IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29-3-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.No.6 of 2010 1.E.Elumalai 2.E.Veda 3.P.Saravanan 4.E.Vishwanathan 5.E.Rajendran .. Appellants (Accused Nos.1 to 5) vs State by: Inspector of Police H6, R.K.Nagar Police Station (Cr.No.551/2008), Chennai .. 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 No.I, Chennai, made in S.C.No.22 of 2009 dated 30.12.2009. For Appellants : Mr.M.Mohanasundar for Mr.C.Rajan For Respondent : Mr.V.R.Balasubramanian Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Additional Sessions Division, Fast Track Court No.I, Chennai, made in S.C.No.22 of 2009 whereby the appellants five in number, stood charged under Sections 147, 341 and 302 read with 149 of IPC, tried, found guilty as per the charges and awarded one year Simple Imprisonment along with a fine of Rs.1000/- and default sentence under Sec.147 IPC, one month Simple Imprisonment under Sec.341 IPC and life imprisonment along with a fine of Rs.5000/- and default sentence under Sec.302 read with 149 IPC. https://hcservices.ecourts.gov.in/hcservices/ 2.The short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.3 is the brother-in-law of the deceased Elumalai. His sister Selvi was the wife of Elumalai, and also she was the informant to the police as to the occurrence. On 3.8.2008, Elumalai as usual was carrying on the vegetable vending business in front of a temple. On that day, one Rajendran was about to sell Vinayakar Idols, and the same was questioned by Elumalai, following which there was a wordy altercation. It continued for a few days which culminated in a clash. The matter was reported to the police, and a case was registered by P.W.7, the Sub Inspector of Police in Crime No.536 of 2008 under Sec.75 of the City Police Act. (b) On the previous day that was on 19.9.2008, in the morning hours, Elumalai went for vegetable vending business, returned home and had his lunch, and thereafter, in the evening hours at about 7.30 P.M., he went to the TASMAC shop at Kottai Naidu Playground to consume arrack. At that time, P.W.3 found all the accused persons following him ferociously. But, he did not entertain any suspicion. Elumalai did not return till 10.00 P.M. P.W.3 and his sister Selvi were under the impression that after consuming arrack, he might be sleeping in the ground itself. (c) The next morning at about 5.00 A.M., they went in search of Elumalai, and they found the dead body of Elumalai in the playground. Immediately, Selvi accompanied by her brother P.W.3, went to the respondent police station where P.W.11, the Inspector of Police, was on duty to whom Ex.P12, the report, was given. On the strength of Ex.P12, P.W.11 registered a case in Crime No.551 of 2008 under Sections 341 and 302 of IPC. The printed FIR, Ex.P13, was despatched to the Court. (d) The Inspector of Police took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P1, and also a rough sketch, Ex.P14. Then he recovered sample earth and also bloodstained earth and other material objects from the place of occurrence under a cover of mahazar. He conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared Ex.P15, the inquest report. Following the same, the dead body was sent to Government Stanley Hospital for the purpose of postmortem. (e) P.W.6 was the Doctor on duty. He conducted autopsy on the dead body of Elumalai and gave his opinion in Ex.P8, the postmortem certificate, that the deceased would appear to have died of head injuries. (f) Pending investigation, P.W.11 arrested all the accused on 22.9.2008. They gave confessional statements voluntarily which were recorded. The admissible portion of the confessional statement given by A-3 is marked as Ex.P16. Following the confessional statements, A-1 produced M.Os.8 and 9. A-2 produced M.Os.10 and 11. A-3 produced M.Os.12 and 13, and A-4 produced M.Os.14 and 15. A-5 produced M.Os.16 and 17. They were all bloodstained clothes worn by them at the time of occurrence. They were all recovered under a cover of mahazar. The accused were sent for judicial remand. All the material objects recovered from the place of occurrence and from the dead body and also the bloodstained clothes recovered from the accused on production pursuant to the https://hcservices.ecourts.gov.in/hcservices/ confessional statements, were subjected to analysis by the Forensic Sciences Department which brought forth Ex.P9, the chemical analyst's report. (g) P.W.12, 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 Court of Sessions, and necessary charges were framed. In order to substantiate the charges the prosecution examined 12 witnesses and also relied on 18 exhibits and 17 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 on either side and took the view that the prosecution has proved the case beyond reasonable doubt and hence found them guilty as per the charges and awarded imprisonment as referred to above. Hence this appeal at the instance of the appellants. 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 relied upon the circumstances; but, the prosecution had neither placed the necessary circumstances nor proved the same in order to bring home the guilt of the accused; that in the instant case, according to the prosecution, the occurrence has taken place between 7.30 P.M. on 19.9.2008 and 5.30 A.M. on 20.9.2008; that though P.Ws.1, 2, 3 and 5 were examined by the prosecution, P.Ws.1, 2 and 5 have turned hostile; that the only witness available for the prosecution was P.W.3; that the informant to the police by name Selvi the wife of the deceased, already died; that under the circumstances, the only evidence available for the prosecution before the trial Court was that of P.W.3; that according to P.W.3, on the day prior to the occurrence at about 7.30 P.M., he found his brother-in-law Elumalai proceeding towards the arrack shop while all the accused persons ferociously followed him; that this was actually focused as a strong piece of evidence by the prosecution before the trial Court, and it was also accepted by the trial Court but erroneously. 