Palanisamy and Others vs State

M. Chockalingam, J.—Challenge is made to a judgment of the Additional Sessions Division, Fast Track Court, Dindigul, made in S.C. No.

109 of 2009 whereby the appellants, five in number, ranked as A-1 to A-5 respectively, stood charged namely A-1 under Sections 148 and 302

of IPC and A-2 to A-5 under Sections 147 and 302 read with 109 of IPC, and on trial, A-1 was found guilty u/s 302 of IPC and awarded life

imprisonment along with a fine of Rs. 2000/- and default sentence, while A-2 to A-5 were found guilty u/s 302 read with 109 of IPC and awarded

life imprisonment along with a fine of Rs. 2000/- and default sentence. In respect of other charge, they were acquitted.

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

(a) P.W.1 is the father and P.W.2 is the wife of the deceased Murugesan. A-1 and A-2 are the parents, A-3 and A-4 are the brothers and A-5 is

the sister of P.W.2. Three months prior to the occurrence, since there was a family dispute, the deceased was attacked by A-1 and A-4. A

panchayat was convened, and it was pacified and closed. Thereafter, on the date of occurrence i.e., 8.6.2008, during day hours, P.Ws.3 and 4

invited the deceased to their village to attend a festival. When he was about to move, P.W.2, wife, objected for his going. Despite the same, he

went over there. At about 1.00 A.M. they received a phone message from the neighbouring house that he was murdered. Immediately, P.W.1

accompanied by others went to the place where they found the dead body nearby a water tank. Then on enquiry, they came to know that A-1 to

A-5 have caused the death.

(b) P.W.1 immediately proceeded to the respondent police station where he gave Ex.P1, the complaint, at about 6.00 A.M. on 9.6.2008. On

receipt of the complaint, P.W.10, the Sub Inspector of Police, who was on duty that time, registered a case in Crime No.214 of 2008 u/s 302 of

IPC. The printed FIR, Ex.P8, was despatched to the Court.

(c) The investigation was taken up by P.W.12, the Inspector of Police of that Circle, who proceeded to the spot, made an inspection and

prepared an observation mahazar, Ex.P4, and also a rough sketch, Ex.P11. He recovered bloodstained earth and sample earth under a cover of

mahazar. He conducted inquest on the dead body of the deceased in the presence of witnesses and panchayatdars and prepared Ex.P12, the

inquest report. The dead body and the place of occurrence were photographed through P.W.7, the Photographer, and M.O.3 series are the

photos, and M.O.4 series are the negatives. Then the dead body was sent to the Government Hospital for the purpose of postmortem.

(d) P.W.11, the Assistant Surgeon, attached to the Government Head Quarters Hospital, Vedasandur, on receipt of the requisition, has conducted

autopsy on the dead body of Murugesan and has issued a postmortem certificate, Ex.P9, to the effect that death could have occurred 12 to 14

hours prior to autopsy. The Doctor has given his opinion under Ex.P10 that the deceased would appear to have died of shock and haemorrhage

due to multiple injuries sustained.

(e) Pending investigation, all the accused were arrested, and A-1 came forward to give a confessional statement which was recorded in the

presence of P.W.5 and another, pursuant to which he produced M.O.8, bloodstained aruval, which was recovered under a cover of mahazar.

Then the Investigator amended the case to Sections 147, 148 and 302 read with 109 of IPC. The amended FIR, Ex.P13, was sent to the Court.

(f) All the material objects were subjected to chemical analysis by the Forensic Sciences Department on a requisition given by the Investigator

through the Court concerned, which brought forth two reports namely Ex.P18, the chemical analyst''s report, and Ex.P19, the biological report.

On completion of investigation, the Investigator filed the final report.

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

marched 12 witnesses and also relied on 19 exhibits and 8 material objects. On completion of the evidence on the side of the prosecution, the

accused were questioned u/s 313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which they

flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced on either side and took the view that the

prosecution has proved the case insofar as A-1 u/s 302 of IPC and insofar as A-2 to A-5 u/s 302 read with 109 of IPC, and awarded the

punishment as referred to above. Hence this appeal at the instance of the appellants.

Advancing arguments on behalf of the appellants, the learned Counsel Mr. E.S. Shivashankaran would submit that in the instant case, the

prosecution had no direct evidence to offer, and it has relied upon only circumstantial evidence; that the prosecution had neither placed any

relevant circumstances nor proved the same; that not even one witness was examined pointing to the guilt of the accused; that according to the

prosecution, the occurrence has taken place on the night hours of 8.6.2008; that P.W.1 has categorically deposed that he came to know about the

incident and went to the place of occurrence where he found the dead body; that according to the prosecution, it was P.W.1 who gave Ex.P1, the

report; but he has categorically stated that he went to the place of occurrence, and he enquired the same, and actually Ex.P1, the complaint, was

written by the villagers, and then it was handed over to the police; that added further, he has categorically stated that he affixed the thumb

impression in a white paper, and under the circumstances, there was no need that arose for re-examination by the prosecution; but the prosecution

came forward to re-examine where P.W.1 filled up the lacuna as if he affixed the thumb impression after it was actually written; that even assuming

that Ex.P1 was a document which has come into existence as put forth by the prosecution, it would clearly indicate that he went to the place only

after the occurrence was over, and he simply came to know about the same; that who informed him was not even shown; that though P.Ws.1 and

2 have deposed that they had a phone call from the neighbouring house from the village where the occurrence has taken place, the person who

made the phone call or who received the call was not examined; and that under the circumstances, the evidence of P.W.1 was of no consequence.

