IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23-11-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH CRIMINAL APPEAL Nos.639 and 688 of 2009 1. Sivashankar 2. Suresh ..Appellants in Crl.A.639 of 2009/A1 and A2 Navaneethakrishnan ..Appellant in Crl.A. 688 of 2009/A3 ..vs.. The State by Inspector of Police, Yercaud Police Station, Salem District. (Crime No.41 of 2008) ..Respondent in both C.As. Criminal Appeals filed under Section 374(2) of Criminal Procedure Code, against the judgment of the learned Additional District and Sessions Judge (Fast Track Court No.II), Salem, made in S.C.No.21 of 2009, dated 18.09.2009. For Appellants in : Mr.R.Nalliappan for A1 Crl.A.639/2009 Mr.B.Vasudevan for A2 For Appellant in Crl.A.688/2009 Mr.S.Karthikeyan for A3 For Respondent : Mr.Babu Muthu Meeran, A.P.P., in both Crl.As. COMMON JUDGMENT (Judgment of the court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern these two appeals, namely, Crl.Appeal No.639 of 2009 at the instance of A-1 and A-2 and Crl.Appeal No.688 of 2009 at the instance of A-3. 2. Both the appeals challenge a judgment of the Additional Sessions Division (Fast Track Court No.II), Salem, made in S.C.No.21 https://hcservices.ecourts.gov.in/hcservices/ of 2009, whereby the appellants as A-1 to A-3 stood charged, tried and found guilty as follows: Accused Charges Findings Sentence A-1 to A-3 S.364 IPC Guilty Five years R.I. with a fine of Rs.1,000/- each, i/d to undergo three months R.I. A-1 to A-3 S.302 read with 34 IPC (2 counts) Guilty Life imprisonment on each count on each accused and to pay a fine of Rs.2,000/- on each count, i/d to undergo six months R.I.on each count. A-1 to A-3 S.201 read with 302 IPC (2 counts) Guilty Four years R.I.with a fine of Rs.1,000/- each, i/d to undergo three months R.I. A-1 to A-3 S.379 IPC Guilty Two years R.I.with a fine of Rs.1,000/- each, i/d to undergo three months R.I. The sentences imposed on the respective accused were ordered to run concurrently. 3. Short facts necessary for the disposal of both the appeals can be stated thus: (a) P.W.1 is a resident of Senai Nagar, Veeranam. On 17.02.2008 at about 7.00 AM, he went to his farm house for irrigating his lands and he found a white colour gunny bag floating in the well. Entertaining suspicion, immediately, he went to Veeranam Police Station and lodged Ex.P-1 complaint. (b) P.W.20, the Sub Inspector of Police, who was on duty at that time, on the strength of Ex.P-1, registered a case in Crime No.88 of 2008 under sections 302 and 201 IPC. Printed first information report Ex.P-21 was despatched to the Court. (c) On receipt of the copy of the said first information report, P.W.26, the Circle Inspector of Police of Mallur, who was in additional charge, took up investigation, proceeded to the spot, prepared an observation mahazar Ex.P-2 and rough sketch Ex.P-27. The gunny bag was taken out and there was a dead body of a male, aged about 25, with his hands tied behind. P.Ws.2 and 3, who were the close neighbours of the same place were called and they witnessed the observation made by the investigation officer. Then, on intimation, https://hcservices.ecourts.gov.in/hcservices/ P.W.6, the father of the first deceased, namely, Murali @ John Bosco, came over there and identified the dead body. P.W.7 is the wife of P.W.6 and P.W.8 is the brother-in-law of P.W.6. The investigator examined the witnesses and recorded their statements. (d) P.W.8 was running a travel agency, in which the said John Bosco was employed as a driver. On 14.02.2008, he took Martuti van bearing registration No.TN-30-L-2869, which was belonging to P.W.8, stating that he has to drop a friend at Salam. When he started from there, he took the second deceased, namely, Madhan also, but he did not return for two days. Hence, P.W.8 was compelled to give a complaint to Yercaud Police Station on 16.02.2008 at about 1.00 PM and the said complaint is marked as Ex.P-4. (e) On the strength of Ex.P-4, P.W.20, the Sub-Inspector of Police, registered a case in Crime No.41 of 2008 for ‘man missing’. Printed first information report is marked as Ex.P-22 and the investigation was going on. Pending investigation, they came to know that a dead body was found within the jurisdiction of Veeranam Police Station. Then, P.Ws.6 to 8 and others went to the place and identified the dead body of Murali @ Johan Bosco. (f) P.W.26, pending investigation, conducted inquest on the dead body of John Bosco in the presence of witnesses and panchayatdars and prepared Ex.P-31, the inquest report. P.W.8 gave Ex.P-25 bill to P.W.26, under which a Nokia cell phone was