High Court · 2009

BAIL SLIP----The Appellants Viz., Prasad (Accused No.6) in Crl.A.No.1071/06,Narayanan (Accused No.4) in Crl.A.No.36/07, Suraj (Accused No.3) inCrl.A.No.67/07, Gaja alias Gajendran (Accused No.2) inCrl.A.No.157/07, Uma (1 Accused) in Crl.A.160/07 and Dhananchezhiyan(Accused No.5) in Crl.A.No.237/07 were directed to be released onbail in and by the orders of this court dated 9.1.07, 24.1.07,25.1.07, 5.3.07, 5.3.07 and 26.3.07 respectively in M.P.Nos.1/06,1/07, 1/07, 1/07, 1/07 and 1/07 in Crl.A.Nos.1071/06, 36,67,157,160and 237/2007 respectively.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 22-6-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRL.A.Nos.1071 of 2006, 36, 67, 157, 160 and 237 of 2007Prasad.. Appellant/A-6 in CA 1071/2006Narayanan.. Appellant/A-4 in CA 36/2007Suraj.. Appellant/A-3 in CA 67/2007Gaja alias Gajendran.. Appellant/A-2 in CA 157/2007Uma.. Appellant/A-1 in CA 160/2007Dhananchezhiyan.. Appellant/A-5 in CA 237/2007vsState Rep. ByThe Inspector of PolicePallipet Police StationPallipet, ThiruvallurCrime No.57 of 2002.. Respondent in all appealsCriminal appeals preferred under Sec.374 of the Code of CriminalProcedure against the judgment of the Additional Sessions Judge, FastTrack Court No.V, Thiruvallur, made in S.C.No.242 of 2005 dated7.12.2006. https://hcservices.ecourts.gov.in/hcservices/ For Appellants: Mr.S.Xavier Felix in CA 1071/2006, 67/2007, & 237/2007 Mr.R.Karthikeyan in CA 36/2007 Mr.V.Gopinath Senior Counsel for Mr.L.Mahendran in CA 157/2007 Mr.V.Selvaraj in CA 160/2007For Respondent: Mr.N.R.Elangoin all the Appeals Additional PublicProsecutorCOMMON JUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)All these six appeals namely C.A.Nos.1071 of 2006, 36, 67, 157,160 and 237 of 2007, concentrate in challenging a judgment of theAdditional Sessions Division, Fast Track Court No.V, Thiruvallur,made in S.C.No.242 of 2005 whereby the appellants six in number stoodcharged, tried and found guilty as follows:ACCUSEDCHARGESFINDINGPUNISHMENTA-1 to A-6120(b) IPCGuiltyLifeimprisonmentwith a fine ofRs.3000/- anddefault sentenceA-3 to A-5341 IPCNot guiltyA-3 to A-5302 IPCGuiltyLifeimprisonmentwith a fine ofRs.3000/- anddefault sentenceA-1, A-2 & A-6302 r/w 109 IPCGuiltyLifeimprisonmentwith a fine ofRs.3000/- anddefault sentenceA-3404 IPCNot guiltyA-1, A-2 & A-4to A-6404 r/w 109 IPCNot guilty2.The short facts necessary for the disposal of these appeals https://hcservices.ecourts.gov.in/hcservices/ can be stated thus:(a) The deceased Sundaram was the husband of A-1. P.W.1 is theelder brother, and P.W.2 is the father of the deceased. A-2 and A-1developed illicit intimacy which was not only disliked by thedeceased, but also A-1 and A-2 felt him a hurdle. They wereresidents of Thangal village. On 1.5.2002 at about 8.00 P.M., thedeceased and A-1 went to the field. But, after sometime, A-1 alonereturned. She did not whisper anything about his absence. On thenext morning at about 5.00 A.M., P.W.1 went in search of the deceasedand found the dead body near Ravana Lake. He brought the dead bodyalong with the villagers to the house. Then, he proceeded to therespondent police station and lodged Ex.P1, the complaint, on thestrength of which P.W.17, the Sub Inspector of Police, registered acase in Crime No.57 of 2002 under Sec.174 of Cr.P.C. for suspiciousdeath. The printed FIR, Ex.P31, along with Ex.P1 were sent to theCourt. (b) On receipt of the copy of the FIR, P.W.18, the Inspector ofPolice of the concerned Circle, took up investigation, proceeded tothe spot, made an inspection and prepared an observation mahazar,Ex.P2, and a rough sketch, Ex.P32. Then, he conducted inquest on thedead body in the presence of witnesses and panchayatdars and preparedan inquest report, Ex.P34. Thereafter, the dead body was sent to theGovernment Hospital along with a requisition for the purpose ofautopsy.(c) P.W.16, the Assistant Surgeon, attached to the GovernmentHeadquarters Hospital, Tiruvallur, on receipt of the said requisitionconducted autopsy on the dead body of Sundaram and has issued apostmortem certificate, Ex.P29. He has opined under Ex.P30 that thecause of death was due to cyanide poisoning.