KannusamyS/o Patchianna Naicker v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 09.01.2008CORAMTHE HONOURABLE MR.JUSTICE D.MURUGESANANDTHE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAHCriminal Appeal No.280 of 2007KannusamyS/o Patchianna Naicker ..Appellant/Single Accused-vs-State rep.by Inspector of PolicePallipalayam Police StationNamakkal District(Crime No.665/2005)..Respondent/ComplainantMemorandum of Grounds of Criminal Appeal under Section 374(2)of the Criminal Procedure Code against the judgment dated 24.1.2007made in S.C.No.135 of 2006 on the file of the learned PrincipalDistrict and Sessions Judge, Namakkal.For Appellant::Mr.B.VasudevanFor Respondent::Mr.P.KumaresanAddl. Public Prosecutor JUDGMENT(Judgment of the Court was delivered by D.MURUGESAN, J.)The appellant is the single accused, who stands convicted forthe offence under Section 302 IPC and sentenced to undergo lifeimprisonment by the judgment of the learned Principal District andSessions Judge, Namakkal made in S.C.No.135 of 2006 dated 24.1.2007. 2. The appellant/accused was put on trial on the followingprosecution case:-The accused is the husband of the deceased. As the accusedbecame old, he did not go to any job and he used to take food onlyfrom the earning of his wife, the deceased. Hence the deceased usedto scold the accused not only on the ground that he was jobless, but https://hcservices.ecourts.gov.in/hcservices/ also he did not satisfy his wife in the matrimonial life as he hadsome illness. The accused has therefore developed motive and with anintention to kill the deceased, on 27.11.2005 at 3.00 a.m., when thedeceased was sleeping in a coir cot, he took a broken wooden log fromthe cot marked as M.O.1 and hit the deceased thrice on her head, towhich the deceased succumbed. As P.W.1 had not seen both her fatherand mother namely, the accused and the deceased for nearly one year,she came to their house and saw the deceased lying in a pool of bloodand the body was covered with a bedsheet. She also noticed the pool ofblood beneath the said coir cot. P.W.1 informed the same to herhusband and in the meantime, the neighbours came there. 3. P.W.2, who is yet another son of both the accused and thedeceased, was also informed over phone. On his arrival, P.W.1 went toPallipalayam Police Station and lodged the complaint, Ex.P-1 at about11.00 a.m., on 27.11.2005 to P.W.14, the Sub Inspector of Police,which was registered in Cr.No.665 of 2005 for the offence underSection 302 IPC. The printed First Information Report is Ex.P-20.P.W.14, on intimating the occurrence to the Inspector of Police,P.W.15 and on his directions, went to the scene of occurrence and tookfive photographs of the dead body under M.O.12 series along with thenegatives under M.O.13 series. He sent the printed First InformationReport to the Judicial Magistrate, Tiruchengode and to the higherpolice officials.4. P.W.15, the Inspector of Police attached to PallipalaymPolice Station, took up investigation in this case after the receiptof the First Information Report. He proceeded to scene of occurrenceat about 11.45 a.m., and prepared an Observation Mahazar, Ex.P-4 andalso drew a rough sketch, Ex.P-21 in the presence of P.W.7 and anotherwitness. He recovered the bloodstained coir- M.O.2, bloodstainedbedsheets-M.Os.3 & 4, bloodstained pillow-M.O.5, bloodstained earth-M.O.10 and sample earth-M.O.11 in the presence of the same witnessesunder the mahazar, Ex.P-5. He conducted inquest on the body of thedeceased between 12.15 p.m., and 3.15 p.m., in the presence ofpanchayatdars and prepared the inquest report, Ex.P-22. He examinedP.Ws.1,2,3,4,5,6,7,9 & 13 and recorded their statements. Hethereafter sent the body of the deceased through the Head Constable,P.W.12 to the Pallipalayam Government Hospital along with therequisition, Ex.P-10 for conducting post-mortem.5. P.W.10, Civil Surgeon attached to Government Hospital,Pallipalayam commenced post-mortem on the body of the deceased at 4.20p.m., on 27.11.2005 and she noted the following external injuries:-"(1) 10x10cm contusion with depression wound isseen over centre of forehead with 1x ½ cm x bone deeplacerated wound at its centre.