Suresh v. State represented by Inspector of Police, Ambattur Police Station, Chennai(Crime No.564 of 2003)

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23.07.2009 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRIMINAL APPEAL NO.758 OF 20081.Suresh2.Kannan @ Thoppu Kannan3.Subash @ Subash Chandrabose ..Appellants/Accused 1,2 and 4Vs.State represented byInspector of Police,Ambattur Police Station,Chennai(Crime No.564 of 2003) ..Respondent This criminal appeal has been preferred under Section 374(2)Cr.P.C. against the judgment of the learned Additional District andSessions Judge Fast track Court IV, Poonamallee made in S.C.No.652006, dated 17.4.2008. For Appellants : Mr.V.Gopinath Senior Counsel for Mr.L.MahendranFor Respondent : Mr.N.R.Elango, APP JUDGMENT(The judgment of the court was delivered by M.CHOCKALINGAM, J.)Challenge is made to the judgment of the Additional District andSessions Judge, Fast track Court IV, Poonamallee, made in S.C.No.65of 2006, whereby the appellants three in number along with thejuvenile accused tried, stood charged and found guilty under Section302 IPC and awarded life imprisonment as well as found guilty underSection 201 read with 34 IPC and sentenced to undergo seven yearsrigorous imprisonment. https://hcservices.ecourts.gov.in/hcservices/

2.The story of the prosecution case as put forth before theTrial Court can be stated thus: a)P.W.5 is the father of the deceased Damodharan. He wasdoing his B.A.Political Science in Presidency College during therelevant time. PW-7 was also doing the said course along with him.(b)On 11.8.2003, both of them returned from the college toAmbattur. PW7 dropped the deceased near the church and left for hisplace. The deceased told that he want to meet his friends. On thesame day, PW3, the paternal uncle of the deceased and PW4, the nephewof the deceased both came to Chennai. When, they were just crossingthe railway line at Ambattur, they witnessed the person like thedeceased, who was taken by the accused persons. Then they left toChidambaram.(c)On 11.8.2003 the deceased did not return home. Then PW1made a search. He went to his native place at Chidambaram and made anenquiry. At that time, Pws.3 and 4 informed him that they saw thedeceased in the company of the accused persons. He came to know thatthe dead body was found in the lake and then he immediately proceededto the place, where the dead body of his son was found.(d)Thereafter, P.W.1 proceeded to the respondent policestation where PW.13, Inspector of Police was on duty. He gave Ex.P.1complaint, on the strength of which, a case came to be registered inCrime No.564 of 2003 for the offences under Sections 302, 201 readwith 34 IPC. Ex.P.12, F.I.R. was despatched to the Court. P.W.13took up the investigation, went to the place of occurrence and madean inspection in the presence of the witnesses. He prepared theobservation mahazar and drew Ex.P.13, rough sketch. The place ofoccurrence and the dead body were photographed and M.O.1 and M.O.2are Photos and Negatives respectively. Then, he conducted inquest onthe dead body of the deceased in the presence of the witnesses andpanchayatdars and prepared Ex.P.14, the inquest report. Then, thedead body was sent for the purpose of post-mortem. (e)P.W.2, the Doctor attached to the Government Hospital,Royapettah, on receipt of the requisition, had conducted post-mortemon the dead body of the deceased and issued Ex.P.3, the post-mortemcertificate, wherein he has opined that the deceased would appear tohave died due to the injuries sustained by him.(e)Pending investigation, PW-13 came to know that A1 and A2surrendered themselves before the Metropolitan Magistrate Court,Egmore, on 8.9.2003 and he took them to police custody. On 9.9.2003,the first accused gave a confession, which is marked as Ex.P.21,pursuant to which he produced M.O.10 knife, M.Os.11 knife under thecover of Mahazar Ex.P.23 and on the same day, at about 10.30 a.m., herecorded the confession statement of A2. On 24.9.2003, at about 8 https://hcservices.ecourts.gov.in/hcservices/ a.m., he arrested A3 near Patravakkam Railway Station. On17.11.2003, A4 surrendered before the Judicial Magistrate,Tiruvellore. PW-13, took him into police custody and on the same day,at about 9 a.m., he recorded his confession statement and theadmissible part is marked as Ex.,P.25. On 13.8.2003, PW-13 examinedthe witnesses and recorded their statements.(f)Pending investigation, PW-12 gave a statement to theeffect that on 11.8.2003 at about 8 p.m., A1 and A2 came to his shopand purchased a toy and cap and they did not make the payment. Whenhe demanded, A1 and A2 informed PW-12 that they have just committed amurder. (g)When, PW-6 was in the house, four persons came there andinformed that they are in the grip of fear since a dead body wasfound in a lake in Ambattur and after they made a phone call to athird party, they went away. The statements made by Pw.12 and 6 werealso relied upon by the Investigating Officer.