BAIL SLIP The accused was directed to be released on bail as per the order dated 14.12.2006 of this Court, made in Crl.M.P.No.4490 of 2006 in Crl.A.No.57 OF 2006. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.03.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI Criminal Appeal.No.57 of 2006 Ravi @ Ravichandran ... Appellant/Accused. vs. State, rep. by the Inspector of Police, Komarapalayam Police Station, Namakkal District. (Cr.No.743/03). ... Respondent/Complainant. Appeal against the judgment of the learned Additional Sessions Judge, Fast Track Court, Namakkal, dated 14.11.2005 made in S.C.No.79 of 2005. For Appellant : Mr.B.Vasudevan For Respondent : Mr.N.R.Elango Additional Public Prosecutor J U D G M E N T (Delivered by R.REGUPATHI,J.) The appellant/sole accused in Sessions Case No.79 of 2005 on the file of Additional Sessions Judge (Fast Track Court), Namakkal, was convicted for offences punishable under Sections 364 and 302 IPC and sentenced to undergo five years rigorous imprisonment and imprisonment for life with a fine of Rs.5,000/-, in default to undergo four months simple imprisonment respectively. Both the sentences were ordered to run concurrently. Aggrieved over the said https://hcservices.ecourts.gov.in/hcservices/ conviction and sentence, the present appeal has been preferred before this Court. 2.The allegation in the charge is that on 9.12.2003 at about 9.00 p.m., the deceased Mathaiyan was taken in a scooter near K.A.S. Spinning Mills and thereby, committed an offence of kinapping punishable under Section 364 I.P.C.; and that during the course of same transaction, at about 10.00 p.m., the appellant caused injury on the backside of the head with a wheel spanner and thereafter, dragged him below a bridge and again assaulted on the head, and the deceased succumbed to those injuries and thereby, the accused is alleged to have committed an offence punishable under Section 302 I.P.C. 3.When the accused was initially questioned, he has denied the complicity of offence and therefore, the trial of the case was taken up. The prosecution to substantiate its case examined P.Ws.1 to 17, marked Exs.P.1 to P.27 and produced M.Os.1 to 5. 4.The case of the prosecution, as unfolded by the prosecution witnesses is stated as hereunder: (a)P.W.1 is the Village Administrative Officer of Mangalam village, Tiruchengode and according to him, on 12.12.2003, on coming to know about the presence of a dead body below the bridge at Sankagiri - Pallipalayam road through his assistant, he inspected the spot. A putrefied dead body was found and a bad odour was emanating from the dead body. On suspicion that the death could have happened due to accident fall from the bridge or on account of motor vehicle accident, he lodged a report, Ex.P.1 to the police. (b)P.W.12, Sub-Inspector of Police, Kumarapalayam police station, on 12.12.2003 at 11.00 p.m., on receipt of the complaint given by P.W.1, registered a case in Crime No.743 of 2003 under Section 174 Cr.P.C. and despatched the copy of printed F.I.R. to the superior officials as well as to the Revenue Divisional Officer. Ex.P.16 is the printed F.I.R. (c)P.W.17, Inspector of Police, on receipt of a copy of the F.I.R. at 1.30 p.m., proceeded to the scene of occurrence and prepared observation mahazar, Ex.P.5, and rough sketch, Ex.P.23. He caused the photographs to be taken and examined the witnesses present there. He conducted inquest over the dead body and prepared Ex.P.24, inquest report. He recovered a pocket diary, M.O.5 from the body of the deceased under a cover of mahazar, Ex.P.6. Since the body could not be transported, a requisition Ex.P.19 was issued to the medical officer to conduct post-mortem at the scene itself. (d)On receipt of the requisition, P.W.14 reached the scene of occurrence and conducted autopsy over the dead body of the deceased at 11.30 a.m. on 13.12.2003 and found the following injuries:- https://hcservices.ecourts.gov.in/hcservices/ External Injuries:- 1.Missing of bone in the occipito parietal region which was a hole of irregular margin, including both parietal & occipital bones (partial) 2.External genitalia missing (both scrotum & penis missing). The doctor issued Ex.P.20, post-mortem certificate opining that death would have occurred at least more than 72 hours prior to autopsy. He reserved his opinion as to the cause of death pending chemical analysis and on receipt of the same, he gave his final opinion, Ex.P.21, opining that the death was on account of shock and haemorrhage due to head injury. The doctor had given evidence