IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 9-8-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN CRL.A.No.70 of 2009 Suresh ..Appellant (Accused) vs. The State Rep. By Inspector of Police, C.B.C.I.D., Solinghur Police Station, Vellore District. ..Respondent (Complainant) Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge cum Fast Track Court No.II, Ranipet, made in S.C.No.162 of 2008 dated 24.11.2008. For Appellant : Mr.V.Parthiban For Respondent : Mr.Babu Muthu Meeran Additional Public Prosecutor JUDGMENT (Judgment of the Court was made by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the Additional Sessions Division, FTC No.II, Ranipet, made in S.C.No.162 of 2008 whereby the appellant stood charged under Sections 450, 398 read with 34, 302 and 382 of IPC, tried, found guilty as per the charges and awarded 10 years Rigorous Imprisonment with a fine of Rs.1000/- and default sentence under Sec.450 IPC, 7 years Rigorous Imprisonment with a fine of Rs.1000/- and default sentence under Sec.398 read with 34 IPC, life imprisonment with a fine of Rs.1000/- and default sentence under Sec.302 IPC and 10 years Rigorous Imprisonment with a fine of Rs.1000/- and default sentence under Sec.382 IPC. 2.Short facts necessary for the disposal of this appeal can be stated as follows: https://hcservices.ecourts.gov.in/hcservices/ (a) P.W.1 is the husband of the deceased Shanthi and is a practising lawyer. They were living at No.15, Post Office Street, Sholinghur. P.W.7, the daughter, and P.W.8, the son, were all residing at Bangalore during the relevant time. P.W.3 was working as a servant-maid in the house of P.W.1 for more than three decades. P.W.2 was working in a medical shop just opposite to the house of P.W.1. P.W.4 was residing in the next house to that of P.W.1. P.W.4 and the deceased Shanthi were moving closely. Shanthi used to take bath by 6'O Clock daily, go and do the house work. Whenever P.W.1 goes to the Court, the deceased used to stand and send him to the Court. (b) On the date of occurrence that was on 23.4.2004, P.W.1 as usual, went to the Court work. P.W.3 after finishing her work, left the place. At that time, the deceased alone was in the house. P.W.4 after doing her work on 23.4.2004, prepared some eatables in view of the birthday of the child and went to the house of the deceased and knocked the door, but it was not opened. Then she entertained a doubt and went to the backyard of the house which was kept open. She got inside and found the deceased lying. When she went near, she found her dead. M.O.2, chair, was found placed on her face. Then P.W.4 raised alarm, and P.Ws.2 and 5 rushed. They immediately informed to P.W.1, who rushed over there, and immediately took his wife in an auto of P.W.9 to the Government Hospital, where she was declared dead. (c) At about 1.00 P.M., P.W.1 went to the respondent police station where he gave Ex.P1, the report, on the strength of which a case came to be registered by one Anbazhagan, the Inspector of Police, who was on duty that time, in Crime No.271 of 2004 under Sections 454, 380 and 302 of IPC. The express FIR, Ex.P33, was despatched to the Court. (d) The said Inspector of Police Mr.Anbazhagan took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P34. Then he recovered the material objects from the place of occurrence under a cover of mahazar. He conducted inquest on the dead body of Shanthi in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P40. A requisition was given to the hospital authorities for the purpose of autopsy. (e) The autopsy was conducted by P.Ws.10 and 11, the Assistant Surgeons, attached to the Government Hospital, Sholinghur, on the dead body of Shanthi and have issued a postmortem certificate, Ex.P4, with their opinion that the deceased would appear to have died of asphyxia probably due to strangulation. (f) Pursuant to the orders passed by the Superintendent of Police concerned, the investigation was taken up by the CB CID from https://hcservices.ecourts.gov.in/hcservices/ 9.7.2004 onwards, and it was taken up by P.W.30, the Inspector of Police. Thereafter, the investigation was taken up by one Kirubanandam, the Inspector of Police. He examined P.Ws.16, 17 and 18 and recorded their statements. (g) P.W.33, the Inspector of Police, attached to the CB CID, took up further investigation. He examined P.Ws.16 to 18 and recorded their statements. P.W.16 was also a co-convict. He was in prison along with A-1 and A-2. Also P.W.17 saw both A-1 and A-2 nearby the place of occurrence, and P.W.18 is the person to whom A-2, the appellant herein, gave a confessional statement. Following the same, A-1 was arrested on 2.3.2007. He gave a confessional statement voluntarily. The same was recorded. Consequent upon the same, the material objects were recovered. He also identified A-2. A-2 was arrested on 7.3.2007. He gave a confessional statement voluntarily, which was recorded. He was taken to P.Ws.24, 25 and 26 from whom M.O.1, bangles, M.Os.15 and 16, gold ingots, and M.O.17, motorcycle, were recovered pursuant to the confession of A-2 in the presence of P.W.22. They were sent for judicial remand. (h) Pursuant to the orders passed by the Court, polygraph, brain mapping and NARCO analysis were conducted for A-1 and A-2, and reports were also received which were marked as Exs.P35 to P39 respectively. All the material objects were sent to the Forensic Sciences Department for the purpose of analysis, which brought forth two reports namely Ex.P17, the chemical analyst's report, and Ex.P18, the serologist's report. On completion of the investigation, the Investigator filed the final report. 