BAIL SLIP The Appellant / Accused No.2 namely Murugesan was directed to be released on bail as per order of this Court dated 6.12.07 and made in Crl.M.P.No.1/07 in C.A.No.1077/07. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.12.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NOS.1077 OF 2007 AND 39 OF 2008 Murugesan .. Appellant in C.A.No.1077/2007 Sankar .. Appellant in C.A.No.39/2008 Vs. State rep. by The Inspector of Police, Paramathi Police Station, Namakkal District (Crime No.265 of 2006) .. Respondent in both the appeals These criminal appeals have been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Principal Sessions Judge, Namakkal District made in S.C.No.14 of 2007, dated 13.11.2007. For Appellants : Mr.V.Gopinath, SC for Mr.B.Vasudevan in CA.No.1077/07 for Mr.K.Balakrishnan in CA.No.39/08 For Respondent : Mr.P.Kumaresan, APP - - - - COMMON JUDGMENT (The judgment of the court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern the above two appeals, namely Criminal Appeal Nos.1077 of 2007 and 39 of 2008. 2.Criminal Appeal No.1077 of 2007 is filed by A-2 and Criminal Appeal No.39 of 2008 is filed by A-1, challenging the judgment of the Principal Sessions Division, Namakkal made in S.C.No.14 of 2007, whereby these two appellants along with another shown as A-3 stood https://hcservices.ecourts.gov.in/hcservices/ charged, tried and found guilty as follows: Accused Charges Findings Sentence A-1 Sections 364, 302, 382 and 201 r/w S.302 IPC Guilty – Ss. 302, 382 and 201 r/w S.302 IPC Not Guilty – S.364 IPC S.302 IPC – Life Imprisonment and to pay a fine of Rs.10000/- i/d to undergo one year RI. S.382 IPC – 3 years RI and to pay a fine of Rs.1000/- i/d to undergo 6 months RI. S.201 r/w S.302 IPC – 5 years RI and to pay a fine of Rs.5000/-, i/d to undergo 6 months RI. A-2 Section 201, 202 r/w S.302, 414 and 201 r/w S.302 IPC Guilty – Ss.414 and 202 IPC Not Guilty – S.201 r/w S.302 IPC S.202 IPC – 6 months RI and to pay a fine of Rs.1000/- i/d to undergo one month RI. S.414 IPC – 1 year RI and to pay a fine of Rs.3000/-, i/d to undergo 6 months RI. A-3 Section 201 r/w S.302 and 411 IPC Not Guilty A-3 is acquitted of the charges levelled against him. The sentences were ordered to run concurrently. 3.The short facts necessary for the disposal of these appeals can be stated thus: a)P.W.1 is the mother of the deceased Balan @ Balamurugan. All the three accused belonged to the place of P.W.1 and the deceased, namely Paramathi, within the jurisdiction of the respondent police station. P.W.7 gave 2 sovereigns of gold chain to the first accused asking him money by pledging for his marriage expenses. A-1 gave Rs.3000/- and two months later, he gave another Rs.2000/-. A-1 again repledged the jewel with P.W.8 for Rs.11,500/- and the balance was retained by him for his family expenses. P.W.7 was making many a demand for the return of the jewel. The first accused had neither money nor source to raise the fund for getting the jewel of P.W.7. b)While the matter stood thus, on 21.7.2006 at about 1.00 p.m., the deceased left the house, but he did not come back. P.W.1, the mother of the deceased, was searching for him along with the relatives, but he did not come back. P.W.6, the close relative of P.W.1, was also residing nearby. On 21.7.2006 at 12.00 noon, he came to Paramathi for taking tea and at that time, he found a Red colour Maruti Van, in which A-1 and the deceased were travelling together. Then, he left for his house and went outside place and he returned https://hcservices.ecourts.gov.in/hcservices/ after one week. c)P.W.10 was actually employed in TASMAC Shop as Supervisor, where A-1 and the deceased came there, took brandy and left the place in the Maruti Van. The first accused took the deceased from that place and when the deceased was unconscious, the first accused murdered him by strangulation and also attacked him with the Spanner. The dead body was kept inside and then, he came back. When he came to the house of A-2, he changed the dress by getting another shirt from A-2. A-1 also handed over the jewels, which he robbed from the body of the deceased, namely M.Os.1 to 3. Thereafter, he took A-3 also in the Van along with the dead body and threw it in the Cauvery River. Thereafter, they left the Van also. All the three accused has also screened the entire evidence. d)P.W.1 went to the police station on 27.7.2006 at 2.00 p.m. and gave Ex.P.1, the complaint to P.W.18, the Sub Inspector of Police. On the strength of Ex.P.1, P.W.18 registered a case in Crime No.265 of 2006 for man missing. Ex.P.14, the