Madras High Court
Aruldass @ Arumugam vs The State on 27 November, 2013
Author: V.Dhanapalan
Bench: V.Dhanapalan, R.Karuppiah
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27.11.2013 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN AND THE HONOURABLE MR.JUSTICE R.KARUPPIAH Criminal Appeal (MD) No.73 of 2012 Aruldass @ Arumugam ... Appellant/A.2 Vs The State represented by The Inspector of Police, Karur Town Police Station, Karur District. (Cr.No.3217 of 2008) ... Respondent/Complainant Criminal Appeal under Section 374 of the Code of Criminal Procedure, to set aside the judgment and conviction rendered in S.C.No.54 of 2011, dated 16.03.2012 by the learned Sessions Judge, Karur. !For Appellant ... Mr.T.Lajapathi Roy ^For Respondent ... Mr.K.S.Duraipandian Additional Public Prosecutor * * * * * :JUDGMENT
(Judgment of the Court was delivered by V.DHANAPALAN,J.) The appellant/A.2 in this Criminal Appeal stands convicted in S.C.No.54 of 2011 on the file of the learned Sessions Judge, Karur, for the offences punishable under Section 302 read with Section 34 and Section 404 I.P.C., and sentenced to undergo imprisonment for life for the offence under Section 302 read with Section 34 I.P.C. and to pay a fine of Rs.500/- in default to undergo one month rigorous imprisonment; to undergo one year rigorous imprisonment for the offence under Section 404 I.P.C., and to pay a fine of Rs.500/- in default to undergo one month rigorous imprisonment. The trial Court ordered the sentences to run concurrently. Therefore, the appellant is before this Court questioning his conviction imposed by the trial Court.
2. The case of the prosecution is as follows:
The accused 1 to 3 are friends and the first accused was engaged in the work of painting the house of one Kumar and the deceased lived nearby the house of the said Kumar. The first accused - Gnanasekaran alias Sekar had developed illicit intimacy with the deceased Yasodha and informed her that he was unmarried, though he got married and had children. In view of the same, the deceased Yasodha insisted upon him to live with her and if not, she would commit suicide by consuming poison. Since the deceased could not meet the first accused for two days, she had cut her hands. Therefore, the first accused decided to murder the deceased Yasodha, for which the second and third accused also agreed. As such, on 02.10.2008, the first accused asked the deceased Yasodha to wait at a flower shop near Karur Bus Stand and accordingly, she waited therein. The first accused had taken her in a Bajaj two wheeler belonged to one Suresh, bearing Registration No.TN-43-B-1603, to K.Paramathi and on that day, at 05.00 p.m., the first accused had taken the deceased Yasodha to the back of Maragatheeswarar hill temple at Pavalamalai, Molapalayam. At that time, the second and third accused already came there as requested by the first accused. At the scene of occurrence, the first accused had sexual intercourse with her. The second and third accused had come to that place in a motorcycle bearing Registration No.TN-47-A-3850, (Hero Honda) belonging to the first accused's elder brother Dhanasekaran - P.W.4 and the first accused requested the deceased Yasodha to have sexual intercourse with the second and third accused. The deceased Yasodha refused for the same. Therefore, the third accused held the hands of the deceased Yasodha and the first and second accused with an intention to kill her by using a nylon rope, throttled the neck of the deceased Yasodha by pulling the other two ends and thus, the accused 1 to 3 had committed the offences as stated above.
3. P.W.1 is the husband of the deceased Yasodha. In his evidence, he deposed that on 02.10.2008, around 12.00 hours, his wife left the house to purchase the jewels. She informed P.W.1 that she would come back by the evening, but she did not return. Therefore, he contacted his wife through her cell phone and found that it was switched off. After contacting his relatives and also searching for his wife, he lodged a complaint for the missing of his wife with Karur Town Police Station. While so, he mentioned about two persons on whom he developed suspicion. He came to know about the woman body lying in a decomposed stage near Paramathi in a hill, after 14 or 15 days from the date of missing of his wife. Thereafter, he went to Paramthi Police Station, wherein he was informed about the burial of the body since it was in a decomposed stage. He also identified the dresses belonged to the wife and his wife's cell phone and other jewels in the police station.