3.The case was committed to Court of Session, and necessary charges were framed. Pending trial, A-1 died, and hence the trial was proceeded so far as A-2, the present appellant, is concerned. In order to substantiate the charges, the prosecution marched 33 witnesses and also relied on 49 exhibits and 19 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which he 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 in respect of the charges levelled against the appellant and hence found him guilty and awarded the punishment as referred to above. Hence this appeal at the instance of the appellant. 4.Advancing arguments on behalf of the appellant, the learned Counsel Mr.V.Parthiban would submit that in the instant case, the prosecution had no direct evidence to offer, and it relied upon only circumstantial evidence; that the occurrence, according to the prosecution, has taken place on 23.4.2004; that originally, after the registration of the case, the investigation was taken up by the https://hcservices.ecourts.gov.in/hcservices/ Inspector of Police, Anbalagan, and it was transferred to the CB CID, and P.W.30, the Inspector of Police, had taken up the investigation; but, no clue actually came out; and that thereafter, P.W.33 took up further investigation and recorded the statements of P.Ws.16, 17 and 18. 5.The learned counsel commenting on the evidence of P.W.16, would submit that P.W.16 was actually in the prison; that according to him, A-1 and A-2 were also in the same prison, and just 10 or 15 days prior to his coming out, they were actually brought in, and just one day prior to his coming out, both of them were telling about the occurrence in question; and that this was considered by the trial Court and taken as an extra-judicial confession alleged to have been made by A-1 and A-2 to P.W.16. Commenting on the same, the learned Counsel would submit that P.W.16 himself was a convict; that apart from that, he has categorically admitted that A-2 came out on bail even before he came out, and under the circumstances, there is no question of A-2 making any confession just one day prior to P.W.16 coming out of prison, and on that ground, it has got to be rejected. 6.Added further the learned Counsel that as far as P.W.17 was concerned, according to the prosecution, he saw both A-1 and A-2 near the place of occurrence; that the occurrence has taken place on 23.4.2004; that as far as this witness is concerned, his statement was recorded after a lapse of number of months and it has reached the Court along with the charge sheet; that if really P.W.17 had seen both A-1 and A-2 nearby the place of occurrence and it also came to the knowledge of everybody and that too in a public place, and he actually died within a short span of time, one would expect P.W.17 or a reasonable conduct of a prudent person to go and inform the same, but not done so; that this would also be indicative of the fact that P.W.17 could not have seen both of them at the place of occurrence; that as far as P.W.18 was concerned, according to the prosecution, it was he to whom A-2 made a confessional statement; that it would be quite evident from the reading of the same that his signature which was actually found therein, was not marked; that P.W.18 has categorically stated that the statement was actually made by him in respect of the act of A-1 and not in respect of the act of A-2; that it would be quite clear that it cannot be considered to be a confessional statement made by A-2 or anything inculpatory, and under the circumstances, his statement cannot also be accepted. 7.As far as the recovery of ingot is concerned, the learned Counsel would submit that it also casts a doubt; that according to the Investigator, A-1 was arrested on 2.3.2007, and he was kept in custody for number of days, and then he came forward to give a confessional statement on the strength of which A-2 was also arrested, and it was recovered; that it is pertinent to point out that P.W.22 is the witness in that regard; that according to him, A-2 at the time of confession, came forward to state that all the https://hcservices.ecourts.gov.in/hcservices/ material objects recovered, were actually in the custody of P.Ws.24 to 26; that if it is found to be correct, the recovery of the ingot allegedly made, cannot but be false; that there are lot of discrepancies also found in the evidence in respect of the alleged confessional statement and recovery of the ingot; that all would go to show that the prosecution has miserably failed to prove its case; that under the circumstances, he is entitled for acquittal, but the trial Judge has taken an erroneous view, and hence the judgment of the trial Court has got to be set aside. 8.