Bail Slip The Appellants/ Accused 1 and 3 namely 1. Chinnappan @ Raja @ Thodiyan 2. Lucas were directed to be released on bail as per the order of this Court dated 11.10.2006 and made in Crl.M.P.No.4315 of 2006 in Criminal Appeal No.7 of 2006 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 22.07.2008 CORAM THE HONOURABLE MR. JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR. JUSTICE K.N.BASHA CRL.A.No.7 of 2006 1.Chinnappan @ Raja @ Thodiyan 2.Lucas .. Appellants/A-1 and A-3 Vs State through the Deputy Superintendent of Police CBCID, Vellore Circle, [Veraiyur Police Station]. [Crime No.370/2001] .. Respondent/Complainant Appeal filed under section 374[2] Cr.P.C., to set aside the conviction and sentence passed by the learned District and Sessions Judge,Tiruvannamalai, Tiruvannamalai District in SC.No.48 of 2004 by judgment dated 30.09.2005. For Appellants : Mr.K.S.Rajagopalan For Respondent : Mr.N.R.Elango Addl. Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT [Judgment of the Court was delivered by K.N.BASHA, J.] The appellants who have been arrayed as A-1 and A-3 out of three accused have come forward with this appeal challenging the judgment of the learned District and Sessions Judge, Tiruvannamalai, dated 30.09.2005 made in SC.No.48/2004 convicting them for the offence under section 302 read with 34 IPC and sentencing them to undergo life imprisonment and also imposing a fine of Rs.5,000/- each in default to undergo six months rigorous imprisonment. 2. The brief facts of the case as projected by the prosecution are as follows:- [a] P.W.3 is the husband of the deceased Jaya. A-1 is the brother of P.W.3. P.W.4 is the son of the deceased and P.W.3. P.W.5 is the mother of the deceased. P.W.3, the husband of the deceased was working in the Army. He was working in the Defence Security Department at Mumbai during the period of occurrence. P.W.2 is the President of the Community of the village and he knows the deceased as well as the accused. He has stated that three months prior to the occurrence, the deceased informed him that A-2 was quarreling with her questioning her as to how she can cut the tree. A-2 also said to have complained to P.W.2 in respect of the deceased cutting the tree from his house. The deceased further informed P.W.2 that A-1 also used to quarrel with her frequently. P.W.4, the son of the deceased stated that there were frequent quarrel between the deceased and A-1. P.W.3 also stated that his wife, the deceased, used to inform him over the phone about A-2 quarreling with her questioning her conduct of cutting the tree. Therefore, there were strained feelings between A-1, A- 2 and the deceased prior to the occurrence. [b] P.W.1, the Village Administrative Officer, on 29.11.2001, at 9.00 a.m. received the message from his assistant that a burnt body was found at Panaiyur Lake. Thereafter, P.W.1 went to the scene and saw the body and identified the body as that of the deceased Jaya. P.W.2, the President, also received the message about the burnt body of the deceased lying at Panaiyur lake and came to the scene. He found one Anthony, another son of the deceased, was weeping at the scene. P.W.2 claimed that he informed P.W.1 and thereafter, accompanied P.W.1 to the scene of occurrence. [c] P.W.1, the Village Administrative Officer prepared a report, Ex.P.1 and went to the Veraiyur police station and gave https://hcservices.ecourts.gov.in/hcservices/ Ex.P.1 to P.W.11, the Sub-Inspector of Police. P.W.11, registered the case in crime No.370/2001 for the offence under section 302 IPC. Ex.P.4 is the First Information Report [FIR]. He sent the FIR to the higher police officials and to the concerned Magistrate Court. [d] P.W.14, the Head Constable stated that the Inspector, one Veeran took up investigation in this case and he died subsequently. P.W.14 had stated that he knows his signature and handwriting. He also stated that the said Inspector went to the scene of occurrence at 12.45 p.m. and prepared Ex.P.7-Observation Mahazar and Ex.P.10-Rough Sketch in the presence of witnesses. He also recovered M.O.5-Blood stained earth, M.O.6-sample earth, M.O.7-burnt ashes, M.O.9-a pair of Hawai chappals, M.O.10-blue colour towel and M.O.11-burnt muffler with blood stains in the presence of witnesses. He also held inquest on the dead body of the deceased under Ex.P.11-the Inquest Report. Photographs were taken; sniffer dog was summoned to the scene and the Inspector examined other witnesses and recorded their statements. He sent the body for postmortem. [e] The doctor, P.W.7, attached to the Government Hospital, Tiruvannamalai, conducted postmortem on the dead body of the deceased on 30.11.2001 at 12.00 noon, on receipt of the requisition under Ex.P.2. He found the following injuries:- "EXTERNAL INJURIES:- 1] An incised wound right parietal region 10x1x1cm. 2] An incised wound left occipital regions 10x1x1cm. Both hands clenched and burns present. Right forearm burnt and bones seen. Left upper arm burnt. Right lower limb charred and detached from the body at mid thigh level. Left lower limb charred. Left femur burnt and fractured and seen at mid-thigh level. External Genitalia burnt and charred and could not be made out. Abdomen and pelvis burnt and viscera could not be made out." Ex.P.3 is the