{"id":144129,"date":"2005-09-21T00:00:00","date_gmt":"2005-09-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-by-vs-gulam-babu-on-21-september-2005"},"modified":"2018-02-16T01:07:37","modified_gmt":"2018-02-15T19:37:37","slug":"state-by-vs-gulam-babu-on-21-september-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-by-vs-gulam-babu-on-21-september-2005","title":{"rendered":"State By: vs Gulam Babu on 21 September, 2005"},"content":{"rendered":"<div class=\"docsource_main\">Madras High Court<\/div>\n<div class=\"doc_title\">State By: vs Gulam Babu on 21 September, 2005<\/div>\n<pre>       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS           \n\nDATED:21\/09\/2005   \n\nCORAM   \n\nTHE HONOURABLE MR.JUSTICE N.DHINAKAR           \nAND  \nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM              \n\nC.A.No.200 of 2001 \n\nState by:\nInspector of Police\nGobi Police Station\nErode District                                  .. Appellant\n\n-vs-\n\n1.Gulam Babu  \n2.Thangam @ Meenakshi Kutty    \n3.Muthu @ Angamuthu                             .. Respondents\n\n        Criminal appeal preferred  under  Sec.378  of  the  Code  of  Criminal\nProcedure  against  the  judgment  of  acquittal  passed  by the II Additional\nSessions Judge, Erode, in S.C.No.85\/99 dated 13.10.1999. \n\n!For Appellant          :  Mr.M.K.Subramanian\n                        Government Advocate\n                        (Criminal Side)\n^For Respondents        :  Mr.N.Manokaran\n\n:JUDGMENT   \n<\/pre>\n<p>(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)    <\/p>\n<p>        This  is an appeal by the State on a judgment of acquittal made by the<br \/>\nlearned II Additional Sessions Division, Erode, in S.C.No.85\/99,  wherein  the<br \/>\nrespondents were shown as accused.\n<\/p>\n<p>        2.  The first accused stood charged under Sec.302 of I.P.C., while the<br \/>\nsecond and third accused were charged under Sec.302 read  with  34  of  I.P.C.<br \/>\nAll the  three  accused  were  charged  under Sec.201 of I.P.C.  On trial, the<br \/>\nrespondents\/accused were acquitted by the trial Court.  Hence, this appeal.\n<\/p>\n<p>        3.  The short facts necessary for the disposal of this appeal  can  be<br \/>\nstated thus:\n<\/p>\n<p>        P.W.6 is the wife of the deceased, Syed Mohammed.  They were living at<br \/>\nKarungalpalayam, Erode.   They  had a daughter.  P.W.6 was employed in a house<br \/>\nas servant-maid.  While so, Syed Mohammed developed illicit intimacy with  the<br \/>\nsecond accused,  and  he was living near Karungalpalayam Vaikkal.  Thereafter,<br \/>\nthey went to Gobichettipalayam.  It was the usual practice of Syed Mohammed to<br \/>\ngo over to Karungalpalayam to meet his wife and the female child.   The  house<br \/>\nin Door  No.1A,  Anumantharayan  Koil  Street, belonged to P.W.3.  His mother,<br \/>\nP.W.4, was occupying the ground floor, while the first floor was leased out to<br \/>\nthe second accused.  It was occupied by the first and the second accused.  The<br \/>\nsecond accused was running a tea stall at Vaikkal Road.  P.W.5 used to go over<br \/>\nthere often to have tea.  Thus, he knew A-1 and A-2.  A-1 and A-2  decided  to<br \/>\ndo  away  with the said Syed Mohammed, who developed illicit intimacy with the<br \/>\nsecond accused for which A-3 also connived with them.\n<\/p>\n<p>        4.  On the date of occurrence, namely  7.2.1998,  at  1.00  A.M.,  A-1<br \/>\ndashed a  stone  on  the head of Syed Mohammed, and he was murdered.  The dead<br \/>\nbody was put in a gunny bag, and all the accused were standing  near  a  tank.<br \/>\nP.W.5,  who was returning from Cinema at that time, found the accused standing<br \/>\nwith a gunny bag and asked them, when the accused informed him that they  were<br \/>\nold clothes  and  they  were  putting  them in the tank.  On 9.2.1998 at about<br \/>\n12.30 P.M., P.W.1, the Village Administrative Officer of  Veerapandy  village,<br \/>\nwas in  his Office.  