CHANDRU @ CHANDRASEKARAN versus STATE REP. BY DEPUTY SUPERINTENDENT OF POLICE CB CID AND ANR. on 12 February 2019

CHANDRU @ CHANDRASEKARAN

v.

STATE REP. BY DEPUTY SUPERINTENDENTOF POLICE CB CID AND ANR.

(Criminal Appeal No. 1193 of 2011)

FEBRUARY 12, 2019

[SANJAY KISHAN KAUL AND DEEPAK GUPTA, JJ.]

Penal Code, 1860:

s.302 r/w. s. 120B – Murder – Prosecution case based oncircumstantial evidence – Conviction by the trial court – High Courtaffirmed the conviction in appeal – On appeal, held: There wasinconsistency in the statement of the complainant (PW1) – Therewas delay in filing private complaint – The private complaint whichwas filed four years later was contrary to the first complaint whichwas filed immediately after the incident – Evidence of PW1 andPW5 cannot be relied on as they did not come to the court withclean hands – The circumstances relied on by the prosecution cannotlead to the inference that it is the accused alone who committed theoffence – In view of inconsistencies in medical evidence,prosecution has even failed to prove beyond reasonable doubt thatthe death was homicidal – Thus prosecution miserably failed to linkthe accused with the death of the deceased – The appellants-accusedare entitled to be acquitted.

Evidence:

Circumstantial evidence – Appreciation of – Held: In thecase of circumstantial evidence it should be observed that (1)circumstances leading to inference of guilt must be proved beyonddoubt; (2) circumstances should unerringly point to the guilt of theaccused (3) circumstances should be so linked to form a chainleading to only one conclusion i.e. guilt of accused and (4) There isprobability of the crime having been committed by a person otherthan the accused.

Allowing the appeals, the Court

HELD: There are no eye-witnesses to the case and thisis a case based on circumstantial evidence. The circumstancesrelied upon by the prosecution which lead to an inference to the

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Aguilt of the accused must be proved beyond doubt. Thecircumstances should unerringly point towards the guilt of theaccused. The circumstances should be linked together in such amanner that the cumulative effect of the chain formed by joiningthe links is so complete that it leads to only one conclusion i.e.the guilt of the accused. That there should be no probability ofBthe crime having been committed by a person other than theaccused. [Paras 9 and 11][112-C, 113-D-F]

Hanumant v. State of Madhya Pradesh AIR 1952 SC343 : [1952] SCR 1091 – relied on.Wills on Circumstantial Evidence (Chapter VI) by SirCAlfred Wills Butterworths, Seventh Edition, Pp 296-329 – referred to.

2.1 In a case based on circumstantial evidence it is alwaysbetter for the courts to deal with each circumstance separatelyand then link the circumstances which have been proved to arriveDat a conclusion. In the present case, though a reference hasbeen made to some circumstances, the circumstances have notbeen discussed separately. [Para 13][113-G]

2.2 Though the circumstance of last seen together isproved, the manner in which the accused reachedEChennai and the guest house in question suggests a totaldifferent story. It was not the accused, who had organised thetrip but it was the deceased, who had organised the trip and,therefore, it cannot be said that the accused had taken thedeceased to the guest house with the intention of killing him.This assumption by both the courts below is based on no evidence.F[Para 13] [114-B, C, 115-B-C]

2.3 Medical evidence led in this case clearly indicatesthat the deceased died due to overdose of Tidijesic. It is notdisputed that 4 ml of Tidijesic was injected into the wrist of thedeceased. The medical evidence clearly shows that after chemicalGanalysis it was found that the amount of the offending substancefound in the blood of the deceased would be equal to injecting 40ml of Tidijesic. Therefore, there is no manner of doubt that thedeceased died due to overdosing of drug. The prosecution, bymeans of the medical evidence, has failed to link the accusedwith the death of the deceased. The prosecution has failed toH

