High Court · 2009

B A I L S L I PCrl.A.No.1087/07The Appellant/Accused No.4, viz., Puttu @ Muthukumar was directedto be released on bail in and by order of this Court dated 20.12.2007in Crl.MP.No.1/07 in Crl.A.No.1087/07.Crl.A.No.1121/2007The Appellants/Accused viz., 1.Suresh, 2.Achuthan, 3.Koyyakka @Karthik, 4.Dhaya @ Dineshkumar were directed to be released on bail inand by order of this Court dated 22.1.2008 in Crl.MP.No.1/08 inCrl.A.No.1121/07.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 15-6-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRL.A.Nos.1087 and 1121 of 2007Puttu @ Muthukumar.. Appellant in CA 1087/2007/Accused 41.Suresh2.Achuthan3.Koyyakka @ Karthik4.Dhaya @ Dineshkumar.. Appellants in CA 1121/2007/ Accused 1 to 3 & 5vsState Rep. ByThe Inspector of PoliceVellore Taluk Circle, Vellore(Crime No.278/05)on the file of theVirinchipuram Police StationVellore District.. Respondent in both appeals/ComplainantCriminal appeals preferred under Sec.374(2) of the Code ofCriminal Procedure against the judgment of the Additional District andSessions Judge (Fast Track Court), Vellore, in S.C.No.110 of 2007dated 15.10.2007. https://hcservices.ecourts.gov.in/hcservices/ For Appellants: Mr.K.Srinivasan in C.A.1087/2007 Mr.K.S.Rajagopalan in C.A.1121/2007For Respondent: Mr.N.R.Elango Additional PublicProsecutorCOMMON JUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)These appeals challenge a judgment of the Additional SessionsDivision, Fast Track Court, Vellore, made in S.C.No.110 of 2007whereby the appellants five in number, ranked as A-1 to A-3 and A-5(appellants in CA 1121/2007) respectively and ranked as A-4 (appellantin CA 1087/2007), stood charged, tried, found guilty on trial, underSections 120(b), 302 read with 34, 380 and 201 read with 302 of IPCand awarded 6 months Rigorous Imprisonment under Sec.120(b) IPC, lifeimprisonment along with a fine of Rs.500/- and default sentence underSec.302 read with 34 IPC, 3 years Rigorous Imprisonment along with afine of Rs.500/- and default sentence under Sec.380 IPC and 3 yearsRigorous Imprisonment along with a fine of Rs.500/- and defaultsentence under Sec.201 read with 302 IPC.2.The short facts necessary for the disposal of these appealscould be stated thus:(a) P.W.1 is a native of Melmondur. The deceased Elumalai washis son. P.W.1 had two daughters. P.W.2 is the first daughter. Allthe accused persons belonged to the same place. They were alsofriends of the deceased. On 28.5.2005, at about 6.00 P.M., P.W.1found all the accused persons chatting with the deceased. On seeingthis, he warned the appellants and chased them. Some time later,Elumalai left the place, but did not come back. P.W.1 and others weresearching for him for a longtime; but, they could not. While thematter stood thus, A-4 met P.W.3 and gave an extra-judicial confessionas to the conspiracy hatched up by him along with the other accusedand has also spoken about the crime. P.Ws.3 informed the same toP.W.4. Both P.Ws.3 and 4 immediately informed to P.W.1. Then, P.W.1proceeded to the respondent police station on 16.9.2005 at about 8.00A.M., and gave Ex.P1, the report, to P.W.19, the Sub Inspector ofPolice. On the strength of Ex.P1, the complaint, P.W.19 registered acase in Crime No.278/2005 under Sec.174 of Cr.P.C. The printedF.I.R., Ex.P24, was despatched to the Court. (b) The case was actually handed over to P.W.20, the Inspector ofPolice, for investigation. P.W.20 proceeded to the spot, made aninspection and prepared an observation mahazar, Ex.P2, and a roughsketch, Ex.P25. Pending the investigation, A-4 was first arrestedfollowing the extra-judicial confession made by him, and he alsoidentified A-5. Thereafter, it was A-5 who took the police party to https://hcservices.ecourts.gov.in/hcservices/ the place where the dead body was buried. An intimation was given toP.W.13, the Tahsildar concerned. He also came to the spot. The bodywas exhumed in the presence of witnesses, and inquest was alsoconducted by him. The inquest report is Ex.P11. After exhumation, theskull was sent for the purpose of superimposition test and DNA testwas also conducted. The body was found that of the deceased Elumalai.(c) Following the same, an intimation was given to P.W.17, theMedical Officer, attached to the Government Hospital, Vellore. Onreceipt of the requisition, P.W.17 conducted autopsy and has given hisopinion in Ex.P19, the postmortem certificate, that in view of severedecomposition of the body, the cause of death could not be fixed. (d) The further investigation was done. A-4 and A-5 identifiedthe other accused. They were also arrested. It was A-3 who took thepolice party to the shop of P.W.8, a Pawn Broker, wherefrom 40 gramsof gold ingot and also a silver waist cord were recovered under acover of mahazar. Thereafter, all the accused persons were sent forjudicial remand. A requisition was given for recording the statementsof P.Ws.3 and 4 under Sec.164 of Cr.P.C. Accordingly, it was alsorecorded by the Judicial Magistrate No.I, Vellore. Thereafter, thestatements of the other witnesses were recorded. All the materialobjects were sent for chemical analysis. Exs.P20 and 22 are thechemical reports and Ex.P21 is the toxicological report. P.W.21, theInspector of Police, took