R. Palanisamy v. State rep. by Inspector of Police, Pallipalayam Police Station, Namakkal District.

Bail SlipThat the appellant/Accused namely P.Palamisamy was directed to bereleased on bail by the order of this Court dated 5.2.2007 inCrl.M.P.No.1/2007 in C.A.No.1023/06.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 18.06.2008CORAM:THE HONOURABLE MR.JUSTICE P.D.DINAKARANandTHE HONOURABLE MR.JUSTICE K.N.BASHACriminal Appeal No.1023 of 2006R.Palanisamy.. Appellant/AccusedVs.State rep. byInspector of Police,Pallipalayam Police Station,Namakkal District.(Cr.No.27 of 2005).. Respondent/ComplainantPrayer : Criminal Appeal filed under Section 374 of the Code ofCriminal Procedure against the Judgment of conviction passed by thelearned Principal District and Sessions Judge, Namakkal, in S.C.No.61of 2006 dated 26.10.2006. For Appellant: Mr.K.V.SridharanFor Respondent :Mr.N.R.Elango, Additional Public ProsecutorJ U D G M E N T(Judgment of the court was delivered by K.N.BASHA, J.) The appellant, who is the sole accused, has come forwardwith this appeal challenging his conviction and sentence passed bythe learned Principal District and Sessions Judge, Namakkal, by thejudgment dated 26.10.2006 made in S.C.No.61 of 2006 convicting himfor the offence under Section 302 IPC and sentencing him to undergolife imprisonment.2. The occurrence in this case is shown to have taken place on17.04.2005 at 2.00 pm at the Thatched shed of Muthu Naicker Thottamat Ammasipalayam village. https://hcservices.ecourts.gov.in/hcservices/

3. The charge against the accused is that the accused, due toproperty dispute, beat his father, the deceased, Rangasamy, on hishead with M.O.5, Karuvelam wooden log, resulting in the death of thedeceased and thereby said to have committed the offence under Section302 IPC. 4. The prosecution, in order to bring home the chargesagainst the accused, examined P.Ws.1 to 21, filed Exs.P.1 to P.26 andmarked M.Os.1 to 11.5. The prosecution case, in a nutshell, is as follows :(i) This is a case of patricide. The accused is none else thanthe son of the deceased. P.W.1 is the brother-in-law of the deceasedas he married the sister of the deceased, P.W.16. P.W.2 is the sonof the deceased. P.W.3 is the wife of the deceased. P.W.10 is thefather of the deceased and father-in-law of P.W.1.(ii) On 17.04.2005, P.W.1, along with his wife, P.W.16, went tothe house of the deceased and he was informed that the deceased hadgone to Thiruchengode at 12 noon. The deceased, Rangasamy, came tohis house with a bandage in his left hand stating that he was havingsprain in his hand and as such he had taken treatment and put bandageat Thiruchengode. The deceased had taken only water and left thehouse. At 3.30 p.m., P.W.1 with a view to inform the deceased thathe is going to his village, went to the Thatched shed situated atMuthu Naicker Thottam and found the deceased was lying on a cot. While P.W.1 went near the cot, he found the deceased lying dead withinjuries on his left ear, head and also an abrasion near the eye. Thereafter, P.W.1 went and informed P.W.4, who is also related to thedeceased, and P.W.16, wife of P.W.1 and they came and saw the body ofthe deceased.(iii) P.W.1 went to Molasi Police Station on 17.04.2005 at 6.00p.m. and a statement was recorded from him by P.W.20, Sub Inspectorof Police, under Ex.P.21. P.W.1 affixed his thumb impression inEx.P.21. P.W.20 registered a case in Crime No.27 of 2005 for theoffence under Section 174 Cr.P.C. Ex.P.22 is the Printed copy of theExpress First Information Report. He sent the same to the higherpolice officials and to the Court. (iv) P.W.21, on receipt of the First Information Report at 6.30p.m. on 17.04.2005, took up investigation and went to the scene ofoccurrence. He prepared the Observation Mahazar, Ex.P.2 and the RoughSketch, Ex.P.23 in the presence of witnesses. He held inquest on thedead body of the deceased from 8.00 p.m. to 11.00 p.m. Duringinquest, he examined P.Ws.1, 2, 3, 4 and others. Ex.P.26 is theinquest report. He sent the body for post-mortem.(v) The Doctor, P.W.9, conducted post-mortem on the dead body ofthe deceased on 18.04.2005 at 7.00 a.m., and found the followinginjuries : https://hcservices.ecourts.gov.in/hcservices/ External Injuries :(1)3 cm L.W. on the middle of the pinna of left ear cutting(torn) cartilage making the pinna into two parts. 1 cmL.W. at the upper end of left pinna.(2)3 cm X 1 1/2 cm X bone deep L.W. behind the left ear.O/D Diffused subcutaneous haematoma is seen over the leftside of back of scalp and fissured. Fracture from (torn)oozing of blood from inside the skull is seen. Fracturerunning from left side of the skull cross the occipitalbone up to the right temporal bone is seen.(3)7 X 2 cm abrasion over the cheek in front of the leftear present.(4)2 cm X 1 cm abrasion over the back of the right wristwith surrounding swelling is seen.O/D subcutaneous haemotoma seen. Bones normal.