Madras High Court
Palanichamy vs The State Represented By on 26 July, 2010
Author: M.Chockalingam
Bench: M.Chockalingam, M.Duraiswamy
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26/07/2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.DURAISWAMY Criminal Appeal (MD) No.71 of 2010 1.Palanichamy 2.Raja ... Appellants Vs The State represented by, The Inspector of Police, Ottanchathiram Police Station, Dindigul District. ... Respondent Criminal Appeal filed under Section 374 of Cr.P.C. against the judgment of the Additional District and Sessions Judge (Fast Track Court), Dindigul, Dindigul District in S.C. No.42 of 2009 dated 25.02.2010. !For Appellants ... Mr.R.Anand ^For Respondent ... Mr.Isaac Manuel, Addl. Public Prosecutor :JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenging a judgment of the Additional District and Sessions Judge, Fast Track Court, Dindigul in S.C. No.42 of 2009 dated 25.02.2010, whereby the appellants / accused 1 and 2 stood charged, tried, found guilty and awarded punishment as under, the present Criminal Appeal has been filed.
Accused Charges Finding Punishment
under Section
A1 and A2 120-B r/w 302 IPC Found guilty A1 and A2 were sentenced to undergo 2 years R.I. each.
A1 and A2 302 r/w 34 IPC Found guilty A1 and A2 were sentenced to undergo life imprisonment each and to pay a fine of Rs.1000/- each in default to undergo 6 months R.I. each.
A1 and A2 404 r/w 34 IPC Found guilty A1 and A2 were sentenced to undergo 3 years R.I. each and to pay a fine of Rs.500/- each in default to undergo 3 months R.I. each.
A1 and A2 201 r/w 302 IPC Found guilty A1 and A2 were sentenced to undergo 3 years R.I. each and to pay a fine of Rs.500/- each in default to undergo 3 months R.I. each.
2. Though the charge sheet was laid as against the first accused along with the appellants herein, the first accused died pending trial. Hence the second and third accused originally shown in the charge sheet were shown as A1 and A2 respectively in the judgment of the Trial Court.
3. For the sake of convenience, the accused will be referred in this judgment as per the charge sheet, namely, the deceased accused-Gandhi as A1, and the accused Palanichamy and Raja as A2 and A3 respectively, who are the appellants herein.
4. The short facts that are necessary for the disposal of this appeal can be stated thus:-
a) The deceased-Chinnakannan, who was working as a Teacher at K.R. Government Higher Secondary School, Ottanchathiram, was lending money outside.
The first accused-Gandhi borrowed Rs.20,000/- on the strength of a promissory note, five months prior to the occurrence. Many a demand was made by the deceased for repayment of the money, but the first accused was evading. Aggrieved over the non-payment of the money, the deceased shouted at the first accused in a public place and thus, the first accused was aggrieved. Thereafter A1 hatched up a conspiracy with A2-Palanichamy and A3-Raja to finish him off. As per his plan, A1 informed to the deceased to come and wait in front of a hotel in Ottanchathiram, so that he can receive the payment. Accordingly, in the evening hours on 21.03.2002, the deceased proceeded to that place. Before proceeding to that place, the deceased informed P.W.4-his wife, that A1 had given him assurance for repayment of the money and hence he was going to Ottanchathiram to get money from him. As per the plan, A1 asked A2 and A3 to wait nearby the place of occurrence. When the deceased was waiting in the said place, A1 met him and told that he has arranged for a loan from a third party and he would settle his amount. Accordingly A1 took the deceased in a TVS-Suzuki motorbike and both of them went nearby the place of occurrence where A2 and A3 were also waiting. When they reached the land of one Nallaswamy Gounder, A3 strangulated the neck of the deceased with a nylon rope, while A1 sat on him and closed his mouth and A2 stabbed him with a knife, and caused his instantaneous death. In order to screen the evidence, they set the body ablaze and it was charred half. Then, they left the place of occurrence. At that time, A1 to A3 were seen in a motorbike by P.W.11-Vairavamuthu, who was standing near a bus stop, and he attempted to stop them in order to join with them to go to Ottanchathiram, but the vehicle was not stopped. P.W.11 has witnessed that the clothes of one of those persons was drenched with blood.