up further investigation. On completion ofinvestigation, he filed the final report under Sections 302, 201, 120(b) and 380 of IPC. 3.The case was committed to Court of Session, and necessarycharges were framed. In order to substantiate the charges, theprosecution examined 21 witnesses and relied on 26 exhibits and 10material objects. On completion of the evidence on the side of theprosecution, the accused were questioned under Sec.313 of Cr.P.C. asto the incriminating circumstances found in the evidence of theprosecution witnesses, which they flatly denied as false. No defencewitness was examined. The trial Court heard the arguments advancedand took the view that the prosecution has proved the case beyondreasonable doubt in respect of all the charges and hence, found theappellants/accused guilty and awarded the punishment as referred toabove. Hence these appeals before this Court.4.Advancing the arguments on behalf of the appellants, thelearned Counsel would submit that the prosecution rested its caseoriginally on the conspiracy alleged to have been hatched up by theappellants/accused and following the same, they took the deceasedElumalai, caused his death and robbed the jewels worn by him at thetime of occurrence; that the prosecution miserably failed to proveeither the conspiracy theory or any other relevant facts necessary tobring home the guilt of the accused; that the prosecution rested itscase on the circumstantial evidence; that the main two circumstancesrelied on by the prosecution were the last seen theory and the extra-judicial confession; that the last seen theory was spoken to by P.Ws.1and 2; that the trial Court has believed this theory; that P.W.1 hasspoken to the fact that on the day at about 6.00 P.M., the accusedpersons came over there and were chatting with the deceased, andthereafter, they left; that according to P.W.2, the deceased left the https://hcservices.ecourts.gov.in/hcservices/ place after half an hour; that it was not the case of either P.W.1 orP.W.2 that they went together; that from the evidence, it is quiteclear that there was an interval of about half an hour; that further,it cannot be stated that the prosecution could rely upon such anincident calling it as last seen theory; and that no evidence wasadduced by the prosecution indicating the fact that all were found inthe company of the deceased.5.Added further the learned Counsel that the other circumstancerelied on by the prosecution is the extra-judicial confession allegedto have been given by A-4 to P.W.3; that the trial Court should haverejected that piece of evidence in toto for the simple reason thataccording to P.W.3, it was A-4 who came and gave an oral confession,and thereafter, P.Ws.3 and 4 went to the Police Station and informedthe police personnel as to the episode; but, P.Ws.3 and 4 wereinformed that a regular complaint must be given to the Police Stationand further the police advised them to inform to P.W.1, andaccordingly they went to P.W.1 and informed him about the conspiracyand also about the crime; that if to be so, P.W.1 when he gave thecomplaint, has not whispered anything in the complaint; and that allthe above would clearly indicate that this theory of extra-judicialconfession was nothing but a cooked up affair in order to strengthenthe prosecution case if possible. 6.Added further the learned Counsel that what was recovered fromthe shop of P.W.8 was only the gold ingot of 40 grams and nothingmore; that even the jewels were not recovered; that in the instantcase, the exhumation of the body at the instance of A-5 was relied onby the prosecution, but this cannot be a piece of evidence at all forthe reason that the case of the prosecution was that A-1 to A-5hatched up a conspiracy, committed the crime of murder and robbed thejewels; that it was A-4 who at the earliest met P.W.3 and gave aconfessional statement; that if to be so, there was nothing for A-5 toidentify the place of burial of the body; that all would go to showthat the prosecution had not only lacked in evidence, but also noevidence at all; that under the circumstances, the prosecution hasmiserably failed to prove its case, but contrarily, the trial Courthas taken an erroneous view and found them guilty, and hence they areentitled for acquittal in the hands of this Court.7.The Court heard the learned Additional Public Prosecutor on theabove contentions and paid its anxious consideration on thesubmissions made.8.The case of the prosecution as could be seen from the availablematerials is that one Elumalai, son of P.W.1, was taken by theaccused/appellants pursuant to a conspiracy hatched up by them, andafter murdering him, they robbed the jewels worn by him at the time ofthe occurrence. At the outset, it has to be pointed out that theprosecution had no direct evidence to offer as to any relevant fact.It relied upon only circumstantial evidence. As could be seen fromthe available materials placed before the trial Court, the prosecutionrested its case on the two circumstances which, according to theprosecution, were prime, firstly the last seen theory and secondly the https://hcservices.ecourts.gov.in/hcservices/ extra-judicial confession alleged to have been given by A-4 to P.W.3.In the instant case, as far