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Madras High Court · body

2019 DIGILAW 2749 (MAD)

Satheesh Kumar v. State

2019-10-04

N.ANAND VENKATESH, S.VAIDYANATHAN

body2019
JUDGMENT : 1. These Criminal Appeals have been filed against the Judgment of the III-Additional District and Sessions Judge (FAC), Trichy in S.C. No. 114 of 2015, dated 06.11.2017, wherein the appellants were convicted and sentenced as follows:- S. No. Rank of the Accused Offence under which convicted Sentence of imprisonment Fine amount 1. A1 to A3 Under Section 449 IPC Ten years Rigorous imprisonment Rs. 5,000/- in default, to undergo one year Rigorous Imprisonment 2. A1 to A3 Under Section 302 IPC Life Imprisonment Rs. 5,000/- in default, to undergo one year Rigorous Imprisonment 2. The case of the prosecution in brief are as follows: On 24.11.2014, at about 1.00 p.m. when the deceased Rathinam was talking with the defacto complainant (PW-1) and his wife PW-2, the accused persons with an intention to commit the murder of the deceased, approached him and requested him to show the portion, which was vacant in the first floor in order to take the same on lease. The deceased took the accused persons to the first floor and they are said to have attacked the deceased indiscriminately with knife and caused his instantaneous death. 3. Complaint and evidence collected in the course of investigation: Vinoth (PW-1) is the nephew of the deceased and he was sitting along with PW-2, who is said to be blind, in the ground floor. They heard the cries of the deceased 5 to 10 minutes after he went to the first floor along with the accused persons. He rushed to the first floor and found that the door was locked from inside and he kicked the door and the door was opened and he found each of the accused persons having knife in their hands and found his uncle lying in a pool of blood. He was pushed down and the accused persons ran away from the place. He immediately got down from the first floor and met PW-3, who is the brother of PW-2, who had visited the house and showed him the body of the deceased. This was informed to PW-2. Thereafter PW-1 went to the police station and gave a complaint (Ex. P.1) to the Special Sub Inspector of Police (PW-15) and he registered an FIR (Ex. This was informed to PW-2. Thereafter PW-1 went to the police station and gave a complaint (Ex. P.1) to the Special Sub Inspector of Police (PW-15) and he registered an FIR (Ex. P.19) in Crime No. 450 of 2014 for offences under Sections 452 and 302 of I.P.C. at about 2.00 p.m. The express FIR was sent to the Magistrate Court and it reached the Court at about 5.45 p.m. 3.1. The investigation was taken up by PW-23, who went to the scene of occurrence at about 2.45 p.m. on 24.11.2014 and prepared the observation mahazer (Ex. P.3) and rough sketch (Ex. P.31) in the presence of witnesses (PW-4). He collected the material objects in the scene of crime (M.O. 7 to M.O. 9). He also gave a requisition to the finger print division for lifting the finger prints from the scene of crime. The investigating officer proceeded to recover the Maruthi car (M.O. 1) in which the accused persons had come to the scene of crime and also the other records that were found inside the car marked as Ex. P.32 series and M.O. 10 and M.O. 11. 3.2. The investigating officer recorded the statements of the witnesses under Section 161(3) of Cr.P.C. He got in touch with the Ambulance driver (PW-5) and sent the body through PW-14 to the hospital at about 4.00 p.m. The car-M.O. 1 was brought to the police station. On 25.11.2014, between 7.00 p.m. to 9.00 pm. the investigating officer conducted the inquest at Trichy Government Hospital in the presence of witnesses and prepared the inquest report (Ex. P.33). The body was handed over for postmortem, which was conducted by PW-11, who issued the postmortem certificate (Ex. P.16) and thereafter, the body was handed over to the relatives. The clothes that were worn by the deceased were recovered and the same was sent for chemical analysis to the laboratory to find out the blood group. 3.3. On 25.11.2014, at about 8.00 p.m., A1 was arrested and based on his confession, M.O. 2-knife was recovered in the presence of the Village Administrative Officer. On 26.11.2014, at about 07.00 a.m. A2 was arrested and based on his confession made before the Village Administrative Officer, M.O. 3 was recovered. 3.3. On 25.11.2014, at about 8.00 p.m., A1 was arrested and based on his confession, M.O. 2-knife was recovered in the presence of the Village Administrative Officer. On 26.11.2014, at about 07.00 a.m. A2 was arrested and based on his confession made before the Village Administrative Officer, M.O. 3 was recovered. On the same day, at about 2.00 p.m. A3 was arrested and based on his confession made in the presence of the Village Administrative Officer, M.O. 4 was recovered. 3.4. Test Identification Parade was conducted in the presence of the learned Judicial Magistrate No. I, Trichy, (PW-18) on 09.12.2014 and the report was received (Ex. P.27) from the learned Judicial Magistrate on 10.12.2014. After the completion of the investigation, PW-23 laid charge sheet on 21.02.2015 against the accused persons for offences under Section 449 and 302 of I.P.C. before the learned Judicial Magistrate No. VI, Trichy. 