Madras High Court
Aravindan vs State Rep. By on 29 September, 2024
Author: M.S. Ramesh
Bench: M.S. Ramesh
2024:MHC:3400
Crl.A.No.232 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 16.08.2024
Pronounced on 29.09.2024
CORAM :
THE HONOURABLE Mr. JUSTICE M.S. RAMESH
AND
THE HONOURABLE Mr. JUSTICE C.KUMARAPPAN
Crl.A.No.232 of 2019
Aravindan ... Appellant/ Accused
Vs.
State rep. by
The Inspector of Police,
Dharmapuri Police Station
Dharmapuri District
Cr.No.406 of 2016 ... Respondent/Complainant
PRAYER: Criminal Appeal filed under Section 374(2) of the Criminal
Procedure Code to set aside the judgment passed in S.C.No.69 of 2017 dated
28.03.2019 passed by the Additional Sessions Judge, Dharmapuri.
For Appellant : Mr.V.Rajamohan
For Respondent : Mr.A.Gokulakrishnan
Additional Public Prosecutor
*****
Page 1 of 20
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Crl.A.No.232 of 2019
JUDGMENT
C.KUMARAPPAN, J.
The present criminal appeal is arising out of the order of conviction
passed against the appellant herein in S.C.No.69 of 2017 dated 28.03.2019
under Section 302 IPC.
2. The prosecution case is that the deceased Chinnasamy and accused
Aravindan are distantly related. It is the further case of prosecution that the
accused Aravindan nurtured enmity and vengeance against the deceased
Chinnasamy as he believed that his father was done away by the deceased.
Owing to this unquenched anger and long drawn enmity, on 13.06.2016, the
accused, who was under the influence of alcohol, picked up wordy quarrel
with the deceased near the Sawalur bridge, and killed him by hitting with
stone and fled away from the scene of occurrence.
3. While so, on knowing the death of the deceased, his son P.W.1-
Madhu, rushed to the scene of occurrence and then went to the police station,
and gave a complaint. The Sub-Inspector of Police PW6 -Srinivasan, on
receipt of the same, on 13.06.2016 at 10.00pm, registered an FIR in Crime
No.406 of 2016 under Section 302 IPC. Thereafter, he forwarded the same to
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the concerned jurisdictional Magistrate and to the investigating Officer
PW17-Gandhi.
4. On receipt of the copy of the FIR, the Investigating Officer
proceeded to the scene of occurrence on the same day at about 22.45 hours
and prepared Observation Mahazar and Rough Sketch in the presence of
PW10-Murugesan and PW11-Ravi. Further, in the intervening night of
13/14.06.2016, at about 00.15 hours he conducted inquest upon the body of
the deceased and recovered the materials available near the body of the
deceased, and prepared an observation mahazar. He then arranged for the
postmortem and recorded the statements of PW1 to PW11. From the
statements of the witnesses, he came to know that the assailant is the accused
Aravindan.
5. While so, on 16.06.2016 at about 16.00 hrs, PW12-Rajkumar (VAO)
came to the Police Station along with the accused and gave a special report
along with an extra judicial confession statement said to have been given by
the accused. The I.O thereafter arrested the accused, who once again
voluntarily gave a confession statement in the presence of PW12-Rajkumar
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and one Munusamy. Immediately, thereafter a discovery of fact was made by
recovering the blood stained stone and also the ash of the burned shirt.
Thereafter, he recorded the statement of the postmortem doctor, and other
witnesses, and ultimately laid the charge sheet before the concerned
jurisdictional Magistrate.
6. Before the Sessions Court, the prosecution relied as many as 17
documents and 28 material objects, besides examining 18 witnesses to prove
the charges. The Sessions Court, having considered the oral and
documentary evidence, had found the accused to be guilty u/s.302 IPC and
convicted him by sentencing to undergo life imprisonment.
7. Assailing the order of conviction, the learned counsel appearing for
the appellant would vehemently contend that, though the prosecution
attempted to prove the case on two-fold i.e., by way of ocular evidence, and
through circumstantial evidence, there are no trustworthy eyewitnesses. That
apart, the circumstances which were relied by the prosecution has not all
surfaced, so as to form a complete chain and thus, contended that the order of
conviction passed by the learned Sessions Judge is erroneous and contrary to
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the settled legal principle.
