Bail Slip The Appellant/ Accused No.3 namely Murthi was directed to release on bail as per order of this Court dated 3.10.2007 and made in Crl.M.P.No.1 of 2007 in Crl.Appeal No.823 of 2007 on the bail of this Court. The Appellant/ Accused No.1 namely Siva @ Sivaraj @ Shankar @ Sivashankar was directed to release on bail as per order of this Court dated 19.11.2007 and made in Crl.M.P.No.1 of 2007 in Crl.Appeal No.990 of 2007 on the bail of this Court. The Appellant/ Accused No.2 namely Periyasamy was directed to release on bail as per order of this Court dated 2.1.2008 and made in Crl.M.P.No.1 of 2007 in Crl.Appeal No.1093 of 2007 on the bail of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 5-9-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRL.A.Nos.823, 990 and 1093 of 2007 Murthi .. Appellant/ 3rd Accused in C.A.823/2007 Siva @ Sivaraj @ Shankar @ Sivashankar .. Appellant/ Ist Accused in C.A.990/2007 Periyasamy .. Appellant/ 2nd Accused in C.A.1093/2007 vs State by Inspector of Police Bhavanisagar Police Station Erode District (Crime No.425/2004) .. Respondent/ complainant in all appeals Criminal appeals preferred under Section 374(2) of the Code of Criminal Procedure against the judgment of the Additional Sessions Judge (Fast Track Court No.2), Gobichettipalayam, in S.C.No.65 of 2006 dated 18.4.2007. https://hcservices.ecourts.gov.in/hcservices/ For Appellants : Mr.A.K.Kumarasamy for appellant in CA 823/2007 Mr.G.Jawaharlal for appellant in CA 990/2007 Mr.S.Parthasarathy for appellant in CA 1093/2007 For Respondent : Mr.V.R.Balasubramanian Additional Public Prosecutor COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern these three appeals in C.A.Nos.823, 990 and 1093 of 2007, the first one by A-3, the second one by A-1 and the third one by A-2. 2.These three appellants stood charged, tried and found guilty as per the provisions of the Indian Penal Code by a judgment rendered by the Fast Track Court No.II, Gobichettipalayam, in S.C.No.65 of 2006 dated 18.4.2007, as detailed below. ACCUSED CHARGES GUILTY PUNISHMENT A-1 364, 302 r/w 34 & 201 IPC 364 IPC 302 r/w 34 IPC 201 IPC 5 years RI & a fine of Rs.1000/-,i.d. 6 months SI Life imprisonment & a fine of Rs.3000/- i.d. 6 months SI 2 years RI & a fine of Rs.1000/- i.d. 6 months SI https://hcservices.ecourts.gov.in/hcservices/ ACCUSED CHARGES GUILTY PUNISHMENT A-2 & A-3 364 r/w 34, 302 r/w 34 & 201 IPC 364 r/w 34 IPC 302 r/w 34 IPC 201 IPC 5 years RI & a fine of Rs.1000/-,i.d. 6 months SI Life imprisonment & a fine of Rs.3000/- i.d. 6 months SI 2 years RI & a fine of Rs.1000/- i.d. 6 months SI 3.The short facts necessary for the disposal of these appeals can be stated thus: (a) All these three accused, one Manickam and P.W.8 were close friends. They were spending their time by consuming liquor. P.W.3 is the mother of the deceased Karuppasamy. He was an agriculturist. He had the liquor habits. Three months prior to the occurrence, Karuppasamy on the assurance of giving a bike, got Rs.3,000/- from A-1 which he did not repay. Whenever demands were made, he was giving evasive answers, and hence A-2 felt cheated. Hence he hatched up a plan along with A-1, A-3 and the other shown as A-4 in the FIR by name Manickam, to finish off Karuppasamy. Accordingly, on 2.12.2004, accompanied by P.W.8, A-1 went to the house of Karuppasamy and took him on the guise of taking over to Cinema Theatre. The same was known to P.W.3, the mother of Karuppasamy. They proceeded to Jayasakthi Theatre. All of them witnessed a film and thereafter, at about 5.30 P.M., they went to TASMAC shop and had half bottle of rum. After consuming the same, again they proceeded to the house of Karuppasamy. In the meanwhile, P.W.6, the cousin brother of the deceased, witnessed all the three. Karuppasamy went inside the house and took two battery cells and a light when P.W.3 his mother, was staying over there. Karuppasamy was taken by A-1 and P.W.8 in the same motorbike. All the three proceeded to Nagaranai and leaving P.W.8 in his nearby garden, A-1 took the deceased. He was taken to the place of occurrence namely a culvert which is situated on the main road between Anna Nagar and Kurumbapalayam where A-2, A-3 and A-4 were waiting. A-2 demanded money for which the deceased replied that he would