BAIL SLIP The Appellant/A1 herein was enlarged on Bail by Order dated 12.6.2006 and made in Crl. MP. No.2945/2006 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 11.06.2008 CORAM THE HONOURABLE MR. JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR. JUSTICE K.N.BASHA CRL.A.No.422 OF 2006 Venkatesh .. Appellant/A-1 Vs State by the Inspector of Police Thazhi Police Station Krishnagiri, Dharmapuri District. [Crime No.2/2003] .. Respondent/Complainant Appeal filed under section 374[2] Cr.P.C., against the Judgment in SC.No.189/2003 on the file of the learned I Additional Sessions Judge, District and Sessions Court, Krishnagiri, Dharmapuri District dated 21.07.2004. For Appellant : Mr.Philip Ravindran Jesudoss For Respondent : Mr.N.R.Elango,APP JUDGMENT [Judgment of the Court was delivered by K.N.BASHA, J.] The challenge in this appeal is to the Judgment of the learned I Additional Sessions Judge, Dharmapuri District dated 21.07.2004 made in S.C.No.189/2003 convicting the appellant who has been arrayed as A-1 under section 302 IPC and sentencing him to life imprisonment and also imposing a fine of Rs.3,000/- in default one year rigorous imprisonment. https://hcservices.ecourts.gov.in/hcservices/ 2.There are two accused in this case, viz., A-1 and A-2 and A-2 has been acquitted by the learned Trial Judge as the learned Judge disbelieved the prosecution case in respect of A-2 who has been charged for the offence under section 302 read with 109 IPC. 3.The occurrence in this case is shown to have taken place on 01.01.2003 at 5.00 a.m. at the field of Chikkanna @ Muniyappa at Sardana Village as the appellant/A-1 said to have attacked the deceased Muniraj who was sleeping at the field with M.O.6-Mochu Knife on his forehead and several parts of the body and the deceased died instantaneously. The second accused/A-2 is the wife of the deceased and she has been charged for the offence under section 302 read with 109 IPC as she was having illicit intimacy with A-1, the appellant herein, which was questioned by the deceased. 4.The prosecution in order to bring home the charges against the accused examined P.Ws.1 to 7, filed Exs.P.1 to 14 besides marking M.Os.1 to 6. 5.The accused faced the trial under the following background:- [a] A-2, Padma, is the wife of the deceased and A-1, Venkatesh, is the paramour of A-2. They were residing in a village called Sarandapalli. P.W.3 is the father of the deceased. P.W.3 had stated that there was illicit intimacy between A-1 and A-2, the wife of the deceased which was known to the entire villagers. While the deceased questioned the conduct of A-1, he was threatened by A-1. Prior to the occurrence A-1 took the deceased as well as his wife, A-2 to Sarandapalli village for a Mariamman temple festival and he has also given his red colour shirt to the deceased which was worn by the deceased at that time. After the festival, only A-1 and A-2 returned back to the village and while P.W.1 questioned about the whereabouts of the deceased they told him that he has gone for his work. Twenty days thereafter, P.W.3 took A-2, the wife of the deceased and left her in her parental house. [b] P.W.1 who is the Village Panchayat Board President was informed at the early morning by one Mallammal on 01.01.2003 to the effect that a male body was lying in her field. Thereafter, P.W.1 along with others went and saw the dead body in the field of Mallammal. But they were not able to identify the dead body. They saw the deceased wearing M.O.1-red colour shirt, M.O.2-Sweater and M.O.3-Pant, but they were not able to fix the body of the deceased. P.W.1 thereafter went and informed about the body of a male to P.W.2, the Village Administrative Officer of that village. P.W.2 also went to the scene and found the dead body. But he was not able to identify as to whom the body belongs to. P.W.2 found two cut injuries on the head and other parts of the body. He has also found the deceased wearing M.O.1-red colour shirt, M.O.2-Sweater and M.O.3- https://hcservices.ecourts.gov.in/hcservices/ Pant. [c] P.W.2 thereafter went to Thazhi Police Station and gave a report, Ex.P.1 to P.W.6, the Sub-Inspector of Police at 2.00 p.m. on 02.01.2003. P.W.6 registered a case in Crime No.2/2003 under section 302 IPC. He has sent the message through phone to the Inspector of Police. Ex.P.8 is the Express First Information Report [FIR]. [d] P.W.7, the Inspector of Police received the FIR on 02.01.2003 at 3.00 p.m. and took up investigation. He went to the scene of occurrence and prepared Observation Mahazar-Ex.P.2 and Rough Sketch-Ex.P.9 in the presence of witnesses. He examined the witnesses Chikkanna, Maadesh, Muninanjappa, Ramakrishnan and others. He held inquest on the dead body of the deceased from 4.00 p.m. to 4.55 p.m. Ex.P.10 is the Inquest Report. He sent the body for postmortem. [e] The doctor, P.W.4, attached to the Government Hospital, Denkanikottai, conducted the postmortem on the dead body of the deceased on 03.01.2003 at 12 Noon. He found the following injuries:- EXTERNAL INJURIES:- 1]Lacerated injury 5x1 cm above right eyebrow. 