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Backiaraj and Another Vs. State through the Inspector of Police, Navalpattu Police Station, Trichy - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberCriminal Appeal(MD)No. 202 of 2015
Judge
AppellantBackiaraj and Another
RespondentState through the Inspector of Police, Navalpattu Police Station, Trichy
Excerpt:
.....legal proposition as held in (2016) 9 supreme court cases page 337) in the case of circumstantial evidence, prosecution has to establish chain of circumstances to prove the guilt of the accused beyond periphery of doubt, further extra judicial confession made by the accused prime of facie and doubtful so accused has to give benefit of doubt. further the evidence of chance witness is to be scrutinized with utmost care as held by the hon ble supreme court in (2016) 10 supreme court cases page 220: criminal trial witness interested/partisan witness chance witness - evidence of either kind of witness when can be relied upon held, evidence of interested witness needs to be scrutinized with utmost care it can only be relied upon if the evidence has a ring of truth to it, is cogent, credible.....
Judgment:

(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C to call for the entire records connected to the judgment dated 24.01.2014 in S.C.No.168 of 2013, on the file of the Sessions Judge of Thiruchirappalli Division, Tiruchirappalli and set aside the conviction and sentence imposed against the appellants and acquit the appellants.)

M.V. Muralidaran, J.

1. The appellants are the accused in S.C.No.168 of 2013 on the file of the Sessions Judge, Tiruchirappalli Division, Tiruchirappalli. The Trial court framed charges under Sections 449, 302 and 394 I.P.C against this Appellants/Accused.

2. The Trial Court by Judgment dated 24.01.2014 convicted and sentenced the appellants to undergo 10 years rigorous imprisonment under Section 394 of I.P.C and to pay a fine of Rs.1,000/-, in default to pay fine amount, to undergo rigorous imprisonment for six months, convicted and sentenced to undergo Life Imprisonment under Section 302 of I.P.C and to pay fine of Rs.1,000/-, in default to pay fine amount, to undergo Rigorous Imprisonment for Six months. All the sentences shall run concurrently. Challenging the said conviction and sentence passed against them, the present appeal has been filed by the appellants/accused.

3. The case of the prosecution is that PW1, namely Chinnaponnu, who is the mother of the deceased, namely Mariyaayi. The said Mariyaayi got married with one Kumar four years prior to her death. However, as there was no consensus between the said Mariyaayi and her husband, the said Mariyaayi left her husband and started to live with her mother. Further, in February 2013, followed by her ailment, PW1 went to Erwadi for treatment. When PW1 was in Erwadi, the deceased was used to contact her mother through mobile phone. As such on 28.02.2013 in the evening hours the deceased contacted her mother through cell phone. On the next day there was no phone call from the daughter of PW-1, the deceased, herein. So, on 02.03.2013, PW-1 left Erwadi and reached her house at about 7.30 P.M. She found that her house was locked outside. When she searched the key but did not found. So, she broke-open the door and entered into her house. As soon as she entered into her house, she felt reek from a plastic barrel lies in the hall. The barrel was closed by a wooden log and a paddy bag was put on the wooden log. When she taken away the paddy bag and wooden log, she found her daughter was dead and her dead body was put in the barrel upside-down and a plastic tube was also found on the deceased. So, she lodged a complaint after gave information to her relatives by presumed that her daughter was murdered by strangulation or some other mode.

4. The complaint given by PW-1 was received on 02.03.2013 at about 21 hours, by PW-18, Sub-Inspector of Police and a case was registered in a Crime No.54 of 2013 under sections 302 of IPC.

5. The case registered by PW-18 Sub-Inspector of police of Navalpattu Police Station, Tiruchirapalli district was taken up for investigation by PW-19 the Inspector of Police. Thereafter, PW19 commenced his investigation and completed the same by examined 19 witnesses and also filed 19 documents along with 6 materials objects.

