IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:21/09/2005
CORAM
THE HONOURABLE MR.JUSTICE N.DHINAKAR
AND
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
C.A.No.200 of 2001
State by:
Inspector of Police
Gobi Police Station
Erode District .. Appellant
-vs-
1.Gulam Babu
2.Thangam @ Meenakshi Kutty
3.Muthu @ Angamuthu .. Respondents
Criminal appeal preferred under Sec.378 of the Code of Criminal
Procedure against the judgment of acquittal passed by the II Additional
Sessions Judge, Erode, in S.C.No.85/99 dated 13.10.1999.
!For Appellant : Mr.M.K.Subramanian
Government Advocate
(Criminal Side)
^For Respondents : Mr.N.Manokaran
:JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)
This is an appeal by the State on a judgment of acquittal made by the
learned II Additional Sessions Division, Erode, in S.C.No.85/99, wherein the
respondents were shown as accused.
2. The first accused stood charged under Sec.302 of I.P.C., while the
second and third accused were charged under Sec.302 read with 34 of I.P.C.
All the three accused were charged under Sec.201 of I.P.C. On trial, the
respondents/accused were acquitted by the trial Court. Hence, this appeal.
3. The short facts necessary for the disposal of this appeal can be
stated thus:
P.W.6 is the wife of the deceased, Syed Mohammed. They were living at
Karungalpalayam, Erode. They had a daughter. P.W.6 was employed in a house
as servant-maid. While so, Syed Mohammed developed illicit intimacy with the
second accused, and he was living near Karungalpalayam Vaikkal. Thereafter,
they went to Gobichettipalayam. It was the usual practice of Syed Mohammed to
go over to Karungalpalayam to meet his wife and the female child. The house
in Door No.1A, Anumantharayan Koil Street, belonged to P.W.3. His mother,
P.W.4, was occupying the ground floor, while the first floor was leased out to
the second accused. It was occupied by the first and the second accused. The
second accused was running a tea stall at Vaikkal Road. P.W.5 used to go over
there often to have tea. Thus, he knew A-1 and A-2. A-1 and A-2 decided to
do away with the said Syed Mohammed, who developed illicit intimacy with the
second accused for which A-3 also connived with them.
4. On the date of occurrence, namely 7.2.1998, at 1.00 A.M., A-1
dashed a stone on the head of Syed Mohammed, and he was murdered. The dead
body was put in a gunny bag, and all the accused were standing near a tank.
P.W.5, who was returning from Cinema at that time, found the accused standing
with a gunny bag and asked them, when the accused informed him that they were
old clothes and they were putting them in the tank. On 9.2.1998 at about
12.30 P.M., P.W.1, the Village Administrative Officer of Veerapandy village,
was in his Office. He was informed by his assistant, P.W.2, that a dead body
was found floating in the tank. Then, P.W.1 visited the spot and found a
gunny bag containing a dead body of a male person. He rushed to
Gopichettipalayam Police Station and informed the same to P.W.19, the Head
Constable, who was on duty that time. On the strength of Ex.P1 report, given
by P.W.1, P.W.19 registered a case in Crime No.63/98 under Sec.302 of I.P.C.
Printed First Information Report, Ex.P10 was sent to Court.
5. P.W.20, the Inspector of Police, took up investigation in the
crime. He proceeded to the scene of occurrence, made an inspection in the
presence of two witnesses and prepared Ex.P5, the observation mahazar, and
Ex.P11, the rough sketch. M.Os.1 to 6 were recovered under a cover of
mahazar, Ex.P6. He conducted inquest on the dead body of Syed Mohammed in the
presence of panchayatdars and witnesses and prepared Ex.P12, the inquest
report. Following the same, a requisition, Ex.P7, was forwarded to the
Government Hospital, for conducting autopsy.
6. On receipt of the said requisition, P.W.16, the Civil Assistant
Surgeon, attached to the Government Hospital, Gobichettipalayam, conducted
autopsy on the dead body of Syed Mohammed and found the following injury.
“Crush injury of whole upper 3/4th of head with multiple fracture of vault
base of skull.
Missing of brain and eyeballs.”
The Doctor issued Ex.P8, the postmortem certificate, and opined that the
deceased would appear to have died of crush injury on head, 3 to 7 days prior
to autopsy.
7. Pending investigation, A-1 was arrested on 13.2.1998 at 7.30 A.M.
He gave a confessional statement, pursuant to which M.O.9, a shirt, was
recovered under a mahazar, Ex.P13. A-1 identified A-2, and A-2 was arrested
at 9.15 A.M., pursuant to whic Os.10 to 13 were recovered under a mahazar,
Ex.P14. M.O.14 series, M.O.15, a blade, and M.O.16 produced by A-1, were
recovered under a mahazar, Ex.P15. P.W.20 went over to Erode, and with the
help of P.Ws.6 and 7, he opened a box belonging to the deceased, with the help
of a key M.O.6. Then, M.O.7, a lock, was recovered under a mahazar Ex.P2. On
4.3.1998, A-3 was arrested, when he gave a confessional statement, the
admissible part of which is Ex.P18. Pursuant to the same, M.O.17, a lunghi,
was recovered under a mahazar, Ex.P19. The material objects were subjected to
chemical analysis pursuant to a requisition given by the Investigating
Officer. Ex.P22, the Chemical Analyst’s report, and Ex.P23, the Serologist’s
report, were received by the Court. On completion of investigation, the final
report was filed by the Investigating Officer against the respondents/accused.
