IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.07.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRIMINAL APPEAL NO.758 OF 2008 1.Suresh 2.Kannan @ Thoppu Kannan 3.Subash @ Subash Chandrabose ..Appellants/ Accused 1,2 and 4 Vs. State represented by Inspector of Police, Ambattur Police Station, Chennai (Crime No.564 of 2003) ..Respondent This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Additional District and Sessions Judge Fast track Court IV, Poonamallee made in S.C.No.65 2006, dated 17.4.2008. For Appellants : Mr.V.Gopinath Senior Counsel for Mr.L.Mahendran For Respondent : Mr.N.R.Elango, APP JUDGMENT (The judgment of the court was delivered by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the Additional District and Sessions Judge, Fast track Court IV, Poonamallee, made in S.C.No.65 of 2006, whereby the appellants three in number along with the juvenile accused tried, stood charged and found guilty under Section 302 IPC and awarded life imprisonment as well as found guilty under Section 201 read with 34 IPC and sentenced to undergo seven years rigorous imprisonment. https://hcservices.ecourts.gov.in/hcservices/ 2.The story of the prosecution case as put forth before the Trial Court can be stated thus: a) P.W.5 is the father of the deceased Damodharan. He was doing his B.A.Political Science in Presidency College during the relevant time. PW-7 was also doing the said course along with him. (b) On 11.8.2003, both of them returned from the college to Ambattur. PW7 dropped the deceased near the church and left for his place. The deceased told that he want to meet his friends. On the same day, PW3, the paternal uncle of the deceased and PW4, the nephew of the deceased both came to Chennai. When, they were just crossing the railway line at Ambattur, they witnessed the person like the deceased, who was taken by the accused persons. Then they left to Chidambaram. (c) On 11.8.2003 the deceased did not return home. Then PW1 made a search. He went to his native place at Chidambaram and made an enquiry. At that time, Pws.3 and 4 informed him that they saw the deceased in the company of the accused persons. He came to know that the dead body was found in the lake and then he immediately proceeded to the place, where the dead body of his son was found. (d) Thereafter, P.W.1 proceeded to the respondent police station where PW.13, Inspector of Police was on duty. He gave Ex.P.1 complaint, on the strength of which, a case came to be registered in Crime No.564 of 2003 for the offences under Sections 302, 201 read with 34 IPC. Ex.P.12, F.I.R. was despatched to the Court. P.W.13 took up the investigation, went to the place of occurrence and made an inspection in the presence of the witnesses. He prepared the observation mahazar and drew Ex.P.13, rough sketch. The place of occurrence and the dead body were photographed and M.O.1 and M.O.2 are Photos and Negatives respectively. Then, he conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.14, the inquest report. Then, the dead body was sent for the purpose of post-mortem. (e) P.W.2, the Doctor attached to the Government Hospital, Royapettah, on receipt of the requisition, had conducted post-mortem on the dead body of the deceased and issued Ex.P.3, the post-mortem certificate, wherein he has opined that the deceased would appear to have died due to the injuries sustained by him. (e) Pending investigation, PW-13 came to know that A1 and A2 surrendered themselves before the Metropolitan Magistrate Court, Egmore, on 8.9.2003 and he took them to police custody. On 9.9.2003, the first accused gave a confession, which is marked as Ex.P.21, pursuant to which he produced M.O.10 knife, M.Os.11 knife under the cover of Mahazar Ex.P.23 and on the same day, at about 10.30 a.m., he recorded the confession statement of A2. On 24.9.2003, at about 8 https://hcservices.ecourts.gov.in/hcservices/ a.m., he arrested A3 near Patravakkam Railway Station. On 17.11.2003, A4 surrendered before the Judicial Magistrate, Tiruvellore. PW-13, took him into police custody and on the same day, at about 9 a.m., he recorded his confession statement and the admissible part is marked as Ex.,P.25. On 13.8.2003, PW-13 examined the witnesses and recorded their statements. (f) Pending investigation, PW-12 gave a statement to the effect that on 11.8.2003 at about 8 p.m., A1 and A2 came to his shop and purchased a toy and cap and they did not make the payment. When he demanded, A1 and A2 informed PW-12 that they have just committed a murder. (g) When, PW-6 was in the house, four persons came there and informed that they are in the grip of fear since a dead body was found in a lake in Ambattur and after they made a phone call to a third party, they went away. The statements made by Pw.12 and 6 were also relied upon by the