Velraj and Murugan vs The State

S. Palanivelu, J.—These criminal appeals have been preferred under Sections 374 and 374(2) Cr.P.C against the common judgment dated

28.08.2007 made in S.C. No. 1 of 2007 by the Additional District & Sessions Judge, Virudhunagar. whereby these appellants, who were shown

as A.1 and A.2 respectively along with A.3 stood charged, and on trial A.3 was acquitted of all the charges, whereas A.1 and A.2 were found

guilty under Sections 364, 120B and 302 IPC, convicted and sentenced to suffer Rigorous Imprisonment for 2 years each and also to pay a fine of

Rs. 500/- each in default of which to suffer Rigorous Imprisonment for three months each for the offence u/s 364 IPC and also imposed Rigorous

Imprisonment for two years each and also directed to pay a fine of Rs. 500/- each in default of which to suffer Rigorous Imprisonment for three

months each for the offence u/s 120B IPC and also sentenced to suffer imprisonment for life each and also to pay a fine of Rs. 1000/- each in

default of which to suffer Rigorous Imprisonment for 6 months each for the offence u/s 302 IPC. All the substantiative sentences are to run

concurrently. Hence, these appeals have been brought forth by A.1 and A.2.

Tersely depicted the prosecution case is as follows:

P.W.1 is the father of the deceased, Sundarrajan. P.W.2 is the wife of the second accused. The third accused is her brother. The first accused is a

close friend of the second accused. Between the families of P.W.1 and the second accused, cordial relationship was prevailing and hence, the

members of each of the families used to visit the other''s house. The second accused represented before P.W.1 that Sundarrajan used to come to

his house frequently and meet his wife, misbehaving with her.

P.W.1 lodged, Ex.P.1, complaint with Soolakkarai Police Station, in which he has alleged that his son Sundarrajan was an auto driver and the

second accused told him that there was illicit intimacy between his wife and Sundarrajan and on 19.02.2006, at about 4 p.m. the first accused

came in an auto and asked Sundarrajan to come with him for the purpose of pouring petrol in the auto. The deceased went along with him and

thereafter, there was no information about his son. A case was registered in Crime No. 40 of 2006 u/s 363 IPC by the said police, and the First

Information Report is Ex.P.24.

On receipt of the First Information Report, P.W.18, the Inspector of Police took up the case for investigation, proceeded to the scene of crime,

prepared an Observation Mahazar and a rough sketch in the presence of witnesses, which were marked as Ex.P.32 & Ex.P.33 respectively. With

regard to this offence, he examined witnesses and recorded their statements.

Thereafter, the investigation was pursued by P.W.15, the Inspector of Police. On 13.03.2006, at about 2.00 p.m., P.W.6, one Govindaraj, the

Village Administrative Officer, appeared before P.W.15, and produced the second accused stating that on the same date at about 1.00 p.m, the

second accused approached him and gave a confessional statement and it was reduced into writing by him. The said confessional statement is

Ex.P.3. P.W.6 has given the same to P.W.15 along with Ex.P.25, the special report.

On receipt of the said confessional statement, P.W.15, the investigating officer, altered the case to one u/s 302 IPC and sent the Express

Report, Ex.P.26 to Virudhunagar Judicial Magistrate No. 2. He arrested the second accused in the Police Station and recorded his confessional

statement in the presence of witnesses in pursuance of which he took the investigating officer and other witnessess to the place where the mortal

remains of Sundarrajan were lying. The investigator prepared an Observation Mahazar and a rough site plan Ex.P.7 and Ex.P.27 respectively.

Afterwards, he conducted inquest over the dead body in the presence of panchayatdars and prepared Ex.P.28, the inquest report. Since the body

was in decomposed condition, he gave a requisition to the Medical Officer, Virdhunagar Government Hospital, to conduct autopsy in the place

where the body way lying. The Doctor, P.W.16, held post-mortem over the dead body in the place where the corpse was available at about 1

p.m. on 14.03.2006 and gave a post-mortem certificate, Ex.P.31. He is of the opinion that the death might have happened 7 days back. His

findings in the post-mortem certificate are as follows:

...A decomposed male body lying over the left side with right upper limbs bones seen 2 feet to the left of the body. A fullsleves soiled checked shirt

and a black pant where on the body and it was removed. Nutritional body: Decomposed body exposing bits of skin and muscles and predominatly

bones seen symmetry left upper limb bones lying 2 feet to the left side of body. Hair bundles and a cervical vertebra seen 4 feet from the right side

of the body. Post mortem examination done head to foot. Head: Skull bones expired. Eye sockets empty. Thin decomposed scalp seen over

occippital region. On opening skull liquefied black material seen. Teeth 3 3 7 4 No organs of mouth seen. A bit of decomposed right seen along

with skin attached to base of right mandible. Structures of neck absent. Hyoid bone (nc) seen oval spine dislodged. No fracture of cervical spine

cartilages. Thorax: Decomposed and open. Ribs are round individually without any attachment. All organs of thorax decomposed and thoracic

spine seen. No fracture of ribs or thoracic spine. Abd:Decomposed and exposed. All organs of abdomen decomposed beyond recognition and

lumbar spine. Pelvi bone exposed in front with decomposed structure and penis seen. Bladder decomposed and not made out. Decomposed

gluteal muscles attached to pelvic bone exposed in front with decomposed scrotom and penis seen. Bladder decomposed and not made out.

Decomposed gluteal muscles attached to pelvis bone both sides and extended till back of thigh in bits and exposing (nc) in between. Both lower

limbs bones and smallbones of feet are intact with bits of skin and muscles decomposed and attached right upper limbs humerous, tibia ribula intact

and dislocated. Left upper limbs bones small bones of hand intact.

After the post-mortem was over, M.Os.1 and 2, the shirt and the pants respectively, found on the dead body, were collected by the Head

Constable, P.W.13, and handed over to the Inspector of Police. While the matter stood thus, the second accused took the Investigator, P.W.15,

and witnesses to his house and handed over the Wrist watch, M.O.3, belonging to the deceased, Sundarrajan, at 7 p.m. on 14.03.2006, P.W.15

arrested the third accused at Virudhunagar New Bus Stand and recorded his confessional statement given voluntarily. The admissible portion is

Ex.P.29. Pursuant to his confessional statement, he produced M.O.4, a knife, from a channel of Sivakasi Bye-pass Road, which was seized under

cover of mahazar, Ex.P.30. P.W.15 sent both the accused for judicial custody. He also recovered the bloodstained earth and sample earth from

the scene of crime. He learnt that the first accused surrendered before the Judicial Magistrate No. 2, Madurai, on 08.03.2006. On 16.03.2006, he

was produced before Virudhunagar Judicial Magistrate Court No. 2, where P.W.15 filed a requisition for police custody. Accordingly, police

custody was ordered to him and the first accused was enquired by him. He gave a confession statement voluntarily, in which Ex.P.4 is the

admissible portion, and on the basis of same, he produced an auto TN65B 3560 with the name on it as ""Muthumari"" which was recovered under

cover of mahazar Ex.P.5.

He produced the first accused on 17.03.2006 before the Court. P.W.15 further examined witnesses and recorded their statements. He seized

the photograph and driving licence of the deceased Sundarrajan under Form-95. He took steps to identify the deceased by superimposition test by

giving a request to the Court. P.W.7, the Scientific Assistant, working in the Anthropology Division in Forensic Science Department, compared the

skull taken from the dead body with the photograph of the deceased and gave a report, Ex.P.23, stating that the skull belongs to the male

individual seen in the photographs. By means of the scientific method, it is shown that the deceased was Sundarrajan. After P.W.15, further

investigation was taken up by P.W.19 after getting the report regarding superimposition. He completed investigation after examining the scientific

assistant P.W.17 and other Court officials and laid charge sheet against the accused under Sections 363, 120(b) and 302 IPC.

The prosecution to further its case, examined as many as 19 witnesses and marked 30 exhibits and 5 material objects. After completion of the

oral evidence, the accused were questioned u/s 313 Cr.PC as regards incriminating circumstances against them in the prosecution evidence. All of

them denied their complicity in the offence. They had not examined anybody else, nor had they marked any documents on their behalf. Considering

the evidence on record, the lower Court accepted the prosecution case and found all the charges framed against A.1 and A.2 true finding them

guilty, but A.3 was not found guilty, and he was acquitted. The trial Court convicted both A.1 and A.2 as stated above.

