Madras High Court
R.Gopal vs State Rep.By on 13 July, 2010
Bench: M.Chockalingam, M.Duraiswamy
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 13/07/2010 CORAM THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM and THE HONOURABLE MR. JUSTICE M.DURAISWAMY Criminal Appeal (MD) No.426 of 2009 R.Gopal .. Appellant vs State rep.by The Inspector of Police, Sivakasi East Police Station, Sivakasi. .. Respondent (Crime No.708/2007) Criminal Appeal filed under Section 374 of the Cr.P.C against the Judgment of conviction and sentence dated 30.9.2009 made in S.C.No.47 of 2008 on the file of the Principal Sessions Court, Virudhunagar District at Srivilliputhur. !For appellant ... Mr.M.Subash Babu ^For respondent ... Mr.M.Daniel Manoharan Addl.Public Prosecutor :JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM,J) Challenge is made to the judgment of the Principal Sessions Division, Virudhunagar District at Srivilliputhur, whereby the accused/appellant was shown as A.1, stood charged along with other accused ranked as A.2 under Sections 392 r/w 397, 302 and 506 (2) of the IPC and on trial, he was found guilty under Sections 302 and 392 r/w 397 of the IPC and awarded life imprisonment and a fine of Rs.1,000/-, in default, to undergo six months rigorous imprisonment under Section 302 of the IPC and 10 years rigorous imprisonment and a fine of Rs.1,000/-, in default, to undergo six months rigorous imprisonment under Sections 392 r/w 397 of the IPC. However, the trial Judge has recorded an order of acquittal of A.1 under Section 506(2) of the IPC and also acquitted the second accused in respect of all the charges levelled against him.
2. The short facts that are necessary for the disposal of this appeal can be stated as follows:
(i) PW.1 is the son of the deceased Thangaraj. Thangaraj was residing with his family members at West Street in Pallapatti. He was employed as a contractor in a Match Factory viz., Arumugam Fire Works at Narayanapuram Road.
He used to leave for job at 7.00 a.m., and used to return at 6.30 p.m.,. He used to travel in a TVS Excel Super. On 30.10.2007, he left for job at 7.00 a.m., but he did not return on the night.
(ii) Next morning, PW.1 accompanied by his relatives proceeded to the Fire Works at about 8.00 a.m., and as they were proceeding in Narayanapuram - Pudur Road, they found the TVS Excel Super of the deceased in a passage situated opposite to Deepak Gas Company Godown. Entertaining a suspicion, they made search and found the dead body of the deceased but a gold ring, which was worn by the deceased, was found missing.
(iii) PW.1 immediately proceeded to the respondent Police Station and gave Ex.P.1 report. On the strength of Ex.P.1, PW.14, registered a case in Crime No.708/2007 under Section 302 of the IPC. Printed FIR Ex.P.31 was despatched to the Court.
(iv) Following the same, PW.17 the Inspector of Police of the Circle took up investigation, proceeded to the spot, made an inspection and prepared an Observation Mahazar Ex.P.10 and a Rough Sketch Ex.P.32. He conducted inquest on the dead body of the deceased, Thangaraj and the Inquest Report was marked as Ex.P.33. He also recovered Nokia Mobile MO.5, Watch MO.3, Key Chain of the TVS Excel Super Ex.P.7, Key bunch including the key of Yamaha Bike MO.8, TVS Excel Super MO.1 and 10 Rupee Currency Note MO.6 were recovered under the cover of Mahazar Ex.P.11. He also recovered blood stained earth MO.17 and sample earth MO.18. Thereafter, the dead body was sent for Post-Mortem.
(v) PW.11 Doctor, attached to the Government Hospital, Sivakasi, conducted Post-Mortem on the dead body and he has given a Post-Mortem Certificate Ex.P.14 wherein he has described that the deceased died out of homicidal violence due to injuries sustained prior to 18 to 24 hours.
(vi) Pending investigation, PW.3 informed the investigating officer that he saw both the accused persons coming with the bloodstained clothes along with MO.10 Yamaha Bike near the place of occurrence. The statement of PW.3 was also recorded by the investigating officer.
