BAIL SLIP ---- The Appellants Viz., Prasad (Accused No.6) in Crl.A.No.1071/06, Narayanan (Accused No.4) in Crl.A.No.36/07, Suraj (Accused No.3) in Crl.A.No.67/07, Gaja alias Gajendran (Accused No.2) in Crl.A.No.157/07, Uma (1 Accused) in Crl.A.160/07 and Dhananchezhiyan (Accused No.5) in Crl.A.No.237/07 were directed to be released on bail in and by the orders of this court dated 9.1.07, 24.1.07, 25.1.07, 5.3.07, 5.3.07 and 26.3.07 respectively in M.P.Nos.1/06, 1/07, 1/07, 1/07, 1/07 and 1/07 in Crl.A.Nos.1071/06, 36,67,157,160 and 237/2007 respectively. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22-6-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.Nos.1071 of 2006, 36, 67, 157, 160 and 237 of 2007 Prasad .. Appellant/A-6 in CA 1071/2006 Narayanan .. Appellant/A-4 in CA 36/2007 Suraj .. Appellant/A-3 in CA 67/2007 Gaja alias Gajendran .. Appellant/A-2 in CA 157/2007 Uma .. Appellant/A-1 in CA 160/2007 Dhananchezhiyan .. Appellant/A-5 in CA 237/2007 vs State Rep. By The Inspector of Police Pallipet Police Station Pallipet, Thiruvallur Crime No.57 of 2002 .. Respondent in all appeals Criminal appeals preferred under Sec.374 of the Code of Criminal Procedure against the judgment of the Additional Sessions Judge, Fast Track Court No.V, Thiruvallur, made in S.C.No.242 of 2005 dated 7.12.2006. https://hcservices.ecourts.gov.in/hcservices/ For Appellants : Mr.S.Xavier Felix in CA 1071/2006, 67/2007, & 237/2007 Mr.R.Karthikeyan in CA 36/2007 Mr.V.Gopinath Senior Counsel for Mr.L.Mahendran in CA 157/2007 Mr.V.Selvaraj in CA 160/2007 For Respondent : Mr.N.R.Elango in all the Appeals Additional Public Prosecutor COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) All these six appeals namely C.A.Nos.1071 of 2006, 36, 67, 157, 160 and 237 of 2007, concentrate in challenging a judgment of the Additional Sessions Division, Fast Track Court No.V, Thiruvallur, made in S.C.No.242 of 2005 whereby the appellants six in number stood charged, tried and found guilty as follows: ACCUSED CHARGES FINDING PUNISHMENT A-1 to A-6 120(b) IPC Guilty Life imprisonment with a fine of Rs.3000/- and default sentence A-3 to A-5 341 IPC Not guilty A-3 to A-5 302 IPC Guilty Life imprisonment with a fine of Rs.3000/- and default sentence A-1, A-2 & A-6 302 r/w 109 IPC Guilty Life imprisonment with a fine of Rs.3000/- and default sentence A-3 404 IPC Not guilty A-1, A-2 & A-4 to A-6 404 r/w 109 IPC Not guilty 2.The short facts necessary for the disposal of these appeals https://hcservices.ecourts.gov.in/hcservices/ can be stated thus: (a) The deceased Sundaram was the husband of A-1. P.W.1 is the elder brother, and P.W.2 is the father of the deceased. A-2 and A-1 developed illicit intimacy which was not only disliked by the deceased, but also A-1 and A-2 felt him a hurdle. They were residents of Thangal village. On 1.5.2002 at about 8.00 P.M., the deceased and A-1 went to the field. But, after sometime, A-1 alone returned. She did not whisper anything about his absence. On the next morning at about 5.00 A.M., P.W.1 went in search of the deceased and found the dead body near Ravana Lake. He brought the dead body along with the villagers to the house. Then, he proceeded to the respondent police station and lodged Ex.P1, the complaint, on the strength of which P.W.17, the Sub Inspector of Police, registered a case in Crime No.57 of 2002 under Sec.174 of Cr.P.C. for suspicious death. The printed FIR, Ex.P31, along with Ex.P1 were sent to the Court. (b) On receipt of the copy of the FIR, P.W.18, the Inspector of Police of the concerned Circle, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and a rough sketch, Ex.P32. Then, he conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P34. Thereafter, the dead body was sent to the Government Hospital along with a requisition for the purpose of autopsy. (c) P.W.16, the Assistant Surgeon, attached to the Government Headquarters Hospital, Tiruvallur, on receipt of the said requisition conducted autopsy on the dead body of Sundaram and has issued a postmortem certificate, Ex.P29. He has opined under Ex.P30 that the cause of death was due to cyanide poisoning. (d) On 28.5.2002, at the time of investigation, the Investigator came to know that a letter written by A-2 to A-1 was in the custody of one Valli. Then he proceeded on that and secured