Bali Slip The Appellant/Accused viz., R.Parameswaran @ Eswaran accused in S.C.No.341/05 dated 23.05.2006 on the file of the learned Additional District Judge, Fast Track Court No.III, Coimbatore was directed to be released on bail in and by the order of this Court dated 27.11.2006 and made in Crl.M.P.1/2006 in Crl.A.712/2006. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 17.06.2008 CORAM THE HONOURABLE MR. JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR. JUSTICE K.N.BASHA CRL.A.No.712 OF 2006 R.Parameswaran @ Eswaran .. Appellant/Accused Vs State rep.by the Deputy Superintendent of Police Kamanaickenpalayam Police Station Coimbatore District. [Crime No.120/2004] .. Respondent/Complainant Appeal filed under section 374[2] Cr.P.C., against the Judgment of the learned Additional District Judge, Fast Track Court No.III, Coimbatore, in SC.No.341/2005 dated 23.05.2006. For Appellant : Mr.V.Gopinath, SC for Mr.K.Govi Ganesan For Respondent : Mr.N.R.Elango,APP JUDGMENT [Judgment of the Court was delivered by K.N.BASHA, J.] The sole accused Parameswaran @ Easwaran has come forward with this appeal challenging the conviction and sentence passed by the learned Additional District Judge, Fast Track Court No.III, Coimbatore, in the judgment dated 23.05.2006 made in SC.No.341 of 2005, convicting the https://hcservices.ecourts.gov.in/hcservices/ appellant for the offence under section 302 IPC [2 counts] and sentencing him to undergo life imprisonment on each count and also imposing a fine of Rs.5,000/- carrying with the default sentence of two years and six months rigorous imprisonment on each count. The sentences are ordered to run concurrently. 2. This is the case of double murder. For the sake of convenience, the two deceased in this case, viz., Balasubramani @ Balan and Samalaipandaram, are hereinafter referred to as D1 and D2. 3. The sum and substance of the allegation against the accused in this case is that the accused is a resident of Santhaimanthiripalayam. It is alleged that he was having illicit intimacy with P.W.18, wife of P.W.19 who is the brother of D1. About a week prior to the occurrence, D1 said to have seen the accused visiting the house of P.W.18 and D1 warned the accused. Therefore, there were strained feelings between the accused and D1. 4. It is the further case of the prosecution that the accused placed a quarter bottle of McDowell brandy containing Monocropophos organo phosphorus insecticide poison inside the cattle shed of D1 so that D1 would consume the same and die on account of consumption of poison. D1 without knowing that the said brandy bottle was containing poison, shared the brandy with D2 on 09.05.2004 at about 9.00 p.m. As a result of consumption of the brandy containing poison as stated above, D1 died on 10.05.2004 at about 4.00 a.m. and D2 died on the same day at 6.00 a.m. at Balaji hospital and Dr.Nallathambi's hospital at Palladam and thereby the accused said to have committed the offence punishable under section 302 IPC. 5. The prosecution in order to substantiate its case, examined P.Ws.1 to 30, filed Exs.P.1 to 25 and marked M.Os.1 to 3. 6. The prosecution version in a nut-shell is as follows:- [a] P.W.1 is the brother-in-law of D2 and brother of P.W.2. P.W.2 is the wife of D2. P.W.3 is the brother of D1 and P.W.4 is the wife of D1. P.W.19 is the brother of D1 and P.W.18 is the wife of P.W.19. P.W.14 is the father-in-law of D2. [b] P.Ws.2,3,4,11,12,13,14,15 and 19 have spoken about the motive put forward by the prosecution to the effect that the accused was having illicit intimacy with P.W.18, wife of P.W.19 who is the brother of D1 and D1 warned the accused a week prior to the occurrence. But, P.W.18 has denied any illicit intimacy with the accused. [c] P.W.2, the wife of D2 stated that on the night of 09.05.2004, she was in her house along with her husband D2 and D1 came to their house. D1 called D2 to come along with him to Kethanoor and at that https://hcservices.ecourts.gov.in/hcservices/ time, he has taken a brandy bottle from his waist and gave the same to D2. D2 kept the bottle inside the house and thereafter, both D1 and D2 took the brandy in two silver tumblers. D1 left for his house and D2 asked his wife P.W.2 to clean the tumblers and thereafter, complained that he is having stomach pain and also vomited. P.W.2 informed about the same to her brother P.W.1. Thereafter, P.Ws.1 and 2 took D2 to Nallathambi hospital. The doctor, P.W.23 examined D2 on 10.05.2004 at 5.00 a.m. and gave first aid to D2. The