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 9.It is not in controversy that the wife of P.W.1 was done to death in an incident that had taken place in the morning hours of 23.4.2004. Following the inquest made by the Inspector of Police, Anbazhagan, the dead body was subjected to postmortem by P.Ws.10 and 11, the Doctors, who have given a categorical opinion as a witnesses before the Court and also through the contents of the postmortem certificate that she died out of asphyxia due to strangulation. The cause of death as put forth by the prosecution before the trial Court was never disputed by the appellant. Under the circumstances, the trial Judge was perfectly correct in recording so. 10.In order to substantiate that the appellant/accused along with the other deceased accused made criminal trespass into the house of the deceased, caused her death and also stolen her jewels, the prosecution had no direct evidence to offer. As rightly pointed out by the learned Counsel for the appellant, it relied upon only four circumstances. First of all, the appellant and the other accused made a confessional statement to P.W.16, a co-convict, who is actually in prison at Vellore. According to P.W.16, 10 or 15 days prior to his release, A-1 and A-2 were brought in. Though he has stated in the chief-examination that A-1 and A-2 made a confessional statement in respect of the incident in question one day prior to his release, he has candidly admitted at the time of cross-examination that A-2 was released from jail even before he was released. Thus it would be quite clear that A-2 could not have made any confession at all. On that ground, his evidence is liable to be rejected. 11.Insofar as P.W.17, he would claim that he saw A-1 and A-2 nearby the place of occurrence. The occurrence has taken place on 23.4.2004. If to be so, after coming to know about the death of Shanthi, the wife of P.W.1, which was also known to the public, one would expect P.W.17 to bring the same to the notice of anybody, but he has kept silent all along the period, and his statement was recorded by P.W.33, the Inspector of Police, CB CID, after he took up investigation, and that too, after a long lapse of time, and it also https://hcservices.ecourts.gov.in/hcservices/ reached the Court along with the charge sheet. The long silence on the part of P.W.17 would clearly belie his evidence. 12.As far as P.W.18 is concerned, according to him, A-2 was known to him, and he also made a confessional statement and the same was to be relied upon, according to the prosecution before the trial Court. But, curiously P.W.18 has categorically stated about the crime committed by A-1 and not about any crime committed by A-2. Under the circumstances, at no stretch of imagination, it can be taken as a confessional statement made by A-2. Hence this part of the evidence could not be used by the prosecution. 13.The last piece of evidence relied on by the prosecution, was the recovery of M.Os.15 and 16, ingots, which were actually recovered. Now the evidence produced in this regard, cannot also be relied for the simple reason that A-1 was arrested on 2.3.2007, and he was in police custody for five days, and even after five days, he came forward to give a confessional statement pointing to A-2. Even A-2 was arrested only on 7.3.2007. P.W.22 is the witness examined for that purpose. According to him, A-2 identified P.Ws.24 to 26 with whom all the material objects were given custody. If to be so, the evidence as claimed by the prosecution that these articles and the contraband were also with the same person cannot be accepted. Under the circumstances, that piece of evidence as to the alleged confession and recovery will not be available for the prosecution also. 14.In a given case like this, when the prosecution rested its case exclusively on the circumstantial evidence, the prosecution must place and prove all the circumstances which should make a chain without a snap and be pointing to the hypothesis that except the accused, no one could have committed the offence. In this context, it would be apt and appropriate to rely on a decision of the Apex Court reported in 1991 SCC (CRI) 407 (PADALA VEERA REDDY V. STATE OF A.P.), wherein it has been held as follows: "This Court held that when a case rests upon circumstantial evidence, the following tests must be satisfied: (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 so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and https://hcservices.ecourts.gov.in/hcservices/ (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 15.For the reasons stated above, this Court is of the considered opinion that it cannot be stated that the prosecution has proved the case in any manner known to law. Hence the appellant is entitled for acquittal, and the judgment of the trial Court has got to be made undone by upsetting the same. 16.In the result, this criminal appeal is allowed setting aside the judgment of the trial Court. The appellant is acquitted of the charges levelled against him. He is directed to be set at liberty forthwith unless his presence is required in connection with any other case. The fine amounts if any paid by him, shall be refunded to him. sd/- Asst.Registrar /True copy/ Sub.Asst.Registrar nsv To 1.The Additional District and Sessions Judge, (Fast Track Court-II), Ranipet. 2.-do- Through The Principal District and Sessions Judge, Vellore, Vellore District. 3.The Inspector of Police, CB CID, Sholinghur Police Station, Vellore District. 4.The Superintendent of Prison, Central Prison, Vellore. https://hcservices.ecourts.gov.in/hcservices/ 5.The Director General of Police, Mylapore, Chennai 600 004. 6.The District Collector, Vellore District, Vellore. 7.The Public Prosecutor, High Court, Madras 104. 8.The Section Officer, Criminal Side Section, High Court, Madras 600 104. CRL.A.No.70 of 2009 JRG (CO) GSK 30.08.2010. https://hcservices.ecourts.gov.in/hcservices/