Vadivel vs The State

V. Periya Karuppiah, J.—The appellant is the sole accused before the learned Principal Sessions Judge Erode in S.C. No. 33 of 2004 and

he was convicted u/s 302 I.P.C. and sentenced to undergo life imprisonment and to pay a fine of Rs. 500/- in default of which to undergo

Rigourous Imprisonment for six months by the Judgement dated 01.04.2004.

The case of the prosecution is that the accused is the cousin brother of one Thenmozhi who was married to the deceased Murugan as third wife

and the accused was threatening the deceased Murugan to live with his cousin sister Thenmozhi as they were living separately on some

misunderstanding and the accused had gone to the extent of threatening the deceased Murugan that Aruval will speak if he has not lived with the

said Thenmozhi and the same was conveyed to Murugan by his step mother P.W.1.

On 02.02.2003 at about 9.00 p.m., at Kodumudi, the deceased Murugan was followed by the accused from Mariamman Temple to the

Cauvery River Bank and there, the accused cut Murugan with Aruval on the right sid of his neck and on such injury, the death of Murugan was

caused and the accused flew away from the scene of occurrence.

As the deceased had not returned home till next day morning, P.W.1 went to kodumudi bus stand and enquired P.W.4 and P.W.5, who in turn

informed P.W.1 that the deceased Murugan has not come to the bus stand on the previous night. In the afternoon P.W.1 was informed by a fruit

seller that a dead body was being found at the Cauvery river bank. P.W.1 went to the Cauvery river bed and saw the dead body of her son

deceased Murugan. Subsequently, P.W.1 alongwith her husband went to the office of P.W.3, Village Administrative Officer and informed the

matter, who in turn reduced the same into writing. P.W.12 Head Constable of Kodumudi Police Station received the complaint Ex.P.1 given by

P.Ws.1 and 3 and registered a case in Cr. No. 29 of 2003 u/s 302 I.P.C. and prepared Ex.P.9, F.I.R. On 3.2.2003, P.W.13, Investigating

Officer, after the receipt of Ex.P.1 and Ex.P.9, (complaint and F.I.R.) took up the investigation, went to the place of occurrence alongwith P.w.9

Photographer and prepared Ex.P.4 Observation Mahazar and Ex.P.10 rough sketch in the presence of P.W.3 and another witness and recovered

M.Os.2 to 4 under Ex.P.5 Seizure Mahazar. Subsequently, the Investigating Officer conducted inquest on the dead body of the deceased from

6.15 p.m. to 9.15 p.m. in the presence of Panchayatdars and witnesses and prepared Ex.P.15 Inquest Report and thereafter sent the dead body

of Murugan through P.W.11 along with Ex.P.2 requisition for Post mortem.

P.W.2 doctor has conducted the Post Mortem on the dead body of deceased Murugan on 4.2.2003 and found the following injuries:

External Injury:

A large gapping wound on the Right side starting from the occipital region running oblique upto zygomatic region cutting the muscles, vessels

nerves upto vertebral column 19 cm x 5 cm x bone deep.

An abrasion on the right infra arbital region 3 cm x 2 cm.

An abrasion on the lumro sacral region 6 cm x 2 cm.

Internal Examination:

Thorax : Heart empty, Lungs congested. No fracture of ribs,

Abdomen : Stomach contains partly digested food particles which contains alcohol odour.

Liver congested.

Both kidneys: contested.

Spleen : Congested

All the internal organs are weighing within normal limits.

Intestine distended

External genitalia normal

Head and neck: Hyoid bone intact and normal.

Skull : No fracture.

Brain vessels congested. Weight normal.

The doctor has given his opinion that the deceased would appeal to have died of shock and haemorrhage due to the injuries sustained 24 to 36

hours prior to autopsy. Post-mortem certificate issued by the doctor is marked as Ex.P.3. The doctor has further opined that the first injury found

on the person of the deceased could have been caused by an assault by weapon like M.O.1 and that injury is necessarily fatal to cause the death

of the deceased instantaneously.

On 6.2.2003 P.W.13, Investigating Officer arrested the accused. At that time the accused has voluntarily given a confession statement which

was reduced into writing in the presence of P.W.8 and his assistant. As per the admissible portion of the confession statement Ex.P.6, the

Inspector of Police had taken the accused and witnesses to the burial ground at Kodumudi river bank, where the accused took M.O.1 aruval from

a bush near the banian tree and the same was recovered through Ex.P.7 seizure Mahazar in the presence of P.W.8 and his assistant. Thereafter,

the accused was sent to judicial custody. On 15.2.2003, the investigating officer has sent the articles seized to the Court and gave requisition

Ex.P.12 for sending the same to the lab which in turn were sent to the lab through Ex.P.13 Court letter. Ex.P.14 and Ex.P.15 are the Chemical and

Serological Reports received from the Forensic Lab. After completing the investigation, P.W.13 Inspector of Police filed the Charge Sheet against

the accused u/s 302 I.P.C.