(5)Left wrist after removing the creepe bandage appearsnormal.Skull : On opening the fissured fracture running from theleft temporal bone crossing the occipital bone up to theright temporal bone is confirmed. Diffused subdurahaemotoma over the left temporal and occipital lobe ofbrain seen. Brain pale 1000 gms, fracture of base of skullfrom left temporal bone upto the middle seen. Thorax :Hyoid bone intact. Bony cage intact. Lungs pale right 450gms, left 350 gms. Heart pale 150 gm, Abdomen : Liver pale1200 gm, spleen pale 120 gm, kidney pale each 75 gm.Stomach : 500 ml of partly digested rice food seen.Bladder empty."The Doctor, P.W.9, opined that the deceased would appear to have diedof shock and haemorrhage due to head injury. Ex.P.10 is the Post-mortem Certificate and Ex.P.12 is the final opinion of the Doctor.(vi) P.W.21, in continuation of his investigation, examined theother witnesses. Meanwhile, the accused appeared before the VillageAdministrative Officer, P.W.5, on 04.05.2005 and gave the extra-judicial confession which was recorded by P.W.5 under Ex.P.4. Thereafter, P.W.5 took the accused to the Police Station and producedhim before P.W.21 on 04.05.2005 at 12.00 noon and handed over Ex.P.4,the extra-judicial confession, recorded by him. P.W.5 took hisAssistant one Manickam along with him to the Police Station at thetime of producing the accused and Ex.P.5. In pursuance of theadmissible portion of the confession of the accused under Ex.P.6,P.W.21, recovered M.O.5, Karuvelam Wooden log under Ex.P.7. Thereafter, P.W.21 altered the offence from Section 174 Cr.P.C. toone under Section 302 IPC. Ex.P.24 is the altered First InformationReport and he sent the same to the higher police officials and to theCourt. He also recovered bloodstained cot, M.O.1, bloodstainedcloth, M.O.2, bloodstained earth, M.O.3 and sample earth, M.O.4 underEx.P.3. The accused was remanded to judicial custody. P.W.21 afterexamining the other witnesses including the Doctor, P.W.9, who hasconducted the post-mortem and after receiving the Post-mortemCertificate, Ex.P.10, Viscera Report, Ex.P.11, Final Opinion, https://hcservices.ecourts.gov.in/hcservices/ Ex.P.12, Chemical Examination Report, Ex.P.18 and the SerologistReport, Ex.P.19 and after completing investigation, filed the chargesheet against the accused for the offence under Section 302 IPC on08.07.2005.6. When the accused was questioned under Section 313 Cr.P.C. inrespect of the incriminating materials appearing against him throughthe evidence adduced by the prosecution, the accused denied each andevery circumstances as contrary to the facts and stated that he hasbeen falsely implicated in this case. The accused neither examinedany witness nor marked any document on his side.7. Mr.K.V.Sridharan, leaned counsel appearing for the appellantcontended that the prosecution has miserably failed to prove its caseby adducing clear and consistent evidence. It is submitted thatthere is no eye-witness to the occurrence in this case and the entireprosecution case rests on the circumstantial evidence and theprosecution has not put forward any clinching circumstancesimplicating the accused. It is submitted that almost all thewitnesses including P.W.2, brother of the deceased and P.W.3 wife ofthe deceased, have turned hostile. It is contended that P.W.1, whoalleged to have given the report, has disowned his report and onlyadmitted his signature which was marked as Ex.P.1. The learnedcounsel further contended that the witnesses namely, P.Ws.6, 7, 8, 14and 15, said to have been spoken about the last seen theory, haveturned hostile. It is submitted that even the witnesses to speakabout the motive, namely, P.Ws.8, 11, 12, 14 and 16 have also turnedhostile. It is contended that it is not safe to rely upon thealleged extra-judicial confession, said to have been recorded byP.W.5, Village Administrative Officer, as the accused has no reasonto choose P.W.5 for giving such extra-judicial confession. Thelearned counsel would further point out that P.W.2, brother of thedeceased, stated in his cross-examination that after the death of thedeceased/his father and during inquest, the accused was present. P.W.2 stated that he was kept under illegal custody by the policefor 10 days and the accused was also brought to the police and assuch there is no question of giving extra-judicial confession, Ex.P.4to P.W.5. It is also contended that even P.W.4 stated in his cross-examination that the accused was kept under illegal custody by thepolice. The learned counsel further submitted that there isabsolutely no material available on record to implicate the accusedand the prosecution has not produced any clinching circumstancesleading to the only inference of the guilt of the accused.8. Per contra, Mr.N.R.Elango, learned Additional PublicProsecutor, contended that the prosecution has proved its case byadducing clear and cogent evidence. It is submitted that though themain witnesses