IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23-12-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALILNGAM AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH CRL.A.No.666 of 2009 1.Muthuselvam 2.Munusamy .. Appellants/Accused 1, 2 vs The State Rep. By its The Inspector of Police Thiruthuraipoondi Police Station Thiruvarur District (Crime No.363 of 2008) .. Respondent/Complainant Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Sessions Court, Thiruvarur, dated 28.8.2009 in S.C.No.47 of 2008. For Appellants : Mr.N.Doraisamy for Mr.T.P.Senthil Kumar For Respondent : Mr.Babu Muthu Meeran Additional Public Prosecutor JUDGMENT (Judgment of the Court was made by M.CHOCKALILNGAM, J.) Challenge is made to a judgment of the Sessions Division, Thiruvarur, made in S.C.No.47 of 2008 whereby both the appellants ranked as A-1 and A-2 respectively, stood charged, tried and found guilty as follows: ACCUSED CHARGES FINDING PUNISHMENT A-1 & A-2 120(B) IPC Not guilty Acquitted A-1 & A-2 450 IPC Not guilty Acquitted A-1 302 IPC Guilty under Sec.302 read with 34 IPC Life imprisonment along with a fine of Rs.15000/- and default sentence https://hcservices.ecourts.gov.in/hcservices/ ACCUSED CHARGES FINDING PUNISHMENT A-2 302 r/w 34 IPC Guilty Life imprisonment along with a fine of Rs.15000/- and default sentence 2.The short facts necessary for the disposal of this appeal can be stated as follows: (a) The deceased one Lakshmi was living with her husband Ponnaiyan and also the son P.W.4. He was a native of Karuvelampatti, Madurai District. 30 years before, he came with his wife Lakshmi to Thiruthuraipoondi and was living there where P.W.4 was born. The said Ponnaiyan had two brothers by names Soundarapandi and Karuthapandi. They had a family property which remained undivided. Taking advantage of the absence of Ponnaiyan, both the brothers changed all the revenue records in their favour and took the property. A few years prior to the death of Ponnaiyan, they went to the native place and were demanding their share in the property, to which course the brothers were not amenable. Even after the death of Ponnaiyan, for a few years Lakshmi was demanding her share in the property which originally belonged to her husband Ponnaiyan, and they were not prepared, and she was also found to be a hurdle. A-1 is the son of Soundarapandi and A-2 is his brother-in-law. (b) On the previous night that was on 1.6.2008, both the accused came to the house of Lakshmi as if they came as guests. During the relevant time, P.W.4 was employed at Tiruppur. Taking advantage of the same, they stayed over there, and at about 4.15 A.M. on 2.6.2008, when Lakshmi was sleeping, A-1 caused suffocation by closing her mouth with a cloth and also cut her neck with a knife, and A-2 also joined with him in attacking her. They caused fatal injuries, and she succumbed to the same. (c) P.Ws.2 and 3 are husband and wife respectively, who are actually residing behind the house of Lakshmi. On hearing the distressing cry, both of them woke up, came out of the house and found A-1 coming out of the house of Lakshmi. They had got a torch light in hand and questioned him. He replied that he was a close relative of the deceased. After a period of 10 minutes, though A-1 went to the backyard, he did not return. Hence they entertained doubt, and immediately, they got inside the house of Lakshmi when they found A-2 coming out of the house. They found Lakshmi in a pool of blood. An information was given to P.W.1, the Village Administrative Officer (VAO), at about 8.00 A.M. on 2.6.2008, by his menial. (d) P.W.1, the VAO, went to the place of occurrence, found the dead body, went to the respondent police station and gave Ex.P1, the report, on the strength of which P.W.11, the Sub Inspector of Police, who was on duty, at about 9.00 A.M. registered a case in Crime No.363 of 2008 under Sec.302 of IPC. The printed FIR, Ex.P11, was despatched to the Court. (e) The investigation was taken up by P.W.12, the Inspector of Police of the Circle. He went to the place of occurrence, made an inspection and prepared an observation mahazar, Ex.P7, and also a rough sketch, Ex.P12. He also recovered bloodstained earth and sample https://hcservices.ecourts.gov.in/hcservices/ earth under a cover of mahazar. Then, in the presence of witnesses and panchayatdars, he conducted inquest on the dead body and prepared Ex.P13, the inquest report. The dead body was sent to the Government Hospital along with a requisition for conduct of autopsy. (f) P.W.8, the Assistant Surgeon, attached to the Government Hospital, Thiruthuraipoondi, on receipt of the said requisition, conducted postmortem on the dead body of Lakshmi and has issued a postmortem certificate, Ex.P9, with his opinion that the deceased would appear to have died of injury to vital organs – trachea, cartoid vessel leading to asphyxia and haemorrhagic shock. (g) Pending investigation, both the accused were arrested on 14.6.2008. They came forward to give confessional statements voluntarily. The same were recorded by the Investigator in the presence of witnesses. The admissible part of the confessional statement of A-1 is Ex.P2, and that of A-2 is Ex.P3. Pursuant to the same, they produced M.O.1, knife, M.O.2, shirt, M.O.3, knife, and M.O.4, shirt, respectively which were recovered under mahazars. They were sent for judicial remand. (h) All the material objects recovered from the place of occurrence and from the dead body and also both the weapons of crime namely M.Os.1 and 3 along with other material objects recovered from the accused were subjected to chemical analysis which brought forth two reports namely Ex.P14 series, the chemical analyst's report and the serologist's report. P.W.13, the Inspector of Police, took up further investigation and on completion of the same, filed the final report. 