Madras High Court
State By vs Gunaseelan @ Guna on 24 March, 2008
Author: R.Regupathi
Bench: P.D.Dinakaran, R.Regupathi
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 24.03.2008 Coram:- The Hon'ble Mr. Justice P.D.DINAKARAN and The Hon'ble Mr. Justice R.REGUPATHI Criminal Appeal No.961 of 2005 State by Inspector of Police, Thudiyalur Police Station, Crime No.717/2003. ... Appellant vs. Gunaseelan @ Guna ... Respondent Appeal against the judgment, dated 05.07.2005, passed by the Principal Sessions Judge, Coimbatore, in Sessions Case No.347 of 2004. For appellant : Mr.N.R.Elango, Additional Public Prosecutor. Mr.S.Samuel Rajapandian, Amicus curiae J U D G M E N T
R.REGUPATHI, J.
On 28.09.2003 between 7.30 and 8.30 p.m., the accused/respondent herein along with three other accused, who are juveniles, with a common intention to commit robbery and murder of the deceased, an old lady aged about 76 year, gained entry into her residence at Door No.95, Viswanathan Illam, Karpagam Street, Poompugar Nagar, Edayarpalayam, Coimbatore, where she was living lonely, under the guise of attending cable-TV line fault. One of the accused stood outside the residence as guard so as to ensure nobody is witnessing their acts while others went inside the residence. Two of the accused caught hold of the deceased and the respondent herein is said to have smothered and strangulated the deceased with her saree and further dashed her head against the floor, resulting in her death and thereafter, they robbed away the jewels on the person of the deceased as well as a sum of Rs.790/- available in the bureau; thereby, charges under Sections 302 read with 34 IPC., 392 read with 34 IPC. and Section 65 of the Tamil Nadu City Police Act, 1888, came to be framed.
The case against the accused was separated and taken up by the trial court and as regards the juvenile accused, they were dealt with by the juvenile court.
The prosecution, in its endeavour to bring home the guilt of the accused, examined PWs-1 to 11, marked Exs.P1 to P17 and produced MOs-1 to 14. Neither oral nor documentary evidence was adduced by the defence.
The learned Principal Sessions Judge, Coimbatore, who conducted the trial against the accused/respondent herein for the aforesaid charges in Sessions Case No.347 of 2004, by judgment dated 05.07.2005, ultimately held that the prosecution has not proved its case beyond reasonable doubts and so holding, acquitted the accused of all the charges by granting benefit of doubt under Section 235 (1) Cr.P.C. Aggrieved by the order of acquittal passed by the trial court, the present Appeal has been preferred by the State.
2. The prosecution case, emerging from its evidentiary backdrop, is narrated concisely here-under:-
a) PW-1 is the grandson of the deceased. He has stated that the deceased was living alone since her two sons viz., PWs-2 and 8, were living at Madras and that he used to stay with the deceased during night times. On 28.09.2003, as usual, he went to her residence between 10.30 and 10.45 P.M., and pressed the calling bell thrice, but, there was no response. Thinking that she might have gone to the neighbouring residence, PW-1 left that place. On the next day ie., on 29.09.2003, at 6 A.M., again he went to the residence of the deceased and pressed the calling bell. He engaged a suspicion since the front-yard remained unclean and not decorated with 'kolam'; therefore, he enquired with the neighbours, came back and pushed the door. Since the door was not locked from inside, it was opened. On entering inside, he found the deceased lying on the sofa and her face was covered with the saree. On removing the saree, he saw blood oozing out from mouth and nostrils and her personal jewels missing. When he tried to make a phone call to his father to pass on the message, he found the telephone wire snapped and also the cable line. He brought his father and thereafter, the sons of the deceased were informed. A complaint was lodged by him with the police under Ex.P1. On 30.09.2003, when the police again examined him, he informed them about missing of the personal jewels of the deceased and the money available in the residence. He has further deposed that normally, the deceased would open the door only after ascertaining the person standing outside by looking through the window. It is further stated that the deceased informed in the morning of the occurrence day that there is a fault in the cable-line.
b) PWs-2 and 8 are the sons of the deceased who, after being informed of the incident through the father of PW-1, came to the scene house. According to PW-2, about two or three days prior to the occurrence, while talking to him over phone, the deceased told that she finds difficulty since there is some fault in the cable-TV line and requested him to summon the cable operator for rectification of the defect. He has further stated that while he came to meet her a month prior to the occurrence, he gave a bunch of twenty and five rupee notes to her. Both PWs-2 and 8 have stated that their mother would not open the door unless verifying the person standing outside by looking through the window.
c) PW-3 is a neighbour of the deceased. Since he did not support the case of the prosecution, he was treated hostile.
