Madras High Court
C.Vignesh Kumar vs The State Rep. By on 6 September, 2024
Author: M.S. Ramesh
Bench: M.S. Ramesh
2024:MHC:3321
Crl.A.No.587 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 16.08.2024
Pronounced on 06.09.2024
CORAM :
THE HONOURABLE Mr. JUSTICE M.S. RAMESH
AND
THE HONOURABLE Mr. JUSTICE C.KUMARAPPAN
Crl.A.No.587 of 2018
C.Vignesh Kumar
... Appellant/Accused
Vs.
The State rep. by
The Inspector of Police,
R.S.Puram Police Station,
Coimbatore.
(Cr.No.681/2015)
... Respondent/Complainant
PRAYER: Criminal Appeal filed under Section 374(2) of the Criminal
Procedure Code to set aside the judgment passed by the learned Trial Court
namely III Additional District and Sessions Judge, Coimbatore in
S.C.No.176 of 2016 dated 27.07.2018 and acquit the appellant herein of all
the charges.
For Appellant : Mr.T.Surendran
For Respondent : Mr.A.Gokulakrishnan
Additional Public Prosecutor
*****
Page 1 of 23
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Crl.A.No.587 of 2018
JUDGMENT
C.KUMARAPPAN, J.
The instant Criminal Appeal has been filed by the sole accused against
the judgment of conviction passed against him, by III Additional District and
Sessions Judge, Coimbatore in S.C.No.176 of 2016 vide order dated
27.07.2018 for the offence under Section 302 of IPC.
2. The gist of the prosecution case is that the accused Vigneshkumar
and the deceased Prabakaran are neighbours. The deceased Prabakaran
serendipitously came to know about the relationship between the accused
and one Divya [PW15] out side of marriage . Taking advantage of the same,
the deceased started blackmailing Divya and the accused. Enraged by such
conduct, the accused nurtured enmity against him and decided to do away
him. In furtherance of the same, and with stratagem, he took the deceased to
a secluded place and done him to death. The prosecution attempted to prove
the case on two folds, qua based on the ocular evidence, and through the
circumstantial evidence.
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3. According to the prosecution, Saravanakumar [PW1] is the son of
the deceased, and Ramesh [PW4] is the co-brother of PW1. It appears that
on the fateful day on 25.09.2015 at about 3.00.p.m, PW1 just went to his co-
brother (PW4)'s house. However, PW4 returned home at 3.50.p.m, while
they were in conversation, PW4 informed his co-brother PW1, that the
deceased and the accused were proceeding to a secluded place near New
Scheme Road. On such information, when PW1 rushed to the scene of
occurrence, the accused attacked PW1's father. But on seeing PW1, the
accused escaped and fled from the scene of occurrence.
4. Thereafter on seeing his father dead, PW1 rushed to the police
station along with Mr.Rajeshkumar [PW3], who is the scribe for the Ex.P1-
complaint, and gave a complaint to Mr.S.Balachandar [PW16]. On receipt of
the complaint, PW16 registered Ex.P13 FIR in Crime No.681 of 2015 for the
offence under Section 302 of IPC. After registering the FIR, he forwarded
the same to the Investigating Officer [PW17], and also to the concerned
jurisdictional Magistrate. PW17, on receipt of the copy of the FIR, at about
17.50 hours, commenced his investigation and proceeded to the scene of
occurrence and has arranged for lighting facility. Thereafter, he examined the
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witness Mr.Palanisamy [PW9] and one Mr.Aravind and prepared the rough
sketch [Ex.P14] and observation mahazar [Ex.P4]. Between 19.00 hours to
22.00 hours, he conducted inquest upon the body of the deceased in the
presence of Mr.Saravanakumar [PW1], Tmt.Neelavathi [PW2] (wife of the
deceased), Mr.Rajeshkumar [PW3], Mr.Ramesh [PW4] and one Priya. The
said inquest report was marked as Ex.P15. After that, he also recorded the
statement of Mr.Palanisamy [PW9] and Mr.Aravind.
