BAIL SLIP The appellant/Accused No.2, viz. Rajesh, son of Subramani, was released on Bail, in and order of this court dated 16.11.2006 and made in Crl.M.P.No.1/2006 in Crl.Appeal No.912/2006 on the file of this court. 2. The appellant/Accused No.3 viz. Logu @ Loganathan, S/O.Kesavan, was released on Bail, in and order of this court dated 1.12.2006 and made in Crl.M.P.No.1/2006 in Crl.Appeal No.950/2006 on the file of this court. 3. The appellant/Accused No.1 viz. Sathish @ Sathish Basha S/O. Ahamed Basha, was released on Bail, in and order of this court dated 8.1.2007 and made in Crl.M.P.No.1/06 in Crl.Appeal.No.1053/2006 on the file of this court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.10.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NOS.912, 950 AND 1053 OF 2006 Rajesh .. Appellant in C.A.No.912 of 2006/Accused No.2 Logu @ Loganathan .. Appellant in C.A.No.950 of 2006/Accused No.3 Sathik @ Shathik Basha .. Appellant in C.A.No.1053 of 2006/Accused No.1 Vs. State represented by Inspector of Police, Vishnukanchi Police Station, Kancheepuram District. Crime No.346/2005 .. Respondent/Complainant These criminal appeals have been preferred under Section 374 Cr.P.C. against the judgment of conviction and sentence passed by the learned Additional District Judge, Fast Track Court No.2, Kancheepuram made in S.C.No.100 of 2006, dated 4.9.2006. For Appellants : Mr.S.Shanmugavelayutham, SC for Mr.C.P.Patabiraman in C.A.No.912 of 2006 https://hcservices.ecourts.gov.in/hcservices/ Mr.G.M.Shankar in C.A.No.950 of 2006 Mr.T.Sathiyamoorthy in C.A.No.1053 of 2006 For Respondent : Mr.P.Kumaresan, APP COMMON JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) This judgment shall govern these three appeals, namely Criminal Appeal Nos.912, 950 and 1053 of 2006. The first one is filed by A-2, the second one is filed by A-3 and the third one is filed by A-1. 2.All these appeals have arisen from the judgment of the Additional District Sessions Division, Fast Track Court No.II, Kancheepuram made in S.C.No.100 of 2006, whereby these appellants stood charged as follows: A-1 to A-3 - S.302 r/w S.34 IPC A-3 - S.201 IPC A-1 and A-2 - S.201 r/w S.34 IPC On trial, all the three accused were found guilty under Section 302 r/w S.34 IPC and were sentenced to undergo life imprisonment each and also to pay a fine of Rs.1000/- each, in default to undergo 6 months S.I. and they were acquitted of the other charge levelled against them. 3.The short facts necessary for the disposal of these appeals can be stated thus: a)P.W.1 is the wife of the deceased Sankar. The deceased was a vegetable vendor and he owned a car, which was hired to the known persons. He took his car to Madras on 15.7.2005 for a customer, wherefrom he gave a phone call to his wife asking her to get prepared to go to Samayapuram next morning. Accordingly, she was waiting with the children. On 16.7.2005 at about 4.30 a.m., when she was in the house, she was informed by two persons that a person was found in a pool of blood near a car and they verified the car number. She immediately understood that it was her husband and it was their car. Immediately, she informed her relatives, rushed to the spot and found her husband in a pool of blood. The deceased was taken to the Government Hospital, Kancheepuram, where the deceased was declared dead. b)At about 11.00 a.m., P.W.1 proceeded to the respondent police station, where P.W.7, the Sub Inspector of Police was on duty, to whom she gave Ex.P.1, the complaint, on the strength of which a case came to be registered in Crime No.346 of 2005 under Section 302 IPC. Ex.P.8, the F.I.R. was despatched to the Court. c)P.W.13, the Inspector of Police, on receipt of the copy of the F.I.R., took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.2, the observation mahazar and Ex.P.15, the rough sketch. He recovered the bloodstained earth and sample earth under a cover of mahazar. Then, he proceeded to the Government Hospital, Kancheepuram and conducted inquest https://hcservices.ecourts.gov.in/hcservices/ on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.16, the inquest report. Following the same, the dead body was sent to the hospital for the purpose of autopsy. d)P.W.5, the Doctor attached to the Government Hospital, Kancheepuram, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and