prove the exact time of death of the deceased. The deceasedwas first injected an injection between 9.30 p.m. to 10.00 p.m.As per doctor, the effect of this could end in about six hours.Therefore, the possibility of the deceased getting up himself inthe middle of the night to inject himself cannot be ruled out.There is also the possibility of his calling some other person toinject him with the drug. Even more importantly, the prosecutionhas failed to prove where the balance 36 ml of drug came from.Who got this drug and when? There is no evidence that theaccused purchased this drug. No recovery has been made fromthem and, therefore, though it stands proved that thedeceased died due to overdose of drug, the prosecution hasmiserably failed to link the accused with the death of the deceased.[Para 13][115-E, 116-E-G]

2.4 The motive put forth by prosecution is that PW-10was close to accused No.1, who introduced her to the deceased.According to the case set up by the prosecution, the two haddeveloped a close relationship and were regularly chatting witheach other on phone and through SMS-es. This was not liked byAccused No.1, who thereafter conspired with accused No. 2 tokill the deceased by overdosing him. PW-10 in her statementhas not at all supported the prosecution case. No other evidencehas been led to prove that PW-10 had any special relationshipwith accused No.1 or that she had developed any specialrelationship with deceased. In the first complaint filed by PW-1,there is no mention of PW-10, much less of her having any affairwith either the accused or the deceased. This was brought outfor the first time only in the complaint filed four years after thedeath of the deceased. There is no explanation for this longsilence of four years. Therefore, the motive has not been proved.[Para 13][117-A-B, D, E-F]

2.5 Both the courts below have come to the conclusionthat accused No.2 was asked by accused No. 1 to commit thecrime because accused No.2 was a medical student and he aloneknew how to inject the substance into the body of the deceased.Such inference drawn by the courts below was totally ill founded.From the evidence on record it stands established that thedeceased was a drug addict and had been taking injectible drugsfor a long time. It is well known that such drug addicts can easilyinject themselves. What has happened in the present is not clear AB

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Abut it cannot be said with certainty that accused No.2 had injectedthe poisonous substance into the body of the deceased. There isno evidence in this regard. Even as per the prosecution, accusedNo.2 had no motive to kill the deceased. Therefore, the inferencedrawn by the High Court as well as the trial court that accusedNos. 1 and 2 had conspired or had the common intention ofBmurdering the deceased is not based on any cogent or reliableevidence. [Para 13][117-G-H, 118-A-C, E]

2.6 There is inconsistency in the statement of PW-1. Theprivate complaint filed by him four years later is contrary to thefirst complaint filed by him immediately after the occurrence. HisCexplanation is that he was asked to sign on two blank papers bythe police. In case the version of PW-1 that his signatures weretaken on blank papers was correct, then he would have definitelysaid so, much earlier. He would have reported the matter to thehigher authorities or made mention of this in the petitions filedin the High Court. Despite a pointed query to the counsel for theDoriginal complainant and the informant and the State, they failedto point out whether any such complaint had been made by PW-1or PW-5. Therefore, the version of PW-1 that his signatures wereobtained on blank sheets of papers is not acceptable. This alsocasts a doubt on the veracity of the statement of PW-1.[Para 14][118-F-H, 119-B-C]E

2.7 There is delay in filing the private complaint. After thecharge-sheet was filed against ‘V’ by the Investigating Officer(DW-4), neither PW-1 nor PW-5 filed any protest petition to theeffect that the accused should also be arraigned as accused. Theylet the matter go on and it was only after ‘V’died that the privateFcomplaint was filed. There is no explanation why no protestpetition was filed when the police had only made out a case againstaccused ‘V’ and that too under Section 304 IPC and not murder.[Para 14][119-D-E]

