BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 23/12/2005 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA AND THE HONOURABLE MR. JUSTICE AR. RAMALINGAM CRIMINAL APPEAL NO.202 OF 2005 Balaprasanna So. Sivakumar ... Appellant Vs. Inspector of Police, Anna Nagar Police Station (B-16) Madurai District. Crime No.211 of 2003 ... Respondent Appeal filed under Section 374 of Cr.P.C. against the judgment dated 7.4.2005 in S.C.No.147 of 2004, on the file of Principal District Judge, Madurai. !For Appellant ... Mr.A. Padmanabhan ^For Respondent ... Mr.K. Chellapandian Addl. Public Prosecutor :JUDGMENT
The appellant has been convicted under Section 302 IPC and
sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- in
default to undergo R.I. for one year. He was also convicted under Section 392
r/w.397 IPC and sentenced to undergo R.I. for 10 years and to pay a fine of
Rs.10,000/- in default to undergo R.I. for one year. Both the sentences have
been ordered to run consecutively.
2. The prosecution case is as follows :-
The deceased is one Mayurani, a Srilankan student, who was residing in the
first floor of the house belonging to one Solaimalai (P.W.1). The accused is
also a Srilankan student studying in a different college, but staying in the
second floor of the same premises. The occurrence allegedly took place in the
afternoon of 22.4.2003. The First Information Report was lodged by P.W.1 on
24.4.2003 at about 9.30 AM. It was indicated in the First Information Report
that on 24.4.2003 at 9.00 A.M., while the informant had gone to perform pooja in
the first floor of the house, he smelt foul odour in the last room of the first
floor and found blood seeping through the front door. On opening the window he
noticed that Mayurani was lying in a pool of blood with her face covered with a
bag. On the basis of the aforesaid F.I.R., investigation was taken up initially
by P.W.40. Subsequently on the basis of the order of the High Court, such
investigation was completed by P.W.42.
2.1 The accused is stated to have been arrested on suspicion on
26.4.2003. On the basis of the statement of the accused, prosecution discovered
many materials including a knife and a log allegedly used for killing.
Initially P.W.40 suspected the role of P.W.1, his wife P.W.2, P.W.3, from whose
house certain incriminating materials were recovered allegedly on the basis of
statement of the accused as well as P.W.4, who was working as a cleaner in the
vehicle of P.W.1. Subsequently, however, P.W.42, who took over investigation
from P.W.40 filed charge-sheet only against the present appellant on the footing
that P.Ws.1 to 4 had no role to play in the crime.
3. The prosecution relied upon only circumstantial evidence, namely,
confessional statements of the accused leading to recovery of various
incriminating materials. Ex.P-6 is the statement leading to recovery of Travel
bags (M.Os.2 & 3), knife (M.O.5), wooden log (M.O.28), rubber gloves (M.O.29
series) cotton rope with human hair (M.O.30 series), two sponges soaked with
blood (M.O.31 series), bloodstained blue colour jean pant (M.O.32), bloodstained
white banian (M.O.33), colour banian (M.O.34), bloodstained grey colour pant
(M.O.35),
bloodstained pillow (M.O.36), plastic bucket, (M.O.37) from the house of P.W.3.
Ex.P-8 is the statement leading to recovery of computer and its accessories
(M.Os.6 to 17) from the house of P.W.15, a classmate of the accused. Ex.P-10 is
the statement relating to jewelleries, ultimately leading to recovery of gold
ingots (M.O.18 series) from the house of P.W.19 on the basis of other connecting
statements of P.W.17 and P.W.18. These three statements, Exs.P.6, P-8 and P-10
dated 26.4.2003, were made before P.W.40 in the presence of P.W.22 and C.W.1.
The other confessional statement Ex.P-12 dated 22.9.20003 made before P.W.42 and
Subbiah and P.W.24, led to recovery of “M” dollar (M.O.38) and key with key
chain (M.O.39) from the toilet in the room of the accused. The prosecution has
also relied upon the alleged motive to the effect that the accused urgently
wanted money with a view to increase his marks in mathematics and, therefore,
the accused had stolen articles belonging to the deceased.
