B A I L S L I P Crl.A.No.1087/07 The Appellant/Accused No.4, viz., Puttu @ Muthukumar was directed to be released on bail in and by order of this Court dated 20.12.2007 in Crl.MP.No.1/07 in Crl.A.No.1087/07. Crl.A.No.1121/2007 The Appellants/Accused viz., 1.Suresh, 2.Achuthan, 3.Koyyakka @ Karthik, 4.Dhaya @ Dineshkumar were directed to be released on bail in and by order of this Court dated 22.1.2008 in Crl.MP.No.1/08 in Crl.A.No.1121/07. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15-6-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.Nos.1087 and 1121 of 2007 Puttu @ Muthukumar .. Appellant in CA 1087/2007/Accused 4 1.Suresh 2.Achuthan 3.Koyyakka @ Karthik 4.Dhaya @ Dineshkumar .. Appellants in CA 1121/2007/ Accused 1 to 3 & 5 vs State Rep. By The Inspector of Police Vellore Taluk Circle, Vellore (Crime No.278/05) on the file of the Virinchipuram Police Station Vellore District .. Respondent in both appeals/Complainant Criminal appeals preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge (Fast Track Court), Vellore, in S.C.No.110 of 2007 dated 15.10.2007. https://hcservices.ecourts.gov.in/hcservices/ For Appellants : Mr.K.Srinivasan in C.A.1087/2007 Mr.K.S.Rajagopalan in C.A.1121/2007 For Respondent : Mr.N.R.Elango Additional Public Prosecutor COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) These appeals challenge a judgment of the Additional Sessions Division, Fast Track Court, Vellore, made in S.C.No.110 of 2007 whereby the appellants five in number, ranked as A-1 to A-3 and A-5 (appellants in CA 1121/2007) respectively and ranked as A-4 (appellant in CA 1087/2007), stood charged, tried, found guilty on trial, under Sections 120(b), 302 read with 34, 380 and 201 read with 302 of IPC and awarded 6 months Rigorous Imprisonment under Sec.120(b) IPC, life imprisonment along with a fine of Rs.500/- and default sentence under Sec.302 read with 34 IPC, 3 years Rigorous Imprisonment along with a fine of Rs.500/- and default sentence under Sec.380 IPC and 3 years Rigorous Imprisonment along with a fine of Rs.500/- and default sentence under Sec.201 read with 302 IPC. 2.The short facts necessary for the disposal of these appeals could be stated thus: (a) P.W.1 is a native of Melmondur. The deceased Elumalai was his son. P.W.1 had two daughters. P.W.2 is the first daughter. All the accused persons belonged to the same place. They were also friends of the deceased. On 28.5.2005, at about 6.00 P.M., P.W.1 found all the accused persons chatting with the deceased. On seeing this, he warned the appellants and chased them. Some time later, Elumalai left the place, but did not come back. P.W.1 and others were searching for him for a longtime; but, they could not. While the matter stood thus, A-4 met P.W.3 and gave an extra-judicial confession as to the conspiracy hatched up by him along with the other accused and has also spoken about the crime. P.Ws.3 informed the same to P.W.4. Both P.Ws.3 and 4 immediately informed to P.W.1. Then, P.W.1 proceeded to the respondent police station on 16.9.2005 at about 8.00 A.M., and gave Ex.P1, the report, to P.W.19, the Sub Inspector of Police. On the strength of Ex.P1, the complaint, P.W.19 registered a case in Crime No.278/2005 under Sec.174 of Cr.P.C. The printed F.I.R., Ex.P24, was despatched to the Court. (b) The case was actually handed over to P.W.20, the Inspector of Police, for investigation. P.W.20 proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and a rough sketch, Ex.P25. Pending the investigation, A-4 was first arrested following the extra-judicial confession made by him, and he also identified A-5. Thereafter, it was A-5 who took the police party to https://hcservices.ecourts.gov.in/hcservices/ the place where the dead body was buried. An intimation was given to P.W.13, the Tahsildar concerned. He also came to the spot. The body was exhumed in the presence of witnesses, and inquest was also conducted by him. The inquest report is Ex.P11. After exhumation, the skull was sent for the purpose of superimposition test and DNA test was also conducted. The body was found that of the deceased Elumalai. (c) Following the same, an intimation was given to P.W.17, the Medical Officer, attached to the Government Hospital, Vellore. On receipt of the requisition, P.W.17 conducted autopsy and has given his opinion in Ex.P19, the postmortem certificate, that in view of severe decomposition of the body, the cause of death could not be fixed. (d) The further investigation was done. A-4 and A-5 identified the other accused. They were also arrested. It was A-3 who took the police party to the shop of P.W.8, a Pawn Broker, wherefrom 40 grams of gold ingot and also a silver waist cord were recovered under a cover of mahazar. Thereafter, all the accused persons were sent for judicial remand. A requisition was given for recording the statements of P.Ws.3 and 4 under Sec.164 of Cr.P.C. Accordingly, it was also recorded by the Judicial Magistrate No.I, Vellore. Thereafter, the statements of the other witnesses were recorded. All the material objects were sent for chemical analysis. Exs.P20 and 22 are the chemical reports and Ex.P21 is the toxicological report. P.W.21, the Inspector of Police, took up further investigation. On completion of investigation, he filed the final report under Sections 302, 201, 120 (b) and 380 of IPC. 3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 21 witnesses and relied on 26 exhibits and 10 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which they flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt in respect of all the charges and hence, found the appellants/accused guilty and awarded the punishment as referred to above. Hence these appeals before this Court. 