Madras High Court
Pachaimuthu vs State Rep. By Inspector Of Police on 13 November, 2003
Author: P. Sathasivam
Bench: P. Sathasivam
JUDGMENT M. Thanikachalam, J.
1. The appellant/accused was tried by the learned Sessions Judge, Salem for the offence under Section 302 I.P.C., which revealed the fact that he was the cause for the death of one Ravi @ Ravichandran. The learned trial Judge concluding that the accused had committed an offence under Section 302 I.P.C, convicted and sentenced him, to undergo life imprisonment, which is challenged in this appeal.
2. The facts leading to the conviction, in brief:-
The deceased by name, Ravi @ Ravi Chandran was working as a lorry driver, in which Syed Kader (P.W.2) was working as a cleaner. On 28.4.1992, the deceased and P.W.2 had been to Perumpallam, in order to load sugarcane. On the way, the accused also got into the lorry and accompanied by him, all the three went to the house of the deceased, where they have met his father by name Ramasamy (P.W.4.). After taking meals, they went to Perumpallam and parked the lorry near Kandasamy Kounder Sugarcane Field, abutting the Bavani to Mettur Main Road. The cleaner of the lorry (P.W.2) because of tiredness, took bed in the lorry itself and slept. The deceased and the accused took rest on the eastern side of the road and using M.O.1 as bed, the deceased was sleeping. At that time, Thiru Arjunan (P.W.1), who is a sugarcane cutter, came there, noticed all the above said three, who were waiting to load sugarcane. After sometime, P.W.1 had been to Ponni Sugar Mill where some receipts were handed over to him, to be entrusted to the lorry driver Ravi @ Ravi Chandran. On return, P.W.1 went to the place, where the driver and the accused were taking rest and informed about the receipts, for which the deceased requested him to leave the receipts in the lorry. Acceding to the request, it seems P.W.1 placed the receipts in the lorry cabin. At that time also, he had noticed the deceased as well as the accused, nearby, together.
Tmt. Palaniammal (P.W.3) had seen the accused, cleaner and the lorry driver while chatting. Later on, when she had gone to fetch water, she noticed the body of the driver near the road. On her information, people gathered including P.W.1. P.W.1, coming to the scene of crime had noticed, an injury over the neck of the driver, as well as a beer bottle near him (M.O.2). But, he has not noticed another person, whom he had seen already viz., the accused. After informing this incident, P.W.1 preferred Ex.P.1 complaint, with P.W.9, the Sub Inspector of Police, Erode Taluk Police Station, at about 9.00 a.m., who in turn registered a case in Cr. No. 125/95 under Section 302 I.P.C. for which he submitted the printed F.I.R., Ex.P.14. On information, the Inspector of Police (P.W.10), took the case for investigation, reached the scene of crime on 29.4.2002 at 6.00 a.m. In the presence of P.W.5 and another witness, he prepared Ex.P.2, mahazar as well as a sketch-Ex.P.15. On the body of the Ravi @ Ravi Chandran, in the presence of panchayatdar, P.W.10 conducted an inquest, for which he prepared Ex.P.16. Thereafter, the body of the deceased was sent for autopsy, through police constable, with requisition.
On the request of the Inspector of Police, under Ex.P.8 on 29.4.1992 at about 3.00 p.m., Dr. P. Ramamurthy (P.W.6) conducted autopsy over the body of the deceased, on identification by the police. He had noticed only one external injury viz., an oval shape injury measuring 7 X 4 cm on the right side of the lower part of neck, exposing muscles. By further probing, he noticed the wound that leads behind the right sterno cavicular joint into the arch of aorta. On the basis of the postmortem, the doctor opined that the deceased appeared to have died of shock and hemorrhage, due to the injury to the vital vestel-aorta, 22-26 hours prior to autopsy.