4. P.W.2 is the daughter of P.W.1. In her evidence, she has stated that her father - P.W.1 had informed her about the missing of her mother. On coming to know about the same, she came to her father's house from Mumbai on 12.10.2008. Since they could not search for her mother, she along with her father went to the police station and lodged a complaint on 19.10.2008 with Karur Police Station. She also got a newspaper report about the availability of a decomposed body of a lady. P.W.2 along with P.W.1 went to Karur Police Station, wherein they were directed to go to Paramathi Police Station and she was enquired there and further, she identified the dresses belonged to her mother and the belongings of her mother.
5. P.W.4 in his evidence, would depose that the police had seized his Hero Honda motorcycle bearing Registration No.TN-47-A-3850 in the month of October 2008 from his house.
6. P.W.5, the Village Administrative Officer, in his evidence, would depose that on 28.10.2008, the police came to the village and effected arrest of all the three accused around 12.00 noon. The first accused gave a confessional statement and the same was recorded by the Inspector of Police, in which he and his assistant put their signatures. Further, the first accused informed about the pledging of the jewels belonged to the deceased. On the basis of the confessional statement of the first accused, the receipt pertaining to the pledging of the jewels and 4 1/2 feet length parrot green nylon rope were recovered. Later, on the information given by the accused, the police also recovered a red colour Bajaj motorcycle from the house of one Suresh and another red colour Hero Honda motorcycle from the house of Dhanasekar, under a mahazar. P.W.5 and his assistant also signed in the said recovery mahazar.
7. P.W.6 is the Branch Manager of Manappuram Finance at Karur Branch. In his evidence, he would depose that on 03.10.2008, the second accused came to Manappuram Finance Company and pledged a gold chain and a gold ear stud, on producing the xerox copy of the ration card and after receiving the jewels, a sum of Rs.8,700/- (Rupees Eight Thousand and Seven Hundred only) was paid to the second accused and a pledged receipt was issued tothe second accused. The police recovered the jewels at Manappuram Finance on 28.10.2008, under a mahazar.
8. P.W.13 is the Doctor who conducted the post-mortem on the body of the deceased. In her evidence, she would depose that on 17.10.2008, on receiving a requisition from the Sub Inspector of Police, K.Paramathi Police Station, she went to the hill and found a woman dead body which was in a highly decomposed stage with muscles found on the parts of the bones. She found that a part of the liver and the part of the intestine and that the skull was found broken. She recovered the bones, liver and part of the intestine and sent the same for forensic examination. Further, she sent the skull to the Regional Forensic Laboratory at Trichy for examination. She received the report from the Anthropology Department in the Office of the Director of Forensic Sciences Laboratory, which would suggest that the deceased was a lady. However, she did not give the reason for the death and also about the time of death, since the body was in a highly decomposed stage.
9. P.W.17, the Sub Inspector of Police, Paramathi Police Station, in his evidence, would depose that on 17.10.2008, after receiving the copy of the F.I.R, he went to the place where the body was found and prepared the Observation Mahazar - Ex.P.11 and the Rough Sketch - Ex.P.23 and thereafter, conducted the inquest on the body of the deceased in the presence of Panchayatdars and prepared the Inquest Report - Ex.P.24. Subsequently, he gave a requisition to the Government Hospital, Karur, to conduct post-mortem on the body of the deceased and after post-mortem, he recovered the materials available on the body of the deceased. Since the body was in a decomposed condition, the body was buried. He enquired the witnesses and recorded their statements and thereafter, he handed over the file to the Inspector of Police.