FIR was despatched to the Court. P.W.18 took up the investigation, proceeded to the spot and made an inspection. He prepared Ex.P.3, the observation mahazar and Ex.P.15, the rough sketch in the presence of the witnesses. He also examined the witnesses and recorded their statements and the investigation was pending. e)While the matter stood thus, when P.W.17, the Village Administrative Officer, was in his office at about 9.00 a.m. on 23.9.2006, A-1 appeared before him and gave confessional statement, which was recorded by him and the same was marked as Ex.P.4. P.W.17 along with Ex.P.4 took the first accused to the police station. On the strength of the statement, the case came to be altered to Sections 363, 302, 201 and 379 IPC. Ex.P.16, the alteration report was sent to the court. f)P.W.20, the Inspector of Police, on receipt of the copy of the FIR, took up the investigation at 10.30 a.m. on 23.9.2006. He examined A-1, who came forward to give confessional statement, which was recorded in the presence of the witnesses, the admissible part of the same was marked as Ex.P.13. Pursuant to the same, A-1 produced M.O.5, Maruthi Car, which was recovered under a cover of mahazar. A-1 identified A-2, who has came forward to give confessional statement, which was recorded in the presence of the witnesses. The admissible part of the same was marked as Ex.P.6. A-2 took the police to P.W.11, from whom M.Os.1 to 3 jewels, which belonged to the deceased, were recovered under a cover of mahazar. P.W.20 inspected the scene of occurrence and prepared Ex.P.10 the observation mahazar and Ex.P.17, the rough sketch. A-1 identified A-3, who came forward to give confessional statement, which was also recorded, the admissible part of which was marked as Ex.P.9. Pursuant to the same, A-3 produced M.O.4, cell phone, which was recovered under a cover of mahazar. A-1 took the police official and identified the place, where the dead body was thrown in the Cauvery River. P.W.20 prepared Ex.P.12, the observation mahazar and Ex.P.18, the rough sketch in this regard. The accused were sent for judicial remand. The other witnesses were also examined by the Investigator. https://hcservices.ecourts.gov.in/hcservices/ g)P.W.21, the Inspector of Police, took up further investigation. He examined the witnesses and recorded their statements. On completion of the investigation, he filed the final report. 4.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution examined 21 witnesses and also relied on 19 exhibits and 8 M.Os. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which they flatly denied as false. No defence witness was examined. The trial court, after hearing the learned counsel on either side and looking into the materials available, took the view that the prosecution has proved the case beyond reasonable doubt in respect of A-1 and A-2 and found them guilty as per the charges and awarded punishments as referred to above and it has recorded an order of acquittal in respect of A-3. Hence these appeals have arisen at the instance of the appellants. 5.Advancing arguments on behalf of the appellants, the learned Senior Counsel has made the following submissions: a)The occurrence has taken place, according to the prosecution, on 21.7.2006. The prosecution, either to prove the crime of theft or murder or for screening the evidence, had no direct evidence to offer, but it has rested its entire case exclusively on circumstantial evidence. As could be seen from the available materials and the evidence produced before the trial court, two circumstances, according to the prosecution, were prime. One was the last seen theory by P.Ws.10 and 6 and the other was the recovery of jewels, which belonged to the deceased and also the Maruti Van etc. The learned counsel would add that it is true, the prosecution made sincere attempt by placing two circumstances and tried its best to prove the same, but it has miserably failed and under these circumstances, the lower court should have rejected the case of the prosecution, but it has taken an erroneous view as if the prosecution has proved the circumstances. b)The first circumstance so far as the last seen theory was concerned, the prosecution examined two witnesses, who are P.Ws.10 and 6. According to P.W.10, he is employed in TASMAC Shop as Supervisor and the first accused and the deceased came over there and took brandy and after consuming the liquor, they proceeded from that place in a Red colour Maruti Van. This part of the evidence should have been rejected for more reasons than one. According to