d) PW-4 is a cable T.V. Operator, under whom the respondent/accused as well as the juvenile accused were working. He is also a neighbour of the deceased. He has stated that the respondent/accused was put in charge of collecting monthly charges from the subscribers as well as attending to cable faults. On 28.09.2003 at about 7 P.M., when he was proceeding to Hotel along with his wife PW-5, he found the accused standing near the residence of the deceased. His wife questioned PW-4 as to why the accused were standing there at that time. On the next day, after coming to know that somebody murdered the deceased and taken away her jewels, he along with PW-5 went to her residence and found the deceased lying on sofa with blood oozing out from mouth. When the accused came to his office on the next day, PW-4 enquired him as to why he was standing on the previous day at the residence of the deceased, for which, he did not answer properly. He further stated that the police sniffer dog came to his residence from the scene house. PW-5 has corroborated the testimony of PW-4.
e) PW-6 is an attesting witness for Ex.P-2 observation mahazar, prepared on 29.09.2003.
f) PW-7 is the Medical Officer attached to the Coimbatore Medical College Hospital. Since the Doctor by name Gnanadurai, who actually conducted the post mortem on the body of the deceased, was no more at the time of the trial proceeding, PW-7, a colleague of Dr.Gnanadurai, has been examined to speak about the post-mortem certificate and to explain the contents thereof. On receipt of requisition from the Investigating Officer under Ex.P3, post-mortem was conducted over the dead body of the deceased on 30.09.2003. Ex.P4 is the post-mortem certificate, wherein, the Doctor noticed the following injuries:-
" THE FOLLOWING ANTEMORTEM INJURIES ARE SEEN (EXTERNAL)
1) Deep abrasion of 5x2-1.5 cms seen front of left side neck, 5 cms. below the middle of the chin and 1.5 cm left of midline.
2)Curved scratch mark (? Nail mark) of 1.5 cm seen on the left side neck, 6 cms below the left angle of mandible.
3) Faint abrasion of 3.5 x 1. 5 cms seen on the right side neck, 3 cms away from the midline and 4 cms below the right angle of mandible.
4) Curved scratch mark (? Nail mark) of 1.3 cm seen on the right side neck 7 cms below the right mastoid.
5) Abrasion of 2x1 cms seen upper part of left cheek
6) Contusion of 9x7 cms seen over right. termporoparietal region and 14x11 cms seen over the occipital region.
INTERNAL INJURIES:-
- On dissection of scalp subscalpal contusion seen over both temporo parietal and whole of the occipital region. Subdural and subarachnoid haemorrhage seen over the right cerebral and cerebellar hemisphers.
- On dissection of chest fracture 2nd to 5th ribs on the right side and 2nd to 6th ribs on the left side antero lateral aspects with surrounding intercostal muscles bruising.
- On blood less dissection of neck, the subscutaneous tissue underneath the abrasions contused with surrounding extravasation in the soft tissues of the neck up to just below the line of mandible. Larynx and trachea congested with haemorrhagic spots.
- Hyoid bone intact.
Multiple superficial surface incisions made all over the body reveals nil other injury."
After receiving chemical analysis report/Ex.P5, final opinion was given under Ex.P6 to the effect that the deceased would appear to have died of multiple injuries and its complications.
g) PW-9 is the Village Administrative Officer, who attested the statement of the accused given by him subsequent to arrest and the admissible portion of the statement is Ex.P7.
h) PW-10 is the Sub-Inspector of Police, who, on receipt of the complaint given by PW-1 on 29.09.2003, registered the case in Crime No.717 of 2003 for offences under Sections 457, 380 and 302 IPC, prepared Ex.P10 printed F.I.R. and forwarded the same to the court of the Magistrate and superior officers.
i) PW-11 is the Inspector of Police. After receiving the Printed F.I.R., he proceeded to the scene of occurrence, prepared observation mahazar Ex.P2 and rough sketch under Exs.P11 and P12, held inquest over the dead body and examined the witnesses. Ex.P13 is the inquest report. He sent the dead body to the Hospital along with his requisition Ex.P3 through a woman constable for the purpose of conducting post-mortem. Police sniffer dog, finger-print expert and photographer were summoned to the scene of occurrence for assistance in the course of investigation. MO-10 series are the photographs with negatives. Ex.P14 is the report submitted by the trainer of the sniffer dog. He developed suspicion against the accused from the statements of PWs-3 and 4. On 30.09.2003, after coming to know about the whereabouts of the accused, he arrested two of them at 8 A.M. On 01.10.2003, the respondent and another accused were arrested by him at 10 a.m. In the presence of PW-9/Village Administrative Officer, statement of the respondent was recorded. MO-2 Gold bangle, MO-5 series - 20 rupee notes (13 nos.) and MO6 series - 5 Rupee notes (6 nos.) were seized from the respondent/accused under Ex.P8 mahazar. The accused accompanied the Investigating Officer and demonstrated at the scene of occurrence as to how the offence was committed by them. Subsequent to the search conducted at the residence of the respondent/accused, MO-9 gold chain, MO-8 knife and MO-7 Aruval were seized. Some of the material objects were seized from the juvenile accused. The jewels seized were identified by the sons of the deceased. Thereafter, the accused were remanded to judicial custody. After receipt of medical and forensic reports and conclusion of the investigation, the Inspector of Police filed charge sheet against the accused on 28.10.2003.
