Madesh... v. State rep. by Inspector of Police,Magudanchavady Police Station,Salem District

Bail SlipThe Appellant/Accused was directed to be released on bailvide order of this court dated 13.8.2007 and made inCrl.M.P.No.1/2007 Crl.A.No.652/2007.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 17.07.2008CORAMTHE HONOURABLE MR. JUSTICE P.D.DINAKARANandTHE HONOURABLE MR. JUSTICE K.N.BASHACriminal Appeal No.652 of 2007Madesh... Appellant/AccusedvsState rep. by Inspector of Police,Magudanchavady Police Station,Salem District.... Respondent/Complainant(Cr.No.32/2003)Prayer:- Appeal against the judgment passed in S.C.No.269 of 2004on the file of the learned Principal Sessions Judge, Salem, dated01.02.2005.For Appellant: Mrs.Jayasri BaskarFor Respondent: Mr.N.R.Elango, Addl. Public Prosecutor.J U D G M E N T(Judgment of the Court was delivered by K.N.BASHA,J.)The sole accused-Madesh has come forward with this appealchallenging the judgment of the learned Principal Sessions Judge,Salem, dated 01.02.2005 made in S.C.No.269 of 2004 convicting theappellant for the offence under Section 302 I.P.C. and sentencinghim to life imprisonment and also to pay a fine of Rs.1,000/-, indefault, to undergo six months rigorous imprisonment and alsoconvicting him for the offence under Section 201 IPC. andsentencing him to three years rigorous imprisonment and to pay a https://hcservices.ecourts.gov.in/hcservices/ fine of Rs.1,000/-, in default, to undergo six months rigorousimprisonment. The sentences are ordered to run concurrently.2. The prosecution version in a nutshell is as follows:-(a) P.W.1 is the wife of the deceased. P.W.2 is the brotherof the deceased. P.W.1 along with her husband, the deceased, wereresiding at Meyyanur Arasamarathukkattu Village. They got married15 years prior to the occurrence. Three children were born out oftheir wedlock, viz., two daughters and one son. P.W.2 is alsoresiding in the same Village. P.W.1 along with her husband, thedeceased, Velu @ Velusamy, were working in the factory of P.W.4.The accused is also residing in the same Village and he is knownto the deceased and P.W.1. Both P.W.1 and the deceased used to goto the factory of P.W.4 for their work through the house of theaccused. As a result, the deceased developed illicit intimacywith the wife of the accused, P.W.8. The accused came to thehouse of the deceased and stated to P.W.1 about the illicitintimacy of her husband with his wife and threatened the deceasedwith dire consequences. The accused also complained about thedeceased to P.W.2 and his mother and asked them to control thedeceased otherwise he would kill him. As the accused suspectedillicit intimacy of the deceased with his wife, P.W.8, there werefrequent quarrels between the accused and his wife, P.W.8 and as aresult, P.W.8 left for her parental house.(b) On 25.12.2002, P.W.1 and the deceased, as usual, left fortheir work to the factory of P.W.4. P.W.1 alone returned to herhouse at 6.00 p.m. after finishing her work. The deceased informedP.W.1 that he would come later. But thereafter, the deceased hasnot returned to the house and hence, P.W.1 informed the brother ofthe deceased, P.W.2, about the missing of the deceased.Thereafter, P.W.1 along with P.W.2 searched for the deceased intheir relatives houses, but the whereabouts of the deceased werenot known. 15 days thereafter, P.W.1 heard through the villagersthat a body was found near the house of the accused. P.W.1 wentto that place along with P.W.2, where they found a body and a blueand black colour striped lungi near the house of the accused.P.W.1 identified the said lungi as that was worn by the deceasedwhile he went to the work. P.W.1 suspected that only the accusedcould have murdered the deceased. Thereafter, she went toMagudanchavadi Police Station along with P.W.2.