purchased. He also further informed that it was entrusted to John Bosco. P.W.26, on receipt of Ex.P-25 sent the letter to the Manager, Airtel, Salem, mentioning the Nokia's cell IMAI number, seeking call details with cell phone number and tower location for which P.W.25 sent Ex.P-26 call data records, which would clearly indicate that the user of the cell phone was one Sivasakaran and on seeing the address, P.W.26 went to the house of Sivasankaran (A-1) on 01.03.2008 and secured him and therefore, the investigation was taken up in that line. (g) P.W.26 interrogated A-1 where he came forward to give a confessional statement admitting the crime and the admissible part of the confessional statement of A-1 was marked as Ex.P-7. Then, he has also given the details of the involvement of A-2 and A-3. Pursuant to the confessional statement, A-1 produced M.O.21 cell phone and M.O.20, rope which is attached to the cell phone and both of them were recovered under a cover of mahazar Ex.P-8. (h) On the said date, namely, on 01.03.2008, when P.W.20, the Sub-Inspector of Police was watching the movements of suspected accused near the railway junction, Salem, he entertained suspicion over A-2 and A-3 and both of them were brought before P.W.26, the Inspector of Police and at that time the confessional statement of A- 1 was available and then, both of them were actually arrested. At the time of arrest, A-2 gave a confessional statement in the presence of https://hcservices.ecourts.gov.in/hcservices/ the witnesses and the admissible portion of which was marked as Ex.P- 5. Pursuant to which, he produced M.O.14 Maruti van and M.O.24 Nokia cell phone and also recovered under a cover of mahazar of Ex.P-6. Apart from that, A-1 took the investigator and also pointed out the gunny bag in which the dead body of Madhan was found and was recovered. P.W.26 conducted inquest on the dead body of Madhan in the presence of witnesses and prepared Ex.P.30 inquest report. On the same day at about 7.00 PM, A-3 also gave a voluntary confessional statement and the same was recorded in the presence of witnesses. The admissible portion of which was marked as Ex.P-12 and following the same, he produced M.O.19 TVS Victor motor cycle, M.O.22 Yashika Camera and M.O.23 Nokia model cell phone and the same were recovered under the cover of mahazar Ex.P-13. Then, he caused the photographs to be taken through P.W.14 and the photos and negatives are marked as M.O.25 series. Thereafter, he sent the dead bodies to the hospital for the purpose of post-mortem along with his requisition. (i) On receipt of the said requisition, P.W.17, doctor attached to the Salem Government Mohan Kumaramangalam Medical College and Hospital, conducted autopsy on the dead body of John Bosco and gave a post-mortem certificate, Ex.P-15, wherein he opined that the deceased would appear to have died due to cervical spine injuries. (j) P.W.24, doctor attached to the said Hospital, conducted autopsy on the dead body of Madhan and gave a post-mortem certificate Ex.P-18, wherein he opined that no definite opinion could be given since the body was in an advanced stage of decomposition. (k) Pending investigation, all the material objects were sent for chemical analysis and the reports were received as Ex.P-23 series and all the accused persons were sent for judicial remand. On completion of investigation, the Investigating officer filed the final report against the accused before the Court. (l) The case was committed to the Court of Additional Session and necessary charges were framed. In order to substantiate the charges, the prosecution examined 27 witnesses and also relied on 34 exhibits and 27 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 against them in the evidence of prosecution witnesses, which they flatly denied as false. No witness was examined on the side of the accused. The trial Court heard the arguments advanced and scrutinized the materials. On doing so, the trial Judge took the view that the prosecution has proved the case beyond reasonable doubt and found the appellants/accused guilty and awarded the punishment of life imprisonment as referred to above, which is the subject matter of challenge before this Court. https://hcservices.ecourts.gov.in/hcservices/ 4. Advancing arguments on behalf of the appellant/A-1, the learned counsel would submit that in the instant case, the prosecution has no direct evidence to offer, but it relied upon three circumstances, firstly, the last seen theory, which was spoken to by only one witness P.W.11; secondly, the recovery of the mobile phone M.O.21 which belonged to the