Bujji @ Subramani, Babu and Vadivel vs State

Raja Elango, J.—This appeal arises out of the judgment made in S.C. No. 312 of 2007 by the learned Additional District and Sessions

Judge, (Fast Track Court), Vellore, convicting the appellants/accused for an offence u/s 302 IPC., and sentencing them to undergo life

imprisonment and also to pay a fine of Rs. 500/- each, in default, to undergo rigorous imprisonment for six months.

Brief facts of the prosecution case are as follows:

(i) On 21/22.02.2003 mid night at about 1.00 a.m., due to prior enmity, the appellants/accused said to have been in near the field of one

Karunakaran and near the sluice in between Thiruvalluvar Nagar and Kangeyanallur road leading to Vellaikkal Medu Village and with a common

intention to commit the murder of the deceased Duraiarasu, who was coming on a cycle, had wrongfully restrained him and at that time accused

No. 3 Vadivelu attacked the deceased Duraiarasu with casuarina stick on his right leg and the 2nd accused Babu attacked the deceased with

casuarina stick on his head and again attacked the deceased Duraiarasu on his back side head and while the deceased had fallen down, the

appellants/accused took deceased Duraiarasu in the cycle of the deceased Duraiarasu and left the cycle in the hay stack at the field of the said

Karunakaran and that they are said to have pushed the deceased into the well of the said Karunakaran and that due to the said acts of the

accused, the deceased died.

(ii) PW1 set the law in motion. On the basis of complaint (Ex.P1) lodged by PW1, case of suspicious death was registered in Cr.No.91 of 2003

(Ex.P10) u/s 174 Cr.P.C.

(iii) PW14-Sub Inspector of Police, on 23.02.2003, had taken up investigation, he inspected scene of occurrence and prepared Ex.P2-

Observation Mahazar and Ex.P11-Rough Sketch. He examined the witnesses and on the same day inquest was held on the body of deceased

Duraiarasu and Ex.P12 is the Inquest Report. On requisition from Investigating Officer, PW12-Dr.Sampath had conducted autopsy on the body of

deceased and found the following external injuries: (i) 1"" abrasion Vertex; (ii) 1"" abrasion left occipital region, parietal decomposed, Maggots flies

seen all over the body. Washermen hand (N.C) seen both (N.C.) of feet and palmer hands. PW12 opined that the deceased would appear to

have died of head injury and asphyxia due to drowning 3-4 days before autopsy and issued Ex.P7-Post Mortem Certificate.

(iv) In the mean time on 11.04.2003, the accused 1 to 3 surrendered before the VAO, Kangeyanallur and given a confession statement. On

11.04.2003, Muthamizh Mani, the Successor Inspector of Police had taken up the case for further investigation and interrogated the accused and

recorded their statements. Then, Investigating Officer altered the case from suspicious death u/s 174 Cr.P.C. into Sections 341 and 302 IPC.

(v) Confession statement of first accused led to recovery of M.O.2-casuarina Thadi under Ex.P16-Mahazar. Confession statement of second

accused led to recovery of M.O.3-casuarina Thadi under Ex.P18-Mahazar. Confession statement of second accused led to recovery of M.O.4-

casuarina Thadi under Ex.P20-Mahazar. P.W.15, Inspector of police, sent the recovered material objects to the concerned Judicial Magistrate.

On 02.05.2003, the 4th accused surrendered before the Judicial Magistrate, Vellore. P.W.15 taken on custody of the 4th accused, and recorded

his confession statement. Confession statement of second accused led to recovery of M.O.5-casuarina Thadi under Ex.P22-Mahazar.

(vi) Upon receipt of chemical analysis report(Ex.P23 & 24) and on 30.07.2003 completion of investigation final report was filed against the

accused for the offences under Sections 341 and 302 IPC.

(vii) To substantiate the charges against the accused in the trial court, PWs.1 to 15 were examined and Exs.P1 to P24 and Mos.1 to 9 were

marked. Accused were questioned about the incriminating circumstance and evidence u/s 313 Cr.P.C. Accused denied all of them and pleaded

that false case was foisted against them.

The prosecution hinges upon circumstantial evidence. In every case, based upon circumstantial evidence and in this case as well, the question

that needs to be determined is whether all the links in the chain of circumstances is so complete pointing to the guilt of the accused to Rule out

possibility of innocence of accused.

On Examination, PW1-Nagarajan, brother of deceased and the deceased Duraiarasu, also categorically deposed the earlier occurrence in

connection with sharing of pickle and also the subsequent compromise between the accused family and the deceased family. He further deposed

that the deceased left the house on 21.02.2003 by 06.00 p.m. then deceased was accompanied by the Prabakaran and Arularasu-PW8. The

deceased had not returned home on the next day also PW1 and his relations are in search of the deceased while so one Devaraj s/o Karunakaran

informed PW1 that he saw a cycle with blood stain further with initial as M.D.

