IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.01.2008 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Criminal Appeal No.280 of 2007 Kannusamy S/o Patchianna Naicker .. Appellant/Single Accused -vs- State rep.by Inspector of Police Pallipalayam Police Station Namakkal District (Crime No.665/2005) .. Respondent/Complainant Memorandum of Grounds of Criminal Appeal under Section 374(2) of the Criminal Procedure Code against the judgment dated 24.1.2007 made in S.C.No.135 of 2006 on the file of the learned Principal District and Sessions Judge, Namakkal. For Appellant :: Mr.B.Vasudevan For Respondent :: Mr.P.Kumaresan Addl. Public Prosecutor JUDGMENT (Judgment of the Court was delivered by D.MURUGESAN, J.) The appellant is the single accused, who stands convicted for the offence under Section 302 IPC and sentenced to undergo life imprisonment by the judgment of the learned Principal District and Sessions Judge, Namakkal made in S.C.No.135 of 2006 dated 24.1.2007. 2. The appellant/accused was put on trial on the following prosecution case:- The accused is the husband of the deceased. As the accused became old, he did not go to any job and he used to take food only from the earning of his wife, the deceased. Hence the deceased used to scold the accused not only on the ground that he was jobless, but https://hcservices.ecourts.gov.in/hcservices/ also he did not satisfy his wife in the matrimonial life as he had some illness. The accused has therefore developed motive and with an intention to kill the deceased, on 27.11.2005 at 3.00 a.m., when the deceased was sleeping in a coir cot, he took a broken wooden log from the cot marked as M.O.1 and hit the deceased thrice on her head, to which the deceased succumbed. As P.W.1 had not seen both her father and mother namely, the accused and the deceased for nearly one year, she came to their house and saw the deceased lying in a pool of blood and the body was covered with a bedsheet. She also noticed the pool of blood beneath the said coir cot. P.W.1 informed the same to her husband and in the meantime, the neighbours came there. 3. P.W.2, who is yet another son of both the accused and the deceased, was also informed over phone. On his arrival, P.W.1 went to Pallipalayam Police Station and lodged the complaint, Ex.P-1 at about 11.00 a.m., on 27.11.2005 to P.W.14, the Sub Inspector of Police, which was registered in Cr.No.665 of 2005 for the offence under Section 302 IPC. The printed First Information Report is Ex.P-20. P.W.14, on intimating the occurrence to the Inspector of Police, P.W.15 and on his directions, went to the scene of occurrence and took five photographs of the dead body under M.O.12 series along with the negatives under M.O.13 series. He sent the printed First Information Report to the Judicial Magistrate, Tiruchengode and to the higher police officials. 4. P.W.15, the Inspector of Police attached to Pallipalaym Police Station, took up investigation in this case after the receipt of the First Information Report. He proceeded to scene of occurrence at about 11.45 a.m., and prepared an Observation Mahazar, Ex.P-4 and also drew a rough sketch, Ex.P-21 in the presence of P.W.7 and another witness. He recovered the bloodstained coir- M.O.2, bloodstained bedsheets-M.Os.3 & 4, bloodstained pillow-M.O.5, bloodstained earth- M.O.10 and sample earth-M.O.11 in the presence of the same witnesses under the mahazar, Ex.P-5. He conducted inquest on the body of the deceased between 12.15 p.m., and 3.15 p.m., in the presence of panchayatdars and prepared the inquest report, Ex.P-22. He examined P.Ws.1,2,3,4,5,6,7,9 & 13 and recorded their statements. He thereafter sent the body of the deceased through the Head Constable, P.W.12 to the Pallipalayam Government Hospital along with the requisition, Ex.P-10 for conducting post-mortem. 5. P.W.10, Civil Surgeon attached to Government Hospital, Pallipalayam commenced post-mortem on the body of the deceased at 4.20 p.m., on 27.11.2005 and she noted the following external injuries:- "(1) 10x10cm contusion with depression wound is seen over centre of forehead with 1x ½ cm x bone deep lacerated wound at its centre. (2) Head is deformed with bleeding from both nostrils and both ears." https://hcservices.ecourts.gov.in/hcservices/ She issued the post-mortem certificate, Ex.P-12 with her opinion that the deceased would appear to have died of shock and haemorrhage due to head injury 12 to 18 hours prior to post-mortem. 