first deceased (John Bosco) and thirdly, the identification of the dead body of Madhan; that all these three circumstances, though claimed to be indicative of the culpability of the accused, it was not so; that in so far as the evidence of P.W.11 was concerned, according to him, he was also the taxi driver and on 14th February, 2008 at about 10.30 AM, he and the deceased John Bosco were washing their respective vehicles; at that time, all the three accused came over and they wanted to engage a car for sight seeing; thereafter, they left the place; then they returned after ten minutes; but P.W.11 had not spoken to about the hire of the vehicle and that P.W.11 further added that at about 12.0' clock he saw all the three accused in a car which was driven by Bosco. The learned counsel would further add that there are three inconsistent versions given by P.W.11; that actually all the accused persons were strangers to P.W.11; under such circumstance, it is the case where identification parade was must; but it was not conducted. 5. Added further the learned counsel that though the statement of P.W.11 was claimed to be recorded on 16th February 2009, it has reached the court after nearly about 50 days. Thus, it is highly doubtful, whether P.W.11 could have given such a statement at all; hence, the evidence of P.W.11 was shaky and it should be rejected outright by the trial cour; that in so far as the receipt of mobile phone, which claimed to be that of the first deceased, neither the owner of the phone nor the person in whose name stood was not examined; that before the trial court, the prosecution examined P.W.8; but P.W.8, at the earliest, has not given a particular number of the phone but the cell phone number was not actually corresponding to the cell phone recovered from A-1; that in the instant case, P.W.8 was recalled after a period of two months and he has given further evidence as to what is the IMEI number which was not available originally and the receipt was not produced and they were not whispered by him at the time of investigation and in order to fill up the lacuna, he was recalled for that purpose and those documents have been produced before the Court, which should not have been received. Added further that there is nothing to indicate that during the interval A-1 has talked to the 1st deceased and Ex.P-26 call data record did not contain the relevant particulars; that even assuming that a new sim card was put into the phone and was used by A-1, then it should have been recovered, but not so; that under such circumstances, the recovery of the same cannot be accepted; that in so far as the recovery is concerned, it is the case of the prosecution that it was A-1, who identified the dead body of second deceased, namely, Madhan, in the river which was also nothing but an introduction and all would go to show that the prosecution has not https://hcservices.ecourts.gov.in/hcservices/ proved the case in so far as A-1 is concerned and, hence, he is entitled for acquittal. 6. Advancing arguments on behalf of A-2, the learned counsel would submit that the last seen theory was thoroughly unbelievable for the reason put forth by the learned counsel for A-1; that the case actually came to be registered on 16.02.2008 itself by the very same Sub Inspector of Police P.W.20 and the first information report is marked as Ex.P-22; that though the statement of P.W.11 was claimed to be recorded on 16.02.2008 itself, it has reached the Court only on 08.04.2008; that there was a long interval which has also taken place only after the alleged confession of all the three accused; that this would be quite indicative of the fact that this 161 statement of P.W.11 was a created one to suit the prosecution case. Added further that in so far as the arrest and recovery of the material objects from the appellant/A-2 are concerned, it cannot but be false for the simple reason that the inquest of the first deceased Bosco was done between 10.30 AM and 12.30 PM on 17.02.2008 and a reading of clauses 9 and 15 would clearly indicate that the investigator has noted in those columns that particulars were actually not known; that it is pertinent to point out that if the confessional statement of A-1 was actually recorded at about 11.30 AM as claimed by the investigator, then the names of the accused should be filled up in that columns, but not done so; that this would be indicative of the fact that all the arrest and recoveries cannot but be false and the prosecution has miserably failed to prove its case and hence, he is entitled acquittal in the hands of the Court. 