not. Immediately, A-1 and A-2 attacked him with patta knife and aruval respectively repeatedly while the other two accused held him and caused his death and threw the dead body in the nearby canal. Then they left the place of occurrence. (b) On 4.12.2004, P.W.2 on seeing the dead body informed to P.W.1, the Village Administrative Officer, who in turn after seeing the dead body, gave the complaint under Ex.P1 before the respondent police. Immediately, the information was given to https://hcservices.ecourts.gov.in/hcservices/ P.Ws.3 and 7 who went to the spot and identified the dead body. On the strength of Ex.P1, the complaint, given by P.W.1, a case was registered by P.W.17, the Inspector of Police, attached to the respondent Police Station, in Crime No.425/2004 under Sec.302 of IPC. Ex.P23, is the printed First Information Report. The same was despatched to the Court. Then, he took up the investigation, proceeded to the scene of occurrence, made an inspection and prepared an observation mahazar, Ex.P2, and a rough sketch, Ex.P24. He recovered the material objects from the place of occurrence which are 11 in number, and further he conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared Ex.P25, the inquest report. The dead body was sent to the Government Hospital along with a requisition for the purpose of autopsy. (c) P.W.4, the Civil Surgeon, attached to the Government Hospital, Sathyamangalam, on receipt of the requisition, conducted autopsy on the dead body of Karuppasamy and has noticed 11 injuries. He has issued a postmortem certificate Ex.P15, with his opinion that the deceased would appear to have died of shock and haemorrhage and the injury to neck 36 to 72 hours prior to autopsy. (d) On 6.3.2005, the Investigator arrested the absconding accused Manickam. On arrest, he came forward to give a confessional statement, which was recorded in the presence of witnesses. The admissible part is marked as Ex.P5. Pursuant to the same, he produced M.O.12, battery light, which was recovered under a cover of mahazar. Then, he identified A-2 pursuant to which A-2 was also arrested. He gave a confessional statement. The admissible part is Ex.P7. He produced M.O.13, vettaruval, which was recovered under a cover of mahazar. Then, both the accused identified A-3, and A-3 was arrested. He gave a confessional statement, the admissible part of which is Ex.P9. He produced M.O.14, patta knife, which was recovered under a cover of mahazar. All the accused were sent for judicial remand. Following the same, the Investigator came to know that A-1 was arrested in connection with the case registered by Tiruppur North Police Station. He was taken on P.T. Warrant. At that time, he came forward to give a confessional statement. On 4.5.2005, A-1 pursuant to the confessional statement given by him, produced M.O.15, patta knife, which was recovered under a cover of mahazar, and also he took the police party to P.W.12, from whom the motor bike bearing registration No.38A 8589, was recovered under Ex.P13, the mahazar. The collected material objects were sent for chemical analysis, which brought forth two reports namely Chemical Analyst's report, Ex.P19, and the Serologist's reports, Exs.P20 and P21. On completion of investigation, the Investigator filed the final report. 4.The case was committed to Court of Session in respect of A- 1 to A-3, and necessary charges were framed. As regards A-4, the case was split up since he was absconding for a longtime. The prosecution in order to substantiate the charges, marched 17 https://hcservices.ecourts.gov.in/hcservices/ witnesses and also relied on 25 exhibits and 22 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses. They denied them as false. No witness was examined on their side, and no documents were marked. The Court below heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt in respect of A-1 to A-3. The trial Court found them guilty as per the charges and awarded punishment as referred to above. Hence these independent appeals at the instance of A-1 to A-3. 5.Advancing arguments on behalf of the appellant/A-1, the learned Counsel would submit that in the instant case, the prosecution had no direct evidence to offer; that it rested its case on the circumstantial evidence; and that the circumstances which were placed by the prosecution before the trial Court, were neither sufficient nor would be pointing to the guilt of the accused. 