S. Nagamuthu, J. - The appellants are the accused 1 to 5 in S.C. No. 21 of 2013 on the file of the learned I Additional District and Sessions
Judge, Vellore. They stood charged for offences under Sections 120 - B, 364, 302 read with 34, 379 and 201 of IPC. The trial court framed as
many as five charges as detailed below :
Sl. No. Charge Number Rank of Accused Penal Provision
1 Charge No. 1 Accused 1 to 5 120 - B IPC
2 Charge No. 2 Accused 1 to 4 364 IPC
3 Charge No. 3 Accused 1 to 4 302 r/w.34 IPC
4 Charge No. 4 Accused No. 1 379 IPC
5 Charge No. 5 Accused 1 to 4 201 IPC
By judgment dated 25.02.2015, the trial court convicted all the accused and sentenced them as detailed below :
Accused Conviction Sentence
A1 Convicted under sections Sentenced to undergo imprisonment for life and to pay a fine
120-B IPC of Rs. 1,000/-, in default, to undergo 3 months rigorous
imprisonment.
Convicted under section Sentenced to undergo imprisonment for life and to pay a fine
364 of IPC of Rs. 1000/-, in default, to undergo rigorous imprisonment
for two months.
Convicted under section Sentenced to undergo imprisonment for life and to pay a fine
302 read with 34 of IPC of Rs. 2,000/-, in default, to undergo rigorous imprisonment
for 6 months.
Convicted under section Sentenced to undergo rigorous imprisonment for 3 years.
379 IPC
Convicted under section Sentenced to undergo rigorous imprisonment for 7 years and
201 of IPC to pay a fine of Rs. 1,000/-, in default, to undergo rigorous
imprisonment for 3 months.
A2 to A4 Convicted under section Sentenced to undergo imprisonment for life and to pay a fine
120-B of IPC of Rs. 1,000/-, in default, to undergo 3 months rigorous
imprisonment.
Convicted under section Sentenced to undergo imprisonment for life and to pay a fine
364 of IPC of Rs. 1000/-, in default, to undergo rigorous imprisonment
for two months.
Convicted under section Sentenced to undergo imprisonment for life and to pay a fine
302 read with 34 IPC of Rs. 2,000/-, in default, to undergo rigorous imprisonment
for 6 months.
Convicted under section Sentenced to undergo rigorous imprisonment for 7 years and
201 of IPC to pay a fine of Rs. 1,000/-, in default, to undergo rigorous
imprisonment for 3 months.
A5 Convicted under section Sentenced to undergo imprisonment for life and to pay a fine
120-B of IPC of Rs. 1,000/-, in default, to undergo 3 months rigorous
imprisonment.
Challenging the said conviction and sentence, the appellants are before this Court with these appeals.
2. The case of the prosecution in brief is as follows:
(a) The deceased in this case was one Mr. Murugan. He was studying II Year Diploma Course in a Polytechnic at Kudiyatham. P.W.4 was also
studying along with the deceased. The accused 1 to 3 are the neighbours of P.W.4. It is alleged that the accused 1 to 5 had girl friends. It is further
alleged that one of the girl friends of the accused was eve-teased by the deceased. The accused, therefore, developed grudges against the
deceased. This is stated to be the motive for the occurrence. It is further alleged that all these accused on 17.04.2010 at about 09.00 a.m., near
Thattaparai Lake, conspired to kill the deceased. In pursuance of the same, the accused 1 to 4 spoke to the deceased at about 10.30 a.m. on
17.04.2010 and asked him to come to Jangalapalli Bus Stand. Accordingly, the deceased went there in a cycle. Then, the accused 1 to 4
abducted the deceased to Mordhana Dam. It is also alleged that the accused 1 to 4 killed the deceased by pushing him against a Wall. Thereafter,
they removed the cycle and the silver waist cord of the deceased, threw the dead body and covered the same with dust and fled away from the
scene of occurrence.
(b) According to the further case of the prosecution, P.W.1, the father of the deceased was at his house on 17.04.2010 morning at 10.30 a.m. At
that time, the deceased attended a phone call, which came to him. Then, he told P.W.1 that he was going along with his friends to Mordhana Dam.
Accordingly, he went in a cycle. Thereafter, the deceased was not seen anywhere. P.W.1 and other family members went in search of him. He
could not be found. On 19.04.2010, they went to the Polytechnic College where the deceased was studying. They were informed that the
deceased could not come to the college also. Therefore, P.W.1 made a complaint to the Gudiyatham Taluk Police Station on 19.04.2010 at 7.00
p.m.
