Madras High Court
Raja @ Rajasekaran vs State Rep. By on 20 September, 2024
Author: M.S.Ramesh
Bench: M.S. Ramesh
2024:MHC:3417
Crl.A.No.154 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 21.08.2024
Pronounced on 20.09.2024
CORAM :
THE HONOURABLE MR. JUSTICE M.S. RAMESH
AND
THE HONOURABLE MR. JUSTICE C.KUMARAPPAN
Crl.A.No.154 of 2019
Raja @ Rajasekaran ...Appellant
Vs.
State rep. by,
The Inspector of Police,
Bhuvanagiri Police Station,
Cuddalore District. ...Respondent
Prayer: Criminal Appeal filed under Section 374(2) of the Criminal
Procedure Code to set aside the judgment of conviction and sentence
passed against the appellant under Section 302 IPC (2 Counts) dated
05.03.2019 in S.C.No.122 of 2016 by the learned II Additional District
Sessions Judge, Chidambaram and acquit him.
For Appellant : Mr.K.V.Sridharan
For Respondent : Mr.A.Gokulakrishnan,
Additional Public Prosecutor
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Page 1 of 24
Crl.A.No.154 of 2019
JUDGMENT
M.S.RAMESH, J.
The judgment of the learned II Additional District Judge,
Chidambaram, dated 05.03.2019, finding the accused/appellant guilty of
having committed the offence under Section 302 IPC (2 Counts) and
sentencing him to undergo two life imprisonments, together with fine of
Rs.5,000/- for each count, in default of which to further undergo six
months rigorous imprisonment for each count, is assailed in the present
appeal.
2. For the sake of convenience, the parties in the appeal are
addressed according to their ranks in the trial Court.
3. The brief case of the prosecution is that the accused Raja @
Rajasekaran was having an illicit intimacy with Mahalakshmi, who
worked along with him in a Covering Jewellery shop. After Mahalakshmi
had married Sathish, the accused had plotted to do away with Sathish.
Accordingly, in the night hours of 19.01.2016, he had offered to buy
alcohol for Sathish and when he found that Sathish came along with his
friend Manikandan, he had taken them to a motor shed belonging to one
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Vasudevan and had mixed cyanide in the beer bottles of both Sathish and
Manikandan and thereby caused their death. According to the
prosecution, the accused had caused the death of Sathish, owing to his
marriage with his paramour, and in order to avoid Manikandan being an
witness to the incident, he had caused his death also. After the
Investigation Officer had completed the investigation and filed the final
report, the concerned Judicial Magistrate had supplied the final report
and all the relevant documents to the accused under Section 207 Cr.P.C.,
and committed the case to the Sessions Court. When the trial Court had
framed the charges against the accused, charging him of having
committed the offence under Section 302 (2 Counts) IPC and the same
was read over and explained to the accused, he pleaded that he was 'not
guilty'. Accordingly the case proceeded for trial.
4. Before the trial Court, the prosecution had examined 30
witnesses P.W.1 to P.W.30 and marked 25 documents Ex.P.1 to Ex.P.25,
apart from 12 material objects M.O.1 to M.O.12. The trial Court had
examined C.W.1 and C.W.2 and marked the summons sent to the
Investigation Officer by the trial Court as Ex.C.1.
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5. This is a case that rests on circumstantial evidence and in order
to substantiate their case, the prosecution had predominantly put forth
motive and last seen theory as the key circumstances to prove the guilt on
the accused, apart from relying upon recovery of certain material objects
from the scene of occurrence.
6. In order to prove motive, the prosecution had examined
Mahalakshmi (P.W.15), who is the alleged paramour of the accused, as
well as the wife of the first deceased Sathish (D1), together with
Mathiazhagan (P.W.16), who is the brother of P.W.15. However, both
P.W.15 and P.W.16 did not support the case of the prosecution and hence
were treated as hostile witnesses.
