BAIL SLIP The Appellant/ Accused no.2 namely Nallathambi was directed to release on bail by per order of this Court dt 13.2.2006 and made in Crl.M.P.No.481 of 2006 in Crl.A.No.70 of 2006 on the bail of this Court. ---------- IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15.10.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURBLE MR.JUSTICE M.VENUGOPAL CRIMINAL APPEAL NO.70 OF 2006 Nallathambi .. Appellant/A2 Vs. State by Inspector of Police, Kammapuram Police Station, Cuddalore District (Crime No.166/1998) .. Respondent/Complainant This criminal appeal has been preferred under Section 374 of Cr.P.C. against the judgment of the learned Principal Sessions Judge, Cuddalore made in S.C.No.197 of 2004, dated 26.07.2005. For Appellant : Mr.V.Gopinath, Senior Counsel for Mr.S.Sathiachandran For Respondent : Mr.P.Kumaresan, APP - - - - JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the Principal Sessions Division, Cuddalore made in S.C.No.197 of 2004, whereby this appellant shown as A-2 along with two others, shown as A-1 and A-3, stood charged as follows A-2 - Sections 148, 341, 302 r/w S.149 and 201 r/w S.109 IPC A-1 and A-3 - Section 302 r/w S.109 IPC. https://hcservices.ecourts.gov.in/hcservices/ On trial, A-2 was found guilty under Sections 148, 341 and 302 r/w S.149 IPC and sentenced to undergo imprisonment for life and also to pay a fine of Rs.5000/-, in default to undergo S.I. for six months under Section 302 r/w S.149 IPC, R.I. for six months and also to pay a fine of Rs.500/-, in default to undergo S.I. for three months under Section 148 IPC and R.I. for one month and also to pay a fine of Rs.500/-, in default to undergo S.I. for one week under Section 341 IPC and the sentences were ordered to run concurrently. A-2 was acquitted of the offence under Section 201 r/w S.109 IPC and A-1 and A-3 were acquitted of the charge levelled against them. Hence this appeal at the instance of the second accused. 2.The short facts necessary for the disposal of this appeal could be stated thus: a)P.W.1 is the wife of the deceased Dhanraj, who was employed as a school teacher at Ponneri. P.W.2, Rajadurai and one Rajasekaran were the sons of P.W.1 and Dhanraj. Rajasekaran fell in love with one Ponnuruvi, the daughter of A-1 and sister of A-2. A case was registered against Rajasekaran and others for rape and murder of Ponnuruvi. Though they were found guilty and sentenced to death by the Sessions Court, an order of acquittal was made by the High Court and hence an appeal was made before the Apex Court. Pending same, in view of the said incident, A-1 and his son A-2 desired to wreck vengeance. They hatched up a plan with A-3 and four others. Pursuant to the plan, on the date of occurrence, namely on 21.7.1999, when the deceased, who went for work, was returning during night hours, all the accused waylaid, dragged him to a nearby burial ground, severed his head and left the trunk there. They left the place of occurrence. b)Before that, at about 7.30 p.m., all the accused questioned P.W.5, the close relative of the deceased as to the whereabouts of the deceased. P.W.5 enquired why they wanted to know, but they did not give any reply at all. Since Dhanraj did not come back, on 22.7.1999 morning, P.W.1 instructed Rajasekaran to go over and search for her husband. When he was on the way, he found the trunk of the deceased, but the head was found missing. Immediately, he informed the same to P.W.1. All have proceeded to the spot. P.W.6, V.A.O. also went to the spot. After ascertaining the same, P.W.1 accompanied by P.W.6, proceeded to the respondent police station and gave Ex.P.1, the complaint to P.W.10, the Inspector of Police. c)On the strength of Ex.P.1, P.W.10 registered a case in Crime No.166 of 1999 under Sections 147, 148 and 302 IPC. Ex.P.23, the printed F.I.R. was despatched to the Court. The investigation was taken up by P.W.10. He proceeded to the scene of occurrence, made an inspection in the presence of the witnesses and prepared Ex.P.3, the observation mahazar and Ex.P.24, the rough sketch. He conducted inquest on the trunk of the deceased in the presence of the witnesses and panchayatdars between 10.45 a.m. and 12.45 p.m. and prepared Ex.P.25, the inquest report. He recovered M.O.12, the Moped and M.O.3, leather chappel, in the presence of the witnesses under Ex.P.5 mahazar. He also recovered the bloodstained earth and sample earth under Ex.P.4, mahazar. He examined the witnesses and recorded Section 161 Cr.P.C. statements. The https://hcservices.ecourts.gov.in/hcservices/ dead body was sent for the purpose of autopsy to the Government Hospital, Virudhachalam. d)P.W.8, the Doctor attached to the Government Hospital, Virudhachalam, on receipt of the requisition, has conducted post-mortem on the dead body of the deceased. He has issued Ex.P.18, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained. e)Pending investigation, on 25.7.1999 at about 6.00 p.m., P.W.10 arrested A-2 at Vadalur bus stand along with Murugesan and Thilankumar in the presence of P.Ws.6 and 7. A-2 gave confessional statement, which was recorded in the presence