(The judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the learned Additional District and Sessions Division, Fast Track Court No.1,Erode, made in S.C.No.222 of 2008 whereby the appellant ranked as A2 along with the other accused ranked as A1 stood charged, tried and found guilty under sections 364, 379, 302 r/w 34 and 201 I.P.C. and were awarded 10 years rigorous imprisonment, 3 years rigorous imprisonment, life imprisonment and 3 years rigorous imprisonment respectively. The sentences are ordered to run concurrently. Aggrieved over the said judgment, A2 has preferred this appeal.
2. The short facts necessary for the disposal of this appeal can be stated thus:
(a) The deceased Iyer @ Rajagopal was doing a real estate business. P.W.2 was employed in the wine shop where the deceased used to consume liquor. A1 and A2 were employed for construction activities by the deceased. A1 and A2 also used to have liquor along with the deceased in that wine shop. The deceased used to pay not only for himself but also for others who consume liquor with him. In that process, A1 and A2 met him often and hence, P.W.2 was acquainted with A1, A2 and the deceased. On 19.4.2008 at about 7.00 p.m., the deceased went to the liquor shop and had liquor along with P.W.2 and thereafter, since the deceased wanted to have more liquor, they went to the wine shop which was situated in front of Sikkanaicker college. At 8.00 p.m. the deceased phoned over to A1 and A2 through his cell phone-M.O.3 and called them to have liquor with them. After sometime, A1 and A2 arrived there. Thereafter, all the four, viz., the deceased, P.W.2, A1 and A2 consumed liquor. The deceased paid Rs.400/-. After paying Rs.400/-, the deceased had Rs.3000/- in his pocket which was noticed by P.W.2, A1 and A2. The deceased was in such a drunken mood that he could not even walk. The deceased asked the accused/A1 and A2 to take him to his house. Hence, A1 and A2 arranged for an auto. At about 10.45 p.m., the accused stopped the auto of P.W.1 who came there. A1 and the deceased got inside the auto. A2 followed the auto in the TVS moped. Since the deceased was in a drunken mood, A1 tried to take Rs.3000/- from the pocket of the deceased but the deceased prevented the same. Hence, there was wordy altercation between A1 and the deceased. On seeing this, P.W.1 who was driving the auto thought that it would lead him in trouble. Therefore, he stopped the auto at Bharathi Nagar near Madha church and asked them to pay the auto charge of Rs.30/- and get down from the auto. At that time, A2 who was following the auto, stopped his bike and gave Rs.100/- to P.W.1. Since P.W.1 did not have change, he went to get change in a nearby provision shop. Taking advantage of the situation, A2 pushed the deceased inside the auto and took the auto and drove the same. A1 followed the auto in the two wheeler. Though P.W.1 cried for help, he could not stop them.
(b) P.W.1 went in search of his auto that whole night. The next day morning, he met P.W.2 and enquired about A1 and A2 and got their address. Then, he proceeded to the respondent police station and gave a complaint Ex.P1 as to the theft of auto. P.W.14, Sub-Inspector of Police, on the strength of Ex.P.1 complaint, registered a case in Crime No. 286/2009 under
section 379 IPC. Ex.P23, F.I.R. was despatched to Court. He took up investigation, went to the wine shop and prepared Ex.P3 observation mahazar in the presence of witnesses and also drew a rough sketch Ex.P24. He also examined P.Ws. 1 to 3.
(c) During the course of investigation, on 21.4.2008 at 7.00 a.m. P.W.1, again went to the police station and gave a complaint that his auto was found near a temple and in that, the drunkard person who came in his auto on 19.4.2008 was found dead. The complaint given by P.W.1 was marked as Ex.P.22. The case in Crime No.286/2008 originally registered under
Section 379 was altered to
Sections 364 and
302 IPC.
(d) P.W.15, Inspector of that circle, proceeded to the spot, made an inspection and prepared an Observation Mahazar Ex.P.27 in the presence of witnesses. Photographs were taken which were marked as M.O.5 series. Thereafter, he conducted inquest on the dead body of the deceased in the presence of witnesses and prepared the inquest report Ex.P28. Thereafter, the dead body was sent to post mortem. On receipt of the requisition, P.W.10 doctor conducted autopsy on the dead body and gave his final opinion that the deceased appeared to have died of asphyxia due to strangulation. Thereafter, pending investigation, both the accused were arrested. They came forward to give confessional statement. The admissible part of the confessional statement given by A1 was marked as Ex.P.4 pursuant to which he produced M.O.8 series 50 rupee currency notes 3 in number and the same was recovered under a cover of mahazar, Ex.P6. The admissible part of the confessional statement given by A2 is marked as Ex.P.11 pursuant which he produced M.O.7 series - 50 rupee currency notes (5 in number), M.O.3 - cell phone used by the deceased and M.O.10 TVS Victor motor cycle. The same were recovered under a cover of mahazar. The material objects were produced before the Court and the accused were sent for judicial remand. All the material objects recovered from the place of occurrence, from the dead body of the deceased and the material objects recovered from the accused pursuant to the confessional statement were subjected to chemical analysis. On completion of the investigation, the investigating officer filed a final report.
