Suresh v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30.10.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAHCRIMINAL APPEAL NO.498 OF 20091. Suresh2. Packiaraj .. Appellants/Accused Vs.State rep. byThe Inspector of Police,Kottucherry Police Station.Karaikkal District,Puducherry Union Territory.. Respondent/Complainant(Crime No.116/2003)This criminal appeal is preferred under Section 374(2) Cr.P.Cagainst the judgment of the learned Additional Sessions Judge,Puducherry at Karaikkal, made in S.C.No.85 of 2006 dated 22.06.2009.For Appellants : Mr.N.Doraisami for Mr.T.P.Senthil KumarFor Respondent : Mr.T. Murugesan Senior Public Prosecutor (Puducherry)JUDGMENT(The judgment of the Court was made by V.PERIYA KARUPPIAH, J.)This appeal is directed against the judgment of conviction andsentence passed by the learned Additional Sessions Judge, Puducherryin S.C.No.85/2006 dated 22.06.2009 convicting and sentencing the https://hcservices.ecourts.gov.in/hcservices/ accused u/s. 302 r/w.34 of I.P.C to undergo life imprisonment andalso to pay a fine of Rs.2500/- each by the accused and in default toundergo simple imprisonment for three months.2. The short facts which are necessary for the disposal of theappeal would be as follows:(a) P.W.1- S.Varadarajan Public Relation Officer of BharathiyarCollege of Engineering and Technology, Kottucherry, Karaikkal wasinformed through phone on 04.12.2003, at about 01.15 a.m by theAdministrator Ramanathan that somebody had beaten one Anandan,security and he directed him to go over there and and inform further.The said witness, P.W.1 went to the college and saw that Anandan wasdead with injuries at the opposite of S.A.H. block of college andother accused were also present at that place. The accused performedduties from the evening of 03.12.2003 till 8.00 a.m on 04.12.2003.The said Anandan was also working as security during the said periodalong with the accused. There was a plastic chair, torch light,wooden stick used by Anandan near his body. P.W.1 enquired the 1staccused on seeing the blood stain on his shirt, for which he gaveinconsistent reply. Since A2 also gave inconsistent reply, he thougtthat there would have been some misunderstanding between the deceasedand accused and the accused might have got angry over the deceasedand assaulted him. P.W.1 further lodged complaint Ex.P.1 against theaccused on the instruction he got from the Administrator Ramanathan. (b) P.W.2 is the worker, who deposed that on 03.12.2003 at 01.15a.m when he was sleeping on the upstairs of the kitchen along withhis co-workers, one Sambasivam awaken them and told that Anandan wasbeaten by somebody. P.W.2 had informed to the warden Jeyasankar. Theywent to the scene of occurrence and saw the said Anandan was deadwith bleeding injuries on his head and body.(c) P.W.3 had deposed that on hearing the incident, he went tocollege at 05.30 a.m on 04.12.2003 and the police came to the spot at06.00 a.m and he was helping the police to perform the enquiry. Thesaid deceased sustained injuries on his head, stomach and neck andthe intestine came out from the abdomen. While that he was performinghis duty, there was no chance of outsiders coming into the college.Hence, the accused might have committed the offence on that day.P.W.4 has spoken to the effect that the night shift of the securitieswill start by 6.00 p.m and ends at 06.00 a.m. There were two shiftsin the security and attendance registered was maintained in Ex.P.5.He handed over the said register to the police and one more registerwith regard to the incidents happening in the college Ex.P.6 was alsohanded over the police. It is also spoken that the duty of Anandanmight have been ended at 06.00 a.m on 03.12.2003. He reported duty on02.12.2003 at 06.00 p.m, due to shortage of securities, he wasdirected to continue duty and the accused were also working in the https://hcservices.ecourts.gov.in/hcservices/ said night. P.W.4 used to allot various places for the securities andthey should not move from their place where it was allotted to them.The deceased complained about the accused that they do not performtheir duties properly and slept during duty hours. (d) The accused had answered about the blood stained shirts asthat they had lifted the said body of Anandan, the blood was stainedon their shirts. On 04.12.2003, by 05.00 a.m the InvestigatingOfficer had prepared Observation Mahazar Ex.P.8 and prepared roughsketch EX.P.9 in the presence of the witnesses. Apart from thatM.O's. 1 to 6 seized from the place of occurrence and 10 ml of theblood from the body of the deceased was also collected throughMahazar Exs.P.10 and P.11 in the presence of the witnesses. P.W.5 