Added further the learned Counsel that in the instant case, the prosecution much relied on the alleged confessional statement made by A-1 and

the recovery of M.O.8, aruval; but the only witness examined by the prosecution is P.W.5; that he has categorically deposed that all the

documents were signed by him in the police station, and thus he was treated hostile; that under the circumstances, the recovery pursuant to the

confessional statement, also could not be relied by the prosecution; that it can be stated that the prosecution was bereft of evidence; that even then,

the trial Judge has taken an erroneous view and found the appellants/accused guilty; that it is quite clear that the prosecution has no evidence at all;

and that under the circumstances, they are entitled for acquittal in the hands of this Court.

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

made.

It is not in controversy that the dead body of one Murugesan was found in front of a water tank. Pursuant to the complaint by P.W.1 and the

registration of the case, the Investigating Officer prepared the inquest report, and the dead body was subjected to postmortem by P.W.11, the

Doctor, who has given a categorical opinion that he died out of shock and haemorrhage due to the multiple injuries sustained by him. This fact that

he died out of homicidal violence 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 that it was A-1 who attacked him, and it was actually abetted by A-2 to A-5, the prosecution had no direct

evidence to offer before the trial Court, and it relied upon only circumstantial evidence. This Court is very mindful of the caution made by the

settled principles of law enunciated by the Apex Court, and also by the Rulings of this Court that in a given case like this, where the prosecution

rests its case exclusively on the circumstantial evidence, it must make a chain without a snap and must be pointing to the hypothesis that except the

accused, no one could have committed the offence. In the case on hand, if this test is applied, this Court is afraid whether it could sustain the

conviction made by the trial Judge.

In the instant case, even P.W.1 is the father and P.W.2 is the wife of the deceased. What are all stated by P.Ws.1 and 2 was that P.Ws.3 and 4

invited them for the festive occasion on the day, and despite objection made by P.W.2 wife, he went over there. This can be a circumstance to

start with. But at about 1.00 A.M., there was a phone call received from the neighbouring house which was tendered by P.W.1. But P.W.1 has

nowhere stated either in Ex.P1 or in the evidence before the Court who made the phone call. P.W.1 would claim that both himself, P.W.2 and

others went over to the place and found the dead body. Though it was claimed by P.W.1 that he was the author, the answer given by him in the

cross-examination would reveal that he was not the author. He has categorically deposed that it was actually written by the villagers and handed

over to him, and then he placed the same before the Police Officer who registered the case. At this juncture, as rightly pointed out by the learned

Counsel for the appellants, in a given case where the answers given by a particular witness are clear and do not carry any ambiguity, then no

question of re-examination would arise, and re-examination was not for the purpose of filling up the lacuna or to fill up what has been elicited in the

cross-examination. In the instant case, P.W.1 has categorically stated that it was written by the villagers. The witness has even gone to the extent of

stating that he has actually affixed the thumb impression in a white paper. Then, there is no question of clarification that would arise. But, the trial

Judge has permitted the prosecution to conduct re-examination where it has been filled up as if he affixed the thumb impression after it was written,

and thus it would be quite clear that P.W.1 was not the author of Ex.P1. Even assuming that P.W.1 was the author of Ex.P1 or Ex.P1 was a

genuine document, there is no whisper pointingnm to the complicity of any one of these accused persons in the occurrence. As far as P.Ws.1 and 2

are concerned, according to them, they went to the place of occurrence where they were informed as to the involvement of the accused. But, no

particulars were given as to who informed them. Thus the evidence of P.Ws.1 and 2 cannot be attached with any evidentiary value.

Added further, before the trial Court, much reliance was placed on the alleged recovery pursuant to the confessional statement given by A-1.

Two witnesses were shown in the list of witnesses. But, only one witness was examined as P.W.5, and he has turned hostile. In a given case,

where in respect of the confession and recovery, two witnesses were shown in the list by the prosecution and one of the witnesses examined, has

actually turned hostile, then a duty is cast upon the prosecution to examine the other witness. But, in the case on hand, the prosecution has

miserably failed to examine the other witness. Under the circumstances, no credence could be attached to that part of the evidence. Even barring

this evidence, the prosecution had no evidence to offer. Therefore, at no stretch of imagination, it can be stated that the prosecution has brought

home the guilt of the accused. Despite the above, the trial Judge has taken a view which, in the considered opinion of the Court, was thoroughly

erroneous and that too in a case where there was completely bereft of evidence. Hence the judgment of the trial Court has got to be made undone

by upsetting the same.

In the result, this criminal appeal is allowed setting aside the judgment of conviction and sentence passed by the trial Court. The appellants are

acquitted of the charges levelled against them. They are directed to be set at liberty forthwith unless their presence is required in connection with

any other case. The fine amount if any paid by them, shall be refunded to them.