Further prosecution examined PW2-Gopinath who is also the brother of deceased. His evidence disclosed the motive and also he identifies the

deceased body to the investigation agency. PW3 also supported the version of PW1 and 2 who is the mother of the deceased. PW7 would

depose regarding the recovery of bi-cycle and also preparation of Observation Mahazar-Ex.P2.

Learned Sessions Judge relied on the evidence of PW8-Arularasu, who deposed that he saw the deceased one day prior to the occurrence he

and Prabakaran accompanied the deceased to the cinema theatre along with V.K. Mani, Jayaraman and Suresh. After seeing the cinema, they

went to their respective home. Further deposed that one Nagarraj enquired about the deceased Duraiarasu he informed that the previous day he

went to cinema theatre alongwith the deceased.

Further the Learned Sessions Judge relied on the evidence of PW10-Rajendran who is the Village Administrative Officer. In his evidence he

stated that the accused Bujji @ Subramani, Babu and Vadivel appeared before him and confessed regarding one murder case and he has reduced

the same into writing subsequently he surrendered the accused in the Police Station. On the above available evidence, the learned Sessions Judge

convicted the accused as above said in para 1.

Learned Counsel appearing for the Appellants/Accused Mr. K.S. Rajagopalan contended that the learned Sessions Judge erred in convicting

the accused based on the evidence regarding motive, extra-judicial confession, recovery of material objects and on the basis of statement of

Accused No. 1 to 3 and on the medical evidence. In contra, the learned Public Prosecutor submitted that prosecution proved the case based on

ocular and circumstantial evidence.

We have carefully examined the rival contentions, perused the evidence adduced by the prosecution.

The reading of evidence adduced by the witnesses PW1-Nagarajan, elder brother of deceased, PW2-Gopinath who is also brother of the

deceased and PW3-Munilakshmi, mother of the deceased disclose the fact that the deceased and the accused had quarrel in connection with the

sharing of pickle and subsequently with the due intervention of the elders the matter was amicably settled. They have deposed nothing more than

the motive between the accused and the deceased.

The motive attributed by the prosecution based upon the said witnesses are flimsy in nature and it is not connecting the accused with the crime.

Motive for the occurrence is that on 13.02.2003 regarding taking of pickle the Appellants and their relatives beaten deceased Duraiarasu and due

to that enmity, on 21.02.2003 � 6.00 pm, Appellants have taken the deceased and committed murder. PWs 1 and 2, viz., Nagarajan and

Gopinath, who are brothers of deceased Duraiarasu and PW3-Munilakshmi, mother of deceased Duraiarasu have spoken about motive and

previous occurrence on 13.02.2003. Ofcourse in a case based on circumstantial evidence, motive is a material consideration. But, merely by

establishing the motive, prosecution cannot succeed without other evidence to connect the accused with the crime.

PWs 1 to 3 have spoken that on 21.02.2003 � 6.00 pm, deceased Duraiarasu left the house and that they have learnt deceased Duraiarasu

was forcibly taken by PW8-Arularasu and one Prabhakaran to Cinema. Evidence of PWs 1 to 3 is to the effect that PW8-Arularasu and

Prabhakaran had taken the deceased to Cinema.

Prosecution has examined PW8-Arularasu. In his evidence, PW8 had deposed that he and his friend Prabhakaran along with deceased went

to Cinema Theatre and viewed second show. PW8 further stated that after second show they went to their respective houses. PW8 has not stated

anything about involvement of accused in the crime.

In a case based on circumstantial evidence one of the important circumstance is that deceased was last seen alive in the company of accused.

Absolutely there is no evidence to show that deceased Duraiarasu left with the accused. Evidence of PWs 1 to 3 and PW8-Inbasekaran is to the

effect that deceased Duraiarasu had gone with PW8-Arularasu and Prabhakaran. There is no evidence to show when deceased parted company

of PW8 and Prabhakaran and how the deceased Duraiarasu was taken by accused.

Then the learned Sessions Judge relied on the evidence of PW10. We thoroughly scrutinised the evidence adduced by him. Even according to

his evidence he recorded the confession statement of Subramania Babu and Vadivel. But the case of prosecution is that PW10 recorded the

confession statement of accused No. 1 Bujji @ Subramani. Though much reliance was placed upon Extra-Judicial Confession the prosecution

miserably failed to mark the extra-judicial confession recorded by the PW10 in the Trial Court. Without marking the document as a prosecution

document, the lengthy cross examination was also allowed by the Learned Sessions Judge.

