IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10-11-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH CRL.A.No.219 of 2009 Raja @ Thadikara Babu .. Appellant/Accused vs State Rep. By The Inspector of Police Ambur Town Police Station Vellore District (Cr.No.92 of 2007) .. Respondent/Complainant Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge, Fast Track Court, Thirupathur, Vellore District, made in S.C.No.57 of 2008 dated 31.10.2008. For Appellant : Mr.M.G.Sankaran for Ms.Shantha Kumari For Respondent : Mr.Babu Muthu Meeran Additional Public Prosecutor JUDGMENT (Judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Additional Sessions Division, Thirupathur at Vellore, made in S.C.No.57 of 2008 whereby the sole accused/appellant stood charged, tried and found guilty under Sections 302 and 404 of IPC and he was awarded life imprisonment and three years Rigorous Imprisonment respectively. 2.Short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is the elder son of Vijayakumari, the deceased. P.W.2 is the elder sister of Vijayakumari. P.W.8 is the daughter of P.W.2. Vijayakumari was living along with the family members in Door No.1, Ramalingam Complex, Indira Nagar, Ambur. P.W.6 is the owner of the said property. The appellant/accused used to come to the house of the deceased for electrical repairs. On that account, P.Ws.1 and 2 and the family members knew him. P.W.1 and his wife would go for employment at 8.30 A.M. P.W.1's son would also go to the school at the same time. The deceased used to be alone in the house. (b) On 11.4.2007, the date of occurrence, at about 11.30 A.M., when she was alone in the house, the accused got inside. This was actually witnessed by P.W.2 when she was proceeding to the house of her daughter, P.W.8, along with another sister. At the time, when https://hcservices.ecourts.gov.in/hcservices/ P.W.1 was in his place of employment, he received a phone call from his uncle that his mother Vijayakumari was found dead, and immediately he proceeded to his house and found the dead body, and one of the ear studs was found missing. When the dead body was noticed, the arms were tied at the back, and also the mouth was closed. He immediately informed to others and proceeded to the respondent police station, where the Sub Inspector of Police, P.W.13, was on duty to whom P.W.1 gave Ex.P1, the complaint, on the strength of which a case was registered in Crime No.92 of 2007 under Sections 302 and 380 of IPC. The printed FIR, Ex.P16, was despatched to the Court. (c) P.W.14, the Inspector of Police, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection and prepared Ex.P2, the observation mahazar, and also Ex.P17, the rough sketch. He conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P18. Thereafter, P.W.4, the Photographer, was engaged for taking photographs. The photos and its negatives are marked as M.O.s.11 and 12 series respectively. Then the dead body was sent to the Government Hospital along with a requisition for the purpose of postmortem. (d) P.W.11, the Civil Surgeon, attached to the Government Hospital, Ambur, on receipt of the said requisition, conducted autopsy on the dead body of Vijaya Kumari and has issued a postmortem certificate Ex.P11, with her opinion Ex.P12 that death was due to compression of air way obstruction. (e) At the time of postmortem, M.Os.1 and 2, ear stud and nose screw respectively, were removed from the dead body, and on the request of P.W.1, they were handed over to him by the Investigator. While the investigation was pending, the accused was arrested in connection with Crime No.64 of 2007 registered by Alangayam Police Station. When P.W.12, the Sub Inspector of Police, arrested the accused in that case with regard to the theft of two wheeler, he came forward to give a confessional statement, and it was recorded. Ex.P13 is the printed FIR in that regard. (f) While that investigation was pending, on suspicion the accused was arrested in connection with this case. Then he came forward to give a confessional statement. The same was recorded in the presence of two witnesses. The admissible part is marked as Ex.P4. Thereafter, the accused produced M.O.3, one of the ear studs, which was recovered under a cover of mahazar. Then P.W.1 was summoned, and he was also directed to produce M.Os.1 and 2. Accordingly, he produced both, and they were seized from him under Form 95. They were all produced before the Court. He was sent for judicial remand. All the material objects were subjected to chemical analysis by the Forensic Sciences Department which resulted in two reports namely the Chemical Analyst's report, Ex.P7, and the Serologist's reports, Exs.P9 and P10. On completion of investigation, the Investigator 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 marched 14 witnesses and also relied on 27 exhibits and 12 material objects. On completion of 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. No defence https://hcservices.ecourts.gov.in/hcservices/ witness was examined. 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 the accused guilty and awarded the punishment as referred to above. Hence this appeal at the instance of the appellant before this Court. 