10. P.W.19 - the Inspector of Police, on receipt of the F.I.R., has taken the case for investigation and on 21.10.2008, P.W.1 and his daughter and others came to the police station and they identified the articles recovered from the body of the deceased. P.W.1 identified the clothes worn by the deceased Yasodha. Thereafter, P.W.19 enquired them and recorded their statements. He also sent the skull bone, pelvic bone and thigh bones to the Forensic Laboratory for finding out the gender of the deceased. He further sent the articles recovered to the Judicial Magistrate Court No.2 under Form 95 and it was marked as Ex.P.26 and thereafter, he handed over the investigation to the Inspector of Police, K.Paramathi Police Station.
11. P.W.21 is the Investigating Officer and in his evidence, he would depose that he received the entire C.D. file in Cr.No.3217 of 2008 under Section 363 I.P.C and on 20.10.2008, he examined the witnesses namely, Chandran, Prabha and Venkatesh and recorded their statements and on the same day, he gave a requisition to Manger of Aircel, Karur, to ascertain the call details of the mobile phone used by the deceased Yasodha and on 22.10.2008, he examined the other two witnesses and recorded their statements also. Further, on 27.10.2008, he recorded the further statement of Chandran, and later, examined the witnesses, Pandian and Suresh. On examination of the witnesses, it would reveal that all the three accused had taken the deceased Yasodha to Maragatheeswarar hill temple for commission of murder of the deceased Yasodha and hence, he altered the sections of law into Sections 364, 302 and 379 I.P.C., on 27.10.2008 and sent alteration report to the Judicial Magistrate No.II, Karur and on 28.10.2008, at about 12.15 p.m, P.W.21 arrested all the three accused at Marudhaiveeran temple in Karaipalayam, Aravakurichi Taluk. At that time, the first accused gave a confessional statement in the presence of witnesses, by which, the information regarding the pledging of the jewels of the deceased Yasodha was given by the first accused, besides handing over the pledged receipt. The first accused took P.W.21 to Pavalamalai Kadu, from behind Maragatheeswarar hill temple and produced a 4 1/2 feet length parrot green colour nylon rope, which was seized under a cover of mahazar. On the basis of the pledged receipt, P.W.21 proceeded to Manappuram Finance and recovered the jewels belonged to the deceased Yasodha and P.W.1 also identified the same. That apart, it came to know that it was the second accused who pledged the said jewels. The jewels recovered were sent to the Court of Judicial Magistrate No.II, Karur, under Form No.95. During investigation, P.W.21 recovered the other material objects and also two motorcycles connected in this case and they were sent to the Court of Judicial Magistrate No.II, Karur.
12. Thereafter, the Inspector of Police, who took charge after P.W.21, examined the Doctor who conducted the post-mortem on the dead body of the deceased Yasodha and also received the post-mortem certificate. After completion of the investigation, he filed the charge sheet under Sections 364, 302 read with 34 and 404 I.P.C, on 31.07.2009.
13. To substantiate its case, the prosecution examined P.Ws.1 to 21; produced documentary evidence, viz., Exs.P.1 to 34 besides marking M.Os.1 to 15.
14. When the accused were questioned under Section 313 Cr.P.C as to the complicity of the offences, on the basis of the incriminating materials made available against them, they denied each and every circumstances put up against them as false and contrary to facts. Neither oral nor documentary evidence was brought before Court at the instance of the accused.
15. The trial Court, on a consideration of the oral and documentary evidence, has found the accused guilty for the offences punishable under Sections 302 read with Section 34 and Section 404 of the Indian Penal Code and imposed sentences as stated above. Against the conviction and sentence passed against the appellant/second accused, the present Criminal Appeal has been preferred.