isthe wife of the deceased Anandan, when she came to know about theinformation of the death of her husband she and one Pandian visitedthe Government Hospital and saw the body and the body was handed overto them after autopsy. P.W.6 deposed that on 04.12.2003, at about09.00 a.m he was asked to go to Kottucherry Police Station in orderto witness the confession given by the accused and to be present aswitnesses for the same. Accordingly, he went and present along withother witness during the confession statement given by the otheraccused. As per the confession given by the accused leading to therecovery of the weapon used by them. A2 had identified the scissorsM.O.7, it was seized through Mahazar in his presence. Similarly A1took a wooden log - M.O.8 on the basis of a confession leading to therecovery and it was promptly seized by the Investigating Officethrough Mahazar in his presence. P.W.7 had obliged to cut the hair ofaccused which was seized by police as Exs.P.18 and P.19 SeizureMahazar and he also signed as one of the witnesses. P.W.8 witnessedon 05.12.2003 at about 08.30 a.m in respect of seizure of bloodstained shirts in M.Os.9 and 10 from the accused through the SeizureMahazar Ex.P.20. P.W.9 had deposed that when the body of Anandan wasin the mortuary, Investigating Officer came and seized the dressmaterials from the body of Anandan through Seizure Mahazar Ex.P.21 inhis presence. The Investigating Officer had also seized the hair ofAnandan and sample blood of deceased Anandan in the presence of PostMortem Doctor through Ex.P.22 Seizure Mahazar. Similarly the hair andsample blood of the accused were seized by the Investigating Officerthrough Ex.P.23 Mahazar in their presence. P.W.10 is the Post MortemConstable who took the body from the scene of occurrence toGovernment Hospital Karaikal and handed over the same to the P.W.11for conducting autopsy. Autopsy was conducted by P.W.11 at about11.05 a.m and after the completion of autopsy the body was handedover by the Post Mortem Constable – P.W.10 who handed over to therelatives of the deceased. P.W.23 had found 23 injuries all over thebody of the deceased and had opined that the death was due tointracranial Haemorrhage as a result of head injury. P.W.12Photographer had taken the photographs at the scene of occurrence andalso went to the mortuary, Government Hospital, Karaikal and handed https://hcservices.ecourts.gov.in/hcservices/ over the photos with negatives to the Investigating Officer. Thematerial objects sent for scientific examination were handed over tothe Central forensic Science department through one Manoharan PoliceConstable. On receipt of the complaint from P.W.1, P.W.14 hadregistered the case on 04.12.2003 at 02.45 a.m in Cr.No.116/2003u/s.302 r/w. 34 I.P.C against the accused and despatched the Ex.P.31F.I.R to the court concerned. P.W.15 the Inspector of Police hadtaken the case and visited the place of occurrence and continued theinvestigation. P.W.16 had deposed that he took up the case andfurther investigation on 25.11.2004 and recorded further statement ofthe witnesses. Thereafter, he has filed the final report u/s. 302r/w. I.P.C.3. The case was committed to the court of Sessions and necessarycharges were framed. In order to substantiate the charges against A1and A2, 16 witnesses P.W.1 to P.W.16 were examined and relied upon 50exhibits and 26 M.Os. On completion of evidence on the side ofprosecution, the accused were question u/s. 313 Cr.P.C as to theincriminating circumstances found in the evidence of prosecutionwitnesses to which they denied and they have also produced documentsin Ex.D1 to D3 and did not witness any witnesses on their side. TheTrial court, after hearing the arguments advanced on either side andon scrutinising the materials available took a view that the accusedhad committed the act of murder and they were liable to be punishedu/s. 302 r/w 34 I.P.C and awarded life imprisonment along with fine.4. Aggrieved over the judgment both the accused has broughtforth this appeal.5. While advancing the arguments on both sides, the learnedcounsel for the appellants would submit that the lower court haderred in coming to the conclusion of convicting the accused withoutany ocular evidence and it had rested its evidence purely oncircumstantial evidence, when those circumstantial evidence were notpromising to end in conviction. They would further submit in theirarguments that there was no eye witness for the incident and theaccused were roped in the case merely because they were working assecurities in the said institution and they were on their duty inthat area. The deceased was attacked by some other person to whichthe accused