(h)Thereafter, a requisition Ex.P.17 was forwarded to theDistrict Munsif-cum-Judicial Magistrate, Ambattur, for sending thematerial Objects for analysis. All the M.Os. were subjected tochemical analysis, on requisition made, which is Ex.P.18, given bythe Investigating officer, through the Judicial Magistrate, Ambattur,who in turn sent a requisition to the Forensic Department. All thematerial objects recovered were subjected to chemical analysis by theForensic Science laboratory, which resulted in Ex.P.19, theBiological report and Ex.P.20, the Serologist's report. P.W.13, theInspector of Police, took up further investigation and on completionof the investigation, he filed the final report. 3.The case was committed to the Court of Sessions andnecessary charges were framed. In order to substantiate the chargeslevelled against the accused, the prosecution examined 13 witnessesand also relied on 25 exhibits and 11 M.Os. On completion of theevidence on the side of the prosecution, the accused were questionedunder Section 313 Cr.P.C. as to the incriminating circumstances foundin the evidence of prosecution witnesses. The accused flatly deniedthe same as false. No defence witness was examined.4.The trial court, after hearing the arguments advanced andscrutinizing the materials available, took the view that theprosecution had proved the case beyond reasonable doubt in respect ofaccused 1,2 and 4 and found them guilty and awarded punishment asreferred to above. In so far as A3 juvenile was concerned, the casewas split up. Hence this appeal has arisen at the instance of accused1,2 and 4/appellants herein. 5.Advancing arguments on behalf of the appellants, thelearned counsel would submit that in the instant case, the https://hcservices.ecourts.gov.in/hcservices/ prosecution had no direct evidence to offer. It relied upon certaincircumstances, which did not even indicate the nexus of the crime inquestion with the accused. PW1 is father, while Pws.3 and 4 areuncle and nephew of the deceased respectively. The firstcircumstance relied upon by the prosecution was that PW-7, acolleague of the deceased came back from the college along with him.But, according to him, he left him at about 4'O Clock nearby a churchin Ambattur. Thereafter, he did not see him. The second circumstancerelied upon by the prosecution was that at about 5.30 p.m., Pws.3 and4 when they were nearing the railway line at Ambattur, they found aperson look-like the deceased along with four others. Pws.3 and 4would further claim that when PW-1 came to their native place atChidambaram on 12.8.2003, both of them informed about the same. Evenin EX.P.1 report, it was mentioned by PW1 on the next day, viz.,13.8.2003. This fact was also not mentioned to PW-13, Inspector ofPolice and apart from this, Pws.3 and 4 were not certain that theperson whom they met was the deceased himself. Apart from that, ifthey are very particular that they had seen A1 to A4, IdentificationParade should have been conducted. The case of the prosecution wasthat both the witnesses have not identified the accused persons inthe police station and it would not be suffice as per law. The nextcircumstance is that PW6 was a lady and according to her, threepersons, who were not the accused met her at house and informed thatthey are under the grip of fear that they found a dead body in thelake. It would be quite clear that PW6's evidence was of noconsequence or use in so far as the prosecution case was concerned.In this case, it is not the evidence of PW6 that the persons who cameto her house are not accused, but some other persons. The nextcircumstance relied upon was that the evidence of PW-12, a shopwalaat Ambattur. According to him, A1 and A2 came to his shop andpurchased a toy and a cap. But, they did not pay for the same, whenthere was a demand. They went away and nowhere they got the accusedin question. The last circumstance relied on by the counsel was thatthe confessional statement alleged to have been given by the accused.Even assuming, pursuant to the confession statement, the allegedrecovery was made, it is suffice to speak about the nexus of thecrime in question with the accused. Under these circumstances, theprosecution has miserably failed to prove the necessary circumstancespointing to the guilt of the accused. The trial Court has taken anerroneous view and hence it is a fit case where the judgment of thetrial Court has got to be set aside.6.The court heard the learned Additional Public Prosecutor onthe above contentions and paid its anxious consideration on thesubmissions made.7.It is not in controversy that the dead body of Damodharanwas found in the lake at Ambattur. On information, PW1 went to thelake and found the dead body and then proceeded to the police stationand gave a complaint Ex.P.1 to PW-13 Inspector of Police, who https://hcservices.ecourts.gov.in/hcservices/ registered a case for murder and after the inquest was made by theInvestigating Officer, the dead body was subjected to post-mortem byP.W.2 doctor, who has given categorical opinion that the deceasedwould appear to have died of injuries sustained by him. The fact thatthe deceased died of homicidal violence was never disputed by theappellant before the trial court and hence it has got to be recordedso. 