4.Advancing arguments on behalf of the appellant, the learned Counsel would submit that in the instant case, the prosecution had no direct evidence to offer; that it has neither placed nor proved the necessary circumstances pointing to the guilt of the accused, and thus it has miserably failed; but, the trial Court has taken an erroneous view; that according to the prosecution, the occurrence has taken place on 11.4.2007 at about 11.30 A.M. when the accused entered into the house of the deceased, murdered her and removed M.O.3, one of the ear studs; that the first circumstance which was attempted to be placed before the Court against the appellant is that he used to come to the house of the deceased for the purpose of electrical repairs, and P.W.5 was actually carrying on the electrical shop where a fan belonging to the deceased was handed over by the accused for the purpose of repair, and for a longtime he did not come back, and thereafter it was P.W.5 who handed over the fan to the deceased, and P.Ws.1, 2 and 5 have spoken to the fact at the time of the chief- examination; that as far as P.Ws.1 and 2 are concerned, P.W.1 has categorically stated that only for the first time, he met the accused in the police station on 20.11.2007, and thus it would be quite clear that he did not know him at all; that P.W.2 has nowhere stated that the accused used to come to the house of the deceased for doing electrical repair; and that even if it is true that the accused happened to be an electrician and used to visit the house of the deceased, it cannot be a reason which could support the prosecution case or a circumstance which could be found as an incriminating one. 5.Added further the learned Counsel that the prosecution mainly relied on and the trial Court has also accepted readily the evidence of P.W.2; that according to P.W.2, she was proceeding to her daughter P.W.8's house along with another sister at about 12.00 Noon when she noticed the appellant/accused entering into the house of the deceased; that in the afternoon hours, she came to know that her sister Vijayakumari was murdered, and jewels were also stolen; that now, it is pertinent to point out that her first statement was recorded by the Investigator the very next day, and it has reached the Court; but, there is no whisper about the very material fact that she noticed the accused entering into the house of the deceased; that her further statement came to be recorded by the Police Officer in the month of June 2007, but it reached the Court in the month of January 2008; that it is pertinent to point out that the accused was actually arrested as per the prosecution version, on 20.11.2007, when M.O.3 one of the ear studs, was recovered from him on confession, and hence it would be quite clear that the further statement should have been recorded subsequently from P.W.2 as if she witnessed the accused entering into the house of the deceased; that had it been true that P.W.2 has witnessed the accused entering into the house of the deceased, and he was examined the very next day, the natural conduct of a reasonable person would be to state the fact, but not done so; that this would cast a doubt on her evidence, and hence her evidence should not be believed. https://hcservices.ecourts.gov.in/hcservices/ 6.The learned Counsel would further submit that in the instant case, what was available for the prosecution was only the recovery of M.O.3 one of the ear studs; that the Investigator would claim that on suspicion, the accused was taken, and he was enquired when he came forward to give a confessional statement, and thereafter, he produced M.O.3, one of the ear studs belonging to the deceased, and the same was recovered in the presence of witnesses under a cover of mahazar; that this recovery cannot but be false for the simple reason that at the time of postmortem, another ear stud and also a nose screw were found in the dead body and they were recovered; but, the prosecution would conveniently come forward with a story to state that it was actually handed over to P.W.1 on his request by the Investigator; that it was actually in the custody of P.W.1 all along the time; that P.W.1 was summoned after the arrest of the accused and production of M.O.3 by him, and then P.W.1 produced those jewels, and they were compared and recovered under Form 95; that all would clearly indicate that the recovery cannot but be false; that further, it is also made clear in the evidence that the accused is involved in number of cases of robbery, dacoity and murder; that since the investigation was pending for a longtime, that necessitated the Investigator to take the accused as if he is involved in the present case also, and thus it is a case foisted against him; that under the circumstances, the prosecution has not placed necessary facts or circumstances pointing to the guilt of the accused; but, the trial Court has taken an erroneous view, and hence he is entitled for acquittal in the hands of this Court. 7.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 8.It is not in controversy that one Vijayakumari, the mother of P.W.1, was done to death in an incident that had taken place in the morning hours of 11.4.2007 in her residence. Following the inquest made by P.W.14, the Investigator, the dead body was subjected to postmortem by P.W.11, the Doctor, who has given his opinion as a witness before the Court and also through the contents of the postmortem certificate that death was due to compression of air way obstruction. The cause of death as put forth by the prosecution was never disputed by the appellant before the trial Court or before this Court, and hence it can be the recorded so. 9.In order to substantiate that it was the accused who committed the crime, the prosecution had no direct evidence to offer, and it relied upon circumstantial evidence. As rightly cautioned by the learned Counsel for the appellant, the Court must find out in a case where the prosecution rests its case exclusively on the circumstantial evidence, whether necessary circumstances are placed and proved and whether they make a chain without a snap and also point to the hypothesis that except the accused no one could have committed the crime. If this test is applied, this Court is afraid whether it can agree with the case put forth by the prosecution. 