6. P.W.15, continuing with his investigation, arrested the accused at 9.45 a.m., on 28.11.2005 in the police station when he was produced by the Village Administrative Officer, P.W.7 and his Assistant-Durairaj along with the confessional statement, Ex.P-6 of the accused and covering letter, Ex.P-7. In pursuance of the admissible portion of the confession of the accused under Ex.P-8, he recovered the bloodstained wooden log of the coir cot, M.O.1 from the accused at 11.45 a.m., which was hidden in a bush, in the presence of the same witnesses under the mahazar, Ex.P-9. He also recovered the bloodstained thali-M.O.6, bloodstained jacket-M.O.7, bloodstained petticoat-M.O.8 and the bloodstained nylon saree-M.O.9 of the deceased from P.W.12 under Form-95. He sent the seized material objects to the Court under Ex.P-23 series. He intimated P.W.1 as to the arrest of the accused under Ex.P-24 telegraph receipt. He sent the seized material objects under the requisition, Ex.P-13 through the Court for chemical examination. He examined the other witnesses and recorded their statements. He examined the post-mortem doctor, P.W.10 on 2.12.2005 and recorded her statement. After completing investigation, laid the final report against the accused on 27.12.2005 for the offence under Section 302 IPC before the Court. 7. To bring home the charges against the accused, the prosecution examined 15 witnesses, marked 24 exhibits and produced 13 material objects. 8. When the accused was questioned under Section 313 of the Criminal Procedure Code as to the incriminating materials appearing against him, he denied them as false. No witness was examined and no document was marked on the side of the defence. However, accepting the case of the prosecution, the learned trial Judge found the accused guilty, convicted and sentenced him for the offence as stated above. 9. Learned counsel for the appellant/accused has submitted that the prosecution case entirely rests only on the circumstantial evidence, as there are no eye-witnesses. The following are the circumstances according to the learned counsel: (i) The extra-judicial confession, Ex.P-6 said to have been given by the accused to the Village Administrative Officer, P.W.7 on 28.11.2005 at about 8.00 a.m. (ii) The seizure of M.O.1, the bloodstained wooden log of the coir cot on 28.11.2005 from the accused under the cover of mahazar, Ex.P-9 on the basis of the admissible portion of his confessio given to the Investigating Officer under Ex.P-8. (iii) The First Information Report given by P.W.1 immediately after the occurrence naming the accused as the assailant. https://hcservices.ecourts.gov.in/hcservices/ 10. So far as the first circumstance namely, the extra-judicial confession is concerned, the learned counsel would submit that inasmuch as the complaint, Ex.P-1 was registered at 11.00 a.m., on 27.11.2005, the extra-judicial confession, Ex.P-6 which was recorded by P.W.7 at 8.00 a.m., on 28.11.2005 when the investigation had already commenced, cannot be believed. If the said extra-judicial confession is disbelieved, the consequential arrest of the accused and the seizure made on the same day should also be disbelieved. 11. So far as the First Information Report is concerned, the learned counsel would submit that the prosecution has not come forward with the true version. While P.W.1 has stated that even at 9.30 a.m., on 27.11.2005, the police from Molasi Police Station came to the scene of occurrence and they left after seeing the place on the ground that it fell outside their jurisdiction and thereafter, they had informed Pallipalayam Police Station. On such information, the police from Pallipalayam Police Station came to the scene place at 10.00 a.m., and recorded a statement from P.W.1 in the scene of occurrence itself which, according to the learned counsel, is the first information. However, strangely, the prosecution has come forward with a case as if P.W.1 had gone to the police station at 11.00 a.m., and lodged the complaint, Ex.P-1, suppressing the earlier statement given by P.W.1 to the Pallipalayam police who came to the scene of occurrence at 10.00 a.m. He would also submit that when the police had suppressed the first version of P.W.1, it must be construed that they have not come out with true version before the Court and absolutely there is no explanation whatsoever for the suppression of such statement given by P.W.1 in the scene of occurrence itself, except a complete denial of such statement by the Investigating Officer. The learned counsel would also submit that the fact that the Investigating Officer having denied the recording of any such statement and P.W.1 is categorical for having given such a statement, it must be held that the Investigating Officer has not deposed the truth and consequently, he has not come forward with true version of the case. The learned counsel would further submit that keeping the above in mind, if the arrest and the seizure are considered, obviously, the prosecution has come forward only with a false case. He would also submit that when P.W.1 and P.W.9 have categorically stated that they saw the bloodstained wooden log