IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 01.03.2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRIMINAL APPEAL Nos.656 & 765 OF 2009 1. Sakthi @ Sakthivel .. Appellant in C.A.No.656/2009/Accused - 1 2. Sounther @ Soundararaj 3. Sakunthaladevi 4. Annadurai .. Appellants 1 to 3 in C.A.765/2009/Accused 3 to 5 Vs. The State by Inspector of Police, Tiruchengode Rural Police Station, Namakkal District. (Crime No.450 of 2004) .. Respondent in both the C.As./Complainant The criminal appeals have been preferred under Section 374 Cr.P.C. against the judgment of the learned Additional District and Sessions Judge, Fast Track Court, Namakkal made in S.C.No.149 of 2005, dated 23.7.2009. For Appellant in C.A.No.656/2009 : Mr.B.Vasudevan For Appellants in C.A.No.765 of 2009 : Mr.N.Manokaran For Respondent : Mr.N.Balasubramanian, A.P.P. COMMON JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) These two appeals challenge the judgment of the Additional Sessions Division, Fast Track Court, Namakkal made in S.C.No.149 of 2005 whereby the appellant in C.A.No.656 of 2009 ranked as A1 and the appellants in C.A.No.765 of 2009 ranked as A3 to A5 along with the second accused stood charges, tried and found guilty under section 302 r/w 34 I.P.C. and awarded life imprisonment each along with fine of Rs.1000/- each, in default to undergo one year rigorous imprisonment. 2. The short facts necessary for the disposal of this appeal can be stated as follows: https://hcservices.ecourts.gov.in/hcservices/ (i) P.W.8 Uma is the wife of the deceased, Chellamuthu. P.W.3 is the elder brother of the deceased. When P.W.8 and her husband Chellamuthu were living together along with their children, Chellamuthu developed illicit intimacy with Sakunthaladevi/A4. Chellamuthu also compelled P.W.8 to sign in the documents for sale of the family house, to which course, she was not amenable and hence, their relationship became strained and they were living separately. Coming to know that Chellamuthu has developed illicit intimacy with A4 /Sakunthala, P.W.8 and her relatives went to the nearby village Chettikadu where the deceased Chellamuthu was staying with A4/Sakunthala and quarrelled with them. Pursuant to the quarrel, Sakuntala/A4 left to Veppadai. Even after that, the deceased Chellamuthu went over to Veppadai and continued his illicit intimacy. All the accused had intimacy with Sakunthala during the relevant time. (ii) In the night hours of 13.10.2004, when P.W.3 and P.W.4 were proceeding in their way, they saw A5 riding TVS 50 marked as M.O.10, in which, the deceased Chellamuthu was going as pillian rider. Pursuant to the conspiracy hatched by the accused, Chellamuthu was done to death and left the dead body in the field of Survey No.149/2 and fled away from the place of occurrence. (iii) On 14.10.2004 at 9 '0' Clock, when P.W.1 Village Administrative Officer, Chittanathur was in his office, he was informed that a dead body of a male, aged 40 years was found in S.No.149/2. Then, he proceeded to the place along with his assistant where he found the dead body. He made enquiry. Thereafter, he proceeded to the respondent Police Station, where P.W.18 Head Constable was on duty. He gave Ex.P.1 report, on the strength of which a case came to be registered in Crime No.450/2004 under section 302 I.P.C. The printed F.I.R. along with Ex.P1-report was despatched to Court. When the matter was published in the newspaper, P.W.3 and P.W.8 saw the same and went to the Police Station and thereafter, identified the dead body. (iv) P.W.20 Investigating officer, on receipt of a copy of the F.I.R., took up investigation. He examined the witnesses and recorded their statement. He prepared the observation mahazar,Ex.P3 in the presence of witnesses and drew a rough sketch Ex.P.26. Photographs of the dead body and the place of occurrence were taken by the photographer P.W.17. P.W.20 recovered the material objects from the place of occurrence. Then, he conducted inquest on the dead body and prepared the inquest report Ex.P27. The dead body was subjected to post mortem. P.W.19 doctor who conducted post mortem, has given her opinion that the deceased Chellamuthu died out of shock and haemorrhage due to the injuries sustained by him. The post mortem certificate was marked as Ex.P.25. (v) Pending investigation, the investigator arrested A1 to A3 on 24.10.2004. A3 came forward to give confessional statement voluntarily and the same was recorded. The admissible part of the same was marked as Ex.P.17. Following the same, he produced M.O.12 and M.O.13, knife and shirt respectively which were recovered under a cover of mahazar. Thereafter, A2 gave confessional