has issued Ex.P.6, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of injury to vital organ, namely Brain. e)P.W.13 proceeded with the investigation and he examined the witnesses and recorded their statements. P.W.10, Mani appeared before him on 19.7.2005 and gave statement. Since P.W.13 had to go to the Supreme Court, the investigation was entrusted to P.W.12, the Inspector of Police and from 30.07.2005, he conducted investigation. From the statement of P.W.10, the Investigator came to know the involvement of A- 1. Accordingly, A-1 was arrested on 30.7.2005 and he voluntarily gave confessional statement in the presence of the witnesses and the same was recorded. The admissible part of the same was marked as Ex.P.10. Pursuant to the same, he produced M.O.5, Cycle Rickshaw break rod, which was recovered under a cover of mahazar. On information given by A-1, A-2 was also arrested at about 4.00 p.m. A-3 was also arrested and he gave confessional statement voluntarily, the admissible part of which was marked as Ex.P.11. Following the same, A-3 produced an auto rickshaw bearing registration No.TN 21 C 8965 under a cover of mahazar. All the accused were sent for judicial remand. f)P.W.13 again took charge and he further proceeded with the investigation. He examined the other witnesses and recorded their statements. All the material objects recovered from the place of occurrence, from the dead body of the deceased and the M.Os recovered from the accused were subjected to chemical analysis by the Forensic Science Department, which resulted in two reports, namely Ex.P.18, the Serologist's report and Ex.P.19, the Physiology Report. On completion of the investigation, the Investigating Officer has 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 13 witnesses and relied on 20 exhibits and also 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 arguments advanced and looking into the materials available, took the view that the prosecution has proved the case beyond reasonable doubt and found the appellants guilty under Section 302 r/w S.34 IPC and awarded punishment as referred to above, which is the subject matter of challenge before this court. 5.Advancing arguments on behalf of the appellants, the learned counsel would submit that the case of the prosecution is that the husband of P.W.1, namely Sankar, was done to death in an incident that https://hcservices.ecourts.gov.in/hcservices/ took place at about 1.30 a.m. on 16.7.2005 at New Street and all the three accused/appellants were involved in the crime; that in order to substantiate their involvement, the prosecution had no eyewitness at all; that it rested its case on circumstantial evidence; that the circumstances relied on by the prosecution were two; that firstly, the statement of P.W.10, the tea shopwala; that according to him, he has last seen all the accused in the company of the deceased; and that secondly, the recovery of M.O.5, Cycle Rickshaw break rod from A-1 pursuant to the confessional statement and also M.O.6, Auto rickshaw from A-3 pursuant to the confessional statement. 6.The learned counsel would further add that the evidence of P.W.10 is highly unreliable and it is uncreditworthy at all; that at one stage, he would say that he is working in the tea stall and at the other stage, he would say that he was the owner of the tea stall; that according to him, at about 1.30 a.m., when he was just crossing the place of occurrence, he saw A-1 to A-3 in the company of the deceased and they were also quarreling and thereafter, he left the place; that at about 5.15 a.m., when he was returning, he saw the dead body, but he has not informed to anybody; that he was examined by the police on 19.7.2005; that the investigating Agency claimed that his statement was recorded on 19.7.2005 and it has reached the court on 17.10.2005 and thus, there was a delay of nearly 3 months; that no explanation was forthcoming from the prosecution; that had it been true that P.W.10 had seen that such a quarrel was going on and subsequently, the dead body was found, he would have immediately informed the same to the police or anybody, but he has not done so, but he remained silent; that this would be indicative of the fact that he could not have seen the accused in the company of the deceased at all; that the delay in sending the statement to the court coupled with the said fact would strengthen the situation and thus, the evidence of P.W.10 should have been rejected. 