BAIL SLIP The Appellant/Accused No.3 and Appellants/Accused 1 and 2 in Crl.A.No.125 and 408/2007 were directed to be released on bail in and by the orders of this Court dated 8.8.2007 and 27.4.2007 and made in MP.Nos.1 and 1 of 2007 respectively. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.01.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRIMINAL APPEAL NOS.125 AND 408 OF 2007 Pavunu .. Appellant/Accused No.3 in Crl.A.No.125 of 2007 1.Rammi @ Ramesh 2.Thirupathi .. Appellants/Accused 1 and 2 in Crl.A.No.408 of 2007 Vs. State by the Inspector of Police, Thirupathur Taluk Police Station, Vellore District (Crime No.309/2004) .. Respondent in both the appeals These criminal appeals have been preferred under Section 374 (2) Cr.P.C. against the judgment of the learned Additional District and Sessions Judge, Fast Track Court, Vellore made in S.C.No.183 of 2005, dated 29.11.2006. For Appellants : Mr.S.Govindarajan in Crl.A.No.125 of 2007 Mr.R.Shanmugam, SC for Mr.S.V.Karthikeyan in Crl.A.No.408 of 2007 For Respondent : Mr.P.Kumaresan, APP - - - - https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT (The judgment of the court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern these two criminal appeals, namely Criminal Appeal No.125 of 2007 filed by A-3 and Criminal Appeal No.408 of 2007 filed by A-1 and A-2. 2.The appellants three in number stood charged, tried and found guilty by the Additional District and Sessions Division, Fast Track Court, Vellore in S.C.No.183 of 2005 as follows. Accused Charges Findings Sentence A-1 and A-2 S.302 r/w S.34 IPC Guilty Life imprisonment each and to pay a fine of Rs.1000/-, in default to undergo 6 months RI. A-1 and A-2 S.201 r/w S.302 IPC Guilty u/s.201 r/w 34 IPC 5 years R.I. each and to pay a fine of Rs.1000/-, in default to undergo 6 months RI. A-3 S.302 IPC Guilty u/s.302 r/w S.109 IPC Life imprisonment and to pay a fine of Rs.1000/-, in default to undergo 6 months RI. A-3 S.201 r/w S.109 IPC Guilty 5 years R.I. and to pay a fine of Rs.1000/-, in default to undergo 6 months RI. 3.The short facts necessary for the disposal of these appeals can be stated thus: a)P.W.1 is the elder brother of the deceased Venkatesan @ Chinnathambi. Both were carrying on brick kiln business independently. A-3 is the wife of the deceased. P.W.2 is the son of the deceased. The first accused took on lease 35 cents of land of the deceased for carrying on his brick business. One Ravi was carrying on business in that piece of land. In the course of the brick transaction and manufacturing of brick, A-3 developed intimacy with A-1 and apart from that, she has also given 5 sovereigns of gold jewels to A-1. When the deceased came to know about the same, he has not only demanded the return of the jewels, but also asked A-1 to hand over the possession of the land and thus, A-1 and A-3 were aggrieved over the attitude of https://hcservices.ecourts.gov.in/hcservices/ the deceased. A-2 was an associate of A-1. b)On 26.04.2004, the deceased went towards the field at about 7.00 p.m., but he did not return. A-1 and A-2 beat the deceased and caused his death. They originally buried the dead body in the land of P.W.4's brother and thereafter, they exhumed the dead body and gave an intimation to A-3 and along with her, they threw the dead body on the railway track. On the next day morning, A-3 informed P.W.2 and others that her husband, who went last night at 7.00 p.m., did not return. They were all making a search throughout. P.W.4 informed that a new pit was dug in the land of his brother and it also seems to be closed. Immediately, P.Ws.1 and 2 and others went there and dug the pit, but they noticed only bloodstains and they did not see the dead body. After seeing the dead body of the deceased in the railway track, P.Ws.1 and 2 proceeded to Jolarpet Railway police station and gave Ex.P.1, the complaint to P.W.18, the Sub Inspector of Police. The station master has also given Ex.P.22, the complaint to P.W.18, who registered the case in Crime No.125 of 2004 under Section 174 Cr.P.C. Ex.P.25, the F.I.R. was despatched to the Court. P.W.18 proceeded to the spot and made an inspection in the presence of the witnesses. The observation mahazar Ex.P.28 and the rough sketch Ex.P.32 were prepared. P.W.18 conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.24, the inquest report. When the matter was pending investigation, P.W.20, the Inspector of Police of the Railway police station, on receipt of the copy of the F.I.R., took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. It was noticed by P.W.20 that it was a case of murder and hence he transferred the investigation to Thirupathur Taluk Police Station. c)P.W.13, the Doctor attached to the Government Hospital, Thirupattur, on receipt of the requisition, has conducted post- mortem on the dead body of the deceased and has issued Ex.P.17, the