BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :18/03/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN Crl.A.No.155 of 2001 State represented through The Inspector of Police, Cheranmahadevi Police Station, Cr.No.84 of 1997 Tirunelveli District .. Appellant Vs. 1.Seemon 2.Aasir 3.Joseph 4.Ebenezer alias Balakrishnan .. Respondents PRAYER This criminal appeal has been preferred under Section 378 Cr.P.C against the judgment dated 12.05.2000 made in S.C.No.21 of 1999 by the first Additional Sessions Judge, Tirunelveli. !For Appellant ... Mr.S.P.Samuel Raj, Additional Public Prosecutor ^For Respondents ... Mr.J.Ashok for Mr.P.Jayapaul :JUDGMENT
(The judgment of the court was made by M.CHOCKALINGAM, J.)
The State appeals a judgment of the first Additional District Judge,
Tirunelveli made in S.C.No.21 of 1999, whereby the respondents, who were shown
as A1 to A4 on being acquitted of the charges 341 I.P.C against all the accused,
302 read with 109 I.P.C against A1 and 302 read with 34 I.P.C against A2 to 4.
2. The facts, shorn of unnecessary details, for the disposal of the appeal
can be stated thus:-
a) P.W.1 is the wife of the deceased, Jebamani Nadar. They were the
residents of Odakarai. The first accused is the father of A2 and A3, and the
fourth accused is the Son-in-law of A1. Previously one Dharmaraj Nadar, brother
of A1, was murdered, in which A1 to A3 stood charged, and they faced a trial
before the Court of Sessions. In that case, the deceased Jebamani Nadar was one
of the eyewitnesses. On three occasions, the accused by attempting to make
payment and also by threat of murder, tried to prevail that Jebamani not to give
evidence in that case. This was known to P.W.1,P.W.2 and P.W.3. But the
deceased was adamant that he would give evidence as he witnessed the occurrence,
and thus, these accused persons have planned to do away with him before he gives
evidence before the Court. On seeing the dead body of Jebamani Nadar at about
9.00 am on 18.06.1997, P.W.5, the Village Assistant, informed to P.W.1. P.W.1
accompanied by P.W.2 went over to the place and found the dead body of her
husband along with one goat which was alive and the other goat killed. She
proceeded to the respondent Police Station, where P.W.18, the head constable,
was on duty. She gave a complaint Ex.P1, P.W.18 registered a case in Crime
No.84 of 1997 under Section 302 I.P.C., and the Express FIR, Ex.P.30, was
despatched to the Court by P.W.16.
b)P.W.19, the Inspector of Police, Ambasamudram Circle, was in additional
charge of Cheranmahadevi Division. On receipt of the copy of the FIR, he took
up the investigation, proceeded to the scene of occurrence, made an inspection
in the presence of witnesses and prepared Ex.P.31, the Observation mahazar, and
Ex.P.32, the rough sketch. Further, he enquired some witnesses and recorded
their statements. He recovered sample earth, bloodstained earth and also other
material objects from the place of occurrence under a cover of mahazer in the
presence of witnesses. The investigator conducted inquest on the dead body of
the deceased in the presence of the witnesses and panchayatdars and prepared an
inquest report, which is marked as Ex.P.33.
c)Following the same, the dead body of the deceased was sent to the
government hospital, for the purpose of autopsy. P.W.13, the Doctor, attached
to Government Hospital, on receipt of the requisition conducted autopsy on the
dead body of the deceased and issued Ex.P.25, the post-mortem certificate,
opining that the deceased would appear to have died due to shock due to head
injury, cervical injury and shock due to hypovoleam.
d) Further investigation was taken up by P.W.20. Pending investigation he
arrested A3 and A4 on 19.06.1997. Both of them gave confessional statements
voluntarily, and the admissible part of the confessional statements of A3 and A4
were marked as Ex.P.36 and 37 respectively. Consequent upon the same, A3
produced M.O.1 aruval, and A4 produced M.O.2 aruval, which were recovered under
a cover of mahazar independently. A3 and A4 were sent for judicial remand.