(c) P.W.12, the Inspector of Police, Magudanchavadi PoliceStation, recorded the statement of P.W.1 on 12.01.2003 at 10.00p.m. under Ex.P-1. He registered a case in Crime No.32 of 2003under Section 174 of the Cr.P.C. Ex.P-22 is the express FirstInformation Report and he has sent the same to the higher policeofficials and to the Magistrate. He has sent a requisition to theTahsildar, Sangagiri. https://hcservices.ecourts.gov.in/hcservices/ (d) P.W.11, the Tahsildar, Sangagiri, received the messagefrom the police station at 12.30 mid night on 12/13.01.2003.Thereafter, he went to the scene of occurrence. The body wasexhumed in the presence of P.W.11, Tahsildar. P.W.11 sent aletter, Ex.P-21, to the Government Mohankumaramangalam MedicalCollege Hospital, Salem.(e) P.W.12 took up investigation and went to the scene ofoccurrence on 13.01.2003. He prepared an observation mahazar,Ex.P-4 and drew a rough sketch, Ex.P-23, in the presence of theVillage Administrative Officer, P.W.7 and another. He has madearrangements to take photographs of the scene of occurrence.Thereafter, he recovered a skull, at a distance of 350 feet awayfrom the place, where the body was recovered, under Ex.P-5 mahazarand held inquest. Ex.P-24 is the inquest report. About 500feet away from the place where the skull was recovered, he foundpieces of bones and held inquest in the presence of witnesses.Ex.P-25 is the inquest report. He examined the witnesses, P.Ws.1,2 and others and recorded their statements.(f) The Doctor, P.W.10, attached to Government MohanKumaramangalam Medical College Hospital, Salem, as per therequisition of the Tahsildar, P.W.11, went to the scene ofoccurrence and he was present at the time of collecting the bonepieces and skull. The report, Ex.P-16, discloses that there is nopoison detected in view of the decomposed position of the bones.The doctor, P.W.10, has given his final opinion under Ex.P-17 tothe following effect:- "No definite opinion possible regarding thecause of death, due to skeletonization and ChemicalExaminers report being negative."(g) On 14.01.2003, while P.W.7, the Village AdministrativeOfficer, was in his Office along with his Assistant, the accusedappeared before him at 8.00 a.m. and stated that he had killed thedeceased. P.W.7 recorded the extra-judicial confession given bythe accused under Ex.P-6. He also prepared his report, Ex.P-7.Thereafter, P.W.7 took the accused along with Exs.P-6 and P-7 toMagudanchavadi Police Station and produced him before P.W.12, theInspector of Police, who on receipt of Exs.P-6 and P-7, alteredthe offence from Section 174 Cr.P.C. to one under Section 302 IPC.Ex.P-26 is the altered First Information Report. In pursuance ofthe admissible portion of the confession statement given by theaccused, under Ex.P-8, P.W.12 recovered M.O.1, a blue colourlungi, M.O.2, an underwear, M.O.3, pieces of a shirt, M.O.4, aniron key, M.O.5, a match box and M.O.6, a beedi in the presence ofthe Village Administrative Officer and another. Thereafter, theaccused produced a crowbar, M.O.7 and a spade M.O.8, from hishouse, which were recovered under a mahazar in the presence of the https://hcservices.ecourts.gov.in/hcservices/ same witnesses. He has sent the material objects and skull andbone pieces for chemical examination through the Court. (h) P.W.12, in continuation of his investigation, madearrangements for recording the statements of P.Ws.1, 2 and 8 underSection 164 Cr.P.C. by the Magistrate. After completion ofinvestigation, he filed the charge sheet against the accused on19.11.2003.3. The prosecution, in order to bring home the chargesagainst the accused, examined P.Ws.1 to 12, marked Exs.P-1 to P-30and M.Os.1 to 11.4. When the accused was questioned under Section 313 of theCode of Criminal Procedure in respect of the incriminatingcircumstances appearing against him, the accused has come forwardwith a version of total denial. He has not chosen to examine anywitnesses or mark any documents on his side. 4. Mrs.Jayasri Baskar, learned counsel appearing for theappellant, contended vehemently that the prosecution has miserablyfailed to prove its case by adducing clear and convincingevidence. It is contended that the entire prosecution case restson the circumstantial evidence and the prosecution has not putforward any clinching circumstances implicating the accused withthe crime and there are several