Bail Slip The accused 2 and 3 namely Chinnasami Devar and Mayilathal were directed to be released on bail, vide order of this Court dated 20.09.2010 and made in MP.1/2010 in Crl.Appeal No.555 of 2010. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13-12-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.No.555 of 2010 1.Shanmuga Ganesan @ Ganesan 2.Chinnasami Devar 3.Mayilathal .. Appellants/Accused vs State rep. By Inspector of Police B14 Kuniamuthur Police Station Coimbatore Crime No.77 of 2009 .. Respondent/Complainant Criminal appeal preferred under Sec.374 of the Code of Criminal Procedure against the judgment of the I Additional District and Sessions Judge, Coimbatore, made in S.C.No.50 of 2010 dated 19.8.2010. For Appellants : Mr.G.Karthikeyan For Respondent : Mr.V.R.Balasubramanian Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the Additional Sessions Division, Coimbatore, made in S.C.No.50/2010 whereby A-1 stood charged under Sec.302 of IPC, while A-2 and A-3 stood charged under Sec.201 of IPC, and on trial, they were found guilty as per the charges, and A-1 was awarded life imprisonment along with a fine of Rs.1000/- and default sentence, while A-2 and A-3 were awarded three years Rigorous Imprisonment along with a fine of Rs.500/- and default sentence. 2.Short facts necessary for the disposal of this appeal can be stated as follows: (a) A-1 is the son of A-2 and A-3. They were all living together at Nehru Street, Narasimhapuram, within the jurisdiction of the respondent police. The deceased Selvaraj was the brother's son of https://hcservices.ecourts.gov.in/hcservices/ A-2. He used to come to the house of the accused often. As usual he came on the night hours of 17.9.2009. At that time, A-2 and A-3 asked him to prepare mutton. Accordingly, he prepared the same. At that time, A-1 came to the house. A-2 who praised the deceased, uttered the words "A-1 was useless, and the deceased was preparing mutton in a good manner, and thus he was to be praised." Thereafter, the deceased demanded Rs.100/- from A-2. Immediately, A-2 gave the same. On seeing this, A-1 got irritated. They were chatting for sometime. Thereafter, all of them went for sleeping. A-1 went to the upstairs for sleeping. During midnight, A-1 woke up, and suddenly he went to the place where the deceased was sleeping, took a sickle, attacked him at different parts of the body and caused his death. Then he fled away from the place of occurrence. (b) A-2 and A-3 who are the parents of A-1, on seeing this, immediately put the dead body in a gunny bag, and they were carrying the same from the place at that midnight. The same was witnessed by P.W.14. When P.W.14 questioned A-2 and A-3 where were they proceeding during the night hours, they replied that they have got lot of coconuts, and therefore they put them in the gunny bag and were taking them to the other shed. After 15 minutes, they came back. A-2 and A-3 who took the dead body in the gunny bag, threw the same into the well which is situated in the land of P.W.2 which was under lease of P.W.1. On 21.9.2009, P.W.1 who had got the lease of the land from P.W.2, smelled the odor which emanated nearby the well. Then he peeped into the well, found the dead body in the gunny bag and brought to the notice of P.W.2. Then P.W.2 informed him to go to the police station. Accordingly, P.W.1 went to the respondent police station and gave Ex.P1, the report, on the strength of which, a case came to be registered by one Jayakumar, the Sub Inspector of Police, in Crime No.77/2009 under Sec.302 of IPC. The printed FIR, Ex.P29, was sent to the Court. (c) On receipt of the copy of the FIR, P.W.19, the Inspector of Police of the Circle, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P30. Thereafter, he caused the photographs of the dead body and also the place of occurrence to be taken. They are marked as Exs.P19 to P28 respectively. Then he conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P31. The dead body was sent to the Government Hospital for the purpose of postmortem. On 22.9.2009, P.W.16, the brother-in-law of the deceased, identified the dead body and has also given a photograph which was taken at the time of the marriage of the deceased in which the deceased also posed. Thereafter, P.W.19 gave a requisition for the conduct of postmortem. (d) On 22.9.2009, A-1 appeared before the Village Administrative Officer (VAO), P.W.6, when he was in his office, and gave an extra- judicial confession in respect of the offence. He also recorded the same. The extra-judicial confession given to P.W.6 VAO, is marked as Ex.P5. Thereafter, P.W.6 handed over the accused and also the extra- judicial confession to P.W.19, the Inspector of Police. A-1 gave a confessional statement voluntarily to P.W.19. The same was recorded, and the admissible part of the confessional statement is marked as Ex.P6. Thereafter, he also produced a sickle, marked as M.O.8, and also a shirt and dhothi marked as M.Os.9 and 10 respectively, which were recovered under a cover of mahazar. He was sent for judicial remand. On the admission made by