BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02/07/2009
CORAM
THE HONOURABLE MRS.JUSTICE R.BANUMATHI
AND
THE HONOURABLE SELVI JUSTICE R.MALA
Criminal Appeal (MD) No.170 of 2008
Babu ..Appellant
vs
State rep. by
Inspector of Police,
Town West Police Station,
Dindigul, Dindigul District.
[Cr.No.350/2002] ..Respondent
Appeal under Section 374 (2) of the Code of Criminal Procedure against the
Judgment dated 20.02.2008 madae in SC NO. 69 of 2006 on the file of Principal
Sessions Judge, Dindigul.
!For Petitioner ... Mr.N.Sathish Babu
^For Respondent ... Mr.Issac Manuel
:JUDGMENT
R.MALA,J
This appeal arises out of verdict of conviction in S.C.No.69/2006 whereby
appellant/accused was convicted U/s.302 and 201 IPC and sentencing him to
undergo life imprisonment and RI for 3 years and imposing fine by the learned
Principal Sessions Judge, Dindigul.
2. Briefly stated case of prosecution is as follows:-
Deceased Ramkumar is the son of PW1-Kannan. Appellant-accused is the
brother's son of PW1. On 13.4.2002 accused came to the house of PW1 asking for
a loan of Rs.1500/- which PW1 declined. Stating that he would try to borrow the
amount from others, accused asked PW1 to give his TVS-50 [TN-57 T 6130] vehicle
so that he could meet other persons and borrow the money. At that time along
with him appellant-accused taken the deceased Ramkumar. Case of prosecution is
that on the way when they went to Chinnalapatti, appellant-accused expressed
his intention to sell TVS-50 vehicle for which deceased Ramkumar raised
objection. Angered over the same, appellant-accused is alleged to have
committed murder of Ramkumar by throttling his neck and after Ramkumar had
fallen down, threw stone on head and face of Ramkumar and committed the murder.
Thereafter, appellant-accused thrown the body of Ramkumar in a Well of
Alagarsamy.
3. PW2-Palaniammal, wife of PW1 informed PW1 that Ramkumar did not return
back to the house. PW1 had taken Pw3-Ravichandran and one Senthilkumar and went
in search of Ramkumar. PW4-Saravanan is alleged to have told PW1 that
appellant-accused had taken Ramkumar [PW4-Saravanan turned hostile].
4. PW1 went to Dindigul Town West Police Station and lodged Ex.P1-
Complaint, on the basis of Ex.P1-Complaint, PW14-S.I. of Police registered the
case in Cr.No.350/2002 under Sec.302 IPC.
5. PW16-Inspector of Police had taken up investigation. He went to
Chinnalapatti Azhagarsami thottam at 11.00 A.M. and prepared Ex.P2-Observation
Mahazar and Ex.P15-Rough Plan. Regarding PW1's house , PW16-Inspector of Police
prepared Ex.P10-Observation Mahazar and E.P17-Rough Plan in the presence of
PW12-Eswaramoorthy and witness Veluchamy. Assistance of fire service was taken
to take the body from the Well.
6. After the body was taken out from the Well, in the presence of
panchayatdars, PW16-Inspector of Police had conducted inquest on the body of
deceased Ramkumar. Ex.P16 is the inquest report. After inquest, body was sent
to autopsy. From the scene of PW16 seized bloodstained stone [MO1],
bloodstained mud[MO2], sample mud[MO3] and cheppals [MO4-series] under Ex.P3-
Mahazar.
7. PW10-Dr. Prabhakaran conducted autopsy on the body of deceased Ramkumar
and noted the following external and internal injuries:-
External injuries:-
Lacerated wounds over the left eyebrow; left lower eyelid; occipital region of
scalp; back of the right ear; right hand in the web space between the thumb and
Index finger.
Contusion over the occipital region of scalp.
Abrasions over the left side of anterior aspect of chest; centre of the chest on
anterior aspect; left cheek; left lower chest on the lateral aspect.
Internal injuries:-
Fracture of ribs on the left side from 1st to 3rd ribs.
Subgaleal haemorrhage present over the occipital region of scalp on right side.
Fracture of skull bone of frontal, temporal and occipital on the right side..
Brain substance congested with subarachnoid haemorrhage present.
Opining that death was due to shock and haemorrhage due to the injuries
sustained by him, PW10 issued Ex.P6 postmortem certificate. After post-mortem,
MO6-underwear and MO7-shirt were seized from the body of the deceased Ramkumar
under Form-95.