(2) Head is deformed with bleeding from bothnostrils and both ears." https://hcservices.ecourts.gov.in/hcservices/ She issued the post-mortem certificate, Ex.P-12 with her opinion thatthe deceased would appear to have died of shock and haemorrhage due tohead injury 12 to 18 hours prior to post-mortem.6. P.W.15, continuing with his investigation, arrested theaccused at 9.45 a.m., on 28.11.2005 in the police station when he wasproduced by the Village Administrative Officer, P.W.7 and hisAssistant-Durairaj along with the confessional statement, Ex.P-6 ofthe accused and covering letter, Ex.P-7. In pursuance of theadmissible portion of the confession of the accused under Ex.P-8, herecovered the bloodstained wooden log of the coir cot, M.O.1 from theaccused at 11.45 a.m., which was hidden in a bush, in the presence ofthe same witnesses under the mahazar, Ex.P-9. He also recovered thebloodstained thali-M.O.6, bloodstained jacket-M.O.7, bloodstainedpetticoat-M.O.8 and the bloodstained nylon saree-M.O.9 of the deceasedfrom P.W.12 under Form-95. He sent the seized material objects to theCourt under Ex.P-23 series. He intimated P.W.1 as to the arrest of theaccused under Ex.P-24 telegraph receipt. He sent the seized materialobjects under the requisition, Ex.P-13 through the Court for chemicalexamination. He examined the other witnesses and recorded theirstatements. He examined the post-mortem doctor, P.W.10 on 2.12.2005and recorded her statement. After completing investigation, laid thefinal report against the accused on 27.12.2005 for the offence underSection 302 IPC before the Court.7. To bring home the charges against the accused, theprosecution examined 15 witnesses, marked 24 exhibits and produced 13material objects.8. When the accused was questioned under Section 313 of theCriminal Procedure Code as to the incriminating materials appearingagainst him, he denied them as false. No witness was examined and nodocument was marked on the side of the defence. However, accepting thecase of the prosecution, the learned trial Judge found the accusedguilty, convicted and sentenced him for the offence as stated above.9. Learned counsel for the appellant/accused has submitted thatthe prosecution case entirely rests only on the circumstantialevidence, as there are no eye-witnesses. The following are thecircumstances according to the learned counsel:(i) The extra-judicial confession, Ex.P-6 said to have beengiven by the accused to the Village Administrative Officer, P.W.7 on28.11.2005 at about 8.00 a.m.(ii) The seizure of M.O.1, the bloodstained wooden log of thecoir cot on 28.11.2005 from the accused under the cover of mahazar,Ex.P-9 on the basis of the admissible portion of his confessio givento the Investigating Officer under Ex.P-8.(iii) The First Information Report given by P.W.1 immediatelyafter the occurrence naming the accused as the assailant. https://hcservices.ecourts.gov.in/hcservices/

10. So far as the first circumstance namely, the extra-judicialconfession is concerned, the learned counsel would submit thatinasmuch as the complaint, Ex.P-1 was registered at 11.00 a.m., on27.11.2005, the extra-judicial confession, Ex.P-6 which was recordedby P.W.7 at 8.00 a.m., on 28.11.2005 when the investigation hadalready commenced, cannot be believed. If the said extra-judicialconfession is disbelieved, the consequential arrest of the accused andthe seizure made on the same day should also be disbelieved. 11. So far as the First Information Report is concerned, thelearned counsel would submit that the prosecution has not come forwardwith the true version. While P.W.1 has stated that even at 9.30 a.m.,on 27.11.2005, the police from Molasi Police Station came to the sceneof occurrence and they left after seeing the place on the ground thatit fell outside their jurisdiction and thereafter, they had informedPallipalayam Police Station. On such information, the police fromPallipalayam Police Station came to the scene place at 10.00 a.m., andrecorded a statement from P.W.1 in the scene of occurrence itselfwhich, according to the learned counsel, is the first information.However, strangely, the prosecution has come forward with a case as ifP.W.1 had gone to the police station at 11.00 a.m., and lodged thecomplaint, Ex.P-1, suppressing the earlier statement given by P.W.1 tothe Pallipalayam police who came to the scene of occurrence at 10.00a.m. He would also submit that when the police had suppressed thefirst version of P.W.1, it must be construed that they have not comeout with true version before the Court and absolutely there is noexplanation whatsoever for the suppression of such statement given byP.W.1 in the scene of occurrence itself, except a complete denial ofsuch statement by the Investigating Officer. The learned counselwould also submit that the fact that the Investigating Officer havingdenied the recording of any such statement and P.W.1 is categoricalfor having given such a statement, it must be held that theInvestigating Officer has not deposed the truth and consequently, hehas not come forward with true version of the case. The learnedcounsel would further submit that keeping the above in mind, if thearrest and the seizure are considered, obviously, the prosecution hascome forward only with a false case. He would also submit that whenP.W.1 and P.W.9 have categorically stated that they saw thebloodstained wooden log of the cot, M.O.1 lying near the body of thedeceased and in fact P.W.9 has stated that the police came in themorning of 27.11.2005 to the scene of occurrence and they took awayM.O.1 with them, the prosecution has come forward with a story thatM.O.1 was not found in the scene of occurrence, as it was seized onlyfrom a bush on 28.11.2005 on the basis of the admissible portion ofthe confession given by the accused to the Investigating Officer andthat too, when he was arrested and was in the custody of theInvestigating Officer. In view of the above, the seizure is alsodoubtful. https://hcservices.ecourts.gov.in/hcservices/

