I. Ramamoorthy and Thomas @ Ramadoss vs State

M. Chockalingam, J.—This appeal challenges the judgment of the Principle Sessions Division Virudhunagar District at Srivilliputhur made in

S.C. No. 147 of 2007, whereby the accused/appellants shown as A1 and A2 respectively, along with others ranked as A3 to A7, stood charged,

tried and found guilty as follows;

A1 and A2 were convicted under Sections 302 and 201 IPC and awarded life imprisonment for each along with a fine of Rs. 1,000/- each, with a

default sentence of one year simple imprisonment for the offence u/s 302 IPC and awarded three years rigorous imprisonment for each along with

a fine of Rs. 500/- each, with a default sentence of six months simple imprisonment.

The short facts necessary for the disposal of this appeal can be stated as follows:

i) P.W.1 is the son of the deceased. A1, A2, A6 and A7 are also the sons of the deceased. A5 is the wife of A6. A3 and A4 are close associates

of A1.

ii) At the time of marriage of the second daughter, the deceased got and used the jewels of the first daughter. After the marriage was over, the first

daughter was pressing for the return of the jewels. Thus, the deceased asked all his sons to contribute for the same, and it was accepted that each

son must pay Rs. 10,000/-. Accordingly, P.W.1 made the payment, while the other sons did not do so. When the deceased was making the

demand often, all the sons A1, A2, A6 and A7 had developed grudge against the father.

iii) P.W.1 and the deceased who were living together at 60 cents of land, for which they dug a well, put a motor pumpset and were watering their

land. The other sons were demanding that they must also be permitted to take water from the well, for which the deceased was not amenable.

iv) On one occasion, the deceased beat the first accused and he has a criminal case also before the criminal Court. On that ground also, the

accused developed grudge against the father.

v) Pursuant to the plan, on the date of occurrence, i.e. 28.06.2006, at 8.15 p.m. A1 to A4 were expecting the return of the deceased from

Coonoor. On the way, the accused persons/A1 to A4 attacked and strangulated the deceased and caused his death, and they took the dead body

from the place to the residence of A5 and A6. Thereafter, they arranged for an auto, and accordingly, it was brought. They tied the dead body

with a rope, put the dead body in a trunk box, took the same to Courtalam and threw the same in the Children Park.

vi) P.W.1 after making a thorough search, went to the respondent police station and gave a complaint which was marked as Ex.P1. P.W.20, the

Head Constable, on the receipt of Ex.P1, registered a case in Cr. No. 191 of 2006 for man missing. The printed first information report Ex.P18

was despatched to the Court.

vii) P.W.22, the Inspector of Police, took up investigation and pending the investigation, he arrested A2 on 11.07.2006, and A2 came forward to

give a confessional statement voluntarily in the presence of witnesses. The admissible part of the confessional statement of A2 was marked as

Ex.P4. Following the same, A2 took the police party and identified the place where the trunk box was actually thrown. When the trunk box was

opened, the dead body of the deceased was found, and P.W.13, the Village Administrative Officer, was the witness to that effect, and his

statement was also recorded. After the same, A2 was sent for judicial remand.

viii) Pending the investigation, A1 surrendered, and thereafter, P.W.22, the investigating officer filed a petition for police custody. The same was

ordered on 26.07.2006, and on enquiry A1 gave a confessional statement voluntarily. The admissible part of the confessional statement given by

A1 was marked as Ex.P14, pursuant to which, he produced MOs-3 and 2, the shirt and dhoti respectively, which were worn by the deceased at

the time of occurrence, and they were all recovered under a cover of mahazar Ex.P5. Thereafter, A1 was sent for judicial remand.

ix) All the other accused surrendered before the Court, and it came to the knowledge of the investigating officer. Following the same, all other

witnesses were examined.

x) On receipt of the requisition Ex.P12, made by the Investigator, P.W.15, the Doctor, conducted autopsy on the dead body of the deceased and

issued a postmortem certificate, Ex.P.13, opining that the deceased died of Asphyxia due to Throttling.