2.8 PW-1 and PW-5 are not coming to the Court with cleanhands. The motive has been introduced after four years. TheGfather and the maternal uncle of the deceased neverbrought up the issue of the deceased having conversations withPW-10 at any earlier stage. Therefore, PW-1 and PW-5 are notcoming to the court with clean hands. They have cooked up thestory of signing on blank papers and also cooked up the storyrelating to the motive. Therefore, their evidence is not reliableHand a person cannot be convicted on the basis of such evidence.[Para 14][119-F-G]

2.9 The circumstances proved cannot lead to the inferencethat it is the accused alone who committed the offence. In fact,the prosecution has even failed to prove beyond reasonable doubtthat the death is homicidal in view of the inconsistencies in themedical evidence. Even otherwise, it is not proved that it wasthe accused who injected the deceased and the possibility of theaccused injecting himself or some other person doing so cannotbe ruled out. [Para 15][120-C]

Case Law Reference

[1952] SCR 1091relied onPara 9

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1193 of 2011

From the Judgment and Order dated 30.11.2010 of the HighCourt of Madras at Madurai Bench in Crl. A. No. 592 of 2010

WITH

Criminal Appeal No. 253 of 2019.

M. N. Rao, Sr. Adv., Gaurave Bhargava, Raj Kamal, Ms.Promila, Subash Sagar, S. Thananjayan, Adv. for the Appellant.

Sanjay Hegde, Sr. Adv., Nithin Saravanan, Ms. Arunima Singh,Pranjal Kishore, Ms. Priyadarshini, Anil Kumar Mishra-I, BalajiSrinivasan, Ms. Purbitaa Mitra, R. Naveen Raj, K. V. Vijayakumar,Advs. for the Respondents.

The Judgment of the Court was delivered by DEEPAK GUPTA, J.

1. Leave granted in appeal arising out of SLP (Crl.) No.2306 of

2011.

2. Both the appeals are being disposed of by a common judgment.

3. The undisputed facts are that the deceased Arun was a friendof accused Siva @ Sivaprakash, Accused No.1. The deceased alongwith Accused No. 1 and Chandru @ Chandrasekaran, Accused No. 2,travelled to Chennai on 30.10.2004. They went to Meena Guest House,run by M. Sheik Davood (PW-3) at about 9 p.m. where room no. 203was allotted to them. At about 9.30 p.m. Venkatesh @ Venki came tothe room. Venki injected 4 ml of Tidijesic drug into the left wrist of A

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Adeceased Arun. Venki also used 2 ml drug for himself. Thereafter, Venkileft the guest house. Next morning i.e. on 31.10.2004, the two appellantsherein called Venki since Arun did not get up. The room boy of thelodge viz., Sankar (PW-4) complained to the Manager of the lodge thata lot of people were coming into room no. 203. It was found that Arunwas dead. Thereafter, Iqbal (PW-2), working as Manager in the companyBowned by father of the deceased Arun and Ponsekar(PW-1), maternal uncle of the deceased came to the room.

4. PW-1 filed a complaint on 31.10.2004 at 9.45 a.m., in whichhe stated that his nephew Arun was earlier studying in an engineeringcollege at Chennai. However, he was not studying properly and hadCdeveloped some bad habits and, therefore, he was shifted to a college atThoothukudi. The relevant portion of the complaint is to the effect thaton 31.10.2004 at about 7.30 a.m. he had received a call from Iqbal(PW-2) informing him that his nephew Arun, who stayed the night inRoom No.203 of Meena Guest House had consumed heavy dose of a drug through injection and is unconscious. He immediately went to theDguest house where he found that his nephew was dead. He thereafterwent to Triplicane Police Station and lodged the report.