him, when he gave evidence before the court, he has deposed that he saw both of them in the shop at about 10.45 a.m., but when he was interrogated by the Investigating Officer and when the statement was recorded under Section 161 Cr.P.C., he has stated that he met both of them at 2.00 p.m. Thus, at what time he met both of them was itself contradictory. Further, he has stated that that was the first time when he met both of them and further, number persons used to come to the shop and he could not remember or identify them. If to be so, the circumstance would require the conduct of identification parade, but it was not conducted. Thus, with the evidence of P.W.10, which is self https://hcservices.ecourts.gov.in/hcservices/ contradictory, it cannot be stated that he has actually saw the first accused along with the deceased on the date of occurrence. c)The second witness examined was P.W.6. According to him, he is the close relative of the deceased, whose house is situated just 15 feet from the house of P.W.1. He met both of them at 12.00 noon near the Maruthi Van and he would add that he left the place and came after one week. It is pertinent to point out that he has not whispered to anybody that he saw both of them on the date of occurrence. It is highly a matter of surprise to note that how a person, who happened to be the close relative of the deceased, has not whispered anything about the said fact. Naturally, one would expect him to tell others that he has last seen both A-1 and the deceased, but he has not done so. The other reason to reject the testimony of P.W.6 was that P.W.18, the Sub Inspector of Police would claim that he examined P.W.6 on 27.7.2006 itself, but that statement was never despatched to the Court and it was not available at all and hence what was actually the statement given by P.W.6 on 27.7.2006 remained unknown. Had it been produced before the court, the witness could be better testified, but the prosecution did not help the court. Further, the evidence of P.Ws.10 and 6 was thoroughly to be nullified by the evidence of P.W.1. Even as per the complaint, she has stated that her son took lunch and left the house at 1.00 p.m. on 21.7.2006. If to be so, the claim of P.W.10 that he met them at 10.45 a.m. or the claim of P.W.6 that he met them at 12.00 noon was thoroughly nothing but tissue of falsehood and hence their evidence should not be given any credence. d)So far as the other part of the evidence, which according to the prosecution was the extra judicial confessional alleged to have been given by the first accused to P.W.17 on 23.9.2006 was concerned, it cannot be given any evidentiary value at all. According to P.W.17, he was the Village Administrative Officer for a period of nearly more than a decade. A-1 came to his office at 9.00 a.m. and gave extra judicial confessional and the same was recorded by him. Thereafter, he took A-1 to the police station and he was produced before the Investigator at about 10.45 a.m., where A-1 gave another statement, which led the recovery of the Van and he also identified A-2, who has identified P.W.11, from whom M.Os.1 to 3 were recovered and thereafter, A-3 was arrested, from whom M.O.4, cell phone was recovered. P.W.17 has categorically admitted that from 10.45 a.m. till the end of the entire recovery, he was in the hands of the police. At this juncture, the entire confessional statement is doubtful for the simple reason that it was not actually written in the paper supplied by the Government and it did not also bear the seal and that he had no explanation to offer for the same. The added circumstance was that the prosecution would claim that A-1's confessional statement was recorded at 10.45 a.m. when he was arrested by the Investigator at Paramathi Police station. Thereafter, A-2 was arrested, following which A-3 was also arrested and these process were going on for a whole day, which was spoken to by P.W.17, V.A.O. But the entire evidence as to the arrest, confessional statement and the recovery was thoroughly falsified by the evidence of P.W.1 and also P.W.7. According to them, all the three accused https://hcservices.ecourts.gov.in/hcservices/ were actually in the police station of Jedarpalayam at 10.00 a.m. on 23.9.2006. If to be so, the arrest, all the confessional statements and the recovery of M.Os, as claimed by the prosecution, were nothing but false and cooked up affairs. Hence no evidentiary value could be attached to the evidence of P.W.17. If the prosecution lose these three pieces of evidence, then it has no evidence to offer. Hence the lower court should have rejected the entire prosecution story, but it has erroneously took the view and found the appellants guilty. Further, the lower court was not prepared to accept the evidence adduced by the prosecution for the recovery of M.O.4, cell phone from A-3. If to be so, equally all the reasons for the acquittal of A-3 are applicable to the appellants herein also and under these circumstances, the prosecution has miserably failed to prove the relevant facts, which are necessary to prove the guilt of the accused. Hence the appellants herein are entitled for acquittal in the hands of this court. 