The accused realising the folly committed by him, appears to have surrendered before the Village Administrative Officer (P.W.5), on 5.5.92 at about 10.00 a.m. By surrendering, the accused also confessed about his guilty, by giving a confession, as well as disclosing the whereabouts of the weapon, used for murdering the accused. The dutiful Village Administrative Officer, promptly took the accused and handed over him to the Sub Inspector of Police, (P.W.9) along with the confession statement (Ex.P4) as well as a special report (Ex.P.5). The Sub Inspector of Police examined the accused in the presence of the witnesses. The accused gave a confession, voluntarily, and in pursuance of the confession, M.O.11 was recovered under the cover of mahazar P.W.7. In addition, he has also handed over his pant (M.O.9) and shirt (M.O.10), which were recovered under the cover of Mahazar Ex.P.6. The investigation was further conducted by the Inspector of Police, P.W.10, who had examined the witnesses and recorded their statements, then and there. After P.W.10, another Sub Inspector of Police, who was examined as P.W.11 took the case for further investigation and sent some of the material objects, for chemical analysis through court. The investigation revealed, that the accused alone should have committed the murder of Ravi @ Ravi Chandran and therefore, a final report was filed, then directing the accused to face the trial under Section 302 I.P.C. before the Principal District and Sessions Judge, Salem.
The learned Principal District and Sessions Judge following the mandate of Cr.P.C. tried the accused, for the offences under Section 302 I.P.C.
The prosecution, in order to buttress the charge and to make out a case, beyond all reasonable doubt, as required under law, marched in 11 witnesses, seeking aid from 16 documents, as well as further strength from 13 material objects. Scanning of the above materials and its assessment coupled with the law, as per the appreciation of the evidence by the learned Sessions Judge, brought to surface, the guilt of the accused under Section 302, culminating a conviction under Section 302 I.P.C. directing the accused to under go life imprisonment.
The learned trial Judge, though there was no eyewitness to prove the guilt of the accused, based his conviction purely on the circumstantial evidence, which may not have the tendency, to divert the real fact generally. It is the conclusion of the trial Judge, that the accused and the deceased were seen together lastly, before the murder of the deceased and thereafter, the accused absconded. The second circumstance relied on by the learned Sessions Judge is, the absconding of the accused for one week from the date of incident. The third circumstance, relied on by the learned trial Judge is the recovery of M.O.11, on the basis of the confession given by the accused, though he disbelieved the extra judicial confession said to have been given by the accused, before the Village Administrative Officer (P.W.5). The 4th circumstance prompted the learned trial Judge to base his conviction is that in the dress worn by the accused, which was handed over by him, contained 'A' Group blood as that of the deceased for which, there is no explanation by the accused. On the above said circumstances, the learned Principal District and Sessions Judge, ignoring the lapses committed by the investigating officer, though severely commented upon, slapped the conviction as aforementioned, which is sought to be assailed before us, in this criminal appeal.
3. Heard the learned senior counsel for the appellant, Mr. Gopinath and the learned Additional Public Prosecutor.
4. The learned counsel for the appellant submits, that the conclusion of the trial Court, that the deceased and the accused were seen together before the death of Ravi @ Ravichandran, is not supported by any acceptable legal evidence and therefore, the conviction on the basis of 'last seen' theory must go. It is the further contention of the learned counsel for the appellant, that the trial Court has rightly rejected the extra judicial confession (Ex.P.4) said to have been given by the accused to the Village Administrative Officer, which should follow, the Lower Court ought to have disbelieved the further confession, said to have been recorded by P.W.9, leading to the alleged recovery of M.O.11, since the base for this confession statement is Ex.P.4. Therefore, according to him, when Exs.P.4 and P.5 were not believed, question of believing the confession said to have been given by the accused is legally unsound, which should follow, the recovery of M.O.11. must fall to the ground. The learned counsel for the appellant further points out that the trial Court has rightly condemned the conduct of the police officer, in conducting the investigation, as well as noticed so many lapses and on that basis, instead of giving the benefit of doubt to the accused, committed an error, in convicting the accused, which should be erased by this Court.
5. Generally, if a crime, such as murder, is to be committed, there must be some motive. Here no motive was projected effectively, and established. On this basis, the learned counsel for the appellant further submits, that the alleged involvement of the accused, in murdering the deceased must be the fertile imagination of the investigating officer, since they were unable to fix the real culprit. On the above grounds, further pointing out some other defects also in the investigation, the earnest submission made by the learned counsel was, that the accused is entitled to the benefits of doubt, since as per the settled law, conviction could not be inflicted or sustained on the basis of the doubtful and unsafe evidence.