as the last seen theory was concerned,this Court is of the considered opinion that this part of the evidenceadduced by the prosecution was of no avail to accept the said theory.P.W.1 is the father and P.W.2 is the sister of the deceased Elumalai.According to P.W.1, on the date of occurrence, all the accused personscame and were found chatting with the deceased, and P.W.1 chasedthem, and immediately all the accused left the place. According toP.W.2, after half an hour, Elumalai left the place. It is not thecase of the prosecution that the accused persons took Elumalai fromthe house. Nowhere this Court was able to notice in evidence thatthey were found in the company of Elumalai at any point of time.Thus, the last seen theory was of no avail. At this juncture, it ispertinent to point out that the prosecution had no evidence to offerthat there was any conspiracy hatched up. 9.In the case on hand, the prosecution relied much on the extra-judicial confession alleged to have been given by A-4 to P.W.3.Needless to say, in a given case like this before accepting the extra-judicial confession, the Court must apply two tests, firstly to whomand under what circumstance the extra-judicial confession was made andsecondly, whether the evidence of the person to whom the extra-judicial confession alleged to have been made inspires the confidenceof the Court. In this case, the occurrence has taken place on28.5.2005, and P.W.1 has given the complaint on 16.9.2005. It ispertinent to note that the complaint has emanated after a lapse of 2 ½months. Even a reading of the complaint does not make any whisperabout the act of the accused; but, there was only suspicion. The casecame to be registered under Sec.174 of Cr.P.C. by P.W.19, the SubInspector of Police. P.W.3 has categorically deposed that A-4 made anextra-judicial confession, and immediately P.Ws.3 and 4 proceeded tothe police station and informed the same to the police personnel; butthey were informed that there must be a regular complaint, and theyshould inform to P.W.1. Now this part of the evidence adduced wouldstrangely look whether such things would have happened at all. Atthis juncture, it is pertinent to point out that even after theinformation was passed on as to the entire extra-judicial confessionby P.W.3 to P.W.1, Ex.P1 did not contain any whisper about the same.All would go to show whether such extra-judicial confession could havebeen made at all. Apart from that, it was A-4 who identified A-5,and it was A-5 who took the police party and identified the placewhere the dead body was buried, according to the prosecution. Thecase of the prosecution was that all the five persons took thedeceased pursuant to the conspiracy, caused his death and robbed thejewels. If to be so, there was no need for A-4 identifying A-5 andthen A-5 pointing out the place where the dead body was buried. Itwas only an attempt made by the investigating agency in order tostrengthen the case by roping A-5 in. 10.In the instant case, what was available was only the recoveryof gold ingot which was weighing 40 grams, from P.W.8. At thisjuncture, it is pertinent to point out that this recovery has beenmade long after the alleged crime, and jewels were not recovered, andit was only ingot. Under the circumstances, this factum of recovery https://hcservices.ecourts.gov.in/hcservices/ following the other confessional statement by the accused, would notadvance the case of the prosecution further. In a given case,needless to say, when the prosecution rested its case on thecircumstantial evidence, the circumstances must make a complete chainwithout a snap pointing to the hypothesis that except the accused noone could have committed the offence. In the case on hand, theprosecution rested its case on two circumstances. As far as both thecircumstances are concerned, the prosecution miserably failed to provethe same. Thus it can be well stated that the prosecution has notbrought home the guilt of the accused beyond reasonable doubt asexpected in law, and hence they are entitled for acquittal.Accordingly, the judgment of the trial Court has got to be made undoneby upsetting the same. 11.In the result, both these criminal appeals are allowed settingaside the judgment of the lower Court. The appellants are acquitted ofthe charges levelled against them. The bail bonds executed by themshall stand terminated. The fine amounts if any paid by them, will berefunded to them.nsv/Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo:1.The Additional District and Sessions Judge, Fast Track Court Vellore2.The Inspector of Police Vellore Taluk Circle Vellore (Crime No.278/05) on the file of the Virinchipuram Police Station Vellore District 3.The Public Prosecutor High Court, Madras.4.The Judicial Magistrate No.IV, Vellore.5.Do Through the Chief Judicial Magistrate, Vellore.6.The Superintendent, Central Prison, Vellore. https://hcservices.ecourts.gov.in/hcservices/

7.The Section Officer, Criminal Section, High Court, Madras.8.The District Collector, Vellore.9.The Director General of Police, Madras.10.The Principal Sessions Judge, Vellore.+ 1 cc to Mr. K. Srinivasan, Advocate, SR No.23493+ 1 cc to Mr. K. S. Rajagopalan, Advocate, SR No.23585CRL.A.Nos.1087 and1121 of 2007VSV(CO)SR/23.6.2009