IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:29.07.2009 CORAM: THE HON'BLE MR.JUSTICE M.CHOCKALINGAM AND THE HON'BLE MR.JUSTICE C.S.KARNAN CRL.A.NO.550 and 562 of 2008 Sheik Dawood Appellant in Crl.A.No.550 of 2008/A3 1.Jahir Ussain 2.Mohamed Assain Appellants in Crl.A.No.562 of 2008(A1 & A2) Vs. State by Inspector of Police Kutthalam P.S. Nagapattinam District (Cr.No.319 of 2005) ...Respondent in both Crl.As. These criminal appeals have been preferred under Section 374(2) Cr.P.C. against the conviction and sentence imposed in S.C.No.91 of 2006 dated 10.06.2008 on the file of Principal District and Sessions Judge, Nagapattinam. For Appellant in Crl.A.550/08: Mr.V.Gopinath Senior Counsel for Mr.S.Suresh For Appellant in Crl.A.562/08: Mr.Saikrishnan for M/s Sai Bharath and Ilan For Respondent in Crl.As. : Mr.N.R.Elango, Additional Public Prosecutor - - - - JUDGMENT (The judgment of the court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern the above two appeals viz., Crl.A.No.550 of 2008 by A3 and Crl.A.No.562 of 2008 by A1 and A2. 2. Challenging the judgment of the Principal District and Sessions Judge, Nagapattinam made in S.C.No.91 of 2006 whereby the appellants in both the appeals stood charged under Section 302 IPC https://hcservices.ecourts.gov.in/hcservices/ (2 counts) read with 34 IPC, tried and awarded life imprisonment under each count along with the fine of Rs.15,000/- in default to undergo two years Rigorous Imprisonment and also charged under Section 380 IPC and on trial, the appellants were found guilty and awarded three years Rigorous Imprisonment with the fine of Rs.5,000/- in default to undergo one year Rigorous Imprisonment and the sentences are ordered to run concurrently 3. The short facts necessary for the disposal of these appeals can be stated as follows: a. The deceased Fathima Gani was living with the other deceased, her mother Sabura Beevi at Kuttalam within the jurisdiction of the respondent police station. The husband of Fathima Gani was in Saudi Arabia. The appellants were all associates. Few days prior to 14.8.2005, all the accused came to Kutthalam and enquired about the house of Fathima Gani from PW5. After knowing the same, they went to the house of Fathima Gani and informed her that they were good friends of Sahabudeen , the son of PW4. They were given coffee by Fathima Beevi. After having the same, they were talking for some time and left for Kumbakonam. After reaching Kumbakonam, they informed Sahabudeen about their visit to the house of Fathima Gani. Sahabudeen told that they have lot of jewels and money and even if anybody steals the money and jewels, they does not know about it. Next day, all the three accused have planned for stealing the jewels and money of Fathima Gani. b. Pursuant to the plan, on 14.8.2005 at about 12 noon, all the accused went in a motor bike and reached Kutthalam at about 1.15 hours and they went to the house of Fathima Gani. After receiving them, Sabura Beevi was talking with them and Fathima Gani went inside for preparation of Tea and at that time, the first accused closed the door, the second accused closed the mouth of Sabura Beevi with a saree and on seeing this, Fathima Gani was fainted, then the first accused tied the hands of Fathima Gani with a saree and thereafter the first accused strangulated the said Fathima Beevi with the use of saree and due to which both of them died instantaneously. Immediately, the first accused broke open the Bureau and other two accused took all the jewels and sums of money in a carry bag. When they came out of the house, Pws.10 and 12 saw all the three accused coming from the house . c. On the same day at about 6 p.m. while crossing the house of Fathima Gani, P.W.8. saw that the house was in dark and immediately she opened the door and got inside the house and found the dead bodies of Fathima Gani and Sabura Beevi. She then informed PW.11, the medical shop owner, who in turn, called Pws.6 and 7. On hearing the same, PW.9,the Village Assistant went to the house of Fathima Gani and found the dead bodies and he intimated to PW1, the https://hcservices.ecourts.gov.in/hcservices/ Village Administrative officer. On information, the Village Administrative officer on the same day at about 7 p.m went to the house of the deceased and found the dead bodies, proceeded to the respondent