The investigator came to know that A1 and A2 surrendered before the Judicial
Magistrate, Nagercoil, on 02.07.1997, and an application for taking them to
police custody was made. Accordingly they were taken in to police custody, and
on enquiry, A1 and A2 came forward to give a confessional statements
voluntarily, and the admissible parts of the said confessions were marked as
Exs.P.40 and 41 respectively. Following the same, A2 produced M.O.3 aruval and
A1 produced M.O.4 aruval, which were recovered under a cover of mahazar. Then,
they were also sent for judicial remand.
e) All the material objects recovered from the place of occurrence, from
the dead body of the deceased and the Material Objects recovered from the
accused, were sent for chemical analysis pursuant to a requisition given by the
Investigating Officer to the concerned Judicial Magistrate. Two reports were
received. One is Ex.P.26, the Chemical analyst’s report, and the other is
Ex.P.27, the Serologist’s report. On completion of the investigation, the
Investigating Officer has filed the final report before the concerned court,
which in turn committed the case to the Court of Sessions, and necessary charges
were framed, and the case was taken up for trial.
f) In order to substantiate the charges, at the time of trial, the
prosecution examined 20 witnesses and relied on 46 exhibits and 14 M.Os. On
completion of the evidence on the side of the prosecution, the
accused/appellants were questioned under Section 313 Cr.P.C. as to the
incriminating circumstances found in the evidence of prosecution witnesses. He
denied them as false. No defence witness was examined. One Court Assistant was
examined as C.W.1, through whom two documents were marked as Exs.C1 and C2.
After hearing the arguments of the counsel and looking into the material
available meticulously, the lower court took the view that the prosecution has
not proved the case beyond reasonable doubt and found the accused not guilty and
passed an order of acquittal which is being challenged by the State in this
appeal.
3.Advancing arguments on behalf of the State, the learned Additional
Public Prosecutor submits that the lower Court has not properly considered the
evidence adduced by the prosecution in the proper perspective. The prosecution
has clearly by acceptable evidence proved that the accused had a strong motive
to do the crime of murder, on the deceased Jebamani. There is ample evidence to
indicate Jebamani, who was a witness in the case in which these accused A1 to A3
faced a charge of murder of the elder brother of A1, was an eyewitness, and the
deceased Jebamani was threatened in his house by the accused not to give
evidence in that murder case. On the second occasion, they sent a messenger and
made an attempt to give Rs.2,000/-, and on the third occasion again, they made
open threat if he gives evidence he would be finished off. Despite all these
things, Jebamani Nadar informed that he would depose before the Trial Court what
he wants, and thus, the lower Court has also accepted that part of the evidence
adduced by the prosecution in order to prove the motive. It is true that the
prosecution has no direct evidence to offer, but rested its case on other
circumstances.
4. The first circumstance relied on by the learned Additional Public
Prosecutor is that P.Ws.8, 11 and 12 have seen all the accused along with the
deceased near by at the time and place of occurrence. It is true that they have
turned hostile. But even though they turned hostile, they have clearly spoken
about the which is necessary for the prosecution pointing to the complecity of
these accused. Yet another circumstances in favour of the prosecution was the
arrest of A3 and A4, and recovery of M.Os.1 and 2 aruvals, the weapons of crime,
in the presence of P.Ws.4 and 5, and also the recovery of M.Os.1 and 2 pursuant
to their confession voluntarily made in the presence of P.Ws.6 and 7. The lower
Court has much committed upon that all these four witnesses namely P.Ws.4 to 7,
have turned hostile, and hence, that apart of the evidence adduced by the
prosecution with regard to the arrest and confessional statements and recovery
of the weapons of crime cannot be believed. In the instant case though all
those four witnesses have turned hostile, the evidence of the investigator is
available to the prosecution. This Court had no reason to reject his evidence.
Yet another circumstances, connecting the accused to the crime in that all the
material objects including the weapons of crime, were subjected to analysis by
the forensic department. The serologist’s report would clearly indicate that
the material objects recovered from the place of occurrence and also from the
dead body and also the weapons of crime contained the same blood group and thus
the scientific evidence was fully in favour of the prosecution. All put
together would be pointing to the guilt of the accused, but the lower Court has
not considered the same and has acquitted on the flimsy reasons. The judgment
of the lower Court is perverse and without proper reasons whatsoever, and they
have got to be dealt with in accordance with law on the available evidence
recorded by the trial Court.
5. Heard Mr.J.Ashok, learned counsel appearing for the respondents, who
made submissions in his sincere attempt of affirming the judgment of the Court
below. The Court paid his anxious consideration on the submissions made on
either side and also made a thorough scrutiny of the entire materials.
