IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.11.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH CRIMINAL APPEAL No.586 of 2009 Sathish ..Appellant Vs. State by: Inspector of Police, Ambur Town Police Station, Ambur (Cr.No.89 of 2008) ..Respondent This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Principal Sessions Judge, Vellore made in S.C.No.214 of 2008 dated 20.8.2009. For Appellant : Mr.P.R.Dineshkumar For Respondent : Mr.Babu Muthu Meeran, Addl.P.P. J U D G M E N T
(The judgment of the Court was made by M.CHOCKALINGAM, J.)
Challenge is made to the judgment of the Principal Sessions Division, Vellore, made in S.C.No.214 of 2008 whereby the sole accused/appellant stood charged and tried under sections 364, 377 & 302 IPC and on trial, he was found guilty under sections 302 and 364 IPC and awarded life imprisonment for each offences along with fine and default sentence and the sentences are ordered to run concurrently.
2. The short facts necessary for the disposal of this appeal can be stated as follows:
(a) The accused and the deceased were friends. They developed homosexual relationship with each other and whenever the deceased refused for the same, there was a quarrel between them. The parents of the deceased arranged marriage for him. The accused requested the deceased not to give consent for the marriage. The deceased refused for the same. Hence, there arose enmity between them. With the intention of causing death of the deceased, at about 6.15 p.m. on 15.2.2008, the accused took him to the TASMAC shop and thereafter, abducted him in inebriated condition to the Railway bridge near the brick chamber. At about 10.45 p.m. after committing unnatural offence against the deceased, the accused insisted him to have homosex again and picked up quarrel and pushed him down in between the railway track and with a use of vegetable cutting knife, he cut the front and back side of the neck and thereafter, he took a small granite stone and assaulted him on his face, head and on different parts of the body and caused his death and the accused fled away from the place of occurrence.
(b) On 6.2.2008 at about 1.00 p.m., P.W.1, Village Administrative officer, on hearing the news about lying of a dead body near the railway track, went to the spot and saw the dead body. He gave a complaint, Ex.P.1 to Jolarpettai Railway Police. P.W.16, Sub-Inspector of Jolarpettai Police Station, on receipt of the complaint, Ex.P1 registered a case in Crime No.51/2008 under section 302 I.P.C. and prepared Ex.P.20, F.I.R. and the same was despatched to Judicial Magistrate No.2, Tirupathur.
(c) P.W.17, Inspector of Police of Jolarpettai Police Station, on receipt of the F.I.R, took up investigation. He proceeded to the spot, prepared the observation mahazar, Ex.P2 and drew a rough sketch, Ex.P21 in the presence of witnesses and panchayatdars. Thereafter, he conducted inquest on the dead body of the deceased and prepared the inquest report, Ex.P.22. He also recovered the material objects from the place of occurrence and from the dead body of the deceased and placed the same before the Court.
(d) Pursuant to the requisition made by the Investigating Officer, P.W.9, doctor attached to Ambur Government Hospital, conducted autopsy on the dead body of the deceased and issued Ex.P7, post mortem certificate wherein he has given opinion that the deceased appears to have died of cut injury of neck involving carotid arteries, leading to haemorrhage, shock and death, 18 to 20 hrs prior to post mortem.
(e) As per the order of the Superintendent of Police, the case was handed over to Ambur Town Police Station. P.W.18, Sub Inspector of Police, Ambur Town Police Station, on receipt of the records from Jolarpettai Railway Police Station, on 10.2.2008, registered a case in Crime No.89/1998 under section 302 IPC. Thereafter, the F.I.R. Ex.P.25 was sent to Court.
(f) On 11.2.2008, P.W.19 Inspector of Police, Umarabad Police Station, holding additional charge of Ambur Town Police Station took up investigation. He went to the spot, made an inspection and recorded the statements and handed over the records to the regular Inspector in the afternoon.