j) When the accused was questioned under Section 313 Cr.P.C. with reference to the incriminating materials adduced by the prosecution against him, he denied his complicity in the commission of the offence and stated that a false case has been foisted against him. The learned trial Judge, after assessing the prosecution evidence and considering the submissions made on either side, arrived at the conclusion that the prosecution has failed to establish its case against the accused and consequently, acquitted him of all the charges. Hence, the present Appeal by the State.
3. Learned Additional Public Prosecutor submits that the finding of the trial court in holding that the prosecution has not substantiated its case is erroneous in view of the reason that wealth of materials have been produced, straight away pointing towards the guilt of the accused. There are strong circumstances available to connect the accused with the crime. PW-4 is none else than the employer of the accused. As per his evidence and that of his wife PW-5, the accused was seen at the residence of the deceased at 7 pm on the occurrence day viz., 29.09.2003. On 30.09.2003, when PW-4 questioned the accused about his presence at the scene house on the previous day, he did not answer properly. Furthermore, from the scene of occurrence, the sniffer dog came to the residence of PW-4 and also went to the room of the accused where the accused was staying. According to him, PW-3, pursuant to whose statement during the course of investigation, the police doubted that the accused must be behind the crime, though turned hostile, subsequent to arrest, the accused gave a confession statement in the presence of PW-9, the Village Administrative Officer, whereupon, incriminating materials came to be recovered from the accused and his residence. The recoveries coupled with the presence of the deceased at the scene house will probablise the case of the prosecution. That being so, the trial court would have come to the conclusion that it was the accused, who along with other juvenile accused, had murdered the deceased for robbing away her belongings.
4. Per contra, Mr.S.Samusel Rajapandian/amicus curiae submits that merely on the basis of suspicion, the accused as well as the juvenile accused were arrested and it is glaring that a false case has been foisted against them. Just because they happened to be seen near the residence of the deceased at the time of occurrence, one cannot jump to a conclusion that they were the actual assailants. The door of the house was open at the time when PW-1 pushed it on the next day. Admittedly, the deceased, an aged lady, was living alone in the house and therefore, it is quite possible that somebody else might have committed the offence. The recovery of jewels and cash is nothing but a handwork of the police to make an impression as if the same were recovered from the accused. PW-9 is a V.A.O., who has obliged the Investigating Officer and supported the prosecution case. According to him, the trial court has properly analysed the evidence as well as the circumstances put against the accused and arrived at a right conclusion to acquit the accused, disbelieving the story of the prosecution and hence, the appeal is liable to be dismissed.
5. There is no doubt, as could be seen from the medical evidence, that this is a case of homicidal violence. Now, the issue to be determined is as to whether the trial court is justified in disbelieving the case of the prosecution and acquitting the accused by granting benefit of doubt in his favour.
6. There are no eye witnesses to the occurrence and this is a case of circumstantial evidence. It is settled law that in a case based on circumstantial evidence, before the Court can record conviction, it must satisfy itself that circumstances from which an inference of guilt could be drawn have been established by unimpeachable evidence led by the prosecution and that all the circumstances put together are not only of a conclusive nature but also complete the chain so fully as to unerringly point only towards the guilt of the accused and are not capable of any explanation which is not consistent with the hypothesis of the guilt of the accused.
Further, the principle of benefit of doubt belongs exclusively to criminal jurisprudence and this pristine doctrine can be readily invoked when there is a reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. If it is apparent that there is a clear handwork of the investigating agency in foisting a false case against the accused and such aspects have been detected by the trial court, then, there would be no scope for interference.
An order of acquittal shall not be lightly interfered with, because, the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted particularly when the credibility and vigour of the evidence of the prosecution witnesses is doubtful and feeble. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. It is settled principle that a miscarriage of justice which may arise from acquittal of the guilt is no less than from the conviction of an innocent.
It is on the basis of these principles that we shall examine the circumstantial evidence relied on by the prosecution in this case.