Postmortem Certificate wherein the doctor has opined that the deceased would appear to have died of severe shock and extensive haemorrhage due to injuries to the vital organs, namely, blood vessels and burns sustained to the vital organs, namely brain and abdominal viscera 24 to 48 hours prior to postmortem. [f] Inspector Veeran also recovered the jewelleries worn by the deceased, viz., M.O.12 to 19 and M.O.20-pieces of red colour blouse produced by P.W.14, the Head Constable after the postmortem https://hcservices.ecourts.gov.in/hcservices/ as per Ex.P.9. The material objects were sent for chemical examination through the Court. After completion of investigation, the Inspector sent the case records to CBCID police. [g] P.W.15, the Deputy Superintendent of Police, CBCID, took up investigation as per the order of this Court on 20.08.2002. He went to the scene of occurrence on 22.08.2002. He examined the witnesses and recorded their statements. On 28.09.2002, he examined P.W.2 and others. On 25.11.2002, he examined P.W.3. On 26.11.2002, he examined some more witnesses and recorded their statements. On 25.4.2003 at 11.30 a.m. he arrested A-1 at Vanniyanagaram Bus Stop. In pursuance of the admissible portion of the confession under Ex.P.5, he recovered the knife-M.O.4 and M.O.1-white plastic can produced by A-1. On the same day, he arrested A-2 at 5.00 p.m. at Perumanam Bus Stop. On 26.4.2003, he altered the offence from 302 IPC to one under sections 120[b] and 302 IPC. Ex.P.13 is the altered FIR. On 28.4.2003, he examined the doctor, P.W.7 and recorded his statement. After receiving the Postmortem Certificate Ex.P.3, chemical examination reports Ex.P.14 to 16 and after completing investigation, he filed charge sheet against the accused on 28.07.2003 for the offence under sections 120[b] and 302 IPC. 3. The prosecution in order to bring home the charges against the accused examined P.Ws.1 to 15, marked Exs.P.1 to 16 and M.Os.1 to 20. 4. When the accused were questioned under section 313 Cr.P.C., in respect of the incriminating circumstances appearing against each of them, they have denied their complicity and they have come forward with the version of total denial. They have not chosen to examine any witnesses on their side. 5. Mr.K.S.Rajagopalan, learned counsel for the appellants/A-1 and A-3 contended that the entire prosecution case rests on the circumstantial evidence and the prosecution failed to put forward any incriminating circumstances implicating anyone of the accused. It is contended that the only piece of circumstance relied on by the prosecution is the last seen theory said to have been spoken by P.W.9 to the effect that he has seen A-3 along with the deceased followed by A-1 just prior to the occurrence. It is also contended that P.W.9 was examined one and half years after the occurrence and he has admitted that till such time, he has not disclosed about he seeing the accused and the deceased just prior to the occurrence to anyone of his family members or to anyone till he was examined by the police. It is also submitted that the prosecution has not given any explanation for the delay in the examination of P.W.9. Learned counsel would submit that the evidence of P.W.9 is unbelievable and unreliable in view of the https://hcservices.ecourts.gov.in/hcservices/ above said infirmities It is further contended that even the motive put forward by the prosecution is too flimsy and far fetched as it is alleged that there were frequent petty quarrel between the deceased and A-1 and A-2. It is submitted that the prosecution version is contrary to the medical evidence through the doctor P.W.7. 6. We have heard Mr.N.R.Elango, the learned Additional Public Prosecutor on the submissions made by the learned counsel for the appellants. 7. We have given our careful and anxious consideration to the rival contentions put forward by either side and thoroughly scrutinised the entire materials available on record and also perused the impugned Judgment of conviction. 8. The entire case rests on the circumstantial evidence. It is well settled by a catena of decisions of the Hon'ble Apex Court that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and circumstances must be conclusive in nature to connect the accused with the crime. 9. In the light of the above said principle of law laid down by the Hon'ble Apex Court in respect of the circumstantial evidence, let us now scrutinise and analyse the circumstances put forward by the prosecution against the accused. 10. The prosecution has placed reliance on the following circumstances:- [a] The motive as spoken by P.Ws.2,3,4 and 5; and [b] The last seen theory spoken by P.W.9 to the effect that he has seen A-3 along with the deceased and A-1 following them; and [c] Apart from the above two circumstances, the rest of the materials available on record is the medical evidence through the doctor P.W.7, who has conducted the postmortem." 