He was informed by his assistant, P.W.2, that a dead body<br \/>\nwas found floating in the tank.  Then, P.W.1 visited  the  spot  and  found  a<br \/>\ngunny bag   containing   a  dead  body  of  a  male  person.    He  rushed  to<br \/>\nGopichettipalayam Police Station and informed the same  to  P.W.19,  the  Head<br \/>\nConstable, who  was on duty that time.  On the strength of Ex.P1 report, given<br \/>\nby P.W.1, P.W.19 registered a case in Crime No.63\/98 under Sec.302  of  I.P.C.<br \/>\nPrinted First Information Report, Ex.P10 was sent to Court.\n<\/p>\n<p>        5.   P.W.20,  the  Inspector  of  Police, took up investigation in the<br \/>\ncrime.  He proceeded to the scene of occurrence, made  an  inspection  in  the<br \/>\npresence  of  two  witnesses  and prepared Ex.P5, the observation mahazar, and<br \/>\nEx.P11, the rough sketch.  M.Os.1  to  6  were  recovered  under  a  cover  of<br \/>\nmahazar, Ex.P6.  He conducted inquest on the dead body of Syed Mohammed in the<br \/>\npresence  of  panchayatdars  and  witnesses  and  prepared Ex.P12, the inquest<br \/>\nreport.  Following the same,  a  requisition,  Ex.P7,  was  forwarded  to  the<br \/>\nGovernment Hospital, for conducting autopsy.\n<\/p>\n<p>        6.   On  receipt  of the said requisition, P.W.16, the Civil Assistant<br \/>\nSurgeon, attached to the  Government  Hospital,  Gobichettipalayam,  conducted<br \/>\nautopsy on the dead body of Syed Mohammed and found the following injury.<br \/>\n&#8220;Crush  injury  of  whole  upper 3\/4th of head with multiple fracture of vault<br \/>\nbase of skull.\n<\/p>\n<p>Missing of brain and eyeballs.&#8221;\n<\/p>\n<p>The Doctor issued Ex.P8, the  postmortem  certificate,  and  opined  that  the<br \/>\ndeceased  would appear to have died of crush injury on head, 3 to 7 days prior<br \/>\nto autopsy.\n<\/p>\n<p>        7.  Pending investigation, A-1 was arrested on 13.2.1998 at 7.30  A.M.<br \/>\nHe  gave  a  confessional  statement,  pursuant  to  which M.O.9, a shirt, was<br \/>\nrecovered under a mahazar, Ex.P13.  A-1 identified A-2, and A-2  was  arrested<br \/>\nat  9.15  A.M.,  pursuant  to whic Os.10 to 13 were recovered under a mahazar,<br \/>\nEx.P14.  M.O.14 series, M.O.15, a blade, and  M.O.16  produced  by  A-1,  were<br \/>\nrecovered under  a  mahazar,  Ex.P15.  P.W.20 went over to Erode, and with the<br \/>\nhelp of P.Ws.6 and 7, he opened a box belonging to the deceased, with the help<br \/>\nof a key M.O.6.  Then, M.O.7, a lock, was recovered under a mahazar Ex.P2.  On<br \/>\n4.3.1998, A-3 was  arrested,  when  he  gave  a  confessional  statement,  the<br \/>\nadmissible part  of  which is Ex.P18.  Pursuant to the same, M.O.17, a lunghi,<br \/>\nwas recovered under a mahazar, Ex.P19.  The material objects were subjected to<br \/>\nchemical analysis  pursuant  to  a  requisition  given  by  the  Investigating<br \/>\nOfficer.   Ex.P22, the Chemical Analyst&#8217;s report, and Ex.P23, the Serologist&#8217;s<br \/>\nreport, were received by the Court.  On completion of investigation, the final<br \/>\nreport was filed by the Investigating Officer against the respondents\/accused.\n<\/p>\n<p>        8.  The case was committed to Court of Session and  necessary  charges<br \/>\nwere framed  against the accused, referred to above.  In order to substantiate<br \/>\nthe  charges  levelled  against  the  accused,  the  prosecution  examined  20<br \/>\nwitnesses and relied on 23 exhibits and 17 material objects.  On completion of<br \/>\nthe  evidence  on the side of the prosecution, all the accused were questioned<br \/>\nunder Sec.313 of Cr.P.C.  as to the incriminating circumstances found  in  the<br \/>\nevidence of the prosecution witnesses.  They denied them as false.  No defence<br \/>\nwitnesses were examined.  