(vii) Pending investigation, A.1 was arrested in the presence of witnesses on 12.11.2007 and during the course of enquiry, he voluntarily came forward to give a confessional statement and the same was recorded in the presence of witnesses and the admissible part of the confessional statement was marked as Ex.P.2. On the same day, A.2 was also arrested, and during the course of enquiry, he also voluntarily came forward to give a confessional statement and the admissible part of the confessional statement was marked as Ex.P.6.
(viii) Following the same, A.1 identified PW.8, from whom, MO.9 Gold Ring was recovered in the presence of witnesses under the cover of Mahazar, Ex.P.3. He also produced bloodstained shirt MO.11 and the same was recovered under the cover of Mahazar Ex.P.4. The investigating officer also recovered Yamaha Bike MO.10, which was parked at the cycle stand of Rajaji Government Hospital, Madurai.
(ix) Following the confession, A.2 produced a knife (MO.12) used in the commission of offence and the same was recovered in the presence of witnesses.
(x) The Material Objects recovered under the cover of Mahazar were sent to Forensic Science Department for chemical analysis.
(xi) Thereafter, on the request of the investigating officer, identification parade was conducted and PW.3 was taken to identify A.1. The summons issued to PW.3 to attend for the Identification Parade was marked as Ex.P.21.
(xii) On completion of the investigation, the investigating officer filed a final report. The case was committed to the Court of Sessions. Necessary charges were framed against the accused.
3. In order to substantiate the charges levelled against the accused, the prosecution examined 17 witnesses and relied on 34 Exhibits and 18 MOs. On completion of the evidence on the side of the prosecution, when the accused were questioned under Section 313 Cr.P.C. on the incriminating circumstances found in the evidence of the prosecution witnesses, they denied them as false. Neither defence witness was examined nor document was marked on the side of the defence. The trial Court after hearing the arguments advanced by either side and on considering the materials available on record, took the view that the prosecution has proved its case beyond reasonable doubts insofar as A.1 and found A.1 guilty as per the charges and awarded punishment as referred to above. A.2 was acquitted of all the charges.
4. Advancing the arguments on behalf of the accused/appellant, the learned counsel appearing for the appellant would submit as follows:-
(i) The gist of the prosecution case is that on the date of occurrence on 30.10.2009 when the deceased Thangaraj was proceeding by his TVS Excel Super MO.1, A.1 and A.2 attacked him and robbed MO.9 Gold Ring and leaving the dead body, they left the place of occurrence. In order to substantiate the charges, the prosecution had no direct evidence to offer. It relied on the circumstantial evidence and the only circumstantial evidence relied on by the prosecution was the evidence of PW.3. According to PW.3, at 5.00 p.m., on the date of occurrence, when he was coming in the Narayanapuram - Pudur road, he saw the accused opposite to a passage near Deepak Gas Company Godown. It is true he was taken to identify the accused but he has categorically deposed that he had not actually made any such statement to the police. Thus, it would clearly indicate that he was a procured witness to speak the false.
(ii) The next circumstance relied on by the prosecution was bloodstained shirt MO.11 recovered from A.1. It was actually analysed but no human blood was found and that was also not useful for the prosecution.
(iii) The recovery of MO.9 was also identified that it belonged to the deceased but it is pertinent to point out that PW.8 has categorically deposed that the said ring was pledged with him by one Prakash and not from either of the accused and he added, he did not know any one of the accused and he did not know that the said Prakash was the friend of either of the accused. It is was so informed by the police before giving evidence that Prakash was a friend of the accused. Hence, the recovery of MO.9 Gold Ring from PW.8 would in no way connect the accused with the crime.
(iv) Insofar as the recovery of MO.10 is concerned, PW.9 was examined to the effect that it actually belonged to him and sold to A.1. He has categorically deposed that he did not know him and the vehicle did not belong to him. Thus, this evidence was also not useful for the prosecution.
