IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 6-12-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN CRL.A.No.482 of 2010 Raji @ Mohanasundaram .. Appellant/Accused vs State by: Inspector of Police SRMC Police Station Porur, Chennai. (Crime No.1377/2007) .. Respondent/Complainant Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Principal Sessions Judge, Thiruvallur, made in S.C.No.107 of 2008 dated 14.6.2010. For Appellant : Mr.A.Natarajan Senior Counsel for Ms.A.Madhumathi For Respondent : Mr.V.R.Balasubramanian Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the Principal Sessions Division, Thiruvallur, made in S.C.No.107 of 2008 whereby the sole accused/appellant stood charged under Sec.302 of IPC (3 counts), tried, found guilty of murder and awarded life imprisonment along with a fine of Rs.1000/- and default sentence which were ordered to run concurrently. 2.Short facts necessary for the disposal of this appeal can be stated as follows: (a) The appellant along with his wife Geetha @ Keertha, the first deceased (D1), and two children namely Raghav, the second deceased (D2), and Rajarajeswari @ Renu, the third deceased (D3), was residing in the house of P.W.1 situated at Sakthi Nagar, Porur, as a tenant. On 20.8.2007 at about 5.15 A.M., on hearing a burst sound, P.W.1 rushed to the spot and found the fire and fumes and also noticed the air-cooler, bed and gas cylinder were all burning. At that time, his wife and both the children were lying on the floor. Immediately, he took all the four to SRMC Hospital, and after https://hcservices.ecourts.gov.in/hcservices/ admitting them, he gave Ex.P1, complaint, to P.W.15, the Inspector of Police attached to the respondent police station, on the strength of which a case came to be registered in Crime No.1377/2007 under Sec.174 of Cr.P.C. The printed FIR, Ex.P12, was sent to the Court. (b) P.W.15, who registered the case, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P13. Then he collected two cell phones, M.O.1 series, from the place of occurrence. He recorded the statements of the witnesses. Then he proceeded to SRMC Hospital and conducted inquest on the three dead bodies in the presence of witnesses and panchayatdars and prepared inquest reports, Exs.P14, P15 and P16 respectively. Thereafter, P.W.11, the Photographer, was summoned. On request, he also took the photographs, and the photos are marked as M.O.5 series. Following the same, the dead bodies were sent to the Government Hospital along with requisitions for the purpose of postmortem. (c) P.W.13, the Professor, Department of Forensic Medicine, Government Royapettah Hospital, Chennai, on receipt of the said requisitions, conducted autopsy on the three dead bodies and gave the postmortem certificates, which are marked as Exs.P7 to P9 respectively, wherein he opined that D1 and D2 would appear to have died of asphyxia due to throttling. He also opined that the cause of death of D3 could be consistent with blunt force obstruction to upper respiratory passage. (d) P.W.15 enquired the witnesses and recorded their statements. While the matter stood thus, on the next day i.e., 21.8.2007, when he enquired P.W.6, he came forward to state that the accused has confessed to him about the incident of murder. When he was enquired by P.W.15, the case was converted from Sec.174 of Cr.P.C. to Sec.302 of IPC. The altered FIR, Ex.P17, was despatched to the Court. (e) On 22.8.2007 at 8.15 A.M., the accused was arrested in the presence of two witnesses, and he gave a confessional statement voluntarily, which was recorded. The admissible part is marked as Ex.P4. Following the same, the witnesses were enquired, and their statements were recorded. On 28.8.2007, P.W.15 examined the Joint Engineer and others from the Electricity Board, and he also got a certificate marked as Ex.P18. He also obtained a certificate from the Manager of the Indian Oil Corporation, which is marked as Ex.P19 as to the cause of fire. Then, P.W.15 gave a requisition to the Chief Judicial Magistrate, Thiruvallur, for recording the statement of P.W.6 under Sec.164 of Cr.P.C. The same was recorded on 4.10.2007, which is marked as Ex.P11. Thereafter, P.W.15 recovered the gas cylinder and also other material objects in the presence of witnesses under Form 95, and they were sent to the Court. On completion of investigation, the Investigating Officer filed the final report. 3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 15 witnesses and also relied on 19 exhibits and 7 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which he flatly denied as false. On the side of the defence, one witness was examined as D.W.1, and five documents were marked as Exs.D1 to D5. On completion of the evidence on both https://hcservices.ecourts.gov.in/hcservices/ sides, the trial Court heard the arguments advanced on either side, and took the view that the prosecution has proved the case beyond reasonable doubt and hence found him guilty and awarded the above punishment. Hence this appeal at the instance of the appellant. 