5. On the basis of the aforesaid report a case being CrimeNo.1150 of 2004, was registered. The body of the deceased was sentfor post-mortem. Dr. A.N. Shanmugham (PW-6) conducted the post-Emortem. He stated that he could not say with certainty what was thecause of death but it was possible by drug injection. Venki was arrestedin connection with the said crime and he allegedly made a confessionalstatement to the police on 08.11.2004 which led to the discovery ofTidijesic syringe, empty ampoules, unused Tidijesic ampoule etc.. PW-F1, the maternal uncle of the deceased, filed a petition in the High Courtof Madras in February, 2005 seeking transfer of the investigation tosome other agency since he was not happy with the manner in whichthe case was being investigated. The High Court vide order dated28.02.2005 transferred the investigation to the CB CID, Tamil Nadu.There were three suspects before the police viz., Venkatesh @ Venki,GSivaprakash @ Siva and Chandrasekaran @ Chandru. All three weresubjected to Polygraph, Brainmapping and Narcoanalysis tests at aForensic Science Laboratory. According to the Investigating Officer(DW-4), who carried the investigation, the two appellants herein clearedthe said tests and there was no suspicion against them since they disclosedno signs of deception. However, during the tests, Venki’s answers wereHfound deceptive.

6. In the year 2006, PW-5, father of the deceased, filed a petitionin the Madras High Court for transferring the investigation of the caseto the Central Bureau of Investigation (CBI). This petition was rejectedby the High Court on 08.02.2008. Meanwhile, on 23.01.2008, more thanthree years after the incident, a charge-sheet was filed by the CB CIDunder Section 173 of the Criminal Procedure Code (for short ‘CrPC’)only against Venkatesh @ Venki under Section 304 Part II of the IndianPenal Code (for short ‘IPC’). The present accused (appellants herein)were cited as prosecution witnesses in the said charge-sheet. Venkidied after the filing of the charge-sheet but before trial of the case on21.07.2008.

7. It was only thereafter that PW-1, maternal uncle of thedeceased, filed a private complaint before the court which is Exhibit P-1. In this complaint it was stated that the two accused and the deceasedhad stayed in Room No. 203 and Venki came to the room at the invitationof the accused Chandru. Venki was a drug peddler and Arun was not inthe habit of taking drugs. On the request of the accused, Venki hadinjected 4 ml of Tidijesic injection in the left wrist of the deceased. Itwas also alleged that Venki was paid Rs.50/- by the accused Siva for hisservices. According to this complaint, Arun had been injected for thesecond time in the left arm inner portion. When this witness went to theroom No. 203, Venki was present and told the complainant that the accusedhad given excess narcotic drugs on the left inner portion of the arm dueto which the deceased died. In the complaint it was also stated thatimmediately after he had visited the guest house on 31.10.2004, he hadgone to the Triplicane Police Station, where the police forcibly obtainedhis signatures on two blank papers. It was alleged that the FIR waslodged by the police in connivance with the two accused. In this complaintit is also mentioned that there were marks of injecting two injectionsand, according to the report of the Forensic Science Laboratory, a hugeamount of narcotic substance had been injected into the deceased whichcaused his death. In this complaint it was also alleged that the accusedSiva had close association with PW-10 (hereinafter referred to as ‘R’).According to the complainant, R (PW-10) was introduced to the deceasedArun and they used to regularly talk to each other on phone every dayand therefore, accused Siva could not tolerate that his girlfriend shouldshift loyalty to some other person. Therefore, he approached Chandru,who was a student in a medical college and with his help injected excessdose of Tidijesic with the intention of killing Arun.

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A8. After the filing of the private complaint, the metropolitanmagistrate recorded the statements of seven witnesses and foundsufficient grounds for proceeding with the case under Section 302 IPC.Thereafter, the case was committed to the Court of Sessions and chargeswere framed against the accused, who pleaded not guilty. The evidenceof the witnesses were recorded. Accused also examined four witnesses.BThe trial court convicted the accused for having committed the offencepunishable under Section 302 IPC read with Section 120B IPC andsentenced them to undergo life imprisonment. Aggrieved, the accusedfiled two separate criminal appeals, which have been dismissed. Hence,the present appeals.C