the letter under a cover of mahazar, Ex.P35. Based on the said letter, at about 5.30 P.M., he arrested A-1. A-1 came forward to give a confessional statement voluntarily, which was recorded. The admissible part is marked as Ex.P36. Thereafter, the case was altered to Sec.302 IPC. The amended report, Ex.P38, was despatched to the Court. On 3.6.2002 at about 3.00 P.M., near Venkatapuram Ellaiamman Temple, P.W.18 arrested A-2 and recorded the confessional statement given by him voluntarily. The admissible part is marked as Ex.P39. Based on the same, he seized a lodge receipt under a seizure mahazar, Ex.P40. At about 10.00 P.M., he arrested A-3 and recorded the confessional statement. (e) On 7.7.2002 at about 4.00 P.M., the Investigator arrested A- 4 near Thangal bus stand, and his confessional statement was recorded. The admissible part is marked as Ex.P41. Based on the same, he seized a syringe under a mahazar Ex.P42. On the same day A- 5 was also arrested. His confessional statement was recorded. The admissible part is Ex.P43, following which a cyanide packet, M.O.4, https://hcservices.ecourts.gov.in/hcservices/ was also recovered under a mahazar, Ex.P44. Then, A-6 was also arrested on the very day. His confessional statement was recorded. The admissible part is Ex.P45. Based on the same, a gold chain of the deceased was recovered under a mahazar, Ex.P46. He sent the accused for judicial remand. Then, the syringe needles were sent to the Forensic Sciences Department through the Court for the purpose of analysis. (f) On 4.9.2002, P.W.19 took up further investigation, and on 28.1.2003, he examined P.W.16, the postmortem Doctor and recorded his statement. He also examined P.W.11 and also the other witnesses. On 28.4.2003, P.W.20 took up further investigation. On 31.3.2003, he examined the other witnesses and on completion of the investigation, filed the charge sheet against the accused under Sections 120(b), 341, 302, 404 read with 109 of IPC. 3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 20 witnesses and also relied on 47 exhibits and 4 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 the appellants guilty on the above provisions and made the judgment of conviction and sentence. Hence these appeals at the instance of the appellants. 4.Advancing arguments on behalf of A-2, the learned Senior Counsel Mr.V.Gopinath would submit that in the instant case, the prosecution came out with its original story that there was a conspiracy hatched up by A-1 and A-2 at Sai Krishna Lodge at Thirupathi; that in order to substantiate the said theory, the prosecution came forward to state that they stayed at the lodge on 8.4.2002; but the only witness examined was P.W.7, a room boy; that when he was examined before the Court, he has categorically stated that the police examined him after two days from the time of the stay; but, the occurrence, according to the prosecution, has taken place on 1.5.2002; that if to be so, the evidence of P.W.7 would go to show that the alleged conspiracy theory cannot be accepted at all; that apart from this, P.W.18 was unable to show how he got any clue or information that they stayed in that lodge; that under the circumstances, the prosecution was unable to show that they actually stayed there; that the evidence of P.W.7 was contra to the prosecution case; that barring the evidence of P.W.7, the prosecution had no evidence to offer in respect of the conspiracy theory; that under the circumstances the prosecution has miserably failed to prove the same, and thus the finding of the trial Court that the prosecution has proved the charge under Sec.120(b) IPC was thoroughly erroneous. 5.Added further the learned Senior Counsel that in the instant case, the prosecution in order to substantiate the other charges https://hcservices.ecourts.gov.in/hcservices/ levelled against the appellants/accused, had no direct evidence to offer; that it rested upon two circumstances; that firstly, pending the investigation, the Investigating Officer recovered Ex.P11, letter, alleged to have been written by A-2 to A-1; that the prosecution placed much reliance on this letter and the trial Court has also accepted the same; but, this evidence should have been rejected outright for the reason that Ex.P11 letter was alleged to have been recovered from one Valli; that the said Valli was not examined as a witness before the Court; that no explanation was tendered by the prosecution why she was not examined; that apart from this, the letter which was alleged to have been recovered by the Investigator at the time of investigation, was sent to the handwriting expert; and that the handwriting expert was examined as P.W.11; that according to him, he compared the writings in Ex.P11 along with Ex.P12 which, according to the prosecution, was the specimen handwriting of A-2. 