4. The trial court has relied upon the following circumstances to
hold that the appellant is guilty of the offences under Sections.302, 392
r/w.397 IPC. :
(a) The death is homicidal.
(b) The accused was in need of money to chase mathematics paper and for
the aforesaid purpose he has killed the deceased to take away the valuable
articles like computer and gold ornaments to sell such articles in the market.
(c) At the time of occurrence, only the accused, deceased and P.W.9 were
available in the premises and there was no other person.
(d) Statement of the accused leading to recovery of incriminating
materials such as knife, rope, clothes, wooden log and other valuable articles
such as computer, gold ornaments, “M” Dollar and the key chain with key
belonging to the deceased.
5. So far as homicidal nature of death is concerned, the evidence of
the Doctor P.W.41 along with the post mortem report makes it clear that the
death was homicidal and not suicidal or accidental.
6. Coming to the question of motive, the prosecution has relied upon
the evidence of P.W.15, P.W.16 and P.W.17 to the effect that the accused wanted
to join engineering or medical course and since he had not fared well in
Mathematics paper of +2, he wanted to boost the mathematics marks through
bribery and for the aforesaid purpose he was in need of money.
6.1. Law is well settled that when there is direct evidence relating
to culpability of an accused in a murder case, the motive is immaterial. But,
in a case depending upon the circumstantial evidence, proof of strong motive is
considered as an additional link. In 1994 Supp.(2) SCC 372 (Arjun Mark and
others vs. State of Bihar), while considering the question of motive, it was
observed:
“10….. In this connection it may first be pointed out that mere absence
of proof of motive for commission of crime cannot be a ground to presume the
innocence of an accused if the involvement of the accused is otherwise
established. But it has to be remembered that in incidents in which the only
evidence available is circumstantial evidence then in that event the motive does
assume importance if it is established from the evidence on record that the
accused had a strong motive and also an opportunity to commit the crime and the
established circumstances along with the explanation of the accused, if any,
exclude the reasonable possibility of anyone else being the perpetrator of the
crime then the chain of evidence may be considered to show that within all human
probability the must have been committed by the accused.”
7. In the present case, the prosecution witnesses have stated that
the accused wanted to pursue medical or engineering course. If the accused
actually wanted to pursue medical examination and he had fared poorly in
mathematics, there won’t be any necessity to the accused for thinking of chasing
marks in mathematics. However, high marks in mathematics would be helpful in
pursuing engineering course. Even though the prosecution states that the
accused had not fared well in mathematics, no efforts were made by the
prosecution to find out the actual marks secured by the accused. Even the
evidence relating to lack of financial background of the accused does not appear
to be strong enough. Even the prosecution witnesses have admitted that the
accused was spending money liberally on many occasions and it cannot be said
that the accused was in a very dire strait financially. The so called motive
sought to be established by the prosecution does not appear to have been proved
through cogent evidence.
8. Another circumstance relied upon by the prosecution is to the
effect that at the time when the occurrence had taken place, except the accused,
the deceased and P.W.9, there was none-else in the house. For the aforesaid
purpose, the prosecution has relied upon the evidence of the Doctor and the post
mortem report to the effect that there was partly digested food articles in the
stomach. The prosecution has also relied upon the statement of P.W.32 to the
effect that the deceased had taken meal in the college mess at about 1.30 P.M.
and the evidence of P.W.9, the maidservant of P.W.1 to the effect that the
deceased had returned to her room at 2.00 P.M. It is the further evidence of
P.W.9 that at 3.00 P.M. she had heard a sound in the upstairs and at about 3.30
P.M. the accused came down with some articles in a gunny bag and the computer
and the accessories. Even though P.W.9 states about the presence of the deceased
and also the accused, her evidence does not exclude the possibility of any other
person entering inside the house. Even the alleged time of assault or death is
only based on opinion of the doctor P.W.41.