b) On the next day morning, that was on 22.03.2002, when P.W.1-Village Administrative Officer (VAO), was in his office, P.W.2-Village Assistant, informed him that a dead body was found in the place of occurrence. Immediately, P.W.1 went over to the place of occurrence and after verifying the fact, he proceeded to the respondent-Police Station and gave Ex.P1-Report, on the strength of which, a case came to be registered by P.W.24-Inspector of Police in Crime No.268 of 2002 under Section 302 of the Code. Ex.P22-Express F.I.R. was despatched to the Court and the copies were sent to the higher-ups.
c) Thereafter, P.W.24 took up the case for investigation. He proceeded to the place of occurrence, made an inspection and prepared Ex.P2-Observation Mahazar and Ex.P23-Rough Sketch. Then, he conducted inquest over the dead body of the deceased in the presence of witnesses and panchayatars and prepared Ex.P24-Inquest Report. He recovered M.Os.1 to 10 under a cover of Ex.P3-Seizure Mahazar, from the place of occurrence. Thereafter, he sent the dead body of the deceased to the Government Hospital, Ottanchathiram, for the purpose of conducting autopsy.
d) Thereafter, he made another visit to the place of occurrence and recovered M.O.11-3 Nos. beer bottles, from the place of occurrence under a cover of Ex.P4-Seizure Mahazar. He prepared another Rough Sketch marked as Ex.P25, at the place where the beer bottles were found.
e) The dead body of the deceased was subjected to autopsy by P.W.13- Doctor, attached to the Government Hospital, Ottanchathiram and she issued Ex.P6-Post Mortem Certificate, wherein she opined that the deceased would appear to have died 20 to 23 hours prior to autopsy. The Doctor had also given a final opinion as to the cause of death, under Ex.P10 stating that the deceased died out of asphyxia and shock.
f) On 26.03.2002, the first accused was arrested. He came forward to give a confessional statement voluntarily and the same was recorded in the presence of witnesses. Ex.P26 is the admissible portion of the confessional statement of the first accused. Following the confessional statement given by A1, M.O.14- Promissory Note, M.O.15-Gold Chain, M.O.16-Half handed shirt and M.O.17-Dhoti were recovered under Ex.P27-Seizure Mahazar and M.O.18-TVS-Suzuki Motorbike under Ex.P28-Seizure Mahazar. When the first accused-Gandhi pointed to A2 and A3, both of them were arrested and they gave confessional statements voluntarily and the same were recorded in the presence of witnesses. The confessional statement of A2-Palanichamy is marked as Ex.P29 and that of A3-Raja is Ex.P31. On the basis of the confessional statement of A2, he produced M.Os.19, 20, 21 and 22-Gold Ring, Knife, Shirt and Pant respectively, and the same were recovered under a cover of Ex.P30-Seizure Mahazar. On the basis of the confessional statement of A3, he produced M.Os.23, 24 and 25-Gold Ring, Kaili and Shirt respectively, and the same were recovered under a cover of Ex.P32- Seizure Mahazar. Thereafter fingerprints were taken from the material objects, and the accused were sent for judicial remand.
g) All the material objects recovered were sent for chemical analysis. The hyoid bone of the deceased was also sent for examination. Three reports were received. The first one is Ex.P7-Chemical Analyst's Report, the second one is Ex.P8-Serologist's Report and the third one is Ex.P9-Hyoid Bone Report. P.W.14- Scientific Assistant has given an opinion under Ex.P14 that the fingerprints lifted from the beer bottles tallies with that of the fingerprints taken from the accused. The skull of the deceased was taken, and the same was sent for Superimposition Test which also brought forth a report under Ex.P15 that it was the skull of the deceased-Chinnakannan.
h) Further investigation was taken up by P.W.25-Inspector of Police. After verifying the records, he filed final report against the accused under Sections 120-B r/w 302, 364, 302 r/w 34, 404 and 201 r/w 302 of IPC before the concerned court, which in turn committed the case to the Court of sessions and necessary charges were framed.
i) In order to substantiate the charges, at the time of trial, the prosecution examined 25 witnesses and relied on 36 exhibits and 25 material objects. On completion of the evidence adduced on the side of the prosecution, the accused were questioned under Section 313 of Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses. They denied them as false. No defence witness was examined. After hearing the arguments of the counsel and looking into the available materials, the Trial Court took the view that the prosecution has proved the case beyond reasonable doubt, and awarded the punishments as referred to above. Hence, this Criminal Appeal at the instance of the accused / appellants.