6. It is the case of the prosecution that the investigation was commenced based on the complaint of PW1 namely Chinnaponnu, who is the mother of the deceased. PW-2, Manivel is a relative of the deceased, he saw the deceased on 28.02.2013 at about 5.30 P.M. Further 02.03.2013, when he returned from his field, he heard the noise from the residence of PW1 and he found several persons were gathered in the residence of PW1. So, he went there and saw the dead body of the deceased. Thereafter, he accompanied PW-1 along with 4 to 5 persons to lodge a complaint. He was examined by PW-19 Investigation Officer on 03.12.2013 when he went to the Government Hospital Trichy. PW-3 namely Thangarasu is also a relative to PW-1 and he saw the deceased on 28.2.2013 at about 6 PM when he went to supply milk to the diary and thereafter he heard the death of the deceased. PW-4 namely Ganesan is the resident of Vadaku Veerapatti village and he is one of the witnesses of Exhibit P2, Mahazar. But in the cross examination he admitted that he do not know the contents of said Mahazar. PW-5 is also one of the Mahazar witnesses and he deposed that he put his signature in the mahazar at a nearby grocery shop. PW-6 namely Gopalakrishnan is the Village Administrative Officer of Suriyur Village, Trichy district. In his evidence he deposed that on 11.3.2013 at about 6 AM., both the accused came to his office and gave an Extra-Judicial confession that they murdered one Muthumani @ Mariyaayi. In the chief examination, he has stated that he dictated to his Assistant after receiving the oral confessional statement of the accused and the same was recorded by his assistant. He received the signatures of the accused and his assistant and he also put his signature in the Extra-Judicial confessional statement of the 1st accused which is marked as Ex.P3. Thereafter he along with his Assistant produced both the accused before the Investigation Officer. PW-7 is another Village Administrative Officer of Paappakuruchi village, Trichy District. He went to Navalpattu Police Station at 8.30 AM along with his Assistant, followed by the instructions of the Police officer attached with Navalpattu police station. He deposed that in his presence the Extra Judicial Confessional Statement given by both the accused was recorded and based on the confessional statement, on the same day at about 2.50 p.m. they proceeded to Keeranur and recovered a twisted gold chain (Murukku Chain) from the pawn shop of one Ganesan and recovered the same through Seizure Mahazar Exhibit P4. Thereafter a cell phone was recovered through Exhibit P5. At this juncture, it is to be noted here that PW-7 was treated as hostile witness and he was cross examined by the prosecution as well as by the defence. PW-8 is the Village Assistant, though he deposed that he saw both the accused at Navalpattu police station but was treated as hostile witness. PW-9 is the owner of the Pawn broker shop namely Ganesh bankers, who has deposed that he gave a sum of Rs.40,000/- by receiving a gold jewel from the first accused. The pawn receipt issued by PW-9 is marked as exhibit as P-5 Series. PW-10 is the owner of a cell phone shop at Keeranur in the name and style of Naga Cell City. Further he deposed that on 1.3.2013; he gave a sum of Rs.500/- by taking a G-Five cell phone from the 2nd accused on mortgage. Further, for the seizure of the cell phone, Exhibit P-5 was prepared and he put his signature in the Mahazar. PW-11 is the watchmen of adjacent building of the house of PW-1 and he turned as hostile. PW-12 is the doctor who conducted post-mortem on the body of the deceased. PW-13 is the Scientific Officer and he certified the PW-10, the Serologist Report Exhibit P-10. PW-14 is a resident of Thiruvarumbur; he deposed that on 28.2.2013 at about 6 to 7 PM, he met the accused. PW-15 is the Grade-II, Police Constable and who deployed the sniffer-dog on 02.03.2013 at the occurrence spot. PW-16 is the special Sub-Inspector of Police, who received the First Information Report on 02.03.2013 of Crime No.54 of 2013 of Navalpattu Police Station at about 23 hours and entrusted the same with the Night Watchman attached with the Judicial Magistrate No.III, Trichirapalli. PW17 is the Head-Constable who received the dead body of the deceased from the Inspector of Police after the inquest and identified the same to the doctor for post-mortem and thereafter entrusted the dead body to the relatives of the deceased and also entrusted the viscera of the deceased to the Scientific Officer. PW-18 is the Sub-Inspector of police who registered the First Information Report in Crime No.54 of 2013 under section 302 of IPC and forwarded the same to the learned Judicial Magistrate No.3, Trichy and PW-19 is the Inspector of Police who conducted the investigation and filed charge sheet against the accused for the offence under sections 449,302,394 of IPC.

