Bail SlipThe v. State

Bail SlipThe Appellants/ Accused 1 and 3 namely 1. Chinnappan @ Raja @Thodiyan 2. Lucas were directed to be released on bail as per theorder of this Court dated 11.10.2006 and made in Crl.M.P.No.4315of 2006 in Criminal Appeal No.7 of 2006 on the file of this Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 22.07.2008CORAMTHE HONOURABLE MR. JUSTICE P.D.DINAKARANANDTHE HONOURABLE MR. JUSTICE K.N.BASHACRL.A.No.7 of 20061.Chinnappan @ Raja @ Thodiyan2.Lucas .. Appellants/A-1 and A-3VsState through the DeputySuperintendent of Police CBCID, Vellore Circle,[Veraiyur Police Station].[Crime No.370/2001] .. Respondent/Complainant Appeal filed under section 374[2] Cr.P.C., to set aside theconviction and sentence passed by the learned District andSessions Judge,Tiruvannamalai, Tiruvannamalai District in SC.No.48of 2004 by judgment dated 30.09.2005.For Appellants:Mr.K.S.RajagopalanFor Respondent:Mr.N.R.ElangoAddl. Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT[Judgment of the Court was delivered by K.N.BASHA, J.]The appellants who have been arrayed as A-1 and A-3 out ofthree accused have come forward with this appeal challenging thejudgment of the learned District and Sessions Judge,Tiruvannamalai, dated 30.09.2005 made in SC.No.48/2004 convictingthem for the offence under section 302 read with 34 IPC andsentencing them to undergo life imprisonment and also imposing afine of Rs.5,000/- each in default to undergo six months rigorousimprisonment.2.The brief facts of the case as projected by theprosecution are as follows:-[a]P.W.3 is the husband of the deceased Jaya. A-1 is thebrother of P.W.3. P.W.4 is the son of the deceased and P.W.3.P.W.5 is the mother of the deceased. P.W.3, the husband of thedeceased was working in the Army. He was working in the DefenceSecurity Department at Mumbai during the period of occurrence.P.W.2 is the President of the Community of the village and heknows the deceased as well as the accused. He has stated thatthree months prior to the occurrence, the deceased informed himthat A-2 was quarreling with her questioning her as to how she cancut the tree. A-2 also said to have complained to P.W.2 in respectof the deceased cutting the tree from his house. The deceasedfurther informed P.W.2 that A-1 also used to quarrel with herfrequently. P.W.4, the son of the deceased stated that there werefrequent quarrel between the deceased and A-1. P.W.3 also statedthat his wife, the deceased, used to inform him over the phoneabout A-2 quarreling with her questioning her conduct of cuttingthe tree. Therefore, there were strained feelings between A-1, A-2 and the deceased prior to the occurrence.[b]P.W.1, the Village Administrative Officer, on29.11.2001, at 9.00 a.m. received the message from his assistantthat a burnt body was found at Panaiyur Lake. Thereafter, P.W.1went to the scene and saw the body and identified the body as thatof the deceased Jaya. P.W.2, the President, also received themessage about the burnt body of the deceased lying at Panaiyurlake and came to the scene. He found one Anthony, another son ofthe deceased, was weeping at the scene. P.W.2 claimed that heinformed P.W.1 and thereafter, accompanied P.W.1 to the scene ofoccurrence.[c]P.W.1, the Village Administrative Officer prepared areport, Ex.P.1 and went to the Veraiyur police station and gave https://hcservices.ecourts.gov.in/hcservices/ Ex.P.1 to P.W.11, the Sub-Inspector of Police. P.W.11, registeredthe case in crime No.370/2001 for the offence under section 302IPC. Ex.P.4 is the First Information Report [FIR]. He sent theFIR to the higher police officials and to the concerned MagistrateCourt.[d]P.W.14, the Head Constable stated that the Inspector,one Veeran took up investigation in this case and he diedsubsequently. P.W.14 had stated that he knows his signature andhandwriting. He also stated that the said Inspector went to thescene of occurrence at 12.45 p.m. and prepared Ex.P.7-ObservationMahazar and Ex.P.10-Rough Sketch in the presence of witnesses. Healso recovered M.O.5-Blood stained earth, M.O.6-sample earth,M.O.7-burnt ashes, M.O.9-a pair of Hawai chappals, M.O.10-bluecolour towel and M.O.11-burnt muffler with blood stains in thepresence of witnesses. He also held inquest on the dead body ofthe deceased under Ex.P.11-the Inquest Report. Photographs weretaken; sniffer dog was summoned to the scene and the Inspectorexamined other witnesses and recorded their statements. He sentthe body for postmortem.[e]The doctor, P.W.7, attached to the Government Hospital,Tiruvannamalai, conducted postmortem on the dead body of thedeceased on 30.11.2001 at 12.00 noon, on receipt of therequisition under Ex.P.2. He found the following injuries:- "EXTERNAL INJURIES:-1]An incised wound right parietal region10x1x1cm. 2]An incised wound left occipital regions10x1x1cm. Both hands clenched and burns present.Right forearm burnt and bones seen. Left upperarm burnt. Right lower limb charred and detachedfrom the body at mid thigh level. Left lower limbcharred. Left femur burnt and fractured and seenat mid-thigh level. External Genitalia burnt andcharred and could not be made out. Abdomen andpelvis burnt and viscera could not be made out."Ex.P.3 is the Postmortem Certificate wherein the doctor hasopined that the deceased would appear to have died of severe shockand extensive haemorrhage due to injuries to the vital organs,namely, blood vessels and burns sustained to the vital organs,namely brain and abdominal viscera 24 to 48 hours prior topostmortem.