[Judgment of the Court was delivered by N. AUTHINATHAN, J.] The accused is the appellant.
2. This appeal is directed against the conviction and sentence imposed in S.C.No.20 of 2013 on the file of the learned I Additional District and Sessions Judge, Erode District, ordering the accused to undergo life imprisonment for the offence under Sec.302 IPC .
3. The appellant Vijii @ Vijayakumar, one Manikandan, Mahesh @ Maheswaran and Gopi stood charged on the allegation that on 10.4.2011 at about 5.15 p.m at Rasankulam, that Mahesh stabbed the deceased on his neck with a knife; that the appellant Viji @ Vijayakumar clutched the legs of the deceased; that the accused Gopi @ Gopinath held tight the right hand; the accused Manikandan held tight the left hand and that the accused Mahesh @ Maheswaran stabbed all over the body, as a result of which, he died.
4. The deceased was an autorickshaw driver. K. Ravichandran (P.W.2), Murugesan (P.W.3), Balasubramaniam (PW.4), Gunaseelan (P.W.5), Mani @ Pechimuthu (P.W.6) and the deceased were also autorickshaw drivers. They belong to Vijayamangalam autostand. P.W.1 Maiyarasu is the son of the deceased.
5. The appellant was introduced to Gunaseelan (P.W.5) by one Murugan, a Contractor. On 10.04.2011 at about 2.00 p.m., the appellant called P.W.5 over phone for hiring his autorickshaw to go to busstand from K.P. Kalyana Mandapam. As he (P.W.5) was was taking food, he informed the appellant that he could not come. P.W.5 at about 2.45p.m proceeded towards Krishna Mills in his autorickshaw. He saw the appellant with the deceased near a liquor shop. On the same day, at about 5.45 p.m, P.W.5 saw the appellant and the other accused near Harijan Colony. At about 5.00 p.m, Ravichandran (P.W.2) spotted the autorickshaw of the deceased parked at the road side near Rasankulam lake. However, the deceased driver was not to be seen there. P.W.2 informed P.W.3 to convey the message to the family of the deceased.
6. At about 6.30p.m., Maiyarasu (P.W.1) came to the autostand and informed the auto drivers that his father (deceased) did not return home. P.Ws.1 to 6 went to Rasankulam, where they spotted the autorickshaw of the deceased. They saw the body of the deceased with multiple injuries, in the nearby lake.
7. PW.1 went to the police station and lodged Ex.P.1 complaint. On receipt of Ex.P.1, Tmt. Kanmani (P.W.13), Sub Inspector of Police, registered a case in Cr.No.288 of 2011 for the offence punishable under Sec.302 IPC. Ex.P.9 is the First Information Report.
P.W.11 Constable attached to Perundurai Police Station handed over the First Information report to the Judicial Magistrate, Perundurai and copies of the same to the higher officials.
8. Gunasekaran (P.W.15), the then Inspector of Police, Perundurai took up the case for investigation. He visited the scene of occurrence at 1.30 p.m on 11.04.2011. He prepared an Observation Mahazar (Ex.P.5) and Rough Sketch (Ex.P.14) in the presence of witnesses Shanmugam (P.W.8), Village Assistant and Ebinezer. He seized the autorickshaw (M.O.1), bearing Registration No.TN-56A 8885 under Ex.P.7 Mahazar. He collected sample earth and blood stained earth (M.Os.9 and 10), passport size photograph of the deceased (M.O.4), Brandi Bottle lid (M.O.5), Water Bottle lid (M.O.6), White Plastic Tumbler (M.O.7) and blood stained watch (M.O.8) under Ex.P.6 Mahazar from the place of occurrence. The Investigating Officer caused photographs (M.O.11) of the body of the deceased, to be taken with the help of Ravichandran (P.W.9). The Investigating Officer held inquest over the body of the deceased from 2.30 p.m to 5.30 p.m. Ex.P.15 is the Inquest Report. He examined the witnesses. P.W.15 sent the body for post-mortem. P.W.12 Constable attached to Perundurai Police Station removed the body to the Government Hospital for post mortem.
9. Dr.Prem Niwas, (P.W.16) Assistant Doctor, attached to Perundurai Government Hospital, conducted Autopsy on the body of the deceased on 11.04.2011 at 7.30 a.m. He found the following injuries:
External Injuries:
1. Bleeding from nose and mouth present.
2. A vertical incised wound in the center of forehead 2x2x1cm edges sharp and regular. 3.Horizontal incised wound 2x2x1cm left chin, edges sharp and regular.
4. Vertical incised wound ½ x ½ x ½ cm close to the right side of Thyroid cartilage.
5. Horizontal, linear, incised wound 2x2x1cm, right side of neck. Edge's sharp and regular.
6. Two similar horizontal incised wounds on the eight side of neck 1x1cm, just below the previous mentioned wound. Edges clear and sharp.