5. Advancing arguments on behalf of the accused / appellants, the learned counsel would submit that in the instant case, the prosecution has no direct evidence to offer. It relied exclusively on circumstantial evidence. The prosecution has neither placed nor proved the necessary circumstances pointing to the guilt of the accused. P.W.1-VAO, had given a report under Ex.P1, on the strength of which a case came to be registered by the Inspector of Police of the respondent-Police Station. The counsel further submitted that the prosecution relied on three circumstances to prove the case. The first circumstance is the evidence of P.W.11. According to the prosecution, he was standing near an electrical post and at that time, he found A1 to A3 proceeding in a motorbike, and the clothes of one of the accused was drenched with blood. The evidence of P.W.11 was relied on by the prosecution and accepted by the Trial Court, but admittedly, P.W.11 was 69 years old and according to him all the three persons were travelling in a motorbike which was actually moving fast, and he witnessed it at about 11.30 p.m., and that he has neither seen any one of the accused previously. Therefore, according to the learned counsel, P.W.11 did not know the accused at all and in such circumstance, the evidence of P.W.11 should have been rejected by the Trial Court outright, but it has not been done so.
6. Learned counsel for the accused / appellants would add that the prosecution would claim that the material objects were recovered from the accused persons on 26.03.2002, but the Investigator would claim that A1 was arrested first when he pointed out A2 and A3 and when A1 was arrested, he gave a confessional statement, based on which M.Os.14 to 18 were recovered. Insofar as A2 is concerned, the investigator would claim that M.Os.19 to 22 were recovered from him. Equally, insofar as A3 is concerned, the investigator would claim that M.Os.23 to 25 were recovered from him. Unfortunately, P.W.15-Chinnasamy, who was examined as a witness in order to prove the arrest and recovery, turned hostile. Apart from that, P.W.4, the wife of the deceased has categorically admitted that 3 days after the occurrence, the accused persons were arrested and they were kept under police custody for a few days, which would be indicative of the fact that the claim of the investigator that the accused were arrested on 26.03.2002 and that they were sent for judicial remand on 27.03.2002, cannot but be false. Added further the learned counsel for the accused / appellants that in the instant case, three statements were recorded from P.W.4 and even in the first and second statements, she has not whispered that her husband was wearing any rings, but after the arrest of the accused, a statement was recorded from her as if he was wearing the rings. Therefore, according to the counsel, that part of the recovery pursuant to the confessional statements, should not have been accepted by the Trial Judge.
7. Learned counsel for the accused / appellants would further add that insofar as the fingerprint expert's opinion relied on by the prosecution, it should have been rejected outright for two reasons. Firstly, the recovery of beer bottles from the place of occurrence has taken place not at the time of the first inspection made by the investigator, but during the second inspection, after a long interval, which casts a doubt in the case of the prosecution. Secondly, no procedure was followed in taking the fingerprints of the accused persons for the purpose of comparison as one required by law. Under such circumstance, according to the learned counsel the opinion of the fingerprint expert was of no consequence.
8. Added further the learned counsel for the accused / appellants, that in the instant case, the prosecution has no direct evidence to offer and it relied only on circumstantial evidence. Hence, according to the counsel, the Trial Judge has taken an erroneous view by finding the accused guilty and awarding punishments, as referred to above, and therefore, the judgment of the Trial Court has got to be set aside.
9. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made and also scrutinised the materials available.
10. It is not in controversy that the dead body of one Chinnakannan was found half-charred in the place of occurrence. Following the inquest made by the investigator, the dead body was subjected to autopsy by P.W.13-Doctor, who gave a categorical opinion that the deceased died out of asphyxia and shock about 20 to 23 hours prior to autopsy. Insofar as the identity of the deceased is concerned, even though a superimposition test was conducted and it was found that the skull was that of the deceased, P.W.4 had clearly identified her husband. Apart from that, the cause of death as put forth by the prosecution as homicidal violence was not a matter of controversy before the Trial Court and under the circumstances, the Trial Court had no legal impediment in recording so.