(c) P.W.14, the then Inspector of Police registered a case in Crime No.79/2010 for ""boy missing"". Ex.P.18 is the First Information Report. He
forwarded both the documents to court which were received by the learned Magistrate at 10.30 a.m. on 20.04.2010. Thereafter, P.W.20 took up
the case for investigation. He proceeded to the place of occurrence and prepared an Observation Mahazar and a Rough Sketch. Then, he
conducted inquest on the body of the deceased and forwarded the same for postmortem.
(d) P.W.13 conducted autopsy on the dead body of the deceased on 21.04.2010 at 12.10 a.m. He found the following :
A moderately nourished male body symmetrical lying on its back. Blackish upper thorax. Neck and Head upper limbs. Brownish - Abdomen,
lower limbs and pelvis. Sexual organs - penetration well developed and found normal. Hair black - Easily pulled out. Tooth are easily pulled out.
Upper and lower incisor and canine are absent - upper and lower premolar and molar tooth are present. Maggots - extremely present in orbit,
nasal and mouth cavity in the anterior part of neck and upper chest, eyes, nose, mouth on ear floor of mouth - parts of neck anterior to cervical
verbetraes are decomposed. Lot of maggots are moving around. Eyes, nose, mouth and its contents such as tongue, lips, floor of mouth-parts of
neck anterior to cervical verbetrae are missing.
External Injuries : Lower end of ⅓ right humerus is seen - open wound decomposed. Other wounds not able to make out due to decomposition
and moving maggots all around the area. Mandible seen without soft tissue. Both clavicle and aversed from sternum are present.
Internal Examination:
Neck - Decomposed, sutures could not be identified. Only maggots are moving around. Searched for hyoid bone. Some firm tissues are collected
and sent for hyoid bone analysis.
Thorax : Both clavicle are detached from sternum and seen aversed from sterno clavicle. There is fracture of 1, 2, 3, 4, 5 RIBS at anterior parts of
⅓ side. Due to decomposition, mass about 100 gms are present. Heart about 50 gms found.
Abdomen : Stomach contains partially digested rice particles about 100 gms. Liver decomposed - 300 gms. Spleen - 30 gms.
Intestine preserved for examination. Scalp decomposed. Skull - No fracture seen - No brain tissue and covering seen - only many maggots are
present. No fracture on the base of skull.
He gave opinion that the death of the deceased was due to the fracture of the multiple ribs and the consequential injuries to the lungs which had
resulted in shock and hemorrhage. He further opined that the death would appear to have occurred within 3 to 4 days prior to the date of
postmortem.
(e) When the investigation was in progress, it is alleged that the accused 1 and 2 surrendered before P.W.6, the local Village Administrative
Officer on 23.04.2010 at 07.00 a.m. He took them to P.W.14 and produced them.
(f) P.W.14 arrested the accused 1 and 2. The 1st accused gave a voluntary confession in which he disclosed the place where he had hidden a
cycle and two pieces of waist cord. In pursuance of the same, the 1st accused took the police and the witnesses to the place of hide out and
produced M.O.1 Cycle and M.O.2 two pieces of a single waist cord made up of silver and the 2nd accused also gave a voluntary confession out
of which no recovery of anything was made. Then, he arrested the accused 3 to 5 on the same day at 3.45 p.m. He forwarded all the accused to
court and finally, he laid charge sheet against all the five accused.
3. Based on the above, the trial court framed charges as detailed in the first paragraph of the judgment. They denied the same. In order to prove
the case, on the side of the prosecution, 15 witnesses were examined and 21 documents and 10 material objects were marked.
4. Out of the said witnesses, P.Ws.1 to 3 are the father, mother and brother respectively of the deceased. They have stated that the deceased left
the house on 17.04.2010 around 10.30 a.m. by informing them that he was going to Mordhana Dam. Thereafter, he did not return. Then, the
complaint was made on 19.04.2010 at 07.00 p.m. P.W.4 is a friend of the deceased. He has stated about the eve - teasing made by the deceased
against one of the girl friends of the accused. According to him, on 17.04.2010, around 11.00 a.m., he was waiting for a bus at Chella Sempalli
Bus Stand. At that time, the accused 1 to 4 and the deceased were proceeding in cycles. When he enquired, they told that they were going to
Mordhana Dam. P.Ws. 5, 7, 8 and 9 have turned hostile and they have not supported the case of the prosecution in any manner. P.W.6 the
Village Administrative Officer has stated that the accused 1 and 2 surrendered before him on 17.04.2010 at 7.00 a.m. and then, he produced them
before the police. P.W.10, who is the brother-in-law of the deceased, has also spoken about the motive. P.W.11 has spoken about the
preparation of the Observation Mahazar and the Rough Sketch and also the recovery of the material objects like blood stained earth, sample
earth, the black colour chappals of the deceased, a knife, spade with handle and a crowbar. P.W.12 has turned hostile and he has not supported
the case of the prosecution in any manner. P.W.13 has spoken about the postmortem conducted and his final opinion regarding cause of death.