6.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 7.In the instant case, at the outset it has got to be pointed out that the son of P.W.1, namely Balan @ Balakrishnan, from whom the jewels were stolen, has been murdered and his dead body was thrown into the river. Despite investigation made, the Investigator could not trace his body and hence it has got to be recorded so. It is settled proposition of law that in a given case of murder, when the dead body was not found, it cannot be stated that the prosecution has not proved the guilt of the accused. In the instant case, the death has been proved, but the dead body was not found. Under these circumstances, now a question that would arise is whether the prosecution has brought home the guilt of the accused in respect of the crime of theft, murder and also for screening the evidence. 8.As could be seen from the available materials, the prosecution has no direct evidence to offer, but it has rested its case on circumstantial evidence. Needless to say that in a given case where the prosecution rested its case on circumstantial evidence, necessary circumstances must be placed and proved pointing to the hypotheses that except the accused no one could have committed the offence. In the instant case, if this test is applied, the court is afraid whether the court could accept the case of the prosecution. Before the trial court, the prosecution placed two circumstances, which according to the prosecution were strong. But, when the materials are placed and perused, this court is unable to agree with the so-called proof adduced by the prosecution before the trial court. 9.The first circumstance was the last seen theory. According to the prosecution, it was P.W.6 who met A-1 and the deceased in the Van at about 12.00 noon on 21.7.2006. Secondly, according to P.W.10, he was employed in the TASMAC Shop as Supervisor and he has seen them in the liquor shop at about 10.45 a.m. These two pieces of evidence when viewed from the other part of the evidence available, the court has to reject the testimony of both these witnesses. So far as P.W.10 was concerned, when he gave evidence before the court, he has https://hcservices.ecourts.gov.in/hcservices/ categorically stated that he met both of them in the liquor shop at 10.45 a.m. According to P.W.20, when P.W.10 gave statement and it was also recorded by him, P.W.10 has stated that he met both of them at 2.00 p.m. Further, P.W.10 has deposed that number of persons used to visit the shop everyday and he met both the deceased and the first accused for the first time. Under these circumstances, the conduct of identification parade is required, but it was not conducted. In every case, identification parade is not necessary, but it has been held by the Apex Court that the identification parade would be only the supportive piece of evidence in order to corroborate with the substantive piece of evidence. In the instant case, so far as the evidence of P.W.10 is concerned, he identified the accused before the court, but it cannot be stated to be the substantive piece of evidence, because he met them only once at the liquor shop and thereafter, he found the accused only in the court hall. He has categorically admitted that he did not remember everyone who came to the shop. Hence this part of the evidence of P.W.10 was in no way useful to the prosecution case. 10.The other evidence projected by the prosecution was P.W.6. According to P.W.6, he was not only close relative of P.W.1 and the deceased, but also his house is situated abutting their house. According to him, he met A-1 and the deceased at 12.00 noon on 21.7.2006, but he was keeping calm for a period of one week and he did not whisper anything. When a close relative was missing, a reasonable conduct of a prudent person under such circumstance would be to come out and tell others that he met them, but he has not done so. Further, P.W.18, the Sub Inspector of Police, would claim