7. Advancing arguments on behalf of the appellant in C.A.No.688 of 2009/A-3, the learned counsel would submit that in so far as the evidence of P.W.11 is concerned, the trial court should have rejected in toto since there are three inconsistent versions given by him, one in the statement recorded under section 161 Cr.P.C., second in chief examination and third at his cross examination; that he has stated in the cross examination that at the first time when he met all the three accused talking to the first deceased to take a car for hire and after the negotiation was made, they did not take the car and they left the place; that after ten minutes they returned, before which P.W.11 went from the place; that therefore, he could not have the knowledge whether the car was engaged by A-1 to A-3; that apart from that, in the instant case, so long all the three accused were utter strangers to P.W.8 and thus, identification parade should have been conducted; that even 161 statement of P.W.8 has reached the Court after a long time nearly 50 days; that all would go to show that the service of P.W.11 has been taken in order to serve the purpose of the prosecution; that the prosecution would claim that three items of properties were recovered from A-3 pursuant to the confession statement, namely, TVS Victor motor cycle, M.O.19, M.O.22 Yashika Camera and M.O.23 Nokia cell phone which belonged to the first deceased and so long the prosecution is unable to show the https://hcservices.ecourts.gov.in/hcservices/ nexus of these items of properties with the crime they cannot have any bearing over the case. Added further that in so far as the camera M.O.22, which, according to the prosecution, was recovered from A-3 pursuant to the confession statement; but neither P.W.6 father nor P.W.7 mother nor P.W.8 uncle has identified the property that it was actually belonged to the deceased and hence in so far as this particular property is concerned, the same cannot in any way be connected with the crime. Added further the learned counsel that these properties were recovered, according to P.W.13 the Village Administrative Officer, inside the house of A-3, but Ex.P-13, the mahazar, would indicate that they were recovered nearby the house of A-3; that all inconsistencies on the material aspects would indicate that there could not have been such a recovery at all and that the prosecution has miserably failed to prove its case and hence, the judgment of the trial court has got to be set aside and this appellant is entitled for acquittal. 8. The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 9. It is not in controversy that one dead body of John Bosco was found by P.W.1 on 17.02.2008 and pursuant to the complaint given by him to P.W.20, a case came to be registered and thereafter the investigator, P.W.26 had conducted the inquest on the dead body of John Bosco and prepared the inquest report Ex.P-31 and following the same, the dead body was subjected to post-mortem by the doctor P.W.17, who has given an opinion, as a witness before the Court and through the contents of the post-mortem certificate Ex.P-15 that he died due to cervical spine injuries sustained by him and the fact that John Basco died out of homicidal violence was never disputed by the appellants at any stage of the proceedings. 10. In so far as the second deceased namely, Madhan, was concerned, P.W.24, doctor who conducted post mortem, has given an opinion that the cause of death could not be fixed since it was in advanced stage of decomposition. According to the prosecution, it was actually found in a gunny bag which was taken out from the river and the opinion of the post mortem doctor to the effect that the death has been caused by homicidal violence. Thus, the prosecution was able to show that they have not met the natural death but it was unnatural. Hence no impediment is felt in recording so. 11. The gist of the case of the prosecution, as could be seen from the available materials, was that on 14.02.2008, all the three accused went over to Yercaud; engaged the Maruti van of a travel agency owned by P.W.8 for hire; the driver of the vehicle at that time was John Bosco; at that time John Bosco took Madhan, the 2nd deceased, in the vehicle and the vehicle was taken from that place and after causing the death of both of them by strangulation, they https://hcservices.ecourts.gov.in/hcservices/ threw the dead body of Bosco in the well in the farm house of P.W.1 and the another dead body of Madhan in the river and left the place. It is true, in order to substantiate the act of the accused, the prosecution had no direct