of the cot, M.O.1 lying near the body of the deceased and in fact P.W.9 has stated that the police came in the morning of 27.11.2005 to the scene of occurrence and they took away M.O.1 with them, the prosecution has come forward with a story that M.O.1 was not found in the scene of occurrence, as it was seized only from a bush on 28.11.2005 on the basis of the admissible portion of the confession given by the accused to the Investigating Officer and that too, when he was arrested and was in the custody of the Investigating Officer. In view of the above, the seizure is also doubtful. https://hcservices.ecourts.gov.in/hcservices/ 12. So far as the arrest is concerned, the learned counsel has again relied upon the evidence of P.W.1 to the effect that even on the morning of 27.11.2005 when the police came to the scene of occurrence, she came to know that the accused had surrendered to the police, which is contrary to the case of the Investigating Officer that the accused appeared before the Village Administrative Officer, P.W.7 on the next day i.e., on 28.11.2005 at 8.00 a.m., and gave the extra-judicial confession, Ex.P-6 and thereafter the accused was taken to the police station by P.W.7 and the accused was arrested in the police station only. Therefore the learned counsel submitted that in a case of circumstantial evidence, the prosecution has relied upon only the above circumstances and even when such circumstances are not established beyond any reasonable doubt, the appellant/accused is entitled to the benefit of doubt. 13. Mr.P.Kumaresan, learned Additional Public Prosecutor, on the other hand, would submit that the evidence of the Village Administrative Officer, P.W.7 is categorical and there is no reason to discard his evidence, as he has stated that the accused appeared before him and gave the extra-judicial confession, Ex.P-6 on 28.11.2005 at about 8.00 a.m., which led to the subsequent confession of the accused to the Investigating Officer at 10.00 a.m., which led to the seizure of M.O.1 under the cover of mahazar, Ex.P-8. He would also submit that neither in the Observation Mahazar, Ex.P-4 nor in the rough sketch, Ex.P-21 prepared and drawn by the Investigating Officer at the earliest point of time, the presence of M.O.1 is shown indicating the truthfulness of the prosecution case as to M.O.1. The learned Additional Public Prosecutor would further submit that the evidence of P.Ws.1 & 3 is categorical as to the misunderstanding between the accused and the deceased resulting in frequent quarrel and aggravated by such quarrel, the accused had committed the murder of the deceased. The prosecution has proved each and every circumstance to bring home the guilt of the appellant/accused and hence the judgment under appeal needs no interference. 14. It is not in dispute that the case of the prosecution on hand rests only on the circumstantial evidence. It has been authoritatively held by the Apex Court that in a case of circumstantial evidence, the prosecution must establish the circumstances firmly and cogently. This proposition of law has been held by the Apex Court in the judgment in Gambhir v. State of Maharashtra (AIR 1982 SC 1157), holding that when a case rests upon the circumstantial evidence, such evidence must satisfy three tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain to complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence https://hcservices.ecourts.gov.in/hcservices/ in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 15. It has been also held that while the prosecution case is put forth on circumstantial evidence, the burden on the prosecution is heavy to prove each and every important link leading to the involvement of the accused in the offence. This law has been held by the Apex Court in the judgment in Sudama Pandey and others v. State of Bihar (2002 SCC (Crl.) 239). In fact the Apex Court has gone to the extent of insisting even an additional link wherever it is required in a case of circumstantial evidence, as has been held in the judgment in State of Tamil Nadu v. Rajendran (2000 SCC (Crl.) 40). In a case of circumstantial evidence, it is incumbent on the part of the prosecution to prove the entire circumstances without there being any missing link. If the prosecution failed to prove even a single link in the chain of circumstances, the accused should only be given the benefit. 