16. Mr.T.Lajapathi Roy, learned Counsel for the appellant would mainly focus his arguments on three points, questioning the judgment of the trial Court as there is a conflict of circumstances in the absence of any eyewitness to the occurrence. Therefore, he would make a serious note on incriminating the appellant/second accused to the guilt by merely taking into consideration the recovery of M.O.4 - gold chain weighing 10 grams and M.O.5 - one gold ear stud weighing 1 gram. By placing mere reliance on the evidence of P.W.6 alone, he questioned the conviction on the point that mere recovery of the material objects will not give a clear position of linking circumstances connecting the accused to the guilt and incriminating him to the guilt of the accused in commission of the offence of murder. In support of his contention, he relied on the decision of this Court in Kanagaraj v. State reported in (2013) 1 MLJ (Crl) 497, wherein this Court held that the recovery of jewellery of the deceased form the possession of the accused, cannot be considered as incriminating evidence at all against the accused.
17. Secondly, the learned Counsel for the appellant put the entire medical evidence on test and drew our attention to Ex.P.15 - post-mortem certificate and pointed out that the Doctor opined that she was not able to say what could be the cause of death of the deceased. She also informed about her opinion and pointed out in the post-mortem certificate that a decomposed body lied on its back with arms closed its side. The injuries found would reveal that skull bone broken into pieces and temporal and half of parietal bone right side separated. Further, reserving the opinion of the chemical analysis, the Doctor would suggest that the deceased would appear to have died about more than 60 hours prior to autopsy when she first seen the body at 11.15 a.m., on 17.10.2008, when the occurrence is alleged to have taken place on 02.10.2008. Therefore, there is a clear contradiction of medical evidence.
18. Thirdly, it is the contention of the learned Counsel for the appellant that in the cross-examination, P.W.19 admitted that earlier, there was a complaint on 08.10.2008 and later on, the complaint given by the husband of the deceased Yasodha on 17.10.2008 was taken as the first information and proceeded further with the investigation. Therefore, the origin of the first complaint was taken on record and no F.I.R has been filed. This discrepancy would definitely give a clear doubt on the prosecution case.
19. Per contra, Mr.K.S.Duraipandian, learned Additional Public Prosecutor appearing for the State, in his submissions, would vehemently contend that the prosecution has clearly proved the guilt of the accused by making the charge and taking evidence both oral and documentary leading to link the circumstances in bringing the guilt for the commission of murder and connecting the accused with the same and therefore, the entire circumstances explained and proved by the prosecution, cannot be interfered with by this Court.
20. By pointing out the evidence of P.W.1, P.W.5, P.W.6 and also P.W.19, along with the evidence of post-mortem Doctor - P.W.13, the learned Additional Public prosecutor appearing for the State would argue that such a corroborative evidence would make it clear that the accused have had a common intention to commit the offence and thereby, they had done the deceased to death. The linking circumstances explained by the prosecution have been rightly considered by the trial Court on the exhibited evidence and thereby, coming to the conclusion of convicting and sentencing the accused 1 and 2 and letting out the third accused. Therefore, the finding of the trial Court on the clinching evidence both oral and documentary, has to be accepted by this Court.
21. We have heard the submissions of Mr.T.Lajapathi Roy, learned Counsel appearing for the appellant and Mr.K.S.Duraipandiyan, learned Additional Public Prosecutor appearing for the State and perused the entire records including the original records and examined the evidences carefully.
22. It could be seen that the charges framed against the accused are that the first accused had illegal intimacy with the deceased Yasodha and she compelled the first accused to marry her and otherwise, she would commit suicide. Therefore, the first accused had an intention to murder the deceased and accordingly, he had taken the deceased Yasodha in a two wheeler on 02.10.2008 to the backside of Molapalayam Maragatheeswara hill temple and by abducting her, the first accused had an intention to commit the offence and it is also charged that on the instigation of the first accused Gnanasekaran @ Sekar, the third accused held the hands of the deceased Yasodha and the accused 1 and 2 have strangulated the neck of the deceased with a nylon rope and thereby, caused the death of the deceased Yasodha.
