CRL A/93/2007 of RAMESH Vs STATE REP BY on 20 December 2007

JUDGMENT

(Judgment of the Court was delivered by D.MURUGESAN, J.)

The appeal is directed at the instance of both the appellants, whowere tried as A-1 and A-2 respectively in S.C.No.306 of 2006 on the fileof the learned Additional District and Sessions Judge (Fast Track CourtNo.I) Coimbatore. By a judgment dated 5.1.2007, the learned SessionsJudge found both the accused guilty of the offence under Section 302read with 34 IPC and sentenced them to undergo life imprisonment andalso to pay a sum of Rs.1,000/- each, in default to undergo simpleimprisonment for three months. The legality of the said judgment is putin issue in this appeal.

2. The prosecution case in brief is as follows:- The deceased-Manikumar was working as a Coolie in Ashok Millssituate at Pukkulam village. As he had contacts with number of womenand was also supplying women to the villagers, the accused had warnedhttps://hcservices.ecourts.gov.in/hcservices/the deceased and advised him not to indulge in such activities. In spite of such warning, the deceased continued to indulge in such acts.Hence on 1.11.2005 at about 8.00 p.m., both the accused, with anintention to murder the deceased, took him from his house to atransformer post situate within the jurisdiction of Udumalpet PoliceStation and, after giving him brandy, at about 11.00 p.m., while A-2pushed the deceased to the ground and caught hold of his legs, A-1stabbed the deceased with a billhook on his right hand and neck and dueto the said injuries, the deceased died.

3. P.W.1, the father of the deceased, was informed by P.W.5 on2.11.2005 at about 6.00 a.m., that the body of the deceased was foundnear a transformer post in the village and therefore he went to thescene of occurrence and found his son lying dead with injuries on theright hand and neck. Immediately he went to P.W.7 and asked him towrite the complaint, Ex.P-1 and thereafter went to Udumalpet PoliceStation and lodged the complaint before P.W.16, the Sub Inspector ofPolice at about 7.30 a.m., which was registered in Cr.No.1074 of 2005for the offence under Section 302 IPC. The printed First InformationReport is Ex.P-15. The express reports were forwarded to the JudicialMagistrate, Udumalpet and also to the higher police officials.

4. P.W.17, the Inspector of Police took up investigation on receiptof the First Information Report and proceeded to the scene of occurrenceat about 9.00 a.m., and prepared an Observation Mahazar, Ex.P-5 and alsodrew a rough sketch, Ex.P-16 in the presence of P.Ws.8 & 9. He alsocaused photographs of the scene of occurrence. He also recovered twoempty brandy bottles, one 7up cool drink bottle, two brandy bottle capsand two paper cups, M.Os.1 to 4 respectively under a mahazar in thepresence of the same witnesses. He also caused the assistance of fingerprint expert. He conducted inquest on the body of the deceased between11.00 a.m., and 1.30 p.m., in the presence of witnesses and prepared theinquest report, Ex.P-17. He thereafter sent the body of the deceasedthrough the Head Constable, P.W.14 to the Udumalpet Government Hospitalfor conducting post-mortem.

5. P.W.12, the Civil Surgeon attached to the said hospital,commenced post-mortem at 4.30 p.m., on the body of the deceased and shenoted the following injuries:-"Body of male lies on its back, symmetrical.Moderately nourished. Eyelids partially opened. Tongueinside. Jaws clenched. (1) A transversely cut injury over the upper part ofthe neck above the level of thyroid prominence. Sternomastoid muscles on the both sides severed 10 x 2.8 cms insize. Trachea - Oesophagus severed at the level of Itracheal ring. Great vessels on the right side of theneck severed at the same level. 50 gms. of clotted bloodseen on the severed ends of carotid artery. Paravertebral muscles on the anterior aspect. Vertebra wasfound cut. Body of the anterior aspect of 3[rd] vertebrainjured. Few blood clots seen in the trachealoesophagus.

(2) An oblique cut injury over the right side of theneck about 3 cm below the injury (1) 5 x 2 x 3 cms abouthttps://hcservices.ecourts.gov.in/hcservices/50 gms. firmly clotted blood over the wound. On removal of clots right sterno mastoid muscles fibres foundavulsed. Structure over the supra clavicular fossaexposed. Hair line fracture found on the medial end ofthe right clavicle.(3) Two transverse branched wound seen below the Istinjury. On deep dissection no underlying tissue damaged.(4) L shaped lacerated injury over the base of thelittle finger exposing the bone head of the 5[th] metacarpel bone fractured with anti oblique cut injury overthe right forearm on the middle third along the ulnarmargin 3 x 2 x 2 cm underlying muscle cut. No fractureof ulnar bone.

