BAIL SLIPS The Appellants/Accused 2 and 3 viz.,(1)N.Seenu@ Srinivasan and (2) Santhoshkumar were directed to be released on bail as per order of this court dated 08.10.2007 and made in Crl.M.P.No.1/07 in Crl.A.No.696/2007 on the file of this court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16-12-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRL.A.No.696 of 2007 1.Ravi @ Ravindran 2.N.Seenu @ Srinivasan 3.Santhoshkumar .. Appellants/Accused Vs. State by: Inspector of Police Pallikarani Police Station Cr.No.1032 of 2005 .. 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 (Fast Track Court No.I), Chengelput, in S.C.No.216 of 2006 dated 12.6.2007. For Appellants : Mr.N.Bhaskaran For Respondent : Mr.P.Kumaresan Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the Additional Sessions Division, Fast Track Court No.I, Chengalpattu, made in S.C.No.216 of 2006 whereby the appellants three in number, stood charged under Sec.302 read with 34 of IPC, tried, found guilty as per the charge and awarded life imprisonment along with a fine of Rs.500/- and default sentence. 2.The short facts necessary for the disposal of this appeal could be stated as follows: (a) P.W.1 is a resident of Chitlapakkam within the jurisdiction of the respondent police station. The deceased Govindan was not only known to P.W.1, but also a friend. The appellants/accused also belonged to https://hcservices.ecourts.gov.in/hcservices/ the same place, and they were all known to P.W.1. P.W.7 is the wife of the deceased, while P.W.2 is the brother-in-law. On the date of occurrence namely 21.8.2005, that was Sunday, there was a festive occasion in the temple. For the cooking process, the deceased and P.Ws.3 and 4 were engaged. At about 10.00 P.M., they were all talking to each other. Thereafter, they informed to P.W.1 that they were to proceed to Jaya Nagar to see a plot. Then, all of them left. Sometime later, P.Ws.2 and 3 along with P.W.4 returned. P.W.2 who is the brother-in-law of the deceased, again went over there to bring the deceased. At that time, P.W.1 went over to the tank area to attend the nature's call. Sometime later, he heard the distressing cry, and P.W.1 asked P.W.2 what happened. P.W.2 informed that there was a quarrel between the deceased and the accused in respect of Rs.200/- which was given towards wages. Thereafter, P.W.2 returned. Within a short span of time, the occurrence has taken place. A-2 and A-3 facilitated the crime when A-1 stabbed him to death. Then, they left the dead body and fled away from the place of occurrence. (b) After sometime, P.W.2 enquired others, and they informed that the deceased would be coming back. On the next day, P.W.7, the wife of the deceased, did not find her husband, and thereafter she made a search. When P.W.2 went over to the tank area, he found the dead body of Govindan. Then, immediately he informed to P.W.7, and she went over to the respondent police station and gave a complaint, Ex.P1. P.W.10, the Inspector of Police, on the strength of Ex.P1, the report, registered a case in Crime No.1032 of 2005 under Sec.302 of IPC. The printed First Information Report, Ex.P9, was despatched to the Court. He took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P4, and also a rough sketch, Ex.P10. Then, he conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P11. Thereafter, the dead body was sent to the Government Hospital along with a requisition for the purpose of postmortem. (c) P.W.8, the Reader/Professor, Department of Forensic Medicine, G.R.H. & K.M.C., Madras, on receipt of the requisition, conducted autopsy on the dead body of Govindan and has noticed 5 external injuries. The Doctor has issued a postmortem certificate, Ex.P2, with his opinion that the deceased would appear to have died of head injuries with evidence of pulmonary oedema. (d) The further investigation was taken up by P.W.11, the Inspector of Police. He came to know that the accused have surrendered before the VI Metropolitan Magistrate, Madras. He applied for police custody on 29.8.2005. The same was ordered. Then, he took all the three accused to police custody. They volunteered to give confessional statements which were recorded. The admissible part of the confessional statement given by A-1, is marked as Ex.P7, pursuant to which he produced M.O.6, knife, and M.O.7, bloodstained shirt, which were recovered under a cover of