7. The prosecution has heavily relied on the following two circumstances:-
(i) presence of the accused along with the juvenile accused near the house of the deceased at 7 p.m. on the date of occurrence; and
(ii) Pursuant to arrest, recoveries were made from the person of the accused as well as his residence during the course of the search conducted.
To strengthen these circumstances, the evidence of PWs-4 and 5 and entry of the sniffer dog at the place where the accused was staying have been adverted to.
8. Circumstance No.I:- According to PW-4, the accused has been engaged by him to collect monthly charges from the subscribers and also to attend cable-line faults. The presumption on the side of the prosecution is that there was cable-line fault in the residence of the deceased and the accused, on coming to know of the same, under the guise of rectifying the fault, gained entry into her residence and committed the crime. Curiously, PW-4 has neither stated that he informed the accused about such fault at the residence of the deceased nor deputed him to attend to the same. Further, both PWs-4 and 5 did not choose to question the accused and the co-accused on the date of occurrence for their presence near the house of the deceased. It is quite natural that the accused, who are working in the cable-tv office run by PW-4 in the same street and also having residence in the same vicinity, were found present in that street and that is the reason, PW-4 did not question them for standing there at that time. Moreover, even according to PWs-4 and 5, the accused was standing some distance away from the house of the deceased.
In this regard, the evidence of PW-1 should also be looked into. According to him, on the occurrence day night, there was no response from inside in spite of his pressing the calling bell thrice and on the next day ie., on 30.09.2003, due to suspicion, he pushed the door and it was opened. His emphatic evidence is that 'blood was oozing out at that time' from the mouth and nostrils of the deceased. Even according to PW-4, on hearing about the incident, he visited the scene house on 30.09.2003 at 7 A.M., along with his wife PW-5 and that time, he saw blood oozing out from the mouth of the deceased. The door remaining unbolted from inside on the next day and blood still oozing out from the mouth as spoken to by PWs-1 and 4 would water down the presumption of the prosecution as against the accused due to his presence near the house of the deceased on the previous day at 7 p.m. and would only probablise the version of the defence that somebody else might have committed the crime. Admittedly, no one has seen the accused entering the residence of the deceased by posting one among them to stand outside as guard. The prosecution has abruptly failed to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible; therefore, the first circumstance itself is so faint to survive in view of the reasons adverted to above.
9. Circumstance No.2:- In the light of the fact that the first circumstance has not been established by the prosecution, the second circumstance is of no relevance particularly when concoctions and handwork at the instance of the police to rope in the accused are ex facie apparent. According to PWs-4 and 5, the sniffer-dog came to their residence from the scene house and also went to the place where the accused was working. But, such version is completely washed off by the Dog Squad Report/Ex.P14, submitted by the trainer of the sniffer dog. It is stated therein that the dog, after coming out from the scene place, proceeded on the right side of the road for about 50 meters and thereafter went on the right side for about 200 meters and thereafter stopped at a hut near the house belonging to the owner of Sethu Covers. There is no whisper at all in the Dog Squad Report about the dog entering into the residence of PW-4 or the place of the accused. As could be seen from the cross examination of PW-4, the cable-TV office and the place where the accused was residing are just 100 meters away from the scene of occurrence. If really, the Dog had gone to the residence of PW-4 or that of the place where the accused was working, the same would not have been left omitted in the Report, the said aspect being a very vital factor for identification of the accused.
Admittedly, finger print expert was summoned at the scene of occurrence. It is very unfortunate that he was omitted to be examined so as to prove that the thumb impression and other impressions found at the place of occurrence particularly at the bureau, tallied with that of the accused and his associates. Further, the statement of the finger print expert recorded by the Inspector of Police on 17.10.2003 was not marked before court. There is no explanation forthcoming on the side of the prosecution for such serious lapse. That being so, the only presumption is that the so-called seizure and recoveries are the handwork of the police and nothing else.
10. In the light of the prevaricating circumstances pointed out by us, it would be grossly unsafe to rely on the evidence of the prosecution to hold against the respondent/accused. Unlike other cases where direct evidence is available, contradictions and embellishments in a case of circumstantial evidence would assume vital significance as the same would adversely affect the prosecution case. As pointed out by us earlier, when the first circumstance itself had lost its veracity and reality, the second circumstance would in no way help the prosecution.
11. The trial court, on an elaborate consideration of the circumstantial evidence, rightly held that the participation of the accused in the crime was not established beyond reasonable doubt, finding no evidentiary basis therefor.
We find no valid ground for interference. Appeal fails and the same stands dismissed.
(PDDJ) (RRJ) Index : yes / no. 24.03.2008. Internet : yes / no. JI. To The Principal Sessions Judge, Coimbatore. P.D.DINAKARAN, J. And R.REGUPATHI, J. Crl. Appeal No.961/2005. 24.03.2008.