to the effect that the injuries sustained by the deceased could have been caused with M.O.2 and the said injuries are sufficient in the ordinary course of nature to cause death. (e)P.W.17, on 7.1.2004 came to know about the surrender of the accused before the Judicial Magistrate, Tambaram. He altered the case into suspicious murder. Ex.P.25 is the altered report. On 10.1.2004, he examined P.Ws.2 and 3, wives of the deceased. (f)It is the evidence of P.W.2 that the deceased was working as a painter in a workshop at Sankagiri. Due to her marital relationship with the deceased, two children were born to them. She has stated that the deceased used to indulge in quarrel after consuming alcohol and on 8.12.2003, the deceased left the residence for the purpose of visiting his mother and thereafter, he was found missing. When M.Os.4 and 5, the pant and the pocket diary of the deceased were shown to her, she identified them as that of the deceased. (g)P.W.3 is another wife of the deceased and she married the deceased earlier to P.W.2. In her evidence, she has stated that before she marrying the deceased, he was having children and that the deceased used to indulge in quarrel after consuming alcohol. She has also stated that on earlier occasion, the accused has given a complaint against the deceased. It is her further evidence that the accused visited her residence and threatened her that the deceased must behave properly, otherwise he would have been done to death. This was informed to the deceased. Thereafter, the deceased went to the workshop and did not return back. On request by the investigating officer, P.W.17, she identified the dress and the diary of the deceased. (h)P.W.4 has been examined to speak about the conduct of the deceased. It is his evidence that the deceased was demanding mamool from the workers and since he was continuing with the same, a complaint has been given to the police. P.W.13 is the Sub-Inspector of Police, who received the said complaint on 25.11.2003. Ex.P.17 is the copy of the complaint. Since the deceased was absconding, he https://hcservices.ecourts.gov.in/hcservices/ could not be arrested and on conclusion of the enquiry, it has been closed by informing the complainant that they may inform again in the event of recurrence. Ex.P.18 is the report in that regard. (i)P.Ws.5 and 6 are the factory workers and as per the case of the prosecution, the deceased was alleged to have threatened them after the complaint was given against him. However, both the witnesses did not support the case of the prosecution and therefore, they were treated as hostile. (j)P.W.7 has been examined by the prosecution to substantiate that the deceased and the accused were last seen together during the relevant time of occurrence at Bhavani road at about 9.30 p.m. It is his evidence that he had seen the deceased and the accused talking and thereafter, he came to know that the deceased was done to death. (k)P.W.8 is a witness, who attested observation mahazar, Ex.P.5 and seizure mahazar, Ex.P.6. P.W.9 is the brother of the deceased, who identified the deceased by looking at the clothings of the deceased and the photo shown by the investigating officer. (l)In continuation of the investigation, on 19.1.2004, P.W.17 took the accused for police custody after filing a petition, Ex.P.26, before the learned Magistrate and when the accused was in his custody, he has given a voluntary statement and in pursuance of the same, scooter, M.O.1 was recovered under Ex.P.3 mahazar. Ex.P.2 is the statement. M.Os.2 and 3, wheel spanner and a patti blade were recovered under a mahazar Ex.P.4. He, thereafter, altered the crime and sent the express F.I.R., Ex.P.7. He produced the accused before P.W.16, the Revenue Divisional Officer, for recording confession and the confession given by the accused was recorded. The material objects were despatched to Court as per Ex.P.12 requisition for receiving the opinion from the chemical analyst and thereafter, investigation of the case has been handed over to another Inspector of Police for further investigation. (m)P.W.10 is the Court clerk, who, on receipt of the requisition, despatched the material objects to receive opinion from the chemical analyst. Exs.P.9 to P.15 are such reports. P.W.11 is the police constable, who was present at the time of post-mortem by the medical officer. (n)P.W.15 is the scientific assistant, who conducted superimposition test by comparing the skull and the photograph of the deceased and he has given opinion, Ex.P.22, wherein it has been stated that the skull