Hyoid bone - left horn broken."

She issued the post-mortem certificate, Ex.P-14 with her opinion thatthe deceased would appear to have died of shock and haemorrhage due toinjury sustained to the great vessels in the neck 12 to 18 hours priorto post-mortem.

6. P.W.17, continuing with his investigation, examined P.Ws.1 to 6,10 and other witnesses and recorded their statements. He examined thewitness namely, Mani at about 6.00 p.m., and on the basis of hisstatement, he recovered the red coloured torch light, M.O.10 and the twocells, M.O.11 series in Form-95. He also recovered the bloodstainedclothes of the deceased produced by P.W.14 namely, one blue colouredhalf slack shirt, M.O.7, one white and blue coloured lungi, M.O.8 andone brief, M.O.9 in Form-95. On getting clue, he went to Udumalpet Oldbus stand at about 6.00 a.m., on 3.11.2005 and arrested both theaccused. In pursuance of the admissible portion of the confession of A-1, he recovered the bloodstained billhook, M.O.5 under a mahazar. Hebrought the accused to the police station at about 9.30 a.m., on3.11.2005 and recovered the bloodstained full slack shirt, M.O.12 andthe bloodstained lungi, M.O.13 from A-1 under Form-95. He alsorecovered the bloodstained full slack shirt, M.O.14 and the bloodstainedlungi, M.O.15 from A-2 under Form-95. After taking fingerprints of theaccused, at about 11.30 a.m., he remanded them to judicial custody. Healso examined P.Ws.10,15,7,13,14,16 and recorded their statements. Hesent the seized material objects to the Court under Form-95. Heexamined the post-mortem doctor, P.W.12 and recorded her statement.After receiving the reports of the fingerprint expert, Exs.P-20 & P-21,chemical analyst's report, Ex.P-22 and the serologist's report, Ex.P-23and after completing investigation, he laid the charge sheet against theaccused for the offence under Section 302 read with 34 IPC on 30.11.2005before the Court.

7. In order to substantiate its case, the prosecution examined 17witnesses, marked 23 exhibits and produced 15 material objects.

8. When the accused were questioned under Section 313 of theCriminal Procedure Code as to the incriminating materials appearingagainst them, they denied them as false. No witness was examined and nodocument was marked on the side of the defence. However, onconsideration of the materials, the learned Sessions Judge found theaccused guilty, convicted and sentenced them for the offence as statedhttps://hcservices.ecourts.gov.in/hcservices/earlier.

9. In support of the criminal appeal, Mr.K.Kalyanasundaram, learnedcounsel for the appellants has submitted that the prosecution case restssolely on the circumstantial evidence and there are three circumstancesput forth by the prosecution namely, (1) motive, (2) last seen theoryand (3) the recovery of material objects. The learned counsel wouldsubmit that in a case of circumstantial evidence, the burden of proof asto the motive heavily rests on the prosecution. In this case, themotive has not been established and except the evidence of P.Ws.1 & 2who are closely related to the deceased namely, P.W.1 is the father ofthe deceased and P.W.2 is the brother's son of P.W.1, no other witnesshas spoken about the motive. As it is pleaded that the deceased washaving contacts with various women and was supplying women to thevillagers, the prosecution ought to have examined independent witnessesto prove the above act of the deceased. Further, even according toP.Ws.1 & 2, when the deceased was questioned as to the above, thedeceased has denied any such act. In these circumstances, there isabsolutely no evidence to prove the motive. In the absence of the same,the prosecution cannot sustain its case solely on the othercircumstances.

