IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.12.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH CRIMINAL APPEAL No.651 of 2009 1. Santhosh 2. P.Balaji ..Appellants/A-1 & 2 Vs. State by The Inspector of Police, Kondalampatti, Salem District. (Crime No.263/2006) ..Respondent/Complainant This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Ist Additional Sessions Court, Salem made in S.C.No.407 of 2006 dated 17.3.2008. For Appellants : Mr.Philip Ravindran Jesudoss For Respondent : Mr.Babu Muthu Meeran, Addl.P.P J U D G M E N T (The judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the Ist Additional Sessions Division, Salem, made in S.C.No.407 of 2006 whereby the appellants, two in number, along with two other accused ranked as A3 and A4, stood charged, tried and found guilty as follows: https://hcservices.ecourts.gov.in/hcservices/ Accused Charges Findings Sentence A-1 397 and 302 IPC Guilty 10 years RI and Life imprisonment along with fine of Rs.15000/- i/d to undergo 2 years RI respectively A-2 397 and 302 IPC Guilty 10 years RI and Life imprisonment along with fine of Rs.15000/- i/d to undergo 2 years RI respectively A-3 397 r/w 34 and 302 r/w 34 IPC Guilty 10 years RI and Life imprisonment along with fine of Rs.15000/- i/d to undergo 2 years RI respectively A-4 397 r/w 34 and 302 r/w 34 IPC Guilty 10 years RI and Life imprisonment along with fine of Rs.15000/- i/d to undergo 2 years RI respectively The sentences are ordered to run concurrently. 2. The short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is the son of the deceased. They own 2 acres of land. On the date of occurrence, that was on 5.5.2006, the deceased Chinnathayee took the goats for grazing. At about 2.00 p.m., when she was grazing the goats, P.W.4 who was working in the nearby field saw her. When P.W.6 was working in the nearby field, he also saw the deceased grazing cattle adjacent to the railway lane and after some time, he saw the four accused/A1 to A4 https://hcservices.ecourts.gov.in/hcservices/ running on the railway track and he further noticed blood stains in the shirt of A1 and A2. Equally, P.Ws.5, 8 and 9 also witnessed the accused running nearby the railway track. All the goats returned home at about 4.00 p.m. but not Chinnahayee. The father of P.W.1 who was in the house made a search for Chinnathayee in the nearby place. At about 4.00 p.m., P.W.1 returned to his house . His father informed him that his mother has not come back after grazing the cattle. Immediately, P.W.1 made a search in the nearby railway lane where Chinnathayee used to graze the goats and found his mother Chinnathayee in a suffocating condition near a pit. The jewels worn by her were found missing. With the help of others, P.W.1 lifted the body of Chinnathayee and took her to the Government Hospital in an auto. On the way to hospital, Chinnathayee died. Then, the dead body was brought back home. (b) At about 18 hours, P.W.1 proceeded to the respondent Police Station and gave a complaint, Ex.P1 to P.W.14, Sub Inspector of Police who was on duty at that time. On the strength of Ex.P1, a case came to be registered in Crime No.263/2006 under section 302 and 379 IPC. The Express F.I.R., Ex.P26 was despatched to Court. (c) On receipt of a copy of the F.I.R, P.W.16 took up investigation. He proceeded to the spot, made an inspection and prepared the Observation Mahazar Ex.P2 and drew a rough sketch Ex.P.31. He also recovered the material objects from the place of occurrence. Thereafter, he went to the house of the deceased where the dead body was placed and prepared another observation mahazar Ex.P.3 and drew a rough sketch Ex.32. Further, he conducted inquest on the dead body of the deceased in the presence of witnesses and panchayatdars and prepared Ex.P33 inquest report. (d) On the requisition made, P.W.11 doctor attached to the Government Hospital conducted autopsy on the dead body of the deceased and gave his opinion in Ex.P.23, post mortem certificate that the deceased would appear to have died out shock and haemorrhage due to the multiple injuries sustained by her. (e) Pending investigation, on the next day, that was on 6.5.2006, A1 and A2 were arrested. A1 came forward to give confessional statement voluntarily. The admissible part of the same was marked as Ex.P7. Pursuant to which, A1 produced M.O.11 Rs.110/- cash, M.O.10, blood stained shirt and M.O.1 thali. A2 also came forward to give confessional statement and the admissible part of the same was marked as Ex.P10. He also produced M.O.12- Rs.150/- cash, M.O.13 - shirt and M.O.4 - nose ring. He identified the pawn broker from whom M.O.3 gold gundus attached to Thali were recovered under a cover of mahazar. Then, https://hcservices.ecourts.gov.in/hcservices/ A1 and A2 were sent for judicial remand. On the requisition made and pursuant to the orders of the Chief Judicial Magistrate, identification parade was conducted by P.W.15 Judicial Magistrate- II, Salem. All the above witnesses participated and identified A1 to A4. The identification parade proceedings were marked as Ex.P30. All the material objects were subjected to analysis by the Forensic Science Department and the reports were received and they were placed before the Court. On completion of the investigation, the investigating officer filed a final report. (f) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges, the prosecution examined 16 witnesses and relied on 33 exhibits and 15 material objects. 