MURUGESAN Vs. STATE

JUDGEMENT

(1.) THIS judgment shall govern the above two appeals, namely Criminal Appeal Nos.1077 of 2007 and 39 of 2008.

(2.) CRIMINAL Appeal No.1077 of 2007 is filed by A-2 and CRIMINAL Appeal No.39 of 2008 is filed by A-1, challenging the judgment of the Principal Sessions Division, Namakkal made in S.C.No.14 of 2007, whereby these two appellants along with another shown as A-3 stood charged, tried and found guilty as follows: The sentences were ordered to run concurrently.

(3.) ADVANCING arguments on behalf of the appellants, the learned Senior Counsel has made the following submissions: a) The occurrence has taken place, according to the prosecution, on 21.7.2006. The prosecution, either to prove the crime of theft or murder or for screening the evidence, had no direct evidence to offer, but it has rested its entire case exclusively on circumstantial evidence. As could be seen from the available materials and the evidence produced before the trial court, two circumstances, according to the prosecution, were prime. One was the last seen theory by P.Ws.10 and 6 and the other was the recovery of jewels, which belonged to the deceased and also the Maruti Van etc. The learned counsel would add that it is true, the prosecution made sincere attempt by placing two circumstances and tried its best to prove the same, but it has miserably failed and under these circumstances, the lower court should have rejected the case of the prosecution, but it has taken an erroneous view as if the prosecution has proved the circumstances. b) The first circumstance so far as the last seen theory was concerned, the prosecution examined two witnesses, who are P.Ws.10 and 6. According to P.W.10, he is employed in TASMAC Shop as Supervisor and the first accused and the deceased came over there and took brandy and after consuming the liquor, they proceeded from that place in a Red colour Maruti Van. This part of the evidence should have been rejected for more reasons than one. According to him, when he gave evidence before the court, he has deposed that he saw both of them in the shop at about 10.45 a.m., but when he was interrogated by the Investigating Officer and when the statement was recorded under Section 161 Cr.P.C., he has stated that he met both of them at 2.00 p.m. Thus, at what time he met both of them was itself contradictory. Further, he has stated that that was the first time when he met both of them and further, number persons used to come to the shop and he could not remember or identify them. If to be so, the circumstance would require the conduct of identification parade, but it was not conducted. Thus, with the evidence of P.W.10, which is self contradictory, it cannot be stated that he has actually saw the first accused along with the deceased on the date of occurrence. c) The second witness examined was P.W.6. According to him, he is the close relative of the deceased, whose house is situated just 15 feet from the house of P.W.1. He met both of them at 12.00 noon near the Maruthi Van and he would add that he left the place and came after one week. It is pertinent to point out that he has not whispered to anybody that he saw both of them on the date of occurrence. It is highly a matter of surprise to note that how a person, who happened to be the close relative of the deceased, has not whispered anything about the said fact. Naturally, one would expect him to tell others that he has last seen both A-1 and the deceased, but he has not done so. The other reason to reject the testimony of P.W.6 was that P.W.18, the Sub Inspector of Police would claim that he examined P.W.6 on 27.7.2006 itself, but that statement was never despatched to the Court and it was not available at all and hence what was actually the statement given by P.W.6 on 27.7.2006 remained unknown. Had it been produced before the court, the witness could be better testified, but the prosecution did not help the court. Further, the evidence of P.Ws.10 and 6 was thoroughly to be nullified by the evidence of P.W.1. Even as per the complaint, she has stated that her son took lunch and left the house at 1.00 p.m. on 21.7.2006. If to be so, the claim of P.W.10 that he met them at 10.45 a.m. or the claim of P.W.6 that he met them at 12.00 noon was thoroughly nothing but tissue of falsehood and hence their evidence should not be given any credence. d) So far as the other part of the evidence, which according to the prosecution was the extra judicial confessional alleged to have been given by the first accused to P.W.17 on 23.9.2006 was concerned, it cannot be given any evidentiary value at all. According to P.W.17, he was the Village Administrative Officer for a period of nearly more than a decade. A-1 came to his office at 9.00 a.m. and gave extra judicial confessional and the same was recorded by him. Thereafter, he took A-1 to the police station and he was produced before the Investigator at about 10.45 a.m., where A-1 gave another statement, which led the recovery of the Van and he also identified A-2, who has identified P.W.11, from whom M.Os.1 to 3 were recovered and thereafter, A-3 was arrested, from whom M.O.4, cell phone was recovered. P.W.17 has categorically admitted that from 10.45 a.m. till the end of the entire recovery, he was in the hands of the police. At this juncture, the entire confessional statement is doubtful for the simple reason that it was not actually written in the paper supplied by the Government and it did not also bear the seal and that he had no explanation to offer for the same. The added circumstance was that the prosecution would claim that A-1's confessional statement was recorded at 10.45 a.m. when he was arrested by the Investigator at Paramathi Police station. Thereafter, A-2 was arrested, following which A-3 was also arrested and these process were going on for a whole day, which was spoken to by P.W.17, V.A.O. But the entire evidence as to the arrest, confessional statement and the recovery was thoroughly falsified by the evidence of P.W.1 and also P.W.7. According to them, all the three accused were actually in the police station of Jedarpalayam at 10.00 a.m. on 23.9.2006. If to be so, the arrest, all the confessional statements and the recovery of M.Os, as claimed by the prosecution, were nothing but false and cooked up affairs. Hence no evidentiary value could be attached to the evidence of P.W.17. If the prosecution lose these three pieces of evidence, then it has no evidence to offer. Hence the lower court should have rejected the entire prosecution story, but it has erroneously took the view and found the appellants guilty. Further, the lower court was not prepared to accept the evidence adduced by the prosecution for the recovery of M.O.4, cell phone from A-3. If to be so, equally all the reasons for the acquittal of A-3 are applicable to the appellants herein also and under these circumstances, the prosecution has miserably failed to prove the relevant facts, which are necessary to prove the guilt of the accused. Hence the appellants herein are entitled for acquittal in the hands of this court.