7.The learned counsel would further add that so far as the recovery of M.O.5, Cycle Rickshaw break rod is concerned, it is highly unbelievable; that the evidence in this regard remained shaky; that on arrest, A-1 gave confessional statement, pursuant to which, it was recovered; that the statement of P.W.10 was only cooked up after the arrest of A-1; that so far as A-2 and A-3 are concerned, even P.W.10 has stated that he did not know them earlier nor their physical features nor their names; that no identification parade was conducted in respect of A-2 and A-3; that in the instant case, there is no evidence as to the involvement of A-2 and A-3; that even P.W.10 has stated that three persons were standing, out of whom he knew only A-1 and not two others and under these circumstances, so far as A-2 and A-3 are concerned, the case was bereft of any evidence worth mentioning; that the trial court has not appreciated any one of the factual positions put forth, but has entered into conviction and sentence and hence the judgment of the trial court has got to be set aside. 8.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. https://hcservices.ecourts.gov.in/hcservices/ 9.It is not in controversy that the husband of P.W.1, namely Sankar, was done to death in an incident that took place at about 1.30 a.m. on 16.7.2005. Following the inquest made by P.W.13, the Investigating Officer, on the dead body of the deceased and the preparation of inquest report, the dead body was subjected to post-mortem by P.W.5, the Doctor, who has given his categorical opinion as a witness before the court and in Ex.P.6, the post-mortem certificate that the deceased would appear to have died of injury to vital organ. The fact that the deceased died out of homicidal violence was not disputed by the appellant and hence no impediment is felt by the court in recording so. 10.True it is, in the instant case, the prosecution had no direct evidence as to the factual position that at about 1.30 a.m. on 16.7.2005, Sankar was done to death by the attack made by A-1, in which A-2 and A-3 also formed company. But, the prosecution relied on circumstantial evidence. The court is mindful of caution made by the settled principles of law that before accepting the circumstantial evidence to sustain conviction, the circumstances must be cogent and must make a complete chain without a snap, pointing to the hypotheses that except the accused no one could have committed the offence. Even after applying the said test, the court is thoroughly satisfied that the prosecution has proved the case beyond doubt so far as A-1 is concerned. 11.In the instant case, according to the prosecution, the occurrence has taken place on 16.7.2005 at about 1.30 a.m. According to P.W.10, he was actually working in a tea stall and he used to go to shop to get tea during night hours and since in their shop, they could not light the oven during night hours, he used to go to the other shop and get tea and on the date of occurrence, when he was just crossing the place of occurrence, he saw three persons, including A-1, quarrelling with the deceased and he left from the place and thereafter, when he returned, he saw the dead body at about 5.15 a.m. and he came to know that it was a case of murder. His statement was recorded by the police on 19.7.2005. At this juncture, it is pertinent to point out that the occurrence has taken place on 16.7.2005. It remains to be stated that P.W.10 was not an eyewitness to the occurrence. When he was crossing the place of occurrence, he saw three persons including A-1, quarrelling with the deceased. It is to be stated that A-1 was also residing in the same street and therefore, it is quite natural that when quarrel was going, he did not interfere and left the place also and further, he did not entertain any suspicion and there was no occasion for him to report to the police or to speak with anybody or to inform to the house of the deceased, but he left the place. 