(d) On 28.5.2002, at the time of investigation, the Investigatorcame to know that a letter written by A-2 to A-1 was in the custodyof one Valli. Then he proceeded on that and secured the letter undera cover of mahazar, Ex.P35. Based on the said letter, at about 5.30P.M., he arrested A-1. A-1 came forward to give a confessionalstatement voluntarily, which was recorded. The admissible part ismarked as Ex.P36. Thereafter, the case was altered to Sec.302 IPC.The amended report, Ex.P38, was despatched to the Court. On 3.6.2002at about 3.00 P.M., near Venkatapuram Ellaiamman Temple, P.W.18arrested A-2 and recorded the confessional statement given by himvoluntarily. The admissible part is marked as Ex.P39. Based on thesame, he seized a lodge receipt under a seizure mahazar, Ex.P40. Atabout 10.00 P.M., he arrested A-3 and recorded the confessionalstatement. (e) On 7.7.2002 at about 4.00 P.M., the Investigator arrested A-4 near Thangal bus stand, and his confessional statement wasrecorded. The admissible part is marked as Ex.P41. Based on thesame, he seized a syringe under a mahazar Ex.P42. On the same day A-5 was also arrested. His confessional statement was recorded. Theadmissible part is Ex.P43, following which a cyanide packet, M.O.4, https://hcservices.ecourts.gov.in/hcservices/ was also recovered under a mahazar, Ex.P44. Then, A-6 was alsoarrested on the very day. His confessional statement was recorded.The admissible part is Ex.P45. Based on the same, a gold chain ofthe deceased was recovered under a mahazar, Ex.P46. He sent theaccused for judicial remand. Then, the syringe needles were sent tothe Forensic Sciences Department through the Court for the purpose ofanalysis. (f) On 4.9.2002, P.W.19 took up further investigation, and on28.1.2003, he examined P.W.16, the postmortem Doctor and recorded hisstatement. He also examined P.W.11 and also the other witnesses. On28.4.2003, P.W.20 took up further investigation. On 31.3.2003, heexamined the other witnesses and on completion of the investigation,filed the charge sheet against the accused under Sections 120(b),341, 302, 404 read with 109 of IPC.3.The case was committed to Court of Session, and necessarycharges were framed. In order to substantiate the charges, theprosecution examined 20 witnesses and also relied on 47 exhibits and4 material 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 and hence found the appellants guilty on the aboveprovisions and made the judgment of conviction and sentence. Hencethese appeals at the instance of the appellants.4.Advancing arguments on behalf of A-2, the learned SeniorCounsel Mr.V.Gopinath would submit that in the instant case, theprosecution came out with its original story that there was aconspiracy hatched up by A-1 and A-2 at Sai Krishna Lodge atThirupathi; that in order to substantiate the said theory, theprosecution came forward to state that they stayed at the lodge on8.4.2002; but the only witness examined was P.W.7, a room boy; thatwhen he was examined before the Court, he has categorically statedthat the police examined him after two days from the time of thestay; but, the occurrence, according to the prosecution, has takenplace on 1.5.2002; that if to be so, the evidence of P.W.7 would goto show that the alleged conspiracy theory cannot be accepted at all;that apart from this, P.W.18 was unable to show how he got any clueor information that they stayed in that lodge; that under thecircumstances, the prosecution was unable to show that they actuallystayed there; that the evidence of P.W.7 was contra to theprosecution case; that barring the evidence of P.W.7, the prosecutionhad no evidence to offer in respect of the conspiracy theory; thatunder the circumstances the prosecution has miserably failed to provethe same, and thus the finding of the trial Court that theprosecution has proved the charge under Sec.120(b) IPC was thoroughlyerroneous.5.Added further the learned Senior Counsel that in the instantcase, the prosecution in order to substantiate the other charges https://hcservices.ecourts.gov.in/hcservices/ levelled against the appellants/accused, had no direct evidence tooffer; that it rested upon two circumstances; that firstly, pendingthe investigation, the Investigating Officer recovered Ex.P11,letter, alleged to have been written by A-2 to A-1; that theprosecution placed much reliance on this letter and the trial Courthas also accepted the same; but, this evidence should have beenrejected outright for the reason that Ex.P11 letter was alleged tohave been recovered from one Valli; that the said Valli was notexamined as a witness before the Court; that no explanation wastendered by the prosecution why she was not examined; that apart fromthis, the letter which was alleged to have been recovered by theInvestigator at the time of investigation, was sent to thehandwriting expert; and that the handwriting expert was examined asP.W.11; that according to him, he compared the writings in Ex.P11along with Ex.P12 which, according to the prosecution, was thespecimen handwriting of A-2. 