of the witnesses. The admissible part of the same was marked as Ex.P.14. Pursuant to the confessional statement, A-2 produced M.O.7, bloodstained shirt, which was recovered under Ex.P.8, mahazar. P.Ws.6 and 7 attested the same. M.O.10, aruval was also recovered from A-2 under Ex.P.11, mahazar and the same was also attested by P.Ws.6 and 7. The statements of Murugesan and Thilankumar were also recorded in the presence of the witnesses, the admissible part of the same were marked as Exs.P.15 and 16 respectively. Pursuant to the same, Murugesan produced M.O.8, shirt, which was recovered under a cover of mahazar. On 26.7.1999 at about 5.00 a.m., A-1 and A-3 were also arrested and their statements were also recorded. All the accused were sent for judicial remand. f)P.W.10 continued with the investigation. The statements of the witnesses were recorded. P.W.5 was also examined and his statement was also recorded. He filed a report on 27.10.1999 against the accused for the offence under Sections 148, 341, 302, 120(B) and 201 IPC. Further investigation was done by Mathiarasu, Inspector of Police, who has filed the final report. 3.Three of the accused were absconding and one accused died and in respect of A-1 to A-3, the case was committed to the Court of sessions and they were caused case papers and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 10 witnesses and relied on 26 exhibits and 12 M.Os. On completion of the evidence on the side of the prosecution, 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. The trial court, after hearing the arguments advanced and looking into the materials available, took the view that the prosecution has proved the case beyond reasonable doubt in respect of A-2 and has found him guilty as stated above and awarded punishments as referred to above. The trial court has made an order of acquittal in respect of A-1 and A-3 and hence this appeal at the instance of A-2. 4.Advancing arguments on behalf of the appellant, the learned Senior Counsel has made the following submissions: a)In the instant case, the occurrence has taken place on 21.7.1999 at about 9.00 p.m. Even as per the prosecution case, there is no occurrence witness. The prosecution rested its entire case on two circumstances. The first one is the statement of P.W.5, who is the close https://hcservices.ecourts.gov.in/hcservices/ relative of the deceased and the other is the alleged recovery of weapon of crime, namely M.O.10 from A-2 and also the recovery of M.O.7, shirt. Except these two circumstances, the prosecution had no evidence to offer at all. Even these two circumstances cannot be said to have pointed out the guilt of the accused. b)Admittedly, P.W.5 is the close relative of the deceased. According to P.W.5, on the date of occurrence, namely on 21.7.1999, at about 7.30 p.m., he was intercepted by the accused persons and was enquired about the deceased. After informing that he did not know, he further enquired them as to why they were making enquiry over the deceased, but they did not give any reply at all. The witness has further added that he has gone to the scene of occurrence next day morning and was there for some while and then, he returned. It is pertinent to point out that he has not whispered anything about the accused or their meeting or their enquiry about the deceased. The prosecution would claim that the statement of P.W.5 was recorded on 28.7.1999 by P.W.10. After verifying the case records, P.W.10 has categorically admitted that the statement of P.W.5 has reached the court on 13.12.2001, but the charge sheet was filed even in the month of November, 2001 and thus, it would be quite clear that the statement of P.W.5 was procured and placed before the court after filing of the charge sheet. Hence the evidence of P.W.5 should not be given any credence at all. c)So far as the recovery of M.O.7 shirt and M.O.10, aruval from A-2 is concerned, two witnesses were examined by the prosecution, namely P.Ws.6 and 7. According to P.W.7, the statements were recorded at the police station and their signatures were obtained. M.O.7 shirt was not sent for chemical analysis. So far as M.O.10, aruval was concerned, as per Ex.P.22, the Serologist's report, the blood group could not be fixed and it was disintegrated and under these circumstances, it could not, in any way, point out the guilt of the accused. Even the recovery by itself cannot be the basis for sustaining conviction. Hence in short, the learned Senior Counsel would submit that the prosecution had no evidence worth mentioning at all. The trial court has not considered the above aspects. Having acquitted A-1 and A-3, the trial court has miserably failed to consider that all the reasons which are applicable to A-1 and A-3 are equally applicable to A-2 also. Hence the appellant herein is entitled for acquittal in the hands of this court. 5.