doctor also found the smell of arrack and advised them to take D2 to some other hospital. But, D2 died when he was brought out of the hospital. P.W.1 also heard that D1 also died at 4.00 a.m. on the same day. [d] P.W.4, wife of D1, stated that on 10.05.2004 at 2.00 a.m. D1 vomited blood and thereafter, she went and informed P.W.3 and P.W.19. D1 was taken in a van to Palladam hospital. As there was no doctor, they took D1 to Pongalur Hospital and even there, the doctor was not available and thereafter, he was taken to Palladam Balaji Hospital. The doctor, P.W.22 examined D1 and found that D1 already dead. Thereafter, P.W.3 and others brought the body of D1 to their village. They were informed that D1 and D2 consumed brandy and they were also informed about the death of D2. P.W.3 identified M.O.1 series-two bottles and M.O.2 series-two plastic tumblers said to have been found at his cattle shed. [e] P.W.1 went to Kamanaickenpalayam Police Station and gave a report, Ex.P.1 to P.W.27 the Head Constable. P.W.27 registered the case in Crime No.120/2004 under section 174 Cr.P.C. Ex.P.14 is the Express First Information Report [FIR]. He has sent the report to the Tahsildar and to the police. [f] P.W.29, the Inspector of Police received the FIR and took up the investigation on 10.05.2004. He went to the scene of occurrence and prepared Ex.P.2-the Observation Mahazar and Ex.P.18-the rough sketch. He held inquest on the dead body of D2 from 9.30 a.m. to 11 a.m. Ex.P.19 is the Inquest Report. He also held inquest on the dead body of D1 and Ex.P.20 is the Inquest Report. During inquest, he examined P.Ws.3,4 and others and he sent the dead bodies for postmortem. [g] The doctor, P.W.26, attached to the Government Hospital, Palladam, conducted postmortem on the dead body of D2 on 10.05.2004 at 11.45 a.m. He found the following injuries:- "APPEARANCES FOUND AT THE POST MORTEM:- Moderately built body of male lying on the back symmetrical in features, eyes and mouth were closed. No blood or froth was found at the mouth. Teeth complete. Tongue was within the mouth. No external injuries were found on the body." https://hcservices.ecourts.gov.in/hcservices/ Ex.P.8 is the Postmortem Certificate and Ex.P.10 is the final opinion of the doctor wherein he has opined that the deceased would appear to have died of organophosphorus poisoning 4 to 8 hours prior to autopsy. [h] On the same day, at 1.45 p.m., he has conducted postmortem on the dead body of D1. He found the following injuries:- "APPEARANCES FOUND AT THE POST MORTEM:- Moderately built body of male lying on the back, symmetrical in features. Both eyes were closed. Mouth was closed and the tongue was within the mouth. Teeth were complete. Froth was not present at the angle of mouth. External injuries:- Few abrasions were present over both knees." Ex.P.11 is the Postmortem Certificate and Ex.P.13 is the final opinion of the doctor wherein he has opined that the deceased would appear to have died of organophosphorus poisoning 8 to 12 hours prior to autopsy. [i] P.W.29, the Inspector of Police, searched the house of D2 and seized M.O.1 series-two bottles and M.O.3-the brandy bottle under Ex.P.3 and M.O.2 series-two tumblers [Use and throw] under Ex.P.4. He sent the bottles for chemical examination through the Court. P.W.29, has come to the conclusion that someone kept the poison mixed brandy bottle for committing suicide and by consuming the same, D1 and D2 died. Thereafter, altered the offence from Section 174 Cr.P.C. to one under section 304-A IPC and Ex.P.21 is the altered FIR. He has also examined some more witnesses. [j] P.W.24, the Village Administrative Officer stated that on 30.06.2004 at 2.00 p.m., the accused appeared before him and stated that two persons died due to consumption of poison mixed with brandy and the police is searching for him and as such, he has surrendered before him. The accused requested to save his three children and further stated to P.W.24 that he has decided to commit suicide and since he thought about his children, he has not consumed the brandy mixed with poison. It is further stated by the accused to P.W.24 that he has no intention to kill D1 and D2 and only for his consumption he has kept the brandy bottle mixed with poison. P.W.24 recorded the statement of the accused under Ex.P.5 and took the accused to the Police Station and produced before P.W.29 at 5.00 p.m. on 30.06.2004. P.W.29 arrested the accused and recorded the statement and thereafter, the accused was remanded to judicial