4.Advancing arguments on behalf of the appellant, the learned Senior Counsel Mr.A.Natarajan would submit that in the instant case, the prosecution had no direct evidence to offer, and it relied upon the circumstantial evidence; but, the prosecution has neither placed the necessary circumstances nor proved the same; that in the instant case, the cause of death as put forth by the prosecution, was that the accused/appellant caused the death of his wife and two children, namely D1 to D3 respectively, by causing asphyxia by throttling; that though the medical person was examined, he was not certain about his opinion; and that at the time of cross-examination, he has categorically stated that it is also possible due to the inhalation of the carbon monoxide. 5.The learned Senior Counsel would further urge that so many infirmities and lacunas are found in the prosecution case; that even at the time when P.W.1 entered into the house, the accused was also found lying on the floor along with others; that all the four were taken to the hospital; that it is an admitted position that the accused/appellant was also given treatment; but, the accident register copy of the accused/appellant was actually not placed before the Court; and that had it been placed before the Court, it would have brought to the notice of the Court the statement made by him and recorded by the medical person at the earliest, but not available. 6.Added further the learned Senior Counsel that in the instant case, the postmortem was conducted on the very day namely 20.8.2007; that had the Doctor given such an opinion that the deceased have died out of asphyxia due to throttling, immediately the case should have been altered to Sec.302 of IPC on the very day; but, it was not done; that it is a matter of surprise to note that only on the statement alleged to have been given by P.W.6 on 21.8.2007, the case was altered to Sec.302 of IPC, and hence the statement alleged to have been given by the accused to P.W.6 was to play a vital role; that from the cross-examination, it would be quite clear that such a statement could not have been given at all; that P.W.6 has candidly admitted that he reached the house at the earliest after receiving the telephone call, and when he went to the place, the Inspector of Police was also present, and the investigation was on; and that in such circumstances, it would be quite clear that such a statement could not have been given to him. 7.Added further the learned Senior Counsel that P.W.6 has not whispered about such a statement to anybody on the following days; that all would clearly be indicative of the fact that no statement could have been given by the accused/appellant to P.W.6 as claimed by him; that apart from that, P.W.6 was none else than the brother of D1; and that under the circumstances, no credence could be attached to the evidence adduced through P.W.6 before the trial Court. https://hcservices.ecourts.gov.in/hcservices/ 8.The learned Counsel would further submit that in the instant case, it is admitted by the Investigator that he went to the place immediately, and the gas cylinder was found to be bursting and burning; that he has actually called a person of managerial capacity from the gas company and he has given an opinion as found under Ex.P19; but, he has categorically stated that he did not visit the spot, and therefore, he could not give the reason for the burst of the gas cylinder; that insofar as the electrical appliances, no report was received from any Electrician; that apart from that, all the electrical appliances were not burning; that all would be indicative of the fact that the investigator did not proceed with the case in the proper line, but acted only on the statement alleged to have been given by the accused to P.W.6 as if it was a case of murder, but no evidence is available pointing to any circumstance connecting the accused with the crime; that under such circumstances, the trial Judge was carried away that it was a triple murder and found him guilty, and hence the judgment of the trial Court has got to be set aside and the appellant be acquitted. 9.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 10.It is not in controversy that following the inquest made by the Investigating Officer examined as P.W.15, all the three dead bodies were subjected to postmortem, and the postmortem Doctor, P.W.13, has given certificates, Exs.P7 to P9 respectively in respect of the three deceased persons. He has stated therein that D1 and D2 would appear to have died of asphyxia due to throttling and the cause of death of D3 could be consistent with blunt force obstruction to upper respiratory passage. This Court is of the considered opinion that the cause of death as put forth by the prosecution, was not only disputed by the appellant, but also not proved by the prosecution. In the instant case, P.W.1 is the landlord of the house where the accused/appellant was actually living with his wife and two children, who are shown as D1 to D3 respectively. On the date of occurrence at about 5.15 A.M., he heard the burst sound, and then he got entry and found all the four lying on the ground, and that is what is actually averred in Ex.P1, the report. If really the accused/appellant had caused the death of the three by throttling, there was no need for him to lie by their side, and also he was injured. He was also taken to the hospital along with three, and the three were declared dead. But he was admitted in SRMC Hospital. It is pertinent to point out, at this juncture, that at the time when he was admitted in the hospital and given treatment, the accident register in his