were not responsible for the said injuries caused againstthe deceased Anandan. They would further submit in their argumentsthat the circumstantial evidence which are relied upon by the personwere also not supporting the case of the prosecution, since thescientific evidence had also not supported the case. It is alsosubmitted that the accused were not alone present in the premises ofthe institution during the said time but there were lot of workersstaying in the institution and it cannot be said that the accused areanswerable for the alleged occurrence in which the accused are saidto have been participated. He would also submit that the blood stains https://hcservices.ecourts.gov.in/hcservices/ which are stated to be at the shirts of the accused were onlyaccidental, when they lifted the body of the deceased Anandan theblood stains were present in their shirt and therefore they cannot beincriminated in the said crime. They would insist in their argumentsthat the accused were found present when the matter was firstlyinformed to the Administrator of the institution and P.W.1 waspresent and if really the accused were culprit they would not havebeen present in scene of occurrence.6. The prosecution has not launched its investigation in correctdirection but had falsely implicated the accused without anycircumstantial evidence. They cannot submit that their evidence thatthe scientific evidence have been promptly done in accordance withlaw and the examination of blood stains with the sample bloodcollected from the body of the deceased was preferrably done and itcannot incriminate the accused in the offence. He would thereforerequest the court that benefit of doubt should have been given to theaccused where as the lower court had wrongly ended in convictionagainst the accused and therefore the learned counsel for theappellants would submit that the accused be found not guilty andthereby to allow the appeal.7. Learned Senior Public Prosecutor,Puducherry,Mr.T. Murugesan, would submit in his argument that the prosecutioncase is resting upon only the circumstantial evidence and no ocularevidence adduced on the side of the prosecution. He would submit inhis argument that the complaint has been launched by the P.W.1immediately after the commission of offence and the case has beenregistered by 05.00 a.m in the morning and the investigation has beencommenced immediately thereafter and the accused have givenconfession in the presence of witnesses and their confession lead tothe recovery of weapon and blood stained clothes and the recovery ofweapon seized would go a long way to show that none other than theaccused have committed the offence and the blood stains which wasfound with the weapons as well as the blood stain in the shirts andthe sample blood collected from the body of the deceased person areone and the same and therefore, the accused are the culprits and thecircumstantial evidence and the investigation carried out immediatelywould go a long way to show that the accused were guilty persons forthe cause of death of deceased Anandan. He would also submit in hisargument that other evidence produced on the side of the prosecutionwould go a long way to show that the accused were present along withthe deceased Anandan on the fateful night and they were also presentand they are answerable to explain as to how the incident hadhappened. He would again submit in his argument that the evidence ofother workers and warden who were present in the premises on that dayof occurrence during night would also disclose the presence ofaccused at the premises when the occurrence had taken place and theaccused were admittedly in duty of the security at that time and https://hcservices.ecourts.gov.in/hcservices/ therefore the circumstantial evidence would be complete with the linkof scientific evidence through the tallying of the blood group of thedeceased found in the weapon and the dress materials of the accusednamely the blood collected from the dead body of the deceased person.Therefore, he would request the court to dismiss the appeal andconviction and sentence passed against the accused may be confirmed.8. We have given anxious thoughts to the arguments advanced oneither side. The deceased Anandan was said to work as a security forthe premises of the institution namely Bharathiyar College ofEngineering and Technology, Kottucherry and he was asked to continuehis shift in the next day also and he was continuing in the nextshift also. During the next shift in which the deceased Anandan wasworking with accused A1 and A2 was also scheduled to work assecurities. The case was launched by 04.12.2003 with a complaintgiven by P.W.1. As per the