6. Per contra, the learned Additional Public Prosecutor would contend that the entire circumstances established, by letting in acceptable and satisfactory evidence, would lead to the only conclusion that the accused might have committed the murder and in this view, he supported the reasoning and conviction by the trial Court.
7. We have considered, elaborately the rival contentions of the parties, supported by oral as well as documentary evidence.
8. The contention of the learned counsel for the appellant, that the last seen theory viz, the accused and the deceased were seen together must be false, appears to be correct, since we are unable to note any trustworthy evidence in this regard. P.W.4 is the father of the deceased and therefore, he has every reason to implicate the accused, for the reasons best known to him, which is not disclosed. We are not to say, that the interested witness or evidence given by the relative should be viewed, always doubtful or they are not worthy of credence and acceptance. If the interested testimony is natural, fitting with probability and the human conduct supported by circumstances, it deserves worthy of credence, and there could not be any doubt. P.W.4, as pointed out by the learned counsel for the appellant, has deposed that on the date of the incident, his son came to his house, along with the accused at about 8 or 9 a.m. It is the further case of P.W.4 that after taking coffee, then meals also, both left. If this case is to be accepted, then it must have corroboration. The competent witness, who could speak about the presence of the accused, as well as the act of the accused, in committing the murder of the driver, must be the cleaner.
9. P.W.2 would state, that when they were proceeding to load sugarcane on 28.4.92, the accused get into the lorry at about 6.00 a.m. and on the way, he was dropped to go to his house when the driver went to his house, and while the driver was returning at about 10.00 or 10.30 p.m, he joined them and went to Perumpallam. Though he was present from the morning till the death of driver, it is an admitted fact, he has not seen the incident. For not witnessing the incident, the reason given is that he went on sleep. It seems, when P.W.2 was examined by the police, he has given the statement, as if he and the lorry driver reached Perumpallam at about 8.00 a.m., though he denied the same, at the time of the cross examination. The investigating officer P.W.29, would admit that P.W.2 has given statement to him, that they have reached Perumpallam at about 8.00 a.m. and thereafter, he took rest. It is not the case of P.W.2, that this statement was given to the investigating officer, by slip of the tongue and no explanation was also offered. There is no reason for the investigating officer, to record even at the preliminary stage, after examining P.W.2, that they went to the spot or the scene of crime at about 8.00 a.m. The position being so, it is highly impossible and improbable to believe the oral evidence of P.W.4, who has stated that he has seen the accused, with his son viz., the deceased, in his house at about 8.00 or 9.00 a.m. In this view, the oral evidence of P.Ws.1 and 4 are mutually contradictory, thereby loosing the credence or its worthy acceptance. Therefore, as rightly urged by the learned counsel for the accused/appellant, we are also constrained, to eschew this evidence, which should follow, the "last seen theory" sought to be proved by the examination of P.W.2 and P.W.4 must go.
10. The learned Additional Public Prosecutor very much relied upon the oral evidence of P.W.1, to prove that he had seen the accused along with the deceased, lastly and thereafter, the accused has not seen on the spot. In order to fix a person as an accused, he should be identified. Unless an identification is fixed and made out, branding a particular person as culprit may not be possible. It is not the case of the prosecution, or it is not the evidence of P.W.1 that the accused was, very well known to him or P.W.2 or P.W.4. Therefore, in the ordinary course of investigation, the investigating officer ought to have taken steps to conduct the test identification parade, which is not done in this case. True, as observed by the trial Court, if the witness had seen the accused during day light and was capable of identifying and reproducing the said identification, when he was called to identify, then we can even ignore the non conducting of the T.I. parade. In this case, such eventualities are not available. Therefore, accepting the case of P.W.1, that he had seen the accused, along with the deceased at the scene of crime is beyond our comprehension and a doubt had arisen in our mind, automatically whether P.W.1 could have seen the accused, at the scene of crime or on the fateful day i.e. 28.4.1992.