custody. [k] P.W.30, the Deputy Superintendent of Police took up further investigation on 16.07.2004. He prepared the rough sketch under Ex.P.23. He also examined P.Ws.1,2 and others. On 23.07.2004, https://hcservices.ecourts.gov.in/hcservices/ 27.07.2004, 29.07.2004, 08.08.2004, 17.08.2004 and 28.08.2004 he examined some more witnesses. After the examination of those witnesses, he has come to the conclusion that the accused kept the brandy bottle mixed with poison at the cattle shed of D1 only with the intention to kill D1 due to his previous enmity and altered the offence from section 304-A IPC to one under section 302 IPC. Ex.P.24 is the altered FIR and he has sent the same to the Court. P.W.30 after examining the other witnesses including the doctors and after receiving the Postmortem Certificates, Chemical Examination Reports, filed the charge sheet against the accused under Section 302 IPC on 06.01.2005. 7. When the accused was questioned under section 313 Cr.P.C., in respect of the incriminating materials appearing against him through the evidence adduced by the prosecution, the accused denied each and every circumstance as contrary to the facts and stated that he has been falsely implicated in the case. The accused has not chosen to examine any witness on his side but marked Ex.D.1-notice dated 15.07.2004. 8. Mr.V.Gopinath, learned Senior Counsel appearing for the appellant contended that the prosecution has miserably failed to prove the case against the accused by adducing clear and cogent evidence. It is contended by the learned Senior Counsel that the entire prosecution case rests on the circumstantial evidence and the prosecution has not put forward any clinching circumstances unerringly pointing to the guilt of the accused. It is submitted that there are several missing links in the circumstances put forward by the prosecution. 9. The learned Senior Counsel would further submit that though the prosecution has examined certain witnesses, viz., the relatives of D1 and D2 to speak about the motive, viz., the alleged illicit intimacy of the accused with P.W.18, the fact remains that P.W.18 has denied any illicit intimacy with the accused. Learned Senior Counsel contended that even assuming that the prosecution has proved the motive, that itself is not sufficient to implicate the accused as there is no eyewitnesses to the occurrence. It is contended that there is absolutely no evidence available on record to show that it was the accused who has kept the brandy bottle mixed with poison at the cattle shed of D1. The learned Senior Counsel would further contend that though the prosecution claimed that the accused gave an extra-judicial confession to P.W.24, the Village Administrative Officer, under Ex.P.5, the entire perusal of Ex.P.5 shows that such statement is only exculpatory as the accused stated that he has mixed the poison in the brandy bottle only for his consumption as he has decided to commit suicide. It is further submitted even assuming that the accused gave the extra-judicial confession to P.W.24, the Village Administrative Officer, it is highly improbable for him to repose confidence on P.W.24 who is a stranger to give any extra-judicial confession. Learned Senior Counsel also contended that though the medical evidence disclosed that D1 and D2 died due to consumption of brandy containing poison there is https://hcservices.ecourts.gov.in/hcservices/ absolutely no materials available on record to implicate the accused for mixing the poison with brandy and keeping the same at the cattle shed of D1. 10. Per contra, Mr.N.R.Elango, the learned Additional Public Prosecutor contended that the prosecution has proved its case by adducing clear and cogent evidence. It is submitted that there are clinching circumstances available on record to implicate the accused. It is further contended that the prosecution has proved the motive through the evidence of P.Ws.2,3,4,11,12,13,14,15 and 19 and as such, it is clear that only the accused is responsible for causing the death of D1 and D2 by mixing the poison with brandy and keeping the bottle at the cattle shed of D1. It is submitted that the case of the prosecution is also corroborated by the medical evidence as the doctor found that D1 and D2 died due to consumption of poison. Therefore, it is submitted that the prosecution has proved its case in all aspects against the accused beyond reasonable doubt. 