3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 13 witnesses and also relied on 14 exhibits and 11 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 in the evidence of the prosecution witnesses, which they flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and hence found them guilty under Sec.302 read with 34 IPC and awarded life imprisonment. Hence this appeal at the instance of the appellants. 4.Advancing arguments on behalf of the appellants, the learned Counsel Mr.N.Doraisamy would submit that the prosecution has miserably failed to prove its case; that in the instant case, A-1 and A-2, according to the prosecution, came to the house of Lakshmi in order to do away pretending that they were guests, on the night of 1.6.2008; that the motive which was attributed to the accused by the prosecution, was that they had a property dispute, and both the brothers of Ponnaiyan had grabbed the property of Ponnaiyan, and since Lakshmi was aggrieved, she went to the native place often and was quarrelling with them as a result of which the son of Soundarapandi who was the brother of Ponnaiyan, decided to do away with her, and pursuant to the conspiracy, A-1 along with his brother-in-law A-2 came to the place of Lakshmi namely Thiruthuraipoondi, attacked her and caused her death during the early hours namely 4.15 A.M. on the day of occurrence; that the prosecution has miserably failed to prove the motive part; that not even one https://hcservices.ecourts.gov.in/hcservices/ piece of evidence was available to the prosecution to support the same; that as far as the occurrence is concerned, no direct evidence is brought forth by the prosecution, and there was nobody to speak about the fact at the least that these accused were staying in the house of Lakshmi on the relevant day at a particular night; that apart from that, as far as P.Ws.2 and 3 are concerned, they are utter strangers to the accused; that all of them have deposed that they saw the accused one after another immediately after the occurrence; but, at the same time, it is to be noted that there was actually utter darkness; that P.Ws.2 and 3 would say that they had got a torch light, and when they intercepted A-1 he gave a reply that he was a close relative of Lakshmi; but, it was also for a fraction of second, and thereafter they found A-2 actually running, and under such circumstances, they could not have seen the appellants at least for a few minutes; that in such a situation, it was a case where identification parade should have been conducted; but, the investigating agency have not conducted so, and under such circumstances, the evidence of P.Ws.2 and 3 cannot be relied upon. 5.Added further the learned Counsel that it is true that the prosecution was successful enough in proving that she died out of homicidal violence, but that by itself would not suffice; that as far as the alleged confession and recovery of the material objects are concerned, they have brought forth only chemical analyst's report and serologist's report; that even if it is to be accepted, on the face of it, a conviction cannot be sustained; that under the circumstances, the prosecution has failed to place either direct or indirect or circumstantial evidence, and thus it has miserably failed to prove its case; but, the trial Court has taken an erroneous view, and hence the judgment of the trial Court has got to be set aside, and the appellants be acquitted. 6.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 7.It is not in controversy that one Lakshmi, the mother of P.W.4, was done to death in an incident that had taken place during the night hours of 1.6.2008. Following the complaint given by P.W.1, the VAO, to P.W.11, the Sub Inspector of Police, the case came to be registered under Sec.302 IPC. Following the same, after the preparation of the inquest report by P.W.12, the Investigator, the dead body was subjected to postmortem by P.W.8, the Doctor, who has given a categorical opinion as a witness before the Court and also through the contents of the postmortem certificate that she died out of injury to vital organs – trachea, cartoid vessel leading to asphyxia and haemorrhagic shock. As far as the cause of death was concerned, the appellants never questioned the same before the trial Court, and there was no controversy. Thus the prosecution was successful enough in proving that she died on account of homicidal violence, and the trial Court was perfectly correct in recording so. 8.In order to substantiate that due to the property dispute, the accused/appellants hatched up a conspiracy, proceeded to her house, stayed over there and caused the death by stabbing, the prosecution had no direct evidence to offer, but it relied upon circumstantial https://hcservices.ecourts.gov.in/hcservices/ evidence. It is settled proposition of law that in a given case like this where the prosecution rests its case on the circumstantial evidence, it must be able