7. Insofar as the circumstance of last seen theory is concerned,
Anbu, S/o.Ethiraj, (P.W.1), who is the father of Sathish (D1),
Ramachandran (P.W.11) and Anbu, S/o.Gopal, (P.W.12) were examined.
According to P.W.1, his son Sathish had left his house on 19.01.2016 at
07.00 P.M., along with the deceased Manikandan (D2) in his two wheeler
and thereafter, when he heard the death of his son on the next day, he had
given a complaint (EX.P.1) before Bhuvanigiri Police Station on
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20.01.2016, which was registered as a suspicious death under Section
174 Cr.P.C.
8. P.W.11, whose daughter was given in marriage to the brother of
Sathish (D1), claims to have seen the accused along with D1 and D2 on
19.01.2016 at 08.30 P.M. at Bungalow bus stop, when D1 and D2 were
in one motorcycle and the accused was in another motorcycle.
9. P.W.12, namely Anbu, has stated in his oral testimony that on
19.01.2016 between 08.00 P.M. and 8.45 P.M., when he was riding his
motorcycle towards Bhuvanagiri, he had seen the accused coming in the
opposite direction in a two wheeler and D1 and D2 together in another
two wheeler, who were proceeding towards the motor shed, where the
occurrence had taken place.
10.1. Apart from the aforesaid witnesses, the following witnesses
were also examined in support of the prosecution's case:-
10.2. P.W.2, namely Ravi, is the Villager, who found the bodies of
both the deceased on 20.01.2016.
10.3. P.W.3 to P.W.7 are also the villagers, all of whom on hearing
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the news of death of both the deceased, had come to the scene of
occurrence and witnessed the bodies.
10.4. P.W.8 and P.W.9 are the mahazar witnesses in whose
presence, the Investigation Officer had prepared the observation mahazar
(Ex.P.2). He had also witnessed the seizure of two beer bottles (M.O.1
and M.O.2), brandy bottle (M.O.3), two cellphones (M.O.4 and M.O.5),
two disposable tumblers (M.O.6), two empty water packets (M.O.7), two
empty snacks cover (M.O.8 and M.O.9), under a seizure mahazar
(Ex.P3).
10.5. P.W.10, namely Krishnamoorthy, is the Head Constable of
the Police Dog Squad, who speaks about the Police Dogs tracking the
scent from the scene of occurrence till the round-about in Kannikovil
Village and stopped there.
10.6. P.W.13, namely Anbuchezian is the Village Administrative
Officer and P.W.14, namely Jagan is the Village Assistant, who had
witnessed the arrest and confession of the accused, the admitted portion
of which was marked as Ex.P.7. Based on the confession, the
Investigation Officer had recovered a small jewellery box (M.O.11) with a
white powder (M.O.12) inside it from under a tamarind tree in
Bhuvanagiri-Kurinjipadi main road, in their presence, through a seizure
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mahazar (Ex.P.6). They had also witnessed the Investigation Officer
seizing the two wheeler (M.O.10) of the accused under a seizure mahazar
(Ex.P.8).
10.7. P.W.17, namely Saravanakumar and P.W.18, namely
Lakshmi, are the two Doctors who had conducted the postmortem of both
the bodies of D1 and D2 and the postmortem reports were marked as
Ex.P.9 and Ex.P.10 respectively.
10.8. P.W.19, namely Kalaimani, is the photographer who had
taken photos at the scene of occurrence.
10.9. P.W.20 to P.W.22 are the Nodal Officers, who speak about
the cellphone tower location of both the deceased, as well as the accused.
When the CDR particulars of both the deceased, as well as the accused
(Exs.P.11 to P.13) were marked, the defence had objected to the marking
of these documents for want of a certificate under Section 65B of the
Indian Evidence Act.
10.10. P.W.23, namely Mahimaidas, is the Grade-I Constable who
had accompanied both the corpses to the Hospital for conducting
postmortem.