9. Admittedly, there are no eye-witnesses to the case and this isa case based on circumstantial evidence. The law with regard toappreciation of circumstantial evidence has been clearly enunciated inthe case of Hanumant v. State of Madhya Pradesh[1], wherein thisCourt held as follows:

D“10……It is well to remember that in cases where theevidence is of a circumstantial nature, the circumstances fromwhich the conclusion of guilt is to be drawn should in the firstinstance be fully established, and all the facts so establishedshould be consistent only with the hypothesis of the guilt of theaccused. Again, the circumstances should be of a conclusiveEnature and tendency and they should be such as to excludeevery hypothesis but the one proposed to be proved. In otherwords, there must be a chain of evidence so far complete asnot to leave any reasonable ground for a conclusion consistentwith the innocence of the accused and it must be such as toFshow that within all human probability the act must have beendone by the accused.”

10. This law has been consistently followed and has been repeatedin catena of authorities. It is not necessary to refer to all the authorities.However, we may refer to Sir Alfred Wills book Wills on CircumstantialEvidence (Chapter VI)[2], in which he has laid down the following RulesGspecially to be observed in the case of circumstantial evidence:

1AIR 1952 SC 343

2. Butterworths, Seventh Edition, Pp 296-329

“RULE 1. – The facts alleged as the basis of any legal inferencemust be clearly proved, and beyond reasonable doubt connectedwith the factum probandum............

RULE 2. – The burden of proof is always on the party whoasserts the existence of any fact which infers legalaccountability................

RULE 3. – In all cases, whether of direct or circumstantialevidence, the best evidence must be adduced which the natureof the case admits.........

RULE 4. – In order to justify the inference of guilt, theinculpatory facts must be incompatible with the innocence ofthe accused, and incapable of explanation upon any otherreasonable hypothesis than that of his guilt..................

RULE 5. – If there by any reasonable doubt of the guilt of theaccused, he is entitled as of right to be acquitted.”

11. The law can be summarised in the following terms:

1. The circumstances relied upon by the prosecution whichlead to an inference to the guilt of the accused must beproved beyond doubt;

2. The circumstances should unerringly point towards theguilt of the accused;

3. The circumstances should be linked together in such amanner that the cumulative effect of the chain formed byjoining the links is so complete that it leads to only oneconclusion i.e. the guilt of the accused;

4. That there should be no probability of the crime havingbeen committed by a person other than the accused.

12. It is in the light of the aforesaid law that we have to considerthe evidence and the circumstances relied upon by the courts below.

13. In a case based on circumstantial evidence it is always betterfor the courts to deal with each circumstance separately and then linkthe circumstances which have been proved to arrive at a conclusion.Unfortunately, in this case, though a reference has been made to somecircumstances, the circumstances have not been discussed separately.Therefore, we propose to discuss the various circumstances relied uponby the prosecution:

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1. LAST SEEN TOGETHER–

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114 SUPREME COURT REPORTS [2019] 2 S.C.R.

