Kamsan, Sekar and Gobi vs State

V. Periya Karuppiah, J.—This appeal is directed against the judgment of conviction and sentence passed by the learned Sessions Judge,

Tiruvannamalai against A.1, A.3 and A.4 for the offences under Sections 120B, 302 and 307 I.P.C., in S.C. No. 82 of 2003 dated 29.04.2005.

The case of the prosecution is that A.1, A.3 and A.4 and the deceased accused A.2 were living in Alangaramangalam Pudur Village. A.1 and

A.2 are brothers and A.3 and A.4 are their respective sons. There was a dispute in between the accused on the one part and one Kannairam who

is an adjacent land owner, in respect of taking water from Kannairam''s Well to his land. For the said dispute, a panchayat was held on

01.12.2002 and in that panchayat, the said Kannairam was permitted to take water from his Well through the lands of the accused by using hose

pipe which was decided by one Chinna Gounder and for that, accused 1 to 4 had objected and they also threatened Chinna Gounder and his

family. The accused went away from the panchayat and on that day itself, A1 to A4 had met together at the house of A.1 and had planned to mix

poison in Brandy and to make Chinna Gounder and his family members to drink the same in order to cause death of the entire family and thus, they

conspired and accordingly, A.3 and A.4 had brought Brandy, plantains and 1/4 kilo mixture in a bag from Polur and they mixed pesticides with the

Brandy already brought by them and on 03.12.2002, at about 4.00 a.m., A.2 had taken the poison mixed Brandy, 1/4 kilo mixture and six

plantains in a bag and had placed the same adjacent to the house of Chinna Gounder. The said bag was taken by one Mani son of Chinna

Gounder by 5.00 a.m. He had seen the eatables and gave the same to his children and put the Brandy bottle in the bureau which was noted by

Chinna Gounder. After he returned from work, he was informed by the family members that Chinna Gounder drank the Brandy and was feeling

stomach ache. Immediately, on suspicion P.W.4-Mani also drank little Brandy from that bottle and he also suffered stomach ache. Immediately,

they were taken to hospital, where Chinna Gounder was pronounced dead. Thereafter, the said Mani was taken to Vellore Hospital and there, he

took treatment for about 17 days and thus accused 1,3,4 and the deceased A.2 had committed offence u/s 120B, 302 and 307 I.P.C.

P.W.1-Palani, is the younger son of Chinna Gounder and younger brother of P.W.4-Mani. His evidence is to the effect that at about 5.00 p.m.,

on 03.12.2002, when he came home, his father was suffering from stomach ache and he was informed by the family members that since his father

drank the Brandy, he was suffering and that that time, P.W.4-Mani came and to test what went wrong, he also drank some Brandy from the same

bottle and then, he also reported stomach ache. Both were taken to the hospital where Chinna Gounder was pronounced dead and further, P.W.4

was taken to a private hospital at Vellore.

Chinna Gounder was cremated by P.W.1 on the next day. Later, on 05.12.2002, on some belief, P.W.1 asked the Village Administrative

Officer, to report the death of his father to Porur Police Station. That complaint is Ex. P.4.

P.W.14 is the Sub Inspector of Police who registered the complaint in Crime No. 797 of 2002 for the offences under Sections 302 and 307

I.P.C. He sent the express First Information Report to his higher officials and to the Judicial Magistrate. P.W.15-the Investigating Officer who

went to the scene of occurrence at about 2.30 p.m on 05.12.2002 and prepared an observation mahazar-Ex.P.9 and a rough sketch-Ex.P.15 at

the scene of occurrence. At about 3.15 p.m., on the same day, he recovered M.O.3 under a cover of mahazar. P.W.15 then proceeded to the

place where the Chinna Gounder was cremated and prepared a observation mahazar-Ex.P.16 in the presence of witnesses. At the same place, he

conducted inquest between 4.15 p.m., and 6.15 p.m., in the presence of Panchayatdars. After inquest he recovered M.O.1 series under Ex.P.3

mahadar. On 06.12.2002, he enquired with the Doctor and recorded his statement. On 07.12.2002, at about 2.30 p.m., P.W.15 arrested the

accused A.1 and A.2 near the Porur bus stand in the presence of witnesses at that time they came forward with a voluntary confession statement

which was recorded in the presence of witnesses. He brought the arrested accused to the police station and they were remanded to the judicial

custody. On 11.02.2002, he proceeded to Vellore hospital and enquired P.W.4 and recorded his statement. On 12.12.2002, he arrested A.3 and

A.4 in the presence of witnesses near Anjanayar temple. A.3 and A.4 also came out with a voluntary confession statement which was recorded by

the investigating officer in the presence of witnesses. Pursuant to the voluntary confession statement, M.O.4 came to be recovered under the cover

of mahazar. On 15.12.2002, P.W.15 recorded the statement given by P.W.13 who appeared before the Investigating Officer on his own. P.W.15

continued with his investigation and recorded the evidence of statement of witnesses including the Foreinsic Expert, Post Mortem Doctor and other

witnesses. Ex.P.18, is the report submitted by Foreinsic Science Department. After completing his investigation P.W.15 filed the charge sheet

against the accused on 08.05.2003 for the offences under Sections 120, 302 and 307 I.P.C.