could very well have belonged to the male individual seen in the photographs. https://hcservices.ecourts.gov.in/hcservices/ (o)The successor of P.W.15, in continuation of the investigation, sent the photographs and the skull of the deceased for superimposition test, as per Ex.P.13 requisition and received the reports, Exs.P.15 and P.22. After receiving the final opinion from the medical officer, the final report was filed on 16.9.2004 for an offence punishable under Section 302 I.P.C. 5.The accused was questioned under Section 313 Cr.P.C. on completion of the evidence on the side of prosecution and he claimed innocence. Neither oral nor documentary materials were produced on the side of the defence. The learned trial Judge, on perusal of the materials, oral and documentary and after hearing both sides, convicted and sentenced the appellant as aforementioned. Aggrieved against the said conviction and sentence, the present appeal has been preferred. 6.1.The learned counsel for the appellant submits that it is a case of circumstantial evidence and unless the chain of circumstances is complete and proved beyond reasonable doubts, the conviction in a case like this cannot be based. The main circumstances which were relied on by the prosecution are the evidence of P.W.7, who is alleged to have seen the deceased alive in the company of the accused and the recovery of M.O.2, wheel spanner. 6.2.According to the learned counsel, as per the evidence of P.W.7, he had seen the deceased in the company of the accused in Bhavani road at 9.30 p.m., but the occurrence took place beneath a bridge at Sankagiri to Erode road, which is 5 kms. away from the place allegedly seen by P.W.7. Further, the occurrence had taken place on 9.12.2003 and this witness was examined on 19.1.2004 after a long delay, due to which, the evidentiary value of P.W.7 is in doubt. Further, it is submitted that the said statement of P.W.7 which was recorded on 19.1.2004 reached the Court of the learned Magistrate on 24.9.2004 along with the Charge sheet and therefore, there is every possibility of introducing this witness on the side of prosecution and in view of the delay, it is not safe to rely on such evidence. 6.3.The next piece of evidence relied on by the prosecution is the recovery of M.O.2. P.W.1 is the Village Administrative Officer, who is alleged to have attested the statement as well as recovery mahazars put forth by the investigating officer. Even in the admissible portion of the statement given by the accused, the weapon of offence was not specifically stated and it has been mentioned as weapon. That apart, the place of recovery is also a workshop, where such weapons are available in abundance. Apart from the above two circumstances relied on by the prosecution, no other materials have been furnished to connect the accused with the crime and therefore, it is a fit case for acquittal. https://hcservices.ecourts.gov.in/hcservices/ 7.Per contra, the learned Additional Public Prosecutor submits that it is the evidence of the wives of the deceased that the deceased was quarrelling with people after consuming alcohol and it is the positive evidence of P.W.3 that the accused came to her residence and threatened the deceased and that a complaint has also been given by the accused and other workers against the deceased and the same was recorded by P.W.13, Sub-Inspector of Police and thus, the motive against the accused is substantiated. He further submits that the strong piece of evidence is the evidence of P.W.7, who speaks about seeing the deceased alive in the company of the accused. Since the dead body was found below the bridge, it could not be noticed by the passers-by and however, P.W.1 after coming to know about that after four days, set the law in motion. The identity of the deceased has been established through the superimposition report given by P.W.15, scientific assistant and it is the opinion of the medical officer that the death of the deceased was due to homicidal violence and therefore, the learned Additional Public Prosecutor submits that all the circumstances of chain is complete, leading to a conclusion that it is the accused, who has committed the offence. 8. We have perused the materials available on record and heard the submissions made on both sides. 