IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.03.2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN REFERRED TRIAL No.1 of 2009 AND CRIMINAL APPEAL No.794 of 2009 R.T.No.1/2009 II Additional Sessions Judge, Puducherry ..Referring Officer Vs. 1. Kumi @ Kumaran 2. Senbaga @ Senbaga Sri Kumar .. Prisoners/Accused 1 & 2 Trial referred by the II Additional Sessions Judge of the Court of Sessions of Puducherry Division at Puducherry for confirmation of the sentence of death passed upon the said prisoners in S.C.No.26 of 2006 on 11.11.2009. For Referring Officer:- Mr.M.R.Thangavel, Govt.Advocate(Punducherry) For Prisoners :- Mr.V.Gopinath, Sr.Counsel for Mr.M.L.Mahendran Crl.A.No.794/2009 1. Kumi @ Kumaran 2. Senbaga @ Senbaga Sri Kumar .. Appellants/Accused 1 and 2 Vs. State rep. by Inspector of Police,Grand Bazaar Police Station Puducherry (Crime No.148/2002) .. Respondent/Complainant. Criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the Court of II Additional Sessions Judge, of Puducherry Division at Puducherry made in S.C.No.26 of 2006 dated 11.11.2009 For Appellants : Mr.V.Gopinath, Senior Counsel for Mr.L.Mahendran For Respondent : Mr.M.R.Thangavel, Government Advocate (Pondicherry) https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) This judgment shall govern the Referred Trial No.1 of 2009 whereby the II Additional Sessions Division, Pondicherry has sought for confirmation of death sentence awarded to the accused therein in S.C.No.26 of 2006 and the Criminal Appeal No.794 of 2009, brought forth by the accused/appellants, challenging the judgement in S.C.No.26/2006. 2. The short facts necessary for the disposal of this appeal can be stated as follows: (i) P.W.1 Village Administrative Officer, Perumbakkam, was informed by his Assistant, P.W.2 at about 8.00 a.m. on 25.1.2001 that a dead body of a male was found in the coconut grove. Immediately, P.W.1 accompanied by P.W.2 went to the scene of occurrence. After verification, he proceeded to Auroville Police Station and gave a report, Ex.P1 at about 10.00 a.m. to P.W.10, Sub Inspector of Police, Auroville. On the strength of Ex.P1 report, a case came to be registered in Crime No.38 of 2001 under section 302 I.P.C. The Express F.I.R. Ex.P.10 was immediately sent to Court. (ii) P.W.11, Inspector of Police, Kottakuppam, on receipt of the First Information Report, took up investigation. He proceeded to the spot, made an inspection and prepared the observation mahazar Ex.P.2 and also a drew rough sketch Ex.P11 in the presence of witnesses and panchayatdars. Then, he recovered the blood stained earth and sample earth under Ex.P13 mahazar. He also conducted inquest on the dead body of the deceased in the presence of witnesses and panchayatdars and prepared Ex.P.7, inquest report. Thereafter, the dead body was sent for the purpose of post mortem. The material objects were sent for analysis and Exs.P.13 to P.15 Serological report, Chemical Report and Bone examination report respectively were received. Even though P.W.11 took steps to gather particulars about the dead person, he could not get any information. Hence, on 2.1.2002, he referred the case as undetectable. (iii) P.W.12, doctor attached to Tindivanam Government Hospital, on receipt of the requisition made, conducted autopsy on the dead body and found the following injuries: "External Injuries: 1. A cut injury on the left side of face extending from left nostril to middle of cheek widen above and tapering below it is oblique in nature 5 x 2 x 1 cm nose is cut. 2. Cut injury on the right eye brow 4 x 2 x 1 cm. 3. Cut injury (transverse) on the right side of https://hcservices.ecourts.gov.in/hcservices/ head on parital region 3 x 2 x 1 cm. 4. Abrasion on the left side of face below eye 2 x 1 / 2 cm. 5. Abrasion on the right side neck 3 x 2 cm. 6. Abrasion on the right shoulder 1 x 1 cm. 7. Contusion on the right side neck 4 x 5 cm O/s shows clotted blood which cannot be washed out. 8. Contusion on the Vertex 5 (?) x 5 cm O/s shows clotted blood in wound No.1, 2 & 3 margin is clear, cut and retracted. 4, 5 & 6 blood clot adherent cannot be washed by water. Injuries Nos. 1,2,3,4,5,6, 7 & 8 are ante mortem in nature. " He issued the post mortem certificate, Ex.P16, wherein he has opined that the deceased would appear to have been died of shock and haemorrhage due to injury to brain about 24 to 36 hours prior to post mortem. (iv) While the matter stood thus, P.W.20 Inspector of Police, Muthialpet Police Station investigated a case in Crime No.13 of 2002 on the file of Balapet Police Station. On 5.3.2002, P.W.16 arrested A1 and A2 at Chennai and they were brought before P.W.20. When A1 and A2 were examined, they gave confessional statement, from which, P.W.20 came to know that they have been involved in Crime No.38 of 2001 also. Hence, the statements of the accused were sent to Auroville Police Station for further action on 23.2.2002. (v) P.W.11, on receipt of the statement of A1 and A2 came to know that one Shankar is the deceased in the case. He took up further investigation. He proceeded to Madurai on 29.3.2002 and examined P.W.17, the mother of the deceased and the father of the deceased and recorded their statement. Since the occurrence has taken place within the jurisdiction of Grand Bazaar Police Station, the case was transferred to that Police Station on 30.1.2002. (vi) P.W.21, Inspector of Police took up further investigation. He registered a case in Crime No.148 of 2002 under section 302 I.P.C. and prepared Ex.P21, the printed F.I.R. and the same was despatched to Court. He met P.W.11 Inspector of Police and recorded his statement and got the files from him. The accused who were in judicial