Mohammad Rabeek vs State

M. Chockalingam, J.—This appeal challenges the judgment of the Additional Sessions Division, Dindigul, made in S.C. No. 18 of 2001

whereby the sole accused/appellant stood charged u/s 302 of I.P.C., tried, found guilty as per the charge and awarded life imprisonment along

with a fine of Rs. 2,000/- and default sentence.

Shorn of unnecessary details, the facts necessary for the disposal of the case can be stated thus:

(a) P.W. 12 is the wife of the deceased Sheik Abdullah. He was found guilty in a case of murder in which he was accused of murdering the elder

brother of the accused. After serving the life sentence, he was released. P.W.3 is the sister of the deceased. P.W. 1 is the husband of P.W.3. They

were residents of T. Paraipatti. The daughter of P.Ws. 1 and 3 by name Rajina Begum was given in marriage to P.W. 11 at Palani, and she came

to her parental home at Paraipatti for delivery. After she delivered a male born, there was a naming ceremony scheduled to take place on

14.9.1999. On that day, P.Ws. 1, 3 and all the relatives including the deceased and his wife P.W. 12, attended the function. During evening hours

at about 5 or 5.30 p.m., P.Ws. 1, 2 and the deceased proceeded to purchase sweet. When they were just proceeding towards the shop situated

at Paraipatti Road near Kaliyanayakan Tamarind Tree thope, the accused came in a bullet. On seeing the deceased, he stopped the vehicle,

parked aside on the road, cut him indiscriminately with an aruval and caused his death instantaneously. Then, he fled away from the place of

occurrence with the weapon of crime leaving the motorbike bearing Registration No. TN 57-A-4786. P.Ws. 1 and 2 went nearby and found him

dead. P.W. 11 on coming to know about the same, went over to the spot and saw the deceased dead. Then, P.W. 1 proceeded to the respondent

police station and gave Ex.P1, the complaint, on the strength of which P.W. 10, the Sub Inspector of Police, registered a case in Crime No.

254/99 u/s 302 of IPC. The printed FIR, Ex.P13, was despatched to the Court.

(b) On receipt of the copy of the FIR, P.W. 14, the Inspector of Police of that circle, took up investigation, proceeded to the spot, made an

inspection and prepared an observation mahazar, Ex.P17, and a rough sketch, Ex.P16. The finger print expert was also called to the place of

occurrence. He took the finger prints in the box attached to the two wheeler, which was driven by the accused, and they were compared with the

finger prints of the accused. They were found to be tallying. The expert gave his opinion in Ex.P14, the report. Then, the Investigating Officer

conducted inquest on the dead body of Sheik Abdullah in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P18.

(c) Pursuant to the requisition made by the Investigator, P.W.7, the Civil Surgeon, attached to the Government Hospital, Dindigul, conducted

autopsy on the dead body of Sheik Abdullah, and issued a postmortem certificate, Ex.P7, with his opinion that the deceased would appear to have

died of shock and haemorrhage due to fracture to skull and injury to the brain 18 - 24 hours prior to autopsy.

(d) Pending the investigation, the Investigating Officer arrested the accused on 15.9.1999. He made a confessional statement which was recorded

in the presence of witnesses. The admissible part is marked as Ex.P3, pursuant to which he produced M.O.5, aruval, which was recovered under

a cover of mahazar. Apart from that, at the time of arrest, he also produced M.O.6, shirt, and M.O.7, bloodstained pant, and they were recovered

under a cover of mahazar, Ex.P5. Then, he was sent for judicial remand. All the material objects recovered from the place of occurrence and from

the dead body and on production by the accused were subjected to chemical analysis by the Forensic Sciences Department, which resulted in two

reports, Ex.P10, the Chemical Analyst''s report, and Ex.P11, the Serologist''s report. On completion of investigation, the Investigator filed the final

report.

The case was committed to Court of Session and necessary charge was framed. In order to substantiate the charge, the prosecution examined

14 witnesses and also relied on 18 exhibits and 11 material objects. On completion of evidence on the side of the prosecution, the accused was

questioned u/s 313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses. He flatly denied them as

false. No defence witness was examined. The trial Court heard the arguments advanced, looked into the materials available and took the view that

the prosecution has proved the case beyond reasonable doubt and hence, found him guilty and awarded life imprisonment which is the subject

matter of challenge before this Court.

Advancing arguments on behalf of the appellant, the learned Senior Counsel Mr. K. Thirumalai Raj has made the following submissions:

(a) The prosecution has miserably failed to prove its case. The prosecution had no direct evidence to offer since three occurrence witnesses

namely P.Ws. 1, 2 and 11 have turned hostile.