6.The learned Senior Counsel would further add that as far asthe specimen handwriting placed before the handwriting expert,P.W.12, is concerned, there is no evidence when and under whatcircumstance they were obtained from A-2; that it is not the evidenceof the Investigating Officer that the specimen handwriting was everobtained from the accused; that under such circumstances, it can bewell stated that there is no proof that the specimen handwritingfound in Ex.P12 was that of A-2; and that so long it was not proved,even the comparison of Exs.P11 and P12 at the instance of theinvestigating agency on the basis that they were actually written bythe same person could not help the prosecution. 7.Added further the learned Senior Counsel, that even as per theprosecution case, the said letter was written only subsequent to theoccurrence of murder; that needless to say that this handwriting wasactually hit by Sec.10 of the Evidence Act; and that under thecircumstances, no evidentiary value could be attached to the saidletter. 8.Added further the learned Senior Counsel that the other pieceof evidence was only the recovery of the material objects; thatEx.P5, a pawn receipt, was alleged to have been recovered from P.W.8;that from Ex.P5 it could be seen that a pair of gold stud was pledgedby A-1 on 19.4.2002; that equally, from P.W.9, another pawn broker, areceipt Ex.P6, for the pledging of a gold chain of 8 grams wasrecovered; that P.W.9 has categorically stated in evidence that thechain was only weighing 4 grams; but, it is found as 8 grams in thechit; and that as far as the evidence of P.W.10 was concerned, A-2has pledged a gold ring under Ex.P7 receipt for Rs.400/- on14.4.2002. The learned Counsel would further add that as far asP.W.10 was concerned, he has also deposed that A-2 has pledged a goldring for Rs.250/- under Ex.P8 receipt; and that in all these allegedpledges not even one material object was produced; 9.Added further the learned Senior Counsel that the case of theprosecution was that all the jewels belonged to A-1, and it wasactually pledged by A-2 with P.Ws.8 to 10; that at this juncture, it https://hcservices.ecourts.gov.in/hcservices/ is pertinent to point out that not only the jewels were not producedbefore the Court, but also there is no evidence to show that thejewels in respect of which Exs.P5, P6 and P7 were actually issuedbelonged to A-1; that under such circumstances in the absence ofany such evidence to that effect, there is nothing to show that A-1and A-2 have got anything to do with each other or they hatched up aconspiracy; that even assuming that these jewels were actuallypledged by A-2 with these pawn brokers, the same by itself would notsuffice pointing to the guilt of the accused either for conspiracy orfor murder; that barring this evidence, the prosecution had noevidence to offer; that under the circumstances, the trial Court hasmisled itself by taking the confessional statements alleged to havebeen given by the accused to the Investigating Officer as extra-judicial confession; that it cannot be believed by the Court forsustaining a conviction on erroneous view; that the prosecution hasmiserably failed to make proper appreciation of the defence putforth, but has taken the view that the prosecution has proved thecase beyond reasonable doubt; that the prosecution for all thereasons stated above, has miserably failed to prove its case, andhence they are entitled for acquittal in the hands of this Court.10.All other Counsel appearing for the other appellants havealso adopted the arguments of the learned Senior Counsel whosearguments are recorded above.11.The Court heard the learned Additional Public Prosecutor onall the above