(g) Pending investigation, on 18.2.2008, the accused surrendered before VII Metropolitan Magistrate. A requisition was placed before the Court for police custody and the same was ordered. The accused came forward to give confessional statement voluntarily and the same was recorded. The admissible part of the confessional statement was marked as Ex.P17. Pursuant to the confessional statement, he took the police party along with the witnesses and produced M.O.3, knife M.O.4 pant belonging to the deceased and M.Os. 5 and 6 pant and shirt which were worn by him at the time of occurrence. The same were recovered under a cover of mahazar. Thereafter, the accused was sent for judicial remand.
(h) All the material objects, recovered from the place of occurrence, from the dead body of the deceased and the material objects produced by the accused pursuant to the confessional statement were subjected to analysis by the Forensic Science Department which resulted in Ex.P.15, Biology report and Ex.P16, serology report. On completion of the investigation, the investigating officer filed a final report.
(i) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 20 witnesses and relied on 28 exhibits and 9 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under section 313 Cr.P.C. procedurally as to the incriminating circumstances found in the prosecution witnesses and he denied them as false. No defence witnesses were examined. On hearing the arguments advanced on either side, the trial Court found the accused guilty under sections 302 and 364 IPC and awarded life imprisonment for each offence along with fine and default sentence. Hence, this appeal at the instance of the appellant.
3. Advancing the arguments on behalf of the appellant, the learned counsel would submit, in the instant case, the prosecution had no direct evidence to offer. The prosecution rested its whole case on two circumstances, viz., (1) the last seen theory and (2) recovery of material objects from the accused/appellant. But the prosecution has miserably failed to prove either these circumstances proper or any other circumstances which would indicate the culpability of the accused /appellant.
4. The learned counsel took the Court to the evidence of P.W.6 who is the friend of both the accused and the deceased. According to P.W.6, he was examined the very next day of the occurrence, that was on 7.2.2008 but from the evidence of the investigating officer, P.W.17, it would be quite clear that the statement was recorded only on 11.2.2008. The statement was also sent to Court after a long lapse of time. Added further learned counsel insofar as the other two witnesses P.W.12, salesman in the TASMAC shop and also P.W.13 , a servant working in the TASMAC shop have spoken to the fact that they saw both the accused and the deceased between 8.30 p.m. and 9.30 p.m. on the very day of the occurrence during night hours and following which, the occurrence has taken place. According to the prosecution, these witnesses have been examined by the investigator only on 11.2.2008 and the statement have reached the Court after number of months. All would go to show that these witnesses should have been examined only after 16.2.2008 when the accused gave confessional statement when he was taken in police custody, till that time, the police could not have fixed the culprit.
5. Added further learned counsel, another point which was against the prosecution was that when the affidavit was filed before the Judicial Magistrate, Ambur, for police custody, it has been clearly averred that, apart from the accused/appellant, there was one identified culprit available. This would indicate the involvement of another person and he was also identified. Under such circumstances, the investigating officer had no explanation to offer. So far as the recovery of material objects M.Os. 4, 5 and 6 are concerned, they are nothing but introduced for the purpose of the case. Regarding the motive attributed on the accused/appellant that he had homosex with the deceased, at one point of time the deceased refused for the same and aggrieved over the same, the accused/appellant has murdered the deceased, there is no witness available to speak about the fact. All would go to show that the prosecution has miserably failed to prove the case. The trial Court has taken an erroneous view. Therefore, the appellant/accused is entitled for acquittal in the hands of this Court.
6. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.