16. Keeping the above law in mind, the case of the prosecution as put forth below the Court below should be considered. So far as the First Information Report is concerned, according to P.W.1, who is none other than the daughter of the deceased and the accused, she went to the police station at about 11.00 a.m., and lodged the complaint, Ex.P-1 to P.W.14 when the occurrence had taken place at 3.00 a.m., on 27.11.2005. The printed First Information Report also indicates that such a complaint was given at 11.00 a.m., on 27.11.2005 by P.W.1 alone. The evidence of the Investigating Officer, P.W.15 also goes to show that such a complaint was received only at 11.00 a.m., on 27.11.2005. On the other hand, the evidence of P.W.1 falsifies the above stand of the prosecution. It is her categorical statement that when she came to the house where the accused and the deceased were residing on the morning of 27.11.2005, she saw the body of her mother, the deceased, lying in a pool of blood and covered with bedsheet. Thereafter, she informed P.W.2-Munusamy, who is her brother. In the meantime, the police had received information as to the occurrence and the police from Molasi Police Station came to the scene of occurrence immediately and on the opinion that they had no jurisdiction to entertain any complaint, they just left the scene place after informing that an intimation will be given to Pallipalayam Police Station which, according to them, would have jurisdiction. Thereafter, the police from Pallipalayam Police Station came to the scene of occurrence at 10.00 a.m., and recorded the statement from P.W.1. This statement has been admittedly suppressed by the prosecution. Strangely, the Investigating Officer-P.W.15 has taken the stand that no such police officer visited the scene of occurrence on the morning of 27.11.2005 as stated by P.W.1. In our considered view, P.W.1, who is the author of the complaint, herself has claimed that she had given an earlier statement and when such statement is https://hcservices.ecourts.gov.in/hcservices/ suppressed by the prosecution, it must be construed that the prosecution has not come forward with true version and the registration of the First Information Report itself is not genuine. P.W.2, the son of the accused and the deceased, has also deposed that on the morning of 27.11.2005, even before the complaint, Ex.P-1 was given to P.W.14 at 11.00 a.m., the police from Molasi Police Station came to the scene of occurrence and after they left the scene place, the police from Pallipalayam Police Station came to the scene of occurrence. In spite of the above two consistent statements, it would be hard to believe the evidence of the Investigating Officer that none of the police from Pallipalayam Police Station had visited the scene of occurrence. Hence, in our considered view, the prosecution has not come forward with true version and there is absolutely no explanation as to the failure to produce the statement given by P.W.1 much prior to Ex.P-1. Therefore, the said circumstance is not established. 17. The other circumstance put forth by the prosecution is the extra-judicial confession which led to the seizure of M.O.1. Even according to the prosecution, the complaint was given at 11.00 a.m., and immediately the same was registered and P.W.14 has visited the scene of occurrence and made arrangements to take photographs of the dead body and therefore the investigation has commenced after the complaint was registered at 11.00 a.m., on 27.11.2005. However, the prosecution has come forward with a case that the accused had surrendered before the Village Administrative Officer-P.W.7 on the next day i.e., on 28.11.2005 at 8.00 a.m., and has given the extra- judicial confession for having committed the murder. It has been held by the Apex Court in various judgments that an extra-judicial confession is a weak piece of evidence and it cannot be claimed as one of substantial piece of evidence and utmost it can be relied upon as an additional material to the prosecution case. It has also been held that an extra-judicial confession would have no credibility if it is recorded pending investigation. Admittedly, the extra-judicial confession recorded by P.W.7 was pending investigation. Secondly, based upon the said extra-judicial confession, no recovery was made. If at all the said extra-judicial confession could be taken into consideration, the same cannot be put against the accused, as it did not result in any recovery and such extra-judicial confession is inadmissible in evidence. 