10.In the case on hand, it is true that the appellant/accused was an electrician, and he used to come often to the house of the deceased. So far as this fact is concerned, no material is available https://hcservices.ecourts.gov.in/hcservices/ before the Court. According to P.W.5, a fan of the deceased was handed over to him by the accused for repair, and after repair, it was not taken back, and it necessitated him to hand over the fan to the deceased. But this itself cannot be a reason or cannot be taken as incriminating circumstance as rightly pointed out by the learned Counsel for the appellant. 11.The other circumstance is the evidence of P.W.2 which was much relied on by the prosecution before the trial Court. According to P.W.2, she was proceeding along with another sister to the house of her daughter, P.W.8, and on the way, when she was crossing the house of the deceased at about 12.00 Noon, she found the accused just entering into the house of the deceased, and she came to know about the occurrence immediately within a few hours, and she also visited the spot, and the case was registered under Sec.302 IPC, and there was an inquest made during which she was present, and her statement was also recorded by the Investigator which was actually sent to the Court. Had really P.W.2 seen such a heinous crime of murder and that too, properties have been stolen, one would expect her to speak immediately about that fact. The conduct of P.W.2 that she has not spoken about this fact either on any day or in the months to come would clearly cast a doubt whether she could have witnessed the appellant entering into the house of the deceased. 12.Added circumstance is that according to the Investigator, the accused was arrested on 20.11.2007, when he came forward to give a confessional statement, and also M.O.3 one of the ear studs belonging to the deceased, was recovered from him. At this juncture, it is pertinent to point out that the further statement of P.W.2 which was recorded in the month of June 2007, has reached the Court in the month of January 2008. It would be telling that the further statement of P.W.2 should have come into existence as if she has witnessed the accused entering into the house of the deceased on the morning hours of 11.4.2007, on arrest of the accused on 20.11.2007, and the same was prepared to suit the convenience of the prosecution case. 13.Yet another circumstance relied on by the prosecution was the confessional statement alleged to have been given by the accused pursuant to which M.O.3 one of the ear studs belonging to the deceased, was recovered from him. As far as this circumstance is concerned, this Court is unable to find it as true or reliable. It could be seen from the available materials that the occurrence has taken place, according to the prosecution, on 11.4.2007, and on 14.4.2007, he was arrested by P.W.12, the Sub Inspector of Police, in connection with Alangayam Police Station Crime No.64/2007, and he gave a confessional statement, and afterwards he was let at large. Suddenly, the police officer concerned namely the Investigator in the instant case, took him, and enquired him on suspicion where he came forward to give such a confessional statement pursuant to which M.O.3 one of the ear studs belonging to the deceased, was recovered from him. It is pertinent to point out that the accused is involved in number of cases of robbery and dacoity. The investigation of the present case was pending for number of months. Under the circumstances, one's understanding would be that it has been foisted against him on the strength of the recovery which is alleged to have https://hcservices.ecourts.gov.in/hcservices/ been made. 14.Now, in the instant case, M.O.3 is one of the ear studs which was belonging to and worn by the deceased at the time of the occurrence. The Investigator would claim that it was recovered from him pursuant to the confessional statement. It is a matter of surprise to note that when another ear stud and nose screw were recovered from the dead body, they were not actually recovered under Form 95 immediately; but, it was handed over to P.W.1 on his request, and P.W.1 obtained custody of the same not from the Court, but directly from the Police Officer. Only on summons, he produced the same, and they were compared and found to be that of the deceased, and only then they were recovered from him under Form 95. All would go to show that even this recovery which, according to the prosecution, is one of the strong circumstances, was highly shrouded with suspicion, and hence the prosecution was completely bereft of any evidence pointing to the guilt of the accused. Even then, the trial Court was carried away by the fact that it was a murder for gain when there was thoroughly lack of evidence. Under the circumstances, the appellant/accused is entitled for benefit of doubt. 15.In the result, this criminal appeal is allowed setting aside the judgment of the trial Court. The appellant is acquitted of all the charges levelled against him. He is directed to be set at liberty forthwith unless his presence is required in connection with any other case. Nsv Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar To: 1.The Judicial Magistrate, Ambur. 2.-do-through The Chief Judicial Magistrate, Vellore. 3.The Additional District and Sessions Judge, Fast Track Court Thirupathur, Vellore. 4.The Principal Sessions Judge, Vellore. 5.The Inspector of Police Ambur Town Police Station Vellore District(Cr.No.92 of 2007) 6.The Public Prosecutor High Court, Madras. https://hcservices.ecourts.gov.in/hcservices/ 7.The District Collector, Vellore. 8.The Director General of Police, Mylapore, Chennai-4. 9.The Superintending, Central Prison, Vellore. 1 cc To Mr.S.Shanthakumar, Advocate, SR.60327 1 cc to The Section Officer, Criminal Section, High Court, Madras C.A.No.219 of 2009 MBS (CO) SS (26.11.2009) https://hcservices.ecourts.gov.in/hcservices/