When the accused was put questions u/s 313 of Cr.P.C. in respect of the incriminating circumstances available against him in the evidence, he

denied the evidence and stated that he has been falsely implicated in the case.

Learned Counsel for the appellant/accused would submit in his argument that it is a case of circumstantial evidence in which the accused was

convicted and sentenced to life imprisonment by the learned Principal Sessions Judge, Erode, in which the prosecution has not come forward with

a complete chain of circumstantial evidence and the lower court had convicted the accused/appellant on surmise and there is no connection in

between the accused and the murder and the benefit of doubt should have been given to the accused and he should have been acquitted.

He would further submit in support of his case that P.W.1 is the step mother of the deceased Murugan and she had given the complaint only

after seeing the dead body of Murugan at Cauvery River bank and her evidence would disclose that the alleged threat made by the accused

towards the deceased Murugan was very much known to her and she had categorically admitted that she had not given any complaint to the police

on the threatening of the accused over Murugan, but she had told Murugan to be careful with the accused Vadivelu. Apart from that learned

Counsel for the appellant would further submit in his argument that the prosecution witnesses which were examined as P.W.4 and P.W.5 are none

other than the friends of the deceased Murugan and P.W.4 had deposed that the accused and one Suresh were seen alongwith the deceased

Murugan on 02.02.2003 in the bus stand at 9.30 p.m. and he saw the dead body of the deceased Murugan on the next day on the Cauvery River

Bank. The evidence of P.W.5 would disclose that he had seen the accused with deceased Murugan going towards Cauvery River bank on

02.02.2003 by 10.00 p.m. and after sometime he could see the accused alone had returned and he did not see the deceased Murugan accompany

him and the next day he could see the dead body of Murugan at the Cauvery river bank.

Learned Counsel for the appellant would submit that the contradictory evidence regarding the last seen theory by P.w.4 and P.W.5 would

bloom large into the suspicion as to the disappearance of Suresh who had accompanied the accused and the deceased Murugan half-an-hour prior

to the time of occrurrence. Moreover, he would also submit that the names of P.W.4 and P.W.5 were not seen in the Inquest report conducted by

the P.W.3 which is produced as Ex.P.11. It is submitted by the learned Counsel for the appellant that P.W.4 and P.W.5 who are friends of the

deceased Murugan, were introduced only on 12.02.2003 when they were examined in the course of investigation and the same would invite

serious doubt about their evidence. Learned Counsel for the appellant would further submit in his argument that the weapon which is said to have

been used for the offence, cannot be connected with the offence because there is no conclusive proof of grouping of blood found in the weapon

M.O.1.in the serology Report Ex.P.15, whereas the bloodstains in the clothes worn by the deceased Murugan were found to be AB Group. The

non correlation of blood group in the weapon M.O.1 could also lead to suspicion, despite the said weapon was seized on the alleged confession of

the accused. Moreover he would further submit in his argument that the alleged motive and the recovery of weapon on the alleged confession of

the accused could not form a complete chain so as to invite conviction u/s 302 I.P.C. against the accused, since the alleged last seen theory, the

witnesses viz., P.W.4 and P.W.5 are not reliable with their evidence. He would plead that in these circumstances the prosecution evidence

adduced cannot implicate the accused in the alleged offence of 302 I.P.C. for the alleged commission of murder of the deceased Murugan.

We heard Mr. V.R. Balakrishnan learned Additional Public Prosecutor in detail. He would submit that in his reply argument that the

prosecution had examined P.W.1 to P.W.13 and has produced Ex.P.1 to Ex.P.15 and M.O.1 to M.O.11 in order to substantiate the case of the

prosecution, and the prosecution has succeeded in his attempt to prove the guilt of the accused beyond reasonable doubt. Learned Additional

Public Prosecutor would further submit in its argument that P.W.1, the step mother of the deceased Murugan had spoken about the motive for the

killing of the deceased Murugan by the accused and the seizure of M.O.1 on the confession of the accused in the presence of P.W.7 and P.W.8

would show that the weapon M.O.1 was hidden by the accused and the medical evidence viz., P.W.2 would go along with to show that the said

M.O.1 was shown to him and he had given a opinion that the said injuries sustained by the deceased Murugan could have been caused by the said