[f]Inspector Veeran also recovered the jewelleries worn bythe deceased, viz., M.O.12 to 19 and M.O.20-pieces of red colourblouse produced by P.W.14, the Head Constable after the postmortem https://hcservices.ecourts.gov.in/hcservices/ as per Ex.P.9. The material objects were sent for chemicalexamination through the Court. After completion of investigation,the Inspector sent the case records to CBCID police.[g]P.W.15, the Deputy Superintendent of Police, CBCID, tookup investigation as per the order of this Court on 20.08.2002. Hewent to the scene of occurrence on 22.08.2002. He examined thewitnesses and recorded their statements. On 28.09.2002, heexamined P.W.2 and others. On 25.11.2002, he examined P.W.3. On26.11.2002, he examined some more witnesses and recorded theirstatements. On 25.4.2003 at 11.30 a.m. he arrested A-1 atVanniyanagaram Bus Stop. In pursuance of the admissible portionof the confession under Ex.P.5, he recovered the knife-M.O.4 andM.O.1-white plastic can produced by A-1. On the same day, hearrested A-2 at 5.00 p.m. at Perumanam Bus Stop. On 26.4.2003, healtered the offence from 302 IPC to one under sections 120[b] and302 IPC. Ex.P.13 is the altered FIR. On 28.4.2003, he examinedthe doctor, P.W.7 and recorded his statement. After receiving thePostmortem Certificate Ex.P.3, chemical examination reportsEx.P.14 to 16 and after completing investigation, he filed chargesheet against the accused on 28.07.2003 for the offence undersections 120[b] and 302 IPC.3.The prosecution in order to bring home the chargesagainst the accused examined P.Ws.1 to 15, marked Exs.P.1 to 16and M.Os.1 to 20.4.When the accused were questioned under section 313Cr.P.C., in respect of the incriminating circumstances appearingagainst each of them, they have denied their complicity and theyhave come forward with the version of total denial. They have notchosen to examine any witnesses on their side.5.Mr.K.S.Rajagopalan, learned counsel for theappellants/A-1 and A-3 contended that the entire prosecution caserests on the circumstantial evidence and the prosecution failed toput forward any incriminating circumstances implicating anyone ofthe accused. It is contended that the only piece of circumstancerelied on by the prosecution is the last seen theory said to havebeen spoken by P.W.9 to the effect that he has seen A-3 along withthe deceased followed by A-1 just prior to the occurrence. It isalso contended that P.W.9 was examined one and half years afterthe occurrence and he has admitted that till such time, he has notdisclosed about he seeing the accused and the deceased just priorto the occurrence to anyone of his family members or to anyonetill he was examined by the police. It is also submitted that theprosecution has not given any explanation for the delay in theexamination of P.W.9. Learned counsel would submit that theevidence of P.W.9 is unbelievable and unreliable in view of the https://hcservices.ecourts.gov.in/hcservices/ above said infirmities It is further contended that even themotive put forward by the prosecution is too flimsy and farfetched as it is alleged that there were frequent petty quarrelbetween the deceased and A-1 and A-2. It is submitted that theprosecution version is contrary to the medical evidence throughthe doctor P.W.7. 6.We have heard Mr.N.R.Elango, the learned AdditionalPublic Prosecutor on the submissions made by the learned counselfor the appellants.7.We have given our careful and anxious consideration tothe rival contentions put forward by either side and thoroughlyscrutinised the entire materials available on record and alsoperused the impugned Judgment of conviction.8.The entire case rests on the circumstantial evidence.It is well settled by a catena of decisions of the Hon'ble ApexCourt that the circumstances from which the conclusion of guilt isto be drawn should be fully proved and circumstances must beconclusive in nature to connect the accused with the crime.9.In the light of the above said principle of law laiddown by the Hon'ble Apex Court in respect of the circumstantialevidence, let us now scrutinise and analyse the circumstances putforward by the prosecution against the accused.10.The prosecution has placed reliance on the followingcircumstances:-[a]The motive as spoken by P.Ws.2,3,4 and5; and[b]The last seen theory spoken by P.W.9 tothe effect that he has seen A-3 along with thedeceased and A-1 following them; and[c]Apart from the above two circumstances,the rest of the materials available on record isthe medical evidence through the doctor P.W.7, whohas conducted the postmortem."11.As far as the first circumstance, viz., motive putforward by the prosecution is concerned, the prosecution haschosen to place reliance on the evidence of P.Ws.2 to 5. P.W.2 hadstated that the deceased informed him that A-2 was quarreling withher questioning her conduct of cutting the tree of A-2 and furtherthe deceased had stated to him that A-1 used to quarrel with herfrequently. It is pertinent to be noted that the evidence ofP.W.2 is vague and not clear. Further, P.W.2 categorically https://hcservices.ecourts.gov.in/hcservices/ admitted in his cross-examination that P.W.3, husband of thedeceased and brother of A-1 moved with A-1 and A-2 cordially andA-1 has not complained about her sister-in-law, the deceased toP.W.3 at any point of time. It is admitted by P.W.2 that he wasnot questioned by the police regarding the motive and he has alsonot stated to the police about the petty quarrel between thedeceased and A-1 and A-2. 