(e) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 15 witnesses and relied on 28 exhibits and 17 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under
section 313 Cr.P.C. procedurally as to the incriminating circumstances found in the prosecution witnesses and they denied them as false. No defence witnesses were examined. On hearing the arguments advanced on either side, the trial Court found the accused/A1 and A2 guilty under
sections 364,379,302 r/w 34 and 201 IPC and awarded the punishments as referred to above. Aggrieved by the said judgment, the appellant/A2 has brought forth this appeal.
3. Advancing the arguments on behalf of the appellant/A2, the learned counsel would submit that in the instant case, the prosecution had no direct evidence to offer. It rested its entire case on the circumstantial evidence. But the prosecution has neither placed necessary circumstances, nor proved the same. Hence, the prosecution has miserably failed to prove the same. But the trial Court has taken an erroneous view. It is a case before the trial Court that the prosecution had examined P.Ws. 1 and 2 as witnesses to prove the circumstances. Insofar as P.W.1 was concerned, he claimed to be the auto owner; that he took the deceased and A1 from the wine shop in his auto and A2 followed his auto in a two wheeler; that thereafter, when he was proceeding to a particular place, there was wordy altercation between A1 and the deceased inside the auto,hence, he stopped the auto and asked them to get down and to give him the auto charge of Rs.30/-; that at that time, A2 gave Rs.100/-; that since P.W.1 did not have change, he went to get the change from the nearby shop; that at that time, A2 pushed the deceased inside the auto and took the auto; and that A1 followed them in the two wheeler. Had it been true that P.W.1 is the owner of the auto, he should have immediately informed the same to the Police. Only at the time of cross examination, he candidly admits that he went and gave information to the police which would clearly indicate that it should have been the first information. Added further learned counsel, P.W.1 has not produced any documents regarding the ownership of the auto as well as the driving license or permit which would cast a doubt whether he should have taken the vehicle that day or not. It is pertinent to point out that P.W.1 has given the complaint on 20.4.2008 at 9.00 p.m., the next day of the date of occurrence after a long lapse of 24 hours. Hence, there is inordinate delay. The police has originally registered a case under
Section 379 IPC and the case of the prosecution was developed as if P.W.1 came to know about the place where the dead body and his auto was found, then he reported to the Police and further investigation continued and the case was altered to 302 I.P.C. These were all nothing but cooked up affair.
4. Insofar as P.W.2 is concerned, his evidence has got to be rejected for the simple reason that according to P.W.2 he was actually employed in the wine shop and on the date of occurrence, P.W.2 and the deceased had liquor and since the deceased wanted to have more liquor, they both went to another shop which was more than 10 to 15 kms away which is unnatural. The evidence of P.W.2, at the time of cross examination, was shaky. Hence, the trial Court should not have believed the evidence of P.W.2 Added circumstances, was the recovery of M.O.3 cell phone and M.O.4 watch which belonged to the deceased. These are all subsequently development in order to suit the prosecution case.
5. Added further learned counsel, in the instant case, the doctor's opinion canvassed did not support the case of the prosecution. The case of the prosecution is that the death was caused due to asphyxia due to strangulation on the night hours on 19.4.2008. The post mortem was done on 21.4.2008 the post mortem doctor has categorically spoken as if the death would have caused on 20.4.2008 between 12 and 13 hours. Thus, the time of death differs. Thus, the prosecution has miserably failed to prove the case by placing necessary circumstances. Hence, the trial Court should have rejected the case of the prosecution outright but found the appellant guilty. Hence, the appellant has got to be acquitted by this Court.
6. The Court heard the learned Additional Public Prosecutor on the above contention and paid its anxious consideration on the submissions made.
7. It is not in controversy that the deceased Iyer @ Rajagopal was found dead in the place as put forth by the prosecution. The case which was originally registered under
section 379 IPC was subsequently altered to
Section 302 IPC on the death of Iyer @ Rajagopal and the investigation was conducted. The investigating Officer conducted inquest on the dead body of the deceased and sent the same for autopsy. P.W.10, doctor conducted autopsy and gave opinion that the deceased died out of asphyxia due to strangulation. Though it was brought to the notice of the Court that the dead would have been caused in some other manner spoken to by the doctor at the time of cross examination, the Court is unable to agree with the said contention put forth by the appellant for the simple reason while the prosecution comes with a specific case cause of death that is available in the doctor's evidence, it is for the defence to rule out the same. But in the instant case, the prosecution was successful enough in proving the case that Iyer @ Rajagopal died of asphyxia due to strangulation.