5. The Investigation Officer further states that, at the scene of
occurrence, he has also recovered one pair of rubber chappal, a blood stained
brick and an electoral Identity card in the name of Vigneshkumar. Apart
from that, he also collected the sample soil and the blood stained soil. The
seizure mahazar was marked as Ex.P5, and the recovered materials have been
marked as MOs.2, 4 to 7. At about 10.45 hours, he has also recovered the
vehicle bearing Registration No.TN 37 BL 8582 in the presence of
Mr.Palanisamy [PW9] and Mr.Aravind, the seizure mahazar of which was
marked as Ex.P6 and the photograph of motor vehicle was marked as M.O.8.
Thereafter, he has also recorded the statement from the above witnesses. On
the next day 26.09.2015 he made arrangements for the postmortem of
deceased.
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6. While so, he arrested the accused at about 14.00 hours on
26.09.2015 near Poosaripalayam Bus stand. After arresting the accused, he
informed to Telungupalayam VAO one Ms.Thamaraiselvi [PW8] and her
assistant Mr.Karuppasami to stand as witness for the confession statement, as
the accused had willingly volunteered to confess his involvement in the
offence. The confession statement of the accused was recorded in the
presence of PW8 and PW9 at about 14.30 hours to 15.30 hours. In
pursuance of the recording of the confession statement, a discovery of fact
was effected by recovering a blood stained Maroon colour shirt from the
house of the accused in the presence of the very same witnesses, and the
seizure mahazar was marked as Ex.P3.
7. Thereafter, he had also examined the witnesses Mr.Srinivasan
[PW5], Mr.Sivakumar, Mr.Satheesh [PW14], Mr.Loganathan [PW6],
Mr.Saravanan [PW7], Mrs.Thamaraiselvi [PW8] and her assistant
Mr.Karuppasami. Besides, he also recovered the dress materials [M.Os.11,
12 and 13] of the deceased and forwarded the same to the jurisdictional
Magistrate under Form-95. On 28.09.2015, he had recorded the statement of
Divya [PW15], who according to the prosecution is the witness to prove
motive.
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8. While so, in view of his transfer, he handed over the case file to his
successor Mr.Jayaram, who was examined herein as PW18. After that,
Mr.Jayaram [PW18] has recorded the statement of the Doctor, who
conducted the postmortem, and also of the scientific officer. After
completing the investigation, PW18 laid the charge sheet against the accused
for the offences under Sections 364 and 302 of IPC.
9. Before the Trial Court, the prosecution had examined as many as 19
witnesses as PW1 to PW19, marked 17 documents and also 13 Material
Objects to prove their case.
10. The Trial Court, after having considered the oral and documentary
evidence has arrived at a conclusion that the charge under Section 364 of
IPC has not been proved, albeit found that the charge under Section 302 IPC
was proved by the prosecution beyond reasonable doubts and thereby
convicted the accused for the offence under Section 302 IPC and sentenced
him to undergo imprisonment for life. The order of conviction is impugned
in this Criminal Appeal.
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11. The learned counsel for the appellant would vehemently contend
that the prosecution has attempted to prove their case based upon both
through ocular and the circumstantial evidence. The prosecution attempted
to project PW1 as the occurrence witness. But, the same has become a non-
starter as the PW1 gracefully admitted that he did not see the occurrence.
Therefore, the entire prosecution case now rest upon the circumstantial
evidence, that too primarily on the question of last seen theory.
12. It is also the contention of the learned counsel for the appellant
that the prosecution has not at all substantiated the alleged last seen theory,
and that the prosecution has also miserably failed to prove the alleged motive
and the discovery of fact. It was also the contention of the learned counsel
for the appellant that though the Trial Court has rightly disbelieved many
witnesses, while appreciating the evidence of PW2 [wife of the deceased]
and another witness PW15 [Divya], has erroneously believed their evidence
and reached a wrong conclusion that the prosecution has proved motive and
last seen theory.
13. It is the further contention of the learned counsel for the appellant
that PW2 is wholly unreliable witness, and further more, the alleged recovery
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is very much doubtful, which according to the appellant is evident from the
inherent contradiction of the recovery witness PW8. Apart from that, it is the
case of the learned counsel for the appellant that in the present case, the
motive has not at all surfaced, and this by itself is sufficient to snap the
chain of circumstances. Therefore, it is the contention of the learned counsel
for the appellant that this is a fit case where the judgment of the Trial Court
is to be interfered with by setting aside the same. Hence, prayed to allow the
appeal.