23. The case of the prosecution was that the first accused had sexual intercourse with the deceased Yasodha and the first accused requested the deceased Yasodha to have a sexual intercourse with the accused 2 and 3, after taking her in a motorcycle belonging to the first accused's elder brother namely Dhanasekar, having Registration No.TN-47-A-3850 (Hero Honda) and thereby, with a common intention, the third accused held the hands of the deceased and the accused 1 and 2 with an intention to murder the deceased Yasodha by using a nylon rope, throttled the neck of the deceased Yasodha by pulling the other two ends of the rope and thus, caused the commission of the offences as stated supra.
24. The husband of the deceased was examined as P.W.1. In his evidence, he has stated that on 02.10.2008, around 12.00 hours, his wife left the house to purchase the jewels and she informed P.W.1 that she would come back by evening, but she did not return home. After searching for his wife, he lodged a complaint for missing of his wife with the Karur Town Police Station, having suspicion over two persons and after 14 or 15 days from the date of missing of his wife, P.W.1 came to know that a woman body was lying in a decomposed stage near a hill at Paramathi village. Since the body was found in a decomposed condition, the body was buried. He identified the belongings of his wife and her cell phone and other jewels in the police station.
25. P.W.2, the daughter of P.W.1, in her evidence, has stated that her father - P.W.1 had informed her about the missing of her mother and thereafter, she came to her father's house from Mumbai on 12.10.2008. As they could not search for her mother, she along with her father went to the police station and preferred a complaint on 19.10.2008 with Karur Police Station. She also got a newspaper report about the availability of a decomposed body of a lady. P.W.2 along with P.W.1 went to Karur Police Station, wherein they were directed to go to Paramathi Police Station and she was enquired there and further, she identified the dresses belonged to her mother and the belongings of her mother.
26. P.W.4 in his evidence, would depose that the police had seized his Hero Honda motorcycle bearing Registration No.TN-47-A-3850 in the month of October 2008 from his house.
27. P.W.5, the Village Administrative Officer, in his evidence, would depose that on 28.10.2008, the police came to the village and effected arrest of all the three accused around 12.00 noon. The first accused gave a confessional statement and the same was recorded by the Inspector of Police, for which he and his assistant stood as attesting witnesses. Further, the first accused informed about the pledging of the jewels belonged to the deceased. On the basis of the confessional statement of the first accused, the receipt pertaining to the pledging of the jewels and 4 1/2 feet length parrot green nylon rope were recovered. Later, on the information given by the accused, the police also recovered a red colour Bajaj motorcycle from the house of one Suresh and another red colour Hero Honda motorcycle from the house of Dhanasekar, under a mahazar. P.W.5 and his assistant also signed in the said recovery mahazar.
28. P.W.6 is the Branch Manager of Manappuram Finance at Karur Branch. In his evidence, he deposed that on 03.10.2008, the second accused came to Manappuram Finance Company and pledged a gold chain and gold ear stud, on producing the xerox copy of the ration card and after receiving the jewels, a sum of Rs.8,700/- (Rupees Eight Thousand and Seven Hundred only) was paid to the second accused and a pledged receipt was issued to the second accused. He was examined to prove the recovery of jewels M.O.4 - gold chain weighing 10 grams and M.O.5 - gold ear stud weighing 1 gram and having pledged the jewels for a loan amount of Rs.8,700/- (Rupees Eight Thousand and Seven Hundred only). The police recovered the jewels at Manappuram Finance on 28.10.2008, under a mahazar.