missing links in the chain ofcircumstances put forward by the prosecution. It is submitted thatthe last seen theory was spoken by P.W.1, the wife of thedeceased, to the effect that she along with her husband, thedeceased, went to the factory of P.W.4 for their work and shealone returned back to her house, as the deceased informed herthat he would return after finishing his work. It is submittedthat strangely, P.W.1, the wife of the deceased, kept quiet formore than two weeks and the report, Ex.P-1, was given only on12.01.2003 at 10.00 p.m. It is contended that there is absolutelyno materials available on record to show that the deceased waslastly seen with the accused. It is further contended that theonly piece of circumstance relied on by the prosecution is thealleged extra-judicial confession, Ex.P-6, said to have been givenby the accused to P.W.7, the Village Administrative Officer. Itis contended that it is improbable for the accused to reposeconfidence on P.W.7, the Village Administrative Officer, to givesuch an extra-judicial confession, Ex.P-6, as he was not havingany close acquaintance with P.W.7. The learned counsel pointed outthat P.W.1 stated even in the Chief-examination that she gave thereport on 12.01.2003 and on the next day, i.e., on 13.01.2003afternoon, the police along with the Tahsildar, P.W.11 and theVillage Administrative Officer, P.W.7, came to the place, wherethe skull was found and at that time, the police also brought theaccused to the spot. Therefore, it is contended that the versionof P.W.7, the Village Administrative Officer, to the effect that https://hcservices.ecourts.gov.in/hcservices/ the accused appeared before him on 14.01.2003 at 8.00 a.m. andthereafter, he recorded the extra-judicial confession, Ex.P-6, andproduced the accused along with the extra-judicial confession,Ex.P-6, to the police is proved to be false. It is submitted thatas per the version of P.W.1, the accused was in the custody of thepolice even before the extra-judicial confession, Ex.P-6, is saidto have been recorded by P.W.7, the Village AdministrativeOfficer. It is also contended that excluding the extra-judicialconfession, Ex.P-6, there is no other incriminating circumstanceavailable on record to implicate the accused with the crime. Thelearned counsel would contend that the skull or the bones are notproved to be that of the deceased. The learned counsel would alsocontend that P.W.1, has not stated, in the statement recordedunder Section 164 Cr.P.C., that after seeing the clothes, viz.,the lungi, the underwear and the shirt, she has identified thebody of the deceased as that of her husband. It is pointed outthat even in the report, Ex.P-1, P.W.1 has not stated that afterseeing the clothes, viz., lungi and underwear, she has confirmedthat the body was that of her husband.5. We have heard Mr.N.R.Elango, learned Additional PublicProsecutor, on the submissions made by the learned counsel for theappellant.6. We have given our careful and anxious consideration tothe rival contentions put forward by either side and alsothoroughly scrutinised the entire materials available on recordand perused the impugned judgment of conviction. 7. The entire prosecution case rests on the circumstantialevidence. It is well settled by catena of decisions of theHonourable Apex Court that circumstances, from which theconclusion of guilt is to be drawn, should be fully proved and thecircumstances must be conclusive in nature to connect the accusedwith the crime. 