11. The learned counsel for the appellant took us to the entire evidence of P.W.1. P.W.1 is a coolie working in the sugarcane field. In order to show that P.W.1, would have seen the accused and the deceased together, a story is projected as if P.W.1 went to the driver, in order to hand over certain receipts, which he got from Ponni Sugar factory. It is the further case of the prosecution, that at the request of the driver, the receipts were entrusted to the cleaner or placed in the cabin. P.W.2 cleaner had not spoken about the presence of P.W.1. P.W.1 would state, that he had seen Ravi and another boy aged about 20. Here also, he had not given the identification of the accused. As seen from the entire examination up to reexamination, P.W.1 had not identified the accused, as the person, whom he had seen on 28.4.1992 at the scene of occurrence along with the deceased. The prosecution woke up later on, and noticed that P.W1 had failed to identify the accused and therefore, when a question was put to P.W.1, during the reexamination then alone, he identified the accused, as the person, whom he had seen, along with Ravi. If really, he had seen the accused, along with Ravi, nothing would have prevented him from pointing out the accused, that he had seen the accused along with Ravi. But the evidence reads, that he has seen Ravi and another boy, not indicating or implicating the accused. The clear absence of evidence during the examination in chief as well as specific non mention in Ex.P.1 prompt us unhesitatingly, to conclude that he would not have seen the accused, along with Ravi on the fateful day. Further, admittedly no test identification also was conducted, to identify the accused, since the admitted position being, as seen from the cross examination, P.W.1 had not seen the accused or acquainted with the accused before the incident.
12. Tmt. Palaniammal, who had first noticed about the death of Ravi @ Ravichandran also admits that she had seen the accused only on the date of the incident and before that she had not seen anywhere. She had further spoken that the driver (deceased), cleaner (P.w.2) and the accused were chatting at about 1.00 p.m. It is not the case of P.W.2 or P.W.1 as the case may be, that these three were together, in the sense, talking to each other, whereas it is the specific case of the prosecution that P.W.2 took rest in the cabin itself allowing the deceased and the accused to go to other side for taking rest. Therefore, the case spoken by P.W.3 as if she had seen the accused, appears to be fertile imagination, which has no base for its acceptance.
13. It is also an admitted fact that P.W.4 did not know even the name of the accused, and even as per the case of the prosecution, he had seen only on that day at about 8 or 9 a.m., which could not be a truth, as aforementioned by us. In this view, the oral evidence of P.Ws.1 to 4 as far as the story of the prosecution, that the deceased and the accused were seen together, vanishes and on this ground, sustaining the conviction, as did by the trial Court, in our opinion is clearly not possible.
14. In a case of circumstantial evidence, motive generally should take predominant role. For each and every action, there must be cause of action or reaction. That is the natural theory. Therefore, unless the accused had any animosity or enmity against the deceased, it is unthinkable, that he should have committed the murder. The prosecution has not projected any motive, or even attempted to say any motive at the time of the trial, through the witnesses. As pointed out by the learned Sessions Judge, it seems, in the extra judicial confession said to have been given by the accused, which is inadmissible, he had some motive. If really the case had been investigated, as it requires to be investigated, then the investigating agency ought to have brought to surface the motive, whether it relates to a woman or not, but failed to do so. Therefore, in the absence of motive, which should be one of the strongest circumstances, in these kind of cases, is conspicuously absent, thereby the prosecution case is further weakened in our considered view.