post-mortem certificate, wherein she has opined that the deceased would appear to have died of injury to vital organs, 36 hours prior to autopsy. d)On transfer, P.W.21, the Inspector of Police of Thirupathur Taluk Police Station, took up the case and renumbered the same as Crime No.309 of 2004 and registered the case under Section 174 Cr.P.C. While the matter stood thus, A-1 and A-2 appeared before P.W.8, V.A.O. on 07.05.2004. A-1 gave confessional statement and the same was recorded by the V.A.O., which was marked as Ex.P.2. A-1 and A-2 were produced before the Thirupattur Taluk Police station along with Ex.P.2. Then, they were arrested and the case was converted from Section 174 Cr.P.C. to Section 302 IPC. Ex.P.27, the alteration report was despatched to the court. Further investigation was proceeded with. A-1 gave confessional statement, which was marked as Ex.P.3. A-2 also gave confessional statement, which was recorded in the presence of the witnesses and the same was also marked as Ex.P.4. Pursuant to the confessional statement, A-1 produced M.O.4, stick, which was recovered under a cover of mahazar. P.W.21 proceeded to the spot https://hcservices.ecourts.gov.in/hcservices/ along with the accused and the witnesses and prepared the observation mahazar and the rough sketch. He recovered the material objects from the place of occurrence under a cover of mahazar. A-3 was arrested and she came forward to give confessional statement, which was recorded in the presence of the witnesses. The accused were sent for judicial remand. All the material objects recovered were sent for chemical analysis. Ex.P.19, the Chemical Analyst's report and Ex.P.20, the Serologist's report were received. On completion of the investigation, the Investigator has filed the final report. 4.The case was committed to the court of sessions and necessary charges were framed. In order to substantiate the charges, the prosecution examined 21 witnesses and also relied on 32 exhibits and 10 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, which they flatly denied as false. No defence witness was examined. The trial court, on hearing the submissions made and looking into the materials available, took the view that the prosecution has proved the case beyond reasonable doubt and found the accused/appellants guilty as per the charges and awarded punishments as referred to above. Hence these appeals have arisen at the instance of the appellants. 5.Advancing arguments on behalf of the appellants, the learned Senior Counsel has made the following submissions: a)The occurrence has taken place, according to the prosecution, on 26.04.2004 between 7.00 p.m. and 8.00 p.m. The prosecution had no direct evidence to offer. But, it relied upon mainly the evidence speaking about the motive. Secondly, extra judicial confession alleged to have been given by A-1 and A-2 to P.W.8, V.A.O. on 07.05.2004 and also the recovery of M.O.4 under a cover of mahazar pursuant to the confessional statement given by A-1. Except this, the prosecution had no evidence to offer. Even though the prosecution made an attempt to prove the case through these circumstances, it has miserably failed to prove its case either, or bring home the guilt of the accused. b)According to the prosecution, the occurrence has taken place on 26.04.2004 between 7.00 and 8.00 p.m. P.Ws.1 and 2 have categorically admitted that on the next morning, they were informed by P.W.4 that a pit was dug and was closed in his brother's land. Immediately, they went over there and opened the pit, but they could not see the body and they found only the bloodstains. Even at that time, the police officials and the V.A.O. were all present. It was also added by P.W.2 that they gave a clear information and it was also recorded by the police and thus, it would be quite clear that the police of the said jurisdiction went over to the place and came to know about the occurrence and have recorded so. If to be so, the first information which was recorded by the police on 27.04.2004 itself has been suppressed in the instant case. https://hcservices.ecourts.gov.in/hcservices/ c)Secondly, even after seeing the dead body in the railway track, P.W.1 has given the complaint to the railway police, where he has categorically stated that it was the act of one Ramesh, namely A-1, who has committed the murder and threw the dead body in the railway line and thus, in the uncertain terms, an information was given to the police. Further, the case was not converted to Section 302 IPC even after transfer of the case from the Railway police to the regular police for the reasons best known to the police officials. For the first time, the case was altered from Section 174 Cr.P.C. to Section 302 IPC only after the extra judicial confession alleged to have been made by A-1 and A-2 to P.W.8, the V.A.O. and till that time, the case was not altered at all. In