Case of suspicious death u/s 174 Cr.P.C. was registered in Cr.No.91/2003 on 23.02.2003. Appellants are alleged to have given extra-judicial

confession to PW10-Rajendran, VAO, on 11.04.2003 nearly 50 days after the occurrence. Extra-judicial Confession recorded after

commencement of investigation is a very weak piece of evidence. In the absence of any corroborative evidence, it would be unsafe to base the

conviction upon the extra-judicial confession allegedly recorded by PW10-VAO. This is all the more so, when extra-judicial confession recorded

by PW10-VAO was not marked.

MO6-T.Shirt, MO7-Pant, MO8-Banian and MO9-Cycle Paddle were seized during inquest u/s 174 Cr.P.C. MOs 6 to 9 were called for

from the Tahsildar and were marked through PW15-Investigating Officer. Human blood was detected in MO6 to MO8-clothes of deceased

Duraiarasu and MO9-Cycle Paddle. Detection of human blood in MOs6 to 9 is of no avail to the prosecution. Since, there is no evidence of

connect Appellants with the offence, presence of human blood in MOs6 to 9 cannot be taken as an incriminating circumstance against the

Appellants.

It is settled law that the circumstances from which the conclusion of the guilt is drawn should be fully proved and such circumstances must be

conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the

proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with their innocence.

The circumstances relied upon by prosecution are not established by cogent evidence. The proved circumstances do not form complete chain

to point to the guilt of the accused. Reasonable doubts arise as to the prosecution version, the benefit of which is to be given to the accused.

After completion of arguments by both sides the learned public prosecutor submitted that inadvertently prosecution omitted failed to mark the

extra-judicial confession which resulted in miscarriage of justice and argued for remanding the case back to the lower court for further trial.

Pleading for remand, Learned Public Prosecutor Mr. P. Kumaresan, relied upon the judgment in Lakshmanan Sundaram Vs. State of Kerala, .

Observing that re-trial is not ordered ordinarily and that re-trial could be ordered only in the interest of justice, Division Bench of Kerala High

Court in Lakshmanan Sundaram Vs. State of Kerala, , has held as under:

...Prosecution had its day in the trial Court and if the evidence adduced by the prosecution is insufficient to bring home guilt of the accused, he

would be entitled to acquittal. It is only in exceptional cases that the appellate Court requires the accused to face trial again. There may be cases,

where trial Court wrongfully refused to receive evidence sought to be adduced either by the prosecution or by the defence; it may be that the

accused had not been questioned regarding the incriminating circumstances appearing against him or it may be that the trial Court committed

material irregularity or serious illegality which caused serious prejudice to the accused or it may be that the trial is vitiated for other reasons or the

trial Court has no jurisdiction to proceed with the trial in spite of objection.... Where the illegality or material irregularity committed by the trial

Court has prejudiced the accused or even the prosecution, it will be against public policy to wipe the entire evidence off the record and direct the

Magistrate to start again or the accused to face de novo trial from the very beginning. Public interest is not only not served thereby; public interest

will be adversely affected thereby. There may be cases where even though the trial Court did not commit any material irregularity or illegality,

appellate Court comes to the conclusion of proper reasons that either on account of collusion or otherwise evidence available was not placed

before Court and that such evidence is necessary for a proper disposal of the case or in public interest....

Only if any illegality was committed by trial Court, which causes prejudice to either party or for the just decision of the cases, the matter may

be remanded for de novo trial or for a particular purpose. In the facts and circumstances, inadvertent omission to mark Extra-Judicial Confession

recorded by PW10-VAO cannot be said to have caused serious prejudice to the prosecution.

Only in exceptional cases, that too when the ends of justice require an order for retrial can be made. In Abinash Chandra Bose v. Bimal

Krishna Sen AIR 1963 SC 316, Supreme Court has held that in all civilised Countries criminal jurisprudence has firmly established the Rule that an

accused person should not be placed on trial for the same offence more than once except in every exceptional circumstances. The circumstances

that should exist for warranting a retrial must be such that where the trial was undertaken by the Court having no jurisdiction, or trial was vitiated by

serious illegality or irregularity on account of the misconception of nature of proceedings.

A retrial is not to be ordered merely because prosecution inadvertently omitted to mark extra-judicial confession made to PW10-VAP. Retrial

cannot be ordered merely on the ground that evidence adduced at the time of trial was deficient. In our considered view, the instant case is not a fit

case for ordering retrial.

In the result,

� the conviction of Appellants/Accused in S.C. No. 312/2007 on the file of learned Addl.District and Sessions Judge, Fast Track Court,

Vellore, dated 04.04.2008, is set aside and this Appeal is allowed;

� Appellants/Accused are not found guilty of the offences for which they were charged, tried and convicted and accordingly, they are acquitted.

� The fine amount paid by them are ordered to be refunded to them.

� The Bail Bond, if any, executed by Appellants/Accused shall stand terminated.