9. It is trite law that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but all the circumstances so established should be of conclusive nature and consistent with the hypothesis of the guilt of the accused. Moreover, all the established circumstances should be complete and there should be no gap in the chain of evidence. Therefore, the evidence has to be carefully scrutinised and each circumstance should be dealt with carefully to find out whether the chain of the established circumstances is complete or not. 10. In the instant case, through the evidence of scientific assistant, P.W.15, the identity of the deceased has been fixed and through the evidence of P.W.14, it has been substantiated that the death of the deceased was due to homicidal violence. Through the evidence of P.Ws.2, 3, 4 and 9, it has been established that the deceased is a person, who was in the habit of indulging in quarrel after consuming alcohol. Further, it is the evidence of prosecution witnesses that the deceased was demanding rowdy mamool resulting in the complaint given to P.W.13. The said complaint has been given not only by P.W.4, but it was signed by several other persons. Admittedly, the deceased had three wives and under such circumstances, we cannot proceed by suspecting that it is the accused who would have committed the offence. https://hcservices.ecourts.gov.in/hcservices/ 11. On perusal of the evidence of P.W.7 we find that he had seen the deceased alive in the company of the accused at Bhavani road. But the occurrence had occurred in a different place, viz., a road leading from Sankagiri to Erode, which is 5 kms. away. Further, P.W.7 is alleged to have seen them at 9.30 p.m. and the occurrence is alleged to have taken place at 10.30 p.m. The prosecution never evinced any interest in explaining as to how the duo reached the scene of occurrence. Moreover, the occurrence took place on 9.12.2003 and P.W.7 was examined only on 19.1.2004. We do not find any explanation for examination of P.W.7 after an inordinate delay. Even so, such statement reached the Court only on 24.9.2004 along with the charge sheet. In view of the facts and circumstances of the case, we do not find any reason to believe the evidence of P.W.7. We are of the considered view that the evidence of P.W.7 is unreliable and in a grave case like this, we cannot place much reliance on the evidence of P.W.7 with infirmities. 12. With regard to the recovery, we find that the accused surrendered before the learned Magistrate and he was taken into police custody by the investigating officer and only thereafter, the weapon of offence was recovered. Even in the admissible portion of the statement of the accused, the weapon of offence has not been specifically mentioned and ultimately the place of recovery, viz., the workshop, is an open place where anybody can have easy access. Under such circumstances, we also cannot place much reliance on the recovery of weapon. 13. It is unfortunate that after the accused was taken into police custody, he was produced before the Tahsildar, P.W.16, for recording confession, which is prohibited under law. Such production of the accused will only create a great suspicion that the investigating officer somehow or other made all efforts to create evidence against the accused. In a case of circumstantial evidence, the chain of circumstances must be complete leading to an irresistible conclusion, pointing to the guilt of the accused and in the case on hand, we do not find the chain of evidence produced by the prosecution to be complete. 14. The other materials produced by the prosecution may not connect the accused with the crime. At the most, it would only substantiate that the death of the deceased is due to homicidal violence. Unless it is proved that it is the accused, who has committed the offence, in a grave case like this, on imaginary grounds based on suspicion, the accused cannot be convicted. We do not find any reason to confirm the conviction of the appellant and therefore, we acquit him of the charge. https://hcservices.ecourts.gov.in/hcservices/ 15.In result, the conviction and sentence imposed on the appellant are set aside and the appeal is allowed. The bail bonds, if any executed by the appellant/accused shall stand cancelled. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. sra To 1. The Additional Sessions Judge, Fast Track Court, Namakkal. 2. -do- Thro' The Principal Sessions Judge, Namakkal. 3. The District Collector, Namakkal. 4. The Director General of Police, Chennai. 5. The Inspector of Police, Komarapalayam Police Station, Namakkal District. 6. The Superintendent, Central Prison, Coimbatore. 7. The Public Prosecutor, High Court, Madras. + 1 CC To Mr.B.Vasudevan, Advocate SR NO.17253 Crl.A.No.57 of 2006 cmp[co] gp/29.4. https://hcservices.ecourts.gov.in/hcservices/