the instant case, there was not only suppression of the first information, but also the police were waiting for a period of 7 days even after the cognizable offence was brought to their notice. d)In the instant case, so far as the extra judicial confession alleged to have been made is concerned, it should have been rejected by the trial court for the simple reason that A-1 and A-2 were all along available in the village, but they appeared before the Village Administrative Officer on 07.05.2004. The police neither registered the case for murder nor arrested them, but has kept quiet. There is no reason for A-1 and A-2 to appear suddenly before P.W.8, V.A.O. to confess about the offence on 07.05.2004 and that too after a period of nearly about 10 days. It is not the case that P.W.8, V.A.O. was already acquainted to A-1 and A-2 and there is no reason as to why they should make confession before P.W.8 and thus, that confessional statement has been created in order to shape the case of murder like this. e)Further, in the instant case, M.O.4, which is alleged to have been recovered from A-1 pursuant to the confessional statement, did not contain any blood at all. According to the prosecution, the occurrence has taken place on 26.04.2004 at about 7.00 to 8.00 p.m., but P.W.13, the Doctor, who conducted post-mortem on the dead body of the deceased on 29.04.2004, has categorically stated in his report and also in his evidence that the deceased would appear to have died about 36 hours prior to autopsy. If to be so, it should have been on the night hours of 27.04.2004 or on the morning hours of 28.04.2004 and hence the time of death is also not proved by the prosecution. Under these circumstances, all would cast a doubt and that too in a case of circumstantial evidence, if they are not placed and proved properly and cogently, the trial court should have rejected the case of the prosecution in entirety and hence the appellants are entitled for acquittal in the hands of this court. 6.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. https://hcservices.ecourts.gov.in/hcservices/ 7.It is not in controversy that the dead body of Venkatesan @ Chinnathambi was found in the railway track near Jolarpet. On information of P.W.1, a case came to be registered by P.W.18, the Sub Inspector of Police attached to the railway police, Jolarpet in Crime No.125 of 2004 under Section 174 Cr.P.C. Subsequently, following the post-mortem, it was found that it was a case of murder and then, the case was transferred to Thirupattur Taluk Police Station and a case came to be registered in Crime No.309 of 2004 under Section 174 Cr.P.C. Ex.P.26, the F.I.R. was also marked. P.W.13, the post-mortem Doctor has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained. Thus, the prosecution was successful enough in proving the fact that the deceased died out of homicidal violence. This fact was also not disputed by the appellants before the trial court and hence it has got to be recorded so. 8.In order to substantiate the charges levelled against the appellants, the prosecution had no direct evidence to offer. It has relied upon only circumstantial evidence. In a given case like this, the prosecution must place and prove all necessary circumstances pointing to the guilt of the accused undoubtedly and also the hypotheses that no one else could have committed the offence except the accused. If this test is applied, the court is afraid whether it can agree with the prosecution case. In the instant case, the prosecution came with the specific charge that A-1 and A-2 beat the deceased and caused his death between 7.00 p.m. and 8.00 p.m. on 26.04.2004 and while screening the evidence, A-3 also joined with them. In order to prove those charges, the prosecution mainly rested on the evidence in respect of motive, extra judicial confession alleged to have been given by A-1 and A-2 to P.W.8, V.A.O. on 07.05.2004 and also the recovery of M.O.4 under a cover of mahazar. 9.All the circumstances noticed were stood against the prosecution case. According to the prosecution, the occurrence has taken place on 26.04.2004 between 7.00 p.m. and 8.00 p.m. P.W.13 was the Doctor, who conducted autopsy on the dead body of the deceased. According to him, the death would appear to have caused 36 hours prior to autopsy, i.e. the death would have caused on the night hours of 27.04.2004 or on the early morning hours of 28.04.2004, but the prosecution case was that the death has occurred on 26.04.2004 itself. The dead body was found only on 28.04.2004 at about 11.00 a.m. Thus, the death would have been caused as noticed by the post-mortem Doctor and not as put forth by the prosecution on 26.04.2004 between 7.00 p.m. and 8.00 p.m. No explanation was forthcoming from the prosecution before this court. 