M.O.1 Aruval and therefore the motive, seizure and the evidence of Doctor would complete the chain of circumstantial evidence and the last seen

theory could be teated as an additional factor for the conviction of the accused. He would also submit that the witnesses P.W.4 and P.W.5 have

spoken to the effect that the deceased Murugan accompanied by the accused and one Suresh at about 9.30 p.m. on the fateful day and P.W.5

would state that the accused was following the deceased Murugan at the Cauvery River Bank, at about 10.00 p.m. on the same day and after

sometime he could see the accused alone was returning without the said Murugan and the same would go a long way to show that the said Suresh

who accompanied the accused and deceased and who was seen by P.W.4, had gone away and therefore the accused though had accompanied

the deceased Murugan and after the commission of offence at the Cauvery River Bank he returned alone. This would go a long way to show the

completion of the circumstantial evidence. He would further submit that the examination of P.W.4 and P.W.5 by the police on 12.2.2003 after the

arrest of the accused on 6.2.2003 as the witnesses P.W.4 and P.W.5 were afraid of accused and there cannot be any doubt over the evidence of

P.W.4 and 5 and therefore the evidence adduced on the side of the prosecution would prove the guilt of the accused beyond any reasonable

doubt and therefore the conviction and sentence imposed by the learned Principal Sessions Judge may be confirmed and appeal may be dismissed.

We have considered the arguments advanced on either side with due caution and with careful perusal of records produced before us.

The main case of the prosecution depends upon the circumstantial evidence adduced by the prosecution. There is no eye witness to speak

about the actual witnessing of the occurrence. There is no doubt that P.W.1 had deposed that the cousin sister of accused viz., Thenmozhi was

married to deceased Murugan as third wife and they were not living together and the accused was telling the deceased Murugan to live with his

cousin sister peacefully and if the said advise of the accused was not heeded by the deceased Murugan he would speak through Aruval. That was

also made her to caution Murugan to be careful with the accused. Similarly it is not disputed that P.W.4 and P.W.5 are the friends of the deceased

Murugan. In their evidence they have stated that the accused and the deceased have quarrelled at the bus stand and they have interfered and

pacified both of them. If really P.W.4 and P.w.5 were present witnessing the accused Murugan and Suresh at the bus stand at 9.30 p.m., and

accused and the deceased Murugan were seen at 10.00 p.m. on the bank of Cauvery river side they could have interfered at the time and saved

Murugan especially the accused had threatened the deceased Murugan with dire consequences. The non examination of P.W.4 and P.W.5 at the

time of Inquest and the delayed examination of P.W.4 and P.W.5 by the police during the investigation also threw serious doubts about the

veracity of those witnesses. Therefore we do not believe the evidence of P.W.4 and P.W.5 that they have seen the accused, deceased and one

suresh at the bus stand and thereafter accused and deceased in the Cauvery River Side on that day. The arguments advanced by the learned

Additional Public Prosecutor to the effect that the motive and the recovery of the weapon on the confession of the accused in the presence of

P.W.7 and P.W.8 clubbed with the evidence of Doctor who had connected M.O.1 with the injury sustained by the deceased would hold the

circumstantial evidence completed cannot be accepted. It is because, the Serorlogy Report Ex.P.15 would show that the bloodstains in M.O.1

could be detected as human blood but the group in the same was inconclusive, since the grouping of blood could not connect with the blood found

in the M.O.1 as well as the clothes of the deceased Murugan. Therefore, it is not safe to rely upon the evidence of P.W.2 the Post Mortem Doctor

alone for affirming M.O.1, used in the offence.

Learned Counsel for the appellant placed reliance on the decision of the Honourable Supreme Court in Inderjit Singh and another Vs. State of

Punjab, , wherein the Honourable Superme Court held as follows:

...It is well settled that in a case pending on circumstantial evidence, the prosecution must establish all the circumstances by independent evidence

and the circumstances so established must form a complete chain in proof of guilt of the accused beyond all reasonable doubts. The circumstances

so proved must also be consistent only with the guilt of the accused. Among the circumstances relied upon by the prosecution, in the light of these

principles we find that except the circumstance No. 1, the other circumstances are not incriminating. In number of cases it has been held that the

only circumstance namely that the deceased was last seen in the company of the accused by itself is not sufficient to establish the guilt of the

accused.

This Court raises serious doubts about the involvement of the accused in the alleged crime of commission of murder against the deceased

Murugan as per the prosecution case. Therefore Mere recovery of the weapon on the confession of accused in the presence of P.W.7 and P.W.8

clubbed with motive spoken by P.W.1 cannot warrant conviction. In these circumstances it has become necessary to come to the conclusion that

the prosecution evidence produced did not complete the chain of circumstantial evidence and the link of last seen theory has not been available for

the prosecution and therefore the appellant is entitled for acquittal as the appellant is entitled to benefit of doubt.

In the result, the appeal is allowed, setting aside the conviction and sentence passed by the learned Principal Sessions Judge, Erode dated

01.04.2004 in S.C. No. 33 of 2004 and the appellant is acquitted since not found guilty. Fine amount if any paid by the appellant is ordered to be

refunded. The bail bonds shall stand cancelled.