29. To prove the guilt, the prosecution has examined P.W.6 - the Manager, namely, Ramesh and he has deposed that they have their own rules and regulations and they are not looking into the fact that whose jewels have been pledged in the bank and therefore, the person who pledged the jewels, is the second accused, Arumugam and he has signed in the receipt. He also admitted that the receipt is not in the name of Manappuram Finance and that evidence has been taken to incriminate the second accused as there was a recovery of M.O.4 and M.O.5. To examine this position, mere recovery of two of the articles namely, M.O.4 and M.O.5 alone will connect and link the second accused to the guilt. Except this witness, the prosecution has not let in any other evidence to connect the second accused/appellant herein to the commission of the offence and in such a course adopted by the prosecution in giving a clinching and believable evidence of connecting the second accused, the appellant herein, to the guilt of the offence. Mere recovery of M.O.4 and M.O.5, from the bank, cannot be accepted for the reason that the first accused in his confession, has given the information of giving the jewels to the second accused and thereby, asking the second accused to pledge the jewels in a bank and get the amount. If this could be the position, the act of the first accused on giving jewels and that request of the first accused has been accepted by the second accused and he has gone to Manappuram Finance and he pledged the jewels and signed on verification of Ex.P.3. The loan receipt given for pledging the jewels, has been taken by the trial Court for coming to the conclusion of proving the guilt of the offence and connecting the second accused to the commission of the murder. But, the recovered jewels have been identified by P.W.1 in the police station alone and he has not gone to the scene of occurrence wherein the decomposed body was lying and therefore, if such a credence can be given to Ex.P.3 to connect the second accused with the commission of the offence, it would not be a bona fide factor and it would definitely give a doubt on the prosecution case and in the considered opinion of this Court, the benefit of doubt goes in favour of the appellant/second accused.
30. Also, the medical evidence is a corroborating material for proving the cause of death, the occurrence and what could be the nature of injuries, external and internal and the injuries have been caused to the deceased. These are all material factors to be weighed from the angle of evidence of the Doctor who conducted the post-mortem on the body, based on the opinion given by her. It is seen that the post-mortem certificate has been marked as Ex.P.15 and Dr.Sujatha has been examined as P.W.13. In her observation and identification of the body, she has observed the following:
"... The body was first seen by the undersigned at 11.15 a.m., on 17.10.2008.
Condition then was Rigor morties passed off. Postmortem commenced at 11.45 a.m., on 17.10.08.
Appearances found at the post mortem: A decomposed female body lies on its back with arms closed to its sides.
External Appearances: All over Highly decomposed female body with lies of muscle tissue over the body.
O/D. Skull bone broken into pieces. Temporal and half of parietal bone right side separated. Thoracic cavity bone ribs, sternum, maxilla, mandible and vertebra both humerus both side tibia, fibula, ulna, radius (Both sides). Both hand wrist bones, femur, both foot (NC) bones seen. Dislocation and fracture in hip bones present. Both Foot with muscles present. All visira are missing. Part of liver and part of intestine preserved and sent for Chemicals Analysis."
and ultimately, she gave an opinion, reserving pending report of the chemical analysis, that the deceased would appear to have died about more than 60 hours prior to autopsy. If that could be the position, while linking the prosecution case that they alleged that the occurrence was taken place on 02.10.2008 as the search by P.W.1 was continued and ultimately, there was an admission that a complaint was given by him on 08.10.2008 and thereafter, on 14.10.2008, there was a newspaper report and then, again, P.W.1 was searching further and ultimately, only on 19.10.2008, he lodged a complaint, based on which the F.I.R has been filed.
31. The Doctor who gave evidence as P.W.13, would also depose in her chief examination that the body was in a decomposed condition and therefore, the cause of death of the deceased could not be ascertained. This oral as well as documentary evidence would give a clear contradiction of time and place and cause of death and such a medical evidence to link a particular accused to the guilt in a case of this nature, as to who should be the real offender, who caused the death, has to be definitely connected with live link and the believable circumstances and thereby, connecting the accused to the guilt. The opinion of the Doctor would give further doubt on the prosecution case and such a benefit of doubt again will go in favour of the appellant/second accused.
32. One more important aspect which the learned Counsel for the appellant raised in the midst of his arguments, is the origin of the first information which had been obtained by the Investigating Officer - P.W.19, who in his cross- examination admitted that there was a complaint on 08.10.2008. If that could be the position, the question is as to why there was no F.I.R based on that complaint and therefore, the origin of the first information has been suppressed by the prosecution. While examining that position, the cross-examination of P.W.19 would reveal that there was a complaint on 08.10.2008 for the occurrence which had taken place on 02.10.2008 and there was a search for the missing woman and ultimately, on the basis of the newspaper report, P.W.1 further proceeded to search for his wife and having so many information, he has gone to the police station and gave a complaint on 19.10.2008 which came to be marked as Ex.P.1.