Investigating Officer. (h) Thereafter, a requisition Ex.P.17 was forwarded to the District Munsif-cum-Judicial Magistrate, Ambattur, for sending the material Objects for analysis. All the M.Os. were subjected to chemical analysis, on requisition made, which is Ex.P.18, given by the Investigating officer, through the Judicial Magistrate, Ambattur, who in turn sent a requisition to the Forensic Department. All the material objects recovered were subjected to chemical analysis by the Forensic Science laboratory, which resulted in Ex.P.19, the Biological report and Ex.P.20, the Serologist's report. P.W.13, the Inspector of Police, took up further 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 examined 13 witnesses and also relied on 25 exhibits and 11 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. The accused flatly denied the same as false. No defence witness was examined. 4. The trial court, after hearing the arguments advanced and scrutinizing the materials available, took the view that the prosecution had proved the case beyond reasonable doubt in respect of accused 1,2 and 4 and found them guilty and awarded punishment as referred to above. In so far as A3 juvenile was concerned, the case was split up. Hence this appeal has arisen at the instance of accused 1,2 and 4/appellants herein. 5. Advancing arguments on behalf of the appellants, the learned counsel would submit that in the instant case, the https://hcservices.ecourts.gov.in/hcservices/ prosecution had no direct evidence to offer. It relied upon certain circumstances, which did not even indicate the nexus of the crime in question with the accused. PW1 is father, while Pws.3 and 4 are uncle and nephew of the deceased respectively. The first circumstance relied upon by the prosecution was that PW-7, a colleague of the deceased came back from the college along with him. But, according to him, he left him at about 4'O Clock nearby a church in Ambattur. Thereafter, he did not see him. The second circumstance relied upon by the prosecution was that at about 5.30 p.m., Pws.3 and 4 when they were nearing the railway line at Ambattur, they found a person look-like the deceased along with four others. Pws.3 and 4 would further claim that when PW-1 came to their native place at Chidambaram on 12.8.2003, both of them informed about the same. Even in EX.P.1 report, it was mentioned by PW1 on the next day, viz., 13.8.2003. This fact was also not mentioned to PW-13, Inspector of Police and apart from this, Pws.3 and 4 were not certain that the person whom they met was the deceased himself. Apart from that, if they are very particular that they had seen A1 to A4, Identification Parade should have been conducted. The case of the prosecution was that both the witnesses have not identified the accused persons in the police station and it would not be suffice as per law. The next circumstance is that PW6 was a lady and according to her, three persons, who were not the accused met her at house and informed that they are under the grip of fear that they found a dead body in the lake. It would be quite clear that PW6's evidence was of no consequence or use in so far as the prosecution case was concerned. In this case, it is not the evidence of PW6 that the persons who came to her house are not accused, but some other persons. The next circumstance relied upon was that the evidence of PW-12, a shopwala at Ambattur. According to him, A1 and A2 came to his shop and purchased a toy and a cap. But, they did not pay for the same, when there was a demand. They went away and nowhere they got the accused in question. The last circumstance relied on by the counsel was that the confessional statement alleged to have been given by the accused. Even assuming, pursuant to the confession statement, the alleged recovery was made, it is suffice to speak about the nexus of the crime in question with the accused. Under these circumstances, the prosecution has miserably failed to prove the necessary circumstances pointing to the guilt of the accused. The trial Court has taken an erroneous view and hence it is a fit case where the judgment of the trial Court has got to be set aside. 6. The court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 7. It is not in controversy that the dead body of Damodharan was found in the lake at Ambattur. On information, PW1 went to the lake and found the dead body and then proceeded to the police station and gave a complaint Ex.P.1 to PW-13 Inspector of Police, who https://hcservices.ecourts.gov.in/hcservices/ registered a case for murder and after the inquest was made by the Investigating Officer, the dead body was subjected to post-mortem by P.W.2 doctor, who has given categorical opinion that the deceased would appear to have died of injuries sustained by him. The fact that the deceased died of homicidal violence was never disputed by the appellant before the trial court and hence it has got to be recorded so. 8. In order to substantiate the case of the prosecution that it was the accused, who caused the death of Damodharan and threw the dead body into the lake, the prosecution had no direct evidence to offer. It relied upon the circumstances. In a given case like this, when the prosecution rests the entire case on circumstantial evidence it has to prove the necessary circumstances pointing to the hypothesis that except the accused, no one could have committed the offence in question. 