8. Per contra, the learned Additional Public Prosecutor would
vehemently contend that, the learned Sessions Judge has elaborately gone
into all the documents, and has also appreciated the evidence in its right
perspective. It is the contention of the learned Additional Public Prosecutor
that the occurrence witnesses, namely PWs 6, 7 and 8 had categorically
spoken about the occurrence, besides there are abundant evidence to prove
the presence of both accused and deceased together, and that the motive has
also been established. He therefore, would contend that both on the basis of
the circumstantial evidence and ocular evidence, the prosecution has proved
the case beyond reasonable doubt. The learned Additional Public Prosecutor
would also rely upon the extra judicial confession statement and would
contend that this by itself is sufficient to lay the conviction and thus, the
learned Additional Public Prosecutor would pray to dismiss this appeal.
9. We have given our anxious consideration to the submissions made
on either side.
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10. In the instant case, the prosecution attempted to prove the case on
three fold. Firstly through ocular evidence, secondly on the basis of the
circumstantial evidence, and thirdly and lastly through the extra-judicial
confession (Ex.P4).
11. Now let us consider whether the prosecution has accomplished in
their attempt to prove their case beyond reasonable doubt through any of the
above three grounds.
12. Let us first consider the ocular evidence. While perusing the
evidence of the prosecution, PW1 (son of the deceased), who set the law in
motion through Ex.P1 complaint, has not suspected the accused. However,
PW2, wife of the deceased, states that, even prior to giving Ex.P1 complaint,
they had knowledge that the accused is the culprit, as they were informed by
PW3-Munusamy about the involvement of accused. If that being the case,
PW1, who gave Ex.P1 complaint could have referred the name of the accused
in the complaint itself. But the complaint is silent about the assailant.
Therefore, the witness PW3, who visited the scene of occurrence had no clue
about the assailants.
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13. But strangely the prosecution relies upon three witness, namely
PW6-Madhaiyan, PW7-Vetri and PW8-Moorthy and projected them as the
occurrence witness. Here, PW-7-Vetri is none other than the son-in-law of
the deceased. These triumvirates qua PW6 to PW8, in unison voice would
state that they witnessed the occurrence. But, for reasons best known to
them, they neither complained to the police nor at least informed to the wife
and son of the deceased. Therefore, their unnatural conduct would
demonstrate the fallacy and falsity over their evidence.
14. This aspect is further strengthened through the delay in forwarding
their 161 Cr.P.C Statement to the Court. The trial court, in para 14(ii) of its
judgment, had extracted the dates on which Section 161 Cr.P.C. Statement of
the witnesses reached the Jurisdictional Court. For ready reference the same
is extracted hereunder:
SI.No. Name of the Witnesses Examined by the I.O Received by
the
Magistrate
1. PW.6 Madhaiyan, eye 14.6.2016 24.4.2017
witness
2. PW.7 Vetri, eye witness 14.6.2016 24.4.2017
3. PW.8 Moorthy, eye 14.6.2016 24.4.2017
witness
4. PW.1 Madhu 14.6.2016 15.6.2016
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SI.No. Name of the Witnesses Examined by the I.O Received by
the
Magistrate
5. PW.2 Govindhammal 14.6.2016 15.6.2016
6. PW.3Munusamy 14.6.2016 15.6.2016
7. PW.4 Chinnathambi 14.6.2016 15.6.2016
8. PW.5 Chinnasamy 14.6.2016 15.6.2016
9. PW.12 Rajkumar, VAO 2.12.2016 24.4.2017
Extra judicial 14.6.2016 15.6.2016
confession recorded on
15. While Section 161 Cr.P.C., statements of PW1 to PW5 recorded on
14.06.2016 reached the concerned jurisdictional Magistrate the next day i.e.,
on 15.06.2016, quite strangely, the 161 Cr.P.C statements of PW6 to PW8,
who are now relied on as star witnesses by the prosecution, reached the
jurisdictional Magistrate with an unexplained and inordinate delay of almost
ten months qua on 24.04.2017. As already stated, when there are unnatural
conduct of the so called eye witnesses, PW6 to PW8 in not informing the
occurrence either to the police or to the relatives of the deceased, more
specifically when PW7 is the son-in-law of the deceased, the delay in sending
Section 161 Cr.P.C., statements to the Court, would further fan the flame of
suspicion in the prosecution case. Therefore, we are of the strong view that
the evidence of these triumvirate PW6 to PW8 who were projected as eye
witnesses, is highly unreliable. Therefore, we can safely hold that the attempt
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of the prosecution to prove the case through ocular evidence did not
materialise.