P.Ws.14 and 15 have spoken about the investigation done and the final report filed.
5. When the above incriminating materials were put to the accused 313 Cr.P.C., they denied the same as false. Their defence was a total denial.
However, they did not choose to examine any witness nor to mark any document on their side. Having considered all the above, the Trial Court
convicted all the accused as detailed in the first paragraph of the judgment. Challenging the said conviction and sentence, the appellants are before
this Court with these appeals.
6. We have heard the learned Counsel for the appellants and the learned Additional Public Prosecutor appearing for the State and we have also
perused the records carefully.
7. This is a case based on circumstantial evidence. The first and foremost circumstance projected by the prosecution is that the deceased left his
home at 10.30 a.m. on 17.04.2010. He told P.Ws.1 to 3 that he was proceeding to Mordhana Dam with his friends. Thereafter, he was not seen.
His dead body was only found on 23.04.2010 around 02.00 p.m. Thus, the prosecution has clearly established that the deceased died somewhere
between 10.30 a.m. on 17.04.2010 and 02.00 p.m. on 23.04.2010. Thus, the prosecution has established that the death of the deceased was due
to homicide.
8. Now, the question is as to who caused the death of the deceased. In order to prove this circumstance, the prosecution relies on the evidence of
P.W.4, a friend of the deceased, who has stated that he saw the accused 1 to 4 along with the deceased at Chella Sempalli Bus Stand. All were
going together in cycles. In our considered opinion, this circumstance, even assuming to be true, cannot go to conclusively prove that these four
accused, namely, A1 to A4 were responsible for the death of the deceased. After all, they were all friends.
9. P.W.6 is the Village Administrative Officer. He has stated that on 23.04.2010 at 7.00 a.m., the accused 1 and 2 surrendered before him and
confessed to the guilt. But, P.W.6 had not recorded the said statements. As rightly pointed out by the learned Counsel for the appellants, P.W.1
during cross - examination has admitted that on 22.04.2010 itself, all the five accused were kept in the police custody in the police station. He
identified them in the police station. P.W.2 has stated that within 2 or 3 days of the making of the complaint, she found all the four accused in the
police station in custody. She has further stated that the cycle as well as the waist cord were also there at the police station at that time. Thus, it has
been established by the accused that they were kept in the police station in police custody as early as on 22.04.2010 itself. Therefore, the story of
the prosecution that the accused 1 and 2 voluntarily surrendered before P.W.6 on 23.04.2010 cannot be believed.
10. It is the further case of P.W.6 that he produced the accused 1 and 2 before P.W.14. P.W.14 has stated that on the confession given by the 1st
accused, the cycle belonging to the deceased and the waist cord belonging to the deceased were recovered. This also cannot be believed,
because, the accused were in custody of the police from 22.04.2010 onwards. Further, P.Ws.1 and 2 have admitted that when they saw the
accused in the police station, the cycle and waist cord were also shown to them by the police. Thus, P.W.2 has specifically stated that on
22.04.2010, she identified all the five accused as well as the cycle and the silver waist cord at the police station. Therefore, the theory of the
prosecution that these material objects were recovered on the disclosure statement made by the 1st accused cannot be believed. If these evidences
are disbelieved, we find no other evidence against the accused. But the trial court convicted the accused on mere surmises which is not permissible
in law. For these reasons, we hold that the prosecution has failed to prove the case beyond all reasonable doubts and therefore, the appellants are
entitled for acquittal.
11. In the result, the Criminal Appeals are allowed and the conviction and sentence imposed on the appellants/accused 1 to 5 are set aside and
they are acquitted. The bail bonds, if any, executed by the appellants, shall stand cancelled. The fine, if any, paid by the accused, shall be refunded
to the respective accused.