4. The case was committed to the file of the learned III-Additional District and Sessions Judge (FAC), Tiruchirappalli. Charges were framed against the accused person for the offences under Sections 449 and 302 of I.P.C. The prosecution examined PW-1 to PW-23 and marked Ex. P.1 to Ex. P.44 and M.O. 1 to M.O. 14. 5. After the completion of the examination of witnesses, the Court below questioned the accused persons under Section 313(1) (b) of Cr.P.C. by putting all the incriminating materials collected against them, during the course of trial and they denied the same as false. 6. The trial Court after taking into consideration the entire facts and circumstances of the case, and after analysing the oral and documentary evidence, found that the prosecution has proved the case beyond reasonable doubts and proceeded to convict and sentence the appellants in the manner indicated supra. Submissions: 7. Mr. T. Senthil Kumar, learned Counsel appearing on behalf of the appellants/A1 and A3, in Crl. A. (MD) No. 482 of 2017 made the following submissions: (i) The entire case is borne out by the circumstantial evidence and the circumstances relied upon by the prosecution did not form a chain and the prosecution miserably failed to prove the case against the appellants. (ii) PW-1 has substantially improved the version from the statement recorded under Section 161(3) of Cr.P.C. by the investigating officer and his presence in the scene of occurrence itself is doubtful. (ii) PW-1 has substantially improved the version from the statement recorded under Section 161(3) of Cr.P.C. by the investigating officer and his presence in the scene of occurrence itself is doubtful. (iii) The evidence of PW-3, who was examined by the prosecution to prove that the accused persons fled from the scene of crime after the incident, could not have seen the accused and by the time he came to the scene of crime, there was a crowd, which was standing in front of the house. (iv) PW-2, who is the wife of the deceased was a blind lady and therefore, she could not have seen the accused persons. (v) The arrest, confession statement and recovery of material objects, which are relied upon by the prosecution as one of the circumstances, is completely belied since A1 was kept in the police station on the very day of occurrence and the same is spoken by PW-9. (vi) The accused persons have clearly given the explanation as to why their finger print was found in M.O. 1, while they were questioned under Section 313 (1)(b) of Cr.P.C. (vii) The finger print of the accused persons was not found anywhere in the house of the deceased. (viii) Even before the Test Identification Parade was conducted, the photograph of the accused persons was shown to the witnesses and PW-6, who identified the accused persons in the Test Identification Parade turned hostile. (ix) All the statements recorded under Section 161(3) of Cr.P.C. reached the Court only on 12.01.2015 and 19.01.2015 and the charge sheet was laid on 21.02.2015 and this delay was not explained by the prosecution. (x) Even before the complaint was given by PW-1 at 2.00 p.m. the police had visited the scene of crime at 1.30 p.m., itself and this was not explained by the prosecution and none of the police, who were present were examined. (xi) The Maruthi car M.O. 1 was searched at about 3.30 p.m. on 24.11.2014 and PW-7, who was the car owner was called to the police station at 2.15 p.m. and PW-9 was present in the police station at 2.45 p.m. (xii) The confession statements of the accused persons and the recovery mahazer are computer print outs, which were made ready in the police station and signatures was received from the witnesses in the police station. 8. Mr. 8. Mr. S.M.A. Jinna, learned counsel appearing on behalf of the appellant/A2 in Crl. A. (MD) No. 513 of 2017 made the following submissions: (i) The call details between PW-9 and A2 that was relied upon by the prosecution shows that regular phone calls were made between them and therefore, it does not in any way help the prosecution in building up a case against A2. (ii) No motive was established by the prosecution and the attempt made by the prosecution to establish conspiracy through PW-12 also failed since this witness turned hostile. (iii) There are material contradictions in the evidence of PW-1, PW-2 and PW-3, who were the main witnesses relied upon by the prosecution. (iv) No independent witnesses were examined in this case inspite of the fact that several persons had gathered in front of the house after the incident. (v) The finger print that was collected from the car M.O. 1 did not have the finger print of A2. (vi) PW-6 had seen two persons on the date of occurrence. But however, he identified all the three accused persons in the Test Identification Parade and that itself throws a lot of doubt on the identity of the accused persons. 