8. In the light of the above stated settled principle of lawregarding the circumstantial evidence, let us now scrutinise thecircumstances put forward by the prosecution. The prosecutionplaced reliance on the following circumstances:-i.The motive put forward by the prosecution to the effect that thedeceased was having illicit intimacy with the wife of theaccused.ii.The last seen theory spoken to by P.W.1, the wife of thedeceased and P.W.4, the employer of P.W.1 and the deceased.iii.The extra-judicial confession, Ex.P-6, said to have beenrecorded by P.W.7, the Village Administrative Officer. iv.The recovery of skull and pieces of bones near the house of the https://hcservices.ecourts.gov.in/hcservices/ accused and the recovery of clothes of the deceased, viz.,M.Os.1, 2 and 3 at the instance of the accused.9. As far as the 1st circumstance, viz., the motive putforward by the prosecution is concerned, we are having theevidence of P.Ws.1, 2 and 3. It is seen that P.W.1, the wife ofthe deceased, as well as P.W.2, the brother of the deceased, havecategorically stated that the accused informed them about theillicit intimacy of the deceased with his wife, P.W.8 andthreatened the deceased with dire consequences. P.W.3, in hisevidence, has stated that the accused informed him that thedeceased was having illicit intimacy with his wife and he haswarned his brother, P.W.2. P.W.8, the wife of the accused, stated,in her evidence, to the effect that there were frequent quarrelsbetween herself and the accused and as a result, she left hermatrimonial house and went to her parental house. P.W.8emphatically denied any illicit intimacy with the deceased. Fromthe evidence of P.Ws.1, 2 and 3, we are able to see that therewere strained relationship between the accused and the deceased,but that motive itself is not sufficient to implicate the accusedwith the crime without any other incriminating circumstances putforward by the prosecution. The Honourable Apex Court has held inMohd. Zahid -vs- State of Tamil Nadu reported in (1999) 6 SupremeCourt Cases Page 120 that motive, being a double edged weapon,could cut both ways, by helping or harming both the prosecutionand the defence.10. The next circumstance put forward by the prosecution isthe last seen theory said to have been spoken to by P.W.1, thewife of the deceased and P.W.4, the employer of the deceased. Itis the version of P.W.1 that she along with her husband, thedeceased, went to the factory of P.W.4 for their work and shealone returned back to the house at 6.00 p.m., as the deceasedinformed her that he would come after finishing his work. Butthereafter, the deceased did not return back to the house. Hence,P.W.1 went and inquired P.W.4, the employer of P.W.1 and thedeceased, who informed her that the deceased left the factory at7.00 p.m. after receiving Rs.50/- and he has not come to the jobthereafter. P.W.1, therefore, went and told the brother of thedeceased, P.W.2 and both of them searched for the deceased, butthey were not able to trace the deceased. It is pertinent to benoted that admittedly there are no materials available on recordto show that the deceased was lastly seen in the Company of theaccused. Therefore, we are of the considered view that theevidence of P.Ws.1, 2 and 4 are not at all helpful to advance thecase of the prosecution to implicate the accused in any mannerwith the crime.11. The prosecution heavily placed reliance on yet anothercircumstance, viz., the alleged extra-judicial confession, Ex.P-6, https://hcservices.ecourts.gov.in/hcservices/ said to have been given by the accused to the VillageAdministrative Officer, P.W.7. P.W.7 has not stated that he knewthe accused earlier. It is highly improbable for the accused torepose confidence on P.W.7, the Village Administrative Officer, togive such an extra-judicial confession, Ex.P-6, as P.W.7 is atotal stranger to the accused. The Honourable Apex Court inSunny Kapoor -vs- State (UT of Chandigarh) reported in 2006(10)Supreme Court Cases 182 has held that it was wholly unlikely thatthe accused would make extra judicial confession to a person whomthey never knew. Therefore, the evidence of P.W.7 to the effectof recording the extra-judicial confession, Ex.P-6, from theaccused is liable to be rejected on this sole ground.12. The yet another infirmity found in respect of recordingthe extra-judicial confession, Ex.P-6, is the version of P.W.1.Even in the Chief-examination, she has deposed to the effect thatshe has given the report, Ex.P-1, to P.W.12, on 12.01.2003 and onthe next day, i.e., on 13.01.2003, the police came to the place,where the skull was found, along with the accused and Tahsildar,P.W.11 and the Village Administrative