have turned hostile, the fact remains that the law wasset in motion by the report given by P.W.1. It is submitted thatthere is no infirmity in the extra-judicial confession, Ex.P.4, saidto have been recorded, as per the statement of the accused, by P.W.5. The accused has implicated himself clearly in his extra-judicialconfession, Ex.P.4 and the version of the accused is also https://hcservices.ecourts.gov.in/hcservices/ corroborated by the medical evidence through the Doctor, P.W.9, whohas conducted postmortem and the post-mortem certificate, Ex.P.10,discloses corresponding injuries. Therefore, it is submitted thatthe prosecution has proved its case beyond reasonable doubt in allaspects.9. We have given our careful and anxious consideration to therival contentions put forward by either side and also thoroughlyscrutinized the entire materials available on record and perused theimpugned judgment of conviction.10. The entire prosecution case rests on the circumstantialevidence. The prosecution put forward the following circumstances :(i) Motive : As far as the motive is concerned, it is the caseof the prosecution that the accused caused the death of the deceaseddue to property dispute as the deceased, his father, settled theproperty in favour of his aunt, P.W.16. In respect of thiscircumstance, the prosecution placed reliance on the evidence ofP.Ws.8, 11, 12, 14 and 16.(ii) The last seen theory, by placing reliance on the evidenceof P.Ws.6, 7, 8, 14 and 15.(iii) The extra-judicial confession, Ex.P.4, said to have beenrecorded by P.W.5, Village Administrative Officer, from the accused.(iv) Arrest and recovery.11. Before proceeding to scrutinize and analyse thecircumstances put forward by the prosecution, it is relevant to referthe well settled principle of law laid down by the Hon’ble Apex Courtin respect of circumstantial evidence.12. The Hon’ble Apex Court has held in a latest decision inKrishnan V. State represented by Inspector of Police reported in 2008(4) Supreme 25 that, “This Court in a series of decisions has consistentlyheld that when a case rests upon circumstantial evidence,such evidence must satisfy the following tests :-i.the circumstances from which an inference of guilt issought to be drawn, must be cogently and firmlyestablished ;ii.those circumstances should be of definite tendencyunerringly pointing towards guilt of the accused ;iii.the circumstances, taken cumulatively, should form achain so complete that there is no escape from theconclusion that within all human probability the crimewas committed by the accused and none else ; andiv.the circumstantial evidence in order to sustainconviction must be complete and incapable of explanationof any other hypothesis than that of the guilt of theaccused and such evidence should not only be consistentwith the guilt of the accused but should be inconsistentwith his innocence. (See Gambhir V. State ofMaharashtra AIR 1982 SC 1157." https://hcservices.ecourts.gov.in/hcservices/

13. The Hon’ble Apex Court in the above said decision alsoreferred an earlier decision and incorporated the same as hereunder :14. We may also make a reference to a decision ofthis Court in C.Chenga Reddy V. State of A.P. (1996) 10SCC 193, wherein it has been observed thus : (SCCpp.206-207, para 21)"21. In a case based on circumstantialevidence, the settled law is that thecircumstances from which the conclusion of guiltis drawn should be fully proved and suchcircumstances must be conclusive in nature.Moreover, all the circumstances should be completeand there should be no gap left in the chain ofevidence. Further, the proved circumstances mustbe consistent only with the hypothesis of theguilt of the accused and totally inconsistent withhis innocence."14. Bearing the above principles of law enunciated by theHon’ble Apex Court, let us now scrutinize and examine thecircumstances put forward by the prosecution against the accused, asstated above.15. The first circumstance put forward by the prosecution is thealleged motive. The motive, as per the prosecution version, is theproperty dispute as the deceased, the father of the accused, said tohave settled the property in favour of his sister, P.W.16 without theknowledge of the accused. It is to be borne in mind that all thewitnesses, P.Ws.8, 11, 12, 14 and 16, who have been examined by theprosecution to speak about the motive, have given a total go-by totheir earlier version and they have completely turned hostile. It ispertinent to be noted that even in the earliest document, the report,Ex.P.1, which was given by P.W.1, who is the brother-in-law of thedeceased, it is specifically mentioned that no one was having anyenmity with the deceased. Therefore, there is not an iota ofevidence available on record to put forward any motive, much less theproperty dispute between the accused and the deceased. It isneedless to state that in a case of circumstantial evidence in theabsence of any