A-1, A-2 and A-3 were arrested on https://hcservices.ecourts.gov.in/hcservices/ 22.9.2009. They gave confessional statements which were recorded. They were sent for judicial remand. (e) P.W.12, the Assistant Professor, O/o. District Police Surgeon, C.M.C. Hospital, Coimbatore, on receipt of the requisition, has conducted autopsy on the dead body of Selvaraj on 23.9.2009, and has issued a postmortem certificate, Ex.P16, wherein he opined that the deceased would appear to have died of shock and haemorrhage due to cut injuries in the head and neck with its corresponding internal injuries sustained by him. (f) All the material objects were subjected to chemical analysis by the Forensic Sciences Department. Both Ex.P13, the chemical analyst's report, and Ex.P14, the serologist's report, were received by the Court. On completion of investigation, the Investigator filed the final report. 3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 19 witnesses and also relied on 34 exhibits and 19 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 and awarded the above punishment. Hence this appeal at the instance of the appellants. 4.Advancing arguments on behalf of the appellants, the learned Counsel Mr.G.Karthikeyan made the following submissions: (i) In the instant case, according to the prosecution, the occurrence has taken place on the night hours of 17.9.2009 i.e., at 8.00 P.M. But, the complaint was given by P.W.1, who has taken the land of P.W.2 on lease, after seeing the dead body inside the well, only on 21.9.2009 at about 8.30 A.M. The complaint was actually registered by the Sub Inspector of Police, and P.W.19, the Inspector of Police, took up investigation. He has categorically admitted that he proceeded to the spot, made an inspection and prepared an observation mahazar and also a rough sketch. Thereafter, in the presence of witnesses, he prepared the inquest report and the dead body was sent for the purpose of postmortem through a particular Constable whose number is also mentioned in the course of his evidence. But, the postmortem was conducted only on 23.9.2009, and thus a reasonable doubt was created where the dead body was actually kept for a period of two days. (ii) The identity of the dead body was completely shrouded with suspicion. It was not actually proved by the prosecution. It is true that P.W.16 was the brother-in-law of the deceased, and he immediately came to the place on 22.9.2009, and he has also given a photograph, according to him. If really the identity of the dead body was actually fixed, there was no need for getting a photograph. P.W.19, the Investigating Officer, has candidly admitted that DNA test was not actually taken, and further investigation in order to identify the dead body, was also not made. Under the circumstances, the evidence of P.W.16 becomes unbelievable. Thus the identity of the dead body should have been rejected by the trial Court. https://hcservices.ecourts.gov.in/hcservices/ (iii) As far as the evidence of P.W.6, the VAO, is concerned, it should have been rejected by the trial Court. According to P.W.6, he was in his office on 22.9.2009, and A-1 appeared before him and made an extra-judicial confession, and the same was recorded which is Ex.P5, and he was produced before the Investigator. It is not the case of the prosecution that A-1 already knew P.W.6, the VAO, and thus there was no reason for him to suddenly appear before the VAO the very next day and confess the crime. It has also taken place after the investigation had already started. Thus it would be quite clear that A-1 was actually secured and taken to the police station, and the services of the VAO was taken to support the prosecution story. (iv) The Investigator would claim that after A-1 appeared before him, he gave a confessional statement and following the same, he has produced M.O.8, sickle, and also a shirt and dhothi, and all these were actually produced before the forensic sciences department for analysis. The blood group was not actually found in the sickle. But the report is found to be disintegrated. According to the VAO, P.W.6, when the sickle was recovered from him, it actually contained bloodstains, and if to be so, the serologist's report was contrary. Hence it is highly doubtful whether there was any recovery which could have been made as put forth by the Investigator. (v) P.W.14 was the only witness to speak about A-2 and A-3 carrying the dead body in a gunny bag. When it was found in the well, the gunny bag was covered till the trunk of the body, while the head of the body was peeping outside. But, according to P.W.14, when he found A-2 and A-3 carrying the gunny bag, he did not have any suspicion since they replied that what was carried by them were coconuts. Thus it would be quite clear that P.W.14 could not have seen A-2 and A-3 as deposed by him that they were carrying the gunny bag. (vi) The Investigator would claim that the statement of P.W.14 was recorded on 22.9.2009 itself. But it has reached the Court only on 9.2.2010. It would be indicative of the fact that in order to rope in A-2 and A-3, such