Pavunu v. State by the Inspector of Pol

BAIL SLIPThe Appellant/Accused No.3 and Appellants/Accused 1 and 2 inCrl.A.No.125 and 408/2007 were directed to be released on bail inand by the orders of this Court dated 8.8.2007 and 27.4.2007 andmade in MP.Nos.1 and 1 of 2007 respectively.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23.01.2009 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE M.VENUGOPALCRIMINAL APPEAL NOS.125 AND 408 OF 2007Pavunu.. Appellant/Accused No.3 inCrl.A.No.125 of 20071.Rammi @ Ramesh2.Thirupathi.. Appellants/Accused 1 and 2 in Crl.A.No.408 of 2007Vs.State bythe Inspector of Police,Thirupathur Taluk Police Station,Vellore District(Crime No.309/2004).. Respondent in both the appeals These criminal appeals have been preferred under Section 374(2) Cr.P.C. against the judgment of the learned AdditionalDistrict and Sessions Judge, Fast Track Court, Vellore made inS.C.No.183 of 2005, dated 29.11.2006. For Appellants : Mr.S.Govindarajan in Crl.A.No.125 of 2007 Mr.R.Shanmugam, SC for Mr.S.V.Karthikeyan in Crl.A.No.408 of 2007For Respondent : Mr.P.Kumaresan, APP - - - - https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT(The judgment of the court was delivered by M.CHOCKALINGAM, J.)This judgment shall govern these two criminal appeals,namely Criminal Appeal No.125 of 2007 filed by A-3 and CriminalAppeal No.408 of 2007 filed by A-1 and A-2.2.The appellants three in number stood charged, tried andfound guilty by the Additional District and Sessions Division,Fast Track Court, Vellore in S.C.No.183 of 2005 as follows.AccusedChargesFindingsSentenceA-1 andA-2S.302 r/w S.34 IPCGuilty Life imprisonmenteach and to pay afine of Rs.1000/-,in default toundergo 6 monthsRI.A-1 andA-2S.201 r/w S.302IPCGuilty u/s.201r/w 34 IPC5 years R.I. eachand to pay a fineof Rs.1000/-, indefault to undergo6 months RI.A-3S.302 IPCGuilty u/s.302r/w S.109 IPCLife imprisonmentand to pay a fineof Rs.1000/-, indefault to undergo6 months RI.A-3S.201 r/w S.109IPCGuilty5 years R.I. and topay a fine ofRs.1000/-, indefault to undergo6 months RI.3.The short facts necessary for the disposal of theseappeals can be stated thus:a)P.W.1 is the elder brother of the deceased Venkatesan @Chinnathambi. Both were carrying on brick kiln businessindependently. A-3 is the wife of the deceased. P.W.2 is the sonof the deceased. The first accused took on lease 35 cents of landof the deceased for carrying on his brick business. One Ravi wascarrying on business in that piece of land. In the course of thebrick transaction and manufacturing of brick, A-3 developedintimacy with A-1 and apart from that, she has also given 5sovereigns of gold jewels to A-1. When the deceased came to knowabout the same, he has not only demanded the return of thejewels, but also asked A-1 to hand over the possession of theland and thus, A-1 and A-3 were aggrieved over the attitude of https://hcservices.ecourts.gov.in/hcservices/ the deceased. A-2 was an associate of A-1. b)On 26.04.2004, the deceased went towards the field atabout 7.00 p.m., but he did not return. A-1 and A-2 beat thedeceased and caused his death. They originally buried the deadbody in the land of P.W.4's brother and thereafter, they exhumedthe dead body and gave an intimation to A-3 and along with her,they threw the dead body on the railway track. On the next daymorning, A-3 informed P.W.2 and others that her husband, who wentlast night at 7.00 p.m., did not return. They were all making asearch throughout. P.W.4 informed that a new pit was dug in theland of his brother and it also seems to be closed. Immediately,P.Ws.1 and 2 and others went there and dug the pit, but theynoticed only bloodstains and they did not see the dead body.After seeing the dead body of the deceased in the railway track,P.Ws.1 and 2 proceeded to Jolarpet Railway police station andgave Ex.P.1, the complaint to P.W.18, the Sub Inspector ofPolice. The station master has also given Ex.P.22, the complaintto P.W.18, who registered the case in Crime No.125 of 2004 underSection 174 Cr.P.C. Ex.P.25, the F.I.R. was despatched to theCourt. P.W.18 proceeded to the spot and made an inspection in thepresence of the witnesses. The observation mahazar Ex.P.28 andthe rough sketch Ex.P.32 were prepared. P.W.18 conducted inqueston the dead body of the deceased in the presence of the witnessesand panchayatdars and prepared Ex.P.24, the inquest report. Whenthe matter was pending investigation, P.W.20, the Inspector ofPolice of the Railway police station, on receipt of the copy ofthe F.I.R., took up the investigation, proceeded to the spot andmade an inspection in the presence of the witnesses. It wasnoticed by P.W.20 that it was a case of murder and hence hetransferred the investigation to Thirupathur Taluk PoliceStation. c)P.W.13, the Doctor attached to the Government Hospital,Thirupattur, on receipt of the requisition, has conducted post-mortem on the dead body of the deceased and has