33. Further, in support of his contention, he also relied on a decision of the Division Bench of this Court in Hari Krishnan v. State represented by the Inspector of Police, reported in (2013) 4 MLJ (Crl) 369, wherein this Court held as follows:
"19. In the instant case, the origin of the most important and vital document, viz., the FIR itself has been suppressed by the prosecution and the same goes to the very root of the prosecution case as held by the Hon'ble Apex Court in Marudanal Augusti v. State of Kerala reported in AIR 1980 SC 638. As the discrepancies and the contradictions pointed out by the learned counsel for the appellant in the prosecution case, are not minor in nature, the same would give rise to the benefit of doubt which shall be extended in favour of the accused.
20. Keeping in mind the above settled principles and also applying the ratio laid down by the Hon'ble Apex Court to the case on hand, what would be a factor is that the presence of P.W.1 in the scene of occurrence is doubtful and the origin of F.I.R has not at all been clearly established by adducing satisfactory evidence and it gives a room for suspicion and then, the identification of the accused by P.W.9, would make the point clear that he did not remember as to whether the accused is the person identified by the deceased, who died on the date of admission in the hospital."
34. Keeping in mind the principle laid down by this Court, if the case on hand is analysed, it could be seen that the origin of the most important and vital document, namely, the F.I.R has been suppressed by the prosecution and therefore, as per the ratio laid down by the Honourable Apex Court in Marudanal Augusti v. State of Kerala reported in AIR 1980 SC 638, the discrepancies and the contradictions in the prosecution case, as pointed out by the learned Counsel for the appellant, are not minor in nature and therefore, the benefit of doubt shall be extended in favour of the appellant. Applying the said ratio and the principle, in the instant case, the prosecution has failed to take note of the first information by way of a complaint given by P.W.1 on 08.10.2008 and hence, that act of the prosecution has given a suspicion to the case of the prosecution and thereby, again, making a doubt on the prosecution case to connect this accused to the guilt.
35. On a careful scrutiny of the every factor, both oral and documentary evidence and on consideration of every material information and contradiction only with the appellant/second accused, we are inclined to give our conscious and thoughtful consideration to the evidence and on the principle that mere recovery of the material objects alone, cannot be a weighing factor to connect the accused to the guilt for the commission of the offence and accordingly, this Court has no other option except to give all consideration to the above contradictions and material infirmities and all other circumstances have not been properly explained by the prosecution linking the accused to the guilt and therefore, this Court has to give the benefit of doubt in favour of the appellant/second accused.
36. It is a well settled principle of law that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn, should, in the first instance, be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused and the circumstances should be of a conclusive nature and tendency and there must be a chain of evidence so far complete from the time of occurrence to the conclusion of the entire investigation
37. All the above factors would definitely give a considerable suspicion that the prosecution would not be in a position to explain the incriminating circumstances and failure on the part of the prosecution to prove the guilt would give a reasonable doubt which could always be in favour of the accused.
38. For the reasons stated above, there is a substantial doubt in the prosecution case and accordingly, giving the benefit of doubt to the appellant/second accused, he is liable to be acquitted of the offences for which he was charged, tried and convicted, by setting aside the judgment of the trial Court.
39. In the result, this Criminal Appeal is allowed and the conviction and sentence imposed on the appellant/A.2, by judgment dated 16.03.2012, passed in S.C.No.54 of 2011 by the learned Sessions Judge, Karur, are set aside and the appellant is acquitted of all the charges levelled against him. Fine amount, if any, paid by the appellant shall be refunded to him. Accordingly, the appellant is ordered to be set at liberty forthwith, unless his custody is required in connection with any other case.
rsb To:
1.The Sessions Judge, Karur.
2.The Inspector of Police, Karur Town Police Station, Karur District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.