12. So far as the arrest is concerned, the learned counsel hasagain relied upon the evidence of P.W.1 to the effect that even on themorning of 27.11.2005 when the police came to the scene of occurrence,she came to know that the accused had surrendered to the police, whichis contrary to the case of the Investigating Officer that the accusedappeared before the Village Administrative Officer, P.W.7 on the nextday i.e., on 28.11.2005 at 8.00 a.m., and gave the extra-judicialconfession, Ex.P-6 and thereafter the accused was taken to the policestation by P.W.7 and the accused was arrested in the police stationonly. Therefore the learned counsel submitted that in a case ofcircumstantial evidence, the prosecution has relied upon only theabove circumstances and even when such circumstances are notestablished beyond any reasonable doubt, the appellant/accused isentitled to the benefit of doubt.13. Mr.P.Kumaresan, learned Additional Public Prosecutor, on theother hand, would submit that the evidence of the VillageAdministrative Officer, P.W.7 is categorical and there is no reason todiscard his evidence, as he has stated that the accused appearedbefore him and gave the extra-judicial confession, Ex.P-6 on28.11.2005 at about 8.00 a.m., which led to the subsequent confessionof the accused to the Investigating Officer at 10.00 a.m., which ledto the seizure of M.O.1 under the cover of mahazar, Ex.P-8. He wouldalso submit that neither in the Observation Mahazar, Ex.P-4 nor inthe rough sketch, Ex.P-21 prepared and drawn by the InvestigatingOfficer at the earliest point of time, the presence of M.O.1 is shownindicating the truthfulness of the prosecution case as to M.O.1. Thelearned Additional Public Prosecutor would further submit that theevidence of P.Ws.1 & 3 is categorical as to the misunderstandingbetween the accused and the deceased resulting in frequent quarrel andaggravated by such quarrel, the accused had committed the murder ofthe deceased. The prosecution has proved each and every circumstanceto bring home the guilt of the appellant/accused and hence thejudgment under appeal needs no interference.14. It is not in dispute that the case of the prosecution onhand rests only on the circumstantial evidence. It has beenauthoritatively held by the Apex Court that in a case ofcircumstantial evidence, the prosecution must establish thecircumstances firmly and cogently. This proposition of law has beenheld by the Apex Court in the judgment in Gambhir v. State ofMaharashtra (AIR 1982 SC 1157), holding that when a case rests uponthe circumstantial evidence, such evidence must satisfy three tests:(1) the circumstances from which an inference of guilt is sought to bedrawn, must be cogently and firmly established; (2) thosecircumstances should be of a definite tendency unerringly pointingtowards guilt of the accused; (3) the circumstances, takencumulatively, should form a chain to complete that there is no escapefrom the conclusion that within all human probability the crime wascommitted by the accused and none else. The circumstantial evidence https://hcservices.ecourts.gov.in/hcservices/ in order to sustain conviction must be complete and incapable ofexplanation of any other hypothesis than that of the guilt of theaccused. The circumstantial evidence should not only be consistentwith the guilt of the accused but should be inconsistent with hisinnocence.15. It has been also held that while the prosecution case is putforth on circumstantial evidence, the burden on the prosecution isheavy to prove each and every important link leading to theinvolvement of the accused in the offence. This law has been held bythe Apex Court in the judgment in Sudama Pandey and others v. State ofBihar (2002 SCC (Crl.) 239). In fact the Apex Court has gone to theextent of insisting even an additional link wherever it is required ina case of circumstantial evidence, as has been held in the judgment inState of Tamil Nadu v. Rajendran (2000 SCC (Crl.) 40). In a case ofcircumstantial evidence, it is incumbent on the part of theprosecution to prove the entire circumstances without there being anymissing link. If the prosecution failed to prove even a single linkin the chain of circumstances, the accused should only be given thebenefit.16. Keeping the above law in mind, the case of the prosecutionas put forth below the Court below should be considered. So far asthe First Information