statement and the same was recorded. The admissible part of the same was marked as https://hcservices.ecourts.gov.in/hcservices/ Ex.P19, pursuant to which M.O.14 and M.O.15, knife and banian were recovered under a cover of mahazar. A1 gave confessional statement and the admissible part was marked as Ex.P21. He produced M.O.16 knife and M.O.17 shirt which were recovered under a cover of mahazar. A4 was also arrested on the same day. Pending investigation, A5 was arrested on 26.10.2004 and the accused were sent for judicial remand. (vi) The investigator, at the time of investigation, found out that A5 had pledged TVS 50 marked as M.O.10 with P.W.10 and borrowed a sum of Rs.1000/-. When P.W.10 was enquired, he gave a statement to that effect and also produced M.O.10, TVS 50. Equally, P.W.12 gave statement that the deceased Chellamuthu borrowed a sum of Rs.200/- by pledging his cell phone-M.O.11 and the same was also recovered from him. (vii) All the material objects recovered from the place of occurrence, from the dead body and from the accused were subjected to chemical analysis. The reports received therefrom were also marked as Exs.P7 and P8, chemical report and serologist report respectively. On completion of the investigation, the investigating officer has filed a final report. (viii) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 21 witnesses and relied on 27 exhibits and 19 material objects. On completion of the examination of the witnesses on the side of the prosecution, the accused were questioned under section 313 Cr.P.C. as to the incriminating circumstances found in the prosecution witnesses and they denied them as false. No defence witness were examined. The Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and found the accused/appellants guilty as per the charges and awarded the punishment as referred to above. Hence, these appeals at the instance of the appellants. 3. Advancing the arguments on behalf of the appellants, Mr.B.Vasudevan, learned counsel for A1 and Mr.N.Manokaran, learned counsel for A3 to A4 interalia would submit, in the instant case, according to the prosecution, the occurrence has taken place in the night hours of 13.10.2004 and the prosecution had no direct evidence to offer. It had brought forth certain circumstances to the notice of the Court but the prosecution miserably failed to prove those circumstances. Out of 21 witnesses , P.W.4, P.W.5, P.W.9 and P.W.14 have turned hostile. Even if there is evidence to indicate that the deceased had illicit intimacy with Sakunthala and during the relevant time, all the accused had connection with her and it was also proved, it cannot be stated that all the accused have joined together and caused the death of the deceased. The prosecution made attempt to place and prove the last seen theory that the deceased was found in the company of A5 and they were going together in the night hours in TVS 50 which belonged to A5. For that purpose, the prosecution examined P.Ws.4 and 5 but both the witnesses have turned hostile. The prosecution has examined P.W.8. According to her, she was informed by P.Ws. 4 and 5 that it was A5 who took her husband during the night hours on 13.10.2004. Though the investigator claimed that https://hcservices.ecourts.gov.in/hcservices/ P.W.8 was examined on 15.10.2004 itself, her 161 statement has reached the Court after few months. Under such circumstances, no reliance could be placed on her evidence. Except this, the prosecution had no evidence to offer. 4. Learned counsel would further submit that insofar as the arrest and recovery is concerned, the investigator would claim that from each of the accused, a knife and a shirt were recovered and the evidence adduced by the prosecution in this regard was shaky. Apart from that, merely on the recovery of the weapons alone, one cannot be found guilty. Added further learned counsel, in the instant case, nothing was available for the prosecution insofar as A1 to A4 were concerned. The prosecution had no iota of evidence at all. Under such circumstances, the trial Court has taken an erroneous view and has convicted the accused/appellants. Hence, the accused/appellants are entitled for acquittal in the hands of this Court. 5. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submission made and looked into the materials available on record. 