7. It is not in controversy that the dead body of the deceased Saravanan was found nearby the Railway track within the jurisdiction of Jollarpettai Police. It was P.W.1, Village Administrative Officer who found the dead body and informed to the Police by giving Ex.P1, complaint. On the strength of Ex.P1, a case came to be registered and F.I.R. Ex.P.20 was despatched to Court. Investigation was taken up by P.W.17, Inspector of Police, who conducted inquest and thereafter, the dead body was subjected to post mortem. P.W.9, doctor who conducted post mortem has categorically given opinion in the post mortem certificate, Ex.P.7 that the deceased appears to have died of cut injury of neck involving carotid arteries, leading to haemorrhage, shock and death, 18 to 20 hours prior to post mortem. Thus, the prosecution was successful enough to prove the fact that the deceased Saravanan died out of homicidal violence.
8. In order to substantiate that it was the accused who had abducted the deceased and had carnal intercourse with him and also committed the crime of murder, the prosecution had no direct evidence to offer. Hence, a necessity arose for the prosecution to rest its case on the circumstantial evidence. In a case like this where the prosecution rests its case exclusively on the circumstantial evidence, the circumstances so placed must be pointing to the hypotheses, except the accused no one could have committed the offence. If this test is applied, the Court is afraid, whether these circumstances would be suffice to sustain the conviction passed by the trial Court.
9. The prosecution relied strongly on two circumstances, which was accepted by the trial Court. Firstly, the last seen theory for which P.Ws. 5, 6, 12 & 13 were examined. All these witnesses have spoken to the fact that on 5.2.2008, in the evening hours, the deceased was found in the company of the accused. The circumstances, what is available as could be seen from the materials would indicate that all the statement should have been recorded only after the surrender of the accused before the Metropolitan Magistrate. P.W.5 would claim that he was examined by the police on 7.2.2008 itself and for a period of 20 days, he was not doing well and he was not examined. On the contrary, the statement under section 161 Cr.P.C which was recorded by the investigating officer on 11.2.2008 would clearly indicate that the statement of the witnesses could not have been recorded on that day as stated by the prosecution. Hence, they have come with a false evidence. Had it been true that these witnesses have actually seen the accused and the deceased together, they would have informed the same immediately to the police.
10. In the instant case, the statement of the witnesses would indicate that the above facts have reached the Court in the month of June. It is further to be pointed out that the accused surrendered before the VII Metropolitan Magistrate on 8.2.2008 and was taken to police custody on 14.2.2008. At the time of interrogation, on 16.2.2008, he has come forward to give confessional statement, pursuant to which, M.O.3-knife, M.O.4-pant, M.O.5-pant and M.O.6- shirt have been recovered. It is pertinent to point out that the investigating officer has filed an affidavit before the Judicial Magistrate, Ambur. A perusal of the affidavit would clearly indicate that the crime was committed by two persons and one person was already identified and the accused /appellant is the second person. At the time of cross examination, a question has been put to the Investigating Officer regarding the same, but he had no answer in that regard. Thus, it is quite clear, after the accused was taken on police custody on 18.2.2008, the statements should have come from the witnesses viz.,P.Ws. 5, 6 and 12. Hence, those discrepancies have crept in. All would go to show that it is not a fit case where the last seen theory could be accepted by the Court to sustain the conviction.
11. Added circumstances is the recovery of material objects. The material objects were subjected to analysis but the blood group was not tallying. Even assuming that the scientific evidence is the only piece of material available and the prosecution has no other evidence to offer, it is not suffice to render conviction. Baring the above evidence, no further evidence was putforth by the prosecution. Under such circumstances, the prosecution has not proved the case beyond reasonable doubt. The trial Court has taken an erroneous view finding the accused guilty. The accused is entitled for acquittal. Hence, the judgment of the trial Court has to be made undone by upsetting the same.
12. Accordingly, the appeal is allowed. The judgment of conviction and sentence imposed on the appellant/accused by the trial Court is set aside and he is acquitted of the charges levelled against him. He is directed to be released forthwith unless his presence is required in connection with any other case.
vsi
To
1. The Principal Sessions Judge, Vellore
2. The Inspector of Police, Ambur Town Police Station,
Ambur.
3. The Public Prosecutor,
High Court,
Chennai