Harikesavan & Ors. v. The State Rep. ByInspector of PoliceAmbathur Estate Police StationAmbathur, Chennai

Bail SlipThe Appellants/Accused 1 & 2 viz., 1) Harikesavan & 2) Magesh @Umamageswaran were already been released on bail in and by the orderof this case dated 10.02.2009 & 16.02.2009 made in Crl.M.P.No.1/2009in Crl.A.No.712 of 2008 on the file this High Court, Madras.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30-6-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRL.A.No.712 of 20081.Harikesavan2.Magesh @ Umamageswaran.. Appellants/A-1 & A-2vsThe State Rep. ByInspector of PoliceAmbathur Estate Police StationAmbathur, Chennai... Respondent/ComplainantCriminal appeal preferred under Sec.374(2) of the Code ofCriminal Procedure against the judgment of the Principal SessionsJudge, Thiruvallur, made in S.C.No.36/2008 dated 16.9.2008.For Appellants: Mr.R.MargabandhuFor Respondent: Mr.N.R.Elango Additional Public ProsecutorJUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)Challenge is made to a judgment of the Principal SessionsDivision, Thiruvallur, made in S.C.No.36 of 2008 whereby theappellants/A-1 and A-2 stood charged, tried, found guilty underSections 302 r/w 34 and 392 r/w 397 of IPC and awarded lifeimprisonment along with a fine of Rs.1000/- and default sentence and7 years Rigorous Imprisonment respectively.2.The short facts necessary for the disposal of this appeal canbe stated as follows: https://hcservices.ecourts.gov.in/hcservices/ (a) P.W.2 is the wife of the deceased Balasubramaniam. He usedto go to his business and come for lunch everyday. Likewise on1.11.2007, when he went over for his business, he did not come forlunch. She tried to telephone to his cellphone; but she could not.On the other hand, she received a reply that the cell phone wasswitched off. He did not come in the night hours also. In the nextmorning P.W.1 informed to one Selvaraj, and both of them went toAmbattur Estate where he was carrying on his business. There also hewas not found. Thereafter, they went to the newly purchased housewhere they found the dead body of the deceased. A gold chain and agold ring worn by him, and also two cell phones belonging to him werealso found missing. Then P.W.1 proceeded to the respondent policestation and gave Ex.P1, the report, to P.W.14, the Inspector ofPolice, who registered a case in Crime No.628 of 2007 under Sec.302of IPC. The printed FIR, Ex.P21, was sent to the Court. (b) The investigation was taken up by P.W.14. Then he went tothe place of occurrence, made an inspection and prepared anobservation mahazar, Exs.P2 and P3, and a rough sketch, Ex.P22.Further, finger print expert was also brought. He took the fingerprints available. Then, the place of occurrence and also the deadbody were photographed through a photographer. The Investigatorconducted inquest on the dead body in the presence of witnesses andpanchayatdars and prepared an inquest report, Ex.P23. Then the deadbody was sent to the Government Hospital along with a requisitionfor the purpose of autopsy.(c) P.W.12, the Tutor in Department of Forensic Medicine,Government Kilpauk Medical College, Chennai, on receipt of the saidrequisition, conducted postmortem on the dead body of Balasubramaniamand has issued a postmortem certificate, Ex.P19, with his opinionthat the deceased would appear to have died of complications ofcranial cerebral injury haemorrhage and shock. (d) Pending investigation, the Investigator arrested both theaccused. They came forward to give confessional statementsvoluntarily, which were recorded in the presence of witnesses. Theadmissible parts are Exs.P6 and P7 respectively. Pursuant to thesame, he recovered M.O.9, knife, M.O.10, gold chain, M.O.11, goldring, and other material objects under separate mahazars. Pursuantto the confession made by A-2, M.O.12, cell phone, was recoveredunder a cover of mahazar. The accused were sent for judicial remand.All the material objects were subjected to chemical analysis. Thereports are marked as Exs.P20 and P29 to P33. On completion ofinvestigation, the Investigator filed the final report.3.The case was committed to Court of Session, and necessarycharges were framed. In order to substantiate the charges, theprosecution