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 the prosecution witnesses and they denied them as false. No defence witnesses were 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 rendered the judgment of conviction and sentence as referred to above. Aggrieved appellants/A1 and A2 have preferred this appeal. 3. Advancing the arguments on behalf of the appellant, the learned counsel Mr.Philip Ravindaran Jesudoss would submit, in the instant case, the prosecution had no direct evidence to offer. It relied upon the circumstantial evidence. The two main circumstances relied on by the prosecution was the last seen theory and the recovery. As regards the last seen theory is concerned, the prosecution marched P.Ws. 5, 6, 8 and 9. Out of these witnesses, P.W.5 turned hostile. Insofar as P.Ws.6, 8 and 9 are concerned, their evidence should have been rejected by the trial Court. All the witnesses have categorically claimed that they saw all the accused persons in the railway track and also noticed blood stains on the shirts of A1 and A2 and thereafter, they went to Salem and returned during night hours. When, they came to know about the death of Chinnathayee, they informed the Police the next morning and their statements were recorded. Contrarily, when P.W.1 was cross examined, he candidly admitted that when he went in search of his mother Chinnathayee the dead body was found in a pit and with the assistance of P.Ws. 5, 6, 8 and 9, the dead body was lifted and it was brought home. Thus, all the above witnesses were present along with him on the evening hours of the date of occurrence. Hence, it would conclusively indicate that those witnesses could not have seen either Chinnathayee grazing cattle or the accused running away from the place of occurrence. Thus, these witnesses are only false introduction made by the prosecution side. Hence, the trial Court should have rejected that piece of evidence. https://hcservices.ecourts.gov.in/hcservices/ 4. Added further learned counsel, the next circumstance according to the prosecution, which was also accepted by the trial Court, is the recovery. All the materials objects viz., M.Os.1 to 4 gold ornaments worn by the deceased Chinnathayee during the time of occurrence were recovered from the accused. The investigator would claim that the accused/ A1 was arrested on the next morning, that was on 6.5.2006, but the same was thoroughly falsify by the evidence of P.W.1. According to P.W.1, all the four jewels viz., M.Os. 1 to 4 were shown to him by the police at 4.00 a.m. If really the jewels were shown to P.W.1 at 4.00 a.m.these jewels could not have been recovered at the instance of A1 and A2 on the confessional statement alleged to have been recorded on 6.5.2006. Hence, it would indicate falsity of evidence putforth by the prosecution as to the arrest, confessional statement and the recovery. The identification parade conducted are only superfluous since the accused persons were already known to the witnesses. Hence, the prosecution has miserably failed to prove either of the circumstances relied on by them. Hence, the trial Court has taken an erroneous view and has convicted the accused. Therefore, the appellants/A1 and A2 are entitled for acquittal in the hands of this Court. 5. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 6. It is not in controversy that one Chinnathayee, mother of P.W.1 who went to graze cattle did not come home. When P.W. 1 went in search of her, he found her near a pit in a suffocating stage. P.W.1 took her to the Government Hospital in an auto but on the way to Hospital, she died. P.W.1 proceeded to the respondent Police Station and gave a complaint at 18 hours. On the strength of which, a case came to be registered directly under section 302 IPC. The investigator, after conducting inquest on the dead body of the deceased in the presence of witnesses and panchayatdars and prepared Ex.P.33 inquest report. Thereafter, the dead body was subjected to post mortem. P.W.11, doctor conducted autopsy and gave his opinion through the contents of the post mortem certificate and also as a witness before the Court that the deceased died out of shock and haemorrhage due to multiple injuries. This fact was never disputed by the appellant before the trial Court or before this Court. Hence, there is no impediment felt by this Court in recording so. 7. In order to substantiate that all the accused persons have caused the death of Chinnathayee and robbed her jewels marked as M.Os.1 to 4, the prosecution had no direct evidence to offer. As pointed out by the learned counsel and also on scrutiny of the https://hcservices.ecourts.gov.in/hcservices/ materials available, it is quite clear that the prosecution had only two circumstances. The first circumstance is the last seen theory in respect of which, the prosecution marched four witnesses, P.Ws. 5, 6, 8 & 9 and the second circumstances is the recovery of M.Os. 1 to 4 jewels worn by Chinnathayee, at the time of occurrence, pursuant to the confessional statement alleged to have been made by A1 and A2 and recorded by the Police officer in the presence of P.W.7. After scrutiny of the materials available, the Court is afraid whether it can sustain the conviction passed by the trial Court since both the circumstances relied on by the prosecution miserably failed. 