9. The main circumstance relied upon by the prosecution relates to
the statements of the accused leading to discovery of material facts, admissible
under Section 27 of the Evidence Act.
10. Law is well settled that the prosecution while relying upon the
confessional statement leading to discovery of articles under Section 27 of the
Evidence Act, has to prove through cogent evidence that the statement has been
made voluntarily and leads to discovery of the relevant facts. The scope and
ambit of Section 27 in the Evidence Act had been stated and restated in several
decisions of the Supreme Court. However in almost all such decisions reference
is made to the observation of the Privy Council in AIR 1947 PC 67 (Pulukuri
Kotayya v. Emperor). It worthwhile to extract such quoted observation.
“It is fallacious to treat the ‘fact discovered’ within the section as
equivalent to the object produced : the fact discovered embraces the place from
which the object is produced and the knowledge of the accused as to this and the
information given must relate distinctly to this fact. Information as to past
user or the past history, of the object produced is not related to his discovery
in the setting in which it is discovered. Information supplied by a person in
custody that ‘I will produce a knife concealed in the roof of my house’ does not
lead to the discovery of the knife : knives were discovered many years ago. It
leads to the discovery of the fact that a knife is concealed in the house of the
informant to his knowledge, and if the knife is proved to have been used in the
commission of the offence, the fact discovered is very relevant. But if to the
statement the words be added ‘with which stabbed A.’, these words are
inadmissible since they do not related to the discovery of the knife in the
house of the informant. (p.77)”
11.After approving the aforesaid observation and referring to
several other Supreme Court decisions, the various requirements of Section 27
have been summed up in AIR 2004 SC 2865 (Anter Singh v. State of Rajasthan) in
the following manner.
“16…..(1)The fact of which evidence is sought to be given must be
relevant to the issue. It must be borne in mind that the provision has nothing
to do with question of relevancy. The relevancy of the fact discovered must be
established according to the prescriptions relating to relevancy of other
evidence connecting it with the crime in order to make the fact discovered
admissible.
(2)The fact must have been discovered.
(3) The discovery must have been in consequence of some information
received from the accused and not by accused’s own act.
(4) The persons giving the information must be accused of any
offence.
(5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of information received
from an accused in custody must be deposed to.
(7) Thereupon only that portion of the information which relates
distinctly or strictly to the fact discovered can be proved. The rest is
admissible.
17.As observed in Pulukuri Kottaya’s case (supra) it can seldom happen
that information leading to the discovery of a fact forms the foundation of the
prosecution case. It is one link in the chain of proof and the other links must
be forged in manner allowed by law. To similar effect was the view expressed in
K.Chinnaswami Reddy vs. State of Andhra Pradesh and another (1962 SC 1788).”
12.In AIR 1999 SC 3544 (Rammi alias Rameshwar vs. State of Madhya
Pradesh), while considering the scope of Section 27 of the Evidence Act, it was
observed:
“12.True, such information is admissible in evidence under Section 27 of
the Evidence Act, but admissibility alone would not render the evidence,
pertaining to the above information, reliable. While testing the reliability of
such evidence, the Court has to see whether it was voluntarily stated by the
accused.”
13. In the background of the above well settled position of law, it
is now necessary to analyze and appreciate the materials relating to recovery of
various incriminating materials. So far as the recovery of knife, bloodstained
clothes, rope, etc., and the recovery of the computer and gold ingots are
concerned, the prosecution had relied upon the evidence of P.W.40, who was
investigating initially, and the evidence of P.W.22. C.W.1 is also an witness
to the statement.