marched 14 witnesses and also relied on 35 exhibits and32 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 and awarded https://hcservices.ecourts.gov.in/hcservices/ punishment as referred to above which is the subject matter ofchallenge before this Court.4.Advancing arguments on behalf of the appellants, the learnedCounsel Mr.R.Margabandhu would submit that in the instant case, theprosecution had no direct evidence to offer; that it rested its caseentirely on the circumstantial evidence; that there was a cell phonerecovered from A-2 which, according to the prosecution, belonged tothe deceased, and there were phone calls, and Ex.P14 was the celldetails of the deceased; that the same also stood corroborated fromthe details of the cell phone of A-1 as found in Ex.P18; that theoccurrence, according to the prosecution, has actually taken place on1.11.2007; that from the evidence of the Investigator, it is clearthat the occurrence has taken place between 1.15 P.M. and 2.00 P.M.;but, contrarily the Doctor has given his opinion that death couldhave occurred only during night hours on 2.11.2007 i.e., between 1.15A.M. and 2.00 A.M., and thus the time of occurrence would alsodiffer. 5.Added further the learned Counsel that in the instant case,the cell phone was actually recovered from A-2; that according toP.W.2, he has two cellphone numbers namely one Nokia typeNo.9940659447 and the other Reliance type No.9380669447; that therecovery mahazar was Ex.P10 wherein the number is found as9944565820; that the evidence would indicate that the said cellphonebelonged to P.W.7; that it would clearly indicate that what wasrecovered was not the cellphone which was owned or retained by thedeceased at the time of occurrence, and thus the so-called recoverywould be of no significance at all; that the prosecution could notestablish that what was recovered from A-2 was that of the deceased;and that even the time factor as stated above would be of no avail. 6.Added further the learned Counsel that the Investigator wouldclaim that pursuant to the confessional statement, three items ofproperties were recovered namely M.O.9, knife, M.O.10, gold dollarchain, and M.O.11, gold ring, from the accused; that as far as theknife was concerned, no bloodstain was found and the blood group didnot tally; that as far as the gold ring was concerned, P.W.1 was veryparticular that what was worn by the deceased contained the initialsof her husband; but, M.O.11 did not contain the initials; that asregards M.O.10, gold chain, she claimed that there were photos of twodeities in the same; but, what was recovered did not contain so; andthat under the circumstances, the recovery pursuant to theconfessional statement did not support the prosecution case. 7.The learned Counsel would further add that in the instantcase, except the above two pieces of evidence, the prosecution had noevidence to offer; that the above circumstantial evidence neverpointed the nexus of the accused with the crime; that the trial Courthas committed an error in finding them guilty, and hence they areentitled for acquittal in the hands of this Court. https://hcservices.ecourts.gov.in/hcservices/

8.The Court heard the learned Additional Public Prosecutor onthe above contentions and paid its anxious consideration on thesubmissions made.9.It is not in controversy that the dead body of oneBalasubramaniam, P.W.2's husband, was found at the place ofoccurrence. Following the inquest made by the Investigator, the deadbody was subjected to postmortem by P.W.12, the Doctor, who has givenopinion that the deceased died of complication of cranial injury andshock and haemorrhage. The fact that he died out of homicidalviolence was never disputed by the appellants before the trial Court,and hence, it has got to be recorded so. 10.In order to substantiate the charges levelled against theappellants/accused that they have committed the murder and alsorobbed the jewels and also cell phones of the deceased, theprosecution had no direct evidence to offer. It relied upon thecircumstantial evidence. Needless to say in a given case like this,where the prosecution rested its case on the circumstantial evidence,they must place and prove all the necessary circumstances pointing