(b) According to the prosecution, the motive for the accused to commit the crime was that the deceased murdered the elder brother of the

accused, and there was an accusation of murder made in 1984, and he was awarded life imprisonment, and after serving the sentence, the

deceased came out, and the accused was waiting for a time, and he took an opportunity to take revenge, and accordingly, he murdered him. The

motive attributed by the prosecution, is farfetched since the entire case was over in 1984, and the instant occurrence has taken place in 1999 and

that too after 15 years. At the time of occurrence, the deceased in the case was only 10 years old, and hence, the allegation that the murder of his

elder brother was lingering in his mind, and therefore, he has committed the crime is farfetched.

(c) As far as the motive part was concerned, no evidence was forthcoming, and no materials or records were placed in respect of the earlier

murder case or the judgment therein.

(d) All the three occurrence witnesses namely P.Ws. 1, 2 and 11, have turned hostile. The lower Court has relied upon the two circumstances

which, in the opinion of that Court, were pointing to the guilt of the accused. The first circumstance was the report, Ex.P14, given by P.W. 13, the

finger print expert. The second circumstance was the recovery of the shirt and bloodstained pant, M.Os.6 and 7 respectively, and also M.O.5,

aruval.

Advancing his further arguments, the learned Senior Counsel would submit that the evidence of P.W. 13 and the report given by him, should

have been eschewed by the trial Court; that P.W. 13 was the finger print expert attached to the police department; that according to his evidence,

he came to the spot on 15.9.1999 by 8.00 a.m. along with two constables, took the finger prints from the box attached to the two wheeler, and

those finger prints were compared with the finger prints of the accused; that he has given his opinion in Ex.P14; that this evidence cannot be called

as worth-mentioning for more reasons than one; that according to P.W. 13, he had gone to the spot on 15.9.1999 at 8.00 a.m. accompanied by

two constables; that either of the constable was not examined; that it is not the evidence of P.W. 13 that at the time when he went over to the spot,

either the Investigator or the Sub Inspector of Police who registered the case, was with him; that on the contrary, according to P.W. 14, the

Investigator, he made the observation of the place of occurrence on 14.9.1999, in the evening hours, and he made recovery as per the athatchi at

about 8.15 p.m.; that if to be so, there was no occasion for the finger print expert to visit the spot on 15.9.1999 at 8.00 a.m.; that as far as the visit

of the finger print expert is concerned, even the evidence of P.W. 14 does not speak how he was informed, when he was called and how the

inspection of the finger print expert took place on 15.9.1999, and in order to tally the finger print of the accused, when they were taken, there is no

evidence forthcoming; that though the finger print, according to the report of the finger print expert, was that of the accused, P.Ws. 1, 2 and 11

have turned hostile; that it is pertinent to point out that no records were produced to show that the two wheeler belonged to the accused; that even

P.Ws. 1, 2 and 11 have not spoken anything in that aspect; that according to P.W. 13, Ex.P14, the report, was prepared by him; but, the

inspection was made by him earlier; that though the charge sheet was laid on 30.12.1999, it has reached the Court on 18.6.2001 long after the

filing of the charge sheet; that it is pertinent to point out that Ex.P14, the report, if perused, would clearly indicate that the case was registered

under Sections 457 and 380 of IPC; that apart from that, according to the evidence of P.W. 13, what were taken from the box attached to the

two wheeler, were left thumb impressions; but, as per the report, at three places it is mentioned as right thumb impressions; and that this would not

also tally or would go to show that the expert''s opinion as canvassed by the prosecution, should have been rejected outright; but, the lower Court

has failed to consider any one of these aspects.

Added further, the learned Senior Counsel that as far as the recovery is concerned, the recovery by itself will not be sufficient to sustain a

conviction; that when the accused was questioned u/s 313 of Cr.P.C., the incriminating circumstances as to the recovery of those material objects

from the accused pursuant to the confession either, or the serologist''s report that the blood group would tally, or the evidence of P.W. 14 in that

regard, were not at all put to the accused to get his answer, and thus, the mandatory provision u/s 313 Cr.P.C. in respect of the alleged recovery

of material objects, were not strictly followed; that the said part also would not help the prosecution, and hence, the lower Court''s finding that he

was guilty 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 made.

It is not a fact in controversy that one Sheik Abdullah, the husband of P.W. 12 and the brother of P.W.3, was done to death in an incident that

had taken place at the time and place as put forth by the prosecution. Following the inquest made by the Investigating Officer, P.W. 14, the dead

body was subjected to postmortem by P.W.7, the Doctor, who has given categorical opinion as a witness before the trial Court and also by way

of postmortem certificate that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained. The fact that he

died out of homicidal violence was never the subject matter of controversy before the trial Court, and hence, without any impediment, it could be

recorded so.

