JUDGMENT
M. Karpagavinayagam, J.
1. Mohammed Niyas/A.1 and Ibdiagar Ahmad/A.2, the appellants herein were convicted for the offences under Sections 302 r/w. 34 and 380 I.P.C. for having murdered one Loganathan on 2-10-2000 at 1.30 a.m. Challenging the same, this Appeal has been filed by both the accused.
2. The case of the prosecution in brief, is as follows:-
(a) P.W.1 Swaminathan is the father of the deceased. P.W.2 Krishnamurthy is the son of P.W.1 and brother of the deceased. They were having two S.T.D. booths at Thiruppur. One booth was run by the deceased. Another booth was run by P.W.2. P.W.3 Jeyapal was working under the deceased at the telephone booth. The deceased used to open the booth at 6.00 a.m. and it will be kept open till 12.30 midnight. P.W.1, the father of the deceased was staying in the Village. The deceased and P.W.3 were staying in the room near the booth.
(b) On 01-10-2000 at about 3.30 p.m., A.1 came to the booth and requested for money as loan from the deceased. The deceased stated that he would give the money after collection. Again, A.1 came at 7.30 p.m. and asked for money. Even this time, the deceased gave an evasive reply and asked the first accused to come later, as there was crowd. Then, A.1 left the place. The deceased and P.W.3 were checking the accounts till 12.10 midnight (0.10 a.m. on 02-10-2000). P.W.4 Kesavan, the cousin of the deceased came there and took the deceased for taking food. Both of them had food in the mess and they came back after ten minutes.
(c) On 02-10-2000 midnight at about 1.00 a.m. , P.W.5 came to the telephone booth of the deceased and used the telephone for talking to one Veluchamy at Bangalore. At that time, both the accused came there and were quarrelling with the deceased. At that time, the deceased, the owner of the booth shouted at A.1 Mohammed Nias asking him to take away the lame person along with him. Thereafter, P.W.5 went out of the booth after making payment towards the phone bill.
(d) At about 6.00 a.m., P.W.3 came to the booth and opened the shutter of the booth. He saw the deceased lying with face upwards. He tried to wake him up, but he found him dead. P.W.3 contacted P.W.1 over phone and informed about this to him. Then, on coming to know about this, P.W.1 went to the scene of occurrence. P.W.1 on seeing that his son was murdered, he went to the Thiruppur North Police Station and gave a complaint (Ex.P.1) to P.W.9 Inspector of Police at 9.00 a.m. P.W.9 registered a case in Cr.No. 357 of 2000 for the offence under Section 302 I.P.C. P.W.9 then went to the scene of occurrence and observed all the formalities. He held inquest from 11.30 a.m. Thereupon, he sent the dead body for postmortem.
(e) P.W.8 Medical Officer, Thiruppur Government Hospital, conducted autopsy on the dead body of the deceased. Ultimately, he gave Ex.P.14 postmortem certificate giving opinion that the deceased would appear to have died due to antemortem fracture of hyoid bone and ante mortem contusion of thyroid cartilage.
(f) P.W.2 was examined on 04-10-2000. At that time, P.W.2 gave the report Ex.P.2, wherein he had stated that he found billing machine, two telephones, one cell phone and some cash were missing. Based on Ex.P.2, P.W.9 added Section 380 I.P.C. along with 302 I.P.C. On 08-10-2000 at about 7.30 p.m., P.W.9 arrested A.1 and A.2 near the bus stop at Tirupur and on the basis of the confession given by A.1, cash of Rs. 825/- was recovered from A.1 and Rs. 625/- was recovered from A.2. Then, A.1 took the police party and pointed out Ajeez Bakery, from where M.Os. 1 to 3, viz., billing machine, two telephones and one cell phone were recovered. P.W.9 sent the accused for judicial remand and continued the investigation.
(g) P.W.10 took up further investigation from P.W.9 and examined the Medical Officer P.W.8. After completion of the investigation, he filed the final report against the accused on 10-01-2001 for the offences under Sections 302 r/w. 34 and 380 I.P.C.
3. During the course of trial, on the side of prosecution, P.Ws.1 to 10 were examined, Exs. P.1 to P.29 were filed and M.Os. 1 to 12 were marked .
4. After conclusion of the trial, the accused were questioned under Section 313 Cr.P.C. They simply denied their complicity in the crime in question.
5. However, the trial Court accepted the prosecution case and convicted both the accused for the offences under Sections 302 r/w. 34 and 380 I.P.C. This judgment of conviction and sentence is under challenge before this Court.
6. We have heard Mr.V.Gopinath, the learned Senior Counsel for the appellants and Mr.E.Raja, the learned Additional Public Prosecutor for the respondent.
7. We have carefully considered the submissions made by the counsel for the parties and also gone through the records.
8. There is no eye witness in this case. The entire case rests upon the circumstantial evidence. There are only two circumstances placed by the prosecution. The first circumstance is the evidence of P.W.5, who speaks about the quarrel, which the accused had with the deceased prior to the occurrence. The second circumstance is the recovery of M.Os. 1 to 3, viz., billing machine, two telephones and one cell phone, belonging to the deceased, from accused.
9. On going through the evidence of P.W.5, it is clear that the deposition given by P.W.5 would not give any acceptable material to show that both the accused were there and quarrelled with the deceased prior to the occurrence. As a matter of fact, P.W.5 would admit that he did not know the accused earlier. Admittedly, there was no identification parade. Only in the Court, P.W.5 would state that the A. 1 and A.2, who were present in the Court were in the shop, while the quarrel ensued. Even though P.W.5 had stated during the course of investigation that two persons quarrelled with the deceased, the investigating Officer did not seek his help to identify those persons before effecting arrest. Apart from the fact that there was no identification parade, there is no material to show how the Investigating Officer was able to get the identity of the accused without any statement from the witnesses, including P.W.5. Therefore, in our view, the evidence of P.W.5 would not be of any use for prosecution.
10. The second circumstance, according to the prosecution, is that A.1 and A.2 were arrested on 8-10-2000 and from them, cash and M.Os. 1 to 3 were recovered. The cross-examination of P.Ws. 1 and 3 would clearly indicate that the accused were arrested immediately after the occurrence. As a matter of fact, P.W.3 admitted that he entertained suspicion over so many persons including A.1 and A.2 and on the basis of the information given by him to the police, the accused were taken into the police station and interrogated. This shows that both the accused were arrested even on 02-10-2000. Consequently, it has to be held that the evidence relating to the arrest loses its significance. Even assuming that M.Os. 1 to 3 have been recovered from the accused, there is no material to show that M.Os. 1 to 3 belonged to the deceased.
11. Therefore, both the circumstances, which have not been established in this case, would not be proof to hold the accused guilty of offences of murder and theft. Consequently, both the accused are liable to be acquitted.
12. In the result, the appeal is allowed and the appellants/A.1 and A.2 are acquitted of all the charges with which they were convicted. It is reported that the appellants are on bail. So, their bail bonds shall stand cancelled. Fine amount, if any paid, shall be refunded to the appellants.