7. Horizontal incised wound 4x4 on right side of chest 2” below the right clavicle. Depth of the wound 5-6cms. Edges sharp and regular. The wound was directed vertically downwards.
8. Vertical incised wound 2x2cms, depth -4cms, on left side of chest, one inch below the left clavicle, wound directed vertically downwards. Edges sharp and regular.
9. An horizontal incised wound 2x2x1cm on left axilla Edges regular and sharp. 10.Elliptical wound 3x3cm on left side of abdomen (left hypochondriacs) Edges sharp and regular.
11. Elliptical incised wound 3x3cm on right side of upper abdomen (Right hypochondriacs) Depth of the wound 5cms. Edges sharp and regular.
12. Oral incised wound, length 7cms, depth 7cms, on right side of abdomen, lumbar region, Direction of wound oblique. Edges sharp and regular. Omentum and large intestine was protruding out from this wound. Wound was gaping. Spurting of blood seen in the surrounding areas.
13. An horizontal incised wound on left side of umbilicus, length 3cms, depth 4 cms. Edges sharp and regular. Directed vertically downwards. All the above wound have clear margins and wound gapes. Firmly coagulated blood is seen in the wounds and in the deeper tissues. There is extensive infiltration into the deeper tissues and they are antemortem in nature at cannot be removed by .
Internal skull – intact. Brain – Pale 1200 gms. Trachea – haemorrhage's seen. Right side ribs 4,5,6,7 fractures. Right lung 450gm. Lacerations seen in middle and lower lobes. Left side ribs 2,3,4,5,6 fractures. Left liver – Pale 350gms. Laceration seen in all the libes.
Heart: Pale 300gms. Heart ruptured involving right artium and right ventricle. Blood clots weighting about 200gms around this area. Spleen pale 200gms. Lacerations seen on the anterior surface of spleen.
Kidneys: Each 75 grams, pale laceration seen in right kidney in the upper region.
Liver:Pale, 1200 grms lacerations seen in right lobe anterior surface.
Stomach:Pale, perforated on the anterior surface. Rice and brown coloured fluid coming out of the rent.
Bladder:empty. Blood clots seen in the abdominal cavity about 500 grms. The following organs are preserved fro chemmical/HPE analysis. 1. Liver 2. Kidney
3. Stomach 4. Intestines 5. Blood 6.Hyoid Bone 7. Preservation. The deceased would appear to have died 10-12 hrs prior to autopsy and the opinion as to the cause of death is pending regarding chemical/HPE analysis.
Ex.P.17 is the Post Mortem Certificate. Ex.P.18 is the Hyoid Bone report. Ex.P.19 is the Viscera Report. After receipt of Viscera Report, the Doctor P.W.16 opined that the deceased would appear to have died of shock and haemorrhage due to multiple injuries sustained. Ex.P.20 is the final opinion.
10. P.W.12 Constable removed the blood stained clothes from the body and also the jewels (M.Os.13 to 18) and produced at the station under Ex.P.8 Special Report. The Inspector of Police, Perundurai gave requisition to the Judicial Magistrate, Perundurai to cause sending the material objects for chemical analysis. Ex.P.12 is the Chemical Analysis Report. Ex.P.13 is the Serology report received by the Court.
11. P.W.15 received information that the appellant was in Central Prison, Salem. On 18.04.2011, he effected the formal arrest of the appellant, interrogated him in the presence of Ms.Kalaiselvi (P.W.7), Village Administrative Officer, Vijayapuri Village and Shanmugam (P.W.8), Village Assistant. The appellant voluntarily gave a statement to the effect that if taken, he would produce blood stained clothes. Ex.P.3 is the admissible portion of the statement of the appellant. In pursuance of the statement, the appellant took the investigating officer to a hut, located near KPR marriage hall and and produced blood stained full sleeve shirt M.O.3. He took them to a bush near the place of occurrence and produced M.O.2 knife. P.W.15 seized M.O.3 shirt under Ex.P.4 mahazar. The investigating officer sent the accused for remand.
12. The Investigating Officer effected the formal arrest of Mahesh @ Maheswaran, who was in jail in connection with some other case. He examined the doctor, who conducted post-mortem. The investigating Officer, after completion of the investigation, laid charge sheet for the offence punishable under Sec.302 IPC.
13. When examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the prosecution evidence the appellant denied the same. He added that he has been falsely implicated.
14. The trial Court has accepted the case of the prosecution and come to convict and sentence the accused / appellant as aforesaid.
15. Assailing the said conviction the appellant moved this Court.
16. The learned counsel for the appellant would submit that there was delay in lodging the complaint; that there is no material to connect the appellant with the crime; that the trial Court erred in placing reliance on the statement of the accused to the police to render a finding as against the appellant and that therefore, the judgment of the trial Court is liable to be set aside.