2]Lacerated injury 6 x 1cm right forehead. 3]Lacerated injury 5 x 1cm over right temporal area. 4]Lacerated injury 10 x 2cm brain deep with fracture of right temporal bone through which brain comes out. 5]Right temporal and occipital lacerated injury 10 x 2cm [n.c] with brain comes out. 6]Lacerated injury 10 x 5cm over right jaws, chin with fracture right mandible. 7]2 abrasions 1 x 1cm over left shoulder. 8]Lacerated injury 7 x 4cm dorsum of left hand. 9]Lacerated injury 3 x 1cm with parietal disarticulation at 5x5 cm left middle finger. 10]Lacerated injury 10 x 2cm over lateral aspect of left hand extending into left little finger. 11]Lacerated injury 5 x3cm over back of right https://hcservices.ecourts.gov.in/hcservices/ wrist transcesive [nc] of radius. 12]Lacerated injury 1 x 1cm right wrist in finger." Ex.P.7 is the Postmortem Certificate wherein the doctor has opined that the deceased would appear to have died of shock and haemorrhage due to multiple fractures and injuries to vital organ Brain and would have died about 48-72 hours prior to postmortem. [f] Meanwhile P.W.3, the father of the deceased went to Thazhi Police Station as his son, the deceased did not return even after a month and showed the photographs of the deceased. The police also showed the photographs of the body taken from the scene and P.W.3 identified the body. [g] P.W.7 in continuation of his investigation arrested A-1 and A-2 on 09.02.2003 at 5.30 p.m. In pursuance of the admissible portion of the confession of the accused under Ex.P.4, P.W.7 recovered M.O.6-Mochu knife. He also examined the other witnesses including the photographer and P.W.4, the doctor who has conducted the postmortem and received the Postmortem Certificate under Ex.P.7 and the Chemical Examination report, Ex.P.13 and Ex.P.14-Serologist Report and after completion of the investigation, P.W.7 filed charge sheet against the accused on 30.03.2003 under section 302 and 109 read with 302 IPC. 6. When the accused were questioned under section 313 Cr.P.C., in respect of the incriminating circumstances appearing against them they have come forward with the version of total denial. They have not chosen to examine any witnesses on their side. 7. Mr.Philip Ravindran Jesudoss, learned counsel for the appellant contended that the entire prosecution case rests on the circumstantial evidence and the prosecution has not adduced any clinching circumstances implicating the accused and there are several missing links and the chain of circumstances is not completed. It is contended that even the prosecution has not properly identified and proved the body of the deceased. It is contended that the police have shown the photographs only to P.W.3, the father of the deceased and those photographs have not been marked before the Court. The learned counsel further submitted that even P.W.3 the father of the deceased has not specified and fixed the exact date and time as to when A-1 and A-2 went along with the deceased to A-1's mother-in- law's place for Mariamman temple festival. It is contended that the prosecution also miserably failed to prove the motive put forward against the accused and there is no evidence available on record to establish the allegation of illicit intimacy between A-1 and A-2, the wife of the deceased except the solitary testimony of P.W.3, the father of the deceased. https://hcservices.ecourts.gov.in/hcservices/ 8. Heard the learned Additional Public Prosecutor on the submissions made by the learned counsel for the appellant. 9. 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. 