Report is concerned, according to P.W.1, who isnone other than the daughter of the deceased and the accused, she wentto the police station at about 11.00 a.m., and lodged the complaint,Ex.P-1 to P.W.14 when the occurrence had taken place at 3.00 a.m., on27.11.2005. The printed First Information Report also indicates thatsuch a complaint was given at 11.00 a.m., on 27.11.2005 by P.W.1alone. The evidence of the Investigating Officer, P.W.15 also goes toshow that such a complaint was received only at 11.00 a.m., on27.11.2005. On the other hand, the evidence of P.W.1 falsifies theabove stand of the prosecution. It is her categorical statement thatwhen she came to the house where the accused and the deceased wereresiding on the morning of 27.11.2005, she saw the body of her mother,the deceased, lying in a pool of blood and covered with bedsheet.Thereafter, she informed P.W.2-Munusamy, who is her brother. In themeantime, the police had received information as to the occurrence andthe police from Molasi Police Station came to the scene of occurrenceimmediately and on the opinion that they had no jurisdiction toentertain any complaint, they just left the scene place afterinforming that an intimation will be given to Pallipalayam PoliceStation which, according to them, would have jurisdiction.Thereafter, the police from Pallipalayam Police Station came to thescene of occurrence at 10.00 a.m., and recorded the statement fromP.W.1. This statement has been admittedly suppressed by theprosecution. Strangely, the Investigating Officer-P.W.15 has taken thestand that no such police officer visited the scene of occurrence onthe morning of 27.11.2005 as stated by P.W.1. In our considered view,P.W.1, who is the author of the complaint, herself has claimed thatshe had given an earlier statement and when such statement is https://hcservices.ecourts.gov.in/hcservices/ suppressed by the prosecution, it must be construed that theprosecution has not come forward with true version and theregistration of the First Information Report itself is not genuine.P.W.2, the son of the accused and the deceased, has also deposed thaton the morning of 27.11.2005, even before the complaint, Ex.P-1 wasgiven to P.W.14 at 11.00 a.m., the police from Molasi Police Stationcame to the scene of occurrence and after they left the scene place,the police from Pallipalayam Police Station came to the scene ofoccurrence. In spite of the above two consistent statements, it wouldbe hard to believe the evidence of the Investigating Officer that noneof the police from Pallipalayam Police Station had visited the sceneof occurrence. Hence, in our considered view, the prosecution has notcome forward with true version and there is absolutely no explanationas to the failure to produce the statement given by P.W.1 much priorto Ex.P-1. Therefore, the said circumstance is not established.17. The other circumstance put forth by the prosecution is theextra-judicial confession which led to the seizure of M.O.1. Evenaccording to the prosecution, the complaint was given at 11.00 a.m.,and immediately the same was registered and P.W.14 has visited thescene of occurrence and made arrangements to take photographs of thedead body and therefore the investigation has commenced after thecomplaint was registered at 11.00 a.m., on 27.11.2005. However, theprosecution has come forward with a case that the accused hadsurrendered before the Village Administrative Officer-P.W.7 on thenext day i.e., on 28.11.2005 at 8.00 a.m., and has given the extra-judicial confession for having committed the murder. It has been heldby the Apex Court in various judgments that an extra-judicialconfession is a weak piece of evidence and it cannot be claimed as oneof substantial piece of evidence and utmost it can be relied upon asan additional material to the prosecution case. It has also been heldthat an extra-judicial confession would have no credibility if it isrecorded pending investigation. Admittedly, the extra-judicialconfession recorded by P.W.7 was pending investigation. Secondly,based upon the said extra-judicial confession, no recovery was made.If at all the said extra-judicial confession could be taken intoconsideration, the same cannot be put against the accused, as it didnot result in any recovery and such extra-judicial confession isinadmissible in evidence.18. The accused was thereafter taken to the police station byP.W.7, where he was shown arrested and at that time he gave anotherconfession under Ex.P-8 to P.W.15, which led to the recovery. Inasmuchas the extra-judicial confession given to P.W.7 should be ignored andcannot be taken into consideration, we are afraid as to how far thesubsequent confession given to the police, though resulted inrecovery, could also be believed especially when the accused was inthe custody of the police and has been shown arrested. https://hcservices.ecourts.gov.in/hcservices/