8. On 14.4.2002 at 8.00 P.M. on Dindigul-Karur road, near railway gate,
accused was arrested in the presence of PW11-Sethupathi raja and witness
Balasubramani. On being interrogated, accused had voluntarily gave confession
statement. Admissible portion of that confession statement [Ex.P8] let to
recovery of MO5-TVS-50 vehicle under Ex.P9-Mahazar. Accused had small abrasion
on his middle finger measuring 0.5 x 0.5 cm. PW9-Dr.Suresh Babu examined the
accused. Accused had stated that he sustained injuries while he beat Ramkumar
with stone. Opining that the injuries sustained by the accused as simple
injury, PW9 issued Ex.P4-Wound certificate. On receipt of chemical analysis
report and after completion of due investigation, PW16 filed final report
against the accused U/s.302 and 201 IPC.
9. To substantiate the Charges against the accused in the trial court,
prosecution examined PWs.1 to 16 and Exs.P1 to 24 and MOs.1 to 8 were marked.
Accused was questioned U/s.313 Cr.P.C. about the incriminating evidence and
circumstance. Accused denied all of them and stated that a false case is
foisted against him.
10. Upon analysis of evidence, learned Sessions Judge held that
prosecution has proved the guilt of the accused. Pointing out that appellant-
accused having enmity towards the deceased Ramkumar that deceased informed the
accused that he would tell his father regarding selling of TVS-50 and discharge
his loan, learned Sessions Judge rightly held that appellant-accused had motive
and intention to commit murder of deceased Ramkumar and convicted the appellant
under Sec.302 and 201 IPC.
11. Challenging the verdict of conviction, Mr.N.Sathis Babu, learned
counsel for the appellant submitted that the prosecution relied upon only
circumstantial evidence P.Ws.4-Saravanan and P.W.5-Chandrasekar, who are turned
hostile and hence the trial Court has not considered the missing links in the
chain of evidence. Learned counsel for the appellant would further submit that
evidence regarding motive has not been proved by the prosecution and the
evidence adduced to prove last seen theory is not a reliable one. It was
further argued that evidence regarding confession statement and recovery of
Material Objects are not reliable and the evidence of prosecution witnesses are
contradictory with one another and reasonable doubts arise as to prosecution
version and he prayed allowing of appeal and acquittal of the accused.
12. Taking us through the evidence of witnesses, Mr.Issac Manuel, learned
Additional Public Prosecutor submitted that P.W.1 is none other than the senior
paternal uncle of the accused and the deceased Ramkumr is son of P.W.1. Learned
Additional Public Prosecutor further submitted that the accused had taken the
accused on 13.04.2002 at 6.00 P.M, but they have not returned back and P.W.1
came to know that body of his son was floated in the well and subsequently a
complaint was given and during investigation accused/appellant was arrested.
Learned Additional Public Prosecution contended that in pursuance of the
confession statement, recovery of MO5-TVS 50 at the instance of the appellant
and proved circumstances would form a complete chain pointing to the guilt of
the accused and on the well balanced reasonings, trial Court has convicted the
accused and the judgment of the trial Court warrants no interference and he
prayed for the dismissal of appeal.
13. In all cases based upon circumstantial evidence and in this case as
well, the question to be determined is whether the proved circumstances form a
complete chain of circumstances pointing to the guilt of the accused and
excluding any hypothesis compatible with their innocence.
14. It has been consistently laid by the Apex Court that where a case
rests squarely on circumstantial evidence, the inference of guilt can be
justified only when all the incriminating facts and circumstances are found to
be incompatible with the innocence of the accused or the guilt of any other
person. The circumstances from which an inference as to the guilt of the
accused is drawn have to be proved beyond reasonable doubt and have to be shown
to be closely connected with the principal fact sought to be inferred from those
circumstances.
15. In Bhagar Ram v. State of Punjab AIR 1954 SC 621, it was laid down
that where the case depends upon the conclusion drawn from circumstances the
cumulative effect of the circumstances must be such as to negative the innocence
of the accused and bring the offences home beyond any reasonable doubt.
16. A reference may be made to decision in Sharad Birdhichand Sarda v.
State of Maharashtra, AIR 1984 SC 1622 : (1984) 4 SCC 116 : (1984) SCC (Cr) 487,
wherein while dealing with circumstantial evidence, it has been held that onus
was on the prosecution to prove that the chain is complete and the infirmity of
lacuna in prosecution cannot be cured by false defence or plea.