11. In order to substantiate that pursuant to a conspiracy, all the three accused persons have committed the offence of murder and have taken the jewels which were worn by the deceased, the prosecution has no direct evidence to offer. It relied only on circumstantial evidence. It is settled principle of law that in a given case which rests exclusively on circumstantial evidence, the prosecution must place and prove without any doubt that no one could have committed the offence except the accused / appellants. In the instant case, the Court is afraid whether it can sustain a conviction as done by the Trial Judge. The case of the prosecution was that pursuant to a conspiracy which was hatched up by A1 along with A2 and A3, the act was committed. The prosecution had no direct evidence to offer in respect of conspiracy part. At the outset, it must be mentioned that the prosecution failed in its attempt to prove the conspiracy theory. According to the prosecution, A1 took the deceased to the place of occurrence where A2 and A3 were waiting, and all of them murdered the victim, and apart from that, they have robbed the jewels worn by the deceased, and also they attempted to screen the evidence and in that process, set the body of the deceased ablaze.
12. As pointed out by the learned counsel for the accused / appellants, the prosecution rested its case on three circumstances. According to P.W.11, he was standing in the nearby place and saw A1 to A3 proceeding in a motorbike, and one of the accused's shirt was drenched with blood. Evidence of P.W.11, at the first instance, looked to be genuine, but when he was further examined, he admitted that he was 69 years old and he found all the three persons at 11.30 p.m. in the motorbike which was proceeding fast and he neither knew any one of the accused nor talked with them. Under such circumstance, an identification was called for, but it was not done. Hence the evidence of P.W.11 was not worthy enough even for consideration.
13. It is settled principle of law that when the material objects recovered from the place of occurrence were sent for the purpose of comparison with the finger prints taken from the accused, the fingerprints of the accused must be taken procedurally. It is seen that not even any order from the Magistrate was obtained or any procedure was followed, as to how the fingerprints of the accused were actually taken. In the absence of compliance of any procedural formalities, the fingerprints taken from the accused, even if they were compared and expert's opinion was obtained, cannot be relied upon. According to the investigator, he went to the spot only on the next day morning, made inspection, prepared Ex.P2-Observation Mahazar and Ex.P23-Rough Sketch, recovered the material objects and came back to the Police Station and thereafter, he went to the place of occurrence again in the evening and recovered 3 Nos. of beer bottles, where he prepared one more Observation Mahazar and a sketch. Pointing to this, the learned counsel expressed a doubt as to the alleged inspection of the investigator in the morning hours and the recovery of stolen jewels on the basis of the confessional statements given by the accused. It is also pertinent to note that the alleged beer bottles were sent to the Court after a long time. The investigator would claim that the three accused persons were actually arrested on 26.03.2002. If it be so, it casts a doubt as to whether the fingerprints in those bottles were actually recovered after their arrest. Therefore, that part of the evidence was not useful to the prosecution case.
14. The next circumstance was that according to the prosecution, from A2, a golden ring was recovered and equally from A3, another golden ring was recovered and they are marked as M.Os.19 and 23 respectively, but insofar as those two rings are concerned, nowhere P.W.4 has whispered about it in any of the two statements already made, but after the arrest of the accused, an additional statement was recorded from her as if the deceased was wearing the rings. This creates a doubt about the recovery of the jewels. Apart from that, even though the clothes recovered from A2 and A3 were subjected to analysis and some of them tallied with the blood group of the deceased, the recovery witness has turned hostile and thus, the recovery part also could not be relied upon.
15. Thus the three circumstances, viz. evidence of P.W.11, Fingerprint Expert's opinion and also the alleged recovery, are if at all not to be acted upon by the prosecution and also when there was no direct evidence to offer, it cannot be stated that the prosecution has brought home the guilt of the accused beyond any reasonable doubt. Therefore, in the event of the evidence which are filled with all reasonable doubts, it would be highly unsafe to sustain a conviction based upon such evidence. Hence, the judgment of the Trial Court has got to be set aside.
16. Accordingly, the Criminal Appeal is allowed and the judgment of the Trial Court is set aside and the appellants are acquitted of all the charges levelled against them. The appellants are set at liberty and they are directed to be released forth unless their presence is required in connection with any other case.
KM To
1.The Additional District and Sessions Judge (Fast Track Court), Dindigul, Dindigul District.
2.The Inspector of Police, Ottanchathiram Police Station, Dindigul District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.