14. P.W.40, the Investigating Officer, has been substantially
discarded by the prosecution itself. It is the admitted case of the prosecution
that subsequently P.W.40 has been suspended and investigation has been handed
over to P.W.42, since according to the prosecution P.W.40 has procured false
confessional statements implicating P.Ws. 1 to 4. As per such statements, P.W.1
is supposed to have been given a key of the room of the deceased, which is
stated to have been recovered from the dash board of the car of P.W.1. On the
basis of such statement, P.Ws.1 to 4 have been arrested. According to the own
case of the prosecution, such efforts have been made by P.W.40 with a view to
implicate falsely P.Ws.1 to 4 and for the aforesaid purpose a departmental
proceeding was also initiated. When the prosecution itself is doubting the
bona fides of P.W.40, it would be very hazardous to rely on the very same
P.W.40, so far as the present accused is concerned, in the absence of strong
independent evidence.
15. P.W.22 and C.W.1 are the two witnesses in whose presence the
confessional statements had been allegedly made by the accused. Even according
to the statement of the subsequent Investigating Officer, P.W.42, several blank
papers with the signature of P.W.22 and C.W.1 had been taken by P.W.40 and such
documents had been used by P.W.40 to create false records to implicate P.Ws.1 to
4. In such a murky background, where the prosecution is doubting its own
investigating agency, it would be indeed very hazardous to place any implicit
reliance upon other portion of the evidence of P.W.40 regarding the alleged
confessional statement.
16. That apart, the materials on record such as the statement of
P.W.22 recorded under Section 164 and the statement of C.W.1 raise a reasonable
doubt relating to voluntariness of the alleged confession. P.W.22, who is a
close relation of the deceased (cousin) has stated that two days after the
occurrence after the information that Bala Prasana was roaming near LIG Colony,
Anna Nagar police brought him to the police station and Bala Prasanna was
arrested at 5.00 P.M. and was taken to the police station and a witness was
present there. It is further stated that at the time of enquiry, the accused
was beaten up by the police and they have seized a gold ring and Rs.5000/- cash
from him. If this is the statement of P.W.22 recorded under Section 164, a
witness in whose presence the confessional statement leading to discovery of
articles from the house of Hajeeali, P.W.3 had been made, it raises serious
doubt regarding the voluntariness of the statement. In this context, it is also
note worthy to indicate that C.W.1 in his evidence has stated that the accused
was in police station on 24.4.2003 itself. Similar statement is made by P.W.4.
That apart C.W.1 has stated that no statement has been made in his presence.
The prosecution version to the effect that even some signatures on blank papers
had been taken from P.W.22 and C.W.1 thus assumes great importance.
17. The alleged statement made by the accused led to discovery of
knife, bloodstained clothes, rope, etc. Unfortunately for the prosecution there
is no evidence to show that in fact the wearing apparels containing bloodstains
belonged to the accused, save and except the alleged confessional statement. No
witness has spoken that those clothes were worn by the accused at any time far
less at or about the time of occurrence. It is also to be kept in view that
those articles were recovered from the house of P.W.3 and at the initial stage
of investigation, P.W.3 himself was one of the suspected person and he was
arrested. Therefore, the statement of P.W.3 and his mother that those articles
were brought by the accused and left in the upstairs room is to be considered
with a pinch of salt. Moreover, there is nothing to indicate that in fact the
bloodstained clothes and rope had tallied with the blood grouping of the
deceased. The knife did not contain any bloodstain. Therefore, these aspect
relating to recovery of articles from the house of P.W.3 and his mother cannot
be considered as a link to complete the chain of circumstantial evidence.
18. The next recovery relates to recovery of computer and
accessories. Apart from the fact that there is niggling doubt about the so
called confession, in view of 164 Cr.P.C. statement of P.W.22 and the statement
of C.W.1, a further doubt is raised regarding such aspect in view of evidence of
C.W.1 to the effect that he had seen such computer in the room of the deceased
when they had gone to the room after the offence was reported. The fact that
C.W.1 is a close relation of the deceased adds weight to his evidence rather
than taking it away. Even accepting that the computer had been given to P.W.15
by the accused, such circumstance by itself does not unerringly points towards
the guilt of the accused either in respect of offence of murder or even robbery.