mahazar. Then, the accused were sent for judicial remand. All the material objects were subjected to chemical analysis by the Forensic Sciences Department, which resulted in Ex.P15, the serologist's report. On completion of investigation, the Investigating Officer filed the final report. https://hcservices.ecourts.gov.in/hcservices/ 3.The case was committed to Court of Session, and necessary charge was framed. In order to substantiate the charge, the prosecution examined 11 witnesses and also relied on 15 exhibits and 10 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 and took the view that the prosecution has proved the case beyond reasonable doubt and hence found them guilty and awarded the punishment referred to above. Hence this appeal at the instance of the appellants before this Court. 4.Advancing arguments on behalf of the appellants, the learned Counsel would submit that in the instant case, the prosecution had no direct evidence to offer; that it was P.W.1 who has given the complaint; but, he has turned hostile; that under the circumstances, the contents in the report, Ex.P1, were not proved; that P.Ws.3 and 4 have been examined, in order to speak about the last seen theory; that P.Ws.2 to 4 have not seen the occurrence at all; that according to P.W.2, all the three accused actually went along with the deceased together on that night, but he saw the dead body of Govindan in the next morning; that in such a situation, the evidence of P.W.2 cannot be relied at all; that added circumstance is that P.W.2 is the brother-in-law of the deceased; and that if his evidence is carefully scrutinized, it cannot be accepted. 5.The learned Counsel would further add that it is true that M.Os.6 and 7 have been recovered from A-1 on his confession alleged to have been recorded; but, these material objects when subjected to chemical analysis, did not contain the blood group since it is inconclusive and thus, the scientific evidence was also not in favour of the prosecution. 6.Added further the learned Counsel that the recovery of M.Os.6 and 7 as urged by the prosecution, is nothing but a cooked up affair in order to strengthen the prosecution case, if possible, but in vain; that it is a case where the prosecution had not only been lacking in evidence, but also no evidence at all, and under the circumstances, they are entitled for acquittal in the hands of this Court. 7.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 8.It is not in controversy that one Govindan, the husband of P.W.7, died pursuant to the attack made on him. Following the inquest made by the Investigator, the dead body was subjected to postmortem by P.W.8, the Medical Person, who has given his categorical opinion in Ex.P2, the postmortem certificate, that the deceased died out of head injuries. The fact that Govindan died due to homicidal violence was never disputed by the appellants. Under the circumstances, no impediment is felt by the Court in recording so. 9.In order to substantiate the charge levelled against the appellants, it is true that the prosecution had no direct evidence to offer, but it rested its entire case on the circumstantial evidence. https://hcservices.ecourts.gov.in/hcservices/ The learned Counsel for the appellants at the outset, made a caution that in a given case like this, where the prosecution rested the case entirely on the circumstantial evidence, it must place and prove all the necessary circumstances forming a chain without a snap and also pointing to the hypothesis that except the accused, no one could have committed the offence. This Court is not unmindful of the settled principles of law. In the instant case, P.Ws.2, 3 and 4 have been examined in this regard. P.W.2 is the brother-in-law; but, on that ground alone his evidence cannot be rejected. According to P.Ws.2, 3 and 4, they all went for cooking process along with A-1 to A-3, and on the date of occurrence that was on 21.8.2005 during night hours, P.Ws.3 and 4 saw all the other persons namely P.W.2, the deceased and A-1 to A-3 moving towards the tank area, and after sometime, P.W.2 alone returned leaving all the three accused along with the deceased. The evidence would further go to show that P.W.2 was questioned by P.Ws.3 and 4 about the accused, and P.W.2 in turn replied that they have all gone for seeing a plot at Jaya Nagar. P.W.2 has categorically stated that he accompanied the deceased