8. It is true that the prosecution had no direct evidence to offer and it relied upon circumstantial evidence. The Court is mindful of the caution made by the Apex Court and the settled principle of law. In a given case like this when the prosecution rests it case on circumstantial evidence, it must place and prove all circumstances which should constitute a chain without a snap, pointing to the hypothesis that except the accused no one should have committed the offence. On application of the above test, the Court is thoroughly satisfied that the prosecution has proved the case beyond doubt.
9. In the instant case, it was P.W.1 who was marched as the main witness. So far as P.W.1 was concerned, he was an auto driver. According P.W.2 who was working in a wine shop, the deceased used to come to the wine shop and consume liquor and he used to pay for himself and for his friends also and in that way P.W.2 well knew the deceased as well as A1 and A2 who used to accompany the deceased. On the particular day, that was on 19.4.2008, the decease Iyer @ Rajagopal had liquor with P.W.2 in a wine shop and he wanted to have more liquor. Then, they went to the shop which was situate at the out-skirt of Erode and it was the deceased who phoned over through M.O.3 - cell phone to A1 and A2 who also came there and all of them had liquor. At that time, the deceased was over drunk and he could not even walk. P.W.2 requested A1 and A2 that to take the deceased to the house. A1 and A2 told him that they would take him. When the deceased paid for the liquor they had, the deceased had the balance of Rs.3000/- in his pocket and it was noticed by P.W.2 and also the accused. According to P.W.2, it was A1 and A2 who took the deceased from the wine shop, thereafter, the deceased was not found. P.W.1 auto driver was engaged to take the deceased Iyer @ Rajagopal to his house and it was A1 who got into the auto and A2 followed them in a two wheeler. P.W.1 has categorically stated that while they were proceeding in the auto, A1 attempted to pick the money from the pocket of the deceased but the deceased prevented it and there was wordy altercation between them. When they went near the church, P.W.1 stopped the auto and asked them to get down and to pay the auto charges. A2 ,who came in a two wheeler joined them. P.W.1 demanded Rs.30/- for the auto charge. A2 had only 100/- rupee note and he handed it over to P.W.1 and asked for change. P.W.1 went to get the change in a nearby shop, at that time, A2 pushed the deceased inside the auto and took the auto. A1 followed them in a two wheeler. P.W.1, though raised alarm, could not stop them. P.W.1 went to search of his auto and met P.W.2 the next day and got the full details about the accused and went to the police station and gave Ex.P2 report narrating the entire facts. A case was originally registered under
section 379 IPC.
10. Further, it was P.W.1 who went in search of auto and found his auto and the dead body of the deceased in the auto. Thereafter, he gave a complaint which was marked as Ex.P22. The case which was originally registered under
section 379 IPC was altered to
section 302 IPC. From the evidence of P.W.2, it is quite clear that the deceased was last seen with these accused person when they left the wine shop. The evidence of P.W.1 was to the effect that A1 and A2 actually engaged his auto and took the deceased in his auto. Under such circumstances, the question would arise, when it was A1 and A2 took the deceased in the auto, it was for them to explain what had happened to the deceased. The accused have caused the death of the deceased by strangulation which is pertinent from the post mortem certificate wherein it was found that the neck bone was found broken. At the time of cross examination, the medical person has mentioned that the death would have also been caused in some other manner but it cannot be accepted for the simple reason that the neck bone actually found broken and no other injury was caused to any parts of the body which would clearly indicate that the death was caused due to strangulation. Further, at the time of investigation, both the accused had produced M.O.3, cell phone and M.O.4, watch which belonged to the deceased which shows the nexus between the accused and the crime. Under such circumstance, it is quite clear that the prosecution has placed necessary circumstances and also proved the case beyond reasonable doubt. Thus, the accused, in order to make unlawful gain, abducted the deceased in the auto belonged to P.W.1 and caused his death by strangulation and taken the money. Hence, the trial Court is perfectly correct in finding the accused guilty of the charges levelled against them and awarding the conviction and sentences referred to above. This Court do not find any reason either factually or legally to disturb the order passed by the trial Court.
11. In the result, the appeal fails and the same is dismissed confirming the judgment of conviction and sentence passed by the trial Court.
vsi To
1. The Additional District and Sessions Judge (Fast Track Court No.I) Erode.
2. The Inspector of Police, Erode North Police Station, Erode.
3. The Public Prosecutor, High Court, Chennai