It is quite possible that such articles might have been borrowed by the accused
from the deceased and not necessarily stolen by the accused from the deceased
after killing her. The fact that P.W.9 had not initially stated anything before
P.sW.40 about the accused coming down with computer at 3.30 P.M. and stated so
for the first time when she was re-examined after 5 months cannot be lost sight
of. As a matter of fact, P.W.9 who was examined on the very date when police
started investigation did not inform the police that she had seen the accused
coming down from upstairs or that the accused had threatened her. Her statement
to the following :-
“I did not tell anyone that Balaprasanna took away the computer and
threatened me. I did not tell this even to the Inspector of Police after going
to the police station. I do not tell this even to P.W.1. …”
19.The next recovery relates to the ingots. For the aforesaid
aspect, the evidence of P.Ws.17, 18 and 19 is relevant. Since the golden
jewellery had been molten and were recovered in the shape of ingots, it would be
very hazardous to come to the conclusion that in fact the golden jewellery
belonged to the deceased. If the accused had killed the deceased and stolen
those golden jewellery, there is no reason as to why he had also not taken ear
rings from the deceased. The fact that ear rings were on the dead body is
admitted by the prosecution.
20. The prosecution has strongly relied upon the fact that “M”
Dollar belonging to the deceased and a chain with key of the room of the
deceased were discovered from inside the toilet in the room which was previously
occupied by the accused. For the aforesaid purpose, they have relied upon the
evidence of P.W.42 and the seizure witness P.W.24. The accused had allegedly
made earlier confessional statement before P.W.40 on 26.4.2003 leading to
discovery of several articles. The subsequent statement spoken to by P.W.42,
the subsequent investigating officer, is alleged to have been made only in
September, 2003, after about five months. So far as the first confession
statement made before P.W.40 is concerned, admittedly the accused was under
physical custody, at that time, whereas at the time of last confession stated
to have been made before P.W.42, the accused was on bail and he had been
summoned by P.W.42 for further examination and, therefore, technically in
custody. If the accused had not made such a statement at such first instance,
when he had confessed about other articles, it is not understood as to how after
5 months when he was on bail he would make such a statement. Such alleged
confession made belatedly thus creates doubt regarding its authenticity or
voluntariness. In this context, it is to be noted that C.W.1 states that “M”
Dollar was taken from him by P.W.42 for the purpose of facilitating
investigation. Keeping in view the fact that C.W.1 is a close relation of the
deceased and obviously interested in punishing the real culprit, such a
statement coming from C.W.1 cannot be slightly brushed aside.
21. The fact that there had been a statement allegedly made by P.W.1
leading to recovery of a parallel key from the dash board of the car of P.W.1,
cannot be lost sight of. It is of course true that the prosecution has tried to
exonerate P.W.1 by adducing evidence through P.Ws.36 and 39 to the effect that
immediately after recovery of the dead body, P.W.40 had taken two such keys,
thus contradicting the alleged confession of P.W.1. However, the very suspicious
role of P.W.40, who apparently was in possession of at least two keys of the
same lock creates suspicion regarding recovery of another key after 5 months.
23. Law is well settled that when the prosecution relies upon
circumstantial evidence, all the links in the chain of circumstances must be
complete and should be proved through cogent evidence. In Dhananjoy Chatterjee
v. State of W.B. (1994)2 SCC 220, while considering the nature of proof required
in a case based on circumstantial evidence, it was observed:
“….the circumstances from which the conclusion of guilt is to be drawn
have not only to be fully established but also that all the circumstances so
established should be of a conclusive nature and consistent only with the
hypothesis of the guilt of the accused. Those circumstances should not be
capable of being explained by any other hypothesis except the guilt of the
accused and the chain of the evidence must be so complete as not to leave any
reasonable ground for the belief consistent with the innocence of the accused.