10. So far as the second circumstance namely, last seen theory isconcerned, the learned counsel would submit that it is spoken to byP.Ws.1 & 6 and again P.W.1 being the father has only stated that thedeceased was taken from his house by the accused. It is highlyunnatural for a father to allow his son to accompany the accused,especially when the accused had earlier warned not only the deceased butalso his father by stating that he should stop his son from indulging insuch illegal acts of bringing the women and supplying to various personsin the village. Leaving apart the evidence of P.W.1, the evidence ofyet another witness-P.W.6 also cannot be taken for sustaining theconviction as even according to him, both the accused and the deceasedwere friends and in the normal course, there is nothing strange in allthe friends seen together. The learned counsel submits that merelybecause the accused and the deceased, who according to P.W.6 arefriends, were moving around together, such circumstance need notnecessarily result in the commission of the offence. The learned counselfurther submits that the contents of the complaint itself is doubtfulinasmuch as it has been admittedly written by P.W.7. From the evidenceof P.W.7 it is seen that he saw the complainant namely, P.W.1 even at6.00 a.m., on 1.11.2005 at the scene of occurrence and thereafter only,P.W.1 appears to have gone to him and prepared the complaint, Ex.P-1.There is every possibility for tutoring P.W.1 to falsely implicate theaccused in this case. He would also submit that the arrest andconfession also raise serious doubt inasmuch the evidence of P.Ws.10 &15 who hail from different villages were shown as witnesses for thearrest and confession and when the subsequent recovery was made in adifferent place outside the scene place, independent witness ought tohave been examined. He would further submit that both P.Ws.10 & 15 havestated that the accused were arrested at the new bus stand which iscontrary to the evidence of the Investigating Officer, P.W.17 asaccording to him the arrest was made only at the old bus stand. In theevent a reasonable doubt is entertained as to the arrest, confession andthe consequential recovery, the prosecution case must fail for want ofhttps://hcservices.ecourts.gov.in/hcservices/cogent and continuous circumstances to implicate the accused. So far as the case of the prosecution that the accused and the deceased hadconsumed brandy before the occurrence had taken place is concerned,admittedly, the post-mortem certificate, Ex.P-14 issued by the doctor-P.W.12 does not indicate the detection of alcohol. For all the abovereasons, the chain of circumstances have not been established and thereare missing links to connect the accused to the crime and therefore theyare entitled to an acquittal.

11. Mr.P.Kumaresan, learned Additional Public Prosecutor, on theother hand, would submit that the motive is well spoken to by P.Ws.1 & 2and the last seen theory is well spoken to by P.Ws.1 & 6. Apart fromthe above, both the motive and the last seen theory are also mentionedin the inquest report, Ex.P-17. The arrest and the confessionalstatements leading to the recovery would act as a strong piece ofevidence to connect the accused to the crime. He would also submit thatitem no.4 referred to in Ex.P-22 relates to a rusty metal billhook withwooden handle and rusty metal band measuring about 61.5 cm in length andthe same contained blood. He would also submit that as the recovery ofthe billhook and the shirts worn by both the accused were made pursuantto the confessional statements, the burden is therefore heavily shiftedto the accused in terms of Section 114(g) of the Indian Evidence Act andthe defence has not discharged the said burden. He would further submitthat in Ex.P-23, Chemical Examiner's report, the human blood group ABwas found in the shirt and lungi worn by the deceased at the time ofoccurrence. The very same human blood group AB was also found in theshirts and lungis worn by both the accused and the presence of humanblood group AB in the clothes of the accused is the strongest piece ofevidence against the accused. He would also submit that inasmuch as theconsumption of brandy was around 11.00 p.m., on 1.11.2005 and the post-mortem was conducted on 2.11.2005 at about 4.30 p.m., after more than 17hours, the non-detection of alcohol in the body of the deceased wouldnot falsify the case of the prosecution. For all these reasons, thelearned Additional Public Prosecutor submitted that the judgment underappeal need not be interfered with.

12. We have carefully considered the above contentions raised oneither side and also perused the judgment of the learned Sessions Judgeand other records placed before us. Before we delve upon the merits ofthe case based on the evidence, it would be proper for us to refer tothe law laid down by the Apex Court on the issue relating tocircumstantial evidence. As early as in the year 1952, the Apex Courtin the judgment in Hanumant Govind Nargundkar v. State of Madhya Pradesh(AIR 1952 SC 343) has observed thus:

'It is well to remember that in cases where theevidence is of a circumstantial nature, thecircumstances from which the conclusion of guilt is tobe drawn should in the first instance be fullyestablished, and all the facts so established should beconsistent only with the hypothesis of the guilt of theaccused. Again, the circumstances should be of aconclusive nature and tendency and they should be suchas to exclude every hypothesis but the one proposed tobe proved. In other words, there must be a chain ofhttps://hcservices.ecourts.gov.in/hcservices/evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocenceof the accused and it must be such as to show thatwithin all human probability the act must have beendone by the accused."