15. The strongest circumstance, according to the learned Additional Public Prosecutor, is that the blood group of the deceased was noticed in the dresses worn by the accused, which were recovered in pursuance of the confession and at the instance of the accused. Those dresses were exhibited as Exs.P.9 and P.10. The trial Court has not accepted or acted upon the extra judicial confession rightly, in our view also. Therefore, subsequent recovery made by the investigating officer, on the basis of that confession must fall to the ground. Even assuming that the blood group of the accused was detected in M.Os.9 & 10, in order to link the accused with incident, it should be shown that these dresses belong to the accused and that he was wearing those shirt and pant, at the time of the incident. None of the witnesses, those who had seen the accused before the incident, according to the prosecution, has murmured about the dress, informing the Court that M.Os.9 & 10 are the dresses, worn by the accused at the time of the incident. Unless the dresses are identified, as that of the accused, assuming that the dresses contained blood stain having the group of the deceased, would not lead us to an automatic conclusion, as incorrectly did by the trial Court that the accused must be the cause for the death of the deceased or he was wearing these dresses and that is why, the blood of the deceased stained in M.Os. 9 & 10. Not even an attempt was made before the trial Court, to prove that the accused was wearing M.Os.9 & 10, at the time of the incident, by showing them to the witnesses to identify. Therefore, if we base our conclusion on the basis of the blood said to have been found in the dresses of the accused, as that of the deceased, we would be rendering a conclusion, which is based on surmises and conjectures, not permissible under law. We restrain ourselves to do so. In this view, the finding of the lower court, as well as the submission made by the learned Additional Public Prosecutor deserves only rejection and not acceptance.
16. The learned trial Judge in paragraph-16 of the judgment had observed, that the weapon recovered in pursuance of the confession, does contain blood, that too of the group of the deceased and therefore, this is a strongest circumstance. It is unfortunate on the part of the learned trial judge, to observe so, against the fact, thereby showing his ignorance or carelessness, in not studying the papers properly. As seen from Ex.P.13, as per the report of the scientific assistant, no blood was detected in the knife and the reason is disintegrated. It is not the case of the expert that human blood was detected in the knife, whereas they are unable to group the same, because of the disintegration. The position being so, as established, there could be no chance to say that M.O.11 might have been used for causing the fatal injury to the deceased, that too, by the accused. Thus, this circumstance also clouded undoubtedly, and it failed to throw upon much light, exposing the accused, as the real culprit.
17. The incident had taken place on 28.4.1992 at about 1.30 or 2.00 p.m., as the case may be. According to the prosecution, the accused surrendered on 5.5.92 at about 10.00 a.m. before the Village Administrative Officer, P.W.5. Thus, according to the prosecution, the accused evaded the net of the police, from 28.4.1992 till 5.5.92, which should be described as absconding and the absconding must be due to the fact, that the accused alone had committed the murder. It is not the case of the investigating officers, as seen from their testimony, that they have searched the accused, unable to find his location or some of the witnesses who have seen, have stated that the accused is absconding, etc. This would show, that there was complete inaction on the part of the investigating agency, to fix the accused, since the investigating officers were unable to fix the accused and that is why they are unable to apprehend him also. The inaction on the part of the prosecution, to apprehend the accused, could not be described as the accused absconding, in the absence of evidence for the same. The theory of surrender on 5.5.92 is a myth, invented by the investigating officer and at no point of time, it seems, the accused was absconding and on this ground also, this circumstance would not manure the case of the prosecution.
18. Under Ex.P.14 on 28.4.92, a case was registered in Cr. No. 125/92 for the offence under Section 302 I.P.C. Immediately investigation also commenced. But, curiously in order to fix the accused, the police have thought of extra judicial confession, for the same, the village administrative officer was an obliging person. It is said on 5.5.92, the accused surrendered before P.W.5, and narrated the incident, which was reduced into writing as extra judicial confession i.e. Ex.P.4. It is not the case of the village administrative officer, that he did not know about the crime and its investigation. He knew that investigation had already commenced on 29.4.92, since it is his evidence that the Inspector, inspected the scene of crime and recovered M.Os.3, 4, 6 & 7 under the cover of Ex.P.3. The Village administrative officer must know, what is his power under the village administrative manual. Rule 72 of the Criminal Rules of Practice prohibits the village magistrates (village administrative officer) from reducing or writing any confession or statement, whatever made by an accused person after the police investigation has begun. Therefore, we are constrained to observe, that this village administrative officer exceeded his jurisdiction, probably to aid the investigating agency, who have failed in their duty to perform the same to the perfection, as required or as expected. In this view, the extra judicial confession has no base and it cannot be the ground for conviction.