8.In order to substantiate the case of the prosecution thatit was the accused, who caused the death of Damodharan and threw thedead body into the lake, the prosecution had no direct evidence tooffer. It relied upon the circumstances. In a given case like this,when the prosecution rests the entire case on circumstantial evidenceit has to prove the necessary circumstances pointing to thehypothesis that except the accused, no one could have committed theoffence in question.9.Insofar as the first circumstance is concerned, PW-7 andthe deceased returned from the college on the evening hours of11.8.2003 and left the deceased near a church. He did not speakanything further. 10.Insofar as Pws.3 and 4 are concerned, according to them,they are native of Chidambaram. PW.3 is uncle and PW4 is nephew ofthe deceased and they visited Madras on 11.8.2003 and at the eveninghours, near the railway line at the time, both of them found aperson, who looked like the deceased along with four persons. Itwould be quite evident that from the testimony the statement made byhim originally was to the deceased himself. Added further, they didnot know the other four persons, who accompanied the deceased. Insuch circumstances, law would expect to conduct identificationparade. But the prosecution before the trial has given an explanationthat Pws.3 and 4 have identified all the four accused in the policestation. Needless to say that the said act would not satisfy the law.Added further, according to Pws.3 and 4, PW-1 came to their nativeplace at Chidambaram on the next day on 12.8.2003 and furtherinformed him that they met a person like the deceased on the eveninghours near the railway crossing line along with four persons. If thisis true, PW1 should have certainly mention the same in the complaint,which was given by him under Ex.P.1. It is pertinent to point outthat complaint was given by him only on 13.8.2003 and even in thecomplaint, nowhere he had made a reference either about PW3 or PW4.The evidence of Pws.3 and 4, for the reasons stated above, cannot beacted upon. 11.Added circumstances are the evidence of Pws.6 and 12.According to PW-6, four persons came to her house and informed thatthey were under the grip of fear since a dead body was found in thelake. Thus, it would be quite clear that the persons met at herresidence were not the accused and four persons have met her and at https://hcservices.ecourts.gov.in/hcservices/ no stretch of imagination through PW-6 they could connect theaccused. 12.Equally, according to PW-12, he was the owner of the shopat Ambattur. On the date of occurrence at night hours, A1 and A2purchased a toy and cap, but they did not pay the price. When therewas a demand, they threatened PW-12 shop owner that they havemurdered just before and so they went away from that shop. It wouldbe taken as a piece of evidence to bring home the guilt of theaccused to the crime.13.The prosecution placed reliance upon the alleged confessionstatement along with the recovery of certain M.Os. Needless to say,in a case like this, the recovery of Mos alone would not by itselfsufficient to indicate the offender. Thus the prosecution hasmiserably failed to prove its case. The trial court has taken anerroneous view as if pointing to the guilt of the accused. In theinstant case, the prosecution though placed the circumstances, theydid not hold the prosecution to indicate the nexus of the crime withthe accused.14.Under these circumstances, the judgment of conviction andsentence imposed on the appellants herein by the learned AdditionalDistrict and Sessions Judge, Fast Track Court No.IV, Poonamallee inSC.No.65 of 2006 is set aside, and the appellants are acquitted ofthe charges levelled against them. They are directed to be releasedforthwith unless their presence is required in connection with anyother case. sd/-Asst.Registrar/true copy/Sub Asst.RegistrarVJYTo1. The Additional District and Sessions Judge, Fast track Court No.IV, Poonamallee.2. -do- Through The Principal Sessions Judge, Thiruvallur.3. The District Munsif -cum- Judicial Magistrate, Ambattur. https://hcservices.ecourts.gov.in/hcservices/

4. -do- Through The Chief Judicial Magistrate, Thiruvallur.5. The District Collector, Thiruvallur.6. The Director General of Police, Mylapore, Chennai-4.7. The Superintendent, Central Prison, Puzhal, Chennai.8. The Inspector of Police, Ambattur Police Station, Chennai.9. The Public Prosecutor, High Court, Madras.+ 1 c.c. to Mr. L. Mahendran, Advocate. S.R.No.34300. CRL.A.NO.758 OF 2008GV (CO)GSK 05.08.2009.