13. In Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4SCC 116, the Apex Court has held that "while dealing with circumstantialevidence, the onus was on the prosecution to prove that the chain iscomplete and the infirmity of lacuna in prosecution cannot be cured byfalse defence or plea". In Padala Veera Reddy v. State of AndhraPradesh (1989 Supp (2) SCC 706), the Apex Court has laid down thefollowing tests for consideration in a case of circumstantial evidence:

"(1) the circumstances from which an inference ofguilt is sought to be drawn, must be cogently and firmlyestablished;

(2) those circumstances should be of a definitetendency unerringly pointing towards guilt of theaccused;

(3) the circumstances, taken cumulatively, shouldform a chain so complete that there is no escape from theconclusion that within all human probability the crimewas committed by the accused and none else; and(4) the circumstantial evidence in order to sustainconviction must be complete and incapable of explanationof any other hypothesis than that of the guilt of theaccused and such evidence should no only be consistentwith the guilt of the accused but should be inconsistentwith his innocence."

14. The above judgments were quoted with approval by the Apex Courtin the recent judgment in Manjunath Chennabasapa Mudalli v. State ofKarnataka (2007) 3 SCC (Crl.) 101.

15. That apart, the Apex Court has also held that the prosecutionmust establish its case without any missing link as has been held inSudama Pandey v. State of Bihar (2002 SCC (Crl.) 239.

16. As in a case of circumstantial evidence the Court must keep theabove principles enunciated by the Apex Court in mind, we propose toconsider the evidence adduced by the witnesses in this case accordingly.

17. Motive: Absence of motive may not be relevant in a case wherethe evidence is overwhelming, but it is plus-point for the accused in acase where the evidence against him is only circumstantial. This law issettled by the Apex Court in the judgment in Sakharam v. State of MadhyaPradesh (1993 L.W.(Crl.) 29). It is true that motive is not the onlyingredient for the purpose of conviction in a case where there are eye-witnesses and other overwhelming evidence. In a case of circumstantialevidence, the motive also plays an important role to connect the accusedto the crime and the prosecution should also establish the motive, as itis a plus-point for the accused in a case where the evidence against himis only circumstantial. The motive as put forth by the prosecution isthat the deceased was having contacts with various women and was alsosupplying women to the villagers. This was not liked by both thehttps://hcservices.ecourts.gov.in/hcservices/accused. From the evidence of P.W.1, it is seen that the accused on an

earlier occasion had warned the deceased and advised him not to indulgein such illegal acts, as by that act he earns bad name to the village.That apart, just before the occurrence, the accused came and warnedP.W.1, who is the father of the deceased, to contain the deceased fromindulging in such illegal acts. The evidence of P.W.1 goes to show thathe pacified the accused and told them that he will advise his son andaccordingly, he has also advised his son, the deceased. This evidence ofP.W.1 is also corroborated by P.W.2.

18. Coupled with the above evidence, it is also to be seen thatP.W.1 was informed by P.W.5 that the body of the deceased was found neara transformer and immediately P.W.1 went to the scene of occurrence atabout 6.00 a.m., on 2.11.2005 and thereafter to P.W.7 and prepared thecomplaint, Ex.P-1. Even in Ex.P-1 he has stated about the complaint andthe consequential warning given by the accused to the deceased over hisillegal acts of having contacts with various women and also supplyingwomen to the villagers. After the above complaint was written by P.W.7,the same was given to P.W.16, which was registered at 7.30 a.m., itselfwithin a period of one and half hours and the First Information Reportreached the Court at 9.30 a.m. Even in the inquest report, Ex.P-17, themotive aspect is stated in column no.9. Though the inquest is relevantfor the purpose of finding out the cause of death, the contents of theinquest report can be taken as an additional piece of evidence forcorroborating the other evidence as to the motive. The inquest reportalso reached the Court at 10.30 a.m., on the same day even before thearrest of the accused was made. Hence we have no hesitation to holdthat the prosecution has established the motive beyond reasonable doubt.

19. The next circumstance to connect the accused is the last seentheory. The last seen theory is spoken to by P.Ws.1 & 6. The evidenceof P.W.1 as to the last seen theory cannot be disbelieved for the simplereason that he has stated that as his son was indulging in illegal actsby having contacts with various women and bringing them to the villagefor supplying them was informed to him by the accused, as a dutifulfather, he has responded and told the accused that he will question hisson, the deceased. The above conduct of P.W.1 makes us to believe theother statement as to the last seen theory, whereby he has stated thatat about 8.00 p.m., on 1.11.2005, both the accused came to the house andtook the deceased outside. This evidence is corroborated by theevidence of P.W.6 as well. According to the learned counsel forappellants, though the last seen theory is spoken to by P.W.6 as well asone Mani, strangely, the said Mani was not examined. Having regard tothe evidence of P.Ws.1 & 6 as to the last seen theory, we have no reasonto reject both the evidence for our further reasoning namely, that Ex.P-17-inquest report was prepared even before the arrest of the accusedbetween 11.00 a.m., and 1.30 p.m., on 2.11.2005. The last seen theoryas to the accused taking the deceased from the house of P.W.1 was spokento by P.Ws.1 & 6 in the inquest as well. It is not necessary for theprosecution to examine all the persons who were enquired during thecourse of investigation and it is sufficient if some of the persons havebeen examined as witnesses and those witnesses speak of the last seentheory beyond any reasonable doubt. Hence, in our considered view, theprosecution has established the second circumstance namely, the lastseen theory.https://hcservices.ecourts.gov.in/hcservices/