5.Added further the learned Counsel that the evidence of P.W.3 should have been rejected for the reasons that had it been true that while all the accused persons were ferociously following the deceased, it is quite natural for any prudent person like P.W.3, the brother-in-law, to follow or to inform to his sister Selvi the wife of the deceased, but not done so; that it is pertinent to point out that though he claimed to have seen the accused following the deceased, in the earliest statement given by him and recorded by P.W.11, the Investigator, he has not stated so; that under the circumstances, it was a later introduction; that apart from that, the name of P.W.3 was not found in Ex.P12, the report, or in the FIR; and that the evidence of P.W.3 was only an invention and introduction in order to strengthen the prosecution case. https://hcservices.ecourts.gov.in/hcservices/ 6.The learned Counsel would further submit that in the instant case, according to P.W.3, they saw the dead body at about 5.30 A.M., but they went to the police station and gave a complaint at 7.00 A.M. and the case was registered at 8.30 A.M. and the FIR has reached the Court at 12.30 P.M.; that the delay that was caused in despatching the FIR to the Court was never explained by the prosecution; that apart from that, the alleged recovery pursuant to the confessional statements was nothing but a cooked up story; that even assuming that they were actually recovered, that by itself will not suffice to sustain a conviction; that the prosecution has miserably failed to prove its case; that despite the same, the trial Court has taken an erroneous view, and hence they are 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 the dead body of one Elumalai was found at about 5.00 A.M. on 20.9.2008. Following the report given by one Selvi, the wife of the deceased, under Ex.P12, the case came to be registered as found in Ex.P13, the printed FIR. Following the inquest made by P.W.11, the Investigator, the dead body was subjected to postmortem by P.W.6, the Doctor, who has given his opinion in the postmortem certificate, Ex.P8, that the deceased died due to head injuries. The cause of death as put forth by the prosecution was never disputed by the appellants before the trial Court, and under the circumstances, no impediment was felt by the trial Court in recording so. 9.In order to substantiate that it was the accused who caused the death of Elumalai, the prosecution had no direct evidence to offer. It relied upon the circumstantial evidence. This Court is mindful of the caution made by the settled principles of law and also the ruling of the Apex Court that in a given case like this where the prosecution rests its case on circumstantial evidence, the chain must be complete without a snap and pointing to the hypothesis that except the accused no one could have committed the offence. If this rule is applied, this Court is afraid whether it can agree with the prosecution. 10.In the case on hand, the occurrence has taken place between 7.30 P.M. on 19.9.2008 and 5.30 A.M. on 20.9.2008, in a public place. The prosecution had no direct evidence to offer, and it relied upon only the circumstances. In order to prove the circumstances, the prosecution relied on the evidence of P.Ws.1, 2, 3 and 5. Out of these witnesses, P.Ws.1, 2 and 5 have turned hostile. Thus the only witness that was available for the prosecution was P.W.3. According to P.W.3, on the previous day of occurrence at about 7.30 P.M., when he was going in the street, he found his brother-in-law Elumalai proceeding towards the arrack shop, and all the accused were following him ferociously. Had it been really true, the reasonable conduct of a prudent person like P.W.3 under the circumstances would be either to follow them or to https://hcservices.ecourts.gov.in/hcservices/ see the happening or to inform to his sister Selvi, but he has not done so. On the contrary, he kept quiet and further, only in the next morning, according to him, he went in search of Elumalai along with his sister. He would further claim that he went to the police station along with the sister Selvi to give a complaint. If really he has witnessed the accused persons following him, it should have been made mention in Ex.P12, the complaint, but it is not found there. Even the earliest statement given by him to the Police Officer and recorded under Sec.161 of Cr.P.C., he did not whisper anything abut the same. All would clearly indicate that these are all nothing but subsequent developments at the time of evidence. Thus, it would be quite clear that P.W.3 could not have seen the accused persons following him as claimed in his evidence. 11.In the case on hand, the prosecution barring the above evidence, had only the recovery of the material objects from the accused persons namely bloodstained clothes. It is pertinent to point out that these material objects did not tally with the blood group, and even assuming that the recovery was true, that will not in any way suffice to sustain a conviction. It is true that P.W.7, the Sub Inspector of Police, has been examined to speak that there was a quarrel between the accused on the one side and the deceased on the other a week back, and a case under Sec.75 of the City Police Act was actually registered, and they were actually taken to the hospital for treatment. This fact by itself would not suffice to indicate that they were actually involved in the crime. Hence the prosecution has neither placed direct evidence nor any circumstantial evidence or the scientific evidence was also not in their favour. In short, it can be well stated that the prosecution has miserably failed to prove its case; but the trial Court has taken an erroneous view. Under the stated circumstances, the judgment of the trial Court has got to be made undone by upsetting the same. 12.In the result, this criminal appeal is allowed setting aside the judgment of conviction and sentence passed by the trial Court. The appellants are acquitted of all the charges levelled against them. The fine amounts if any paid by them, shall be refunded to them. The appellants are directed to be set at liberty forthwith unless their presence is required in connection with any other case. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. nsv https://hcservices.ecourts.gov.in/hcservices/ To: 1.The Additional District and Sessions Judge FTC-I, Chennai. 2. do thro the Principal Sessions Judge Chennai 3. The District Collector Chennai 4. The Director General of Police Mylapore, Chennai 5.The Inspector of Police H6, R.K.Nagar Police Station (Cr.No.551/2008), Chennai 6.The Public Prosecutor High Court, Madras. 7. The Superintendent Central Prison, Puzhal, Chennai 2 ccs to Mr.C.Rajan, Advocate, Sr. 20447 CRL.A.No.6 of 2010 JRG (CO) kk 7/4 https://hcservices.ecourts.gov.in/hcservices/