issued Ex.P.17,the post-mortem certificate, wherein she has opined that thedeceased would appear to have died of injury to vital organs, 36hours prior to autopsy. d)On transfer, P.W.21, the Inspector of Police ofThirupathur Taluk Police Station, took up the case and renumberedthe same as Crime No.309 of 2004 and registered the case underSection 174 Cr.P.C. While the matter stood thus, A-1 and A-2appeared before P.W.8, V.A.O. on 07.05.2004. A-1 gaveconfessional statement and the same was recorded by the V.A.O.,which was marked as Ex.P.2. A-1 and A-2 were produced before theThirupattur Taluk Police station along with Ex.P.2. Then, theywere arrested and the case was converted from Section 174 Cr.P.C.to Section 302 IPC. Ex.P.27, the alteration report was despatchedto the court. Further investigation was proceeded with. A-1 gaveconfessional statement, which was marked as Ex.P.3. A-2 also gaveconfessional statement, which was recorded in the presence of thewitnesses and the same was also marked as Ex.P.4. Pursuant to theconfessional statement, A-1 produced M.O.4, stick, which wasrecovered under a cover of mahazar. P.W.21 proceeded to the spot https://hcservices.ecourts.gov.in/hcservices/ along with the accused and the witnesses and prepared theobservation mahazar and the rough sketch. He recovered thematerial objects from the place of occurrence under a cover ofmahazar. A-3 was arrested and she came forward to giveconfessional statement, which was recorded in the presence of thewitnesses. The accused were sent for judicial remand. All thematerial objects recovered were sent for chemical analysis.Ex.P.19, the Chemical Analyst's report and Ex.P.20, theSerologist's report were received. On completion of theinvestigation, the Investigator has filed the final report. 4.The case was committed to the court of sessions andnecessary charges were framed. In order to substantiate thecharges, the prosecution examined 21 witnesses and also relied on32 exhibits and 10 M.Os. On completion of the evidence on theside of the prosecution, the accused were questioned underSection 313 Cr.P.C. as to the incriminating circumstances foundin the evidence of prosecution witnesses, which they flatlydenied as false. No defence witness was examined. The trialcourt, on hearing the submissions made and looking into thematerials available, took the view that the prosecution hasproved the case beyond reasonable doubt and found theaccused/appellants guilty as per the charges and awardedpunishments as referred to above. Hence these appeals have arisenat the instance of the appellants.5.Advancing arguments on behalf of the appellants, thelearned Senior Counsel has made the following submissions:a)The occurrence has taken place, according to theprosecution, on 26.04.2004 between 7.00 p.m. and 8.00 p.m. Theprosecution had no direct evidence to offer. But, it relied uponmainly the evidence speaking about the motive. Secondly, extrajudicial confession alleged to have been given by A-1 and A-2 toP.W.8, V.A.O. on 07.05.2004 and also the recovery of M.O.4 undera cover of mahazar pursuant to the confessional statement givenby A-1. Except this, the prosecution had no evidence to offer.Even though the prosecution made an attempt to prove the casethrough these circumstances, it has miserably failed to prove itscase either, or bring home the guilt of the accused. b)According to the prosecution, the occurrence has takenplace on 26.04.2004 between 7.00 and 8.00 p.m. P.Ws.1 and 2 havecategorically admitted that on the next morning, they wereinformed by P.W.4 that a pit was dug and was closed in hisbrother's land. Immediately, they went over there and opened thepit, but they could not see the body and they found only thebloodstains. Even at that time, the police officials and theV.A.O. were all present. It was also added by P.W.2 that theygave a clear information and it was also recorded by the policeand thus, it would be quite clear that the police of the saidjurisdiction went over to the place and came to know about theoccurrence and have recorded so. If to be so, the firstinformation which was recorded by the police on 27.04.2004 itselfhas been suppressed in the instant case. https://hcservices.ecourts.gov.in/hcservices/ c)Secondly, even after seeing the dead body in the railwaytrack, P.W.1 has given the complaint to the railway police, wherehe has categorically stated that it was the act of one Ramesh,namely A-1, who has committed the murder and threw the dead bodyin the railway line and thus, in the uncertain terms, aninformation was given to the police. Further, the case was notconverted to Section 302 IPC even after transfer of the case fromthe Railway police to the regular police for the reasons bestknown to the police officials. For the first time, the case wasaltered from Section 174 Cr.P.C. to Section 302 IPC only afterthe extra judicial confession alleged to have been made by A-1and A-2 to P.W.8, the