Learned Counsel appearing for the appellants would submit that there is an inordinate and unexplained delay in lodging the First Information

Report as well as the receipt of the same by the Court which raises a reasonable doubt in this case. When the offence u/s 363 IPC was stated to

have occurred on 19.02.2006, only on 27.02.2006, the complaint was lodged by P.W.1 and even though the case is said to have been registered

on the same date, the First Information Report reached the Court only on 06.03.2006. As per their contentions, P.W.1 and the police had taken

reasonable time to have discussion with the persons who are against the interest of the appellants and roped them into the case and foisted a false

case against them.

It is also their contention that in Ex.P.3, confession statement, allegedly given by the second accused, it is stated that the second accused

intended to surrender before the Court. When that being so, what has prompted the second accused to appear before the Village Administrative

Officer, remains unexplained. It is their further submission that the recoveries and identity of the body have not been established before the Court

satisfactorily and the contradictions and discrepancies in the oral testimonies of the prosecution witnesses would definitely weaken the case of the

prosecution.

Learned Additional Public Prosecutor was heard on the contentions put forth on behalf of the appellants.

At the first instance, it is to be seen whether the long inordinate delay in lodging the First Information Report has been duly explained by the

prosecution. On 19.02.2006, the deceased was taken by the first accused from his house. P.W.1 says that he was searching for his son for about

two days and on 21.02.2006, he enquired about his son in the house of the first accused and he also orally informed to the Police Station. On

27.02.2006, he laid a complaint, Ex.P.1, before the Police Station. Even though it was registered on the same date, it reached the Judicial

Magistrate Court No. 2, Virdhunagar, on 06.03.2006 only. The said long delay remains unexplained. The connected witnesses, namely, the police

officials who are responsible for registering the case and despatching the First Information Report to the Court and the Investigation Officer as well

have not stated anything as to the delay in their oral evidence.

It is contended by the appellants'' side that a suggestion was put to the investigating officer, only after it was reported to the police that an

obnoxious odour was emanating from the scene of crime, he detected the presence of the corpse and concocted the case by creating records. It is

incumbent upon the prosecution to explain the delay caused in receipt of the First Information Report by the Court. P.W.14 registered the case

and sent the First Information Report to the Court and the copies to the concerned officials. In his cross- examination, he says that the distance

between the police station and the Court is only 3 furlongs and one can reach the Court from the Police Station within five minutes by means of

vehicle and in 10 minutes if it was by walk. He is competent to explain about the delay, but he has not satisfied the conscience of the Court. If the

First Information Report is coming to the Court with considerable delay, which remains unexplained, it would enable the concerned to make a

concocted version of the occurrence, to improve the features of the same in favour of the prosecution, to implicate the persons, inimically disposed

of the complaint and the favourable persons be brought into the case as witnesses. If it is so, the real culprit will wriggle out from the case and

innocent persons may be roped into the case. As far as the facts of this case are concerned, the unexplained inordinate delay has made this Court

to smell rat on the prosecution case. The delay is fatal to the prosecution.

The next leaf of contention of the learned Counsel for the appellants is that the confession reportedly given by the second accused before

P.W.6 is not all lawful in the eye of law. Even as per the prosecution version, it was recorded after the investigation was taken up in this case, and

hence, it is not admissible in evidence by mischief of Rule 72 of Criminal Rules of Practice. The said contention deserves to be accepted. On

19.02.2006 itself, the complaint was lodged and police had taken up the investigation from that day and the second accused is said to have given

Ex.P.3, confessional statement to P.W.6 only on 13.03.2006. Hence, as per the settled propositions of law, the extra judicial confession in the

form of Ex.P.3 is not admissible in evidence. Further, in the said statement, it is stated that the second accused was willing to surrender before the

police or before the Court. Had it been his intention, he might have surrendered before any of the fora, but there was no necessity for him to

approach P.W.6 and request him to facilitate him to appear before the police. The said theory is incomprehensible.

