IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 24.10.2009 CORAM THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR. JUSTICE V.PERIYA KARUPPIAH CRL.A.No.265/2008 Karthic .. Appellant/A1 Vs State by the Inspector of Police B-2, R.S.Puram Police Station, Coimbatore. .. Respondent [Cr.No.198/2007] Appeal filed u/s.374[2] Cr.P.C., to set aside the conviction and sentence imposed on the appellant in SC.No.107/2007 dated 20.09.2007 by the learned Additional District and Sessions Judge, FTC-2, Coimbatore. For Appellant : Mr. S.Kalyanaraman For Respondent : Mr.Babu Muthu Meeran, Addl. Public Prosecutor JUDGMENT [Judgment of the court was delivered by M.CHOCKALINGAM, J.] Challenge is made to the Judgment of the learned Additional District and Sessions Judge, FTC-2, Coimbatore, made in SC.No.107/2007 whereby the accused/A1 and A2 stood charged, tried and found guilty for the offence u/s.302 and 212 IPC. The first accused/the appellant was awarded with life imprisonment and to pay a fine of Rs.2,000/- in default to undergo three years rigorous imprisonment for the offence u/s.302 IPC and the second accused was awarded three years rigorous imprisonment and to pay a fine of Rs.1,000/- in default to undergo six months simple imprisonment for the offence u/s.212 IPC. The above appeal has been preferred by the first accused. https://hcservices.ecourts.gov.in/hcservices/ 2.Short facts necessary for the disposal of the appeal can be stated as follows:- [a]P.W.1 is the resident of Uppara Veedhi and he is carrying on his business of selling old cars. The appellant herein, the first accused, during the relevant time, was employed as P.W.1's driver and the deceased was employed as a mechanic in L.G.Show Room situated just opposite to P.W.1's business place. The second accused was the close associate of A1. P.W.4, during the relevant time, was employed with the deceased and P.W.3 was the room mate of the deceased. A1 and the deceased developed unnatural relationship during their friendship. [b]On 08.02.2007, the deceased informed P.W.4 that he was suffering from fever and hence, he was going to the shed where A1 was staying which is situated at the back of the P.W.1's business place and asked P.W.4 to wake him up 6.00 a.m on the next day morning. Accordingly, P.W.4 went to A1's shed on 09.02.2007 at about 6.00 a.m. to wake up the deceased and at that time P.W.5 enquired P.W.4 about his presence there and P.W.4 informed him that he came to wake the deceased. Thereafter, P.W.4 left the place. On the fateful day of occurrence, i.e., 10.02.2007 at about 7.00 p.m., P.W.1 went out and came back at 9.00 p.m. and the deceased informed his room mate, P.W.3 that he was going to meet A1 in his room and so saying he left to A1's shed. When P.W.1 came back, he handed over his two-wheeler to A1 and asked A1 to take care of the vehicle and left the place. The deceased who left for A1's shed at about 9.30 p.m. did not return back to his room for the whole night. Meanwhile, P.W.2, A2 and one Suresh who were proceeding to witness a film in the Kanagadara Theatre at about 10.00 p.m. met the deceased and A1 in a hotel where they were having their food and A2 invited A1 for watching the film to which A1 refused. When P.W.2, A2 and the said Suresh were watching the film, at about 00.30 night hours, Suresh received a phone call from A1 asking A2 to come outside as A1 was not allowed to go inside the cinema theatre by P.W.14, the watchman of the theatre. [c]When all the 3 came out, immediately A1 questioned others as to why all came outside the theatre since he called only A2 and later, took A2 therefrom. P.W.2 and the said Suresh left the place. On the next day, i.e., 11.02.2007. morning at about 7.30 a.m. P.W.8 came there to invite A1 for having tea but he could not find him and thereafter, he found an Inova car, M.O.1, standing nearby and he went there in search of A1 in the car but found the deceased lying dead by strangulation with a nylon rope. He in turn informed the same to P.W.5 who in turn informed P.W.1 and P.W.1 rushed to the spot and found the presence of the dead body of the deceased inside the car. https://hcservices.ecourts.gov.in/hcservices/ [d]P.W.1 immediately went to the respondent police at about 8.00 a.m., gave a complaint to P.W.18, the Sub-Inspector of Police attached to the respondent police, on the strength of which a case came to be registered in Crime No.198/2007 for the offence u/s.302 IPC and the Express FIR, Ex.P.25 was despatched to the court within a period of two hours. P.W.19, the Inspector of Police attached to the respondent police took up the investigation, proceeded to the scene of occurrence; prepared Observation Mahazar-Ex.P.5 and a rough sketch-Ex.P.26; held inquest on the dead body of the deceased from 10.15 a.m. to 12.45 p.m. in the presence of witnesses and panchayatdars and prepared Ex.P.27-Inquest Report. He also recovered the material objects from the scene of occurrence. Thereafter, the dead body was sent to the Government Hospital, Coimbatore, for Postmortem. P.W.12 the doctor attached to the said hospital, on receipt of requisition, conducted autopsy and issued Postmortem Certificate under Ex.P.12 wherein he had opined that the death of the deceased was due to severe injuries that was caused to the neck of the deceased and after completing formalities, the dead body of the deceased was handed over to the father of the deceased. [e]Pending investigation, the accused were arrested near Udumulpet and A1 and A2 came forward voluntarily to give their confession statements, the admissible part of which are recorded under Ex.P.7 and Ex.P.8 respectively. Pursuant to the confessions of A1&2, M.O.2-motor bike and M.O.7-a cell phone and another cell phone-M.O.8 were recovered under the cover of Mahazar Ex.P.9. All the material objects recovered from the scene of occurrence, accused and from the dead body of the deceased were all subjected to chemical analysis which resulted in 3 reports, viz., Exs.P.22, 23 and 24 respectively. [f]On completion of investigation and filing of the final report, the case was committed to sessions; necessary charges framed and in order to substantiate the charges, the prosecution examined 19 witnesses [P.Ws.1 to 19], marked 27 exhibits [Exs.P.1 to 27] and produced 17 material objects [M.Os.1 to 17]. 