14. Per contra, the learned Additional Public Prosecutor would
vehemently contend that the case of last seen theory has been proved to it's
hilt, through the evidence of PW2, PW4, PW5, PW6, PW7 and also through
PW14. He would further contend that the very evidence of Divya [PW15]
has demonstrated the motive. Therefore, when the case of last seen together
at the scene of occurrence was proved, it is for the accused to explain as to
how he was not involved in the offence. It was also contended by the
learned Additional Public Prosecutor that the recovery of voter ID card of the
accused at the scene of occurrence is also yet another circumstance in the
chain. It was also contended by the learned Additional Public Prosecutor
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that PW8 confession witness has categorically stated about the recovery of
blood stained shirt from the residence of the accused, and the tallying of the
blood stain found in the recovered shirt with the blood group of the deceased
is another circumstance against the accused. Hence, the learned Additional
Public Prosecutor would vehemently contend that the last seen theory
coupled with the recovery of blood stained shirt and proof of motive would
unerringly pinpoint the involvement of the accused in the offence, without
any other hypothesis. Therefore, prayed to dismiss the appeal.
15. We have given our anxious consideration to either side
submissions.
16. Before we get into the facts regarding the circumstantial evidence,
it is appropriate to deal with Ex.P1-complaint. While perusing the Ex.P1-
complaint, it was given by the deceased's son PW1. During his chief
examination, he projected himself as an eye witness to the occurrence. But,
during cross examination, he fairly admitted that he had never seen the
occurrence and had reached the scene of occurrence only after hearing about
the death of his father. More importantly, it was his further admission that
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when he reached the scene of occurrence it was 7.00 p.m, and that there were
no police. In this back ground, the very registration of FIR at 5.00 p.m also
becomes doubtful. The relevant admission of PW1 is as follows:-
“//////////////////////////// md;iwa jpdk; vdJ jfg;gdhh; mogl;L ,we;Jtpll; hh;
vd;gij nfs;tpg;gl;L ehd; te;J ghh;j;njdh vd;why; Mkhk;/ mt;thW
nfs;tpgg; l;lJ rk;ke;jkhfj;jhd ehd; nghyPrpy; thf;FK:yk; bfhLj;njd;
vd;why; rhpjhd;/ vdf;F vGj gof;f bjhpahJ vd;gjhy; uhn$ir
itj;J vGjp g[fhh; bfhLj;njd; vd;why; rhpjhd;/ rk;gtk; nfs;tpg;gl;L
te;njd; vd;Wjhd; ehd; g[fhh; bfhLj;njd; vd;why; rhpjhd;/ g[fhhpy;
brhy;ypago rk;gtj;ij nehpy; ghh;j;jjhf ehd; g[fhh; vGj
brhd;nddh vd;why; ,y;iy/ ehd; vdJ mg;gh ,we;jij v';F
brd;w ghh;j;njd; vd;why; Ks; fhl;oYk; ghh;j;njd;/ M!;gj;jphpapYk;
ghh;j;njd;/ Ks; fhl;oy; brd;W vdJ je;ijapd; cliy ghh;f;Fk;
nghJ vj;jid kzp ,Uf;Fk; vd;why; khiy Rkhh; 7 kzpapUf;Fk;/
ehd; bry;Yk;nghJ m';nf nghyPrhh; ,Ue;jduh vd;why; ,y;iy/”
17. In this background, the Trial Court had rightly rejected the attempt
of the prosecution in proving the case through the alleged ocular evidence.
18. Let us now see whether the prosecution have proved their case
through the another mode qua circumstantial evidence. From the
submissions of the learned Additional Public Prosecutor, the three
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incriminating circumstances which are projected against the accused are as
follows:-
(i) the accused and the deceased were last seen together.
(ii)The motive for the occurrence is the knowledge of the
deceased about the relationship between the accused and
PW15 out side of their marriage.