Officer, P.W.7 and as such,the alleged version of the prosecution to the effect that theaccused made an extra-judicial confession on 14.01.2003 to theVillage Administrative Officer, P.W.7 and thereafter, P.W.7produced the accused before the police and the accused wasarrested, falls into ground. The version of P.W.1 is furthercorroborated by P.W.2 to the effect that P.W.2 has stated, in hisChief-examination, that the police brought the accused on the nextday after receiving the report, Ex.P-1, from P.W.1, to the spotwhere the skull was found. It is pertinent to be noted that theabove said version of P.Ws.1 and 2 in their Chief-examination wasnot clarified by the prosecution by any re-examination. We haveno reason to brush aside such a categorical version of P.Ws.1 and2 in their Chief-examination. Therefore, it is crystal clear thatthe accused was already in the police custody even before thealleged extra-judicial confession, Ex.P-6, said to have been madeon 14.01.2003 to P.W.7, the Village Administrative Officer. Inview of the above said reasons, we have no hesitation to rejectthe prosecution version regarding the recording of Ex.P-6, thealleged extra-judicial confession, from the accused.13. The last circumstance relied on by the prosecution isthe alleged recovery of skull and bone pieces near the house ofthe accused and the recovery of the clothes said to have been wornby the deceased at the instance of the accused. It is pertinentto be noted that the clothes, M.Os.1 to 3 were not identified byP.W.1 properly as that of the deceased. In Ex.P-1, report,P.W.1 has not stated that he has identified the body of thedeceased, on seeing the above said clothes, M.Os.1 to 3. P.W.1also not stated during her examination under Section 164 of theCr.P.C. before the Judicial Magistrate that she has confirmed the https://hcservices.ecourts.gov.in/hcservices/ bones and skull were that of the deceased after seeing theclothes, M.Os.1 to 3. P.W.1 also admitted in her cross-examination that along with the skull, the lungi was seen.Therefore, it cannot be stated that the lungi and other clotheswere recovered only at the instance of the accused. It isrelevant to note, as already pointed out, that the pieces of thebones could not have been identified by the police at the instanceof the accused as it is the version of P.Ws.1 and 2 that the skullwas found even before the report, Ex.P-1, was given to the police.Further, the prosecution has not proved that the skull and thebones were that of the deceased. Therefore, we are of theconsidered view that the prosecution cannot place any reliance onthe alleged recoveries of skull, bone pieces and clothes, M.Os.1to 3 to implicate the accused with the alleged crime.14. Therefore, in view of the above said reasons, the entireprosecution case suffers from serious infirmities and inherentimprobabilities. The prosecution miserably failed to put forwardany incriminating circumstance by completing the chain ofcircumstances unerringly pointing to the guilt of the accused andas such, the conviction and sentence imposed on the appellant areunsustainable.15. For the aforesaid reasons, the conviction and sentenceimposed upon the accused by the learned Principal Sessions Judge,Salem, in S.C.No. 269 of 2004 are set aside. The criminal appealis allowed. It is stated that the accused/appellant is on bail.Hence, the bail bonds executed by the appellant/accused shallstand cancelled and the fine amount, if paid, shall be refunded. Sd/Asst.Registrar/true copy/Sub Asst.Registrarbs/ https://hcservices.ecourts.gov.in/hcservices/ To1.The Judicial Magistrate No.2, Sankari.2.-do- through the Chief Judicial Magistrate, Salem.3.The Principal Sessions Judge, Salem.4.The Inspector of Police, Magudanchavady Police Station, Salem.5.The Superintendent, Central Prison, Coimbatore.6.The District Collector, Madras.7.The Director General of Police, Madras.8.The Public Prosecutor, High Court, Madras.Copy toThe Section Officer,Criminal Section,High Court of Madras, Madras.+1cc to Mr.Jaya Sri Baskar, Advocate Sr 38195SSV (CO)km/31.7.Crl.A.No.652 of 2007