3.When the accused were questioned u/s.313 Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses, they denied them as false and no defence witness was examined on the side of the accused. Hearing the arguments advanced on either side and also considering the materials available on record, the trial court took a view that the prosecution has proved its case beyond reasonable doubt against the accused and thus, rendered the judgment of conviction. As against the said conviction and sentence, the first accused alone has preferred the above appeal. https://hcservices.ecourts.gov.in/hcservices/ 4.Advancing the arguments on behalf of the appellant, the learned counsel would submit that in the instant case, the prosecution has miserably failed to prove its case by producing any direct circumstantial evidence. It is submitted that the original case of the prosecution, to start with, is that A1/appellant has got unnatural relationship with the Feroz Khan, the deceased but there is no material available in the entire case to prove such relationship and none of the witness have spoken to that effect and as such, the motive attributed to A1 with regard to the unnatural relationship is not proved by the prosecution. Further, according to the evidence of P.W.1, he went to the respondent police station and gave the complaint at about 9.00 a.m. on the next day of the occurrence, i.e., 11.02.2007 and a case was registered immediately and according to P.W.18, the Sub-Inspector of Police, the FIR was despatched to the Inspector of Police within 15 minutes therefrom, i.e., 9.15 a.m. But the FIR, admittedly reached the court, which is situated nearby to the police station, at 11.00 a.m., i.e., two hours belatedly and thus, there was an inordinate delay of 2 hours of FIR reaching the court, which remained unexplained by the prosecution. 5.Learned counsel would further contend that according to P.W.1, when he went to his office at 11.00 p.m. on 10.02.2007, he saw the presence of A1 but not the deceased which would indicate that the deceased could not have been present at the place of occurrence. Further, the prosecution relied on the last seen theory through the evidence of P.W.2 as it was stated by P.W.2 that when he along with A2 and one Suresh went to watch film, he saw A1 and the deceased eating food in a hotel at about 10.00 p.m. and A2 invited A1 for the film to which he refused. P.W.2 would further add that the said Suresh received phone call from A1 at about 12.30 night hours, while they were witnessing the film and if that particular part of the deceased was to be relied on by the prosecution, the prosecution should have examined the said Suresh, but for the best reasons known to the prosecution, the Suresh was not examined and the non-examination of Suresh is fatal to the prosecution. 6.The learned counsel further added that the arrest and recovery of the material objects pursuant to the confessions of the accused persons is self inconsistent and highly improbable and unacceptable and further, it is pertinent to point out that the deceased could have raised a cry while the occurrence had taken place inside the car and somebody could have heard; but nobody has been examined in that regard. It is also contended that the alleged recovery from A1 according to the evidence available on record could not be believed and in order to strengthen the prosecution case, all those documents are cooked up ones and they have been introduced as an after thought and under these https://hcservices.ecourts.gov.in/hcservices/ circumstances, the prosecution has failed to prove its case and the judgment of the trial court has got to be set aside and the appellant/A1 is liable to be acquitted. 7.Heard the learned Additional Public Prosecutor on the above contentions and the court paid its anxious consideration on the submissions made on either side. 8.It is not in controversy that the dead body of one Feroz Khan was actually found in an Inova car-M.O.1 which belongs to P.W.1 and on the strength of Ex.P.1, the complaint, the case was taken on file and P.W.19, the Inspector of Police attached to the respondent police, after conducting procedural formalities, sent the dead body for Postmortem and the dead body was subjected to postmortem by P.W.12, the doctor attached to Government Hospital, Coimbatore who has given a categorical opinion that the deceased died out of injuries sustained on the neck and the fact that the deceased died out of homicidal violence was not disputed by the appellant before the trial court and the trial court did not feel any impediment in recording so and it has got to be affirmed. 