16. Coming to their next attempt qua circumstantial evidence, the
circumstances relied by the prosecution is, last seen theory and motive. In
respect of last seen theory, they relied upon the evidence of PW3. According
to his evidence, he did not see the accused and the deceased together, but he
saw the accused with blood stained shirt, which caused suspicion against the
accused. More strangely, even PW3 did not refer such suspicion either to
PW1 (son of the deceased) or to the police immediately. Therefore, PW3
evidence cannot be a conclusive proof for last seen theory. Further his
statement also does not inspire confidence on account of his unnatural
conduct. As we have already discussed, the evidence of PW6 to PW8 are
also not reliable. Apart from these shaky witnesses, no other witnesses were
examined to prove the circumstance of last seen theory. Therefore, we are of
the firm view that the circumstances of last seen theory has not been proved
beyond reasonable doubt.
17. Coming to the motive, it is the prosecution's case that, the mother
and paternal uncle of the accused seeded their unquenched anger and grudge
against the deceased, to the accused, and nurtured enmity within his mind.
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But, when looking at the evidence of PW2, qua wife of the deceased, it is
apparent that the deceased and the accused were in talking terms, and just
about six months back, the deceased had assisted the accused family to invite
guests for his sister's marriage. Therefore, no materials surface even to prove
the motive.
18. Before we get further into the factual aspect, we deem it
appropriate to discuss the legal position in respect of the circumstantial
evidence. The Hon'ble Supreme Court in the case of Shailendra Rajdev
Pasvan and others Vs.State of Gujarat and Others reported in (2020) 14
SCC 750, held that in the case relating to circumstantial evidence, law needs
two fold requirements, i) Every link in the chain of the circumstances has to
be established, and ii) All the circumstances must be consistent pointing only
towards the guilt of the accused. For ready reference, we deem it appropriate
to extract paragraphs 13, 14, 15 and 17 of Shailendra Rajdev Pasvan (cited
supra) case, which read as follows:
'13. Thus, the entire case of the prosecution is based on
circumstantial evidence. It is well settled that in a case which rests on
circumstantial evidence, law postulates twofold requirements:-
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(i) Every link in the chain of the circumstances necessary to
establish the guilt of the accused must be established by the
prosecution beyond reasonable doubt.
(ii) All the circumstances must be consistent pointing only
towards the guilt of the accused.
14. This court in the case of Trimukh Maroti Kirkan v. State of
Maharashtra has enunciated the aforesaid principle as under:-
“12.....The normal principle in a case based on
circumstantial evidence is that the circumstances from
which an inference of guilt is sought to be drawn must be
cogently and firmly established; that those circumstances
should be of a definite tendency unerringly pointing
towards the guilt of the accused; that the circumstances
taken cumulatively should form a chain so complete that
there is no escape from the conclusion that within all
human probability the crime was committed by the accused
and they should be incapable of explanation on any
hypothesis other than that of the guilt of the accused and
inconsistent with his innocence”.
15. Another important aspect to be considered in a case
resting on circumstantial evidence is the lapse of time between the
point when the accused and deceased were seen together and when
the deceased is found dead. It ought to be so minimal so as to exclude
the possibility of any intervening event involving the death at the
hands of some other person. In the case of Bodhraj v. State of J & K,
Rambraksh v. State of Chhattisgarh , Anjan Kumar Sharma v. State of
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Assam following principle of law, in this regard, has been
enunciated: (Shailendra Rajdev Pasvan Case, SCC OnLine Guj para
16)-
“16.......The last seen theory comes into play where the time
gap between the point of time when the accused and
deceased were seen last alive and when the deceased is
found dead is so small that possibility of any person other
than the Accused being the author of crime becomes
impossible. It would be difficult in some cases to positively
establish that the deceased was last seen with the accused
when there is a long gap and possibility of other persons
coming in between exists. In the absence of any other
positive evidence to conclude that Accused and deceased
were last seen together, it would be hazardous to come to a
conclusion of guilt in those cases”.