9. Insofar as the first circumstance is concerned, PW-7 and the deceased returned from the college on the evening hours of 11.8.2003 and left the deceased near a church. He did not speak anything further. 10. Insofar as Pws.3 and 4 are concerned, according to them, they are native of Chidambaram. PW.3 is uncle and PW4 is nephew of the deceased and they visited Madras on 11.8.2003 and at the evening hours, near the railway line at the time, both of them found a person, who looked like the deceased along with four persons. It would be quite evident that from the testimony the statement made by him originally was to the deceased himself. Added further, they did not know the other four persons, who accompanied the deceased. In such circumstances, law would expect to conduct identification parade. But the prosecution before the trial has given an explanation that Pws.3 and 4 have identified all the four accused in the police station. Needless to say that the said act would not satisfy the law. Added further, according to Pws.3 and 4, PW-1 came to their native place at Chidambaram on the next day on 12.8.2003 and further informed him that they met a person like the deceased on the evening hours near the railway crossing line along with four persons. If this is true, PW1 should have certainly mention the same in the complaint, which was given by him under Ex.P.1. It is pertinent to point out that complaint was given by him only on 13.8.2003 and even in the complaint, nowhere he had made a reference either about PW3 or PW4. The evidence of Pws.3 and 4, for the reasons stated above, cannot be acted upon. 11. Added circumstances are the evidence of Pws.6 and 12. According to PW-6, four persons came to her house and informed that they were under the grip of fear since a dead body was found in the lake. Thus, it would be quite clear that the persons met at her residence were not the accused and four persons have met her and at https://hcservices.ecourts.gov.in/hcservices/ no stretch of imagination through PW-6 they could connect the accused. 12. Equally, according to PW-12, he was the owner of the shop at Ambattur. On the date of occurrence at night hours, A1 and A2 purchased a toy and cap, but they did not pay the price. When there was a demand, they threatened PW-12 shop owner that they have murdered just before and so they went away from that shop. It would be taken as a piece of evidence to bring home the guilt of the accused to the crime. 13. The prosecution placed reliance upon the alleged confession statement along with the recovery of certain M.Os. Needless to say, in a case like this, the recovery of Mos alone would not by itself sufficient to indicate the offender. Thus the prosecution has miserably failed to prove its case. The trial court has taken an erroneous view as if pointing to the guilt of the accused. In the instant case, the prosecution though placed the circumstances, they did not hold the prosecution to indicate the nexus of the crime with the accused. 14. Under these circumstances, the judgment of conviction and sentence imposed on the appellants herein by the learned Additional District and Sessions Judge, Fast Track Court No.IV, Poonamallee in SC.No.65 of 2006 is set aside, and the appellants are acquitted of the charges levelled against them. They are directed to be released forthwith unless their presence is required in connection with any other case. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar VJY To 1. The Additional District and Sessions Judge, Fast track Court No.IV, Poonamallee. 2. -do- Through The Principal Sessions Judge, Thiruvallur. 3. The District Munsif -cum- Judicial Magistrate, Ambattur. https://hcservices.ecourts.gov.in/hcservices/ 4. -do- Through The Chief Judicial Magistrate, Thiruvallur. 5. The District Collector, Thiruvallur. 6. The Director General of Police, Mylapore, Chennai-4. 7. The Superintendent, Central Prison, Puzhal, Chennai. 8. The Inspector of Police, Ambattur Police Station, Chennai. 9. The Public Prosecutor, High Court, Madras. + 1 c.c. to Mr. L. Mahendran, Advocate. S.R.No.34300. CRL.A.NO.758 OF 2008 GV (CO) GSK 05.08.2009. https://hcservices.ecourts.gov.in/hcservices/