to place and prove necessary circumstances pointing to the guilt of the accused and also the hypothesis that except the accused no one could have committed the offence. This settled proposition of law if applied to the case on hand, this Court is afraid whether it can sustain the judgment of conviction made by the trial Court. In the instant case, the occurrence has taken place at about 4.15 A.M. on 2.6.2008, when Lakshmi was staying in her house. The case of the prosecution was that A-1 the son of Soundarapandi, who was the brother of Ponnaiyan, the husband of the deceased, following the conspiracy came over there along with his brother-in-law, A-2, and caused her death during the night hours of 1.6.2008 due to property dispute. There is no direct or circumstantial evidence. That apart, not even one piece of evidence is available as rightly pointed out by the learned Counsel for the appellants, that both the accused were staying in the house of Lakshmi that night when the occurrence has taken place. 9.Apart from the above, P.Ws.2 and 3 are claimed to be the eyewitnesses who have actually seen both the accused at the place of occurrence immediately after the occurrence. But, in the case on hand, their evidence, in the considered opinion of the Court, cannot be relied upon for more reasons than one. The occurrence has taken place at about 4.15 A.M. P.Ws.2 and 3 would claim that they heard the distressing cry, and then they woke up and immediately came out, and they found A-1 coming out of the house of Lakshmi, and when they questioned A-1, he replied that he was a close relative of Lakshmi, and so saying he went away, and thereafter though he went to the backyard, he did not come back, and then, they entertained suspicion and got inside the house of Lakshmi, and at that time, they found A-2 coming out, and there was no interception or questioning of A-2, and he ran away, and thereafter, they found the dead body. Now, taking into consideration the time of occurrence and the way in which they have intercepted A-1 and also the time duration within which they could have seen both of them, they could not have certainly made a dent in their memory. It is settled proposition of law that identification parade is not a must in every case. The identification parade is not a substantive piece of evidence, but only a corroborative piece of evidence. In a given case if the witnesses are able to identify the accused before the Court, it would suffice; but, the Court must take into account whether they first saw the accused immediately at or after the time of occurrence. The Court must immediately look into whether there was sufficient time duration which would cause a dent in their memory. In the case on hand, from the evidence of P.Ws.2 and 3 that they saw A-1 and A-2 immediately, it would be quite evident that the same could not have made any dent in their memory. In such circumstances, the Investigator should have requested for an identification parade, but not done so. Hence, relying on the evidence of P.Ws.2 and 3 to sustain a conviction would be highly unsafe in the considered opinion of the Court. 10.Added further, as far as the recovery is concerned, it is also highly doubtful. The occurrence has taken place on 1.6.2008, during night hours. The Investigator would claim that they were https://hcservices.ecourts.gov.in/hcservices/ arrested on 14.6.2008, at Thiruthuraipoondi. It is highly a matter of surprise to note that when both the accused belonged to Madurai District, there was no reason for them to come around Thiruthuraipoondi and that too after the occurrence was over and also after a period of 12 days. The evidence of the witnesses examined for that purpose did not inspire the confidence of the Court, and the mere recovery of the material objects by itself would not suffice to sustain a conviction. 11.It is true that according to the scientific evidence, the blood group was tallying. But, that is not sufficient to sustain a conviction. So long as the prosecution is unable to make the evidence of P.Ws.2 and 3 reliable and acceptable, the case of the prosecution cannot be accepted. But, the trial Court has taken an erroneous view. Under the circumstances, this Court is of the considered opinion that the judgment of the trial Court has got to be made undone by upsetting the same, and the appellants are entitled for acquittal. 12.In the result, this criminal appeal is allowed setting aside the judgment of the trial Court. The appellants are acquitted of the charge levelled against them. They are directed to be set at liberty forthwith unless their presence is required in connection with any other case. The fine amounts if any paid by them shall be refunded to them. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv To: 1.The Sessions Judge Thiruvarur. 2.The Inspector of Police Thiruthuraipoondi Police Station Thiruvarur District (Crime No.363 of 2008) 3.The Public Prosecutor High Court, Madras. 4. The District Collector of Thiruvarur. 5. The Director General of Police, Mylapore, Chennai - 4. https://hcservices.ecourts.gov.in/hcservices/ 6. The Judicial Magistrate, Thiruthuraipoondi. 7. -do- Through The Chief Judicial Magistrate, Thiruvarur District. 8. The Superintendent, Central Prison, Trichy. 1 cc To Mr.N.Doraisamy, Advocate, SR.71096. CRL.A.No.666 of 2009 TM(CO) RVL 12.01.2010 https://hcservices.ecourts.gov.in/hcservices/