I. and the sentences were ordered to run concurrently. A-5 to A-7 were acquitted of the charges levelled against them. Hence this appeal has arisen at the instance of A-1 to A-4. 2.The brief facts necessary for the disposal of this appeal can be stated thus: a)The first accused/the first appellant is the wife of the deceased Subramani. A-2 is the brother of A-1. A-3 is the brother of the deceased. A-4 and A-5 are the sisters' husbands of A-1. A-7 is the sister of A-1 and A-6 is the husband of A-7. A-1 and A-3 had developed illicit intimacy, which was objected to by the deceased. A-2 also purchased some landed properties from the deceased and though the entire consideration was paid, the possession was not handed over, thereby the accused were on inimical terms with the deceased. Apart from that, the deceased used to come in a drunken mood often and put A-1 to cruel treatment. All put together, all the accused hatched up a plan to cause murder of the deceased. Accordingly, on 19.02.2000 at about 9.00 p.m., they caused the death of the deceased. Thereafter, they took the dead body and buried in a nearby place. After a few days, A-1 to A-7 again went to the place and exhumed the dead body and packed it in a urea bag. A-4 to A-6 brought the dead body in a TVS 50 and after leaving the dead body in the road side coconut fibre heap, they left the place. b)On 29.02.2000, P.W.1, the Village Administrative Officer, was informed about the dead body. He proceeded to the spot. Then, he went to the Karimangalam police station and lodged a written complaint Ex.P.1 to P.W.13, the Sub Inspector of Police. On the strength of the same, a case came to be registered in Crime No.268 of 2000 under Section 174 Cr.P.C. Ex.P.17, the F.I.R. was despatched to the Court. c)P.W.14, the Tahsildar, Palacode, on receipt of the copy of the F.I.R., proceeded to the place of occurrence and conducted inquest on the dead body of the deceased in the presence of the https://hcservices.ecourts.gov.in/hcservices/ witnesses and panchayatdars and prepared Ex.P.18, the inquest report. P.Ws.1 to 4 have identified the dead body of the deceased. The final report was marked as Ex.P.19. d)P.W.15, the Inspector of Police of Karimangalam Police Station, took up the investigation and proceeded to the spot. He came to know that the occurrence has taken place within the circle of Palacode Police Station. Then, the case was transferred to Palacode Police Station. e)P.W.16, the Inspector of Police of Palacode Police Station, received the case file and renumbered the F.I.R. as Crime No.168 of 2000. Ex.P.21, the F.I.R. was despatched to the Court. On 8.3.2000 when P.W.6, the Village Administrative Officer, was in his office, A-1 appeared before him and gave confessional statement, which was recorded and marked as Ex.P.2. Following the same, she was produced before the respondent police station. A-1 came forward to give confessional statement, which was recorded in the presence of the witnesses. Following the same, the case was converted to Sections 302 and 201 IPC. Ex.P.22, the express report was sent to the Court. f)P.W.16 proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.4, the observation mahazar and Ex.P.23, the rough sketch. He recovered the material objects from the place of occurrence under a cover of mahazar. The first accused was sent to judicial remand. g)P.W.10, the Doctor attached to the Government Hospital, Palacode, on receipt of the requisition, went to the place of occurrence and conducted post-mortem on the dead body of the deceased and has issued Ex.P.13, the post-mortem certificate and Ex.P.14, final report, wherein he has opined that the deceased probably died of asphyxia as a result of strangulation 10 to 15 days prior to autopsy. h)On 10.03.2000, the second accused was arrested in the presence of the witnesses and he came forward to give a confessional statement, which was recorded in the presence of the witnesses. The confessional statement of A-2 was marked as Ex.P.10. Pursuant to the same, he produced M.Os.6 and 7, which were recovered under a cover of mahazar. A-3 was also arrested. On 14.3.2000 at about 17.00 hours, A-4 was arrested and he came forward to give confessional statement, which was recorded in the presence of the witnesses. The admissible part of the same was marked as Ex.P.6. M.O.5, TVS 50 was recovered from him under a cover of mahazar. All the material objects recovered from the place of occurrence, from the dead body of the deceased and the M.Os recovered from the accused were sent for chemical analysis by the Forensic Science Department. Ex.P.15, Bone case report and Ex.P.16, the Chemical Report were received. Then, the case was handed over to P.W.17, the Inspector of Police, who took up further https://hcservices.ecourts.gov.in/hcservices/ investigation and on completion of the investigation, he filed the final report. 