V.A.O. and till that time, the case was notaltered at all. In the instant case, there was not onlysuppression of the first information, but also the police werewaiting for a period of 7 days even after the cognizable offencewas brought to their notice.d)In the instant case, so far as the extra judicialconfession alleged to have been made is concerned, it should havebeen rejected by the trial court for the simple reason that A-1and A-2 were all along available in the village, but theyappeared before the Village Administrative Officer on 07.05.2004.The police neither registered the case for murder nor arrestedthem, but has kept quiet. There is no reason for A-1 and A-2 toappear suddenly before P.W.8, V.A.O. to confess about the offenceon 07.05.2004 and that too after a period of nearly about 10days. It is not the case that P.W.8, V.A.O. was alreadyacquainted to A-1 and A-2 and there is no reason as to why theyshould make confession before P.W.8 and thus, that confessionalstatement has been created in order to shape the case of murderlike this. e)Further, in the instant case, M.O.4, which is alleged tohave been recovered from A-1 pursuant to the confessionalstatement, did not contain any blood at all. According to theprosecution, the occurrence has taken place on 26.04.2004 atabout 7.00 to 8.00 p.m., but P.W.13, the Doctor, who conductedpost-mortem on the dead body of the deceased on 29.04.2004, hascategorically stated in his report and also in his evidence thatthe deceased would appear to have died about 36 hours prior toautopsy. If to be so, it should have been on the night hours of27.04.2004 or on the morning hours of 28.04.2004 and hence thetime of death is also not proved by the prosecution. Under thesecircumstances, all would cast a doubt and that too in a case ofcircumstantial evidence, if they are not placed and provedproperly and cogently, the trial court should have rejected thecase of the prosecution in entirety and hence the appellants areentitled for acquittal in the hands of this court.6.The court heard the learned Additional Public Prosecutoron the above contentions and has paid its anxious considerationon the submissions made. https://hcservices.ecourts.gov.in/hcservices/

7.It is not in controversy that the dead body of Venkatesan@ Chinnathambi was found in the railway track near Jolarpet. Oninformation of P.W.1, a case came to be registered by P.W.18, theSub Inspector of Police attached to the railway police, Jolarpetin Crime No.125 of 2004 under Section 174 Cr.P.C. Subsequently,following the post-mortem, it was found that it was a case ofmurder and then, the case was transferred to Thirupattur TalukPolice Station and a case came to be registered in Crime No.309of 2004 under Section 174 Cr.P.C. Ex.P.26, the F.I.R. was alsomarked. P.W.13, the post-mortem Doctor has opined that thedeceased would appear to have died of shock and haemorrhage dueto the injuries sustained. Thus, the prosecution was successfulenough in proving the fact that the deceased died out ofhomicidal violence. This fact was also not disputed by theappellants before the trial court and hence it has got to berecorded so. 8.In order to substantiate the charges levelled against theappellants, the prosecution had no direct evidence to offer. Ithas relied upon only circumstantial evidence. In a given caselike this, the prosecution must place and prove all necessarycircumstances pointing to the guilt of the accused undoubtedlyand also the hypotheses that no one else could have committed theoffence except the accused. If this test is applied, the court isafraid whether it can agree with the prosecution case. In theinstant case, the prosecution came with the specific charge thatA-1 and A-2 beat the deceased and caused his death between 7.00p.m. and 8.00 p.m. on 26.04.2004 and while screening theevidence, A-3 also joined with them. In order to prove thosecharges, the prosecution mainly rested on the evidence in respectof motive, extra judicial confession alleged to have been givenby A-1 and A-2 to P.W.8, V.A.O. on 07.05.2004 and also therecovery of M.O.4 under a cover of mahazar. 9.All the circumstances noticed were stood against theprosecution case. According to the prosecution, the occurrencehas taken place on 26.04.2004 between 7.00 p.m. and 8.00 p.m.P.W.13 was the Doctor, who conducted autopsy on the dead body ofthe deceased. According to him, the death would appear to havecaused 36 hours prior to autopsy, i.e. the death would havecaused on the night hours of 27.04.2004 or on the early morninghours of 28.04.2004, but the prosecution case was that the deathhas occurred on 26.04.2004 itself. The dead body was found onlyon 28.04.2004 at about 11.00 a.m. Thus, the death would have beencaused as noticed by the post-mortem Doctor and not as put forthby the prosecution on 26.04.2004 between 7.00 p.m. and 8.00 p.m.No explanation was forthcoming from the prosecution before thiscourt. 