a statement should have been recorded from P.W.14. (vii) Apart from the above, the motive was not actually proved. P.W.15 has deposed that there were often quarrels. But, at the same time, he has stated that at the night hours, he found only A-1 and A- 2, the son and father respectively, and none else. Thus it would be quite clear that in the absence of the deceased at the spot, the evidence of P.W.15 was not useful to the prosecution case. 5.The learned Counsel would further add that in the instant case, the dead body was not identified; that the prosecution had no direct evidence to offer; that the evidence put forth by the prosecution is filled with doubts and suspicion; that in a given case like this where the prosecution case is rested upon circumstantial evidence, the prosecution must place and prove all the circumstances constituting a chain without a snap, but in the instant case, the circumstances placed were not proved; that even those circumstances were not sufficient to hold that the appellants/accused were guilty, but the trial Judge has taken an erroneous view, and hence the judgment of the trial Court has got to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 6.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 7.The case of the prosecution is that the dead body of the brother's son of A-2 one Selvaraj was found in a gunny bag in a well which was situated in a piece of land of P.W.2 which was under lease of P.W.1. On seeing the dead body, P.W.1 brought to the notice of P.W.2, and P.W.2 requested P.W.1 to inform to the police. Accordingly, Ex.P1, the complaint was given. After the registration of the case, P.W.19, the Investigating Officer, took up investigation, proceeded to the spot, made an inquest after following the procedural formalities and sent the dead body for the purpose of postmortem. As could be seen from Ex.P15, the requisition for postmortem, the name and the description of the deceased are actually mentioned therein. It is pertinent to point out that the requisition for postmortem was sent by the Investigating Officer only on 23.9.2009, and not earlier, and the postmortem was also conducted on 23.9.2009. At this juncture, it remains to be stated that according to P.W.16, he was summoned, and he identified the dead body as that of his brother-in-law Selvaraj. Thus it would be quite clear that after the identification of the dead body, the name and other description of the deceased should have been mentioned in the requisition, Ex.P15, which was given before the postmortem. It is further pertinent to point out that when P.W.16 has clearly given evidence to the effect that it was the dead body of his brother-in- law Selvaraj, it was not actually disputed even by a suggestion put forth on the side of the accused. Now the contention put forth by the learned Counsel for the appellant questioning the identity of the dead body, cannot be countenanced. The dead body was sent for the purpose of postmortem, and P.W.12, the Doctor, has conducted autopsy and has given a categorical opinion in the postmortem certificate that the deceased died out of shock and haemorrhage due to the injuries sustained by him. Thus the identity of the dead body of the deceased and the cause of death as put forth by the prosecution, stood proved before the trial Court. 8.In order to substantiate the charges against the appellants, the prosecution had no direct evidence to offer. It relied upon only circumstantial evidence. It is not that this Court is unmindful of the caution made by the Apex Court and also by the settled principle of law that in a given case, where the prosecution rests its case exclusively on the circumstantial evidence, it must place and prove the necessary circumstances constituting a chain without a snap and also pointing to the hypothesis that except the accused, no one could have committed the offence. In the case on hand, even after the application of this cardinal principle, this Court is satisfied that the prosecution has proved the case as far as A-1 is concerned. 9.The gist of the case of the prosecution is that on the night hours of the date of occurrence, when the deceased came to the house, there was a wordy altercation, and thereafter, all of them went to bed. When A-2 praised the brother's son, the deceased, and not A-1, his son, A-1 got irritated, and after some time, he took a sickle, attacked him when he was in his bed and caused his death https://hcservices.ecourts.gov.in/hcservices/ instantaneously. Now, the prosecution had the following circumstances pointing to the guilt of A-1. The dead body was identified by P.W.16 that it was of Selvaraj, his brother-in-law. P.W.6 is the Village Administrative Officer of the place. According to him, A-1 appeared before him on 22.9.2009, and has given a detailed confessional statement that it was he who has committed the crime. It is well settled proposition of law that on the sole piece of evidence of extra-judicial confession, a conviction can be sustained provided it satisfies two tests, firstly, the circumstances attendant when the extra-judicial confession came to be made and secondly, whether the evidence of the person to whom the extra- judicial confession is alleged to have been given, inspires the confidence of the Court. Admittedly, P.W.6 is the VAO of the very same place. He has also narrated the extra-judicial confession given by A-1, and all the material facts which are found in the extra- judicial confession, are found to be proved by the other evidence and in particular, the medical evidence. Thus the extra-judicial confession has been rightly accepted by the trial Judge. 