remand in Crime No.13/2002 were arrested by P.W.21 on 29.5.2002 in the Central Prison, Pondicherry and he took them to police custody. He examined A1 and A2. They gave confessional statement and the same was recorded. The accused took P.W.21 to the scene of occurrence and showed the house where the occurrence had taken place. P.W.21 drew two rough sketches of the scene of occurrence which were marked as Ex.P22 series. P.Ws. 1, 2, 3 and 14 were examined. (vii) On 15.11.2002, P.W.21 examined P.W.7, a Professor of https://hcservices.ecourts.gov.in/hcservices/ History and Geography, Lycie French College. P.W.7 stated that he knew the first accused. The second accused was introduced by the first accused. On 24.1.2001, A1 and A2 and the deceased came to his house. A1 and A2 beat the deceased and thereafter they took the deceased to the hospital. On the next day, A1 and A2 came to his house and informed him that the boy Shankar died and demanded a sum of Rs.1,25,000/- from him. The statement of P.W.7 was recorded. The photograph was shown to him and he identified that it was Shankar. (viii) Further investigation was done by P.W.22, Deivasigamani. He recorded the statement of other witnesses. On completion of the investigation, on 31.12.2004, he filed a final report for the offence under sections 302 , 201 r/w 34 I.P.C.. (ix) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges, the prosecution examined 22 witnesses and relied on 23 exhibits and 3 material objects. 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 the prosecution and they denied them 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 awarded the capital punishment of death sentence. For the purpose of confirmation, the R.T.No.1 of 2009 is placed before this Court. Aggrieved by the judgment of the trial Court, the accused/appellants have brought forth the criminal appeal. 3. Advancing the arguments on behalf of the appellants, the learned senior counsel Mr.Gopinath would submit that the prosecution has miserably failed to prove its case but the trial court has found the accused guilty and awarded the capital punishment of death sentence. In the instant case, the prosecution miserably failed to prove the identity of the deceased person. Apart from that, the prosecution, much relied on the evidence of P.W.7. The trial court should not have believed that piece of evidence. 4. Insofar as the identity of the deceased is concerned, the learned senior counsel brought to the notice of the court that the occurrence had taken place on 24.1.2001. The next day morning, the same was brought to the notice of P.W.11, Sub Inspector of Police, by P.W.1,Village Administrative officer and a case was registered under section 302 I.P.C. The investigator went to the scene of occurrence and conducted inquest. After preparation of the inquest report, the dead body was subjected to post mortem. The learned senior counsel would further submit that if really the photograph of the deceased was taken at the time of inquest, there was no impediment in examining the photographer who took the photograph. The photograph was not produced before the Court early. It was marked as Ex.P18 only at the time of examination of P.W.17 and not before that. P.W.21 investigator who took investigation and enquired the matter, agreed that the photograph was in the case bundle of Auorville Police. The https://hcservices.ecourts.gov.in/hcservices/ prosecution had no explanation to offer regarding non production of the negative and non examination of the photographer. The prosecution has miserably failed to prove the identity of the accused. 5. The learned senior counsel would further submit that when the photograph of the deceased was shown to P.W.7, mother of the deceased, she had stated that what was found in the photograph looks like her son but she was not certain about the same. All would go to show that the identity of the accused was not ascertained or proved by the prosecution. 6. Added further learned counsel, insofar as the evidence P.W.7 is concerned, the Court should have rejected his evidence for the simple reason, according to P.W.7, he was a Professor of History and Geography and on 24.1.2001, when he was in his house, A1 and A2 came along with the deceased Shankar. They beat Shankar and took him outside stating they wanted to take him to the hospital. Thereafter, on the next day, A1 and A2 came to his house and informed him that the Shankar died and demanded a sum of Rs.1,25,000 lakhs. If to be so, there is no impediment for P.W.7, a professor, to bring the same to the notice of the police immediately, but he has not done so. Apart from this, the investigator would claim that when both the accused A1 and A2 were arrested at Madras in connection with Crime No.13/2002 registered at Muthialpet Police Station on 28.3.2002, they came forward to give confessional statement, in which, they actually referred to P.W.7. Had it been really true, there is no impediment for the investigator to enquiry P.W.7 immediately on transfer of the case records to the present respondent police but P.W.7 was examined only in the month of November,2002. The cause for the delay was not explained. Under such circumstances, the evidence of P.W.7 cannot be given any evidential value at all. If these pieces of evidence are not available for the prosecution, the prosecution has no further evidence to offer before the trial Court. Under such circumstances, the trial Court should have rejected the case of the prosecution in its entirety but found the accused guilty and awarded death sentence. Hence, the judgment of the trial Court has got to be set aside and the appellants are entitled for acquittal in the hands of this Court. 7. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submission made. 8. The gist of the case of the prosecution was that on 24.1.2001, when P.W.7, a Professor was in his house, A1 and A2 came along with the alleged deceased Shankar and beat the deceased and took him outside stating that they would take him for medical treatment. The next day, A1 and A2 informed him that Shankar died. They would further demand Rs.1,25,000/- from P.W.7. The prosecution placed much reliance on the evidence of P.W.7 as the eye witness to the occurrence and the same has also been accepted by the trial Court. After looking into the materials available and in view of https://hcservices.ecourts.gov.in/hcservices/ the circumstances attendant, the Court is afraid whether it could act upon the evidence of P.W.7 to render conviction. Admittedly, P.W.7 was a Professor, working in a college and he is well matured. If A1 and A2 have beat the deceased in his house and thereafter he was informed by A1 and A2 that the boy died, one would naturally expect him to go to the police station and report the matter but he had not done so. Till the examination by the police in the month of November 2002 i.e., 18 months from the date of occurrence, he did not reveal it to anybody. Therefore, no evidentiary value could be attached to such a version. Apart from that, P.W.7 has stated that A1 and A2 demanded money, to which course, he was not amenable and he was also threatened by A1 and A2 but the same was not brought to the notice of the police immediately. 9. Another circumstance which cast a doubt and a reasonable doubt also is the examination of P.W.7. According to the prosecution, A1 and A2 were arrested on 28.3.2002 at Madras in connection with Crime No.13/2001. When they were examined, they came forward to give confessional statement and the Police Officer came to know that they were involved in Crime No.38/2001 of Auroville Police and informed it to Auroville Police. The case papers were also transferred to that Police Station. At that juncture, the Inspector of Police, Auroville who came to know about P.W.7 who is the eye witness, did not examine P.W.7 immediately. He examined P.W.7 only in the month of November, 2002, i.e., after a period of eight months. For the delay in examining P.W.7, the prosecution, has no explanation to offer. This delay would cast a doubt on the evidence of P.W.7. Therefore, it is unsafe to act upon the evidence of P.W.7. Hence, the evidence of P.W.7 should not have been accepted by the trial Court. 10. As rightly pointed out by the learned counsel for the appellants, though the identity of the deceased was questioned, the prosecution never proved the same. The specific charge leveled against the accused by the prosecution was that both the accused murdered Shankar and left the dead body in the coconut grove. When the photograph was shown to P.W.17, mother of the deceased she has categorically stated that it looks like her son. Hence, it cannot be taken as a certain answer. Further, the photograph of the deceased was taken at the time of inquest, the next day of murder i.e., 25.1.2001. Though the photograph of the deceased was marked, no negative was produced. The photographer should have been examined before the Court but he was not examined. The said photograph was seen by the Court. From the said photograph, one cannot identify a person. 11. The non-production of the negative in respect of the photograph, the non examination of the photographer and the delay in production of the photograph which was produced only at the time of examination of P.W.17, all would go to show that the prosecution failed to prove the identity of the deceased. The prosecution specifically stated that the photograph was shown to P.W.17, mother of the deceased but she has stated that it looks like her son. Her https://hcservices.ecourts.gov.in/hcservices/ statement is not certain. Therefore, on her statement, it cannot be taken that the identity of the deceased was proved. The prosecution has miserably failed to prove the identity of the deceased and the evidence of P.W.7 cannot be acted upon for the reasons stated above. Hence, it can be well stated that the prosecution has not brought home the guilty of the accused in any manner known to law. The trial Court should have rejected the case of the prosecution and acquitted the accused but the trial court has found the accused guilty of the offence and this Court do not agree with the same. Under such circumstances, the judgment of the trial Court has got to be made undone only by upsetting the same. Hence, the accused/appellants are entitled for acquittal. 12. In the result, the judgment of conviction and sentence imposed on the appellants by the learned II Additional Sessions Judge, Puducherry in S.C.No.26/2006 is set aside. The accused/appellants are acquitted of the charges levelled against them and they are directed to be released forthwith unless their custody is required in connection with any other case. Fine amount, if any paid by the accused, is ordered to be refunded to them. Accordingly, the criminal appeal is allowed and R.T.No.1 of 2009 is rejected. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vsi To 1. The II Additional Sessions Judge,Puducherry. 2.-do- Through The Sessions Judge, Puducherry. 3. The Inspector of Police, Grand Bazaar Police Station, Puducherry. 4. The Pubic Prosecutor, High Court, Chennai. 5.The Chief Superintendent of Jail, Puducherry. 6.The Section Officer, Criminal Section, High Court, Madras. 1 cc To Mr.L.Mahendran, Advocate, SR.17822 REFERRED TRIAL No.1 of 2009 AND CRL.A.No.794 of 2009 bvn(co)pmk.8.4.2010. https://hcservices.ecourts.gov.in/hcservices/