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2003 DIGILAW 835 (MAD)

Babu v. State, rep. by Inspector of Police

2003-06-18

M.KARPAGAVINAYAGAM, S.ASHOK KUMAR

body2003
Judgment :- M.Karpagavinayagam, J. Challenging the conviction and sentence imposed upon him for the offence under Section 302 I.P.C., Babu, the appellant herein has filed this appeal. 2. The crux of the prosecution case is that on 17-12-1993, the appellant/accused took the deceased Gopi from his house to a field near his village and caused his death by means of M.O.7 stone. 3. The facts in brief are as follows:- (a) On 18-12-1993, a dead body was found in the field in S.No.286/3 belonging to Krishnamma Naidu. P.W.2, on noticing the dead body, went and informed P.W.1, the Village Administrative Officer. After verification, by coming to the spot and noticing the body, P.W.1 gave Ex.P-1 report to P.W.17 Inspector of Police. The same was received and a case was registered under Section 174 Cr.P.C. and Ex.P-11 F.I.R. was prepared. (b) P.W.17 thereupon came to the scene of occurrence and conducted inquest, examined the witnesses and prepared Ex.P-2 observation mahazar and Ex.P-12 rough sketch. Then, he arranged to take photos-M.O.1 series. Then, he altered the case into one under Section 302 I.P.C. The dead body was sent for post-mortem to Tiruttani Government Hospital. (c) P.W.16 Dr.Prabhakaran conducted autopsy on the body of the deceased on 21-12-1993 at 4.00 p.m. and noticed contusions and lacerated wound on the head. He issued Ex.P-10 post-mortem certificate, giving an opinion that the death was due to head injury, extra-cranial and intra-cranial. (d) P.W.17 Inspector of Police, on further investigation, came to know that P.W.9 and P.W.10 are the parents of the deceased. The photo of the dead body was shown to them. P.Ws.9 and 10 identified as that of the body of the deceased, their son. On 22-12-1993, P.W.17 arrested the accused and in pursuance of his confession Ex.P-5, he recovered M.O.3 lungi and M.O.7 blood stained black stone. He continued the investigation and examined the other witnesses. He arranged to send the material objects for chemical examination. Then, his successor took up further investigation, who ultimately, filed the chargesheet against the accused for the offence under Section 302 I.P.C. 4. During the course of trial, P.Ws.1 to 17 were examined, Exs.P-1 to P-20 were filed and M.Os.1 to 13 were marked. 5. When the accused was questioned under Section 313 Cr.P.C., the accused denied having committed the offence in question. 6. During the course of trial, P.Ws.1 to 17 were examined, Exs.P-1 to P-20 were filed and M.Os.1 to 13 were marked. 5. When the accused was questioned under Section 313 Cr.P.C., the accused denied having committed the offence in question. 6. On analysing the materials available on record, the trial Court concluded that the prosecution has established its case beyond reasonable doubt and convicted the accused thereunder. Hence, the appeal. 7. Mr.Panchaksharamurthy, learned counsel appearing for the appellant, took us through the entire evidence and strenuously contended that the materials available on record would not be sufficient to find the accused guilty and that those materials would also suffer from various infirmities and as such, the accused is entitled to be acquitted. 8. We have heard learned Additional Public Prosecutor on the above aspects. 9. We have considered the contentions urged by the counsel on either side and also gone through the records. 10. Admittedly, there is no direct evidence. The entire case rests upon circumstantial evidence. It is a well established rule that in a case of circumstantial evidence, each circumstance brought on record by the prosecution shall be clearly established and those circumstances must form a complete chain without any missing link and further, the same should unerringly point to the guilt of the accused without giving any room for hypothesis of the innocence of the accused. 11. In the light of the above principle, we have to analyse the evidence available on record. 12. The incriminating circumstances projected by the prosecution in this case are as follows:- (i) P.Ws.9 and 10 would state that on 17-12-1993, the accused Babu took Gopi, the deceased to his village Keezh Nedunkaal and thereafter, the deceased did not turn up. (ii) P.Ws.11 and 12 would state that the deceased Gopi was last seen in the company of the accused on 17-12-1993. (iii) P.W.16 Doctor would give an opinion through Ex.P-10 post-mortem certificate that the deceased Gopi died due to the injuries sustained on the head. (iv) P.W.14 mahazar witness and P.W.17 investigating officer would speak about the arrest of the accused on 22-12-1993 at 3.00 p.m. and consequent recovery of M.O.7 stone and M.O.3 lungi on the confession of the accused. 13. Relying upon the above circumstances, the prosecution would state that the accused alone had committed the offence of murder. 14. (iv) P.W.14 mahazar witness and P.W.17 investigating officer would speak about the arrest of the accused on 22-12-1993 at 3.00 p.m. and consequent recovery of M.O.7 stone and M.O.3 lungi on the confession of the accused. 13. Relying upon the above circumstances, the prosecution would state that the accused alone had committed the offence of murder. 14. Before dealing with the credibility of these materials, it would be worthwhile to refer to the motive aspect in this case. In a case where eye-witnesses are available, failure to prove the motive would become insignificant so long as the evidence of the eye-witnesses is reliable. In this case, as noted above, there are no eye-witnesses. The case of the prosecution hinges only upon the circumstantial evidence which have been narrated above. 