18. The accused was thereafter taken to the police station by P.W.7, where he was shown arrested and at that time he gave another confession under Ex.P-8 to P.W.15, which led to the recovery. Inasmuch as the extra-judicial confession given to P.W.7 should be ignored and cannot be taken into consideration, we are afraid as to how far the subsequent confession given to the police, though resulted in recovery, could also be believed especially when the accused was in the custody of the police and has been shown arrested. https://hcservices.ecourts.gov.in/hcservices/ 19. That apart, the seizure itself is highly doubtful. It is the categorical evidence of P.Ws.1 & 9 that both of them saw the bloodstained wooden log-M.O.1 lying in the scene place just near the dead body. In fact P.W.1 has identified M.O.1 as the wooden log which she saw near the dead body. P.W.9 has gone one step further to state that the police came in the morning to the scene of occurrence even before the complaint was lodged and before the conduct of inquest, they took M.O.1 along with them. This seizure of M.O.1 by the police is referred to by P.W.1 with reference to the morning of 27.11.2005. On the other hand, the prosecution has come forward with a case that M.O.1 was seized at about 10.00 a.m., on 28.11.2005 and that too, on the basis of the admissible portion of the confession given by the accused to P.W.15. When the witnesses have come forward with a case as to the seizure of M.O.1 even on the earlier day, the subsequent version of the prosecution as to the seizure on the basis of the admissible portion of the confession given to P.W.15 must necessarily be disbelieved. There cannot be contradictory stand by the prosecution one through the witnesses and the other through the Investigating Officer. When the evidence of the witnesses to speak about the circumstances is categorical and cogent as to the seizure, such evidence should be preferred and the benefit should be given to the accused as against the Investigating Officer. If once that is concluded, the prosecution case as to the seizure must be disbelieved. 20. This leads us to the next circumstance namely, the arrest of the accused. According to the Investigating Officer, P.W.15, the accused was brought to the police station by P.W.7, the Village Administrative Officer along with the extra-judicial confession, Ex.P- 6 on the morning of 28.11.2005 and thereafter thea ccused was arrested. Just contrary to the above stand of the Investigating Officer, the evidence of P.W.1 goes to show that even on the morning of 27.11.2005, when Pallipalayam police came to the scene of occurrence, she was given to understand that the accused had surrendered to the police. Most probably the version of P.W.1 is correct and the Investigating Officer, having taken the accused into custody, later on had created the subsequent material namely, the extra-judicial confession only for the purpose of showing the arrest and recovery. This, in our considered view, is an overstep on the part of the Investigating Officer to bring in some false evidence. Such act of the investigating agency throws a serious doubt about the genuineness of the very investigation itself and in such circumstances, the benefit of doubt must be made available to the accused only. As we have observed that in a case of circumstantial evidence, the prosecution has to prove each and every circumstance without any missing link, in our considered view, in this case the prosecution has not proved even any one of the circumstances to implicate the accused in the offence. https://hcservices.ecourts.gov.in/hcservices/ 21. As we have held that though the prosecution has come forward with a clear case to implicate the accused in the offence through the evidence of P.Ws.1,2,3,7 & 9, strangely, the Investigating Officer has introduced certain elements which, in our considered view, are not necessary for the prosecution case and thereby has made the evidence of the above witnesses of any consequence resulting in serious doubt about the prosecution case. Though P.Ws.1,2 & 3 have spoken about the motive for the occurrence and the accused has to explain the occurrence as the occurrence had taken place inside the house, we have no other option except to accept the submissions of the learned counsel for appellant as to the failure on the part of the prosecution to establish each and every circumstance resulting in the offence at the instance of the appellant/accused. 22. For all the above discussions, we are of the considered view that the appellant is entitled to the benefit of doubt and consequently, to an acquittal. Accordingly, the conviction and sentence imposed on the appellant/accused by the impugned judgment dated 24.1.2007 made in S.C.No.135 of 2006 passed by the learned Principal District and Sessions Judge, Namakkal are set aside and the criminal appeal is allowed. The appellant/accused shall be released forthwith, unless his custody is required in connection with any other case. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ss To 1. The Principal District & Sessions Judge, Namakkal 2. The Superintendent, Central Prison, Coimbatore 3. The Public Prosecutor, High Court, Madras 4. The Inspector of Police, Pallipalayam Police Station, Namakkal District 5. The District Collector, Namakkal 6. The Director General of Police, Chennai. 1 cc To Mr.B.Vasudevan, Advocate, SR.1421. Crl.A.No.280 of 2007 KG(CO) RVL 22.01.2008 https://hcservices.ecourts.gov.in/hcservices/