On completion of trial, both sides were heard by the<br \/>\ntrial Court, and on consideration of the submissions made, and scrutiny of the<br \/>\nmaterials, the trial Court took a view that the prosecution has not proved the<br \/>\ncase beyond reasonable doubt and acquitted all the accused of all the charges.<br \/>\nHence, this appeal at the instance of the State.\n<\/p>\n<p>        9.   The  learned Government Advocate (Criminal Side) inter alia would<br \/>\nsubmit that though the prosecution relied on  circumstantial  evidence,  there<br \/>\nwere  sufficient  circumstances  placed and proved in order to prove its case;<br \/>\nthat according to P.W.5, the accused were well known to him; that he found A-1<br \/>\nand A-2 standing near Theppakulam with a gunny bag at 1.30 A.M.,  in  the  mid<br \/>\nnight;  that  when he questioned them, they informed him that they were simply<br \/>\nwaste materials and to be put in the tank; that this was a strong circumstance<br \/>\nagainst the accused; that P.W.6 has spoken to the fact that the  deceased  was<br \/>\nliving  with A-2 at Gobichettipalayam; that she would further add that the key<br \/>\nwhich was recovered from the dead body of Syed Mohammed, was  another  key  of<br \/>\nthe  box  of  the  deceased,  which was in the house of P.W.6, and she had got<br \/>\nanother key; that apart from that,  on  the  confessions  made,  the  material<br \/>\nobjects were recovered, which were found containing bloodstains, and thus, the<br \/>\nscientific  evidence  was  also  in  favour of the prosecution; but, the lower<br \/>\nCourt  has  acquitted  the   accused,   despite   sufficient   materials   and<br \/>\ncircumstances  which  were  placed  and proved, and hence, the judgment of the<br \/>\nlower Court has got to be set aside.\n<\/p>\n<p>        10.  This Court heard the learned  Counsel  Mr.N.Manokaran,  appearing<br \/>\nfor the respondents.\n<\/p>\n<p>        11.   In the instant case, it is not in controversy that the dead body<br \/>\nof Syed Mohammed was found in a tank at Gobichettipalayam.  The dead body  was<br \/>\nsubjected to postmortem, and the Doctor has given his opinion stating that the<br \/>\ndeceased would appear to have died 3 to 7 days prior to the autopsy, and death<br \/>\nwas due  to  the  crush  injury  sustained.  It is also not a fact in question<br \/>\nbefore the lower Court or before this Court.\n<\/p>\n<p>        12.  The question what arose before the Court below and  equally  here<br \/>\nalso,  is whether the prosecution has proved the case beyond reasonable doubt.<br \/>\nThis Court is  of  the  considered  opinion,  on  scrutiny  of  the  materials<br \/>\navailable  and consideration of the submissions made, that the lower Court was<br \/>\nperfectly correct in rejecting the prosecution case.  Though  the  prosecution<br \/>\nhad marched  20  witnesses, no one had spoken about the occurrence.  Thus, the<br \/>\nprosecution rested its case on the circumstantial evidence.  Needless  to  say<br \/>\nthat  in  a  case  where  the prosecution rests its case on the circumstantial<br \/>\nevidence, it has to place and prove all the necessary circumstances so that  a<br \/>\nchain  is  made without any doubt, and it should be pointing to the hypothesis<br \/>\nthat except the accused, no one could have committed the offence.\n<\/p>\n<p>        13.  In the instant case, the prosecution  neither  placed  sufficient<br \/>\ncircumstances  nor  proved  the  same  indicating  the  guilt  of the accused.<br \/>\nAccording to P.W.6, her husband, Syed Mohammed, married her  before  10  years<br \/>\nback,   and   they   have  got  a  female  child,  and  they  were  living  in<br \/>\nKarungalpalayam, and subsequently, he developed illicit intimacy with A-2  and<br \/>\nwas  living  at  Karungalpalayam  Vaikkal, and thereafter, they were living at<br \/>\nGobichettipalayam.  It is the evidence of P.W.3 that A-1 and A-2 were  tenants<br \/>\nin  the  first  floor of his house, while P.W.4, his mother, was living in the<br \/>\nground floor.  