IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.10.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH CRIMINAL APPEAL NO.498 OF 2009 1. Suresh 2. Packiaraj .. Appellants Vs. State rep. by Inspector of Police, Kottucherry Police Station. Karaikkal District, Puducherry Union Territory .. Respondent This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Additional Sessions Judge, Puducherry at Karaikkal, made in S.C.No.85 of 2009 dated 22.06.2009. For Appellants : Mr.N.Doraisami for Mr.T.P.Senthil Kumar For Respondent : Mr.T. Murugesan Senior Public Prosecutor (Puducherry) JUDGMENT
(The judgment of the Court was made by V.PERIYA KARUPPIAH, J.)
This appeal is directed against the judgment of conviction and sentence passed by the learned Additional Sessions Judge, Puducherry in S.C.No.85/2006 dated 22.06.2009 convicting and sentencing the accused u/s. 302 r/w.34 of I.P.C to undergo life imprisonment and also to pay a fine of Rs.2500/- each by the accused and in default to undergo simple imprisonment for three months.
2. The short facts which are necessary for the disposal of the appeal would be as follows:
(a) P.W.1- S.Varadarajan Public Relation Officer of Bharathiyar College of Engineering and Technology, Kottucherry, Karaikkal was informed through phone on 04.12.2003, at about 01.15 a.m by the Administrator Ramanathan that somebody had beaten one Anandan, security and he directed him to go over there and and inform further. The said witness, P.W.1 went to the college and saw that Anandan was dead with injuries at the opposite of S.A.H. block of college and other accused were also present at that place. The accused performed duties from the evening of 03.12.2003 till 8.00 a.m on 04.12.2003. The said Anandan was also working as security during the said period along with the accused. There was a plastic chair, torch light, wooden stick used by Anandan near his body. P.W.1 enquired the 1st accused on seeing the blood stain on his shirt, for which he gave inconsistent reply. Since A2 also gave inconsistent reply, he thougt that there would have been some misunderstanding between the deceased and accused and the accused might have got angry over the deceased and assaulted him. P.W.1 further lodged complaint Ex.P.1 against the accused on the instruction he got from the Administrator Ramanathan.
(b) P.W.2 is the worker, who deposed that on 03.12.2003 at 01.15 a.m when he was sleeping on the upstairs of the kitchen along with his co-workers, one Sambasivam awaken them and told that Anandan was beaten by somebody. P.W.2 had informed to the warden Jeyasankar. They went to the scene of occurrence and saw the said Anandan was dead with bleeding injuries on his head and body.
(c) P.W.3 had deposed that on hearing the incident, he went to college at 05.30 a.m on 04.12.2003 and the police came to the spot at 06.00 a.m and he was helping the police to perform the enquiry. The said deceased sustained injuries on his head, stomach and neck and the intestine came out from the abdomen. While that he was performing his duty, there was no chance of outsiders coming into the college. Hence, the accused might have committed the offence on that day. P.W.4 has spoken to the effect that the night shift of the securities will start by 6.00 p.m and ends at 06.00 a.m. There were two shifts in the security and attendance registered was maintained in Ex.P.5. He handed over the said register to the police and one more register with regard to the incidents happening in the college Ex.P.6 was also handed over the police. It is also spoken that the duty of Anandan might have been ended at 06.00 a.m on 03.12.2003. He reported duty on 02.12.2003 at 06.00 p.m, due to shortage of securities, he was directed to continue duty and the accused were also working in the said night. P.W.4 used to allot various places for the securities and they should not move from their place where it was allotted to them. The deceased complained about the accused that they do not perform their duties properly and slept during duty hours.