7. This is the case based on circumstantial evidence. So, necessarily all the circumstances of the case are to be linked with one another without any snap to point the accused that they alone are responsible for the commission of offence. In the present case, if the evidence of PW-1 is taken up for appreciation, it is full of developed version, she has given a complaint stating that she left Erwadi and stayed there 9 days. On 28.02.2013 in the evening hours her daughter, the deceased, contacted her through cell phone. As she did not receive any call from her daughter on the next day, she returned her residence on 02.03.2013 at about 7.30 p.m., as the door is locked outside, she searched the key and as she did not find the key, she broken-open the door and found the dead body in a barrel. Whereas, in the Chief Examination, she developed her previous that one Thursday her daughter contacted her through a cell phone of another person. When PW-1 questioned her daughter through whose cell phone she spoke with her. Further in the Chief Examination, PW-1 was informed by her daughter that both accused came to her residence and her daughter had spoken through their cell phone. She further informed that one of the accused Backiaraj lies in the cot of their residence. In reply PW-1 informed her daughter to lock the door outside by keeping the accused inside the house, Thereafter the cell phone was switched off. So she returned to her residence on the next day and found her house was locked outside. Further, her enquiry about her daughter with the neighbours did not give any clue about her daughter. So she broke-open the door and entered into the house and found her house was totally in disorder. She found blood in the floor nearby the grinder, chili powder and coriander powder were sprinkled throughout the house. After few days of lodging the complaint she gave another statement that sum of Rs.10,000/- was stolen from the bureau. Admittedly the version given by the PW-1 is totally a developed one and nothing was pointed out, in the circumstance raised in the complaint, at the accused. At the same time the evidence of PW-1 does not have any corroboration with the remaining witnesses including the evidence of PW-6 before whom both the accused allegedly surrendered.

8. Apart from that as for as the recovery is concerned, the evidence of PW-6 is to be analyzed. It is the evidence of PW-6 that on 11.03.2013 at about 6 AM both the accused surrendered before him and gave Extra Judicial Confessional Statement. On the dictation of PW-6, it was recorded by his assistant. Thereafter along with his Assistant, he produced the accused with PW-19. Though he had stated in the chief examination that both the accused gave Extra Judicial Confession, he has given the Confession Statement of Backiaraj which is marked as exhibit P3. Moreover in the chief examination, though he stated the confession was recorded by his assistant, in the cross examination he deposed that it was written by him on his own handwriting. Apart from that he has admitted that he did not aware the crime number and sections of the case as on 11.03.2013 when the accused appeared before him. Whereas, the Exhibit P3 is perused, the crime number of the instant case as Crime No.54 of 2013 and the provision of IPC of section 302 and 380 are mentioned. So, the evidence of PW-6 has not got linked with the evidence of PW-1 and has not inspired confidence in the mind of this court. Moreover, it is the evidence of PW-6 that both the accused separately gave confession statement. Accordingly separately recorded, but Exhibit-P3 alone is available and no explanation from the prosecution about the Extra Judicial Confessional Statement given by another accused namely Sasikumar.

9. Moreover the evidence of PW-7 is not corroborated with the evidence of PW-6, because PW-7 has deposed that he did not see the Pawn Receipt and another witness PW-8 treated as hostile. So, the recovery of Pawn Receipt, Ex.P-5 anklets and 2 Leg-Finger-Rings are falsified.

10. Further, in respect of pledging of a gold jewel, the evidence of PW-9 is to be analyzed. First of everything PW-9 does not specify the variant of Jewel during the course of his evidence, but he identified the same after seeing it in the court. Further PW-9 only pledged the jewel with Shri Ram City Union Finance, but nowhere stated that the chain was snapped. Further the chain was not recovered by PW-19 from Shri Ram Finance and the condition of the chain is not been explained anywhere in the prosecution evidence as to whether it was intact and snapped.

11. In the present case the recovery of G -five Mobile phone, as it was allegedly pledged by the second accused Sasikumar with PW-10, whose evidence is that on 01.03.2013, the second accused came to his shop and pledged a blue colour G-five mobile phone and demanded Rs.500/-. PW-10 received the mobile phone and gave a sum of Rs. 500/-. Thereafter, it was recovered by the police, whereas in the cross examination it is revealed that the mobile phone did not have any SIM card, further PW-10 has not issued any Pawn Receipt for the Pledging of cell phone though he was in the habit of issuing Pawn Receipt. Further he also admitted that he did not see the second accused prior to that.

12. Yet another circumstance in the chain of the case is the evidence of PW-11. The prosecution has attempted to prove the presence of both the accused at the place of occurrence, but he turned hostile. So, in the considered opinion of this court is that none of the circumstances is linked with one another to warrant a Capital Punishment or the Life Imprisonment.

