Appeal against judgment of sentence for murder
Criminal Appeals filed under Section 374(2) of the Criminal Procedure Code against the judgment of Additional Sessions Court, Dharmapuri dated 31.10.2019 made in S.C. No.31 of 2015 and to set aside the same. The appellants herein/accused 1 and 2 have preferred this criminal appeal. Both the appellants/accused 1 and 2 were convicted and sentenced as follows: Offence Sentence Section 302 IPC Life imprisonment and a fine of Rs.5,000/-, default to undergo one year simple imprisonment
Case Background
2. The case of the prosecution is that A1 and A2 had illicit relationship, which was objected by the deceased, husband of A2 and hence A1 and A2 had decided to eliminate the deceased. Both A1 and A2 had called the deceased to A2’s mother’s place and on 13.08.2014, A1 had attacked and inflicted injury on the left side of the head of the deceased and all over his body with the handle of a spade and A2, with a wooden reaper, had caused injury on the head, ear and left neck of the deceased and the deceased succumbed to the injuries caused to him.
3. In order to prove prosecution case, as many as 27 witnesses were examined as PWs.1 to 27 and 35 documentary evidence were marked as Exs.P1 to P35 and 11 material objects were produced as MOs.1 to 11 on the side of the prosecution. Neither a witness was examined nor a document was produced on the side of the defence.
Prosecution witnesses
4. PW1, though had set the law in motion, had not seen the occurrence and on the basis of the information received by way of a telephonic call, PW1 had given a complaint with the respondent police and a case was registered. Though several witnesses were examined to establish the case of the prosecution, none of the prosecution witnesses, have witnessed the occurrence. According to the prosecution, the occurrence was said to have taken place in between 12.00 midnight on 13.08.2014 to 5.00 a.m on 14.08.2014. The only available evidence is PW9, who had seen the deceased along with the accused 1 and 2. PW9 is doing a quarry business and while he was returning on the date of occurrence, he saw the accused along with the deceased during the night hours. Based on the evidence of PW9, who had identified the accused in the test identification parade, which was held on 01.09.2014, the trial court, by taking into consideration of the unequivocal evidence of PW9 who had last seen alive of the deceased and the accused and taking into consideration the evidence of PW14, who alleged to have seen the deceased and the accused on the date of occurrence, had convicted the accused. However, PW14 has turned hostile. The learned Additional Sessions Judge, Dharmapuri, during trial had come to know that A1 and A2 having an illicit relationship, wanted to eliminate the deceased, who had objected the illicit relationship between A1 and A2, had committed the murder of the deceased.
5. A1 and A2 were arrested on 16.08.2014 and 15.08.2014 respectively, and based on their confession statements and the admissible portion of which led to recovery of MOs.1 and 2, namely broken spade handle and a wooden reaper, from A1 and A2, under the recovery mahazar, marked as Ex.P8. The availability of blood stains in the material objects along with other recovery, namely the dress worn by A2 on the date of occurrence, were sent to the forensic lab. The serological report was marked as Ex.P28.
Appellant side contention
6. The learned counsel appearing for the appellants would contend that it is a case of circumstantial evidence, where there is no witness to establish the case of the prosecution, to prove the theory that A1 and A2 had committed the murder on the deceased. The only evidence that was available before the trial court was PW9, who had identified the deceased along with the accused in the early hours on the date of occurrence. Apart from 27 recoveries, there is no other material to establish the case of the prosecution. However, by taking consideration of the blood stained material objects and other blood stains which tallied with that of the deceased, the trial court has convicted the accused by taking into another factor of inquest report, which was marked as Ex.P20.
7. The learned counsel further contended that in the absence of chain of events arrayed from the witnesses who had seen the deceased being alive along with the accused, which is last seen theory till the allegation of committing the crime, the prosecution had not established the case in fulfilling the chain of events, which point out the guilt of the accused persons.
Defense side Argument
8. Per contra, the learned Additional Public Prosecutor appearing for the State would contend that the illicit relationship between A1 and A2 was spoken by the village people, who were examined as PWs.12 and 13. The recovery of MOs.1 and 2, the wooden reaper and broken spade handle are sufficient proof in corroboration of PW9, who had witnessed the accused persons along with the deceased and who in turn had identified the accused persons in the test identification parade. Therefore, the conviction by the trial court is in accordance with law and the accused had confessed the illegal between both of them.
Examination of the witness
9. On examination of PW1 and other witnesses, namely PW2 to PW5 who had received the information that the body of the deceased was found near forest office and on seeing the body, he had preferred a complaint with the respondent police, which was treated as Ex.P1 and the respondent police has registered an FIR which was marked as Ex.P18. As the case is based on circumstantial evidence, the only available evidence is PW9, who had seen the accused along with the deceased on the early hours of 13.08.2024 and 14.08.2024. The accused persons are unknown to PW9 and in the cross examination, PW9 had admitted that he is doing quarry business and he has the support of the police and there were few cases pending against him. By taking note of the avocation of PW9, it cannot be construed that PW9 is an independent witness, who had identified the deceased along with the accused on the fateful day.