4.Advancing the arguments on behalf of the appellants, the learned Counsel would submit that the prosecution rested its case originally on the conspiracy alleged to have been hatched up by the appellants/accused and following the same, they took the deceased Elumalai, caused his death and robbed the jewels worn by him at the time of occurrence; that the prosecution miserably failed to prove either the conspiracy theory or any other relevant facts necessary to bring home the guilt of the accused; that the prosecution rested its case on the circumstantial evidence; that the main two circumstances relied on by the prosecution were the last seen theory and the extra- judicial confession; that the last seen theory was spoken to by P.Ws.1 and 2; that the trial Court has believed this theory; that P.W.1 has spoken to the fact that on the day at about 6.00 P.M., the accused persons came over there and were chatting with the deceased, and thereafter, they left; that according to P.W.2, the deceased left the https://hcservices.ecourts.gov.in/hcservices/ place after half an hour; that it was not the case of either P.W.1 or P.W.2 that they went together; that from the evidence, it is quite clear that there was an interval of about half an hour; that further, it cannot be stated that the prosecution could rely upon such an incident calling it as last seen theory; and that no evidence was adduced by the prosecution indicating the fact that all were found in the company of the deceased. 5.Added further the learned Counsel that the other circumstance relied on by the prosecution is the extra-judicial confession alleged to have been given by A-4 to P.W.3; that the trial Court should have rejected that piece of evidence in toto for the simple reason that according to P.W.3, it was A-4 who came and gave an oral confession, and thereafter, P.Ws.3 and 4 went to the Police Station and informed the police personnel as to the episode; but, P.Ws.3 and 4 were informed that a regular complaint must be given to the Police Station and further the police advised them to inform to P.W.1, and accordingly they went to P.W.1 and informed him about the conspiracy and also about the crime; that if to be so, P.W.1 when he gave the complaint, has not whispered anything in the complaint; and that all the above would clearly indicate that this theory of extra-judicial confession was nothing but a cooked up affair in order to strengthen the prosecution case if possible. 6.Added further the learned Counsel that what was recovered from the shop of P.W.8 was only the gold ingot of 40 grams and nothing more; that even the jewels were not recovered; that in the instant case, the exhumation of the body at the instance of A-5 was relied on by the prosecution, but this cannot be a piece of evidence at all for the reason that the case of the prosecution was that A-1 to A-5 hatched up a conspiracy, committed the crime of murder and robbed the jewels; that it was A-4 who at the earliest met P.W.3 and gave a confessional statement; that if to be so, there was nothing for A-5 to identify the place of burial of the body; that all would go to show that the prosecution had not only lacked in evidence, but also no evidence at all; that under the circumstances, the prosecution has miserably failed to prove its case, but contrarily, the trial Court has taken an erroneous view and found them guilty, and hence they are entitled for acquittal in the hands of this Court. 7.The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 8.The case of the prosecution as could be seen from the available materials is that one Elumalai, son of P.W.1, was taken by the accused/appellants pursuant to a conspiracy hatched up by them, and after murdering him, they robbed the jewels worn by him at the time of the occurrence. At the outset, it has to be pointed out that the prosecution had no direct evidence to offer as to any relevant fact. It relied upon only circumstantial evidence. As could be seen from the available materials placed before the trial Court, the prosecution rested its case on the two circumstances which, according to the prosecution, were prime, firstly the last seen theory and secondly the https://hcservices.ecourts.gov.in/hcservices/ extra-judicial confession alleged to have been given by A-4 to P.W.3. In the instant case, as far as the last seen theory was concerned, this Court is of the considered opinion that this part of the evidence adduced by the prosecution was of no avail to accept the said theory. P.W.1 is the father and P.W.2 is the sister of