10. The entire prosecution case rests on the circumstantial evidence. It is well settled that in a case of circumstantial evidence the circumstances from which the conclusion of guilt is to be drawn should be fully proved and the circumstances must be conclusive in nature to connect the accused with the crime. At the outset we are constrained to state, if the materials available on record are tested with the touchstone of the principle of law laid down by the Apex Court regarding the circumstantial evidence, the prosecution has not produced any incriminating circumstances implicating the accused for the alleged offence. It is seen that even the body of the deceased was not identified or proved as that of the deceased Muniraj. The fact remains that P.W.3, the father of the deceased was only shown the photographs by the police and it is claimed by P.W.3 that he has identified the deceased from the photographs of the dead body. But, unfortunately, the prosecution has not even produced those photographs and marked the same before the Court. As far as P.W.1 who has seen the body and thereafter informed P.W.2, the Village Administrative Officer, is concerned, both of them categorically stated that they were not able to fix the identity of the dead body. Therefore, the body which was found and thereafter buried after postmortem cannot be considered to be the body of the deceased Muniraj and this is a very serious infirmity in this case. 11. As far as the Last Seen Theory is concerned, we are left with the sole and solitary testimony of P.W.3, who is none else than the father of the deceased. The fact remains that P.W.3 is not able to fix the date and time on which A-1 took A-2 and the deceased to his mother-in-law's place for Mariamman temple festival. Only A-1 and A-2 returned back and on enquiry, they have informed him that the deceased left for his work. But, curiously, P.W.3 has not raised his little finger to search for the deceased and simply he has taken A-2 and left her in her parental house after twenty days. Only after a month, P.W.3 claimed to have gone to the Police Station and informed the police about the missing of his son. But the fact remains that P.W.3 has not given any complaint or any report recorded from P.W.3 and produced before the Court by the police. Therefore, we are of the considered view that even the last seen theory is also not established beyond reasonable doubt. 12. The yet another disturbing feature to be borne in mind in https://hcservices.ecourts.gov.in/hcservices/ this case is that there is absolutely no explanation as to how the police traced the accused, viz., A-1 and A-2 in respect of the alleged offence in this case. P.W.2 also categorically stated that he is not aware as to who has identified the accused to the police. The prosecution also miserably failed to prove the arrest and recovery of M.O.6-Mochu Knife. M.O.1-red colour shirt, M.O.2-Sweater and M.O.3-Pant, said to have been worn by the deceased also not identified by any witnesses as the same were worn by the deceased. Therefore, for the aforesaid reasons we are of the considered view that the prosecution has miserably failed to put forward any clinching and incriminating circumstances leading to the one and only inference to the effect that the appellant is the assailant of the deceased. 13. The Hon'ble Apex Court has held in KRISHNAN VS. STATE REPRESENTED BY INSPECTOR OF POLICE reported in 2008 [4] SUPREME 25 that:- "In the absence of any cogent, believable and satisfactory evidence, an accused cannot be held guilty of murder only on hypothesis and suspicion". 14.In view of the above said principle of law laid down by the Hon'ble Apex Court and for the aforesaid reasons, the conviction and sentence imposed on the appellant is unsustainable in law. Accordingly, the conviction and sentence passed in the judgment dated 21.07.2004 by the learned I Additional Sessions Judge, Dharmapuri District, in S.C.No.189/2003 is set aside and the criminal appeal is allowed. 15.It is reported that the appellant/A-1 is on bail. Hence,the bail bond, if any, executed by him, shall stand terminated. Sd/- Assistant Registrar /true copy/ Sub Assistant Registrar ap To 1. The I Additional Sessions Judge District and Sessions Court, Krishnagiri, Dharmapuri District. 2. The Inspector of Police Thazhi Police Station Krishnagiri, Dharmapuri District. https://hcservices.ecourts.gov.in/hcservices/ 3. The Public Prosecutor High Court, Chennai. 4. The Judicial Magistrate, Thenkanikottak. 5. -do-Thro The Chief Judicial Magistrate, Dharmapuri at Krishnagiri. 6. The Principal Sessions Judge, Dharmapuri at Krishnagiri. 7. The Superintendent, Central prison, Vellore. 8. The Commissioner of Police Chennai. + 1 cc to Mr.Philip Ravindran Jesudoss Advocate SR No.28295 Crl.A.No.422/2006 SSV(CO) JJM(26.06.08) https://hcservices.ecourts.gov.in/hcservices/