(iii) The blackmailing act of the deceased against the
accused and PW15, and
(iv) the recovery of blood stained shirt and matching of the
blood group found in the recovered shirt with the
deceased blood group.
These are the circumstances relied by the prosecution to sustain the
conviction.
19. Let us discuss the above circumstances one by one.
20. Now, firstly, let us take the circumstance of last seen theory. The
prosecution relied upon the evidence of Mrs.Neelavathi/PW2 [wife of the
deceased] and PW4-Mr.Ramesh [co-brother of PW1], PW5, PW6 and PW7,
who are all the neighbours of the deceased, to prove that the deceased and
the accused were seen together, just prior to the occurrence. Similarly,
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PW14, who is the TASMAC Bar attender also speaks in the above line. But,
the Trial Court, except the evidence of PW2 [wife of the deceased] has
rightly disbelieved the testimonies of all other evidences, as there were
inherent improbabilities in their testimonies.
21. Therefore, it becomes necessary to appreciate as to whether the
evidence of PW2, who was believed by the Trial Court, is reliable? If we
read the evidence of PW2, she states that her husband had informed about
the alleged debauchery relationship between PW15 [Divya] and the accused.
She [PW2] would further state that on 25.09.2015 between 2.30 p.m to
3.00.p.m, the accused picked up the deceased in his motor cycle, from their
residence. It is also her statement that, in spite of her objection, the deceased
accompanied the accused. Therefore, the Trial Court appears to have
compelled to believe the statement of PW2, only on the ground that, the
theory of last seen spoken by PW2 was not challenged by the accused in
cross examination. However, this Court is not in a position to agree with
reasonings given by the Trial Court, as there are abundant material to
discredit her veracity.
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22. It is pertinent to mention here about the inherent inconsistency and
improbabilities between the evidence of PW1 and PW2. According to PW1
(son of the deceased), he reached the scene of occurrence at about 7.00 p.m,
when there were no police. He further states that after visiting the scene of
occurrence at 7.00 p.m, he proceeded to the police station. However, PW2
[wife of the deceased] states incongruously about the presence of police,
when she reached the scene of occurrence. If we take this statement, on it's
face value, she could have reached the scene of occurrence only after
7.00.p.m. Because the death of the deceased came to light only after PW1
reached the scene of occurrence at 7.00.pm.
23. Therefore, if we consider and appreciate her statement in the above
backdrop, her statement that she was expecting her husband from 4.00 p.m
onwards, and that she came to know about the incident at about 4.00 p.m and
that she rushed to the scene of occurrence all would become irrational and
palpably plummeting her statement from the standard of wholly reliable. As
a resultant, the same ushers to the conclusion that PW2 cannot be construed
as a trustworthy witness. Here, admittedly, there are no corroboration to the
evidence of PW2, as the other witnesses, who were examined to prove the
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last seen theory has been rightly disbelieved by the Trial Court. Hence, the
findings rendered by the Trial Court that there was no cross examination
against PW2's statement in respect of the last seen theory cannot be a ground
to rely her, as there are other wild contradictions which raises serious doubt
in her evidence. Therefore, when the accused demonstrated that the PW2 is
not wholly reliable, the mere non confrontation of PW2 in respect of last
seen theory by itself, will not overshadow the other infirmity touching the
core issue.
24. Apart from that, it is well settled principle of law that where a case
rest upon the circumstantial evidence, the prosecution has to prove each and
every chain of the circumstances beyond reasonable doubts, which should
unerringly indicate the only hypothesis that the accused alone is responsible
for the death of the deceased. Furthermore, the Hon'ble Supreme Court, in
many cases has categorically held that in a case of a circumstantial evidence,
the onus is upon the prosecution to prove the complete chain of events,
which shall undoubtedly turn towards the guilt of the accused. Further, the
Hon'ble Supreme Court has also held that the last seen theory, though has
become a definite tool in the hands of the prosecution to establish the guilt of
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the accused, the mere circumstances of last seen theory alone cannot be
sufficient to complete the entire chain of circumstances, to reach the finding
of a guilt.