contentions and paid its anxious consideration on thesubmissions made.12.It is not in controversy that the dead body of one Sundaram,the husband of A-1, was found near the lake which was brought to thehouse. Thereafter, P.W.1 the brother, gave a complaint to P.W.17,the Sub Inspector of Police, and a case came to be registered underSec.174 of Cr.P.C. for suspicious death. Following the inquest madeby the Investigator, P.W.18, a requisition was forwarded to theDoctor, P.W.16, who conducted postmortem and issued a postmortemcertificate opining that the death was due to cyanide poisoning. Thefact that he died out of the cyanide poisoning was never challengedby the appellants before the trial Court, and hence this Court isunable to see any impediment in recording that he met a homicidaldeath.13.The prosecution as narrated above, came with a story thatthere was a criminal conspiracy hatched up by A-1 and A-2 atThirupathi in Sai Krishna Lodge. In order to establish the same, theprosecution examined P.W.7, the room boy, of the said lodge.According to the prosecution, the occurrence has taken place at thenight hours of 1.5.2002, and the criminal conspiracy has taken placebetween A-1 and A-2 before the occurrence has taken place, and thereceipt alleged to have been issued by Sai Krishna Lodge bore thedate corresponding to the incident. P.W.7 has categorically deposedbefore the Court that they stayed for two days prior to when he wasexamined by the police. The Investigator has examined him only afterthe registration of the case amended to Sec.302 IPC. It would be https://hcservices.ecourts.gov.in/hcservices/ quite clear that the evidence of P.W.7 could not in any way be reliedby the prosecution for the theory of conspiracy alleged to have beenhatched up by the appellants/A-1 and A-2 prior to the occurrence.Barring this evidence, as rightly pointed out by the learned SeniorCounsel, the prosecution had no evidence to offer for the conspiracytheory, and hence the prosecution has miserably failed to prove thattheory.14.After thorough analysis of the evidence placed by theprosecution before the trial Court, this Court is afraid whether itcan sustain a conviction as done by the trial Court. The gist of thecase of the prosecution as could be seen above, is that A-1 and A-2developed illicit intimacy; that they found the husband of A-1 ashurdle; that pursuant to the conspiracy, he was administered cyanidepoison, and he was killed on 1.5.2002. The prosecution had no directevidence to offer. It rested its case upon the circumstances.Needless to say that in a given case where there are number ofcircumstances, necessary circumstances must be placed before theCourt, and the prosecution must be able to show a chain without asnap and also pointing to the hypothesis that except the accused, noone could have committed the crime. In the case on hand, theprosecution, in the considered opinion of this Court, has miserablyfailed. The prosecution had only two pieces of circumstances. Ascould be seen from the entire materials, firstly, the prosecutionrelied on a letter which is marked as Ex.P11. According to theprosecution, pending investigation, the Investigating Officer,P.W.18, recovered a letter from one Valli. The said Valli has notbeen examined. No explanation was tendered by the prosecution beforethe trial Court. Further, Ex.P11 was placed before the trial Court,and the same was sent to the handwriting expert for comparison.P.W.11, the handwriting expert, has been examined. According to him,he compared the handwriting in Ex.P11 along with Ex.P12, which,according to the prosecution, was the specimen handwriting. In agiven case like this, whenever the handwriting of the accused whichwas relied on by the prosecution was to be compared with the specimensignature or handwriting, the prosecution must obtain the sameprocedurally. In the instant case, the prosecution would point toEx.P12, the specimen handwriting. It is also true that Ex.P12, thespecimen handwriting, and Ex.P11, the handwriting, were tallying.But, this piece of evidence, in the considered opinion of this Court,does not worth acceptance for the simple reason that though theprosecution claimed Ex.P12 as the specimen handwriting of A-2, thereis no evidence when and how it was obtained from him. Nowhere theInvestigating