11. We have given our careful and anxious consideration to the rival contentions put forward by either side and also thoroughly scrutinised the evidence available on record and perused the impugned Judgment of conviction. 12. The entire prosecution case rests on the circumstantial evidence. It is well settled in a catena of decisions of the Hon'ble Apex Court that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. The Hon'ble Apex Court has, in BODH RAJ @ BODHA AND OTHERS Vs. STATE OF JAMMU AND KASHMIR reported in AIR 2002 SUPREME COURT 3164 in paragraphs 10 and 11, held that:- ".... 10.It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. [See Hukam Singh V. State of Rajasthan [AIR 1977 SC 1063]; Eradu and others V. State of Hyderabad [AIR 1956 SC 316]; Earabhadrappa V. State of Karnataka [AIR 1983 SC 446]; State of U.P. V. Sukhbasi and others [AIR 1985 SC 1224]: [1985 Crl.LJ 1224]; Balwinder Singh V. State of Punjab [AIR 1987 SC 350]; Ashok Kumar Chatterjee V. State of M.P. [AIR 1989 SC 1890]. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In https://hcservices.ecourts.gov.in/hcservices/ Bhagat Ram V. State of Punjab [AIR 1954 SC 621], it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. 11.We may also make a reference to a decision of this Court in C.Chenga Reddy and others V. State of A.P. [1996] 10 SCC 193, wherein it has been observed thus:- "In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence...." 13. Now, let us analyse circumstances put forward by the prosecution in the light of the settled principle of law laid down by the Hon'ble Apex Court in the decision cited supra. 14. The first circumstance relied on by the prosecution is the motive for the accused to cause the death of D1 and D2. At the outset it is to be stated that the prosecution has put forward the motive only in respect of D1 and not in respect of D2 and even as per the admitted version of the prosecution that the accused kept the brandy bottle mixed with poison only at the cattle shed of D1. The motive according to the prosecution is to the effect that the accused was having illicit intimacy with P.W.18, wife of P.W.19, who is the brother of D1 and D1, a week prior to the occurrence warned the accused to stop his intimacy with P.W.18. It is pertinent to be noted that P.W.18, the sister-in-law of D1 emphatically denied any illicit intimacy with the accused and also further categorically stated that there was no enmity between D1 and the accused. The prosecution also placed reliance on the evidence of P.Ws.2 to 4, 11 to 15 and 19. P.W.19, husband of P.W.18 also stated that the accused used to come to his house frequently and he used to move with his wife, P.W.18. But in his cross examination he has admitted that he has only condemned his wife P.W.18 and not warned the accused and the accused was coming to his house till the death of D1. In view of the evidence of other witnesses, viz., P.Ws.2 to 4 and 11 to 15 we are of the considered view that there are some materials to substantiate the motive put forward by the prosecution against the accused in respect of the accused having illicit intimacy with P.W.18-sister-in-law of D1 and D1 warning the accused prior to the occurrence. However, only on the https://hcservices.ecourts.gov.in/hcservices/ basis of motive alone the prosecution cannot fasten the liability of causing the death of D1 and D2 on the accused. 15. It has been held by the Hon'ble Apex Court in MOHD ZAHID V. STATE OF T.N. reported in [1999] 6 SUPREME COURT 120 that:- ".... 25.... Motive being a double-edged weapon, could cut both ways – helping and harming both the prosecution and the defence." Therefore, we are of the considered view that motive alone is not sufficient to implicate the accused with the alleged crime. 16. The next circumstance is to the effect of keeping the brandy bottle containing poison at the cattle shed of D1. The prosecution placed reliance on the evidence of P.W.6 to the effect that four days prior to the occurrence D1 informed him that he found a quarter bottle in his cattle shed. The prosecution also placed reliance on P.Ws.1,2 and 15 to the effect that D1 came to the house of D2 and asked him to share the brandy contained in the bottle and thereafter, both of them consumed the brandy contained in the bottle, M.O.3, Yet another witness to speak about the fact that both D1 and D2 consumed brandy contained in the bottle M.O.3, is P.W.7. There is not an iota of evidence available on record as to how the brandy bottle, M.O.3, was kept in the cattle shed of D1 and also as to who was responsible for keeping the bottle at the cattle shed of D1. Therefore, merely because D1 fetching the brandy bottle containing poison from his cattle shed and thereafter requesting D2 to share the brandy with him and both of them consuming the same, we cannot presume that the brandy bottle was kept only by the accused at the cattle shed of D1. 