other clinching materials, the motive for theoccurrence assumes much importance.16. The Hon’ble Apex Court in Dinesh Borthakur V. State of Assamreported in 2008 AIR SCW 3301 has held as follows :"33. A finding of guilt cannot be based on apresumption. Before arriving at an inference that theappellant has committed an offence, existence of materialstherefor ought to have been found. No motive forcommitting the crime was identified which, in the facts andcircumstances of the case, was relevant. How the links inthe chain of the circumstances led to only one conclusionthat the appellant and the appellant alone was guilty ofcommission of the offence has not been spelt out by the https://hcservices.ecourts.gov.in/hcservices/ learned trial Judge."17. The next circumstance is the last seen theory. We areconstrained to state that the prosecution has also miserably failedto establish the last seen theory said to have been spoken by P.Ws.6,7, 8, 14 and 15. The fact remains even the witnesses on this aspecthave completely turned hostile and as such there is absolutely nomaterial to show that the accused was lastly seen with the deceasedat or about the time of the alleged occurrence.18. The next circumstance relied on by the prosecution is thealleged extra-judicial confession, Ex.P.4, said to have been recordedby P.W.5, Village Administrative Officer. It is pertinent to benoted that the occurrence took place on 17.04.2005 at 2.00 p.m.,whereas the extra-judicial confession, Ex.P.4, was recorded by P.W.5,Village Administrative Officer, only on 04.05.2005 nearly after 17days. It is seen that P.W.5 is not closely known to the accused andit is highly improbable for the accused to repose confidence on P.W.5to give such extra-judicial confession.19. The Hon’ble Apex Court has held in Jaspal Singh V. State ofPunjab reported in 1997 SCC (Cri.) 358, that the prosecution has toshow as to why and how the accused had reposed confidence on aparticular person to give extra-judicial confession. 20. The Hon'ble Apex Court in Sunny Kapoor V. UT of Chandigarhreported in 2006 (10) SCC 182 has held that it is wholly unlikelythat the accused would make extra-judicial confession to a personwhom they never knew.21. It is also relevant to note that P.W.5 has admitted in hiscross-examination that he has initially prepared a draft andthereafter, recorded Ex.P.4. Further, it is admitted by P.W.5 thatat page 2 of Ex.P.4, the sentences and words were in a congestedmanner, whereas at page 3, there were sufficient gaps between thelines and words. Therefore, this suspicious circumstance throwsserious doubt about the genuineness of Ex.P.4, the alleged extra-judicial confession. Therefore, we have no hesitation to hold thatit is most unsafe and hazardous to place reliance on the allegedextra-judicial confession, Ex.P.4, said to have been recorded byP.W.5, Village Administrative Officer.22. The last but not the least circumstance relied on by theprosecution is the arrest and recovery from the accused. We havealready disbelieved the evidence of P.W.5 in respect of the allegedextra-judicial confession, Ex.P.4. It is the version of P.W.5 thathe only produced the accused along with the extra-judicialconfession, Ex.P.4, to the police. But the fact remains, as per thespecific admission of P.Ws.2 and 4, that even before the date ofarrest, the accused was kept under illegal custody along with P.Ws.2and 4. Though P.Ws.2 and 4 have turned hostile, their evidencecannot be rejected in toto as it is well settled that the evidence of https://hcservices.ecourts.gov.in/hcservices/ the hostile witness cannot be washed off altogether and any portioneither in favour of the prosecution or in favour of the defence couldbe relied. In view of the specific admission of P.Ws.2 and 4, theentire process of arrest and recovery is surrounded by suspiciouscircumstances. Therefore, the case of the prosecution is notstrengthened even on the basis of the alleged arrest and recovery.23. For the aforesaid reasons, we are constrained to allow theappeal and accordingly, the appeal is allowed and the conviction andsentence imposed on the appellant for the offence under Section 302IPC by the learned Principal Sessions Judge, Namakkal, in S.C.No.61of 2006 dated 26.10.2006 are hereby set aside. Bail bond executed,if any, shall stand cancelled. Fine amount paid, if any, is directedto be refunded to the appellant.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarggTo1. The Principal District and Sessions Judge, Namakkal.2. The Judicial Magistrate, Tiruchengode.3. - do – thro" the Chief Judicial Magistrate, Namakkal.4. The Collector, Namakkal District.5. The Director General of Police, Chennai.6. The Superintendent, Central Prison, Coimbatore.7. The Inspector of Police, Pallipalayam Police Station, NamakkalDistrict. 8. The Public Prosecutor, High Court, Madras.+1 cc To Mr.K.V.Sridharan, Advocate, SR.30674Crl.A.No.1023 of 2006sgl [co]gkg/16.7