17. It is well settled by now that in a case based on
circumstantial evidence the Courts ought to have a conscientious
approach and conviction ought to be recorded only in case all the
links of the chain are complete pointing to the guilt of the accused.
Each link unless connected together to form a chain may suggest
suspicion but the same in itself cannot take place of proof and will
not be sufficient to convict the accused."
(Emphasis supplied by this Court)
19. In yet another judgment in Raja Naykar Vs. State of Chhattisgarh
reported in (2024) 3 SCC 481, Hon'ble Supreme Court has held that in the
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case of circumstantial evidence any discovery of fact in a place accessible to
all, and in common place, become doubtful. The relevant paragraph 31 reads
as follows:
"31. Insofar as the finding of the High Court that the appellant
has failed to give any explanation in his statement under Section 313 Cr.
P.C. is concerned, we find that the High Court has failed to appreciate
the basic principle that it is only after the prosecution discharges its
duty of proving the case beyond all reasonable doubt that the false
explanation or non-explanation of the accused could be taken into
consideration. In any case, as held by this Court in the case of Sharad
Birdhichand Sarda in a case based on circumstantial evidence, the non-
explanation or false explanation of the accused under Section
313 Cr.P.C. cannot be used as an additional link to complete the chain
of circumstances. It can only be used to fortify the conclusion of guilt
already arrived at on the basis of other proven circumstances."
(Emphasis supplied by this Court)
20. In the case of Pardeep Kumar Vs. State of Haryana reported in
(2024) 3 SCC 324, the Hon'ble Supreme Court relied on the oft-quoted
judgment of Hon'ble Supreme Court in Sharad Birdhichand Sarda Vs. State
of Maharashtra reported in (1984) 4 SCC 116. In Sharad Birdhichand
Sarda case (cited supra), Hon'ble Supreme Court laid down the Panchsheel
principle in paragraph 153 and 154 and the same read as follows:
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"153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against an
accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt
is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances
concerned "must or should" and not "may be" established. There is
not only a grammatical but a legal distinction between "may be
proved" and "must be or should be proved" as was held by this Court
in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(1973) 2
SCC 793 : 1973 SCC (Crl) 1033 where the following observations
were made (SCCp.807, para 19):
"19.......Certainly, it is a primary principle that the accused
must be and not merely may be guilty before a court can
convict and the mental distance between 'may be' and 'must
be' is long and divides vague conjectures from sure
conclusions."
(2) The facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say. they should not
be explainable on any other hypothesis except that the accused is
guilty,
(3) the circumstances should be of a conclusive nature and
tendency.
(4) they should exclude every possible hypothesis except the
one to be proved, and
(5) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent with the
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innocence of the accused and must show that in all human
probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute
the panchsheel of the proof of a case based on circumstantial
evidence (Sharad Birdhichand Sarda v. State of Maharashtra, SCC
p.185, paras 153-54)"
21. Therefore, in the case of circumstantial evidence, all the
circumstances has to be proved without there being any missing link. As we
already discussed, in the present case the last seen theory has not been
established, and the motive has also not been proved. Thereafter, the
prosecution also miserably failed to establish the alleged incriminating
circumstance. Thus, the issue is now narrow down to the only remaining
factor qua the extra-judicial confession.
22. It is pertinent to mention here that, the extra-judicial confession is
a weak piece of evidence, particularly in a case which rests upon the
circumstantial evidence. In the case on hand, in order to prove the extra-
judicial confession (Ex.P4), the PW12-Rajkumar was examined. According
to his version, on 14.06.2016 when he was in the Office, the accused came
and voluntarily gave the confession statement. However, if we look at his
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cross-examination, he fairly admits that immediately on arrival of accused,
his presence was informed to the police station. Therefore, when PW12 has
informed to the police about the arrival of the accused, naturally there is a
reasonable doubt arising as to the voluntariness of the confession statement
given to the PW12 vide Ex.P4.