3.The case was committed to the court of sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution has examined 17 witnesses and also relied on 25 exhibits and 7 M.Os. On completion of the evidence on the side of the prosecution, all the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which they flatly denied as false. No defence witness was examined. After hearing the arguments advanced, the trial court has found A-1 to A-4 guilty as stated above and awarded punishments as referred to above. A-5 to A-7 were acquitted of the charges levelled against them. Hence this appeal has arisen at the instance of A-1 to A-4. 4.Advancing arguments on behalf of the appellants, the learned counsel would submit that the prosecution has no direct evidence to offer; that it had rested its case on circumstantial evidence; that the occurrence has taken place on 19.02.2000, but the complaint was given only on 29.02.2000 and that too by P.W.1, the Village Administrative Officer; that the first and foremost circumstance relied on by the prosecution was the extra judicial confession alleged to have been given by A-1 to P.W.6, the Village Administrative Officer and the same was readily accepted by the lower court, but it should have been rejected; that according to the prosecution, A-1 appeared before P.W.6 and gave extra judicial confession on 8.3.2000, but according to P.W.3, A-1 was taken into custody and she was actually in custody from 29.02.2000 onwards and she was kept in police custody for a week and thus, it would be quite clear that when she was in the police custody, the confessional statement was recorded and that the claim of the prosecution that A-1 appeared before P.W.6, who recorded the extra judicial confessional statement and thereafter, it was he who took her to the police station, were all thoroughly false. 5.Added further the learned counsel that in the instant case, P.W.6 has clearly admitted that he was not at all acquainted to A- 1; that apart from that the extra judicial confession has come into existence after a period of 20 or 25 days; and that it is unnatural that A-1 gave extra judicial confession to P.W.6, who was not at all known to her. 6.The learned counsel would further add that the second circumstance relied on was the abscondance of A-1, which is not correct at all; that there is evidence available to state that for a period of 3 days, she was not found, but at the same time, the mere abscondance would not be sufficient; that according to defence, she was searching for her husband and has informed to the relatives; that so far as the other accused were concerned, they were actually identified and brought in pursuant to the extra judicial confession, which should have been rejected for the reasons stated above; that the prosecution has stated that it was a https://hcservices.ecourts.gov.in/hcservices/ case where there was illicit intimacy between A-1 and A-3, but no evidence was available to that effect; that in the instant case, even the medical opinion canvassed was not in support of the prosecution; that according to the prosecution, the deceased has died of asphyxia as a result of strangulation, which was committed by the accused; that when the dead body was subjected to post- mortem, it was in decomposed stage and thus, no final opinion as to the cause of death could be given and under these circumstances, the prosecution was unable to establish the cause of death also; that all put together would go to show that the prosecution has not proved the guilt of the accused and hence the appellants are entitled for acquittal in the hands of this court and that all the above aspects were not considered by the trial court and therefore, both the legal and factual positions have got to be considered by this court. 7.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 8.It is not in controversy that the dead body of the husband of A-1 was found on 29.02.2000 by P.W.1 and it was he who gave the complaint to the police station and a case came to be registered under Section 174 Cr.P.C. P.W.14, the Tahsildar has conducted inquest on the dead body and has issued Ex.P.18, the inquest report. Following the same, the dead body was subjected to post- mortem by P.W.10, the Doctor, who has issued Ex.P.13, the post- mortem certificate and Ex.P.14, final report, wherein he has opined that the deceased would probably died of asphyxia as a result of strangulation 10 to 15 days prior to autopsy. At this stage, it could also be seen that the fact that the deceased died out of homicidal violence was not disputed by the appellants at any stage. From all these things canvassed by the prosecution, it could be well stated that the prosecution was successful enough to prove the fact that the deceased died not in a natural way, but otherwise. 9.In order to establish the charges levelled against the accused/appellants, the prosecution rested its case entirely on the circumstantial evidence, since it had no direct evidence to offer. According to the prosecution, the occurrence has taken place on 19.02.2000, but the dead body was found on 29.02.2000. The prosecution started its case that A-1 had got illicit intimacy with A-3, but as rightly pointed out by the learned counsel for the appellants, there is no evidence in this regard. Merely because of the prosecution failed to prove the motive, the case of the prosecution need not be taken as failed. In the instant case, the prosecution has rested its case on circumstantial evidence. It is a well settled proposition of law that in a given case like this where the prosecution rested its case on circumstantial evidence, necessary circumstances must be placed and proved pointing to the guilt of the accused and also the hypotheses that except the accused no one else could have committed the offence. If this test https://hcservices.ecourts.gov.in/hcservices/ is applied in the instant case, this court is afraid whether the court can sustain the conviction as done by the trial court. 