10.11. P.W.24, namely Sukumar, is the Police Constable, who had
taken the viscera samples to the forensic laboratory.
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10.12. P.W.25, namely Shanmugam, is the Forensic Scientific
Officer who had given his expert opinion of hyoid bones being 'intact' of
both the deceased under Ex.P.14 and Ex.P.15.
10.13. P.W.26, namely Rosemani, is the Forensic Expert, who had
examined the beer bottles collected from the scene of occurrence and
confirmed the contents therein as 'beer'.
10.14. P.W.27, namely Singaravelu, is the Sub-Inspector of Police,
who had registered the FIR (Ex.P.17) in Crime No.12 of 2016 on
20.01.2016 under Section 174 Cr.P.C. He had prepared the postmortem
report of both the corpses (Ex.P.19 and Ex.P.20).
10.15. P.W.28, namely Anandhi, is the Scientific Officer of the
Forensic Department, who had examined the viscera of both the deceased
and gave separate reports (Ex.P.21 and Ex.P.22), recording that cyanide
was detected in the inner body parts of both the deceased. Likewise, she
had given a report about the presence of cyanide in some of the material
objects seized from the scene of occurrence, as well as from M.O.11
seized from the accused (Ex.P.23 and Ex.P.24).
10.16. P.W.29, namely Rameshraj, is the initial Investigation
Officer, who had arrested the accused on 29.01.2016 and submitted the
alteration report (Ex.P,25).
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10.17. P.W.30, namely Elavarasan, is the subsequent Investigation
Officer, who had filed the charge memo.
11. On completion of the trial, when the incriminating evidences let
in by the witnesses were read over and explained to the accused under
Section 313 Cr.P.C., he denied the same claiming it to be a false case
foisted against him.
12. The Trial Court, on appreciation of the oral and documentary
evidences before it, as well as the material objects, had come to the
conclusion that the chain of circumstances put forth by the prosecution
stands fully established and thus had found the accused guilty of having
committed both the murders and thereby convicted and sentenced him, as
stated above.
13. The learned counsel appearing for the accused submitted that
in a case based on circumstantial evidence, the prosecution is required to
establish each and every circumstance fully, which has not been done in
the instant case. He would submit that the very motive, based on which
the accused has been charged for the offence of murder, has been
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established, since P.W.15 and P.W.16, who were examined for
substantiating the prosecution's case for the motive, have turned hostile
and had not supported the case of the prosecution. In these
circumstances, he would state that since the motive is an important link in
the chain of circumstances, the finding of the trial Court cannot be legally
sustained. Insofar as the last seen theory is concerned, the learned
counsel submitted that the evidences of P.W.11 and P.W.12 are totally
unreliable. According to him, it is far fetched to believe the statement of
P.W.12 that he had identified the accused along with the deceased, while
he was driving on his two wheeler, from the head lamps of a truck behind
him. Even otherwise, he would submit that both P.W.11 and P.W.12 are
closely related to both the deceased and therefore, being interest
witnesses, their testimonies should not be given much importance. Insofar
as the CDR particulars marked through the Nodal Officers to connect the
accused to the crime is concerned, his specific case is that the electronic
evidences, namely, Ex.P.11 to Ex.P.13 cannot be relied upon, since they
were not supported with a certificate under Section 65B of the Indian
Evidence Act, which objection also he had raised at the time of marking
of those documents before the trial Court.
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14. In reply, the learned Additional Public Prosecutor submitted
that though P.W.15 and P.W.16 had not supported the prosecution's case,
for establishing motive, there is a clinching evidence from the oral
testimonies of P.W.11 and P.W.12, both of whom had seen both the
deceased in the company of the accused, immediately before the
occurrence. He also referred to the medical evidence and submitted that
since the consumption of liquor mixed with cyanide was established and
the box containing the cyanide was also recovered, based on the
confession of the accused, the recovery contributes to another important
link in the chain of circumstances. He further referred to the evidences of
the Forensic Experts, who ratified the presence of cyanide from M.O.11,
as well as from the viscera report, which also strengthens the
prosecution's case and therefore sought for dismissal of the appeal.