police station where P.W.23 Head Constable was on duty at about 9 p.m and gave a complaint to him which is marked as Ex.P.1, on the strength of which, a case came to the registered in Crime No.319/2005 under Section 302 IPC. Express FIR Ex.P.15 despatched to Court. d. P.W.25 took up the investigation, went to the place of occurrence and made an inspection in the presence of the witnesses. He prepared observation mahazar Ex.P.3 and drew Ex.P.16, rough sketch. Thereafter he recovered all the material objects available. On requisition, P.W.19 took the two finger prints available on the bureau which are marked as B1 and B2.Then, he conducted inquest on the dead bodies of the deceased in the presence of the witnesses and panchayatdars and prepared inquest reports Exs.P.18 and 19 respectively. Then, the dead bodies were sent for the purpose of post-mortem. (e) Following the inquest made, P.W.17 the Doctor attached to the Government Hospital, Mayiladuthurai, on receipt of the requisition, had conducted postmortem on the dead body of Fathima Gani and issued Ex.P.5, the post-mortem certificate. He has also sent the Thyroid & Hyoid Bones and Viscera for chemical analysis and the reports are Ex.P.6 and 7 respectively and the final postmortem report after getting the opinion of the doctor is Ex.P.8 and the doctor has opined that the deceased Fathima Gani died due to Asphyxia by manual strangulation with the cloth. f. P.W.18 the Doctor attached to the Government Hospital, Mayiladuthurai, on receipt of the requisition, had conducted postmortem on the dead body of Sabura Beevi and issued Ex.P.10, the post-mortem certificate. He has also sent the Thyroid & Hyoid Bones and Viscera for chemical analysis and the reports are Exs.P.11 and 12 respectively, and the final postmortem report after getting the opinion of the doctor is Ex.P.13 and the doctor has opined that the deceased Sabura Beevi died due to Asphyxia by smothering. g. Pending investigation, P.W.25 examined one witness Syed Yusub on 16.8.2005 and on 21.10.2005 PW2 appeared before the police station and gave a complaint which is marked as Ex.P.2 and on the basis of which, the section has been altered under Sections 302 IPC and 380 IPC and the Express FIR EX.P.21 despatched to Court . h. Following the same, A1 and A3 were arrested on 31.12.2005. They came forward to give confession statement https://hcservices.ecourts.gov.in/hcservices/ voluntarily and the same was recorded in the presence of witnesses. The admissible part of the said confession statement of A1 is marked as Ex.P.22. Pursuant to the confession statement of the first accused, he produced M.O.1, Chain, M.O.20, Motor bike and they were recovered under the cover of Mahazar Ex.P.23. On 3.00 p.m. On the same day, the third accused gave a confession statement voluntarily and the same was recorded in the presence of witnesses. The admissible part of the said confession statement of A3 is marked as Ex.P.23. Pursuant to which, he produced M.O.21, Gold Bangle under the cover of Mahazar Ex.P.25. They were sent for judicial remand. On the confession made by A1 an A3, the second accused was arrested and the confession statement of A2 was recorded in the presence of witnesses and the admissible part is marked as EX.P.26 i. Pursuant to the confession of A2, M.Os.2( series), a pair of gold bangles was recovered by P.W.25 under the cover of Mahazar EX.P.27. He also identified P.W.21, one Marimuthu and recovered M.Os.22 and 23 Gold Necklaces and they were recovered under the cover of Mahazar Ex.P.28. The first accused identified PW.20, Latha and recovered M.O.3 under the cover of Mahzar EX.P.29. The first accused also identified one Mohamed Arif and recovered M.O.24 series, Rs.15,000/- under the cover of Mahazar EX.P.30. j. Pending investigation, P.W.26,Inspector of police, took up further investigation and 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 levelled against the accused, the prosecution examined 26 witnesses and also relied on 30 exhibits and 24 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. The accused flatly denied the same as false. No defence witness was examined. The trial court, after hearing the arguments advanced and scrutinizing the materials available, took the view that the prosecution had proved the case beyond reasonable doubt and awarded punishment as referred to above. Hence this appeal has arisen at the instance of appellants herein. 