(d) The accused had answered about the blood stained shirts as that they had lifted the said body of Anandan, the blood was stained on their shirts. On 04.12.2003, by 05.00 a.m the Investigating Officer had prepared Observation Mahazar Ex.P.8 and prepared rough sketch EX.P.9 in the presence of the witnesses. Apart from that M.O’s. 1 to 6 seized from the place of occurrence and 10 ml of the blood from the body of the deceased was also collected through Mahazar Exs.P.10 and P.11 in the presence of the witnesses. P.W.5 is the wife of the deceased Anandan, when she came to know about the information of the death of her husband she and one Pandian visited the Government Hospital and saw the body and the body was handed over to them after autopsy. P.W.6 deposed that on 04.12.2003, at about 09.00 a.m he was asked to go to Kottucherry Police Station in order to witness the confession given by the accused and to be present as witnesses for the same. Accordingly, he went and present along with other witness during the confession statement given by the other accused. As per the confession given by the accused leading to the recovery of the weapon used by them. A2 had identified the scissors M.O.7, it was seized through Mahazar in his presence. Similarly A1 took a wooden log – M.O.8 on the basis of a confession leading to the recovery and it was promptly seized by the Investigating Office through Mahazar in his presence. P.W.7 had obliged to cut the hair of accused which was seized by police as Exs.P.18 and P.19 Seizure Mahazar and he also signed as one of the witnesses. P.W.8 witnessed on 05.12.2003 at about 08.30 a.m in respect of seizure of blood stained shirts in M.Os.9 and 10 from the accused through the Seizure Mahazar Ex.P.20. P.W.9 had deposed that when the body of Anandan was in the mortuary, Investigating Officer came and seized the dress materials from the body of Anandan through Seizure Mahazar Ex.P.21 in his presence. The Investigating Officer had also seized the hair of Anandan and sample blood of deceased Anandan in the presence of Post Mortem Doctor through Ex.P.22 Seizure Mahazar. Similarly the hair and sample blood of the accused were seized by the Investigating Officer through Ex.P.23 Mahazar in their presence. P.W.10 is the Post Mortem Constable who took the body from the scene of occurrence to Government Hospital Karaikal and handed over the same to the P.W.11 for conducting autopsy. Autopsy was conducted by P.W.11 at about 11.05 a.m and after the completion of autopsy the body was handed over by the Post Mortem Constable P.W.10 who handed over to the relatives of the deceased. P.W.23 had found 23 injuries all over the body of the deceased and had opined that the death was due to intracranial Haemorrhage as a result of head injury. P.W.12 Photographer had taken the photographs at the scene of occurrence and also went to the mortuary, Government Hospital, Karaikal and handed over the photos with negatives to the Investigating Officer. The material objects sent for scientific examination were handed over to the Central forensic Science department through one Manoharan Police Constable. On receipt of the complaint from P.W.1, P.W.14 had registered the case on 04.12.2003 at 02.45 a.m in Cr.No.116/2003 u/s.302 r/w. 34 I.P.C against the accused and despatched the Ex.P.31 F.I.R to the court concerned. P.W.15 the Inspector of Police had taken the case and visited the place of occurrence and continued the investigation. P.W.16 had deposed that he took up the case and further investigation on 25.11.2004 and recorded further statement of the witnesses. Thereafter, he has filed the final report u/s. 302 r/w. I.P.C.
3. The case was committed to the court of Sessions and necessary charges were framed. In order to substantiate the charges against A1 and A2, 16 witnesses P.W.1 to P.W.16 were examined and relied upon 50 exhibits and 26 M.Os. On completion of evidence on the side of prosecution, the accused were question u/s. 313 Cr.P.C as to the incriminating circumstances found in the evidence of prosecution witnesses to which they denied and they have also produced documents in Ex.D1 to D3 and did not witness any witnesses on their side. The Trial court, after hearing the arguments advanced on either side and on scrutinising the materials available took a view that the accused had committed the act of murder and they were liable to be punished u/s. 302 r/w 34 I.P.C and awarded life imprisonment along with fine.
4. Aggrieved over the judgment both the accused has brought forth this appeal.
5. While advancing the arguments on both sides, the learned counsel for the appellants would submit that the lower court had erred in coming to the conclusion of convicting the accused without any ocular evidence and it had rested its evidence purely on circumstantial evidence, when those circumstantial evidence were not promising to end in conviction. They would further submit in their arguments that there was no eye witness for the incident and the accused were roped in the case merely because they were working as securities in the said institution and they were on their duty in that area. The deceased was attacked by some other person to which the accused were not responsible for the said injuries caused against the deceased Anandan. They would further submit in their arguments that the circumstantial evidence which are relied upon by the person were also not supporting the case of the prosecution, since the scientific evidence had also not supported the case. It is also submitted that the accused were not alone present in the premises of the institution during the said time but there were lot of workers staying in the institution and it cannot be said that the accused are answerable for the alleged occurrence in which the accused are said to have been participated. He would also submit that the blood stains which are stated to be at the shirts of the accused were only accidental, when they lifted the body of the deceased Anandan the blood stains were present in their shirt and therefore they cannot be incriminated in the said crime. They would insist in their arguments that the accused were found present when the matter was firstly informed to the Administrator of the institution and P.W.1 was present and if really the accused were culprit they would not have been present in scene of occurrence.
6. The prosecution has not launched its investigation in correct direction but had falsely implicated the accused without any circumstantial evidence. They cannot submit that their evidence that the scientific evidence have been promptly done in accordance with law and the examination of blood stains with the sample blood collected from the body of the deceased was preferrably done and it cannot incriminate the accused in the offence. He would therefore request the court that benefit of doubt should have been given to the accused where as the lower court had wrongly ended in conviction against the accused and therefore the learned counsel for the appellants would submit that the accused be found not guilty and thereby to allow the appeal.