6. At the outset, it has got to be pointed out that the judgment of
acquittal recorded by the trial Court should not be disturbed unless and until
the judgment of the trial Court is perverse and a decision of acquittal has been
arrived at without proper reasoning. If this legal principle is applied, Court
is very much afraid whether the judgment of the lower Court could be disturbed.
The case of the prosecution as could be seen above in short is that despite
their attempts to desist the deceased Jebamani Nadar from giving evidence in an
earlier murder case, in which the respondents 1 to 3 were involved, they cannot
convince him and the deceased made in clear terms that he would give evidence in
that murder case and pursuant to a plan, all these four accused/respondents
attacked him on the night of 18.06.1997 and he was done to death.
7.A careful perusal of the records and the evidence adduced through P.Ws.1
and 2, would make it abundantly clear that the elder brother of the first
accused was already murdered, and these accused A1 to A3 were facing a trial,
and the deceased Jebamani Nadar in the instant case was one of the occurrence
witnesses and A1 to A3 failed in their attempt of stopping him from giving
evidence before the trial Court, and the deceased Jebamani Nadar was certain in
giving evidence under the circumstances, they were motivated to finish him
before he gives evidence before the trial Court. No doubt the prosecution was
successful enough in proving the motive attributed to the accused. Prosecution
was also successful enough in proving the fact that Jebamani Nadar has died out
of homicidal violence by marking the inquest report and also the post mortem
certificate issued by the doctor and also by his evidence. In the instant case,
prosecution had no direct evidence to offer before the trial Court. It relied
upon certain circumstances. Needless to say, in a given case like this, where
the prosecution rested its case exclusively on the circumstances, even one
circumstance would suffice pointing to the guilt of the accused. If there are
number of circumstances available before the trial Court, the circumstances
placed and proved must constitute a chain without a snap, and it must also be
pointing to the hypothesis that except the accused no one could have committed
the offence. In the instant case, the prosecution has now placed the
circumstances in order to prove the case. According to the prosecution,
P.Ws.8,11 and 12 have seen all the accused and the deceased at the time and
place of occurrence, but all these witnesses unfortunately have turned hostile.
8.The second circumstance was the recovery of the weapons of crime,
following the confessional statements alleged to have been made by the accused
to the investigator. In this regard, the prosecution in respect of the
confessional statements and recovery of weapons of crime from A3 and A4,
examined two witness namely P.Ws.4 and 5, who have turned hostile. Equally, two
witness, P.Ws.6 and 7 examined to prove the confessional statements of A1 and A2
and the consequent recovery, have also turned hostile, and thus, in so far as
the confessions leading to recovery, all the witnesses have turned hostile. The
contention put forth by the learned Additional Public Prosecutor that though
those witnesses have turned hostile, the prosecution had to its benefit the
evidence of the investigating officer, and there was no reason to reject his
testimony. It is true that the evidence of police official must be looked into
as that of an ordinary evidence adduced. But, in the instant case, it was not
the evidence of police official only available. But, four more witness have
been examined, and all have turned hostile. No one can support the case of
prosecution, and in such a situation, the evidence of investigating officer
cannot be taken to accept the case of prosecution and sustain a conviction.
9.Further, the last submission made by the learned Additional Public
Prosecutor also falls to ground. According to him, all the material objects and
scientific evidence are in favour of the prosecution, since the blood group
found in all the material objects recovered from the place of occurrence and
from the dead body of the deceased and also weapons of crime tallied. At this
juncture, it should not be forgotten that the witnesses for the observation
mahazar and recovery of material objects have turned hostile. Needless to say
in a given case like this, where the recovery is proved by sufficient evidence,
that cannot be a basis to sustain a conviction. Under the circumstances, the
prosecution was able to prove the motive part and also Jebamani died out of
homicidal violence. But, it has miserably failed to atleast place or prove one
circumstance connecting the accused/respondents to the crime in question, and
hence, the lower Court was perfectly correct in rejecting the case of
prosecution. It cannot be stated that the judgment of the lower Court lacked
reasons, and it has got to be affirmed. Accordingly, the Criminal Appeal is
dismissed.
ssm/arul
To
1.The First Additional Sessions Judge,
Tirunelveli.
2.The Inspector of Police,
Cheranmahadevi Police Station,
Tirunelveli District.
3.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.