13. It is the evidence of PW-12 the doctor who conducted postmortem. She opined that due to strangulation the deceased would have been died, but in the cross examination she had admitted that she did not mention the time of death approximately prior to the post-mortem. Neither chili powder nor coriander powder was found on the dead body of the deceased. It is the duty of the prosecution that too in the case of circumstantial evidence, to prove the approximate time of death, but here also this court would see miserable failure on the part of the prosecution in proving the case. Further the evidence of PW-14 is improbable, because though he has no acquaintance with the accused prior to occurrence there is no explanation as to how he was having knowledge about the case. So, with the evidence of PW-14 this court cannot fix the responsibility of the death of the deceased upon the accused/appellants. Through the evidence of PW-18 all the developed version of PW-1, pointing to the accused are culled out, but the same are against the case of the prosecution. Further, the evidence of PW-19, Investigation Officer made the prosecution case is doubtful. He has stated that he did not see blood in the floor inside the house. Apart from that though the dead body was found in a barrel with blood stain, he did not recover the same. Further the theft of jewels was not informed by PW-1 when he examined her 03.03.2013 and even the remote circumstances to link the accused with the case is not been proved by the prosecution.

14. Further, as for the case of circumstantial evidence is concerned that all the chain of circumstances is to be linked with each other without any snap as held by the Hon ble Supreme Court in the following cases:

In Sahadevan Vs State of Tamil Nadu, it has been observed that Extra-Judicial Confession is weak piece of evidence. Before acting upon in the court must ensure that the same inspires confidence and it is corroborated by other prosecution evidence. In Balwinder Singh Vs State of Punjab, it has been observed that Extra-Judicial Confession requires a great deal of care and caution before acceptance. There should be no suspicious circumstances surrounding it. In Pakkirisamy Vs State of Tamil Nadu it has been observed that there has to be independent corroboration for placing any reliance upon Extra-Judicial Confession. In Kavita Vs State of Tamil Nadu, it has been observed that reliability of the same depends upon the veracity of the witnesses to whom it is made. Similar view has been expressed in State of Rajasthan Vs Raja Ram, in which this Court has further observed that witness must be unbiased and not even remotely inimical to the accused. In Aloke Nath Dutta Vs State of West Bengal, it has been observed that the main features of confession are required to be verified. In Sansar Chand Vs State of Rajasthan it has been observed that extra verified. In Sansar Chand Vs State of Rajasthan it has been observed that Extra Judicial Confession should be corroborated by some other material on record.

15. It is settled legal proposition as held in (2016) 9 Supreme Court Cases page 337) in the case of circumstantial evidence, prosecution has to establish chain of circumstances to prove the guilt of the accused beyond periphery of doubt, further Extra Judicial Confession made by the accused prime of facie and doubtful so accused has to give benefit of doubt. Further the evidence of chance witness is to be scrutinized with utmost care as held by the Hon ble Supreme Court in (2016) 10 Supreme Court cases page 220:

Criminal Trial Witness Interested/Partisan witness Chance witness - Evidence of either kind of witness When can be relied upon Held, evidence of interested witness needs to be scrutinized with utmost care It can only be relied upon if the evidence has a ring of truth to it, is cogent, credible and trust worthy Also, as to chance witness, it is to be seen that although evidence of a chance witness is acceptable in India, Yet the chance witness has to reasonable explain his presence at that particular point more so when his deposition is being assailed as being tainted.

Criminal Trial Investigation Generally - Duty of Investigating officer dealing with a murder case - What should be Held, investigating officer, dealing with a murder case, is expected to be diligent, truthful and fair in his approach and his performance should always be in conformity with the police manual and a default or breach of duty may prove fatal to the prosecuting case - murder trial Death by shooting in the present case, the investigation was carried out with unconcerned and uninspiring performance There was no firm and sincere effort with the needed zeal and spirit to bring home the guilt of the accused - Penal Code, 1860, S.302.

16. So, this is yet another case that the investigating was carried out in a lethargic manner. The approach of the investigating officer in recording the statement of witnesses, collecting the evidence and preparation of sit map has remained unmindful. The investigating officer, dealing with a murder case, is expected to be diligent, truthful and fair in his approach and his performance should always be in conformity with the police manual and a default or breach of duty may prove fatal to the prosecution case. We may hasten to add that in the present case the investigation was carried out with unconcerned and uninspiring performance. We fell that there are no compelling and substantial reasons to concur with the judgment of the trial court.

17. Resultantly, the criminal appeal is allowed and the judgment of the conviction and order of sentence passed by the trial Court in S.C.No.168 of 2013 dated 24.01.2014, on the file of the Sessions Judge of Thiruchirapalli is set aside and the appellants are acquitted. Fine amount, if any paid by the appellants shall be refunded to them. Bail bond executed by the appellants and the sureties shall stand terminated.


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