9.In order to substantiate that it was A1 who caused the death of the deceased, the prosecution relied on circumstantial evidence. It is well settled proposition of law that when the prosecution rests its case on the circumstantial evidence, it must be able to place and prove all the circumstances which would constitute a chain of events and point out the hypothesis that except the accused, no one could have committed the offence. In the present case, the court is thoroughly satisfied that the prosecution has proved the case by placing necessary circumstances. Admittedly, P.W.1 is the owner of the car business where A1 was employed as driver and it is clear from the evidence that the deceased was employed as a mechanic in the opposite shop and he used to go and visit A1 in his room where he was staying which is situated behind the office of P.W.1. As per the evidence of P.W.2, it is quite clear that on the date of occurrence, i.e., 10.02.2007 at about 10.00 pm, the presence of the deceased along with A1 was confirmed when he along with A2 and one Suresh were proceeding to witness a film and on the way, they saw them taking food in a hotel and A2 invited A1 for the film to which proposal A1 refused and thus, the deceased was found in the company of A1 at about 10.00 p.m. was clearly established and thus, the occurrence has taken place within a short span of hours. It is also further seen that the dead body of the deceased was found in M.O.1-Car which belongs to P.W.1 and according to the evidence of P.W.1, when he came back on 10.02.2007 at night hours, he informed A1 to take care of the car and so saying, he left the place and on the next day morning, the dead body was actually found inside the car which was under the custody of A1. It is also relevant to infer from the evidence of P.W.14, the watchman of the theatre, that as he did not allow A1 to go https://hcservices.ecourts.gov.in/hcservices/ inside the theatre, A1 was standing outside waiting for A2 along with M.O.2-Hero Honda Motor Bike and thus, it would be quite clear that A1 was actually standing outside with M.O.2 and P.W.2 has also seen A1 standing with M.O.2-bike. Subsequently, when P.W.5, came to the shed where A1 was staying on 11.02.2007 morning, he found A1 was missing and found the dead body inside the car. P.W.8 also came there and noticed the same and they informed about the presence of the dead body inside the car to P.W.1. When P.W.1 also came to the spot, he found A1 absconding from that place and at this instance, the conduct of A1 also has to be taken into consideration. 10.The yet another circumstance which was against the appellant was the recovery of the cell phone which belongs to the accused and also the motor bike of P.W.1 which was used by him to come to the theatre at night hours and the said recovery was made under the cover of Mahazar and thus it would be indicative of the involvement of A1 in the crime. Thus, the above circumstances, in the considered opinion of the court, would suffice to indicate that it was none else except A1 could have committed the offenc of causing the death of the deceased. It is true that the prosecution came out with the story that A1 got unnatural relationship with the deceased but there is no evidence indicating the same. This court is of the considered view that the association of A1 and the deceased remain proved through sufficient evidence as the deceased was found in the company of A1 during the night hours and the dead body was also found in M.O.1 which belong to P.W.1 and which was handed over to A1 by P.W.1 to take care of the car and it is for A1 to give an explanation for the same. In a given case where the prosecution rests its case on circumstantial evidence and if a particular circumstance is found missing, it is only the accused who could give an explanation and a duty is cast upon him to give such explanation and if he comes with a false explanation or suppression of circumstance, the court can infer that he is responsible for the incident. In the instant case, how the dead body was found inisde the car which was in the custody of A1 is not known and it is for A1 to give proper explanation; but he had not explained the same. In the above circumstances, it would be clear indicative of the fact that it was none else except A1 could have committed the crime and causing the death of the deceased. In the stated circumstance, it has to be taken but to be framed only as murder and hence, the trial court was perfectly correct in recording the finding that A1 was guilty of committing the murder of the deceased. Hence, the judgment of conviction and sentence passed by the trial court against the appellant/A1 is affirmed and it is seen that A2 has not preferred any appeal against his conviction and sentence for the offence u/s.212 IPC. https://hcservices.ecourts.gov.in/hcservices/ 11.Accordingly, the criminal appeal is dismissed and the judgment of conviction and sentence imposed on the appellant/A1 in SC.No.107/2007 dated 20.09.2007 by the learned Additional District and Sessions Judge, FTC-2, Coimbatore stands confirmed. Ap Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Additional District and Sessions Judge, FTC No.2, Coimbatore. 2.Do Through The Principal District and Sessions Judge, Coimbatore. 3.The Judicial Magistrate No.1, Coimbatore (CC.No.11/07 of RS Puram Police Station) 4.The District Collector, Coimbatore. 5.The Director General of Police, Chennai 4. 6.The Superintendent, Central Prison, Coimbatore. 7.The Inspector of Police B-2, R.S.Puram Police Station, Coimbatore. 8.The Public Prosecutor High Court, Chennai. + 1 cc to Mr.S.Kalyanaraman, Advocate SR No.56446 Crl.A.No.265/2008 KA(CO) SR/3.11.2009 https://hcservices.ecourts.gov.in/hcservices/