(v) In the instant case, it cannot be stated that the prosecution had brought the accused guilt of the offence and the trial Judge, on the very same evidence acquitted A.2 and hence, A.1 is entitled for acquittal in the hands of this Court.
5. 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.
6. It is not in controversy that one dead body of Thangaraj, father of PW.1 was found in the place of occurrence; following the inquest made by the Investigating Officer, the dead body was subjected to post-mortem and the Doctor PW.11 has categorically witnessed before the Court through the contents of the Post-Mortem Certificate that the deceased died out of homicidal violence. This fact was never disputed either before the Trial Court or before this Court.
7. It is true, the prosecution has succeeded in proving the fact that Thangaraj was actually done to death by homicidal violence and also MO.9 Gold Ring was robbed from him. In order to substantiate the charges levelled against the appellant/accused, the prosecution did not have direct evidence but it relied upon the circumstantial evidence.
8. It is well settled principle of law in a given case where, the prosecution rested its case exclusively on the circumstances, the prosecution must be able to show that all the circumstances constitute a chain without a snap and pointing to the hypothesis that except the accused no one could have committed the offence. After applying the said test of principle of law, if it inspires the confidence of the Court, the Court can sustain conviction.
9. In the instant case, the first circumstance relied on by the prosecution is the evidence of PW.3. According to him, he had seen the accused on 30.10.2007 at about 5.00 p.m., at a passage situated opposite to Deepak Gas Company Godown but at the time of cross-examination, he categorically denied the fact that he gave any such statement to the police. Under the circumstances, the evidence of PW.3 becomes highly doubtful. It is true he has identified A.1 at the time of identification parade but it is pertinent to point out that when once he has not even given any such statement before the investigating officer at the time of investigation, then there is no question of relying on the evidence of PW.3 would arose.
10. Insofar as MO.9 Gold Ring recovery is concerned, it was identified by PW.1 before the Court that it belonged to Thangaraj but the prosecution must be able to show the nexus of the recovery likely along with the accused in question. But, according to the prosecution, A.1 identified PW.8 from whom, MO.9 Gold Ring was recovered and it was pledged with him by one Prakash. He did not know that he was the friend of either of the accused. It is was so informed by the police before giving evidence that Prakash was a friend of the accused. Under the circumstances, at no stretch of imagination, the evidence of PW.8 could be relied on for the purpose of prosecution case.
11. Added further, the bloodstained shirt MO.11 alleged to have been worn by the accused at the time of occurrence was recovered from him and it was actually sent for analysis but it did not contain human blood. Thus, this part of evidence is also not useful for the prosecution.
12. The other circumstance is the recovery of MO.10 Yamaha Bike, which was parked at the Rajaji Government Hospital, Madurai which according to the prosecution, it was the vehicle used by either of the accused at the time of occurrence but in order to substantiate that it belonged to the accused, PW.9 was examined. It was the prosecution case that it was actually purchased from PW.9 but PW.9 has thoroughly denied that the vehicle belonged to him. Under the circumstances, this evidence is not available to the prosecution.
13. Under the circumstances, the prosecution has miserably failed to prove the nexus of the crime with the accused. The trial Judge has taken an erroneous decision and the judgment of the trial Court cannot be sustained in finding the accused/appellant guilt of the offence with the above lacunae or infirmity. It would be quite unsafe to sustain the conviction of the accused/appellant.
14. Hence, the judgment of the trial Court insofar as the appellant/A.1 is concerned, it has got to be undone by upsetting the same and accordingly, it is done. The appellant is acquitted of all the charges levelled against him. He is directed to be set at liberty forthwith unless his presence is required in connection with any other case. If the fine amount imposed by the trial Court was already paid by the appellant, the same shall be refunded to him. Accordingly, the Criminal Appeal is allowed.
asvm To
1.The Principal Sessions Court, Virudhunagar District at Srivilliputhur.
2.The Inspector of Police, Sivakasi East Police Station, Sivakasi.
3.The Additional Public Prosecutor, Madurai Bench of Madras High court, Madurai.