25. In this regard, it is relevant to refer the judgment of the Hon'ble
Supreme Court in Sahadevan and another Vs. State of Tamil Nadu reported
in (2012) 6 SCC 403. For ready reference, this Court deems it appropriate to
extract the relevant paragraphs:-
“28. With the development of law, the theory of last seen has
become a definite tool in the hands of the prosecution to establish the
guilt of the accused. This concept is also accepted in various
judgments of this Court. The Court has taken the consistent view that
where the only circumstantial evidence taken resort to by the
prosecution is that the accused and the deceased were last seen
together, it may raise suspicion but it is not independently sufficient
to lead to a finding of guilt.
29. In Arjun Marik v. State of Bihar [1994 Supp (2) SCC 372 :
1994 SCC (Cri) 1551] this Court took the view that where the
appellant was alleged to have gone to the house of one Sitaram in the
evening of 19-7-1985 and had stayed in the night at the house of
deceased Sitaram, the evidence was very shaky and inconclusive.
Even if it was accepted that they were there, it would, at best, amount
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to be the evidence of the appellants having been last seen together
with the deceased. The Court further observed that: (SCC p. 385,
para 31)
“31. … it is settled law that the only circumstance of last
seen will not complete the chain of circumstances to record
[a] finding that it is consistent only with the hypothesis of
the guilt of the accused and, therefore, no conviction, on
that basis alone, can be founded.”
30. Even in State of Karnataka v. M.V. Mahesh [(2003) 3 SCC
353 : 2003 SCC (Cri) 795] this Court held that: (SCC p. 354, para 3)
“3. … Merely being seen last together is not enough. What has
to be established in a case of this nature is definite evidence to
indicate that [the deceased] had been done to death of which
the respondent is or must be aware as also proximate to the time
of being last seen together. No such clinching evidence is put
forth. It is no doubt true that even in the absence of the corpus
delicti it is possible to establish in an appropriate case
commission of murder on appropriate material being made
available to the court.”
31. In State of U.P. v. Satish [(2005) 3 SCC 114 : 2005 SCC
(Cri) 642] this Court had stated that (SCC p. 123, para 22) the
principle of last seen comes into play
“where the time gap between the point of time when the accused
and the deceased were last seen alive and when the deceased is
found dead is so small that possibility of any person other than
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the accused being the author of the crime becomes
impossible.””
Therefore, the last seen theory by itself would not be sufficient to lay
conviction. Besides, upon the reason discussed hereinabove, even the case
of last seen theory is doubtful.
26. Secondly, now let us proceed to analyse the other circumstance,
namely, motive. It is well settled principle of law that when the prosecution
proceeds with the case based upon the circumstantial evidence, motive plays
vital role in proving the guilt. To support the above view, it is useful to refer
the judgment of the Hon'ble Supreme Court in Mahamadkhan Nathekhan
Vs. State of Gujarat reported in (2014) 14 SCC 589. The relevant paragraphs
in the above judgement is paragraph 16 and the same reads as follows:-
“16. There was no motive for the occurrence. Though large
amounts are said to be due from the customers at Savarkundla, there
is no evidence on record in the form of books of accounts.
Practically, there is no evidence on this aspect. In fact, according to
PW 3 Mohammed Usman as per Ext. 19 a sum of Rs 35,640 was due
from Accused 3 and a sum of Rs 18,240 was due from Accused 1. In
the cross-examination he has stated that the said amount is due from
the clients of Savarkundla and not from Accused 3 Ismailbhai and
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there are no dues from him. The law is well settled that when the
prosecution case rests purely on circumstantial evidence, motive
plays an important part in order to tilt the scale against the
accused. In our view the High Court misread the material evidence
and reversed the decision of the trial court by convicting the
accused. The conviction and sentence are liable to be set aside.”
[Emphasis supplied by this Court]
27. While considering the proof regarding motive, the pivot here is the
romantic relationship between the accused and PW15 outside their marriage.
However, while analysing PW15's evidence, though she speaks about certain
instances, she had pertinently denied such a relationship with accused.
Further, there are no traces in her evidence as to the knowledge of the
deceased in this regard. Even according to the finding of the Trial Court, the
Trial Court has presumed and assumed certain hidden issues. But no
explanation given what is the hidden issue. Therefore, as long as that issue
is uncovered and proved beyond reasonable doubt, the suspicion howsoever
high cannot be equated with that of the legal proof.