23. Coming to the recovery, no blood stained dress material was
recovered, as it is the case of the prosecution that the same was burnt by the
accused. What was recovered is only the stone, which even does not
establish its link to the alleged occurrence in the absence of serology report.
24. Therefore, it is apparent that the prosecution did not establish the
case either through ocular evidence, or through circumstantial evidence.
Even the extra-judicial confession and the recovery is not wholly believable.
At this juncture, it is useful to refer to judgment of Hon'ble Supreme Court in
Kalinga Alias Kushal Vs. State of Karnataka By Police Inspector, Hubli
reported in (2024) 4 SCC 735, where the Hon'ble Supreme Court has held
that, extra-judicial confession is a weak type of evidence and as a rule of
prudence, a corroboration is necessary. For ready reference, the relevant
paragraph of the judgment is extracted hereunder:
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"15. The conviction of the appellant is largely based on the
extra-judicial confession allegedly made by him before PW 1. So far
as an extra judicial confession is concerned, it is considered as a
weak type of evidence and is generally used as a corroborative link
to lend credibility to the other evidence on record. In Chandrapal
v. State of Chattisgarh, this Court reiterated the evidentiary value
of an extra judicial confession in the following words (SCC
OnLine SC para 11:
"11. At this juncture, it may be noted that as per Section 30 of
the Evidence Act, when more persons than one are being tried jointly
for the same offence, and a confession made by one of such persons
affecting himself and some other of such persons is proved, the court
may take into consideration such confession as against such other
person as well as against the person who makes such confession.
However, this court has consistently held that an extra judicial
confession is a weak kind of evidence and unless it inspires
confidence or is fully corroborated by some other evidence of
clinching nature, ordinarily conviction for the offence of murder
should not be made only on the evidence of extra judicial
confession. As held in case of State of M.P v. Paltan Mallah, the
extra judicial confession made by the co-accused could be admitted
in evidence only as a corroborative piece of evidence. In absence of
any substantive evidence against the accused, the extra judicial
confession allegedly made by the co-accused loses its significance
and there cannot be any conviction based on such extra judicial
confession of the coaccused."
(Emphasis supplied by this Court)
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25. Similarly, the Hon'ble Division Bench of this Court in Sasikumar
Vs. State rep. By Inspector of Police, Karungalpalayam Police Station,
Erode District reported in 2005-1-L.W (Crl.) 161, has held that the extra
judicial confession is a weak piece of evidence and therefore, caution must
be there in the mind of the Court. The Division Bench further held that if the
extra judicial confession is found to be reliable and trustworthy, then there
will be no harm in basing the conviction on the said piece of evidence alone.
But we have revised our findings that even the extra judicial confession
attached with doubt regarding its voluntariness. Thus, from the detailed
discussion made hereinabove, we are of the firm view that the prosecution
has miserably failed to establish any incriminating circumstances against the
accused. However, though the trial Court has passed an elaborate judgment,
it had hardly appreciated the evidence in its right perspective, and thereby
landed to a wrong conclusion and therefore, the same needs to be interfered
by this Court by setting aside the same.
26. In the result, this Criminal Appeal is allowed and the judgment
dated 28.03.2019 passed by the Additional Sessions Judge, Dharmapuri in
S.C.No.69 of 2017 is set aside, and the appellant is acquitted of all charges.
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Fine, if any, paid shall be refunded to him. Bail bond, if any executed, shall
stand cancelled.
[M.S.R., J.] [C.K., J.]
29.09.2024
Index:Yes
Neutral Citation: Yes
Speaking order: Yes
gpa
To
1. The Additional Sessions Judge
Dharmapuri
2. The Inspector of Police,
Dharmapuri Police Station, Dharmapuri District
3.The Public Prosecutor,
High Court of Madras.
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M.S.RAMESH, J.
and
C.KUMARAPPAN, J.
gpa
Judgment made in
29.09.2024
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