5. Advancing arguments on behalf of the appellants, learned Senior Counsel would submit that in the instant case, the prosecution came out with a specific case that the occurrence had taken place on 14.8.2005 at about 1.15 hours, that when both the deceased Sabura Beevi and Fathima Gani, her daughter were inside the house, A1 to A3 entered into the house in a friendly manner and thereafter the first accused closed the door and caused their death and robbed jewels and cash. In order to substantiate the charges https://hcservices.ecourts.gov.in/hcservices/ levelled against the appellants, the prosecution had no direct evidence to offer. It has relied upon the evidence of Pws.10 and 12 to state that immediately after the occurrence was over, all the three accused came out of the house of Fathima Gani, but, both the witnesses have turned hostile and thus the prosecution rested its case only on recovery pursuant to the confession alleged to have been made by A1 and A3. It is pertinent to point out that the occurrence had taken place on 14.8.2005, but A1 and A3 were arrested only on 31.12.2005, only . In order to identify the jewels, PW2 was examined. According to PW2, he was able to identify only two items of properties and PW.2 has categorically admitted even at the time of chief examination that he was taken to police station within a week from the date of occurrence and he was able to identify the jewels. The Investigator would claim that the accused were arrested on 31.12.2005, i.e. after a period of 4 months. Apart from that, PW2 was able to identify few items of jewels. Further he deposed that he was able to identify the jewels with the help of his brother and not independently. All would go to show that the jewels could not have been identified independently by PW2. Added further, in the instant case, insofar as recovery of the jewels are concerned, there is a material discrepancy in the evidence of investigating officer and the prosecution case. As per the confession statement made by A3, M.O.2 was recovered from him. On the contrary, the investigator has stated that MO.2 was recovered from A2 and not from A3 and that would cast doubt and thus in the instant case, though the prosecution rested its case only on recovery, it did not help the prosecution case. Under such circumstances, it can be stated that the prosecution had no direct or indirect evidence to offer. Under these circumstances, the prosecution has miserably failed to prove the necessary circumstances pointing to the guilt of the accused. The trial Court has taken an erroneous view and hence it is a fit case where the judgment of the trial Court has got to be set aside. 6. The court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 7. It is not in controversy that the dead bodies of one Fathima Gani and Sabura Beevi were found in the house where they were residing within the jurisdiction of respondent police station. A case was originally registered by the respondent police station under Section 302 IPC. Following the inquest made by the Investigating officer, on preparation of inquest report, the dead bodies were subjected to postmortem by Pws.17 and 18, doctors respectively who have given categorical opinion that the deceased died of homicidal violence. This fact was never disputed by the appellants before the trial Court and hence the trial court has recorded so and rightly too. https://hcservices.ecourts.gov.in/hcservices/ 8. In order to substantiate the charges levelled against the appellants that they have committed the murder of two ladies and robbed the jewels and cash from their house, the prosecution had no direct evidence to offer. It relied upon strong circumstances viz., the evidence of Pws.10 and 12. According to the prosecution, on 14.8.2005, immediately after the occurrence was over, all the three accused were coming out of the house which was witnessed by Pws.10 and 12, but Pws.10 and 12 unfortunately turned hostile and hence the prosecution had no evidence to offer, except in relying upon the recovery of jewels and cash, which according to the prosecution, from the house of deceased, immediately after the occurrence which had taken place on 14.8.2005. But the recovery from A1 and A3 was made pursuant to the confession