8. The case was committed to Court of Session and necessary charges
were framed against the accused, referred to above. In order to substantiate
the charges levelled against the accused, the prosecution examined 20
witnesses and relied on 23 exhibits and 17 material objects. On completion of
the evidence on the side of the prosecution, all the accused were questioned
under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the
evidence of the prosecution witnesses. They denied them as false. No defence
witnesses were examined. On completion of trial, both sides were heard by the
trial Court, and on consideration of the submissions made, and scrutiny of the
materials, the trial Court took a view that the prosecution has not proved the
case beyond reasonable doubt and acquitted all the accused of all the charges.
Hence, this appeal at the instance of the State.
9. The learned Government Advocate (Criminal Side) inter alia would
submit that though the prosecution relied on circumstantial evidence, there
were sufficient circumstances placed and proved in order to prove its case;
that according to P.W.5, the accused were well known to him; that he found A-1
and A-2 standing near Theppakulam with a gunny bag at 1.30 A.M., in the mid
night; that when he questioned them, they informed him that they were simply
waste materials and to be put in the tank; that this was a strong circumstance
against the accused; that P.W.6 has spoken to the fact that the deceased was
living with A-2 at Gobichettipalayam; that she would further add that the key
which was recovered from the dead body of Syed Mohammed, was another key of
the box of the deceased, which was in the house of P.W.6, and she had got
another key; that apart from that, on the confessions made, the material
objects were recovered, which were found containing bloodstains, and thus, the
scientific evidence was also in favour of the prosecution; but, the lower
Court has acquitted the accused, despite sufficient materials and
circumstances which were placed and proved, and hence, the judgment of the
lower Court has got to be set aside.
10. This Court heard the learned Counsel Mr.N.Manokaran, appearing
for the respondents.
11. In the instant case, it is not in controversy that the dead body
of Syed Mohammed was found in a tank at Gobichettipalayam. The dead body was
subjected to postmortem, and the Doctor has given his opinion stating that the
deceased would appear to have died 3 to 7 days prior to the autopsy, and death
was due to the crush injury sustained. It is also not a fact in question
before the lower Court or before this Court.
12. The question what arose before the Court below and equally here
also, is whether the prosecution has proved the case beyond reasonable doubt.
This Court is of the considered opinion, on scrutiny of the materials
available and consideration of the submissions made, that the lower Court was
perfectly correct in rejecting the prosecution case. Though the prosecution
had marched 20 witnesses, no one had spoken about the occurrence. Thus, the
prosecution rested its case on the circumstantial evidence. Needless to say
that in a case where the prosecution rests its case on the circumstantial
evidence, it has to place and prove all the necessary circumstances so that a
chain is made without any doubt, and it should be pointing to the hypothesis
that except the accused, no one could have committed the offence.
13. In the instant case, the prosecution neither placed sufficient
circumstances nor proved the same indicating the guilt of the accused.
According to P.W.6, her husband, Syed Mohammed, married her before 10 years
back, and they have got a female child, and they were living in
Karungalpalayam, and subsequently, he developed illicit intimacy with A-2 and
was living at Karungalpalayam Vaikkal, and thereafter, they were living at
Gobichettipalayam. It is the evidence of P.W.3 that A-1 and A-2 were tenants
in the first floor of his house, while P.W.4, his mother, was living in the
ground floor. To that extent only, the prosecution had the benefit of their
evidence. As to the connection of the accused with the crime, neither P.W.3
nor P.W.4 had spoken anything.
14. The prosecution much relied on the evidence of P.W.5, according
to whom, he used to visit A-2’s tea shop, and while he was returning from
cinema in the night hours, he found A-1 and A-2 standing near the tank along
with a gunny bag. He has well admitted that for returning from cinema to his
residence, there was no necessity to go via Theppakulam, and he has got some
other route. From his evidence it would be clear that he has no explanation
to offer how he happened to use that route. The lower Court has adduced
proper reasons that he was a planted witness in order to say that the accused
were having the gunny bag in hands. The reasons adduced by the trial Court,
in the opinion of this Court, are sound.
15. So far as the recovery part is concerned, P.Ws.12 and 13, who
were examined by the prosecution for the purpose of proving the same, have
turned hostile, and thus, the arrest of the accused, the confessions made by
them and the alleged recovery of the material objects could not be accepted by
the lower Court. In the instant case, except this evidence, nothing was
available, and therefore, the prosecution has not brought forth or placed or
proved the necessary or sufficient circumstance. It can be well stated that
not even one circumstance is placed in favour of the prosecution connecting
the accused with the crime. The trial Court has marshaled the evidence
proper, considered the same, adduced proper reasons and acquitted the accused,
since it was not able to see any circumstance connecting the accused with the
crime. This Court is unable to notice any reason to take a different view
from that of the lower Court. At this juncture, the Court is mindful of the
caution by the Apex Court that in a case where the trial Court on evidence
found the accused not guilty and acquitted them, unless and until compelling
circumstances are noticed, the judgment of the trial Court should not be
reversed. In the instant case, this Court is unable to notice any reason to
interfere with the judgment of the trial Court, since there are no compelling
circumstances warranting so, and the judgment of the trial Court is not
perverse. Accordingly, the judgment of the trial Court is sustained.
16. In the result, this criminal appeal fails, and the same is
dismissed.
Index: yes
Internet: yes
To:
1)The II Additional Sessions Judge, Erode.
2)The II Additional Sessions Judge, Erode,
Through The Principal Sessions Judge, Erode.
3)The District Collector, Erode District.
4)The Director General of Police, Chennai.
5)The Public Prosecutor, High Court, Madras.
6)The Inspector of Police, Gobi Police Station
Erode District
nsv/