10.Secondly, according to P.Ws.1 and 2, Venkatesan @Chinnathambi was not found on the night hours of 26.04.2004 andit was A-3 who informed P.Ws.1 and 2 and others. P.W.4, the https://hcservices.ecourts.gov.in/hcservices/ nearby neighbour, informed that a new pit was dug in hisbrother's land and it remains closed also and therefore, theyshould go and verify. Accordingly, P.Ws.1 and 2 and others wentover there and opened the pit, but they could not see the deadbody and found only the bloodstains. At this juncture, it ispertinent to point out that according to the witnesses, theV.A.O. and the police officials were also present on 27.04.2004.They would further add that the police have recorded theirinformation which was given. If to be so, the police have clearinformation of the incident as reported by P.Ws.1 and 2 on27.04.2004 morning itself. But what happened to that informationremained unknown before the trial court.11.Thirdly, the dead body was found in the railway tracknear Jolarpet on 28.04.2004. P.W.1 rushed to Jolarpet RailwayPolice and gave an information to P.W.18, the Sub Inspector ofPolice, who registered the case in Crime No.125 of 2004 underSection 174 Cr.P.C. The dead body was subjected to post-mortem byP.W.13, the Doctor, who has clearly opined that it was not anaccident, but it was a case of death due to homicidal violence.Immediately, the case was transferred to the regular police,namely Thirupattur Taluk Police on 29.04.2004 itself. Even afterthe same, the case was not altered to Section 302 IPC, but thecase was renumbered as Crime No.309 of 2004 only under Section174 Cr.P.C. It is pertinent to point out that even in theearliest information given by P.W.1 to the railway police on28.04.2004 itself, he has categorically stated that it was a caseof murder and the act committed by A-1 in killing his brother. Atthis juncture, it remains to be stated that Thirupattur TalukPolice, under what circumstances or reasons, did not register thecase for murder, but continued it under Section 174 Cr.P.C.remained unknown. Further, the case was altered to Section 302IPC only on 07.05.2004 subsequent to the production of A-1 and A-2 by P.W.8, V.A.O and the confessional statement given as foundunder Ex.P.2. At this juncture, it remains to be stated thatthough the prosecution has projected as if A-1 and A-2 wereabsconding, the evidence would indicate that they were very wellavailable in that place. If to be so, what made the police not toregister the case of murder or not to cause arrest of the accusedor not to proceed with the investigation remained unexplained. Itis not the case of the prosecution that P.W.8, V.A.O. wasacquainted with A-1 and A-2, but what impelled them to appearbefore him suddenly and gave such a confessional statement on07.05.2004 remained unknown and is doubtful and it casts a doubtwhether they gave such a statement at all. 12.In the instant case, though M.O.4 was subjected toanalysis, it did not contain human blood at all. It should not beforgotten that it was a case rested on circumstantial evidence.If to be so, it is true, the witnesses may fail, but not thecircumstances. But the circumstances when placed to take adecision as to the guilt of the accused, they must be cogent,convincing and must constitute a chain without a snap and https://hcservices.ecourts.gov.in/hcservices/ pointing to the hypotheses that except the accused no one couldhave committed the offence. In the instant case, all thecircumstances noticed are contra to the hypotheses that exceptthe accused no one could have committed the offence. Under thesecircumstances, it would be highly unsafe to rest the convictionon the basis of the circumstances placed before the trial court,but the trial court has taken an erroneous view and hence thejudgment of the trial court has got to be made undone only byupsetting the same.13.Accordingly, the judgment of conviction and sentenceimposed on the appellants by the trial court is set aside and theappellants are acquitted of the charges levelled against them.The bail bonds if any executed by them shall stand terminated andthe fine amounts if any paid by them shall be refunded to them.Accordingly, these criminal appeals are allowed.VvkSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Additional District and Sessions Judge, Fast Track Court, Vellore.2.The Inspector of Police, Thirupathur Taluk Police Station, Vellore District.3.The Public Prosecutor, High Court, Madras.4.The Judicial Magistrate II, Thirupattur.5.Do Through The Chief Judicial Magistrate, Vellore6.The Superintendent, Central Prison, Vellore.7.The Superintendent, Central Prison for Women, Vellore.8.The District Collector, Vellore.9.The Director General of Police, Mylapore, Chennai 4.10.The Superintendent of Police, Vellore District, Vellore.+ 2 ccs Mr. S. Govindarajan, Advocate SR No.3427+ 1 cc to MR. S. V. Karthikeyan, Advocate SR No.3261KG(CO)SR/30.1.2009Crl.A.Nos.125 and 408 of 2007