In order to substantiate the fact that it was the accused/appellant who attacked the deceased with an aruval and caused his death, the

prosecution has marched three witnesses namely P.Ws. 1, 2 and 11 as occurrence witnesses. All these witnesses have turned hostile, and thus, the

prosecution had no direct evidence to offer. As rightly pointed out by the learned Senior Counsel for the appellant, the lower Court in order to find

the appellant guilty rested its entire judgment on two circumstances, first one the evidence of P.W. 13 and his report in Ex.P14 and second one the

recovery of the material objects namely bloodstained pant and shirt of the accused and also the weapon of crime M.O.5, aruval. This part of the

evidence is thoroughly perused by this Court. On thorough scrutiny of the evidence, this Court is of the considered opinion that the evidence of the

prosecution was thoroughly infirm.

As far as the first circumstance placed by the prosecution and relied upon by the trial Court namely the evidence of P.W. 13 and the report

Ex.P14, was concerned, they suffer the following infirmities.

(i) There is no material to show that the evidence of P.W. 14, the Investigator, was to the effect that P.W. 13, the finger print expert, was ever

interrogated by him, or his statement was recorded by him u/s 161 Cr.P.C. since those statement was not placed either before the committal Court

or before the trial Court.

(ii) The categorical evidence of P.W. 14, the Investigator, was that he went over to the spot and made an observation in the presence of witnesses

in the evening hours of 14.9.1999, and at that time, he has also recovered the bloodstained earth and sample earth and also a two wheeler. If the

evidence of P.W.14, the Investigator, has got to be accepted that he recovered the two wheeler at the night of 14.9.1999, then this vehicle could

not have been present at the place of occurrence on 15.9.1999, when the finger print expert went over there.

(iii) According to P.W.13, the finger print expert, he went to the scene of occurrence at about 8.00 a.m. with two constables, and took the finger

prints from the box attached to the two wheeler. Neither of the constable was examined. Admittedly, the Investigator or the Sub Inspector of

Police was also not present at that time.

(iv) Further, though the expert has made an inspection on 15.9.1999, the next day to the crime, and the charge sheet was laid on 30.12.1999, the

expert''s report has reached the Court only in the year 2001.

(v) That apart, it is a matter of surprise to note that in Ex.P14, the report, given by P.W.13, the finger print expert, at three places, it is mentioned

that the thumb impressions that were taken from the box were that of the right thumb impressions. But, according to his evidence, what were taken

from the box were only left thumb impressions.

(vi) Added further, the case found in the report was one under Sections 457 and 380 of IPC. But, it is a case of murder.

(vii) The prosecution did not adduce any evidence to show that the two wheeler belonged to the accused.

(viii) Apart from the above, the report was signed by the finger print expert on 28.5.2001, and it has reached the Court on 18.6.2001.

All the above would go to show that the finger print expert''s opinion casts a doubt in the mind of the Court that the opinion could have been

obtained by the Investigator in order to strengthen the prosecution case if possible. But, the finger print expert''s opinion and the report could not

get any evidentiary value for the reasons stated above, and hence, it has got to be rejected. Accordingly, it is rejected.

The second circumstance is the recovery of the material objects namely bloodstained pant and shirt and also M.O.5, aruval. As far as

bloodstained pant and shirt were concerned, they were produced by the accused at the time of the arrest. As regards M.O.5, aruval, it was

recovered pursuant to the confessional statement. It is settled proposition of law that mere recovery of the weapons of crime would not suffice to

sustain a conviction. Further, as rightly pointed out by the learned Senior Counsel for the appellant, at the time of questioning u/s 313 Cr.P.C., the

fact of confession and pursuant recovery of aruval, the weapon of crime, or that they tallied with the blood group as found in the scientific evidence

or as found in the Investigating Officer''s evidence, was not put to the accused. Thus, the mandatory provision is not strictly complied with.

Added further, while all these occurrence witnesses have turned hostile and the prosecution had only the above two circumstances, those

circumstances must be clinching pointing to the guilt of the accused. Accepting these circumstances, which, in the opinion of the Court, would not

at all be pointing to the nexus of the crime with the accused, would be highly unsafe to find the appellant guilty. Hence, the judgment of the lower

Court has got to be set aside. Accordingly, it is set aside.

In the result, this criminal appeal is allowed. The appellant is acquitted of the charge levelled against him. The bail bond executed by him, shall

stand terminated. The fine amount if any paid by him, will be refunded to him.