15. We have given our careful consideration to the submissions
made by the respective counsels and have perused the original records.
16. This is a case based on circumstantial evidences alone and the
law as to appreciation of evidences in such a case has been well settled. In
the case of Sharad Birdhichand Sards Vs. State of Maharashtra
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reported in (1984) 4 SCC 116, the Hon'ble Supreme Court had
summarized five essential conditions that is required to be fulfilled to
establish a case against an accused based on circumstantial evidences.
Following are those five circumstances:-
“(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
v. State of Maharashtra [(1973) 2 SCC 793 : 1973
SCC (Cri) 1033 : 1973 Crl LJ 1783] where the
observations were made: [SCC para 19, p. 807:
SCC (Cri) p. 1047]
“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
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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 innocence of the
accused and must show that in all human
probability the act must have been done by the
accused.”
17. The aforesaid principles have been time and again reiterated by
the Hon'ble Supreme Court and had been followed in numerous
decisions. With these established principles of law in our minds, we shall
now analyze the evidences let in by the prosecution, touching upon the
various circumstances let in by them, to prove the guilt of the accused.
Motive:-
18. The clear case of the prosecution is that the accused was having
an illegal intimacy with Mahalakshmi (P.W.15), who was his co-worker.
However, when P.W.15 fell in love with Sathish (D1) and married him,
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the accused developed grudge and in order to wreck vengeance, had
planned to do away with D1. It is also the case of the prosecution that on
the fateful day, when he had invited D1 to consume liquor along with
him, Manikandan (D2) also accompanied D1. The prosecution would
further add that though the accused intended to do away with D1 alone,
he had felt that if D2 was spared, he might reveal his crime and therefore
decided to finish both of them and accordingly executed his plan.
19. The genesis of motive commences from the illegal intimacy
between the accused and P.W.15. However, when P.W.15 was examined
before the trial Court, she deposed that she did not know as to how her
husband had died. Thereafter, the prosecution had treated her as a hostile
witness and had cross examined her. However, none of her further
statements supported the case of the prosecution and they could not
establish the illegal intimacy or any other relationship between the
accused and P.W.15.
20. Apart from P.W.15, her brother P.W.16 was also examined by
the prosecution to establish motive of the accused. However, P.W.16 also
stated that he did not know as to how his sister's husband had died and
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that the accused was a stranger to him. He was also treated as a hostile
witness by the prosecution and all his further statements did not support
the case.
21. Apart from P.W.15 and P.W.16, no other independent evidences
were let in by the prosecution to establish the circumstance of motive in
this case. In the absence of any other evidence, we have no hesitation to
hold that the prosecution has miserably failed to establish motive on the
accused. As such, the most important link in the case of the prosecution
stands de-linked.
22. In the case of Babu Vs. State of Kerala reported in (2010) 9
SCC 189, the Hon'ble Supreme Court had held that absence of motive in
a case resting upon circumstantial evidence is a factor that weighs in
favour of the accused. Following the decision in Babu's case (supra), in
the case of Anwar Ali and Another Vs. State of Himachal Pradesh
reported in (2020) 10 SCC 166, this proposition was further reiterated.
The consequence of absence of motive in a case that rests on
circumstantial evidence was also dealt with in the case of Amitava
Banerjee alias Amit alias Bappa Banerjee Vs. State of West Bengal
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reported in (2011) 12 SCC 554, by holding that absence of motive for
commission of the offence would require the Court to be more careful and
circumspect in scrutinising the evidence to ensure that suspicion does not
take the place of proof while finding the accused guilty.
23. In the light of the above well settled rulings, we shall now
proceed to analyze the next important circumstance put forth by the
prosecution, namely, the last seen theory.