17. Case of prosecution hinges upon circumstantial evidence. Prosecution
relies upon the following circumstances:-
Motive.
Death of deceased is homicidal.
Deceased Ramkumar was last seen alive in the company of accused. by P.W.4
Saravanan and P.W.5 Chandrasekar.
Confession statement of accused and recovery of MO5-TVS 50
MOTIVE:
18. The motive put forth by the prosecution is that the appellant/accused
expressed his intention to sell TVS 50 vehicle belonging to P.W.1, for which,
the deceased Ramkumar raised objection. Angered over the same,
appellant/accused is alleged to have committed murder of Ramkumar by throttling
his neck and after Ramkumar had fallen down, threw stone on head and face of
Ramkumar and committed murder. Therafter, appellant/accused thrown the body of
Ramkumar in a well of Alagarsamy situated in Seeval Saragu village in
Chinnalapatti - Natham Road.
19. In a case based on circumstantial evidence, motive is played a vital
role. It is one of the genesis to be proved. To prove the same, P.W.4
Saravanan was examined, but P.W.4 treated as hostile. P.W.1 has established the
motive part, but it is only a hearsay. In his evidence, P.W.1 has deposed that
while, he was searching his son, at that time, P.W.4 had disclosed the fact that
the accused/appellant has expressed his intention to sell the TVS 50 vehicle for
discharging his debts, for which the deceased raised his objection and so
angered over the deceased, the appellant accused has alleged to have committed
murder by throttling his neck and throwing stone on head and face of the
deceased Ramkumar and committed murder and thrown him into the well. But, the
factum has been put forth during the trial only and the same has not been
mentioned in Ex.P1 complaint. It is only hearsay evidence and the same cannot
be relied upon. If P.W.4 Saravanan has corroborated the evidence of P.W.1, it
will be reliable. But, here, P.Ws.4 was turned hostile. In the above said
circumstances, we are of the considered opinion that the prosecution has
miserably failed to prove the motive for the commission of offence.
Death of the deceased is homicidal:
20. To prove that the death of the deceased is homicidal, P.W.10-
Dr.Prabhakaran, who conducted the autopsy on the body of deceased Ramkumar has
been examined. When P.W.1 came to know that the body of his son was floated in
the well of one Azhagarsamy, he gave a complaint Ex.P1 before P.W.14-Natarajan,
Sub-Inspector of Police, Dindigul Town West Police Station and a case has been
registered in crime No.350 of 2002 under Section 302 I.P.C. Ex.P11 is the
printed F.I.R. On receipt of Ex.P11, P.W.16-IO took up the case for
investigation and conducted inquest before panchayatars and witnesses on the
body of the deceased and sent the body for autopsy. P.W.10-Dr.Prabhakaran
conducted postmortem on the body of the deceased and noted following injuries.
External injuries:-
Lacerated wounds over the left eyebrow; left lower eyelid; occipital region of
scalp; back of the right ear; right hand in the web space between the thumb and
Index finger.
Contusion over the occipital region of scalp.
Abrasions over the left side of anterior aspect of chest; centre of the chest on
anterior aspect; left cheek; left lower chest on the lateral aspect.
Internal injuries:-
Fracture of ribs on the left side from 1st to 3rd ribs.
Subgaleal haemorrhage present over the occipital region of scalp on right side.
Fracture of skull bone of frontal, temporal and occipital on the right side..
Brain substance congested with subarachnoid haemorrhage present.
P.W.10 opined that the death was due to shock and haemorrhage due to the
injuries sustained by him and gave Ex.P6-postmortem certificate. Thus, the
prosecution has proved that the death of the deceased is homicidal.
Last seen alive theory:
21. Since the case is based on the circumstantial evidence that the last
seen theory is played a vital role. To establish last seen theory, prosecution
has examined P.W4 Saravanan and P.W.5 Chandrasekar. But they turned hostile.
They are not supporting the case of prosecution. It is pertinent to note that
P.W.1 has given a complaint Ex.P1. In the complaint, he has not mentioned the
name of P.W.4-Saravanan. If really, P.W.1 met P.W.4 on 14.04.2002 at 6.00 A.M
and P.W.4 given the information to him, P.W.1 very well disclose the same in the
complaint. But, it is true the complaint is not an encyclopedia. The case on
hand is based on circumstantial evidence. All minute details are found place in
Ex.P1, but the vital clue which was given by P.W.4 Saravanan and his name was
not been found place in complaint Ex.P1, which creates mere doubt in the case of
prosecution. Hence, we are of the considered opinion that last seen theory i.e.
the deceased alive has been lastly seen with accused has not proved by the
prosecution.