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 6.It is not in controversy that one Dhanraj, the husband of P.W.1, was done to death in an incident that took place during night hours on 21.7.1999 at the place of occurrence. Following the inquest made by the Investigating Officer P.W.10 on the trunk of the deceased and the preparation of the inquest report, the dead body was subjected to post- mortem by P.W.8, the Doctor, who has given Ex.P.18, the post-mortem certificate and has also deposed before the court as found in the post- mortem certificate that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained. Thus, it was a homicidal https://hcservices.ecourts.gov.in/hcservices/ death. This fact was never disputed by the appellant/accused and hence no impediment was felt by the trial court in recording the finding that Dhanraj died out of homicidal violence, which has got to be affirmed. 7.So far as the charges levelled against the appellant/accused was concerned, from the available materials, it could be seen that the prosecution had no direct evidence to offer and it has rested its entire case only on circumstantial evidence. The first circumstance was projected through the evidence of P.W.5. P.W.5 is the close relative of the deceased. According to P.W.5, on 21.7.1999 at about 7.30 p.m., when he was just coming near to the place of occurrence, he was intercepted by the accused persons and was enquired about the deceased. After giving reply that he did not know, he made a further enquiry to the accused persons as to why they were searching for him, to which they did not give any reply and within a few hours, the occurrence has taken place. It is admitted by P.W.5 that he went to the place of occurrence on the next day morning and was there for some time, but he did not tell anybody about the earlier incident. It is pertinent to point out that P.W.10 claimed that the statement of P.W.5 was recorded on 28.7.1999, but it has reached the court only on 13.12.2001 and the intervening circumstance was the filing of the charge sheet, which has taken place in the month of November, 2001. Thus, it would be quite clear that P.W.5, who is the close relative of the deceased, has kept calm and did not whisper anything as to the incident that had taken place on 21.7.1999, a few hours prior to the occurrence and further, his statement reached the court after a period of more than two years and that too after the filing of charge sheet and hence no evidentiary value could be attached to his evidence. Hence at no stretch of imagination, it could be considered as the circumstance, pointing to the guilt of the accused. 8.The second circumstance, which was projected by the prosecution, was the recovery of M.O.7, shirt and M.O.10, aruval from A-2, pursuant to his confessional statement recorded in the presence of P.Ws.6 and 7. So far as the recovery was concerned, it has got to be mentioned that the very recovery by itself will not be sufficient to sustain conviction as per the settled principles of law. Apart from that, two witnesses were examined for the purpose of arrest, confession and recovery of M.Os from the accused. They are P.Ws.6 and 7. P.W.7 has categorically admitted that the statements were recorded in the police station and they have signed the same. Hence it is highly doubtful whether the accused could have been arrested and their confessional statements could have been recorded as claimed by the Investigating Agency. 9.Apart from that, so far as M.O.7, shirt was concerned, it was not sent for chemical analysis and that no explanation was tendered for the same. So far as M.O.10, aruval was concerned, it was alleged to have been recovered from A-2, but no blood group was found. Under these circumstances, all would go to show that this could not be the circumstance against the accused. Except these two circumstances, the prosecution had no evidence to offer at all. Hence it would be quite clear that the prosecution has not proved the case beyond reasonable doubt. But, the lower court has failed to consider any one of the factual or legal positions, as narrated above. https://hcservices.ecourts.gov.in/hcservices/ 10.Under these circumstances, this court has no option than to make the judgment of the trial court undone. Accordingly, the judgment of conviction and sentence imposed on the appellant/A-2 by the trial court is set aside. The appellant/A-2 is acquitted of the charges levelled against them. The bail bond, if any, executed by him shall stand terminated and the fine amount, if any paid by him is ordered to be refunded to him. Accordingly, this criminal appeal is allowed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1. The Judicial Magistrate, No.II, Virudhachalam, Cuddalore District. 2. -do- Through the Chief Judicial Magistrate, Cuddalore. 3. The Chief Judicial Magistrate, Tirunelveli. 4. The 1st Additional District, and Sessions Court, Erode. 5. Principal Sessions Judge, Cuddalore. 6. The Inspector of Police, Kammapuram Police Station, Cuddalore District. 7. The Additional Public Prosecutor, High Court,Madras. 8. The Superintendent, Central Prison, Cuddalore. 9. The Sessions Officer, Criminal Section, High Court of Madras. Madras. +1 cc To Mr.S.Sathia Chandran, Advocate, SR.No.57643. CRL.A.NO.70 OF 2006 SSN [CO] RB 28/10/2008 https://hcservices.ecourts.gov.in/hcservices/