SATHISH Vs. STATE

JUDGEMENT

(1.) CHALLENGE is made to the judgment of the Principal Sessions Division, Vellore, made in S. C. No. 214 of 2008 whereby the sole accused/appellant stood charged and tried under sections 364, 377 and 302 IPC and on trial, he was found guilty under sections 302 and 364 IPC and awarded life imprisonment for each offences along with fine and default sentence and the sentences are ordered to run concurrently.

(2.) THE short facts necessary for the disposal of this appeal can be stated as follows: (a) The accused and the deceased were friends. They developed homosexual relationship with each other and whenever the deceased refused for the same, there was a quarrel between them. The parents of the deceased arranged marriage for him. The accused requested the deceased not to give consent for the marriage. The deceased refused for the same. Hence, there arose enmity between them. With the intention of causing death of the deceased, at about 6. 15 p. m. on 15. 2. 2008, the accused took him to the TASMAC shop and thereafter, abducted him in inebriated condition to the Railway bridge near the brick chamber. At about 10. 45 p. m. after committing unnatural offence against the deceased, the accused insisted him to have homosex again and picked up quarrel and pushed him down in between the railway track and with a use of vegetable cutting knife, he cut the front and back side of the neck and thereafter, he took a small granite stone and assaulted him on his face, head and on different parts of the body and caused his death and the accused fled away from the place of occurrence. (b) On 6. 2. 2008 at about 1. 00 p. m. , P. W. 1, Village Administrative officer, on hearing the news about lying of a dead body near the railway track, went to the spot and saw the dead body. He gave a complaint, Ex. P. 1 to Jolarpettai Railway Police. P. W. 16, Sub-Inspector of Jolarpettai Police Station, on receipt of the complaint, Ex. P1 registered a case in Crime No. 51/2008 under section 302 I. P. C. and prepared Ex. P. 20, F. I. R. and the same was despatched to Judicial Magistrate no. 2, Tirupathur. (c) P. W. 17, Inspector of Police of Jolarpettai Police Station, on receipt of the F. I. R, took up investigation. He proceeded to the spot, prepared the observation mahazar, Ex. P2 and drew a rough sketch, Ex. P21 in the presence of witnesses and panchayatdars. Thereafter, he conducted inquest on the dead body of the deceased and prepared the inquest report, Ex. P. 22. He also recovered the material objects from the place of occurrence and from the dead body of the deceased and placed the same before the Court. (d) Pursuant to the requisition made by the Investigating Officer, P. W. 9, doctor attached to Ambur government Hospital, conducted autopsy on the dead body of the deceased and issued Ex. P7, post mortem certificate wherein he has given opinion that the deceased appears to have died of cut injury of neck involving carotid arteries, leading to haemorrhage, shock and death, 18 to 20 hrs prior to post mortem. (e)As per the order of the Superintendent of Police, the case was handed over to ambur Town Police Station. P. W. 18, Sub Inspector of Police, Ambur Town Police station, on receipt of the records from Jolarpettai Railway Police Station, on 10. 2. 2008, registered a case in Crime No. 89/1998 under section 302 IPC. Thereafter, the F. I. R. Ex. P. 25 was sent to Court. (f) On 11. 2. 2008, P. W. 19 inspector of Police, Umarabad Police Station, holding additional charge of Ambur town Police Station took up investigation. He went to the spot, made an inspection and recorded the statements and handed over the records to the regular Inspector in the afternoon. (g) Pending investigation, on 18. 2. 2008, the accused surrendered before VII Metropolitan Magistrate. A requisition was placed before the Court for police custody and the same was ordered. The accused came forward to give confessional statement voluntarily and the same was recorded. The admissible part of the confessional statement was marked as Ex. P17. Pursuant to the confessional statement, he took the police party along with the witnesses and produced M. O. 3, knife M. O. 4 pant belonging to the deceased and M. Os. 5 and 6 pant and shirt which were worn by him at the time of occurrence. The same were recovered under a cover of mahazar. Thereafter, the accused was sent for judicial remand. (h) All the material objects, recovered from the place of occurrence, from the dead body of the deceased and the material objects produced by the accused pursuant to the confessional statement were subjected to analysis by the Forensic Science Department which resulted in Ex. P. 15, Biology report and ex. P16, serology report. On completion of the investigation, the investigating officer filed a final report. (i) The case was committed to the Court of sessions. Necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 20 witnesses and relied on 28 exhibits and 9 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under section 313 Cr. P. C. procedurally as to the incriminating circumstances found in the prosecution witnesses and he denied them as false. No defence witnesses were examined. On hearing the arguments advanced on either side, the trial Court found the accused guilty under sections 302 and 364 IPC and awarded life imprisonment for each offence along with fine and default sentence. Hence, this appeal at the instance of the appellant.

(3.) ADVANCING the arguments on behalf of the appellant, the learned counsel would submit, in the instant case, the prosecution had no direct evidence to offer. The prosecution rested its whole case on two circumstances, viz. , (1) the last seen theory and (2) recovery of material objects from the accused/appellant. But the prosecution has miserably failed to prove either these circumstances proper or any other circumstances which would indicate the culpability of the accused /appellant.