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2019 Supreme(Mad) 2869
IN THE HIGH COURT OF MADRAS AT MADURAI BENCH
S. Vaidyanathan, N. Anand Venkatesh, JJ.
Satheesh Kumar and Others – Appellants
Versus
State – Respondent
Crl. A. (MD) Nos. 482, 513 of 2017
Decided On : 04-10-2019
Advocate Appeared:
For the Appellants : T. Senthil Kumar, S.M.A. Jinnah.
For the Respondent: M. Chandrasekaran.
Headnote:
Indian Penal Code,1860 - Sections 452 and 302 - Criminal Procedure Code,1973 - Section 161(3) - FIR – investigation - Rathinam was talking with complainant (PW-1) and his wife accused persons with an intention to commit murder of deceased approached him and requested him to show portion which was vacant in first floor in order take same on lease deceased took accused persons first floor and they are said to have attacked deceased indiscriminately with knife and caused his instantaneous death nephew of deceased and he was sitting along with who is said to be blind in ground floor - They heard the cries of deceased after he went to first floor along with accused persons - He rushed to the first floor and found that the door was locked from inside and he kicked door and the door was opened and he found each of accused persons having knife in their hands and found his uncle lying in a pool of blood - He was pushed down and accused persons ran away from the place - He immediately got down from first floor and is brother who had visited house and showed him body of deceased - This was informed went to police station and gave complaint – Held, Persons when they ran away from scene of occurrence witness specifically states that he does not know accused persons before and the investigating officer did not even show their photographs in order to identify them at time of investigation - He further states that does not even remember whether he explained features/descriptions of accused persons - When that is so it is not known has not participated in the Test Identification Parade - He is said to have identified the accused persons for the first time before Court after nearly incident and that too when he claims that he only had a glimpse of the accused persons when they were running away from the scene of occurrence Court below has merely relied upon evidence and has come to the conclusion that prosecution has proved all circumstances beyond reasonable doubts - Court below failed to take note of the various shortfalls that have been discussed supra of same being brought its notice - In case which rests squarely on circumstantial evidence inference of guilt can be justified only when all the incriminating and circumstances are found to be incompatible with innocence of accused or guilt of any other person - There are missing links at various stages in this case and this Court is not able to satisfy itself that evidence furnished by the prosecution consistent only with the hypothesis of the guilt of the accused. In the present case cannot be stated that case has been proved by prosecution against the appellants beyond reasonable doubts – Appeal allowed
JUDGMENT :
1. These Criminal Appeals have been filed against the Judgment of the III-Additional District and Sessions Judge (FAC), Trichy in S.C. No. 114 of 2015, dated 06.11.2017, wherein the appellants were convicted and sentenced as follows:-
| S. No. | Rank of the Accused | Offence under which convicted | Sentence of imprisonment | Fine amount |
| 1. | A1 to A3 | Under Section 449 IPC | Ten years Rigorous imprisonment | Rs. 5,000/- in default, to undergo one year Rigorous Imprisonment |
| 2. | A1 to A3 | Under Section 302 IPC | Life Imprisonment | Rs. 5,000/- in default, to undergo one year Rigorous Imprisonment |
2. The case of the prosecution in brief are as follows:
On 24.11.2014, at about 1.00 p.m. when the deceased Rathinam was talking with the defacto complainant (PW-1) and his wife PW-2, the accused persons with an intention to commit the murder of the deceased, approached him and requested him to show the portion, which was vacant in the first floor in order to take the same on lease. The deceased took the accused persons to the first floor and they are said to have attacked the deceased indiscriminately with knife and caused his instantaneous death.
3. Complaint and evidence collected in the course of investigation:
Vinoth (PW-1) is the nephew of the deceased and he was sitting along with PW-2, who is said to be blind, in the ground floor. They heard the cries of the deceased 5 to 10 minutes after he went to the first floor along with the accused persons. He rushed to the first floor and found that the door was locked from inside and he kicked the door and the door was opened and he found each of the accused persons having knife in their hands and found his uncle lying in a pool of blood. He was pushed down and the accused persons ran away from the place. He immediately got down from the first floor and met PW-3, who is the brother of PW-2, who had visited the house and showed him the body of the deceased. This was informed to PW-2. Thereafter PW-1 went to the police station and gave a complaint (Ex. P.1) to the Special Sub Inspector of Police (PW-15) and he registered an FIR (Ex. P.19) in Crime No. 450 of 2014 for offences under Sections 452 and 302 of I.P.C. at about 2.00 p.m. The express FIR was sent to the Magistrate Court and it reached the Court at about 5.45 p.m.
3.1. The investigation was taken up by PW-23, who went to the scene of occurrence at about 2.45 p.m. on 24.11.2014 and prepared the observation mahazer (Ex. P.3) and rough sketch (Ex. P.31) in the presence of witnesses (PW-4). He collected the material objects in the scene of crime (M.O. 7 to M.O. 9). He also gave a requisition to the finger print division for lifting the finger prints from the scene of crime. The investigating officer proceeded to recover the Maruthi car (M.O. 1) in which the accused persons had come to the scene of crime and also the other records that were found inside the car marked as Ex. P.32 series and M.O. 10 and M.O. 11.
3.2. The investigating officer recorded the statements of the witnesses under Section 161(3) of Cr.P.C. He got in touch with the Ambulance driver (PW-5) and sent the body through PW-14 to the hospital at about 4.00 p.m. The car-M.O. 1 was brought to the police station. On 25.11.2014, between 7.00 p.m. to 9.00 pm. the investigating officer conducted the inquest at Trichy Government Hospital in the presence of witnesses and prepared the inquest report (Ex. P.33). The body was handed over for postmortem, which was conducted by PW-11, who issued the postmortem certificate (Ex. P.16) and thereafter, the body was handed over to the relatives. The clothes that were worn by the deceased were recovered and the same was sent for chemical analysis to the laboratory to find out the blood group.
3.3. On 25.11.2014, at about 8.00 p.m., A1 was arrested and based on his confession