7. Learned Senior Public Prosecutor,Puducherry, Mr.T. Murugesan, would submit in his argument that the prosecution case is resting upon only the circumstantial evidence and no ocular evidence adduced on the side of the prosecution. He would submit in his argument that the complaint has been launched by the P.W.1 immediately after the commission of offence and the case has been registered by 05.00 a.m in the morning and the investigation has been commenced immediately thereafter and the accused have given confession in the presence of witnesses and their confession lead to the recovery of weapon and blood stained clothes and the recovery of weapon seized would go a long way to show that none other than the accused have committed the offence and the blood stains which was found with the weapons as well as the blood stain in the shirts and the sample blood collected from the body of the deceased person are one and the same and therefore, the accused are the culprits and the circumstantial evidence and the investigation carried out immediately would go a long way to show that the accused were guilty persons for the cause of death of deceased Anandan. He would also submit in his argument that other evidence produced on the side of the prosecution would go a long way to show that the accused were present along with the deceased Anandan on the fateful night and they were also present and they are answerable to explain as to how the incident had happened. He would again submit in his argument that the evidence of other workers and warden who were present in the premises on that day of occurrence during night would also disclose the presence of accused at the premises when the occurrence had taken place and the accused were admittedly in duty of the security at that time and therefore the circumstantial evidence would be complete with the link of scientific evidence through the tallying of the blood group of the deceased found in the weapon and the dress materials of the accused namely the blood collected from the dead body of the deceased person. Therefore, he would request the court to dismiss the appeal and conviction and sentence passed against the accused may be confirmed.
8. We have given anxious thoughts to the arguments advanced on either side. The deceased Anandan was said to work as a security for the premises of the institution namely Bharathiyar College of Engineering and Technology, Kottucherry and he was asked to continue his shift in the next day also and he was continuing in the next shift also. During the next shift in which the deceased Anandan was working with accused A1 and A2 was also scheduled to work as securities. The case was launched by 04.12.2003 with a complaint given by P.W.1. As per the said complaint, the said Anandan was found dead on 04.12.2003 at 01.15 a.m with multiple injuries all over his body. A1 and A2 were also found within the premises. It is no doubt that the accused A1 and A2 were working in the premises as securities along with deceased Anandan. As spoken through P.W.1 as A1 and A2 were not doing their duty properly it was complained by the deceased Anandan and so in that circumstances, whether A1 and A2 could be roped in for the commission of murder of deceased Anandan. The institution is comprising of various other places in which the securities were working all over the place. As per the evidence of P.W.4, the security supervisor, it is the case of the prosecution that security workers work are said to be working within the premises. In the aforesaid circumstances, it cannot be said that A1 and A2 alone were working along with the deceased Anandan. As per the evidence of the supervisor nine or eight securities will be available apart from A1 and A2 and Anandan there was five securities working on the day of occurrence. Whether these securities were interrogated by the investigating agency has not been disclosed in evidence. For the aforesaid circumstances, it cannot be stated that the A1 and A2 were alone present along with the deceased Anandan and they have to explain the cause of death of deceased Anandan. It has been urged by the learned Senior Public Prosecutor, Puducherry the confession statement given by the accused A1 and A2 were proved and the confession leading to recovery had lead to the seizure of dress material by the accused with blood stained weapons and the scissors used for cutting with blood stains.
9. According to the prosecution, the blood stain in the scissors and the dress materials of the accused contain blood group ‘A’ and the two stained filter papers containing the blood of the deceased Anandan. However, the serology report produced in Ex.P.50 would go to show that the liquid blood sample of the victim in an injection bottle with preservative as mentioned in the face note was not found along with Ex.P.17- two stained filter papers. When the bottle containing the injection blood of the victim was not made available to the scientific laboratory for examination how it would be possible to come to the conclusion that Ex.P.17 as mentioned in Ex.P.50 report would be corresponding to the sample blood obtained from the deceased.
10. In the said circumstances, the examination report cannot be helpful for the prosecution for the purpose of completing the chain of circumstantial evidence. It is a well settled celebrated law if one of the links of the chain of circumstantial evidence are not complete the circumstantial evidence will not complete and the accused are entitled for the benefit of doubt.
11. It has been already discussed that apart from A1 and A2 there were number of persons inside the institution at the time of occurrence including other securities and the workers employed in the institution and the scientific evidence is also not tallied to rope in the accused to the crime.
12. In the aforesaid circumstances, we are of the considered view that the prosecution has not proved the case beyond reasonable doubt. Therefore the exercise of the lower court in finding the accused guilty u/s. 302 r/w.34 I.P.C were of no use and the finding of the lower court ending with conviction against A1 and A2 are liable to be set aside. Therefore, we have no hesitation to set aside the judgment and conviction passed by the lower court against A1 and A2.
13. Accordingly, the appeal is allowed. The judgment of conviction and sentence imposed on the appellants/accused A1 and A2 by the learned Additional and Sessions Judge, Puducherry at Karaikal in S.C.No.85/2006 dated 22.06.2009 are set aside and the accused/appellants are acquitted of all the charges framed against them and they are directed to be released forthwith unless their presence is required in connection with any other case. The bail bond if any executed by the appellants shall stand terminated and the fine amount if any paid is ordered to be refunded to them.
kpr
To
1. The Additional Sessions Judge,
Puducherry at Karaikkal
2. Inspector of Police,
Kottucherry Police Station.
Karaikkal District,
Puducherry Union Territory
3. The Public Prosecutor,
High Court,
Chennai