PW9 was planted as a witness he could not have identify a person from a moving car that too in the dark night
10. Similarly, in the cross examination, PW9 had admitted that he had seen the photographs of the accused before he was taken to the prison for the test identification parade. When PW9 had seen the accused in the early hours while he was driving the car, it is highly improbable to identify a person from a moving car, that too in the dark night. There is substantial force in the argument advanced by the learned counsel for the appellants that PW9 is not a significant witness as there were several petty cases pending against PW9 and only at the behest of the respondent police, PW9 was planted as a witness, who had seen the deceased along with the accused. Such factum of planting witness cannot be ruled out, as the time of occurrence and the avocation of PW9 coupled with the factum that before identifying the accused persons in the prison he had seen the photographs which was shown by the respondent police.
PW14 as hostile witness
11. PW14, who alleged to have seen the accused and the deceased on the fateful date, has turned hostile. Therefore, in the absence of any other corroboratory evidence except the evidence of PW9, who has seen the deceased and the accused, as the last seen alive theory without any corroboration and based on the recovery of MOs.1 and 2 from the accused, the crime cannot be construed as one that of the crime committed by A1 and A2. The prosecution had miserably failed from the instance of the last seen alive theory to the of A1 and A2 and the recovery and the other sequences pointing out the crime committed by A1 and A2. When the independent witnesses, who are none other than the village people who had spoken about A1 and A2 about their illicit relationship or relationship by itself cannot be construed that the accused have committed the murder on the deceased as projected by the prosecution, in the absence of any cogent, oral and documentary evidence apart from material objects.
12. PW19, doctor, who conducted post mortem on the deceased had given post mortem certificate as Ex.P13 about the injuries sustained by the deceased. In the cross examination, PW19 had confirmed that there was a possibility that the deceased could have died because of the head injuries caused to him with MOs.1 and 2.
IO narrated the confession statement
13. The learned counsel appearing for the appellants had informed that A2 is having three children, the first child is the son, aged about 17 years, and the second child is the daughter, aged about 15 years and the third daughter is aged about 12 years and now they are living together along with the children of A1. The learned counsel had stated further that the investigation officer, who was examined as PW26 had narrated the entire crime of occurrence and the confession statement given by the accused.
14. The evidence of PW1 and the evidence of PW19 and the recovery of MOs.1 and 2 from the confession given by the accused, it cannot be safe to convict the appellant in the absence of any concrete evidence, who had seen the deceased and the accused alive. PW9, as alleged by the learned counsel for the appellants there is a possibility of becoming a chance witness as PW9 witnessed the deceased and the accused during the night hours, where PW9 was driving his car. Any person who was driving a car during weird hours could not have seen the face and identity of the accused persons and when he himself had admitted in the cross examination that he has seen the photographs of the accused before the test identification parade and therefore, the evidentiary value of PW9 is highly doubtful and based on such a highly doubtful evidence, there cannot be a conviction except the recovery made from the accused
Reference with Supreme Court case
15. In this regard, it is useful to rely on the judgment of the Hon’ble Supreme Court in State of Madhya Pradesh vs. Balveer Singh in Criminal Appeal No.1669 of 2012 dated 24.02.2025,wherein, the Hon’ble Supreme Court has held as under:
“61. Although there can be no straight jacket formula for appreciation of circumstantial evidence, yet to convict an accused on the basis of circumstantial evidence, the Court must follow certain tests which are broadly as follows: –
- Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;
- Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in nature;
- The circumstances, if 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 none else; and
- The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence. In other words, the circumstances should exclude every possible hypothesis except the one to be proved. [See: Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116]
63. It is settled principle of law that an accused can be punished if he is found guilty even in cases of circumstantial evidence provided, the prosecution is able to prove beyond reasonable doubt the complete chain of events and circumstances which definitely points towards the involvement or guilt of the accused. The accused will not be entitled to acquittal merely because there is no eye witness in the case. It is also equally true that an accused can be convicted on the basis of circumstantial evidence subject to satisfaction of the expected principles in that regard.
64. Thus, in view of the above, the court must consider a case of circumstantial evidence in light of the aforesaid settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential. The inference is drawn from the established facts as the circumstances lead to particular inferences. The Court has to draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused.
Conclusion
16. In view of the facts and circumstances of the case and that the case revolves around circumstantial evidence, since there is no last seen alive of the accused and the deceased together before the commission of offence and merely based on the recovery which itself is doubtful, we are inclined to allow this appeal. Accordingly, the criminal appeal is allowed. The judgment of conviction and sentence rendered by the learned Additional Sessions Judge, Dharmapuri dated 31.10.2019 made in S.C. No.31 of 2015, is set aside. The appellants are directed to be set at liberty, in case their presence is not required in any other case. The fine amount, if any, paid by the appellants, shall be returned to the appellants forthwith and the material objects shall be destroyed.
Party
1.Kabali @ Azhagarasan 2.Brinda .. Appellants Vs. The State By Inspector of Police Pappireddipatti Police Station Dharmapuri District Crime No.330/2014 .. Respondent , dated on 28th April, 2025 , cited Crl.A. No.827 of 2019 Coram:-In The High Court Of Judicature At Madras The Honourable Mr.Justice M.S.Ramesh And The Honourable Mr.Justice N.Senthilkumar