10.Secondly, according to P.Ws.1 and 2, Venkatesan @ Chinnathambi was not found on the night hours of 26.04.2004 and it was A-3 who informed P.Ws.1 and 2 and others. P.W.4, the https://hcservices.ecourts.gov.in/hcservices/ nearby neighbour, informed that a new pit was dug in his brother's land and it remains closed also and therefore, they should go and verify. Accordingly, P.Ws.1 and 2 and others went over there and opened the pit, but they could not see the dead body and found only the bloodstains. At this juncture, it is pertinent to point out that according to the witnesses, the V.A.O. and the police officials were also present on 27.04.2004. They would further add that the police have recorded their information which was given. If to be so, the police have clear information of the incident as reported by P.Ws.1 and 2 on 27.04.2004 morning itself. But what happened to that information remained unknown before the trial court. 11.Thirdly, the dead body was found in the railway track near Jolarpet on 28.04.2004. P.W.1 rushed to Jolarpet Railway Police and gave an information to P.W.18, the Sub Inspector of Police, who registered the case in Crime No.125 of 2004 under Section 174 Cr.P.C. The dead body was subjected to post-mortem by P.W.13, the Doctor, who has clearly opined that it was not an accident, but it was a case of death due to homicidal violence. Immediately, the case was transferred to the regular police, namely Thirupattur Taluk Police on 29.04.2004 itself. Even after the same, the case was not altered to Section 302 IPC, but the case was renumbered as Crime No.309 of 2004 only under Section 174 Cr.P.C. It is pertinent to point out that even in the earliest information given by P.W.1 to the railway police on 28.04.2004 itself, he has categorically stated that it was a case of murder and the act committed by A-1 in killing his brother. At this juncture, it remains to be stated that Thirupattur Taluk Police, under what circumstances or reasons, did not register the case for murder, but continued it under Section 174 Cr.P.C. remained unknown. Further, the case was altered to Section 302 IPC only on 07.05.2004 subsequent to the production of A-1 and A- 2 by P.W.8, V.A.O and the confessional statement given as found under Ex.P.2. At this juncture, it remains to be stated that though the prosecution has projected as if A-1 and A-2 were absconding, the evidence would indicate that they were very well available in that place. If to be so, what made the police not to register the case of murder or not to cause arrest of the accused or not to proceed with the investigation remained unexplained. It is not the case of the prosecution that P.W.8, V.A.O. was acquainted with A-1 and A-2, but what impelled them to appear before him suddenly and gave such a confessional statement on 07.05.2004 remained unknown and is doubtful and it casts a doubt whether they gave such a statement at all. 12.In the instant case, though M.O.4 was subjected to analysis, it did not contain human blood at all. It should not be forgotten that it was a case rested on circumstantial evidence. If to be so, it is true, the witnesses may fail, but not the circumstances. But the circumstances when placed to take a decision as to the guilt of the accused, they must be cogent, convincing and must constitute a chain without a snap and https://hcservices.ecourts.gov.in/hcservices/ pointing to the hypotheses that except the accused no one could have committed the offence. In the instant case, all the circumstances noticed are contra to the hypotheses that except the accused no one could have committed the offence. Under these circumstances, it would be highly unsafe to rest the conviction on the basis of the circumstances placed before the trial court, but the trial court has taken an erroneous view and hence the judgment of the trial court has got to be made undone only by upsetting the same. 13.Accordingly, the judgment of conviction and sentence imposed on the appellants by the trial court is set aside and the appellants are acquitted of the charges levelled against them. The bail bonds if any executed by them shall stand terminated and the fine amounts if any paid by them shall be refunded to them. Accordingly, these criminal appeals are allowed. Vvk 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, Thirupathur Taluk Police Station, Vellore District. 3.The Public Prosecutor, High Court, Madras. 4.The Judicial Magistrate II, Thirupattur. 5.Do Through The Chief Judicial Magistrate, Vellore 6.The Superintendent, Central Prison, Vellore. 7.The Superintendent, Central Prison for Women, Vellore. 8.The District Collector, Vellore. 9.The Director General of Police, Mylapore, Chennai 4. 10.The Superintendent of Police, Vellore District, Vellore. + 2 ccs Mr. S. Govindarajan, Advocate SR No.3427 + 1 cc to MR. S. V. Karthikeyan, Advocate SR No.3261 KG(CO) SR/30.1.2009 Crl.A.Nos.125 and 408 of 2007 https://hcservices.ecourts.gov.in/hcservices/