10.The first circumstance relied on by the prosecution and accepted by the trial court was the extra judicial confession alleged to have been given by A-1 to P.W.6 on 8.3.2000. The occurrence has taken place on 19.02.2000 and the case was registered originally on 29.02.2000. According to the prosecution, A-1 appeared before P.W.6, V.A.O. on 8.3.2000 and gave extra judicial confession and the same was marked before the court, whereby the entire incident has been narrated. Contrarily, P.W.3 has deposed that A-1 was taken to the police station and was kept in custody for a period of one week and after a period of one week from the date of exhumation of the dead body, A-1 was examined. Thus, it would be quite clear that the claim of the prosecution that A-1 appeared before P.W.6, V.A.O., who recorded the extra judicial confession and then, he took her to the police station, were all false. The extra judicial confession, which was alleged to have been given to P.W.6 and also to the Investigator were all nothing, but created documents. It is also quite unnatural that A- 1, who was not at all acquainted to P.W.6, V.A.O., went to his office and made such a statement. All put together would go to show that the extra judicial confession should not be given any credence and no evidentiary value could be attached at all. 11.The other circumstance pointed out by the prosecution before the trial court was that A-1 was absconding for a long time. The mere abscondance by the accused in a criminal case will not by itself point out the criminal culpability. Further, in the instant case, from the evidence available, it would be quite clear that she was absent for a few days and according to defence, she has informed to relatives. Merely because of absence of A-1, it cannot be taken as proof that she has committed the offence. So far as the other accused are concerned, only after the confession of A-1, all the accused have been brought in. So far as the recovery part was concerned, even assuming that the recovery of weapon of crime was made, the same by itself would not be sufficient to sustain conviction. 12.The crowning circumstance, which casts a doubt on the prosecution case was as to the cause of death. According to the prosecution, all the accused committed the murder of deceased by strangulating him, but Ex.P.14, the final report, reads as follows: "Since the body is in advanced decomposition water out any bony injuries. No definite cause of death can be given. The deceased would probably died of asphyxia as a result of strangulation of dead 10 to 15 days prior to autopsy." https://hcservices.ecourts.gov.in/hcservices/ A reading of Ex.P.14 would clearly indicate that P.W.10, the Doctor could not give any definite cause for death, because the dead body was in such a decomposed stage and thus, the cause of death was not proved by the prosecution. Hence the circumstances relied on by the prosecution, in the opinion of the court, were neither cogent nor made out a chain pointing to the guilt of the accused. 13.Since A-1 is the wife of the deceased, there were lot of suspicion available, which could be noticed by the court, but the mere suspicion will not be a substantial proof. Hence in the absence of any iota of proof or circumstance pointing to the complicity of the offender, this court cannot sustain conviction and under these circumstances, the trial court should have rejected the prosecution case. 14.In view of the reasons stated above, the conviction and sentence imposed on the appellants by the trial court are set aside and they are acquitted of the charges levelled against them. The bail bonds if any executed by the appellants shall stand terminated and the fine amounts if any paid by them shall be refunded to them. Accordingly, this criminal appeal is allowed. vvk Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To 1. THE ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT, DHARMAPURI 2. THE PRINCIPAL DISTRICT JUDGE, DHARMAPURI. 3. THE JUDICIAL MAGISTRATE, DHARMAPURI. 4. -DO- THROUGH THE CHIEF JUDICIAL MAGISTRATE DHARMAPURI 5. THE CHIEF JUDICIAL MAGISTRATE, PUDIKOTTAI https://hcservices.ecourts.gov.in/hcservices/ 6. THE SUPERINTENDENT, CENTRAL PRISON VELLORE; 7. THE DIRECTOR GENERAL OF POLICE CHENNAI 8. THE DISTRICT COLLECTOR, DHARMAPURI 9. THE INSPECTOR OF POLICE, PALACODE POLICE STATION, DHARMAPURI DISTRICT. 10. THE ADDITIONAL PUBLIC PROSECUTOR HIGH COURT, MADRAS. 1 cc to Mr.K.Udayakumar, Advocate, SR.61576 ntk (co) dv/12.11. CRL.A.NO.646 OF 2006 https://hcservices.ecourts.gov.in/hcservices/