Last seen theory:-
24. According to the prosecution, P.W.1, who is the father of
Sathish (D1), had seen both D1 and D2 leaving his house on 19.01.2016
at 07.00 P.M. Even thereafter, they had not returned and he heard about
the news of their death the next day. P.W.1 does not speak about having
seen the accused along with D1. Thus, the evidence of P.W.1 only
establishes the fact of both D1 and D2 going out of P.W.1's house on
19.01.2016 at 07.00 P.M.
25. To establish that both the deceased were seen in the company
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of the accused before the date of occurrence, P.W.11, a resident of
Poomanaveli Village and P.W.12, a resident of Therkuthittai Village, were
examined. P.W.11 would state that on 19.01.2016, at about 08.30 P.M.,
while he was standing in the bus stop, he saw both the deceased in the
company of the accused near the bus stop. He had then boarded the bus
to his house. P.W.12, on the other hand, would state that on 19.01.2016,
between 08.00 P.M. and 08.45 P.M., while he was riding his two wheeler
towards Bhuvanagiri, two motorcycles came from the opposite direction.
He further adds that he had identified both the deceased from the head
lights of a lorry and had identified them as persons from the nearby
Village. He also states that the accused was following them in his two
wheeler. The direction, which both the deceased, as well as the accused
were heading to, was towards the motor shed, where the occurrence took
place.
26. It is the submission of the learned counsel for the accused that
P.W.11 and P.W.12 are closely related to both the deceased. In his cross
examination, P.W.11 would admit that his daughter was given in marriage
to the brother of Sathish (D1) and that he used to regularly visit the
family members of D1. Likewise, the younger brother of P.W.12 had
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married Manikandan's (D2) sister. He had attended the funeral of D1 and
also that of his death ceremonies. Both P.W.11, as well as P.W.12, who
are closely related to D1 and D2 respectively, have not spoken about their
acquaintance with the accused. Neither have they stated that they knew
the accused before 19.01.2016. While P.W.11 hails from Poomanaveli
Village, P.W.12 is from Therkuthittai Village. The accused resides at
Valampadugai Village. P.W.11 claims to have seen the deceased in the
company of the accused at the bus stop. Though he is closely related to
Sathish (D1) and had seen him along with the accused and D2 within five
feet distance, he curiously would state that he did not speak with Sathish
nor enquired about who was standing with him. Likewise, P.W.12 had
seen the accused coming in his two wheeler in the opposite direction,
while he was riding his own two wheeler. It was the night hours of
19.01.2016 between 08.00 P.M. and 08.45 P.M., he claims to have seen
him, while the two wheeler crossed him, with a help of a head light of a
lorry, which was behind him. Even P.W.12 has not stated to have known
or acquainted with the accused prior to 19.01.2016. Since both P.W.11
and P.W.12 do not hail from the Village of the accused, but from a
neighbouring Village, there arises a suspicion as to whether these two
witnesses may have known the identity of the accused at all. Admittedly,
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no test identification parade has been conducted in this case and P.W.11
and P.W.12 seem to have identified the accused only during the course of
trial, after more than 2½ years from the date of incident.
27. In the case of Kannan and Others Vs. State of Kerala reported
in (1979) 3 SCC 319, the Hon'ble Supreme Court had held that, where a
witness identifies an accused who is not known to him, in the Court for
the first time, his evidence is absolutely valueless unless there has been
previous test identification parade to test his powers of observation. The
idea of holding a test identification parade under Section 9 of the Indian
Evidence Act is to test the veracity of the witness on the question of his
capability to identify an unknown person, whom the witness may have
seen only once. If no test identification parade is held, it would be wholly
unsafe to rely on his testimony regarding the identification of an accused
for the first time in the Court.