the deceased Elumalai. According to P.W.1, on the date of occurrence, all the accused persons came and were found chatting with the deceased, and P.W.1 chased them, and immediately all the accused left the place. According to P.W.2, after half an hour, Elumalai left the place. It is not the case of the prosecution that the accused persons took Elumalai from the house. Nowhere this Court was able to notice in evidence that they were found in the company of Elumalai at any point of time. Thus, the last seen theory was of no avail. At this juncture, it is pertinent to point out that the prosecution had no evidence to offer that there was any conspiracy hatched up. 9.In the case on hand, the prosecution relied much on the extra- judicial confession alleged to have been given by A-4 to P.W.3. Needless to say, in a given case like this before accepting the extra- judicial confession, the Court must apply two tests, firstly to whom and under what circumstance the extra-judicial confession was made and secondly, whether the evidence of the person to whom the extra- judicial confession alleged to have been made inspires the confidence of the Court. In this case, the occurrence has taken place on 28.5.2005, and P.W.1 has given the complaint on 16.9.2005. It is pertinent to note that the complaint has emanated after a lapse of 2 ½ months. Even a reading of the complaint does not make any whisper about the act of the accused; but, there was only suspicion. The case came to be registered under Sec.174 of Cr.P.C. by P.W.19, the Sub Inspector of Police. P.W.3 has categorically deposed that A-4 made an extra-judicial confession, and immediately P.Ws.3 and 4 proceeded to the police station and informed the same to the police personnel; but they were informed that there must be a regular complaint, and they should inform to P.W.1. Now this part of the evidence adduced would strangely look whether such things would have happened at all. At this juncture, it is pertinent to point out that even after the information was passed on as to the entire extra-judicial confession by P.W.3 to P.W.1, Ex.P1 did not contain any whisper about the same. All would go to show whether such extra-judicial confession could have been made at all. Apart from that, it was A-4 who identified A-5, and it was A-5 who took the police party and identified the place where the dead body was buried, according to the prosecution. The case of the prosecution was that all the five persons took the deceased pursuant to the conspiracy, caused his death and robbed the jewels. If to be so, there was no need for A-4 identifying A-5 and then A-5 pointing out the place where the dead body was buried. It was only an attempt made by the investigating agency in order to strengthen the case by roping A-5 in. 10.In the instant case, what was available was only the recovery of gold ingot which was weighing 40 grams, from P.W.8. At this juncture, it is pertinent to point out that this recovery has been made long after the alleged crime, and jewels were not recovered, and it was only ingot. Under the circumstances, this factum of recovery https://hcservices.ecourts.gov.in/hcservices/ following the other confessional statement by the accused, would not advance the case of the prosecution further. In a given case, needless to say, when the prosecution rested its case on the circumstantial evidence, the circumstances must make a complete chain without a snap pointing to the hypothesis that except the accused no one could have committed the offence. In the case on hand, the prosecution rested its case on two circumstances. As far as both the circumstances are concerned, the prosecution miserably failed to prove the same. Thus it can be well stated that the prosecution has not brought home the guilt of the accused beyond reasonable doubt as expected in law, and hence they are entitled for acquittal. Accordingly, the judgment of the trial Court has got to be made undone by upsetting the same. 11.In the result, both these criminal appeals are allowed setting aside the judgment of the lower Court. The appellants are acquitted of the charges levelled against them. The bail bonds executed by them shall stand terminated. The fine amounts if any paid by them, will be refunded to them. nsv/ Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To: 1.The Additional District and Sessions Judge, Fast Track Court Vellore 2.The Inspector of Police Vellore Taluk Circle Vellore (Crime No.278/05) on the file of the Virinchipuram Police Station Vellore District 3.The Public Prosecutor High Court, Madras. 4.The Judicial Magistrate No.IV, Vellore. 5.Do Through the Chief Judicial Magistrate, Vellore. 6.The Superintendent, Central Prison, Vellore. https://hcservices.ecourts.gov.in/hcservices/ 7.The Section Officer, Criminal Section, High Court, Madras. 8.The District Collector, Vellore. 9.The Director General of Police, Madras. 10.The Principal Sessions Judge, Vellore. + 1 cc to Mr. K. Srinivasan, Advocate, SR No.23493 + 1 cc to Mr. K. S. Rajagopalan, Advocate, SR No.23585 CRL.A.Nos.1087 and 1121 of 2007 VSV(CO) SR/23.6.2009 https://hcservices.ecourts.gov.in/hcservices/