evidence to offer, but placed before the Court the three circumstances, firstly, the last seen theory, secondly, the arrest and recovery of material objects which belonged to both the deceased from the accused appellants and thirdly, the identification of the dead body of Madhan from the river bed was pointed out by the first accused. As could be seen from the available materials, admittedly, the Maruti van bearing registration No.TN-30- L-2869 was belonging to P.W.8, the uncle of the first deceased Bosco and during the relevant time, he was the driver employed for that purpose. P.Ws.6 and 7 are the parents of the deceased Bosco. They have identified the dead body at the place when it was taken from the well which was in the farm house of P.W.1. According to P.W.8, on 14.02.2008, after informing him, John Bosco has taken M.O.14 Maruti van to drop his friend at Salem and he left the place at about 11.30 AM on that date, but he did not return for two days and hence, he was compelled to give a complaint to P.W.20, the Sub-Inspector of Police, Yercaud and pursuant to which, a case came to be registered and the investigation was taken up. Pending the same, it was P.W.1, who found a gunny bag floating in the well in his farm house, in which a dead body was found and he went to Veeranam Police Station and gave a complaint Ex.P-1 and on the strength of which, a case came to be registered under section 302 IPC and the investigation was taken up by P.W.26, the Circle Inspector of Mallur and at that time P.Ws.6 to 8 identified the dead body. In so far as the identity of dead body as that of Bosco was not disputed by the appellants. Equally, the second body Madhan which was also found in the river was also identified by his mother P.W.10. Hence, now the question that arises for consideration would be, whether the prosecution has brought forth the nexus of the crime by acceptable evidence. 12. It is true, the prosecution has no direct evidence to offer, but the prosecution has placed necessary circumstances. The Court in mindful of caution by the settled principles of law and the decisions rendered by the Apex Court that in a given case like this, where the prosecution rests on the circumstantial evidence, the prosecution must place and prove all the necessary circumstances, which would constitute a complete chain without a snap and pointing to the hypothesis that except the accused, no one had committed the offence. In the instant case, the prosecution had to its advantage the following circumstances: (a) P.W.11 is the taxi driver who has parked his vehicle in the very same place where the first deceased Bosco was also parking his car. According to P.W.11, at about 10.30 AM, all the three accused came over there; they wanted to hire a car for sight seeing and that they negotiated the hire with Bosco. This was actually watched by P.W.11 and after ten minutes, he left the place. It is true, he did https://hcservices.ecourts.gov.in/hcservices/ not actually present at the time when the car was taken by Bosco. But P.W.11 has categorically stated that at about 12.0' Clock, he found A-1 to A-3 sitting in the car driven by Bosco at the Yercaud bus stand. (b) Further, much comment was made by the learned counsel for the appellants that it is the case where the prosecution could have conducted identification parade since P.W.11 was the stranger of all the three accused. It is the settled principle of law that when the accused persons are known to the witnesses, identification parade is not necessary. Equally, in a given case, where even if the accused are third parties, identification parade is not a must in every case. The test what has got to be applied is whether the time gap was available at the time of fixing the person in the company and that would cause a dent in the memory of the witnesses. In the instant case, when P.W.11, a taxi driver and the first deceased were washing their respective vehicles nearby, all the three accused were talking with Bosco to engage his Omni van marked as M.O.14 and P.W.11 was there for a short-while and therefore, he would have noticed the appellants. Added further, he has seen all the three accused in the van of Bosco at about 12.O' clock near the Yercaud bus stand. It is pertinent to point out that Bosco, who took the car from Yercaud, did not come at all and since the car driver, who took the car with three accused did not come, P.W.8 and others were searching. It was quite natural that it would have caused dent in the memory of P.W.11, who was the taxi driver standing nearby. It is also the settled proposition of law that