19. That apart, the seizure itself is highly doubtful. It isthe categorical evidence of P.Ws.1 & 9 that both of them saw thebloodstained wooden log-M.O.1 lying in the scene place just near thedead body. In fact P.W.1 has identified M.O.1 as the wooden log whichshe saw near the dead body. P.W.9 has gone one step further to statethat the police came in the morning to the scene of occurrence evenbefore the complaint was lodged and before the conduct of inquest,they took M.O.1 along with them. This seizure of M.O.1 by the policeis referred to by P.W.1 with reference to the morning of 27.11.2005.On the other hand, the prosecution has come forward with a case thatM.O.1 was seized at about 10.00 a.m., on 28.11.2005 and that too, onthe basis of the admissible portion of the confession given by theaccused to P.W.15. When the witnesses have come forward with a caseas to the seizure of M.O.1 even on the earlier day, the subsequentversion of the prosecution as to the seizure on the basis of theadmissible portion of the confession given to P.W.15 must necessarilybe disbelieved. There cannot be contradictory stand by theprosecution one through the witnesses and the other through theInvestigating Officer. When the evidence of the witnesses to speakabout the circumstances is categorical and cogent as to the seizure,such evidence should be preferred and the benefit should be given tothe accused as against the Investigating Officer. If once that isconcluded, the prosecution case as to the seizure must be disbelieved.20. This leads us to the next circumstance namely, the arrest ofthe accused. According to the Investigating Officer, P.W.15, theaccused was brought to the police station by P.W.7, the VillageAdministrative Officer along with the extra-judicial confession, Ex.P-6 on the morning of 28.11.2005 and thereafter thea ccused wasarrested. Just contrary to the above stand of the InvestigatingOfficer, the evidence of P.W.1 goes to show that even on the morningof 27.11.2005, when Pallipalayam police came to the scene ofoccurrence, she was given to understand that the accused hadsurrendered to the police. Most probably the version of P.W.1 iscorrect and the Investigating Officer, having taken the accused intocustody, later on had created the subsequent material namely, theextra-judicial confession only for the purpose of showing the arrestand recovery. This, in our considered view, is an overstep on thepart of the Investigating Officer to bring in some false evidence.Such act of the investigating agency throws a serious doubt about thegenuineness of the very investigation itself and in suchcircumstances, the benefit of doubt must be made available to theaccused only. As we have observed that in a case of circumstantialevidence, the prosecution has to prove each and every circumstancewithout any missing link, in our considered view, in this case theprosecution has not proved even any one of the circumstances toimplicate the accused in the offence. https://hcservices.ecourts.gov.in/hcservices/

21. As we have held that though the prosecution has come forwardwith a clear case to implicate the accused in the offence through theevidence of P.Ws.1,2,3,7 & 9, strangely, the Investigating Officer hasintroduced certain elements which, in our considered view, are notnecessary for the prosecution case and thereby has made the evidenceof the above witnesses of any consequence resulting in serious doubtabout the prosecution case. Though P.Ws.1,2 & 3 have spoken about themotive for the occurrence and the accused has to explain theoccurrence as the occurrence had taken place inside the house, we haveno other option except to accept the submissions of the learnedcounsel for appellant as to the failure on the part of the prosecutionto establish each and every circumstance resulting in the offence atthe instance of the appellant/accused.22. For all the above discussions, we are of the considered viewthat the appellant is entitled to the benefit of doubt andconsequently, to an acquittal. Accordingly, the conviction andsentence imposed on the appellant/accused by the impugned judgmentdated 24.1.2007 made in S.C.No.135 of 2006 passed by the learnedPrincipal District and Sessions Judge, Namakkal are set aside and thecriminal appeal is allowed. The appellant/accused shall be releasedforthwith, unless his custody is required in connection with any othercase. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarssTo1. The Principal District & Sessions Judge, Namakkal2. The Superintendent, Central Prison, Coimbatore3. The Public Prosecutor, High Court, Madras4. The Inspector of Police, Pallipalayam Police Station, Namakkal District5. The District Collector, Namakkal6. The Director General of Police, Chennai.1 cc To Mr.B.Vasudevan, Advocate, SR.1421.Crl.A.No.280 of 2007 KG(CO)RVL 22.01.2008