Officer has stated that it was obtained and placedbefore the Court. In the absence of any specific evidence when andhow the specimen handwriting of A-2 was obtained from him, and it wascompared and found to be tallying with Ex.P11 letter, this Court isof the opinion that the said document cannot have any evidentiaryvalue at all, and hence it is liable to be rejected. For the reasonsnamely the non-examination of Valli from whom the alleged letter hasbeen recovered and also the non-production of the evidence on theside of the prosecution how specimen handwriting of A-2 was obtainedbefore placing it for comparison, this Court is of the consideredopinion that such evidence cannot be accepted, and the Court cannot https://hcservices.ecourts.gov.in/hcservices/ base a conviction on that evidence.15.The second circumstance placed by the prosecution was therecovery of the pledge receipts from P.Ws.8, 9 and 10, which aremarked as Exs.P5, P6, P7 and P8 respectively. It is also pertinentto point out that in all these cases, the jewels were not producedbefore the Court. What were all produced were only pledge receipts.P.Ws.8, 9 and 10 have spoken that A-1 has actually pledged therespective jewels on 19.4.2002, 4.3.2002 and 14.4.2002 respectively.It is true that all these dates are earlier to 1.5.2002, the date ofoccurrence. Now, at this juncture, it is pertinent to point out thatthe prosecution wanted to rest its case stating that A-2 had illicitintimacy with A-1 and in that count, at that time, it was A-1 whohanded over all the above jewels to A-2. In order to show not onlythe illicit intimacy, but also the nexus to the crime by way ofenacting the alleged conspiracy, these documents were relied on. Asrightly pointed out by the learned Senior Counsel, though not thejewels were produced by the pawn brokers P.Ws.8, 9 and 10, and onlythe receipts were produced, there is no evidence to show that thejewels belonged to A-1 either, or they were handed over to A-2.Under the stated circumstances, the law of evidence in that regardwould be nullifying that part of the evidence. Thus, these documentsthough relied on by the prosecution cannot be given any evidentiaryvalue. Except this, the prosecution had no further evidence tooffer. Thus the prosecution has miserably failed to prove theconspiracy theory, and the documents relied upon did not indicatethat the prosecution has brought home the guilt of the accused. Aspointed out above, a thorough analysis of the entire evidence wouldgo to show that except these pieces of evidence, the prosecution hadno evidence to offer. This Court is of the considered opinion thatthe trial Court has misdirected itself and found the appellantsguilty on an erroneous view. It is not only a case where theprosecution lacked evidence, but also a case where the prosecution isunable to explain all the doubts which are attached to theprosecution case all along. This Court is of the view that it wouldbe highly unsafe to sustain a conviction on the above feeble and weakpieces of evidence, and it is also a case where the doubts were notactually cleared or clarified by the prosecution. Hence theprosecution has miserably failed to prove its case, and theappellants are entitled for acquittal.16.In the result, these criminal appeals are allowed settingaside the judgment of the trial Court. The appellants are acquittedof all the charges levelled against them. The bail bonds executed bythem shall stand terminated. The fine amounts if any paid by themwill be refunded to them. Sd/- Asst.Registrar/true copy/ Sub Asst.Registrarnsv https://hcservices.ecourts.gov.in/hcservices/ To:1.The Additional Sessions Judge Fast Track Court No.V Thiruvallur2. -do- Thro' The Principal District & Sessions JUdge, Tiruvallur.3.The Inspector of Police Pallipet Police Station Pallipet, Thiruvallur Crime No.57 of 20024.The Public Prosecutor High Court, Madras.5.The Judicial Magistrate, Tiruthani.6.-do- Thro' The Chief Judicial Magistrate, Tiruthani.7. The Superintendent, Central Prison, Vellore.8. The District Collector, Thiruvallur.9. The Director General of Police, Chennai-4.+1 cc to Mr.S.Xavier Felix, Advocate, SR.No.25636+1 cc to Mr.V.Selvaraj, Advocate, SR.No.25664+1 cc to Mr.L.Mahendran, Advocate, SR.No.25490 C.A.Nos.1071 of 2006, 36, 67, 157, 160 and 237 of 2007KG {CO}TP/6.7.2009.