11. As far as the first circumstance, viz., motive put forward by the prosecution is concerned, the prosecution has chosen to place reliance on the evidence of P.Ws.2 to 5. P.W.2 had stated that the deceased informed him that A-2 was quarreling with her questioning her conduct of cutting the tree of A-2 and further the deceased had stated to him that A-1 used to quarrel with her frequently. It is pertinent to be noted that the evidence of P.W.2 is vague and not clear. Further, P.W.2 categorically https://hcservices.ecourts.gov.in/hcservices/ admitted in his cross-examination that P.W.3, husband of the deceased and brother of A-1 moved with A-1 and A-2 cordially and A-1 has not complained about her sister-in-law, the deceased to P.W.3 at any point of time. It is admitted by P.W.2 that he was not questioned by the police regarding the motive and he has also not stated to the police about the petty quarrel between the deceased and A-1 and A-2. 12. P.W.3, husband of the deceased had merely stated that he has received phone call from the deceased stating that A-2 was quarreling with her questioning the conduct of the deceased in cutting the tree of A-2. He had also admitted in his cross- examination that he has not stated such telephonic conversation during the course of examination by the police. It is pertinent to be noted that P.W.3 had admitted in his cross-examination that he has stated to the police during investigation that his wife, the deceased was not having any enemies. Therefore, the evidence of P.W.3 is also not helpful to the prosecution to prove the motive. 13. P.W.4 who is the son of the deceased and P.W.3 also stated that there were frequent quarrel between the deceased and A-1. But he has admitted in his cross-examination that he has stated to the police during investigation that his mother, the deceased, is not having any enemies. P.W.5, the mother of the deceased also has not come forward with definite version regarding the motive. Therefore, we are of the considered view that it is most unsafe to place reliance on the evidence of P.Ws.2 to 5 in respect of the motive put forward by the prosecution. 14. The next circumstance relied on by the prosecution is the last seen theory spoken by P.W.9. P.W.9 had stated that prior to the time of occurrence he has seen the deceased with A-3 proceeding towards Panaiyur lake followed by A-1. Fifteen minutes thereafter, it is claimed by P.W.9 that he heard the hue and cry of a lady and also seen the flames coming from that side. The undisputed fact remains that P.W.9 was examined by the police one and half years after the occurrence. It is pertinent to be noted that P.W.9 has admitted in his cross examination that he was at the scene village for two days after the occurrence and thereafter, he left for Tiruppur. It is further admitted by P.W.9 that he has not disclosed about he seeing the deceased and A-1 and A-3 to anyone of his family members or to anyone till he was examined by the police. It is curious to note that according to P.W.9 he was called by the police and thereafter, he was examined and it is admitted by him but for the police calling him, he would not have stated about the last seen theory even to the police. Therefore, the conduct of P.W.9 is unnatural and abnormal. In view of the above said reasons, we are of the considered view that https://hcservices.ecourts.gov.in/hcservices/ the evidence of P.W.9 is unreliable and untrustworthy and his evidence not at all inspires our confidence. 15. Apart from the above said circumstances, the remaining circumstances are the medical evidence and the recovery of weapon M.O.4-knife in pursuance of the admissible portion of confession of A-1. Mere medical evidence itself is not sufficient in the absence of any other materials to implicate the accused with the alleged crime. In respect of the recovery of M.O.4-knife the fact remains that no blood stains are detected and further, the recovery is not proved by any satisfactory evidence adduced by the prosecution. There are several missing links in the circumstances put forward by the prosecution and the prosecution has not completed the chain of circumstances unerringly pointing to the guilt of the accused. 16. For the aforesaid reasons, we are constrained to come to the inevitable conclusion that the impugned judgment of conviction is unsustainable and accordingly, the conviction and sentence imposed on the appellants in the judgment dated 30.09.2005 by the learned District and Sessions Judge, Tiruvannamalai District, in S.C.No.48/2004 is set aside and the criminal appeal is allowed. 17. It is reported that the appellants are on bail. Hence, bail bond, if any, executed by them, shall stand terminated and the fine amount, if any paid by them, may be directed to be refunded to them. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ap To 1. The District and Sessions Judge, Tiruvannamalai, Tiruvannamalai District. 2. The Judicial Magistrate No.1 Tiruvannamalai https://hcservices.ecourts.gov.in/hcservices/ 3. Do thro the Chief Judicial Magistrate, Tiruvannamalai District. 4. The Judicial Magistrate No.1, Chengalpet. 5. do Thro the Chief Judicial Magistrate Chengalpattu District. 6. The District Collector Tiruvannamalai 7. The Director General of Police, Chennai-4 8. The Superintendent Central Prison, Vellore. 9. The Deputy Superintendent of Police CBCID, Vellore Circle, 10. The Public Prosecutor High Court, Chennai. copy to The Section Officer Criminal Section, High Court, Madras. 1 cc to Mr.K.S. Rajagopalan, Advocate, SR. 39241 Crl.A.No.7/2006 VM (CO) kk 11/8 https://hcservices.ecourts.gov.in/hcservices/