8. Insofar as the first circumstance namely the last seen theory is concerned, P.Ws. 5, 6, 8 and 9 were marched by the prosecution to the effect that they saw Chinnathayee grazing cattle nearby the railway track between 2.30 and 4.00 p.m. and within a short span of time, they saw all the four accused running on the railway track nearby the place of occurrence and blood stains were found on the shirts of A1 and A2. Among the above prosecution witnesses, P.W.5 turned hostile. So far as P.Ws.6, 8 & 9 are concerned, they would claim that after seeing the accused nearby the place of occurrence, they all left for Salem and returned at 9.00 p.m. and only thereafter, they came to know about the death of Chinnathayee. They gave information and the same was recorded by the police, the next morning. It is a matter of surprise to note that P.W.1, at the time of cross examination, would state that all these four witnesses were available with him at the place of occurrence and nearby the dead body at 5.00 p.m. Under such circumstances, if the witnesses were present along with P.W.1 at 5.00 p.m., naturally they would have informed him immediately and would have gone to the Police Station and when the complaint was given, a reference should have been made in Ex.P1 report but it is not so. Those witnesses would further claim that they went to Salem and returned at 9.00 p.m. and came to know about the death of Chinnathayee. If to be so, they could have not seen either Chinnathayee or the accused persons running across the railway track. Therefore, their evidence did not serve the purpose as to the last seen theory. Therefore, no evidentiary value could be attached to their evidence. 9. Insofar as the recovery of M.Os.1 to 4 gold ornaments owned by Chinnathayee at the time of occurrence was concerned, the investigator would claim that after arrest, A1 and A2 came forward to give confessional statement which was recorded in the presence of P.W.7/ V.A.O. Thereafter, they produced those items of ornaments. This piece of evidence brought forth by the prosecution was falsified by the witness of P.W.1. P.W.1 has categorically admitted that at about 4.00 a.m. on 6.5.2006, all https://hcservices.ecourts.gov.in/hcservices/ the ornaments M.Os. 1 to 4 were shown to him at the police station. Thus, the ornaments were in the custody of the police officer even prior to the alleged arrest and confessional statement. Therefore, that part of the evidence is of no consequence at all. Under such circumstances, the prosecution has miserably failed to prove the case through the circumstantial evidence. Barring these circumstances, the prosecution has no other evidence to offer. 10. The learned Additional Public Prosecutor brought to the notice of the Court that as per the scientific evidence the blood stains found on the cloths of Chinnathayee and on the shirts of the accused alleged to have been recovered from the accused had the same blood group. This would in no way help the prosecution case or advance the prosecution case. This Court is unable to agree with the evidence of prosecution in respect of the alleged confessional statement and recovery. The two blood stained shirts form part of the alleged recovery. Under such circumstances, this contention putforth by the learned Additional Public Prosecutor cannot be accepted. Thus, the prosecution has miserable failed to prove its case. The learned trial Judge has taken an erroneous view and has convicted the accused. Therefore, the judgment of the trial Court has got to be made undone by upsetting the same. 11. Accordingly, the judgment of conviction and sentence passed by the trial Court is set aside. The appellants/A1 and A2 are acquitted of the charges levelled against them. The appellants/A1 and A2 are directed to be set at liberty forthwith unless their presence is required in connection with any other case. Fine amount if any paid by the appellants/A1 and A2 shall be refunded to them. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vsi https://hcservices.ecourts.gov.in/hcservices/ To 1. The First Additional Sessions Court, Salem. 2.-do- Thro' The Prl.Sessions Judge,Salem. 3.The Judicial Magistrate No.5, Salem. 4.-do- thro' the Chief Judicial Magistrate,Salem. 5. The Inspector of Police, Kondalampatti, Salem District 6.The Director Collector, Salem. 7.The Director General of Police, Chennai. 8.The Superintendent, Central Prison, Salem. 9. The Public Prosecutor, High Court, Chennai. +1cc to Mr.Philip Ravindran Jesudoss, Advocate Sr 67217 NK(CO) km/17.12. CRL. APPEAL No.651 of 2009 https://hcservices.ecourts.gov.in/hcservices/