To that extent only, the prosecution had the benefit  of  their<br \/>\nevidence.   As  to the connection of the accused with the crime, neither P.W.3<br \/>\nnor P.W.4 had spoken anything.\n<\/p>\n<p>        14.  The prosecution much relied on the evidence of  P.W.5,  according<br \/>\nto  whom,  he  used  to  visit A-2&#8217;s tea shop, and while he was returning from<br \/>\ncinema in the night hours, he found A-1 and A-2 standing near the  tank  along<br \/>\nwith a  gunny bag.  He has well admitted that for returning from cinema to his<br \/>\nresidence, there was no necessity to go via Theppakulam, and he has  got  some<br \/>\nother route.    From his evidence it would be clear that he has no explanation<br \/>\nto offer how he happened to use that route.    The  lower  Court  has  adduced<br \/>\nproper  reasons that he was a planted witness in order to say that the accused<br \/>\nwere having the gunny bag in hands.  The reasons adduced by the  trial  Court,<br \/>\nin the opinion of this Court, are sound.\n<\/p>\n<p>        15.   So  far  as  the recovery part is concerned, P.Ws.12 and 13, who<br \/>\nwere examined by the prosecution for the purpose of  proving  the  same,  have<br \/>\nturned  hostile,  and thus, the arrest of the accused, the confessions made by<br \/>\nthem and the alleged recovery of the material objects could not be accepted by<br \/>\nthe lower Court.  In the instant  case,  except  this  evidence,  nothing  was<br \/>\navailable,  and  therefore, the prosecution has not brought forth or placed or<br \/>\nproved the necessary or sufficient circumstance.  It can be well  stated  that<br \/>\nnot  even  one  circumstance is placed in favour of the prosecution connecting<br \/>\nthe accused with the crime.   The  trial  Court  has  marshaled  the  evidence<br \/>\nproper, considered the same, adduced proper reasons and acquitted the accused,<br \/>\nsince  it was not able to see any circumstance connecting the accused with the<br \/>\ncrime.  This Court is unable to notice any reason to  take  a  different  view<br \/>\nfrom that  of  the lower Court.  At this juncture, the Court is mindful of the<br \/>\ncaution by the Apex Court that in a case where the  trial  Court  on  evidence<br \/>\nfound  the  accused not guilty and acquitted them, unless and until compelling<br \/>\ncircumstances are noticed, the judgment of  the  trial  Court  should  not  be<br \/>\nreversed.   In  the instant case, this Court is unable to notice any reason to<br \/>\ninterfere with the judgment of the trial Court, since there are no  compelling<br \/>\ncircumstances  warranting  so,  and  the  judgment  of  the trial Court is not<br \/>\nperverse.  Accordingly, the judgment of the trial Court is sustained.\n<\/p>\n<p>        16.  In the result, this  criminal  appeal  fails,  and  the  same  is<br \/>\ndismissed.\n<\/p>\n<p>Index:  yes<br \/>\nInternet:  yes<\/p>\n<p>To:\n<\/p>\n<p>1)The II Additional Sessions Judge, Erode.\n<\/p>\n<p>2)The II Additional Sessions Judge, Erode,<br \/>\nThrough The Principal Sessions Judge, Erode.\n<\/p>\n<p>3)The District Collector, Erode District.\n<\/p>\n<p>4)The Director General of Police, Chennai.\n<\/p>\n<p>5)The Public Prosecutor, High Court, Madras.\n<\/p>\n<p>6)The Inspector of Police, Gobi Police Station<br \/>\n        Erode District<\/p>\n<p>nsv\/<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Madras High Court State By: vs Gulam Babu on 21 September, 2005 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 @ [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-144129","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>State By: vs Gulam Babu on 21 September, 2005 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-by-vs-gulam-babu-on-21-september-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State By: vs Gulam Babu on 21 September, 2005 - Free Judgements of Supreme Court &amp; 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