said complaint, the said Anandan was founddead on 04.12.2003 at 01.15 a.m with multiple injuries all over hisbody. A1 and A2 were also found within the premises. It is no doubtthat the accused A1 and A2 were working in the premises as securitiesalong with deceased Anandan. As spoken through P.W.1 as A1 and A2were not doing their duty properly it was complained by the deceasedAnandan and so in that circumstances, whether A1 and A2 could beroped in for the commission of murder of deceased Anandan. Theinstitution is comprising of various other places in which thesecurities were working all over the place. As per the evidence ofP.W.4, the security supervisor, it is the case of the prosecutionthat security workers work are said to be working within thepremises. In the aforesaid circumstances, it cannot be said that A1and A2 alone were working along with the deceased Anandan. As per theevidence of the supervisor nine or eight securities will be availableapart from A1 and A2 and Anandan there was five securities working onthe day of occurrence. Whether these securities were interrogated bythe investigating agency has not been disclosed in evidence. For theaforesaid circumstances, it cannot be stated that the A1 and A2 werealone present along with the deceased Anandan and they have toexplain the cause of death of deceased Anandan. It has been urged bythe learned Senior Public Prosecutor, Puducherry the confessionstatement given by the accused A1 and A2 were proved and theconfession leading to recovery had lead to the seizure of dressmaterial by the accused with blood stained weapons and the scissorsused for cutting with blood stains.9. According to the prosecution, the blood stain in the scissorsand the dress materials of the accused contain blood group 'A' andthe two stained filter papers containing the blood of the deceasedAnandan. However, the serology report produced in Ex.P.50 would go toshow that the liquid blood sample of the victim in an injectionbottle with preservative as mentioned in the face note was not foundalong with Ex.P.17- two stained filter papers. When the bottle https://hcservices.ecourts.gov.in/hcservices/ containing the injection blood of the victim was not made availableto the scientific laboratory for examination how it would be possibleto come to the conclusion that Ex.P.17 as mentioned in Ex.P.50 reportwould be corresponding to the sample blood obtained from the deceased.10. In the said circumstances, the examination report cannot behelpful for the prosecution for the purpose of completing the chainof circumstantial evidence. It is a well settled celebrated law ifone of the links of the chain of circumstantial evidence are notcomplete the circumstantial evidence will not complete and theaccused are entitled for the benefit of doubt.11. It has been already discussed that apart from A1 and A2there were number of persons inside the institution at the time ofoccurrence including other securities and the workers employed in theinstitution and the scientific evidence is also not tallied to ropein the accused to the crime.12. In the aforesaid circumstances, we are of the consideredview that the prosecution has not proved the case beyond reasonabledoubt. Therefore the exercise of the lower court in finding theaccused guilty u/s. 302 r/w.34 I.P.C were of no use and the findingof the lower court ending with conviction against A1 and A2 areliable to be set aside. Therefore, we have no hesitation to set asidethe judgment and conviction passed by the lower court against A1 andA2. 13. Accordingly, the appeal is allowed. The judgment ofconviction and sentence imposed on the appellants/accused A1 and A2by the learned Additional and Sessions Judge, Puducherry at Karaikalin S.C.No.85/2006 dated 22.06.2009 are set aside and theaccused/appellants are acquitted of all the charges framed againstthem and they are directed to be released forthwith unless theirpresence is required in connection with any other case. The bail bondif any executed by the appellants shall stand terminated and the fineamount if any paid is ordered to be refunded to them. Sd/Asst.Registrar/true copy/Sub Asst.Registrarkpr https://hcservices.ecourts.gov.in/hcservices/ To1. The Additional Sessions Judge, Puducherry at Karaikkal2. -do- Through The Principal Sessions Judge, Puducherry.3. The Inspector of Police, Kottucherry Police Station. Karaikkal District, Puducherry Union Territory4. The Sub Jail, Karaikkal5. The Public Prosecutor, High Court, Chennai.6. The Section Officer, Criminal Session, High Court, Madras.+ 1 cc to Senior Govt. Pleader-cum-Senior Public Prosecutor for Pondicherry, SR 57747Crl.A.No.498 of 2009BKY (CO)RH (17.11.09)