17. The learned Additional Public Prosecutor supported the judgment of the trial Court. According to him, there are enough materials to convict the appellant.
18. The case of the prosecution is that the appellant and two other accused immobilised the deceased and that the accused Mahesh @ Maheswaran stabbed the deceased using the knife, resulting in his death.
19. It is not in dispute that the deceased was an auto driver.
P.Ws.1 to 6 were also autorickshaw drivers and they belonged to Vijayamangalam autostand. Maiyarasu (P.W.1) is the son of the deceased.
20. The evidence of the doctor (P.W.16) and his reports (Exs.P.17 to P.20), who conducted autopsy on the body of the deceased, reveal that the deceased Rajendran had been subjected to homicidal violence and there is no dispute over it. The death was due to shock and haemorrhage due to multiple injuries sustained by him.
21. It is to be seen whether the accused has been responsible in causing the above said injuries on Rajendran and thereby brought about his death. Admittedly, there is no eyewitness account of the occurrence. In a case of this nature, where the prosecution relies on circumstances alone to bring home the guilt of the accused, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and the offence must be brought home beyond reasonable doubt. The chain of circumstances must be so complete as to leave no room for doubt about the guilt of the accused.
22. The prosecution alleged that the accused due to previous enmity over hiring the autorickshaw of the deceased took him to Rasankulam and committed the murder. However, the prosecution has not been able to point out any evidence to prove the motive attributed to the accused to commit the murder. The motive may not also be the guiding factor in determining the guilt or otherwise of the accused in a murder case.
23. It is evidence of P.W.5 that he knew the appellant and on the date of occurrence at about 2.00p.m. he contacted him over phone for hiring his autorickshaw to go to Vijayamangalam from K.P.Kalyana Mandapam. His further evidence is that he saw the accused and the deceased together near a liquor shop at about 2.45p.m. P.W.2 would state that he spotted the autorickshaw of the deceased at the road side near Rasankulam lake. However, the driver of autorickshaw was not to be seen in the autorickshaw. P.W.5 would further state that he saw the appellant along with other accused at about 5.00p.m. near Harijan Colony. P.W.6 would state that the appellant hired his autorickshaw to go to Perundurai bus stand. He dropped them at the bus stand.
24. The circumstance of last seen together can be taken into account, when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together and when the deceased was found dead is so small that the possibility of any other person being with the deceased could be ruled out completely. In the case on hand, according to P.W.5, he saw the accused with the deceased at about 2.45 p.m. near a wine shop. However, the dead body of the deceased was found in the lake by P.W.1 and others at 7.15p.m. on 10.04.2011. Therefore, the time gap is not so small to rule out the possibility of any other person being with the deceased. The accused and the deceased were not seen together near the place of occurrence. In the total absence of ocular evidence connecting the accused with the crime, it would not be appropriate to record a conviction on the basis of last seen theory.
25. The next piece of circumstantial evidence relates to the arrest of the appellant and the recovery of incriminating articles in pursuance of the alleged statement Ex.P.3. The articles M.Os.2 and 3 were said to have been recovered on 19.04.2011 in the presence of Village Administrative Officer (P.W.7) and the Village Assistant (P.W.8). The recoveries of M.Os.2 and 3 by themselves in the absence of any other material could not be considered as a ground for coming to the conclusion of the guilt of the accused.
26. The Trial Court would appear to have relied on the statement of the accused to the police which has led to the recovery of material objects. It is important to note that only the admissible portion leading to recovery has been marked as Ex.P.3. But quite significantly the Trial Court placed reliance on the entirety of the statement which is inadmissible in evidence.
27. The whole evidence of the prosecution is infested with infirmity. The prosecution has not placed any reliable materials to connect the accused with the commission of the crime. The evidence attempted to establish the nexus between the accused and the crime is deficient. Therefore, we hold that the prosecution has failed to establish the case beyond reasonable doubt. The accused is certainly entitled to the benefit of doubt. The trial Court did not appear to have analysed the case in its proper perspective. Therefore, the judgment of the trial court cannot be supported.
28. In the result,
(i) The appeal is allowed, the conviction and sentence imposed on the appellant by the learned I Additional District and Sessions Judge, Erode in S.C.No.20 of 2013 are set aside and the appellant is acquitted and he is found not guilty of the charge levelled against him and he is set at liberty forthwith.
(ii) The fine amount, if any paid, shall be refunded to him.
Index : Yes/no Internet : Yes/no sr/sri (S.N.J.,) (N.A.N.J.,) 02.01.2017 To
1. The Inspector of Police, Perundurai Police Station, Erode District
2. The I Additional District and Sessions Court, Erode.
3. The Public Prosecutor, High Court, Chennai.
S.NAGAMUTHU,J.,
and
N. AUTHINATHAN,J.,
sr/sri
CRL.A.No.563 of 2014
02-01-17
http://www.judis.nic.in