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1. LAST SEEN TOGETHER–

As far as this circumstance is concerned, the samestands proved. It is the case of all that Room No. 203 in MeenaGuest House was hired by the two accused and the deceased.Venki came at about 9.30 p.m., but he left at 10.15 p.m.Thereafter the lodge was locked. Therefore, this circumstanceis proved.Though this circumstance is proved, we must also lookinto the circumstances under which the accused were last seentogether with the deceased. The case of the prosecution is thatit is the accused who took the deceased to the room with theintention of killing him since the accused Siva suspected that R(PW-10) was having an affair with the deceased. However,the manner in which the accused reached Chennai and the guesthouse in question suggests a total different story. The maternaluncle of the deceased (PW-1) states that one Jeyaraj, anemployee of PW-5 informed him over the phone at about 6/7p.m. on 30.10.2004 that the deceased Arun along with his friendSiddharth was coming to stay in the night with PW-1 at Chennai.A few minutes later, PW-1 talked to his nephew Arun, who alsotold him that he would be coming to his uncle’s house but did notcome. Siddharth is the son of Gomti Pandian (PW-7). Accordingto her, Siddharth told her that he was going to Chennai alongwith his friend Arun (deceased) to purchase some clothes. Shewas reluctant to send her son with his friend but then she talkedto Arun who told her that they would be going to Chennai by busand convinced her to send Siddharth with him. She droppedSiddharth at the bus stand. Later she came to know that herson Siddharth had gone to Chennai along with the deceasedArun and three other persons in a car which had met with anaccident. She was informed about this by Kala Devi (PW-8),whose son Mathesh had also travelled in the same car. Thus, itis clear that it was Arun (deceased), who convinced Siddharth’smother to send Siddharth with him. This witness also statedthat later her son informed her that the car had met with anaccident and, thereafter, he and Mathesh did not proceed toChennai and returned to their homes. PW-8 states that her sonMathesh had told her that he was going to Coimbatore. Nextmorning she received a call from her brother’s son. He told herthat the car in which Mathesh was travelling had met with an accident. She was also told that Mathesh along with his friendsSiva, Chandru, Siddharth and Arun came to the house of herbrother and thereafter Mathesh returned to home. Thus, it isclear that Siddharth and Mathesh were also travelling in the carand they would have also gone to Chennai but for the fact thatthe car met with an accident. Thereafter, Siddharth and Matheshdid not proceed further and returned to their homes. As such, itis clear that it was not the accused, who had organised the tripbut it was the deceased, who had organised the trip and,therefore, it cannot be said that the accused had taken thedeceased to the guest house with the intention of killing him.This assumption by both the courts below is based on no evidence.

2. MEDICAL EVIDENCE

Medical evidence led in this case clearly indicates thatthe deceased died due to overdose of Tidijesic. It is not disputedthat 4 ml of Tidijesic was injected into the wrist of the deceasedby Venki, who administered 2 ml of the same substance intohimself and thereafter the deceased died. The evidence of Dr.R. Baskaran (PW-11), who is Professor and Head of theDepartment of Legal and Forensic Medicines, RoyapettaiGovernment Hospital, Chennai clearly shows that after chemicalanalysis it was found that the amount of the offending substancefound in the blood of the deceased would be equal to injecting40 ml of Tidijesic. Therefore, there is no manner of doubt thatthe deceased died due to overdosing of drug.

PW-11 stated that if a 20 ml syringe is used then about40 ml of Tidijesic could be injected in two attempts. However, ifa 5 ml syringe is used, it would require 8-10 attempts. He clearlystates that he cannot tell when and how this 40 ml Tidijesic wasinjected into the body of the deceased. He also could not statewhat time the death had occurred. He also stated that it takes6 to 24 hours for the drug to take effect and this would furtherdepend upon the quantity of the drug, the physique and the actionsof the person injected. Therefore, his statement does not helpus with regard to the time of death or with regard to the numberof attempts in which the drug was injected into the body of thedeceased. Even in the post-mortem report the approximate timeof death has not been indicated. Dr. A.N. Shanmugham A

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(PW 6), who conducted the post-mortem also could not say whenthe death took place.

Dr. A.N. Shanmugham (PW-6) in his statement hadstated that injuries caused by the needle due to injection ofmedicine were found in fore arm, ankle of front foot, front andmiddle fore arm. He has been confronted with the post-mortemreport (PD-5), in which there is mention of only two injectionmarks – one in front of left elbow joint and one in middle of leftfore arm. It is clearly mentioned that no other external or internalinjuries seen over the body. He has not been able to give aproper explanation why he did not mention other injuries in thepost-mortem report. This would mean that the deceased wasinjected only twice.

It is the case of the prosecution that on the first occasionthe deceased was injected with 4 ml Tidijesic. Therefore, 36 mlcould not have been injected in one go on the next occasion.The police has not recovered any syringe or other material fromthe room. As per the prosecution case, the lodge was locked atabout 10.30 p.m.. The next morning the deceased was founddead. No recoveries of any ampoules or syringe have beenmade from the accused or at their instance to connect themwith the offence.