The learned Senior Counsel Mr. V. Gopinath who appeared for the appellants would submit that the case of the prosecution was woven to the

convenience of the police and they had examined the witnesses as suitable to their convenience, yet they could not prove the case before the trial

Court, but the trial Court had convicted A.1, A.3, A.4 for the offence under aforesaid sections. He would submit that the whole prosecution case

rests upon circumstantial evidence, despite the witness who speaks about the placing of the bag containing the poisoned Brandy bottle and

plantains and 1/4 kilo mixture at the house of Chinna Gounder through P.W.11, was not examined immediately by the police and his evidence is

suspicious since he did not reveal anything about the placing of the bag by A.2 to anyone till the death of Chinna Gounder occured. Similarly, he

would also submit in his argument that the alleged conspiracy hatched between A.1 to A.4 was spoken to by P.W.13 who was also not examined

by the police immediately and P.W.13, was examined belatedly and the said witness also did not disclose anything about the conspiracy alleged to

have been hatched by A.1 to A.4 to anyone, much less to Chinna Gounder and the affected family members. The evidence of P.Ws.11 and 13 is

very much suspicious in nature and the judgment passed by the lower Court relying upon the evidence of those two witnesses is not sustainable.

Apart from that, the dead body of Chinna Gounder was cremated and there was no piece of evidence or proof that Chinna Gounder had

consumed poison mixed Brandy and that such poison had caused the death of Chinna Gounder and thereby, the accused had committed the

offence u/s 302 I.P.C. Moreover, he would submit that the motive as spoken to by the prosecution witnesses is also flimsy when the Prosecution

witnesses themselves would categorically admit that there was no enmity between the accused and the family of Chinna Gounder, but on the other

hand, there was enmity prevailing between the accused and one Kannairam, who was examined as P.W.9. Moreover, the evidence that the bag is

said to have been placed in front of the house of Chinna Gounder is also suspicious, since the evidence of P.W.4 as well as the other witnesses

who speak about the placing of the said bag inside the bureau are also not reliable. It is also very much argued by the learned senior counsel that

the family members of Chinna Gounder were accustomed to drink Brandy as per the evidence of P.W.13, but the family members of Chinna

Gounder had admitted that they had no habit of drinking Brandy. However, they admit that on occasions/functions, they used to take Brandy and

therefore, the theory of conspiracy hatched between A.1 to A.4 to kill the family members of Chinna Gounder by poisoning the Brandy which

would be consumed by them cannot be said to be acceptable. The learned senior counsel would further submit that the evidence of the Doctor

was to the effect that P.W.4 drank poisonous Brandy and was suffering from illness. It could not in any way connect the alleged fact that the

Chinna Gounder drank pesticide mixed Brandy and died due to the consumption of such Brandy. Moreover, the learned senior counsel would

submit that the prosecution has attempted to connect the accused with the offence and the links of the circumstantial evidence were not completely

woven by the prosecution witnesses and therefore, the conviction and sentence passed against A.1, A.3 and A.4 by the learned Sessions Judge

are not sustainable and therefore, the appeal may be allowed.

The learned Additional Public Prosecutor Mr. V.R. Balasubramanian would submit that the prosecution has proved the case against the accused

promptly by examining the ocular witnesses as well as by producing circumstantial evidence and scientific evidence and therefore, the lower Court

had convicted and sentenced the accused. He would submit that the motive regarding the commission of offence was spoken to by P.Ws. 9, 11

and 13 who have spoken categorically about the threat given by the accused against the family of Chinna Gounder for favouring a decision on

P.W.9 in the panchayat and the conspiracy was spoken to by P.W.13, and the placing of the bag in front of the house of the Chinna Gounder as

per the conspiracy with the poisoned Brandy bottle by A.2 was spoken to by P.W.11 and the consequential happenings were spoken to by

P.W.4, son of the deceased Chinna Gounder, his wife P.W.8 and their daughter P.W.7. Their evidence would show that the poisoned Brandy was

consumed by the said Chinna Gounder without knowing that it was poisoned and P.W.4 was also said to have consumed the same Brandy and

suffered stomach ache and the evidence of the Doctor-P.W.5 would prove that the said Chinna Gounder was brought died and P.W.4 was

brought in a critical position when he attended them. Therefore, P.W.4 was admitted in Vellore Hospital for further treatment and P.W.2, the

Doctor who treated him at Vellore had spoken that P.W.4 was affected by drinking of poisoned Brandy i.e., pesticides, namely mono proto poss

and after taking treatment in the hospital for a longer period, he recovered. The learned Additional Public Prosecutor would submit that all these

evidence would go a long way to show the conspiracy hatched by the accused to kill Chinna Gounder and also the attempt made to murder P.W.4

beyond reasonable doubt and the confession statement given by A.3 and A.4 were spoken to by P.W.12 which led to the recovery of empty

pesticide container would also fasten the liability on the accused and therefore, the judgment of conviction passed by the lower Court cannot be

interfered and it may be confirmed.