9. The learned Additional Public Prosecutor, appearing on behalf of the State made the following submissions: (i) It is a brutal murder, where the accused persons inflicted as many as 24 injuries in the body of the deceased persons and it is a case of murder for gain. (ii) The car in which the accused persons had come to the scene of crime has been spoken to by the witnesses and it is found in the observation mahazer and also in the rough sketch and the finger prints of A1 and A3 was also lifted from the car. (iii) The evidence of PW-9 shows the manner in which the car was handed over to A1 and A3 at the request made by A2 and therefore, the fact that the accused persons went in the car belonging to A7, wife of A9 is proved beyond reasonable doubts. (iv) The evidence of PW-1 to PW-3 clearly establishes the fact that the accused had reached the scene of crime in M.O. 1 car and gone along with the deceased to the first floor and attacked him indiscriminately and thereafter left the house. (iv) The evidence of PW-1 to PW-3 clearly establishes the fact that the accused had reached the scene of crime in M.O. 1 car and gone along with the deceased to the first floor and attacked him indiscriminately and thereafter left the house. Their evidence is cogent and there is nothing to discredit their evidence. (v) The evidence is further corroborated by PW-9, call details between PW-9 and A2, identification of the accused persons in the Test Identification Parade, weapons recovered based on the confession given by the accused persons after arrest and the injuries found in the body of the deceased spoken by the Doctor and the postmortem certificate given by him. Discussion: 10. This Court has carefully considered the submissions made on either side and also carefully assessed the oral and documentary evidence. 11. In the present case, the prosecution seeks to rely upon circumstantial evidence to prove the guilt of the accused. Broadly the prosecution relies upon the following circumstances: (a) Motive of the accused persons to extract money from the deceased based on the evidence of PW-12. (b) PW-1's presence in the house of the deceased and he hearing the cries of the deceased from the first floor, on reaching the first floor found the deceased in a pool of blood and the accused persons having blood stained knives in their hands. (c) The accused persons while running away from the scene of occurrence with the weapon last seen by PW-3, who was coming to the house of the deceased. (d) Arrest, confession and recovery of M.O. 2 to M.O. 4. (e) Finger print of A1 and A3 tallying with the finger print found in M.O. 1-car. (f) Test Identification Parade and the identity of the accused persons. (g) Call details between PW-9 and A2 and (h) the evidence of PW-9 for handing over the car to A1 and A3 in which the accused persons came to the house of the deceased. 11.1. In a case based on circumstantial evidence, every circumstance must be fully proved and all the circumstances must form a chain of evidence so complete as to exclude every hypothesis other than the guilt of the accused. 11.2. Very often a motive is alleged to indicate the high degree of probability that the offence was committed by the person, who was prompted by the motive. 11.2. Very often a motive is alleged to indicate the high degree of probability that the offence was committed by the person, who was prompted by the motive. In a case where the motive alleged against accused is fully established, it provides foundational material to connect the chain of circumstances. It affords a key on a pointer to scan the evidence in the case in that perspective and as a satisfactory circumstance of corroboration. However, in a case based on circumstantial evidence where proved circumstances complete the chain of evidence, it cannot be said that in absence of motive, the other proved circumstances are of no consequence. The absence of motive, however, puts the Court on its guard to scrutinise the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof. 11.3. In this case, the prosecution in order to prove the motive behind the crime had examined PW-12. This witness has not supported the case of the prosecution and he was treated as a hostile witness. PW-23, who is the investigating officer has specifically stated in his evidence that the investigation did not reveal any property missing or taken away from the house of the deceased. There is no other material to establish the motive behind the crime and the prosecution has not proved motive in this case. 11.4. The next circumstance that requires consideration is the evidence of PW-1, who is the defacto complainant and the nephew of the deceased, who is said to have been present in the house of the deceased at the time of the occurrence. He states that he heard the cries of the deceased from the first floor and went to the first floor and found the room locked from inside. He kicked the door and the door opened from inside. He found the accused persons with blood stained knives and the deceased lying in a pool of blood. This witness in the complaint given to the police (Ex. P.1) states that he came to the house of the deceased in the morning and was talking with him, whereas in his evidence he states that he came to the house of the deceased at about 1.00 p.m. 11.5. This witness in the complaint given to the police (Ex. P.1) states that he came to the house of the deceased in the morning and was talking with him, whereas in his evidence he states that he came to the house of the deceased at about 1.00 p.m. 11.5. In order to establish the presence of this witness, in the house of the deceased, no finger print was found in the entire house except the finger prints of the deceased and his son. The son of the deceased was not examined in this case. If at all PW-1 had kicked the door and opened it in the first floor, his finger print would have been detected by the expert. However, it was not found. Similarly, PW-1 admits that he lifted the body of the deceased and his dress had the blood stains of the deceased. The dress was not sent for chemical analysis to find out the blood group found in the dress. This would have atleast ensured the presence of PW-1 in the scene of occurrence. 