6.The learned Counsel would further submit that the prosecution rested its case on the last seen theory and the recovery of the material objects; that apart from that, the trial Court has placed much reliance on the statements recorded under Sec.164 Cr.P.C. by the Judicial Magistrate and has come to the conclusion that the accused have committed the offence; that as far as the last seen theory was concerned, the prosecution examined P.Ws.3, 6, 8 and 9; that P.W.3 is the mother of the deceased; that according to her, A-1 accompanied by P.W.8 came to the house and took him in the noon hours and thereafter, at about 7.00 P.M., all the three came back and her son took the battery cells and also a light from the house; that this evidence is belied by the evidence of P.W.8; that according to P.W.8, he joined the company of A-1 in the noon hours and till 6.00 P.M., he was with him and also along with the deceased; but, nowhere he has whispered that they went to the house of the deceased, and thus, the evidence of P.W.3 should have been rejected; that as far as the evidence of P.W.8 was concerned, it cannot be taken as a piece of evidence to speak of the last seen theory since even according to P.W.8, he was in the company of A-1 and deceased till 6.00 P.M.; but according to the prosecution, the occurrence has taken place at 11.00 P.M.; that under the circumstances, that evidence cannot be given any credence at all in respect of the last seen theory; that as far as the other two witnesses were concerned, according to P.W.6, he is the cousin brother of the deceased, and thus, he was a planted witness; that he has also seen them only at about 2.00 P.M., but, the occurrence has taken place at about 11.00 P.M.; and hence the evidence of P.W.6 cannot also be taken advantage, nor was it useful to the prosecution; that as regards P.W.9, he sold the rum to the deceased and P.W.8, and therefore he has not identified A-1 or any one of the accused; that the evidence of P.W.9 was also not helpful to the prosecution, and hence, the prosecution has miserably failed to prove the last seen theory. https://hcservices.ecourts.gov.in/hcservices/ 7.Added further the learned Counsel that as far as the recovery was concerned, according to the prosecution, M.O.15, patta knife, and also a motorbike were recovered pursuant to the confessional statement given by A-1; that it is pertinent to point out that the occurrence has taken place on 2.12.2004; that the complaint was given on 4.12.2004; that A-1 was actually in custody in connection with some other case; that he was taken to custody by the respondent police following a PT warrant on 4.5.2005, after a long interval; that according to the prosecution, pursuant to the confessional statement, M.O.15, patta knife, was recovered from him; that the place wherefrom it has been recovered was very far off from the place of occurrence; that under the circumstances, it would cast a doubt; that apart from that, that was also after a long interval of time; that according to P.W.3, she saw A-1 in the police station within a week from time of occurrence; and that according to P.W.12, a witness examined for the recovery of motorbike, it was within a month or two; but, there was an interval of 4 or 5 months. 8.The learned Counsel would further add that as far as the recovery of motorbike was concerned, there was no proper evidence; that it was recovered from a person who was identified by A-6, and therefore, this recovery part was also not helpful to the prosecution. Relying on a decision of the Supreme Court reported in AIR 2008 SUPREME COURT 1021 (MANI V. STATE OF TAMIL NADU), the learned Counsel would submit that mere recovery of the material objects or the weapon of crime from the accused even pursuant to the confessional statement, would not be sufficient to sustain a conviction, and hence the prosecution has miserably failed to prove its case, and A-1 is entitled for acquittal. 9.The learned Counsel for the appellants/A-2 and A-3 that as far as these accused were concerned, there was no evidence at all connecting them with the crime in question; that the trial Court has failed to consider both the factual and legal position, and hence they are entitled for acquittal in the hands of this Court. 