tothe guilt of the accused, apart from the hypothesis that except theaccused no one could have committed the crime. If this test isapplied, this Court is afraid whether it can sustain the convictionrecorded in the judgment made by the trial Court. The prosecution tostart with came with the specific charge that the occurrence ofmurder and robbery has taken place between 1.15 A.M. and 2.00 A.M. on1.11.2007. But, the Investigator has candidly admitted that theoccurrence has taken place between 1.15 and 2.00 on 1.11.2007 duringday hours. When the postmortem Doctor was examined, he hascategorically given evidence that death should have occurred duringnight hours on 1.11.2007 i.e., between 1.00 A.M. And 2.00 A.M. Theprosecution had no explanation to offer how this has happened. Thistime factor as to the time of death would differ. 11.Added further, the prosecution placed much reliance on therecovery of the cell phone pursuant to the confession alleged to havebeen made by A-2. As could be seen from the evidence and thematerials available, the deceased had two cellphones, one Reliancetype and the other Nokia type. What was actually recovered from A-2under Ex.P10, mahazar, was Nokia model. It could be seen that whatis found in the recovery mahazar is the cellphone pertaining toNo.9944565820 which belonged to P.W.7. But, the number of Nokiacellphone of the deceased was 9940659447. Thus the cellphone numberwould differ. The prosecution relied on the particulars available inthe cell details of the deceased under Ex.P14 and of A-1 underEx.P18. But it would be quite clear that the cellphone number asfound in Ex.P14 was pertaining to No.9940659447. Ex.P10 mahazar wouldindicate that the cellphone was actually a different one. Thatapart, it is not the case of the prosecution that the deceased washaving the cellphone which is found under Ex.P10 mahazar. So long asthe prosecution is unable to show what was recovered from A-2 underEx.P10 was the cellphone of the deceased which was held by him atthat time, that part of the evidence cannot be relied. https://hcservices.ecourts.gov.in/hcservices/

12.The learned Counsel brought to the notice of the Court thatas far as the recovery made from A-1 pursuant to the confessionalstatement regarding gold chain and gold ring was concerned,discrepancies are found. The defects as spoken to by P.W.2 and asfound in the recovery mahazar, would also differ. Merely becausesuch defects are found, it cannot be stated that those items namelygold chain and gold ring, were not worn by the deceased. P.Ws.2'sevidence need not be suspected since these items are identified byher, and it is well within the provision of law. Mere recovery ofthe items by itself would not suffice to sustain a conviction as onerendered by the trial Court. These items were identified by her thatthey were worn by the deceased, and hence there cannot be anyimpediment in ordering for the return of those properties to P.W.2.But, recovery by itself would not suffice to sustain a conviction.It can be well stated that the prosecution has miserably failed tobring home the guilt of the accused since all these doubts raised bythe appellants remained unclarified before this Court. The trialCourt has taken an erroneous view and found the appellants guilty.Hence they are entitled for acquittal.13.In the result, this criminal appeal is allowed setting asidethe judgment of the trial Court. The appellants are acquitted of thecharges levelled against them. The fine amount if any paid by them,will be refunded to them. The bail bonds executed by them shall standterminated.Sd/Asst.Registrar/true copy/Sub Asst.Registrarnsv/To:1. The Principal Sessions Judge Thiruvallur.2. The Judicial Magistrate, Ambathur.3. -do- Through The Chief Judicial Magistrate, Thiruvallur.4. The Director General of Police, Chennai.5. The District Collector, Thiruvallur. https://hcservices.ecourts.gov.in/hcservices/

6.The Inspector of Police Ambathur Estate Police Station Ambathur, Chennai.7. The Public Prosecutor High Court, Madras.8. The Superintendent, Central Prison, Puzhal, Chennai - 66.9. The Section Officer, Criminal Section, High Court, Madras.1 cc To Mr.R.Margabandhu, Advocate, SR.27324.CRL.A.No.712 of 2008CKN(CO)RVL 16.07.2009