28. Strangely, the Trial Court derives motive based on the absence of
cordial relationship between PW15 and the deceased. Such instances cannot
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be projected as motive against the accused, though the same may be a motive
for PW15. Therefore, the findings rendered by the Trial Court that the
prosecution has proved the motive is perverse and without evidence.
Therefore, we are of the firm view that there are no materials to establish
motive, and that this is also a point in favour of the accused. In this
regard, it is useful to refer the judgment of the Hon'ble Supreme Court in
Varun Chaudhary Vs. State of Rajasthan, reported in (2011) 12 SCC 545.
29. Now, finally and thirdly let us consider the other circumstance
relied by the prosecution by way of discovery of fact. Though the learned
Additional Public Prosecutor would contend that there was a recovery of
voter ID card [M.O.7] of the accused in the scene of occurrence, the Trial
Court has rightly disbelieved the evidence of the Mahazar witness [PW9] as
his first presence at 5.35. pm was doubted in the light of the evidence of
PW1 as the occurrence came to light only at 7.00.p.m. Therefore, as rightly
held by the Trial Court, the evidence of PW9 is not wholly reliable and also
lacks corroboration.
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30. The last circumstance relied by the learned Additional Public
Prosecutor is the recovery of blood stained shirt from the residence of the
accused. In this connection, the learned counsel for the appellant would
draw attention of this Court in respect of the evidence of PW8, who allegedly
witnessed the confession statement given by the accused. It is the case of the
prosecution that they have allegedly recovered the blood stained maroon
shirt [M.O.3] of the accused from the residence of the accused and that the
grouping of the blood stained maroon shirt tallies with the blood grouping of
the deceased.
31. It is common principle that contradictions will not be given undue
importance, unless such contradiction touches upon the core issue. Here, the
contradiction brought out from PW8 [witness to confession] touches upon
the core issue namely the veracity of the alleged factum of presence and
witnessing of the confession statement. These contradictions assume much
significance. If we look at the evidence of PW8, she has stated that she has
signed only in the handwritten confession statement. Whereas, the
admissible portion of the confession statement which was marked as Ex.P2,
is a print out taken from the computer. The Trial Court, though rightly
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recorded about the suppression of first confession statement, erroneously
proceeded further and held that M.O.3 contains the trace of blood grouping
as that of the blood grouping found in the body of the deceased. But the trial
Court failed to take into consideration of the suppression of the initial
confession. This suppression affects the purity and reliability of recovery.
Therefore, when the purity of recovery of blood stained shirt is
compromised, the alleged tallying of blood grouping between the blood
stained recovered shirt and the deceased blood, loses it's relevance and
significance. This Court is of the firm view that even the last circumstance
of recovery, is not reliable.
32. For all the foregoing discussions, we are not in a position to
sustain the view taken by the Trial Court on the circumstances qua theory of
last seen, motive and recovery, as the entire evidence, which relied by the
Trial Court are riddled with unexplained contradictions and lacks
corroboration. Hence, this Court is of the indubitable view that the
prosecution has miserably failed to prove the charges against the accused
beyond all reasonable doubts and thus, the judgment of the Trial Court is
liable to be set aside.
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33. Accordingly, this Criminal Appeal stands allowed. The judgment
of the learned III Additional District and Sessions Judge, Coimbatore made
in S.C.No.176 of 2016 dated 27.07.2018 is hereby set aside. As a
concomitant, the appellant is acquitted from all the charges and the fine
amount, if any paid by him shall be directed to be refunded. The bail bond,
if any, executed by the Appellant, shall stand cancelled.
[M.S.R., J.] [C.K., J.]
06.09.2024
Index:Yes
Neutral Citation: Yes
Speaking order: Yes
kmi
To
1. The Inspector of Police,
R.S.Puram Police Station,
Coimbatore.
2.The Public Prosecutor,
High Court of Madras,
Chennai-104.
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M.S.RAMESH, J.
and
C.KUMARAPPAN, J.
kmi
06.09.2024
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