10.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious attention over the same. 11.It is not in controversy that one Karuppasamy son of P.W.3, was done to death in an incident that had taken place during the night hours of 2.12.2004 at the place of occurrence. After the inquest was made by the Investigating Officer, the dead body was subjected to postmortem by P.W.4, the Doctor, who has given his categorical opinion that the death was due to the shock and haemorrhage and also due to the injuries sustained. That apart, the fact that Karuppasamy died out of homicidal violence was never questioned by the appellants/accused at any point of time or at any stage of the proceedings. As far as the identify is concerned, P.Ws.3 and 7 have identified the dead body, and this fact is also not questioned by the appellants/accused. Hence it could be recorded that Karuppasamy died out of homicidal violence. https://hcservices.ecourts.gov.in/hcservices/ 12.True it is that the prosecution had no direct evidence to offer, but rested its case entirely on the circumstantial evidence. As could be seen from the available materials, the prosecution rested its case on two circumstances. One is the last seen theory, and the other is the recovery of the weapon of crime. At this juncture, it is pertinent to point out that from the analysis of the evidence in entirety, this Court is unable to see any material to link either A-2 or A-3 with the crime in question. What are all brought forth by the prosecution in their regard was only the recovery of the patta knife from A-3 and also the battery cell and light from A-2. Except this recovery part, there is nothing placed by the prosecution. It is trite law that merely because of the recovery of the material objects or even the weapon of crime, the Court cannot sustain a conviction. This Court is of the considered opinion that the prosecution has not brought home the guilt of A-2 and A-3 in respect of the crime beyond reasonable doubt, and therefore the Court has to record an order of acquittal as regards A-2 and A-3. 13.As far as the case of A-1 is concerned, this Court has to sustain the judgment of the Court below for the following reasons. In the instant case, there is evidence to indicate that the deceased on the assurance of giving a motorbike, got Rs.3,000/- from A-2, and it was not returned. A-1, A-2 and others were associates, and this, according to the prosecution, is the motive for the crime. At this juncture, it is pertinent to point out that as far as the last seen theory is concerned, this Court is of the considered opinion that the prosecution has got a consistent evidence. P.W.8, admittedly, was a close associate of A-1. On the date of occurrence, according to P.W.3, both A-1 and P.W.8 came to the house in a motorbike and they took him in the noon hours and they returned at 7.00 P.M. But, this part of the evidence cannot be believed in view of P.W.8's evidence who did not say in the course of the entire evidence that he went to the house of P.W.3 at any point of time on 2.12.2004. But, the evidence of P.W.8 in the opinion of the Court is consistent. According to P.W.8, he accompanied A-1 in the motorbike and took the deceased in the bike, and all of them went to the cinema theatre for a matinee show, and they witnessed a film and came out, and they went to the brandy shop and had liquor that time. P.W.9 though not identified A-1 that time, his evidence was available to the extent that they came over there and took the deceased and consumed liquor. As far as P.W.8 was concerned, he would further add that after witnessing a film, they had liquor in the arrack shop and thereafter they proceeded, and he was taken to his garden house and leaving him there, A-1 took the deceased at about 7.00 P.M. on that day. According to the prosecution, that night the occurrence has taken place at about 11.00 P.M. At this juncture, it is pertinent to point out that that in the meanwhile, P.W.6, the cousin brother of the deceased, has also seen the deceased in the company of A-1. In the opinion of the Court, though not the evidence of P.W.3 was not useful, the evidence of P.Ws.6, 8 and 9 are consistent to the effect that they found A-1 https://hcservices.ecourts.gov.in/hcservices/ in the company of the deceased on that day and that too till nearly about 7.00 P.M. The occurrence has taken place within a short interval of four hours. 