22. The learned Public Prosecutor would urge that in the transaction of
the murdering the deceased, the accused has also sustained injuries and he was
treated by P.W.9-Dr.Suresh Babu, who gave Ex.P4, Accident Register copy to the
accused and hence the guilt of the accused well founded. But, considering the
above said argument, it is true that after arrest of the accused, he sent to
hospital on 15.04.2002 at 12.35 P.M. for taking treatment. He stated before
P.W.9-Dr.Suresh Babu that when he beat Ramkumar with stone on 14.04.2002 at 8.15
P.M. he sustained injuries. P.W.9-Dr.Suresh Babu has deposed as follows:
"mth; jdf;F 14.4.2002k; njjp md;W ,ut[ 8.15 kzpastpy; fy;yhy; uhk;Fkhiu
vd;gtiu mof;Fk; nghJ jdf;F ifapy; fhak; gl;ljhfr; brhd;dhh;."
At this juncture, the learned appellant counsel would cull out that the day of
occurrence has been mentioned as on 14.04.2002 at 8.15 P.M.; but the body has
been found on 14.04.2002 at 8.00 A.M. and hence the evidence of P.W.9 cannot be
looked into. The accused was arrested on 14.04.2002 in the presence of P.W.11
Sethupathiraja and one Balasubramani. At that time the accused gave a
confession statement voluntarily. In pursuance of the admission portion of
confession statement (Ex.P8), M.O5-TVS 50 was recovered at 7.30 P.M under Ex.p9-
Mahazar in the presence of Ex.P11 Sethupathi Raja and Balasubramani. Thus, the
recovery of M.O5 has been proved by the prosecution.
23. The learned Additional Public Prosecutor would contend that the
accused had taken the deceased along with him, but they were not returned back.
So, it is the duty of the accused to explain as to how the accused sustained
injuries and what happened to the deceased. But, there is no explanation by the
accused and hence the infers to be drawn against the accused. It is pertinent
to note that the deceased was taken by the accused at 6.00 P.M on 13.04.2002.
But, next day, i.e. on 14.04.2002 at 8.00 A.M., P.Ws.1 and 2 found the body of
the deceased and P.W.1 gave a complaint Ex.P.1. But, in between the long gap
i.e. from 6.00 P.M. on 13.04.2002 to 8.00 A.M on 14.04.2002, there is no
convicing evidence has been given by the prosecution to prove that during the
time the deceased was along with accused. The age of the accused 12 years.
24. In the above such circumstances, We are of the considered opinion that
the prosecution has miserably failed to prove as to what happened in the long
gap between 12 hours and hence the prosecution has failed to prove that the
accused has committed the offence.
25. Since the case is based on circumstantial evidence, the prosecution
has failed to prove the motive alleged by the investigating agency. Even though
the death of the deceased has been proved as homicidal and accepted by the trial
Court, the trial Court has committed an error in conclusion that the motive for
the commission of offence and last seen theory have been proved. In the above
said circumstances, the guilty of the genesis has not been formed a chain.
Hence, the prosecution has miserably failed to prove that the appellant/accused
is guilty under Section 302 of I.P.C beyond reasonable doubt and the benefit of
doubt has to be given in favour of the accused/appellant and he is entitled for
acquittal. Since the appellant is acquitted under Section 302 I.P.C, he is also
acquitted under Section 201 I.P.C.
26. In the result, the Criminal Appeal is allowed. The conviction and
sentence passed in S.C.No.69 of 2006 by the learned Principal Sessions Judge,
Dindigul is set aside and the appellant/accused is acquitted. The accused is
directed to be released forthwith unless he is required in connection with any
other case. The fine amount, if any, paid by the appellant/accused shall be
refunded.
arul
To
1. THE PRINCIPAL SESSIONS JUDGE,DINDIGUL
2. THE JUDICIAL MAGISATRATE NO.I, DINDIGUL
3. THE INSPECTOR OF POLICE, TOWN WEST POLICE STATION, DINDIGUL
4. THE ADDITIONAL PUBLIC PROSECUTOR,
MADURAI BENCH OF MADRAS HIGH COURT, MADURAI
5. THE SUPERINTENDENT, CENTRAL PRISON, MADURAI
6. THE DIRECTOR GENERAL OF POLICE, MYLAPORE, CHENNAI 4
7. THE DISTRICT COLLECTOR, DINDIGUL
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