11.6. The next circumstance that has been relied upon by the prosecution is the evidence of PW-3, who is said to have last seen the accused running away from the house of the deceased. This witness is a Doctor and he had examined the deceased. He did not identify any of the accused persons and he specifically states that by the time he arrived in the scene of occurrence, 10 to 15 persons had already gathered before the house of the deceased. None of these persons were examined by the investigating officer. 11.7. PW-2 is the wife of the deceased and she is admittedly blind. She talks about the cries heard from the first floor and she has spoken about PW-1 informing her about the incident. Obviously, this witness could not have identified the accused persons. 11.8. It is the categoric evidence of both PW-1 and PW-23 that Dog Squad was brought to the scene of crime. No one was examined in this regard and it is not known as to why the Dog Squad came in a case where the accused persons are said to have been seen by PW-1 and PW-3. 11.9. 11.8. It is the categoric evidence of both PW-1 and PW-23 that Dog Squad was brought to the scene of crime. No one was examined in this regard and it is not known as to why the Dog Squad came in a case where the accused persons are said to have been seen by PW-1 and PW-3. 11.9. The evidence of PW-1 and PW-3 makes it very clear that the police were present in the scene of crime at about 1.30 p.m. even before the complaint was given by PW-1 at 2.00 p.m. and none of these police officers were examined by the prosecution. 11.10. As per the inquest report (Ex. P.23), it has been stated that the deceased was last seen alive by PW-2 and the dead body of the deceased was first seen by PW-1. 11.11. Even-though the 161 statements of the witnesses is said to have been recorded in the month of November, 2014, the 161 statements had reached the Court only on 12.01.2015 and 19.01.2015 and there is absolutely no explanation for this delay. This becomes even more significant since PW-1 and PW-3 have given a completely improved version about the incident from their statement recorded under Section 161 (3) of Cr.P.C. 11.12. The next circumstance that has been relied upon by the prosecution is the arrest, confession and recovery of the material objects. As per the evidence of the investigating officer- PW-23, the car-M.O. 1 was searched only at about 3.30 p.m., on 24.11.2014 and whereas PW-9, who was the person who gave the car to A1 and A3, was examined by the prosecution and he had stated that he was called to the police station at about 2.15 p.m., and he was shown A1 in the police station at about 2.45 p.m. If A1 was in the police station at 2.45 p.m. the version of PW-23 that he arrested A1 on 25.11.2014 at 8.00 p.m. and the subsequent recovery made becomes highly doubtful and unbelievable. Further, PW-9 could not have been called to the police station if at all M.O. 1 was searched at 3.30 p.m. 11.13. The alleged confession statement and the recovery mahazer are found to be typed documents and this is claimed to have been typed in the spot and signatures were obtained in the spot. Further, PW-9 could not have been called to the police station if at all M.O. 1 was searched at 3.30 p.m. 11.13. The alleged confession statement and the recovery mahazer are found to be typed documents and this is claimed to have been typed in the spot and signatures were obtained in the spot. Further, PW-10, who is the Village Administrative Officer and the mahazer witness states that by the time he reached the place, A2 had already been arrested and he admitted that he signed all the documents only in the police station. Therefore, the arrest, confession and recovery, as projected by the prosecution becomes questionable. 11.14. The next circumstance that is relied upon by the prosecution is the call details between A2 and PW-9. Ex. P.28 was marked by the prosecution to prove the call details. A careful analysis of the document shows that the call details from 21.11.2014 to 24.11.2014 has been marked. On 21.11.2014, there was one call. On 22.11.2014, there was one call. On 23.11.2014, there were three calls and on 24.11.2014, there were 7 calls made between PW-9 and A2. The evidence of PW-9 shows that he is known to A2 even before since both of them used to work together as photographers. A2 was informed by PW-9 that he was having some financial problems and was willing to give his car (M.O. 1). On the directions of A2, this car is said to have been handed over to A1 and A3. The call details does not in any way improve the case of the prosecution, since both of them had been in regular touch and known to each other. 11.15. Insofar as the finger prints of A1 and A3 that was collected from the car, A1 has given a detailed explanation in writing, when he was questioned under Section 313 (1)(b) of Cr.P.C. He has stated that his friend A2 is a photographer and he had informed him that PW-9 was in need of a sum of Rs. 30,000/- and he wants to pledge his car. Therefore, he along with A3 met PW-9 and the car was handed over to them and they told PW-9 that the money will be handed over in the evening and the car was brought to the house of A1. 