14.Now, the contention put forth by the learned Counsel for the appellant/A-1 that the occurrence has taken place near a culvert situate on the main road between Anna Nagar and Kurumbapalayam; that in that place, so many persons would have been passing by and hence the occurrence could not have taken place at that time has got to be discountenanced for two reasons. Firstly, the whole occurrence has taken place near a culvert on the road side which is situated away from the residential colony. Secondly, the occurrence has taken place at about 11.00 P.M. Therefore it is quite natural that no one could have seen at that time. Further, in the instant case, yet another circumstance which stood in favour of the prosecution, is the recovery of M.O.15, the weapon of crime. A-1 who was actually involved in a theft case, was taken to custody by Tiruppur North Police Station, and when it came to the knowledge of the Investigator, he was taken on PT warrant. Then he was taken to custody, and he has given a confessional statement pursuant to which he produced M.O.15, patta knife, which has been recovered in the presence of witnesses. The witness in that regard has been examined and his evidence remained intact. The contention put forth by the learned Counsel for A-1 that P.W.3 has given evidence to the effect that within a period of one week, A-1 was found in the police station has got to be brushed aside since he was involved in some other case. Had it been true that he was actually seen in the police station within one week from the time of occurrence, there was no need for the police to wait for five months to take him to custody. The fact that this particular material object was not subjected to chemical analysis by the Forensic Sciences Department cannot be a reason to disbelieve the recovery of the material object. In view of the the last seen theory coupled with the recovery of weapon of crime, this Court is satisfied that the prosecution has brought forth the nexus of the crime with A-1, and he has planned to take him alley for the purpose of causing murder. The occurrence has taken place in a place away from the residential quarters and that too at about 11.00 P.M. In such circumstances, it can be well stated that he has caused the murder intentionally. That apart, in order to screen the evidence, A-1 threw the dead body in the nearby canal. Therefore the judgment of the lower Court in respect of the charges under Sec.364 and 201 of IPC has got to be sustained. The conviction of A-1 under Sec.302 read with 34 IPC is modified, and he is convicted under Sec.302 of IPC. The life imprisonment and fine imposed by the trial Court are confirmed. 15.As regards A-2 and A-3, as stated above, this Court is unable to notice any nexus between the crime and these accused, and they are entitled for acquittal. https://hcservices.ecourts.gov.in/hcservices/ 16.In the result, the appeal filed by A-1 in C.A.No.990 of 2007 is dismissed. It is reported that A-1 is on bail. Hence the Sessions Judge shall take steps to commit him to prison to undergo the sentence imposed on him. C.A.Nos.823 and 1093 of 2007 filed by A-2 and A-3 respectively, are allowed, and they are acquitted of the charges levelled against them. The fine amounts if any paid by them will be refunded to them. The bail bonds executed by them shall stand terminated. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. nsv/ To: 1. The Judicial Magistrate Sathyamangalam. 2. The Chief Judicial Magistrate Erode 3.The Additional Sessions Judge Fast Track Court No.II Gobichettipalayam 4. The Superintendent Central Prison Coimbatore. 5. The Inspector of Police Bhavanisagar Police Station Erode District (Crime No.425/2004) 6.The Public Prosecutor High Court, Madras. 2 ccs t Mr.g. Jawaharlal, Advocate, Sr. 50692, 50387 1 cc to Mr.A.K. Kumarasamy, Advocate, SR. 50574 1 cc to Mr.S. Parthasarathy, Advocate, Sr. 50398 CRL.A.Nos.823, 990 and 1093 of 2007 SSN (CO) kk 18/9 https://hcservices.ecourts.gov.in/hcservices/