It needs no reminder that legally established circumstances and not merely
indignation of the court can form the basis of conviction and the more serious
the crime, the greater should be the care taken to scrutinise the evidence lest
suspicion takes the place of proof.”
This observation was followed by the Supreme Court in the decision in (2002) 1
SCC 702 (Subhash Chand v. State of Rajasthan). In this decision, while
concluding, the Court observed :
“24.Thus, none of the pieces of evidence relied on as incriminating, by
the trial court and the High Court, can be treated as incriminating pieces of
circumstantial evidence against the accused. Though the offence is gruesome and
revolts the human conscience but an accused can be convicted only on legal
evidence and if only a chain of circumstantial evidence has been so forged as to
rule out the possibility of any other reasonable hypothesis excepting the guilt
of the accused. In Shankarlal Gyarasilal Dixit case (191) 2 SCC 35) this Court
cautioned–“human nature is too willing, when faced with brutal crimes, to spin
stories out of strong suspicions” (SCC p.44, para 33). This Court has held time
and again that between may be true and must be true there is a long distance to
travel which must be covered by clear, cogent and unimpeachable evidence by the
prosecution before an accused is condemned a convict.”
In AIR 2003 SC 2846 (Golagonda Venkateswara Rao v. State of A.P.) it was
observed:
“6.By now it is well settled principle of law that incases where the
evidence is purely circumstantial in nature, the facts the circumstances from
which the conclusion of guilt is sought to be drawn must be fully established
beyond any reasonable doubt and such circumstances must be consistent and
unerringly point to the guilt of the accused and the chain of circumstances must
be established by the prosecution.”
In AIR 1987 SC 1507 (Kansa Behers vs. State of Orissa) it was observed;
“12…. It is a settled rule of circumstantial evidence that each of
the circumstances have to be established beyond doubt and all the circumstances
must lead to the only one inference and that is of the guilt of the accused.
…”
23.In the present case, some of the links are either non-existent or
very weak or even consistent with the innocence of the accused. The fact that a
heinous and a high profile offence has been committed does not mean that an
order of conviction has to be passed irrespective of the innate strength in the
prosecution case. On the other hand, the fact that such a sensational murder
has been committed would require the court to be more careful to weigh the
various circumstances and obviously the benefit of any reasonable doubt would go
to the accused rather than the benefit of every suspicion going in the
prosecution way.
24. In course of hearing, the learned Addl. Public Prosecutor has
submitted that several witnesses like P.Ws.15, 16, 17, etc. had no axe to grind
against the accused and therefore their statement was entitled to great weight.
In this context, we are only reminded by the observation made by the Supreme
Court in 1981 SCC (Crl) 315 (SHANKARLAL GYARASILAL DIXIT v. STATE OF
MAHARASHTRA) as to why so many would conspire to involve him falsely. In the
words of the Supreme Court,
“The answer to such question is not always easy to give in criminal
cases. Different motives operate in the minds of different persons in the
making of unfounded accusation. Besides, human nature is too willing when faced
with brutal crimes to spin stories out of strong suspicions.”
25. One can only add to such sentiment by observing that in the
present case the prosecution itself has made, according to the subsequent
investigating officer, efforts to implicate many innocent persons like P.Ws.1
to 4. What guarantee can be there for the very same investigating officer not
having falsely implicated the accused in the present case. The court is always
helpless to solve such a conundrum presented before it. Since serious and
reasonable doubts have been raised about the matter in which investigation has
been proceeded at different stages, it would be indeed very difficult, nay,
hazardous to upheld the conviction notwithstanding the seriousness of the crime.
26. The appeal is accordingly allowed and the conviction and
sentence imposed on the appellant/accused by the trial Court in Sessions Case
No.147/2004, dated 07.04.2005, is set aside and the accused is acquitted of all
the charges levelled against him. The appellant is directed to be released
forthwith unless his presence is required in connection with any other case. The
direction of the trial court regarding disposal of various Material Objects, as
contained in the first page of the judgment is confirmed.