15. According to the prosecution, Babu, the accused who hails from Keezh Nedunkaal village, came to the village of the deceased and took the deceased to his village, since the grandmother of the deceased happened to live in that village. Nothing has been placed before the Court through any of the witnesses that there was any enmity between the accused and the deceased. In fact,nobody has stated anything about the motive as to why the deceased was done to death on 17-12-1993 itself by the accused, on which date he was taken from the house of the deceased. Thus, there is no difficulty in holding that the prosecution has failed to establish motive for murder. 16. Let us now discuss about the other materials. 17. P.Ws.9 and 10 would state that the deceased was taken by the accused on 17-12-1993 from their house. On going through the evidence of P.W.9, it is clear that P.W.9 was not present when the deceased was taken by the accused. P.W.9 would merely state what P.W.10 informed him and as such, the evidence given by P.W.9 is hear-say. Therefore, no importance could be attached to the evidence of P.W.9. 18. P.W.10 would state that on 16-12-1993, the accused came to his village and when he was going back to his village where her relatives are residing, he took the deceased with him. It is further stated by P.W.10 that on 18-12-1993 at about 7.00 a.m., the accused himself came to the house of P.W.10 and told her that the deceased got Rs.3/- from him and went to Nagalapuram. 19. It is further stated by P.W.10 that on 18-12-1993 at about 7.00 a.m., the accused himself came to the house of P.W.10 and told her that the deceased got Rs.3/- from him and went to Nagalapuram. 19. According to the prosecution, the murder took place in the field of one Krishnamma Naidu at Keezh Nedunkaal Village on 17-12-1993 night. If the murder had taken place on 17-12-1993 night, there is no necessity for the accused Babu to go back to the village of the deceased and inform his parents that the deceased had gone to Nagalapuram. Therefore, the evidence of P.W.10 with reference to taking the deceased by the accused with him and the accused coming back to P.W.10's house next day and informing that the deceased went to Nagalapauram appears to be quite artificial. 20. Admittedly, P.Ws.9 and 10 did not identify the dead body of the deceased. They merely identified the photos M.O.1 series, which is not sufficient to establish the identity of the deceased. Besides that, there are no details given by the investigating agency as to how P.Ws.9 and 10, the parents of the deceased were traced. 21. It is the case of the prosecution that the dead body was found on 18-12-1993. A requisition was sent to the Doctor on 18-12-1993 itself to conduct post-mortem. Strangely, post-mortem was conducted only on 21-12-1993. P.W.16 Doctor would state that the body was decomposed. It is noticed that the exact time of death was not mentioned either in the post-mortem certificate or in the deposition given by the Doctor. 22. Furthermore, in the absence of the proper identification of the body of the deceased, it is the duty of the investigating officer P.W.17 to send the skull of the deceased and the photos for superimposition test, which has not been done. Thus, it is clear that the identity of the deceased has not been established. Under those circumstances, the evidence of P.Ws.9 and 10 would not give any indication that the deceased must have been done to death by the accused. 23. Yet another circumstance which is shown by the prosecution is that the deceased was last seen in the company of the accused, as spoken to by P.Ws.11 and 12. Under those circumstances, the evidence of P.Ws.9 and 10 would not give any indication that the deceased must have been done to death by the accused. 23. Yet another circumstance which is shown by the prosecution is that the deceased was last seen in the company of the accused, as spoken to by P.Ws.11 and 12. Admittedly, P.W.11, the junior paternal uncle of the deceased and P.W.12, the President of the Village, had not informed anything to the Police immediately on coming to know that the deceased was found missing. Though they stated that the deceased, on 17-12-1993, was found in the company of the accused, they admitted in the cross-examination that the accused was not known to them earlier. In the absence of any identification parade, we cannot conclude that Gopi, the deceased was found in the company of the accused on 17-12-1993. 24. The other circumstance shown is the recovery of M.O.3 lungi, stated to have been worn by the deceased and M.O.7 stone from the accused on his confession. This circumstance alone would not be sufficient to hold that the accused has caused the death of the deceased. Even though P.Ws.11 and 12 identified M.O.2 shirt, M.O.3 lungi and M.O.4 kakki trouser worn by the deceased, it is not understandable as to how P.Ws.11 and 12 were able to identify M.O.4 kakki trouser when the deceased was wearing M.O.3 lungi 25. In such a fact situation, the circumstances shown by the prosecution to prove the offence against the accused, in our opinion, would not only suffer from infirmities, as they do not form the complete chain, but also not sufficient to hold that the accused is the real culprit. Hence, we are of the view that the accused is entitled to be acquitted by giving the benefit of doubt. Consequently, the conviction and sentence imposed on the accused by the trial Court are liable to be set aside and accordingly, they are set aside. The appeal is allowed. The appellant/accused is acquitted of the charge. He is directed to be released forthwith, unless he is required in connection with any other case.