Yet another limb of contention of the appellants is that the dead body was not properly identified. Only by seeing the colour of the clothings

available in the scene of crime, P.W.1 identified the body as that of his son. The body was in a decomposed and mutilated state. Even in his

evidence, he says that he could not identify the body, since it was in a highly decomposed state. The superimposition test is extending a helping

hand to the prosecution that the deceased was Sundararajn, son of P.W.1. P.W.17 is definite in this regard by the report from the Anthropology

Department of Forensic Science Department from which it is established that the deceased was Sundarrajan.

As far as the recovery portion is concerned, it is to be observed that the recoveries of material objects have been partly proved. Witnesses,

even though say about the recovery of the material objects through the accused, had not stated anything so as to prove that they were recovered

as per the prosecution version. Even though the wrist watch as if it belonged to Sundarrajan was recovered from the second accused, still it has not

been established that it was worn by the deceased at the time of occurrence. The recovery of knife does not improve anyway the case of the

prosecution.

Mr. V. Kathirvelu, the learned Counsel for the first appellant would contend that when the prosecution is relying upon the circumstantial

evidence, it is incumbent upon it to prove it as per the settled law leaving no iota of doubt that the accused alone were the actors of the crime and

that all the links should be proved by the prosecution. It is his further contention that if the prosecution advanced its case on the strength of the last

seen theory, it must be shown that there was no long gap between the time when deceased was seen with accused and the time of death, and if the

proximity of the death is found to be with a considerable gap, the prosecution case has to be necessarily suspected. For these propositions of law,

he garnered support from a decision of Apex Court reported in (2007) 2 SCC(Cri) 162, State of Goa v. Sanjay Thakran and Anr., in which it is

held as follows:

The prosecution case is based on the circumstantial evidence and it is a well-settled proposition of law that when the case rests upon

circumstantial evidence, such evidence must satisfy the following tests:

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human

probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the

guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (

State of U.P. Vs. Satish, ).

Padala Veera Reddy Vs. State of Andhra Pradesh and others, , Sharad Birdhichand Sarda Vs. State of Maharashtra, , Gambhir Vs. State of

Maharashtra, Hanumant Govind Nargundkar v. State of M.P. AIR 1952 SC 443 Tota Singh and Another Vs. State of Punjab,

...

36...Hence, there has been a considerable time gap of approximately 8. hours when D-2 was last seen alive with the accused couple. There being

a considerable time gap between the persons seen together and the proximate time of crime, the circumstance of last seen together, even if proved,

cannot clinchingly fasten the guilt on the accused.

Concedingly there was no direct evidence in this case. If the circumstantial evidence projected as per the well settled principles, there could be

no stumbling block for this Court to base conviction. But, as far as the facts of present case are concerned, the inference of guilt has not been

firmly and strongly established by the prosecution. No connecting link is available to point the guilt of the accused. In other words, there is no

sufficient material to connect the accused with the crime. The circumstances relied upon by the prosecution, have not been shown to be genuine so

as to find the accused guilty. Very many links are missing in the chain of events in this case, and the said chain is not completed. When lapses are

found in the case, it is not at all safe to convict the accused. Even though there was some evidence appear to be connecting links, they are not

adequate to make the chain a strong one enabling the Court to convict the accused. As per P.W.1, the first accused took the deceased on

19.02.2006 and the crime was detected only on 13.03.2006. The long gap found in the said circumstance is one of the factors to form a suspicion

on the prosecution case as per the above said decision of the Supreme Court.

Applying the principles laid down by the Apex Court to the fact and circumstances of this case, it is to be held that the circumstantial evidence

upon which the prosecution has built up the case has lost its evidentiry value and hence reasonable doubts have surfaced in this case.

Viewing from any angle the prosecution case is improbable. It has miserably failed to bring home the guilt of the accused beyond reasonable

doubt. The appellants are entitled to get the benefit of doubt which have arisen in this case. The prosecution case does not bear the ring of truth.

The charges framed against the accused remain unproved.

In the result, both the above Criminal Appeals are allowed. The Judgment of conviction and sentence imposed on the appellants A.1 and A.2

by the Additional District and Sessions Judge, Fast Track Court, Virudhunagrar, dated 28.08.2007 made in S.C. No. 1 of 2007, is set aside, and

they are acquitted of the charges levelled against them. It is reported that the appellants are in jail. They are directed to be released forthwith unless

their presence is required in connection with any other case. The fine amounts, if any paid by them, shall be refunded to them.