6. It is not in controversy that the dead body of Chellamuthu was found in the field. When P.W.1, Village Administrative Officer came to know about the same, he went to the spot and prepared a report,Ex.P1 and gave the report to the respondent Police. Pursuant to the report, P.W.18 the Head Constable of the respondent police registered a case under section 302 I.P.C. P.W.20, investigating officer took up investigation. He went to the spot, made an inspection, prepared the observation mahazar and also recovered the material objects therefrom. Following the inquest made, the dead body was subjected to post mortem. The doctor exz\amined as P.W.19 gave her categoric opinion as a witness before the Court and also through the contents in the post mortem certificate that the deceased died out of homicidal violence. Regarding this, the accused had no dispute at all. Therefore, the prosecution was successful enough to prove that the deceased Chellamuthu died out of homicidal violence. 7. In order to prove the charges levelled against the appellants/accused and also A2 before the trial Court, the prosecution had no direct evidence to offer. It relied on circumstantial evidence. It is well settled principle of law that in a given case like this where the prosecution rests its case exclusively on the circumstantial evidence, the prosecution should not only place and prove all the circumstances which constitute a chain without a snap, but also point to the hypotheses that except the accused no one could have committed the offence. If this settled principle of law is applied, the Court is afraid whether it could sustain the conviction and sentence as rendered by the trial Court. 8. As rightly pointed out by the learned counsel for the appellants, the prosecution is able to show that the deceased had illicit intimacy with A4/ Sakunthala and during the relevant time, all the accused had connection with her. But it cannot be a reason to infer that they had indulged in such heinous crime. In the absence of any material to indicate the same, the case of the prosecution cannot be accepted. According to P.W.8, she was informed by P.Ws. 4 and 5, https://hcservices.ecourts.gov.in/hcservices/ the very next day that it was A5 who took her husband in TVS 50, but P.Ws.4 and 5 have turned hostile. The investigating officer stressed on the evidence of P.W.8 that it should be accepted because she informed immediately after the occurrence. In the instant case, her evidence cannot be accepted for the reason that, though the investigator would claim that her statement was recorded on 15.10.2004, but it has reached the Court only on 28.12.2004, thus, after a period of two months therefrom. Hence, her statement cannot be relied upon. Apart from this, in the instant case, what was available to the prosecution is only the arrest and recovery of the alleged weapons of crime from A1 to A3. As rightly pointed out by the learned counsel for the appellants, it is sell settled principle of law that merely on the recovery of weapons alone, it cannot be presumed that the accused have committed the offence. Further, the chemical report and the serologist report do not support the prosecution case. All putforth together would clearly show that the prosecution has merely failed to prove the guilt of the accused. Therefore, the Court is of the considered opinion that the prosecution has not proved the case beyond reasonable doubt and hence the appellants/A1 & A3 to A5 are entitled to be given the benefit of doubt and they are entitled for acquittal. Hence, the judgment of the lower court has got to be made undone only by upsetting the same. 9. In the result, the criminal appeal is allowed. The judgment of conviction and sentence imposed on the appellants/A1, A3 to A5 by the learned Additional District and Sessions Judge, Fast Track Court, Namakkal made in S.C.No.149 of 2005 is set aside and the appellants are acquitted of the charge levelled against them. They are directed to be released forthwith unless their presence is required in connection with any other case. The fine amount, if any paid by them, is ordered to be refunded to them. Consequently, M.P.No.1/2009 in Crl.A.No.765/2009 is closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar vsi To 1. The Additional District and Sessions Judge, Fast Track Court, Namakkal. 2. -Do- Through The Principle Sessions Judge, Namakkal. 3. The Inspector of Police, Tiruchengode Rural Police Station, Namakkal District. https://hcservices.ecourts.gov.in/hcservices/ 4. The Public Prosecutor, High Court, Chennai. 5. The Superintendent, Central Prison, Coimbatore. (In duplicate for communication to the accused) 6. The Superintendent, Central Prison, Salem. 7. The Director General of Police, Mylapore, Chennai - 4. 8. The District Collector, Namakkal. 1 cc To Mr.N.Manokaran, Advocate, SR.13913. 1 cc To Mr.B.Vasudevan, Advocate, SR.13675. CRL.A.Nos.656 & 765 of of 2009 NG(CO) RVL 12.03.2010 https://hcservices.ecourts.gov.in/hcservices/