that he has also recorded the statement of this witness on 27.7.2006. If to be so, that was the earliest occasion for P.W.6 to speak about the last seen theory. Further, the surprising fact in the instant case was the non production of the statement alleged to have been recorded by P.W.18 from P.W.6 on 27.7.2006. The added circumstance to put an end to the evidence of P.Ws.6 and 10 was the complaint of P.W.1. According to her, the deceased came and took lunch at about 1.00 p.m. and then, he left the house. If the evidence of P.Ws.6 and 10 are viewed from the complaint of P.W.1, it would be quite clear that their statements have been created to make it believe the last seen theory. Under these circumstances, their evidence cannot be given any credence at all. 11.So far as the second part of the evidence placed by the prosecution as to the arrest, confessional statement and the recovery of material objects is concerned, the court has to brush aside the evidence for the following reasons. P.W.17 was the Village Administrative Officer of the said place. According to him, A-1 appeared before him on 23.9.2006, i.e. after two months from the time of occurrence. P.W.17 has stated that he did not know or acquaint with A-1 already. Under such circumstance, one would naturally doubt as to what impelled A-1 to appear before P.W.17, V.A.O. to speak about the crime and that too after two months to the person, who actually did not know him. Further, the confessional statement did not bear the seal. Had it been really done in the office of P.W.17, V.A.O., there could not be any impediment for affixing the seal, but https://hcservices.ecourts.gov.in/hcservices/ he has not done so. According to him, he took the first accused to the police station along with the confessional statement and another confessional statement was also recorded and it was A-1, who produced Van and the spanner and thereafter, it was A-1 who identified A-2, from whom confessional statement was recorded and he has also identified P.W.11, from whom M.Os.1 to 3, jewels belonged to the deceased were recovered and thereafter, A-1 also identified A-3, who was arrested in the afternoon, from whom confessional statement was recorded and M.O.4, cell phone belonged to the deceased was also recovered, according to the prosecution. 12.It is pertinent to point out that P.W.17, V.A.O. was the witness for all the affairs commencing from the confessional statement of A-1 recorded in his office till the last recovery made from A-3. The other witness was not examined. The evidence of P.W.17 is thoroughly nullified by the evidence of P.Ws.1 and 7. According to both the witnesses, all the accused persons were found in Jedarpalayam Police station at about 10.00 a.m. It is pertinent to point out that the case was registered and investigated by Paramathi Police station and not by Jedarpalayam Police station. It would be quite clear that all the accused persons were kept in the custody of Jedarpalayam Police station, which is not connected with the crime in question. Apart from that, when all the three accused persons were present at the Jedarpalayam Police station at 10.00 a.m. on 23.9.2006, the claim of the prosecution that A-1, A-2 and A-3 were arrested and their confessional statements were recorded and recoveries were made, in which P.W.17 was the witness has got to be rejected, as one prepared to suit the prosecution case. Hence this part of the evidence is of no avail or use to the prosecution. If these two pieces of evidence could not be given any evidentiary value, then the prosecution had no further evidence to offer. Thus, the prosecution has miserably failed either to place or prove necessary circumstances. 13.The court is of the considered opinion that the prosecution is not only lack in evidence, but also miserably failed to prove the case. The lower court has taken an erroneous view without appreciation of the materials placed before it. Hence this court has no option than to undo the judgment of the trial court. Accordingly, the conviction and sentence imposed on A-1 and A-2 by the trial court are set aside and they are acquitted of the charges levelled against them. The appellant in Criminal Appeal No.39 of 2008/Accused No.1 is directed to be released forthwith unless his presence is required in connection with any other case. The bail bond executed by the appellant in Criminal Appeal No.1077 of 2007/Accused No.2 shall stand terminated. The fine amount if any paid by the appellants/A-1 and A-2 shall be refunded to them. Accordingly, both these criminal appeals are