6.The learned Senior Counsel would further add that as far as the specimen handwriting placed before the handwriting expert, P.W.12, is concerned, there is no evidence when and under what circumstance they were obtained from A-2; that it is not the evidence of the Investigating Officer that the specimen handwriting was ever obtained from the accused; that under such circumstances, it can be well stated that there is no proof that the specimen handwriting found in Ex.P12 was that of A-2; and that so long it was not proved, even the comparison of Exs.P11 and P12 at the instance of the investigating agency on the basis that they were actually written by the same person could not help the prosecution. 7.Added further the learned Senior Counsel, that even as per the prosecution case, the said letter was written only subsequent to the occurrence of murder; that needless to say that this handwriting was actually hit by Sec.10 of the Evidence Act; and that under the circumstances, no evidentiary value could be attached to the said letter. 8.Added further the learned Senior Counsel that the other piece of evidence was only the recovery of the material objects; that Ex.P5, a pawn receipt, was alleged to have been recovered from P.W.8; that from Ex.P5 it could be seen that a pair of gold stud was pledged by A-1 on 19.4.2002; that equally, from P.W.9, another pawn broker, a receipt Ex.P6, for the pledging of a gold chain of 8 grams was recovered; that P.W.9 has categorically stated in evidence that the chain was only weighing 4 grams; but, it is found as 8 grams in the chit; and that as far as the evidence of P.W.10 was concerned, A-2 has pledged a gold ring under Ex.P7 receipt for Rs.400/- on 14.4.2002. The learned Counsel would further add that as far as P.W.10 was concerned, he has also deposed that A-2 has pledged a gold ring for Rs.250/- under Ex.P8 receipt; and that in all these alleged pledges not even one material object was produced; 9.Added further the learned Senior Counsel that the case of the prosecution was that all the jewels belonged to A-1, and it was actually pledged by A-2 with P.Ws.8 to 10; that at this juncture, it https://hcservices.ecourts.gov.in/hcservices/ is pertinent to point out that not only the jewels were not produced before the Court, but also there is no evidence to show that the jewels in respect of which Exs.P5, P6 and P7 were actually issued belonged to A-1; that under such circumstances in the absence of any such evidence to that effect, there is nothing to show that A-1 and A-2 have got anything to do with each other or they hatched up a conspiracy; that even assuming that these jewels were actually pledged by A-2 with these pawn brokers, the same by itself would not suffice pointing to the guilt of the accused either for conspiracy or for murder; that barring this evidence, the prosecution had no evidence to offer; that under the circumstances, the trial Court has misled itself by taking the confessional statements alleged to have been given by the accused to the Investigating Officer as extra- judicial confession; that it cannot be believed by the Court for sustaining a conviction on erroneous view; that the prosecution has miserably failed to make proper appreciation of the defence put forth, but has taken the view that the prosecution has proved the case beyond reasonable doubt; that the prosecution for all the reasons stated above, has miserably failed to prove its case, and hence they are entitled for acquittal in the hands of this Court. 10.All other Counsel appearing for the other appellants have also adopted the arguments of the learned Senior Counsel whose arguments are recorded above. 11.