12.P.W.3, husband of the deceased had merely stated that hehas received phone call from the deceased stating that A-2 wasquarreling with her questioning the conduct of the deceased incutting the tree of A-2. He had also admitted in his cross-examination that he has not stated such telephonic conversationduring the course of examination by the police. It is pertinentto be noted that P.W.3 had admitted in his cross-examination thathe has stated to the police during investigation that his wife,the deceased was not having any enemies. Therefore, the evidenceof P.W.3 is also not helpful to the prosecution to prove themotive. 13.P.W.4 who is the son of the deceased and P.W.3 alsostated that there were frequent quarrel between the deceased andA-1. But he has admitted in his cross-examination that he hasstated to the police during investigation that his mother, thedeceased, is not having any enemies. P.W.5, the mother of thedeceased also has not come forward with definite version regardingthe motive. Therefore, we are of the considered view that it ismost unsafe to place reliance on the evidence of P.Ws.2 to 5 inrespect of the motive put forward by the prosecution.14.The next circumstance relied on by the prosecution isthe last seen theory spoken by P.W.9. P.W.9 had stated that priorto the time of occurrence he has seen the deceased with A-3proceeding towards Panaiyur lake followed by A-1. Fifteen minutesthereafter, it is claimed by P.W.9 that he heard the hue and cryof a lady and also seen the flames coming from that side. Theundisputed fact remains that P.W.9 was examined by the police oneand half years after the occurrence. It is pertinent to be notedthat P.W.9 has admitted in his cross examination that he was atthe scene village for two days after the occurrence andthereafter, he left for Tiruppur. It is further admitted by P.W.9that he has not disclosed about he seeing the deceased and A-1 andA-3 to anyone of his family members or to anyone till he wasexamined by the police. It is curious to note that according toP.W.9 he was called by the police and thereafter, he was examinedand it is admitted by him but for the police calling him, he wouldnot have stated about the last seen theory even to the police.Therefore, the conduct of P.W.9 is unnatural and abnormal. Inview of the above said reasons, we are of the considered view that https://hcservices.ecourts.gov.in/hcservices/ the evidence of P.W.9 is unreliable and untrustworthy and hisevidence not at all inspires our confidence.15.Apart from the above said circumstances, the remainingcircumstances are the medical evidence and the recovery of weaponM.O.4-knife in pursuance of the admissible portion of confessionof A-1. Mere medical evidence itself is not sufficient in theabsence of any other materials to implicate the accused with thealleged crime. In respect of the recovery of M.O.4-knife the factremains that no blood stains are detected and further, therecovery is not proved by any satisfactory evidence adduced by theprosecution. There are several missing links in the circumstancesput forward by the prosecution and the prosecution has notcompleted the chain of circumstances unerringly pointing to theguilt of the accused.16.For the aforesaid reasons, we are constrained to come tothe inevitable conclusion that the impugned judgment of convictionis unsustainable and accordingly, the conviction and sentenceimposed on the appellants in the judgment dated 30.09.2005 by thelearned District and Sessions Judge, Tiruvannamalai District, inS.C.No.48/2004 is set aside and the criminal appeal is allowed.17.It is reported that the appellants are on bail. Hence,bail bond, if any, executed by them, shall stand terminated andthe fine amount, if any paid by them, may be directed to berefunded to them.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.apTo1.The District and Sessions Judge, Tiruvannamalai, Tiruvannamalai District.2. The Judicial Magistrate No.1 Tiruvannamalai https://hcservices.ecourts.gov.in/hcservices/

3. Do thro the Chief Judicial Magistrate,Tiruvannamalai District.4. The Judicial Magistrate No.1, Chengalpet.5. do Thro the Chief Judicial MagistrateChengalpattu District.6. The District CollectorTiruvannamalai7. The Director General of Police, Chennai-48. The SuperintendentCentral Prison, Vellore.9.The Deputy Superintendent of Police CBCID, Vellore Circle, 10.The Public ProsecutorHigh Court, Chennai.copy toThe Section OfficerCriminal Section,High Court, Madras. 1 cc to Mr.K.S. Rajagopalan, Advocate, SR. 39241Crl.A.No.7/2006VM (CO)kk 11/8