17. The next circumstance relied on by the prosecution is the consumption of brandy by D1 and D2 and thereafter they are complaining stomach pain and vomiting blood which ultimately resulting in their death. Even in respect of this circumstance, we are of the considered view that in the absence of the prosecution proving that the accused alone was responsible for keeping the brandy bottle at the cattle shed of D1 with the intention of making D1 to consume the brandy mixed with poison with a view to kill him, the prosecution is not justified to mulct the liability of causing the death of D1 and D2 on the accused. 18. The yet another piece of circumstance relied on by the prosecution is the alleged extra-judicial confession said to have been given by the accused to P.W.21. There is no evidence to show that the accused was closely known to P.W.21. Therefore, it is highly improbable for the accused to repose confidence on P.W.21 to give any such extra- judicial confession. 19. The Hon'ble Apex Court in Sunny Kapoor V. UT of Chandigarh reported in 2006 (10) SCC 182 has held that it is wholly unlikely that https://hcservices.ecourts.gov.in/hcservices/ the accused would make extra-judicial confession to a person whom they never knew. 20. It is also pertinent to be noted that P.W.21 categorically admitted in his cross-examination that he has not disclosed about the alleged extra-judicial confession of the accused made to him to anyone and he was coming forward with that version only for the first time before the Court. Therefore, the conduct of P.W.21 is most unnatural and abnormal which throws considerable doubt about the veracity of his version. Therefore, we have no hesitation to hold that the evidence of P.W.21 is unreliable and untrustworthy. 21. The next circumstance is the alleged extra-judicial confession said to have been given by the accused to P.W.24, the Village Administrative Officer. It is the evidence of P.W.24 that the accused appeared before him on 30.06.2004 and stated that as the police was searching, he wants to surrender. As we have already pointed out in respect of the evidence of P.W.21, here again we are of the view that P.W.24 being a stranger to the accused, it is highly improbable for the accused to repose confidence on him to give any such extra-judicial confession. Added to this improbability, a perusal of Ex.P.5 makes it crystal clear that the accused has not admitted his guilt. The entire statement contained in Ex.P.5 is only exculpatory and not inculpatory and as such, it cannot be construed to be an extra-judicial confession. In view of the above said reasons, we cannot place any reliance on the evidence of P.W.24 and the alleged extra-judicial confession recorded under Ex.P.5. 22. The last but not the least circumstance relied on by the learned Trial Judge is the alleged dying declaration as per the evidence of P.Ws.3 and 11. We are constrained to point out that no dying declaration is recorded by the Magistrate in this case. The learned Trial Judge placed reliance on the statement of P.W.3 in the cross- examination to the effect that while D1 was taken to the hospital on the way he informed him that he has taken the brandy from the cattle shed and consumed. This statement only shows about the consumption of brandy and the deceased not made a whisper about raising suspicion against the accused or implicating the accused for keeping the brandy bottle in his cattle shed. The other witness P.W.11 also stated in his cross- examination as relied on by the learned Trial Judge is to the effect that D1 informing P.W.11 that he along with D2 consumed brandy and thereafter, vomited. Here again, the deceased has not implicated the accused for keeping the bottle or mixing the poison in the brandy bottle. But, curiously, the learned Trial Judge, has held that the accused was responsible for causing the death of D1 and D2 without pointing out any incriminating materials. The Hon'ble Apex Court has held in SURESH @ HAKLA V. STATE OF HARYANA reported in 2008 [3] SUPREME 182 that:- https://hcservices.ecourts.gov.in/hcservices/ "An inferential conclusion without any evidence to show participation of the accused cannot be sustained." 23. The Hon'ble Apex Court has