xi) On completion of the investigation, the Investigating Officer has filed the final report. The case was committed to the court of sessions, and

necessary charges were framed.

xii) In order to substantiate the charges, at the time of trial, the prosecution examined 22 witnesses and relied on 26 exhibits and 13 material

objects. On completion of the evidence on the side of the prosecution, the accused were questioned u/s 313 Cr.P.C. as to the incriminating

circumstances found in the evidence of prosecution witnesses and they denied them as false. Neither any witness was examined nor any document

was marked on the side of the defence.

xii) After hearing the arguments of the learned Counsel and looking into the materials available, the trial court took the view that the prosecution has

proved the case in so far as A1 and A2 for the offence under Sections 302 and 201 IPC and awarded the punishment as referred to above and

acquitted the other accused in respect of all the charges. Under these circumstances, this criminal appeal has arisen at the instance of the accused

Nos. 1 & 2/appellants.

Advancing the arguments on behalf of the appellants, the learned Counsel would submit that the occurrence, according to the prosecution, has

taken place on 28.06.2006. The gist of the case of the prosecution is that the father of P.W.1, who is also the father of A1, A2, A6 and A7, when

returning from Coonoor, as per the earlier plan, the accused/A1, A2, A6 and A7 caused the death of the deceased by throttling, and they took the

dead body to the residence of A5 and A6, and they placed the dead body in the trunk box and took to Courtralam and threw away the body in

the Children Park. The prosecution has no direct evidence to offer, and it relied upon only circumstantial evidence, namely the recovery of the

dead body by the investigating agency in the presence of P.W.13, the Village Administrative Officer, and others and the same was being identified

by A2 on 11.07.2006. Equally, in so far as A1 is concerned, they relied on the recovery of MOs-3 and 2, shirt and dhoti respectively, which

according to the witnesses, were worn by the deceased at the time of occurrence. In so far as the recovery of the dead body is concerned

P.Ws.1, 7, 8 and 13 are examined. P.W.1 is admittedly the son of the deceased and P.Ws.7 and 8 are closely related to the deceased and thus,

P.W.13 is the only independent witness. From the evidence of P.Ws.1, 7 and 8, it would be quite clear that on coming to know about the fact that

the dead body was found at the Children Park, Courtalam, they went to the spot. But, according to P.W.13, when he went to the Children park,

Courtalam along with the Police officer, P.Ws.1 and 7 were actually present and the presence of P.W.8 is silent in that regard. From the evidence

of P.W.13, it could be seen that though they were taken by the accused to the Spot, already P.Ws.1 and 7 were present which would be

indicative of the fact that P.Ws.1 and 7 knew about the fact that the dead body was at Children park, Courtalam. Under such circumstance, it

cannot be said to be recovery of material facts or material objects, for which the prosecution cannot have the benefit u/s 27 of the Evidence Act. If

this part of evidence is rejected, the prosecution has no evidence as against A2.

In so far as A1 is concerned, the learned Counsel for the appellants would submit that in respect of the recovery of MOs.3 and 2, shirt and

dhotis respectively, on 26.07.2006, the prosecution has no direct evidence to offer. Pointing to the evidence available, the learned Counsel would

submit that if really A2 was arrested on 11.07.2006, there was no reason to cause the delay for 15 days to take police custody of A1 and apart

from that MOs. 3 and 2, the shirt and dhoti respectively, did not contain any bloodstain and hence, there is every possibility of handing over those

clothes to the appellants by the prosecution party in order to create an evidence and therefore, it was a gross introduction. In so far as A1 is

concerned, there is bereft of evidence. Under such circumstances, A1 is also entitled for acquittal and the trial Court should have rejected the case

of the prosecution in so far as A1 is concerned.

The learned Counsel equally contended that the trial Judge having rejected the case of the prosecution regarding all other accused except A1

and A2, should have acquitted the appellants also, but failed to do so and hence, the judgment of the trial Judge has got to be set aside.