10.Added circumstances are that P.W.16 has also heard a quarrel on the night hours, but he is unable to say that the deceased was actually present in the upstairs portion. It is pertinent to point out that the Investigator has actually made an observation of the place and also prepared a sketch where the incident of murder has taken place. Following the extra-judicial confession, A-1 was also produced before the investigator P.W.19, and he also gave a confessional statement voluntarily to the Police Officer, and the sickle and other material objects were recovered. It is true that the sickle did not contain bloodstains. But the recovery of the weapon of crime consequent upon the confessional statement given by A-1, would be pointing to the nexus of the crime with A-1. Under the circumstances, the contentions put forth by the learned Counsel for the appellants insofar as A-1, do not carry any merit whatsoever. 11.The learned Counsel made an emphasis that for a period of two days from 21.9.2009 to 23.9.2009, where was the dead body, no evidence was available. This contention cannot be countenanced for the simple reason that according to the Investigator, immediately after the inquest was over, the dead body was sent through a constable, and it reached the mortuary, but no postmortem has been conducted at that time. The requisition as found in Ex.P15, is dated 23.9.2009. The postmortem was also conducted on 23.9.2009. That apart, this has been spoken to by the postmortem Doctor. It would be quite clear that the dead body was actually found in the well, and the police was actually waiting in order to identify the dead body which was actually done by P.W.16 on 22.9.2009. Thus it leaves no doubt in the mind of the Court. The above pieces of evidence would be pointing to the guilt of A-1 that it was he who attacked him with the sickle and caused his death instantaneously. 12.As far as the evidence adduced by the prosecution to prove the charge of screening the evidence by A-2 and A-3, this Court is unable to agree with the case of the prosecution. The only witness examined for that purpose, is P.W.14. According to P.W.14, A-2 and A-3 were actually moving from their house in the midnight hours with the gunny bag on the back of a cycle, and they were proceeding for a https://hcservices.ecourts.gov.in/hcservices/ kilometer and thereafter, they returned within 15 minutes. He further added that when questioned, they replied that the gunny bag was filled with coconuts, and he entertained a suspicion, when the dead body was found in the well and the head part was actually peeping out. If to be so, in such a way, a dead body cannot be carried in a gunny bag, and it would naturally create a doubt in the mind of anybody. But P.W.14 has stated that he did not entertain any suspicion. Added circumstance to disbelieve the evidence of P.W.14 was that the Investigator would claim that the statement of P.W.14 was recorded by him on 22.9.2009. But, it has reached the Court on 9.2.2010. Thus the long gap in sending the statement to the Court would clearly indicate that the statement of P.W.14 should have been recorded later, and in order to rope in A-2 and A-3, such a statement could have been made at the instance of the police. Under the circumstances, it would be unsafe to sustain a conviction on the unbelievable and untrustworthy testimony of P.W.14 as regards A-2 and A-3. Except this evidence, the prosecution had nothing to offer as far as A-2 and A-3 are concerned. Therefore, A-2 and A-3 are entitled for acquittal. As far as A-1 is concerned, the judgment of the trial Court has got to be sustained. 13.Accordingly, the conviction and sentence imposed by the trial Court on A-2 and A-3, are set aside, and they are acquitted of the charge levelled against them. The bail bonds if any executed by them, shall stand terminated. The fine amount if any paid by them, shall be refunded to them. 14.As regards A-1, the judgment of conviction and sentence passed by the trial Court, is confirmed. 15.In the result, this criminal appeal is partly allowed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv To: 1. The Judicial Magistrate, Coimbatore. 2. The Chief Judicial Magistrate, Coimbatore (for information) 3.The I Additional District and Sessions Judge Coimbatore https://hcservices.ecourts.gov.in/hcservices/ 4.The Inspector of Police B14 Kuniamuthur Police Station Coimbatore Crime No.77 of 2009 5.The Public Prosecutor High Court, Madras. CRL.A.No.555 of 2010 JSV(CO) RVL 04.01.2011 https://hcservices.ecourts.gov.in/hcservices/