12.At the time when the case was registered, who were the assailants remained unknown. Since it was a case of murder and it was also affirmed through the post-mortem certificate, the case was registered and the investigation was on. On enquiry, P.W.10 gave such statement as to the involvement of A-1 and two others. From the available materials, it could be seen that further investigation was handed over to P.W.12, since P.W.13 had to go to the Supreme Court and after some time, he returned and took up the investigation. In the instant case, the statement of P.W.10 reached the court only in the month of October, https://hcservices.ecourts.gov.in/hcservices/ 2005. This court is unable to agree with the contentions put forth by the learned counsel for the appellants as to the delay for the reasons that P.W.10 was not an eyewitness, but he witnessed the quarrel and he has not even found that the accused were armed with any weapon and it was only quarrel and therefore, he did not mind the same and left the place. Thus, only on information given by P.W.10, the investigation was done in the right line and A-1 was fixed and he gave confessional statement, pursuant to which the weapon of crime was also recovered in the presence of the witnesses. The witnesses examined for the purpose of arrest, confessional statement and recovery remained unshaken. Therefore, this part of the evidence adduced by the prosecution would be pointing to the nexus of the first accused with the crime. The evidence of P.W.10 relied on by the prosecution as to the last seen theory and also the arrest of A-1, confessional statement and the recovery of M.O.5, cycle rickshaw break rod would be sufficient to point out the guilt of A-1. Hence the contentions put forth by the learned counsel for the appellants in respect of A-1 have got to be rejected. 13.So far as A-2 and A-3 are concerned, the only evidence that was available for the prosecution was P.W.10. Even P.W.10 has categorically pointed out that he saw two other persons along with A-1, but he did not mention their names or physical features. Not even identification parade was conducted subsequently. Hence it could be well stated that there is neither direct evidence nor circumstantial evidence, pointing to the participation or involvement of A-2 and A-3 in the crime. Under these circumstances, the benefit of doubt has got to be given to A-2 and A-3 and hence A-2 and A-3 are entitled for acquittal. From the marshalling of evidence, it would be quite clear that the guilt of A-1 has been brought forth and hence he has got to be convicted under Section 302 IPC. 14.Accordingly, the conviction under Section 302 r/w S.34 IPC and the sentence of life imprisonment in respect of A-1 are modified and instead, A-1 is convicted under Section 302 IPC and sentenced to undergo life imprisonment. The fine amount awarded by the trial court in respect of A-1 will hold good. The judgment of conviction and sentence in respect of A-2 and A-3 is set aside and A-2 and A-3 are acquitted of the charges levelled against them. The bail bonds executed by A-2 and A-3 shall stand terminated and the fine amount, if any paid by them, shall be refunded to them. It is reported that A-1 is on bail and hence the concerned Sessions Judge shall take steps to secure his presence and commit him to prison to undergo the life imprisonment. 15.In the result, Criminal Appeal No.1053 of 2006 fails and the same is dismissed. Criminal Appeal Nos.912 and 950 of 2006 filed by A-2 and A-3 are allowed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. vvk https://hcservices.ecourts.gov.in/hcservices/ To 1.The Additional District Judge, Fast Track Court No.2, Kancheepuram. 2.-Do- through The Principal District Judge, Chengalpattu. 3.The Judicial Magistrate No.1, Kancheepuram. 4.-Do- through The Chief Judicial Magistrate, Chengalpattu. 5.The District Collector, Kancheepuram. 6.The Director General of Police, Mylapore, Madras - 600 004. 7.The Superintendent, Central Prison, Cuddalore. 8.The Inspector of Police, Vishnukanchi Police Station, Kancheepuram District. 9.Public Prosecutor, High Court, Madras. + 1 cc to Mr.T.Vijayaraghavan,Advocate SR.No.58190 + 1 cc to Mr.G.M.Shankar, Advocate, SR.No.58204 + 1 cc to Mr.T.Sathiyamoorthy, Advocate,SR.No.58354 CRIMINAL APPEAL NOS.912, 950 AND 1053 OF 2006 rsm(co) em/30.10.08 https://hcservices.ecourts.gov.in/hcservices/ https://hcservices.ecourts.gov.in/hcservices/