The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions.

It is not in controversy that the dead body of deceased, Ganapathy, was found in the Children Park, Courtalam. Following the inquest made by

the investigating officer, the dead body was subjected to postmortem and P.W.15, the Doctor, has issued the postmortem certificate, Ex.P13, who

has given a categorical opinion as a witness before the Court that the deceased died of Asphyxia due to throttling. The cause of death as put-forth

by the prosecution was never disputed by the appellants before the trial Court, and hence the trial Judge was perfectly correct in recording so.

In order to substantiate the charges levelled against the appellants and other accused, before the trial Judge, the prosecution had no direct

evidence to offer, but rested its case exclusively on the circumstantial evidence. The Court is mindful of the caution made by the Apex Court and

also by the settled Principles of Law that in a given case, if the entire prosecution case rests on circumstantial evidence, the prosecution must place

and prove the necessary circumstances which should make a chain without any snap pointing to the hypothesis that except the accused, no one

could have committed the offence. In the instant case, the prosecution had the following circumstances pointing to the guilt of the accused. Firstly,

P.Ws.1, 5, 6 and 7 have clearly spoken about the grudge that was developed by the accused party against the deceased. It is an admitted position

that one occasion the deceased father beat his son, A1, and a case came to be registered by the police, and the same was also pending in the

criminal Court, in which the deceased was accused. PW1 has categorically stated that his father left home in the cycle at 05.30 p.m on

28.06.2006, but did not come back. Then, he went to the police station and gave a complaint, pursuant to which, a case was registered for man

missing, and the same was pending. Now, while the investigation was on, A2 at the time of arrest came forward to give a confessional statement.

At this juncture, it is pertinent to point out that even in Ex.P1, report, given by P.W.1, he has clearly stated that he has got all his suspicion against

A1 and A2 who would have done away with the father.

Therefore at the time of arrest following the confessional statement which was recorded in the presence of P.W.13, the Village Administrative

Officer, on 11.07.2006, it was A2 who took the police party to Courtralam and also identified trunk box which was thrown in the Children Park,

and when the trunk box was got opened, the body of the deceased was found. P.Ws.1, 2 and 7 have categorically deposed that they went to

Courtralam and identified the dead body and thus, the comment made by the appellants cannot be countenanced.

According to all the witnesses, they admittedly went to Courtralam and they also identified the dead body. Therefore, it cannot be taken that

they went to the spot earlier and they were waiting for the arrival of the police persons and they knew that the dead body was kept in the trunk

box at that spot. Hence, it had not been an introduction by the investigating agency with the witnesses P.Ws.1 and 7. Equally, the investigator

could not have fixed the place where dead body was found, and apart from that, even the confessional statement recorded by the police in this

regard from A2 would clearly indicate that the deceased was actually killed by causing Asphyxia due to throttling. This material part also stood

corroborated by the medical evidence given by the postmortem doctor and would clearly indicate that there is sufficient evidence pointing to the

guilt that A2 had the role in doing the patricide . Accordingly, the judgment of the trial Court has got to be confirmed in so far as A2 is concerned.

In so far as A1 is concerned, except the recovery of MOs.3 and 2, shirt and dhoti respectively, nothing else is available, as rightly pointed out

by the learned Counsel for the appellants that the recovery was made only on 26.07.2006 and that too, after 15 days from the arrest of A2.

Though MOs2 and 3 are alleged to have been recovered from A1, as rightly pointed out by the learned Counsel for the appellants, there is

possibility of introduction. Except this recovery, nothing else is available pointing to the complicity of A1. Under such circumstances, it causes

reasonable doubt in the mind of the Court, and hence, A1 is entitled to the benefit of the same. Therefore, A1 has got be acquitted. Accordingly

A1 is acquitted, and he is set at liberty. He is directed to be released forthwith, unless his presence is required in connection with any other case.

The fine amount if any paid by him, shall be refunded to him.

This criminal appeal is dismissed as against A2 and is allowed in so far as A1 is concerned.