30,000/- and he wants to pledge his car. Therefore, he along with A3 met PW-9 and the car was handed over to them and they told PW-9 that the money will be handed over in the evening and the car was brought to the house of A1. He thereafter went to the bank and informed his mother about the pledge of the car and the amount to be given to PW-9 in the evening. After 45 minutes, when he returned back to the car, police was standing near the car and they enquired about the car. The police thereafter is said to have taken away the mobile phone of A1 and that a false case has been foisted. 11.16. The finger print of A1 and A3 found in the car (M.O. 1) has been sufficiently explained. If really A1 to A3 had travelled in the same car and came to the scene of occurrence, it is indeed strange as to how the finger print of A2 was not found in the car. If A2 had got down from the same car, obviously his finger print must be there in that car. Therefore, the recovery of M.O. 1 and the finger print found therein does not in any way substantiate the case of the prosecution. 11.17. The next circumstance that has been relied upon by the prosecution is the identity of the accused persons in the Test Identification Parade. It is seen from the evidence that even before the arrest of A1, he was found in the police station and this has been spoken to by PW-9. PW-6, who is one of the witnesses, who identified the accused persons had stated in his evidence that he saw two persons on the date of occurrence. However, he has identified all the three accused persons during Test Identification Parade. 11.18. Yet another issue that requires consideration in this regard is the evidence of PW-3, who was examined by the prosecution on the ground that he was the last to see the accused persons when they ran away from the scene of occurrence. The witness specifically states that he does not know the accused persons before and the investigating officer did not even show their photographs in order to identify them at the time of investigation. He further states that he does not even remember whether he explained the features/descriptions of the accused persons. The witness specifically states that he does not know the accused persons before and the investigating officer did not even show their photographs in order to identify them at the time of investigation. He further states that he does not even remember whether he explained the features/descriptions of the accused persons. When that is so, it is not known as to why PW-3 has not participated in the Test Identification Parade. He is said to have identified the accused persons for the first time before the Court after nearly 1½ years after the incident and that too, when he claims that he only had a glimpse of the accused persons when they were running away from the scene of occurrence. 11.19. It is also seen that the police had already taken the photographs of all the three accused persons and shown it to the prosecution witnesses. Therefore, the Test Identification Parade which may be a relevant fact, does not stand scrutiny and does not substantiate the case of the prosecution. Conclusion: 12. The Court below has merely relied upon the evidence of PW-1 to PW-3 and has come to the conclusion that the prosecution has proved all the circumstances beyond reasonable doubts. The Court below failed to take note of the various shortfalls that have been discussed supra, inspite of the same being brought to its notice. In a case which rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. There are missing links at various stages in this case and this Court is not able to satisfy itself that the evidence furnished by the prosecution is consistent only with the hypothesis of the guilt of the accused. In the present case, it cannot be stated that the case has been proved by the prosecution against the appellants beyond reasonable doubts. 13. Investigative technique of securing confessions and then working backwards to engineer materials to corroborate it, results in artificial and exaggerated prosecution versions that ultimately ends in acquittals. This case also falls in that category. 14. In this view of the matter, we have to necessarily interfere with the judgment of the Court below. The Criminal Appeals are allowed. 13. Investigative technique of securing confessions and then working backwards to engineer materials to corroborate it, results in artificial and exaggerated prosecution versions that ultimately ends in acquittals. This case also falls in that category. 14. In this view of the matter, we have to necessarily interfere with the judgment of the Court below. The Criminal Appeals are allowed. The conviction and sentence imposed against the appellants/A1 to A3 by the learned III-Additional District and Sessions Judge (FAC), Trichy, in S.C. No. 114 of 2015, by order, dated 06.11.2017, is hereby set aside. It was brought to our notice that the first appellant/A1 is in jail. Hence A1/first appellant is ordered to be set at liberty forthwith, unless his presence is required in connection with any other case. Bail bonds executed by the appellants/accused shall stand cancelled and the fine amount, if any, paid by them, shall be refunded forthwith.