28. In this background and by taking into account that P.W.11 and
P.W.12 are closely related to D1 and D2 respectively, it would be highly
unsafe to rely on their evidences, since they could be termed as partly
reliable and partly unreliable witnesses. In the celebrated judgment of
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Vadivelu Thevar Vs. State of Madras reported in AIR 1957 SC 614, the
Hon'ble Supreme Court had held that in cases of witnesses, who are
neither wholly reliable nor wholly unreliable, the Court has to be
circumspect and has to look for corroboration in material particulars by
reliable testimony, direct or circumstantial. It was also observed therein
that the Court naturally has to weigh carefully such a testimony and if it
is satisfied with the evidences reliable and free from all taints, which tend
to rely oral testimony open to suspicion, it becomes its duty to act upon
such testimony.
29. When viewed in the light of the aforesaid decision of the
Hon'ble Supreme Court, the prosecution has let in no other evidences,
apart from P.W.11 and P.W.12, to establish that the deceased were last
seen with the accused within a close proximity of time before the
occurrence.
30. This apart, the main circumstance of motive has also not been
established in this case and therefore, there in no other evidence to
connect the culpability of crime on the accused.
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31. The learned Additional Public Prosecutor had also referred to
the recovery of M.O.11 and M.O.12, based on the confession of the
accused and projected it to be one of the links to the chain of
circumstances. We are unable to endorse such a submission. Even
assuming that the recovery of M.O.11 and M.O.12 has been established
by the prosecution, still the requirement of the standard of proof in a case
based on circumstantial evidence have not been fulfilled. As held by the
Hon'ble Supreme Court in the case of Sharad Birdhichand Sards
(supra), the burden of proof on the prosecution is five fold, namely,
circumstances from which the conclusion of guilty is to be drawn should
be fully established, so as to be consistent only with the hypothesis of the
guilty of the accused, without any alternate hypothesis. Furthermore,
these circumstances should be of a conclusive nature and tendency to
exclude every possible hypothesis, except the one to be proved. Above all,
the chain of evidence must be so complete, as not to leave any reasonable
ground for the conclusion consistent with the innocence of the accused
and must show that in all human probability that the act must have been
done by the accused. In the instant case, the prosecution has not complied
with any of the aforesaid conditions touching upon the standard of proof
to be adopted and thus, the resultant conclusion that we are constrained
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to arrive, would be to extend the benefit of doubt to the accused.
32. The trial Court has not adopted the requirement for the
standard of proof in a case based on circumstantial evidence, but had
simply relied on the evidences of P.W.11 and P.W.12, as well as the
medical evidences and had drawn the conclusion of guilty on the accused.
Such appreciation of evidences is totally opposed to the well settled
principles of law set forth by the Hon'ble Supreme Court in the decisions,
which have been relied upon in the preceding portions of this judgment.
As such, the finding of guilt, as well as the consequential conviction and
sentence on the accused, cannot be legally sustained.
33. For all the foregoing reasons, the judgment of the learned II
Additional District Sessions Judge, Chidambaram, dated 05.03.2019
passed in S.C.No.122 of 2016, is set aside. Consequently, the appellant/
accused is acquitted of all the charges and is directed to be released
forthwith, unless his presence is required in connection with any other
case. The fine amount, if any, paid by the appellant shall be refunded and
the bail bonds, if any, executed shall stand discharged. This Criminal
Appeal thus stands allowed.
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[M.S.R., J] [C.K., J]
20.09.2024
Index:Yes
Neutral Citation:Yes
Speaking order
hvk
Note: Issue order copy on 20.09.2024
To
1.The II Additional District Sessions Judge,
Chidambaram.
2.The Superintendent of Prisons,
Cuddalore District.
2.The Inspector of Police,
Bhuvanagiri Police Station,
Cuddalore District.
3.The Public Prosecutor,
High Court of Madras.
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M.S.RAMESH, J.
and
C.KUMARAPPAN, J.
hvk
Pre-delivery judgment made in
20.09.2024
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