The prosecution, by means of the aforesaid medicalevidence, has failed to link the accused with the death of thedeceased. The prosecution has failed to prove the exact timeof death of the deceased. The deceased was first injected aninjection between 9.30 p.m. to 10.00 p.m.. As per doctor, theeffect of this could end in about six hours. Therefore, thepossibility of the deceased getting up himself in the middle ofthe night to inject himself cannot be ruled out. There is also thepossibility of his calling some other person to inject him with thedrug. Even more importantly, the prosecution has failed to provewhere the balance 36 ml of drug came from. Who got this drugand when? There is no evidence that the accused purchasedthis drug. No recovery has been made from them and, therefore,we are of the view that though it stands proved that the deceaseddied due to overdose of drug, the prosecution has miserablyfailed to link the accused with the death of the deceased.

3. MOTIVE

The motive put forth is that R (PW-10) was close toaccused Siva, who introduced her to Arun. According to thecase set up by the prosecution, the two had developed a closerelationship and were regularly chatting with each other on phoneand through SMS-es. This was not liked by Siva (AccusedNo.1), who thereafter conspired with Chandru (Accused No.2) to kill the deceased by overdosing him. R (PW-10) in herstatement has not at all supported the prosecution case andaccording to her, she had never met Arun but had talked to himover phone and that too occasionally. She also stated that sheand the deceased Arun would exchange SMS-es which wereusual in nature. She, in cross-examination, denied the suggestionthat she used to talk to Arun every day. She stated that theytalked generally about matters relating to college. She alsodenied that she had any special relationship with Siva. Accordingto her, Siva was her friend being a college-mate. No otherevidence has been led to prove that R (PW-10) had any specialrelationship with accused Siva or that she had developed anyspecial relationship with deceased Arun. The only evidence inthis regard is the statement of R (PW-10), which does not supportthe prosecution case at all.

In this regard, it would also be pertinent to mention thatin the first complaint filed by PW-1, there is no mention of R(PW-10), much less of her having any affair with either theaccused or the deceased. This was brought out for the firsttime only in the complaint filed four years after the death ofArun. There is no explanation for this long silence of four years.Therefore, we are clearly of the view that the motive has notbeen proved. We must also remember that the accused and thedeceased were good friends. They had studied for many yearstogether and there is not even an iota of evidence about suchlove triangle.

4. CHANDRU WAS A MEDICAL STUDENT-

Both the courts below have come to the conclusion thatChandru was asked by Siva to commit the crime becauseChandru was a medical student and he alone knew how to injectthe substance into the body of the deceased. We are constrained A

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to observe that the inference drawn by the courts below wastotally ill founded. Why would Chandru kill another human beingjust on the asking of the accused Siva? Chandru was a medicalstudent, studying in a profession meant to save lives and not tokill people. From the evidence on record it stands establishedthat the deceased was a drug addict and had been taking injectibledrugs for a long time. It is well known that such drug addictscan easily inject themselves. What has happened in this case isnot clear but it cannot be said with certainty that Chandru hadinjected the poisonous substance into the body of the deceased.There is no evidence in this regard. As we have discussedabove, it was not only Siva and Chandru who were coming toChennai with deceased Arun but Siddharth and Mathesh werealso coming to Chennai in the same car. However, they wentback only after the car met with an accident. All these boyswere in their late teens or early 20s and two of them got scaredafter the accident and they went to the homes of their relativesand from there they contacted their respective mothers. Sincethey had obtained permission of their mothers by giving falseexcuses, they got scared and went back. Even as per theprosecution, Chandru had no motive to kill Arun. Therefore, theinference drawn by the High Court as well as the trial court thatSiva and Chandru had conspired or had the common intentionof murdering Arun is not based on any cogent or reliableevidence.