20. The other circumstance is as to the arrest, confession andrecovery. So far as the arrest and confession are concerned, theevidence of P.Ws.10 & 15, who are not only the witnesses for the arrestbut also the witnesses for the confession and recovery is clear. Thearrest is disputed by the learned counsel for appellants on the groundthat both P.Ws.10 & 15 have stated that the accused were arrested at thebus stand and considering the distance as spoken to by them from theplace of arrest and the scene village, it was hardly half a kilometre.Therefore, in all probability, the arrest could have been made only infront of the new bus stand. On the other hand, P.W.17, theInvestigating Officer has stated that the arrest was made only at theold bus stand, which is in a far off place. In our considered view, wehave no reason to accept the said submission. There is no discrepancyin the statements of P.Ws.10 & 15 as well as P.W.17. Both P.Ws.10 & 15have not spoken anything about the arrest of the accused at the new busstand. All that they have spoken was that the accused were arrested atthe bus stand, which may be new or old, but the arrest was made only atthe new bus stand as could be seen from the evidence of theInvestigating Officer, P.W.17. He would also say that the old bus standand the scene village is just two furlongs away. We cannot disbelievethe case of the prosecution merely because of minor discrepancy in thedistance between the place of occurrence as well as the place of arrest.We have the further reason for our above conclusion namely, after thearrest, the confessional statement, Ex.P-7 was recorded and the recoveryof the billhook, M.O.5 was made from the nearby place. As we have foundthat the evidence of P.Ws.10 & 15 could be believed for the arrest,confession and recovery, merely because some of the local residents havenot been examined to show the recovery, that will not be fatal to theprosecution case so far as the recovery is concerned. Further, it is tobe noted that immediately after the recovery of M.O.5, both the accusedwere taken to the police station and their shirts and lungis, M.Os.12 to15 were recovered. Further, Ex.P-22, the chemical analyst's reportsupports the case of the prosecution, which shows that blood wasdetected in the billhook recovered on the basis of the admissibleportion of the confession of the accused. Further, there is one morestrongest piece of evidence against the accused namely, the shirt andlungi, M.Os.7 & 8 worn by the deceased contained human blood group AB ascould be seen from Ex.P-23, the chemical analyst's report. Similarly,the shirt and lungi, M.Os.12 & 13 worn by A-1 at the time of occurrencealso contained human blood group AB. Equally the shirt and lungi,M.Os.14 & 15 worn by A-2 at the time of occurrence also contained humanblood group AB, which indicates the involvement of both the accused inthe crime.

21. From the above discussions, it is seen that the prosecution hasestablished the motive, last seen theory, recovery of weapon and alsothe shirts and lungis belonging to the accused contained the human bloodgroup AB, which is proved to be tallying with the blood group AB of thedeceased. In these circumstances, we find that the prosecution hassatisfactorily established its case without there being any missing linkand if at all some discrepancy as to the place of arrest is put beforehttps://hcservices.ecourts.gov.in/hcservices/this Court, such minor discrepancy will not affect the prosecution case in view of the overwhelming evidence. In our opinion, the circumstancesleading to the involvement of the accused in the commission of theoffence has been established and all the criteria laid down by the ApexCourt in the earlier judgments are fulfilled. Accordingly, the appealfails and it is dismissed. ss Sd/- Asst.Registrar/true copy/ Sub Asst.Registrar

To1. The Additional District & Sessions Judge (Fast Track Court No.I), Coimbatore2. -do- thru' the Principal Sessions Judge, Coimbatore3. The Superintendent, Central Prison, Coimbatore4. The Inspector of Police, Udumalpet Police Station, Coimbatore District5. The Public Prosecutor, High Court, Madras6. The District Collector, Coimbatore7. The Director General of Police, Chennai+1 cc to Mr.K.Kalyanasundaram, Advocate Sr.No.75783.CU(CO)DCP/10.1

Crl.A.No.93 of 2007