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 12.It is not in controversy that the dead body of one Sundaram, the husband of A-1, was found near the lake which was brought to the house. Thereafter, P.W.1 the brother, gave a complaint to P.W.17, the Sub Inspector of Police, and a case came to be registered under Sec.174 of Cr.P.C. for suspicious death. Following the inquest made by the Investigator, P.W.18, a requisition was forwarded to the Doctor, P.W.16, who conducted postmortem and issued a postmortem certificate opining that the death was due to cyanide poisoning. The fact that he died out of the cyanide poisoning was never challenged by the appellants before the trial Court, and hence this Court is unable to see any impediment in recording that he met a homicidal death. 13.The prosecution as narrated above, came with a story that there was a criminal conspiracy hatched up by A-1 and A-2 at Thirupathi in Sai Krishna Lodge. In order to establish the same, the prosecution examined P.W.7, the room boy, of the said lodge. According to the prosecution, the occurrence has taken place at the night hours of 1.5.2002, and the criminal conspiracy has taken place between A-1 and A-2 before the occurrence has taken place, and the receipt alleged to have been issued by Sai Krishna Lodge bore the date corresponding to the incident. P.W.7 has categorically deposed before the Court that they stayed for two days prior to when he was examined by the police. The Investigator has examined him only after the registration of the case amended to Sec.302 IPC. It would be https://hcservices.ecourts.gov.in/hcservices/ quite clear that the evidence of P.W.7 could not in any way be relied by the prosecution for the theory of conspiracy alleged to have been hatched up by the appellants/A-1 and A-2 prior to the occurrence. Barring this evidence, as rightly pointed out by the learned Senior Counsel, the prosecution had no evidence to offer for the conspiracy theory, and hence the prosecution has miserably failed to prove that theory. 14.After thorough analysis of the evidence placed by the prosecution before the trial Court, this Court is afraid whether it can sustain a conviction as done by the trial Court. The gist of the case of the prosecution as could be seen above, is that A-1 and A-2 developed illicit intimacy; that they found the husband of A-1 as hurdle; that pursuant to the conspiracy, he was administered cyanide poison, and he was killed on 1.5.2002. The prosecution had no direct evidence to offer. It rested its case upon the circumstances. Needless to say that in a given case where there are number of circumstances, necessary circumstances must be placed before the Court, and the prosecution must be able to show a chain without a snap and also pointing to the hypothesis that except the accused, no one could have committed the crime. In the case on hand, the prosecution, in the considered opinion of this Court, has miserably failed. The prosecution had only two pieces of circumstances. As could be seen from the entire materials, firstly, the prosecution relied on a letter which is marked as Ex.P11. According to the prosecution, pending investigation, the Investigating Officer, P.W.18, recovered a letter from one Valli. The said Valli has not been examined. No explanation was tendered by the prosecution before the trial Court. Further, Ex.P11 was placed before the trial Court, and the same was sent to the handwriting expert for comparison. P.W.11, the handwriting expert, has been examined. According to him, he compared the handwriting in Ex.P11 along with Ex.P12, which, according to the prosecution, was the specimen handwriting. In a given case like this, whenever the handwriting of the accused which was relied on by the prosecution was to be compared with the specimen signature or handwriting, the prosecution must obtain the same procedurally. In the instant case, the prosecution would point to Ex.P12, the specimen handwriting. It is also true that Ex.P12, the specimen handwriting, and Ex.P11, the handwriting, were tallying. But, this piece of evidence, in the considered opinion of this Court, does not worth acceptance for the simple reason that though the prosecution claimed Ex.P12 as the specimen handwriting of A-2, there is no evidence when and how it was obtained from him. Nowhere the Investigating Officer has stated that it was obtained and placed before the Court. In the absence of any specific evidence