only after a period of nearly about four months i.e. on 31.12.2005. Now, at this juncture, it is pertinent to note that even though the investigator claimed that the jewels which belonged to the deceased were recovered pursuant to the confession statement of A1 and A3, this fact has not been proved to the satisfaction of law. In the instant case, it was the specific case of the prosecution that A1 and A3 were arrested on 31.12.2005 and on the confession of A1 and A3, A2 was arrested and the admissible part of confession of A1 is marked as Ex.P.22 and M.O.1 chain and M.O.20 the motor-bike were recovered from him under the cover of mahazar Ex.P.23. Equally, on the same day, A3 gave confession statement and the admissible part is marked as Ex.P.24 and pursuant to which M.O.21, Gold Bangle under the cover of Mahazar EX.P.25. At this juncture, it is pertinent to point out that the investigating officer would claim that pursuant to the confession statement, he recovered jewels and money which were recovered from A1 to A3 and the investigator has stated that M.O.2 was recovered from A2, but the prosecution case was that it was actually recovered from A3, which would cast doubt. Equally two independent witnesses Pws.21 and 20 were examined to whom the jewels were handed over, but as per the the prosecution, it was found to be the contraband. Added further, according to the prosecution, P.W.2 has identified the jewels, but the occurrence had taken place on 14.8.2005 and A1 to A3 were arrested on 31.8.2005 following the recovery of jewels. But contrarily, PW2 has categorically deposed that she has identified only few items of jewels and not all items and those items were actually identified by the brother of PW2 and he was taken to the police station within a week from the date of occurrence and the jewels were also shown to him. Thus, it would be indicative of the fact that when the prosecution would claim that after four months from the time of occurrence, A1 and A3 were arrested and jewels were recovered, but from the evidence of PW2, jewels were shown to him within a period of one week which would be indicative of the fact that he had no knowledge of any of the fact which were put forward by the prosecution. 9. Added circumstance was that at the time of inquest, https://hcservices.ecourts.gov.in/hcservices/ number of jewels were found on the dead bodies of Fathima Gani and Subura Beevi. As rightly pointed out by the learned counsel for the appellants, it casts doubt when the persons were inside, they ought to have robbed jewels and cash and it was not possible for them to leave all the jewels which were worn by the ladies at the time of occurrence. Though the prosecution rested its case on the circumstantial evidence, it was unable to show or place necessary circumstances which was pointing to the nexus of the accused with the crime. Under such circumstances, the Court has no option than to record the finding that the prosecution had not proved the guilt of the accused beyond reasonable doubt. The trial court has taken an erroneous view without adducing proper reasons. Therefore, the judgment of the trial court has got to be set aside and accordingly ti is set aside. 10. In the result, the criminal appeals are allowed setting aside the judgment of conviction and sentence imposed on the appellants by the court below. The appellants/accused 1 to 3 are acquitted of the charges levelled against them. They are directed to be released forthwith, unless their presence is required in connection with any other case. The fine amount, if, paid, shall be refunded to them. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar VJY To 1.The Principal District and Sessions Judge, Nagapattinam District. 2.-do- thro' The Judicial Magistrate No.1, Mayiladuthurai. 3.-do- thro' The Chief Judicial Magistrate, Nagapattinam. https://hcservices.ecourts.gov.in/hcservices/ 4.The Inspector of Police, Kutthalam Police Station Nagapattinam District. 5.The Additional Public Prosecutor, High Court, Madras. 6.The Superintendent, Central Prison,Cuddalore. 7.The District Collector, Nagapattinam. 8.The Director General of Police, Mylapore, Chennai. 9.The Public Prosecutor, High Court,Madras. +1cc to Mr.S.Suresh, Advocate Sr 32686 BV(CO) km/18.8. CRL.A.NO.550 and 562 OF 2008 https://hcservices.ecourts.gov.in/hcservices/