19. Fortunately, the trial Court has not placed its decision, exactly on the extra judicial confession, but unfortunately relied upon the subsequent documents, which have come into existence, only on the basis of the extra judicial confession. The trial Court has observed in its judgment, in paragraph 13, that the police after arresting the accused with some ulterior motive obtained the statement from the accused and got the signature of P.W.8. The trial judge further concludes, that the accused was arrested on 5.5.92 and not prior to 5.5.92. It is the case of P.W.9 one of the investigating officers, that P.W.5 handed over the accused along with Exs.P.4 and P.5 and therefore, he examined the accused, who, on confession not only handed over M.O.1, but also handed over M.Os.9 and 10, which were recovered respectively, under Ex.P7 and P6. As per the conclusion of the trial Court, Ex.P.4, extra judicial confession was recorded by the police or it came into existence after the investigation has begun. Therefore, any statement given to the police is inadmissible, in evidence and hit by Section 162 of Cr.P.C. The statement said to have been recorded by the village administrative officer, would not come within the meaning of proviso or sub clause (2) of 162 Cr.P.C. where admissibility is contemplated under certain circumstances. The settled position of law being so, it is highly unbelievable, that P.W.9 would have recovered M.O.9 to M.O.11 on the basis of the confession said to have been given by the accused. In our considered opinion, these are all documents, created for the purpose of this case with the help of an obliging village administrative officer, and the same could not be accepted by this court. As aforementioned, it is not proved that M.Os.9 and 10 belonged to the accused and by the oral evidence of P.W.9 also, it is not proved, that they were recovered on the basis of the confession given by the accused. In this view also, the alleged blood contained in the dresses, will not have adhesive nature to fix the accused.
20. Admittedly, the incident had taken place, adjacent to the Mettur-Bhavani Main Road on the eastern side at 1.30 p.m. or so. Ex.P.5 sketch and other evidence on record would show that there are number of residential houses at a distance of 50 ft, 150 ft, etc. The position being so, if the incident had occurred, as narrated in the final report, somebody might have witnessed the incident. The police by their laches and slackness unable to fix the eyewitness and fall back upon the circumstantial evidence, which is also not established, by cogent evidence, without any snap, in the chain of events.
21. The last seen theory could be well made applicable, if the deceased and the accused were seen together, in a closed room or in a closed house, or fenced area, where others had no entry or in other words others' entry was prohibited, or ruled out. Then only, unhesitatingly last seen theory could be made applicable, on the presumption that both were seen together alive at some point of time and later on one is dead and another is absconding, and under that circumstances, absconding person might have committed the crime. This kind of situation or materials are not available in this case. There are very many possibilities, for the access of others also to the scene of crime. No one could have committed this crime, except the accused, is also not ruled out. As aforementioned, the accused and the deceased were seen together, after the death of the deceased, the accused absconded, also not proved to our satisfaction. Therefore, on the presumption, since the accused alone was with the deceased lastly, convicting this accused, as did by the trial Court, in our considered opinion, is beyond our comprehension. The apex Court of this land, repeatedly held that if a conviction is to be sustained, there should be no loose end and every event or circumstance should be linked together without giving any crack and if the chain of circumstance is snapped, at one point, then convicting the accused is unsafe, and the benefit of doubt should be given to him. All the circumstances relied on by the prosecution are proved to be unworthy of credence, and the reasons assigned by the trial Court for convicting the accused also not based on sound judicial reasoning. As rightly pointed out by the trial court, the investigation is shabby, bereft of particulars and there are number of loopholes requiring cementing. The admitted position being so, many doubt had arisen automatically, in our minds about the involvement of the accused, for which, we are unable to find out any answer, because of the materially inconsistent, evidence available on record, having mutual contradictions, omissions, etc. For the foregoing reasons, we conclude that the prosecution has miserably failed, to prove the guilt of the accused, by adducing satisfactory evidence and giving the benefits of doubt, we conclude further that the offence is not made out. Appeal is allowed and the accused is acquitted. The conviction and sentence imposed by the trial Court for the offence under Section 302 I.P.C. in S.C. No. 160/95 are set aside. The bail bond, if any, executed by the accused/appellant shall stand cancelled.