We have given our anxious consideration to the arguments advanced by either side in support of their case.

The prosecution''s case is that the accused A.1, A.3 and A.4 and the deceased A.2 had indulged in a conspiracy to kill the family members of

Chinna Gounder. On a careful consideration of the evidence of P.W.13, we could see that he over heard the secret talk of A.1 to A.4 at the house

of A.1 on the date of Panchayat at about 10.00 p.m. He would state that the accused locked the door but however, he could hear what they

talked. At the same time, P.W.13 would also admit in his evidence that Chinna Gounder and his family members had no drinking habit but, they

used to take liquor only during functions. The conduct of P.W.13 has to be noted as to the reliability of his evidence. He would admit that he did

not tell or disclose what he heard secretly to anybody. If really he had over heard the conspiracy alleged to have been hatched by A.1 to A.4, he

ought to have conveyed the same immediately to Chinna Gounder and his family atleast for the purpose of alerting them. Moreover, the suspicion

raised by the learned Counsel for the appellants to the effect that P.W.13 was examined at a later point of time would also go to show that his

evidence may not be relied as gospel truth.

Similarly, as far as the evidence of P.W.11 who had spoken about the panchayat; the motive of the accused to murder the family members of

Chinna Gounder and also placing of the bag as per the conspiracy is concerned, he had deposed that he was a chance witness on that day when

the deceased A.2 was placing a Yellow bag in front of the house of Chinna Gounder at about 4.00 a.m., when the witness was on her way to take

tea. He had also admitted in his evidence that he did not inform the said fact to the family members of Chinna Gounder and he did not verify about

the contents of the said yellow bag immediately after A.2 had gone away. He was also examined by the police after a long delay. The non-

disclosure of the placing the bag in front of the house of Chinna Gounder till the time he was examined by the police would also make his evidence

suspicious and therefore, it is also not safe to rely upon his evidence. No doubt, P.W.4-Mani is said to have taken the yellow bag containing the

Brandy bottle, 6 plantains and 1/4 kilo mixture found in front of his house. When he had taken the said bag at 5.00 a.m., he did not suspect

anything neither about the said bag being placed in front of the house nor about the contents of the bag. Therefore, it cannot be said that the bag

with poisonous Brandy and other articles was placed by the accused for the purpose of killing Chinna Gounder''s family alone. The evidence of

P.W.4 would also go to show that there was no enmity between their family and the accused, but the accused were inimical towards P.W.9 in

respect of the common right in taking water. Therefore, the motive for commission of offence against the Chinna Gounder''s family by the accused

are also very flimsy. When such motive and the nexus of the accused in putting the bag with an intention to cause death of the family members of

Chinna Gounder is not reliably proved by the prosecution witnesses, the other evidence produced by the prosecution to show the recovery and the

cause of illness of P.W.4 could not also help the prosecution to complete the links of circumstantial evidence.

The body of the deceased Chinna Gounder was cremated and therefore, it was not subjected to any autopsy for the purpose of finding out

whether his death was natural or it was due to the consumption of poisonous Brandy. The collection of bones of Chinna Gounder from the

cremation yard and the examination done at the Forensic lab also could not produce any fruitful result as to the cause of death of the deceased

Chinna Gounder. Therefore, the link of connecting the death of Chinna Gounder with the consumption of poisonous liquor is also not established.

It is settled law that when the prosecution case is to be established on the basis of the circumstantial evidence all the links of the chain of

circumstantial evidence should have been connected with proof and no link shall be missed. This can be seen from the judgment of our Apex Court

reported in Sunny Kapoor Vs. State (UT of Chandigarh), wherein the relevant passage runs as follows:

It is now well settled by a catena of decisions of this Court that for proving the guilt of commission of an offence u/s 302 I.P.C., the prosecution

must lead evidence to connect all links in a chain so as to clearly point the guilt of the accused alone and nobody else. Recently in Ramreddy

Rajesh Khanna Reddy v. State of A.P. this Court has held as under:(SCC p.181, paras 26-27)

It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of

incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit

no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion,

however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the

basis of the circumstantial evidence.

On a careful perusal of the judgment of the Supreme Court we could see that the links regarding the motive as well as the nexus of yellow bag

with the accused and the placing of poisonous Brandy and other articles inside the yellow bag have not been established and consequently, the

entire prosecution case cannot be relied upon.

On a over all consideration of the facts and circumstances of the case and on the basis of the evidence adduced by the prosecution, we are of

the considered view that the prosecution has failed in its attempt to prove the case, through the circumstantial evidence, beyond all reasonable

doubt. Therefore, it has become necessary for us to give the benefit of doubt to the accused. Accordingly, the judgment of conviction and sentence

passed by the trial Court against A.1, A.3 and A.4 is set aside and the appeal is allowed. A.1, A.3 and A.4 were granted bail by this Court in

Crl.O.P. No. 5321 of 2005 dated 26.07.2005 and the said order is terminated and bail granted to A.1, A.3 and A.4 are cancelled. The fine

amount if any paid by the accused shall be refunded to them.