and A-1 to A-3, and after attending the nature's call, there was a quarrel among them, and at that time, he questioned about the quarrel, and the accused persons replied that they were demanding the share in the wages, and at that time, the deceased told that he would be coming back, and P.W.2 can go early, and accordingly, P.W.2 returned. Thus, it would be quite clear from the evidence of P.W.2 that nearby the place where the occurrence has taken place, he left the deceased Govindan along with the three accused, and thereafter, in the next morning, the dead body was found, and thus, the last seen theory what is brought forth through the evidence of P.W.2, in the considered opinion of the Court, would be pointing that except the accused no one could have committed the offence. 10.Now, at this juncture, it is pertinent to point out that the evidence of P.W.2 despite the cross-examination in full remained unshaken. The contention put forth by the learned Counsel for the appellants that P.W.2 was a relative of the deceased by itself cannot be a reason to discard the testimony. Despite the exercise of the test of careful scrutiny, this Court is satisfied that the evidence of P.W.2 could be accepted since it is natural. 11.Further, the learned Counsel brought to the notice of the Court that P.W.1 has turned hostile, and under the circumstances, the contents of the report, Ex.P1, have not been proved. It is true that P.W.1 has turned hostile; but, the FIR was available to the prosecution to the extent of setting the criminal law in motion. As far as the evidence was concerned, it was P.Ws.3 and 4 who saw all the other persons and it was P.W.2 who found all the three accused along with the deceased Govindan at the place where the occurrence has taken place and also during night hours. 12.Added circumstance was the recovery of M.Os.6 and 7, the knife and bloodstained shirt respectively, from A-1 pursuant to the confessional statement made by him. The evidence of the witness namely P.W.9, examined by the prosecution as to the arrest, confession and recovery of those material objects, remained unshaken. Under the circumstances, all would be pointing to the guilt of A-1. https://hcservices.ecourts.gov.in/hcservices/ 13.In the instant case, a charge has been framed by the trial Court that it was A-1 who stabbed the deceased to death, while A-2 and A-3 facilitated the crime. It remains to be stated that the recovery of the weapon of crime and also the bloodstained shirt worn by him, has been made from A-1. Under the circumstances, this Court is of the considered opinion that the prosecution was successful enough in bringing home the guilt of A-1 since the overt acts are attributed to him. As far as A-2 and A-3 are concerned, according to the prosecution, they have facilitated the crime. Even as per the charge, it was A-1 who stabbed him to death. Under the circumstances, this Court is of the view that A-1 has got to be found guilty under Sec.302 of IPC for the charge of murder, and the sentence imposed by the trial Court does not require any disturbance. 14.Accordingly, the conviction of A-1 under Sec.302 read with 34 of IPC is set aside, and instead, he is convicted under Sec.302 of IPC. The punishment of life imprisonment along with fine and default sentence awarded by the trial Court, is confirmed. 15.As regards A-2 and A-3, no direct or indirect evidence that they facilitated the crime is available. Under the circumstances, they are entitled for acquittal. Accordingly, the conviction and the consequent 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 fine amount paid by them will be refunded to them. The bail bonds executed by them shall stand terminated. 16.In the result, this criminal appeal is partly allowed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. Nsv/ To: 1.The Additional District and Sessions Judge, Fast Track Court No.I, Chengalpattu. 2.-do-thro'The Principal Sessions Judge, Chengalpattu. 3.The Judicial Magistrate, Alandur. 4.-do-thro'The Chief Judicial Magistrate, Chengalpattu. https://hcservices.ecourts.gov.in/hcservices/ 5.The Superintendent, Central Prison, Puzhal,Chennai. 6.The Inspector of Police, Pallikarani Police Station, Cr.No.1032 of 2005 7.The Public Prosecutor, High Court, Madras. + 1 cc to Mr.N.Baskaran,Advocate, SR.70154 CRL.A.No.696 of 2007 GV(CO) EM/22.12.08 https://hcservices.ecourts.gov.in/hcservices/