regard would have been recorded and hence it should have been placed before the trial Court in order to make a clear appraisal of the case. But, the prosecution failed to produce the same. 11.Yet another circumstance which stood against the prosecution case, was the alteration of the case. Originally when Ex.P1, complaint, was given to P.W.15, a case was registered for suspicious death under Sec.174 of Cr.P.C. at about 8.30 A.M. on 20.8.2007, as could be seen from Ex.P12, the FIR. But, the case was altered to Sec.302 of IPC on 21.8.2007, as could be seen from Ex.P17, altered https://hcservices.ecourts.gov.in/hcservices/ FIR. It is pertinent to point out that the medical opinion which was given by the Doctor in the postmortem certificates that D1 and D2 died out of asphyxia due to throttling and the cause of death of D3 could be consistent with blunt force obstruction to upper respiratory passage, should have reached the Investigator immediately after the postmortem was over. Admittedly, all the three dead bodies were subjected to autopsy on 20.8.2007 itself. If to be so, when such an opinion was brought to the notice of the police that it was a case of homicidal death, then the case should have been altered to Sec.302 IPC immediately, but not done so. But, the Investigator only relying upon the statement made by P.W.6 which was recorded on 21.8.2007 to the effect that the accused/appellant gave him a statement that it was he who caused the death of the three by throttling, has converted the case to Sec.302 of IPC. Thus, as rightly pointed out by the learned Senior Counsel for the appellant, the evidence of P.W.6 had a vital role to play. P.W.6 has candidly stated that he immediately got the telephonic message and proceeded to the spot, and when he reached the spot, the Inspector of Police and other Constables were present. It would be quite clear that he should have met the accused/appellant only thereafter and that too, only in the hospital. When he was cross-examined, he would further state that even if such a statement was made, he did not either inform to the police or to any relations thereafter, and the reasons therefor were not known. It is pertinent to point out that D1 is his own sister, and if really such a statement was given by the accused as claimed by P.W.6, naturally one would expect him and the natural conduct of a person would be to inform to the relations, but he has not done so. It would be indicative of the fact that if really such a statement was given by him, it was thoroughly unbelievable, but the Investigator has actually altered the case to Sec.302 IPC only on his statement. So long as the evidence of P.W.6 remains unacceptable, then the factual foundation of the prosecution case goes. 12.Added further, as far as the opinion given by the medical officer concerned as to the cause of death as stated supra, the cross-examination would clearly indicate that he was not certain about his opinion. Apart from that, at the time when P.W.1 went to the spot, the gas cylinder and all the electrical appliances were burning. As far as those electrical appliances and gas cylinder were concerned, the Investigator did not take up investigation in that line. He did not even call any expert in respect of the burning of the electrical appliances or get a report. The Manager of the gas company was actually examined, and in his opinion he has categorically stated as a witness and also as found in Ex.P19 report, that he did not visit the spot, and therefore he did not give any final opinion. Hence it would be quite clear that when there was a burst of gas cylinder, the investigation was not conducted in that line, in order to rule out the possibility. All would clearly indicate that the prosecution has miserably failed to prove its case. 13.Before concluding the judgment, the Court has to point out that this Court is mindful of the caution made by the settled principle of law that in a given case like this where the case is rested upon circumstantial evidence, all the necessary circumstances must be placed and proved pointing to the chain without a snap and also pointing to the hypothesis that except the accused, no one could https://hcservices.ecourts.gov.in/hcservices/ have committed the offence. If this cardinal principle is applied, this Court is of the considered opinion that there is no option than to set aside the judgment of the trial Court. 14.In the result, this criminal appeal is allowed setting aside the judgment of the trial Court. The appellant is acquitted of the charges levelled against him, and he is directed to be set at liberty forthwith unless his presence is required in connection with any other case. The fine amount if any paid by him, shall be refunded to him. nsv Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To: 1.The Judicial Magistrate No.1, Poonamallee. 2.Do Through the Chief Judicial Magistrate, Thiruvallur. 3.The Principal Sessions Judge, Thiruvallur 4.The Inspector of Police, SRMC Police Station Porur, Chennai. 5.The District Collector, Thiruvallur. 6.The Director General of Police, Mylapore, Chennai. 7.The Superintendent, Central Prison, Puzhal, Chennai. 8.The Public Prosecutor, High Court, Madras + 1 cc to Ms. A. Madhumathi, Advocate SR No.86996 TEJ(CO) SR/20.12.2010 CRL.A.No.482 of 2010 https://hcservices.ecourts.gov.in/hcservices/