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14. Other than the circumstances referred to above, there areother circumstances which go against the prosecution which we shallrefer to now:F

1. Inconsistency in the statement of PW-1– PW-1 is thematernal uncle of the deceased. In his first complaint madein the police station on 31.10.2004, there is no reference to R(PW-10) or other facts which have been stated at a later stage.The private complaint filed by him four years later is contrary tothe first complaint filed by him immediately after the occurrence.His explanation is that he was asked to sign on two blank papersby the police. First of all, we see no reason why the police in acase of this nature would try to help the accused and shield theactual criminal. Secondly, there is no material on record to showthat PW-1, the maternal uncle or PW-5, father of the deceased, G

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ever complained to any authority that PW-1 had been forced tosign two blank papers. This is a case where the maternal uncleand the father of the deceased had approached the High Courton at least two occasions for transfer of the investigation. Theysucceeded once and failed on the second occasion. In case theversion of PW-1 that his signatures were taken on blank paperswas correct, then he would have definitely said so much earlier.He would have reported the matter to the higher authorities ormade mention of this in the petitions filed in the High Court.Despite a pointed query to the counsel for the originalcomplainant and the informant and the State they failed to pointout whether any such complaint had been made by PW-1 orPW-5. Therefore, we do not accept the version of PW-1 thathis signatures were obtained on blank sheets of papers. Thisalso casts a doubt on the veracity of the statement of PW-1.

2. Delay in filing the private complaint- It is true thatPW-1 and PW-5 were moving the High Court for transfer ofthe case to some other investigating agency but, at the sametime, it would be pertinent to mention that after the chargesheet was filed against Venki by the Investigating Officer (DW4), neither PW-1 nor PW-5 filed any protest petition to the effectthat the accused (appellants herein) should also be arraigned asaccused. They let the matter go on and it was only after Venkidied that the private complaint was filed. There is no explanationwhy no protest petition was filed when the police had only madeout a case against accused Venki and that too under Section 304IPC and not murder.

3. PW-1 and PW-5 are not coming to the Court withclean hands– The motive has been introduced after four years.The father and the maternal uncle of the deceased never broughtup the issue of the deceased having conversations with R (PW10) at any earlier stage. Therefore, PW-1 and PW-5 are notcoming to the court with clean hands. They have cooked up thestory of signing on blank papers and also cooked up the storyrelating to the motive. Therefore, their evidence is not reliableand a person cannot be convicted on the basis of such evidence.

15. All that is proved is that the deceased and the accused weresleeping in one room and the deceased died due to overdose of drug.

A

B

C

D

E

F

G

H

AThe prosecution had miserably failed to prove that the accused injectedthis drug. It is the case of the prosecution that the first injection wasadministered by Venki, which was only 4 ml. There is possibility of thedeceased injecting himself on the second occasion sometime in the middleof the night or early in the morning. In this context, we must rememberthat the doctor, who conducted the post-mortem has not given anyBapproximate time of death of the deceased which could have helped usin the matter. The circumstances proved cannot lead to the inferencethat it is the accused alone who committed the offence. In fact, theprosecution has even failed to prove beyond reasonable doubt that thedeath is homicidal in view of the inconsistencies in the medical evidenceCdealt by us above. Even otherwise, it is not proved that it was theaccused who injected the deceased and the possibility of the accusedinjecting himself or some other person doing so cannot be ruled out.

16. In view of the above discussion we allow both the appeals,set aside the judgment dated 30.11.2010 of the High Court in Criminal DAppeal No.592 of 2010 and 636 of 2010 and judgment dated 24.09.2010of the Additional District and Sessions Judge, Fast Track Court No.V,Chennai in S.C. No.237 of 2009. The accused-appellants are acquitted.They are directed to be released immediately unless required in anyother case. Pending application(s), if any, stand(s) disposed of.

EKalpana K. Tripathy

Appeals allowed.

F

G

H