when and how the specimen handwriting of A-2 was obtained from him, and it was compared and found to be tallying with Ex.P11 letter, this Court is of the opinion that the said document cannot have any evidentiary value at all, and hence it is liable to be rejected. For the reasons namely the non-examination of Valli from whom the alleged letter has been recovered and also the non-production of the evidence on the side of the prosecution how specimen handwriting of A-2 was obtained before placing it for comparison, this Court is of the considered opinion that such evidence cannot be accepted, and the Court cannot https://hcservices.ecourts.gov.in/hcservices/ base a conviction on that evidence. 15.The second circumstance placed by the prosecution was the recovery of the pledge receipts from P.Ws.8, 9 and 10, which are marked as Exs.P5, P6, P7 and P8 respectively. It is also pertinent to point out that in all these cases, the jewels were not produced before the Court. What were all produced were only pledge receipts. P.Ws.8, 9 and 10 have spoken that A-1 has actually pledged the respective jewels on 19.4.2002, 4.3.2002 and 14.4.2002 respectively. It is true that all these dates are earlier to 1.5.2002, the date of occurrence. Now, at this juncture, it is pertinent to point out that the prosecution wanted to rest its case stating that A-2 had illicit intimacy with A-1 and in that count, at that time, it was A-1 who handed over all the above jewels to A-2. In order to show not only the illicit intimacy, but also the nexus to the crime by way of enacting the alleged conspiracy, these documents were relied on. As rightly pointed out by the learned Senior Counsel, though not the jewels were produced by the pawn brokers P.Ws.8, 9 and 10, and only the receipts were produced, there is no evidence to show that the jewels belonged to A-1 either, or they were handed over to A-2. Under the stated circumstances, the law of evidence in that regard would be nullifying that part of the evidence. Thus, these documents though relied on by the prosecution cannot be given any evidentiary value. Except this, the prosecution had no further evidence to offer. Thus the prosecution has miserably failed to prove the conspiracy theory, and the documents relied upon did not indicate that the prosecution has brought home the guilt of the accused. As pointed out above, a thorough analysis of the entire evidence would go to show that except these pieces of evidence, the prosecution had no evidence to offer. This Court is of the considered opinion that the trial Court has misdirected itself and found the appellants guilty on an erroneous view. It is not only a case where the prosecution lacked evidence, but also a case where the prosecution is unable to explain all the doubts which are attached to the prosecution case all along. This Court is of the view that it would be highly unsafe to sustain a conviction on the above feeble and weak pieces of evidence, and it is also a case where the doubts were not actually cleared or clarified by the prosecution. Hence the prosecution has miserably failed to prove its case, and the appellants are entitled for acquittal. 16.In the result, these criminal appeals are allowed setting aside the judgment of the trial Court. The appellants are acquitted of all the charges levelled against them. The bail bonds executed by them shall stand terminated. The fine amounts if any paid by them will be refunded to them. Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar nsv https://hcservices.ecourts.gov.in/hcservices/ To: 1.The Additional Sessions Judge Fast Track Court No.V Thiruvallur 2. -do- Thro' The Principal District & Sessions JUdge, Tiruvallur. 3.The Inspector of Police Pallipet Police Station Pallipet, Thiruvallur Crime No.57 of 2002 4.The Public Prosecutor High Court, Madras. 5.The Judicial Magistrate, Tiruthani. 6.-do- Thro' The Chief Judicial Magistrate, Tiruthani. 7. The Superintendent, Central Prison, Vellore. 8. The District Collector, Thiruvallur. 9. The Director General of Police, Chennai-4. +1 cc to Mr.S.Xavier Felix, Advocate, SR.No.25636 +1 cc to Mr.V.Selvaraj, Advocate, SR.No.25664 +1 cc to Mr.L.Mahendran, Advocate, SR.No.25490 C.A.Nos.1071 of 2006, 36, 67, 157, 160 and 237 of 2007 KG {CO} TP/6.7.2009. https://hcservices.ecourts.gov.in/hcservices/