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Judgment
M. Karpagavinayagam, J.—The gravamen of the charge is that both the Appellants (Al and A2) refused to pay the Auto fare to the Auto
Driver, the deceased and when he insisted for the payment, the Appellants (A1 and A2) removed the bottles kept in the Tea stall situated nearby
and broke the same and then attacked the Auto Driver, the deceased on various parts of the body. This resulted in his death in the hospital.
Accepting the prosecution case, the conviction was imposed by the trial Court upon both the Appellants u/s 302 read with 34 I.P.C. and the same
is being challenged in this appeal.
The factual matrix, in brief, is summarised as follows:
(a) The deceased Anbu Kirubairajan, a resident of Athikulam Kurinji Nagar at Madurai, was an Auto-rickshaw Driver. P.W. 1 Jeganathan is his
elder brother. The accused 1 and 2 belong to Bethaniapuram,
(b) On the date of occurrence, i.e. on 24.10.1996, both the accused came and engaged the Auto-rickshaw TN 59F 2004 of the deceased fixing
the fare at Rs. 60/- to go to Pitchaipillai Chavadi and travelled in the said Auto. P.W. 1, the elder brother of the deceased also travelled along with
the accused. Opposite to the Union Bank at Pitchaipillai Chavadi, the Auto was stopped. Both the accused got down. When the deceased Anbu
Kirubairajan demanded for the payment of fare, both the accused threatened him that he should not demand any money from them as he knew that
they are local Rowdies. The deceased told thorn that having fixed the Auto fare they should make the payment. When he insisted them to pay the
Auto fare, both the accused picked up quarrel with him. Having got angry over the attitude of the deceased, Al Thennarasu went to a nearby Tea
shop and brought two soda bottles and broke the same. Then, each of them with the bottle began to attack the deceased by inflicting injuries on
the neck, stomach, left cheek and other parts of the body. P.W. 1 who saw the ghastly sight cried aloud. Then, both of them tried to attack P.W.
On getting frightened, P.W. 1 escaped by running away from the scene. Then, both the accused on noticing that the deceased was in a serious
condition, put him in the Auto itself and went to the hospital.
(c) In the meantime, P.W. 1, who escaped from the scene, went to the police station and gave a complaint (Ex.P12) to P.W. 21 Sub Inspector of
Police. The case was registered for the offence u/s 307 I.P.O. The F.I.R. is Ex.P 13.
(d) Meanwhile, the victim deceased was brought by the accused in the same Auto to the hospital run by P.W. 5, a private Doctor. On noticing the
serious condition of the victim, P.W. 5 Dr. Vijayaraj advised them to take him to the General Hospital.
(e) P.W. 15 Dr. Mathivanan, attached to the General Hospital, admitted the deceased brought by the accused persons and found that he was
dead. He issued Ex.P6 Accident Register.
(f) P.W. 22, the Inspector of Police on receipt of the complaint registered for the offence u/s 307 I.P.C. went to the spot at about 10.50 P.M. and
prepared observation mahazar and rough sketch. At about 12.45 mid night on 24.10.1996, he received the intimation of death from P.W. 15.
Therefore, the case was altered into one u/s 302 I.P.C. and the altered F.I.R. is Ex.P 15.
(g) Then, P.W. 22 went to the General Hospital and visited the place where the Auto TN 54F 2004 was found stationed. He recovered the
bloodstained clothes and a Watch. On 25.10.1996 at about 7.00 A.M., he conducted inquest. After the inquest was over, the body was sent I for
post-mortem.
(h) P.W. 17 Doctor conducted the post-mortem on the body of the deceased. He found seven injuries on various parts of the body. He issued the
post-mortem certificate Ex.P9. The Doctor gave opinion that the de ceased would appear to have died of shock and haemorrhage due to the
external injuries 1 and 2 and the corresponding internal injuries (injury to the neck vessels and spleen).
(i) P.W. 22 sent a requisition to the Finger Print Expert to take finger prints from the Auto. Accordingly, P.W. 20, the Finger Print Expert came
and took the finger prints from the Auto.
(j) On 25.10.1996 at about 11.00 A.M., P.W. 22, the Inspector of Police arrested Al Sureshkumar alias Then-narasu and A2 Alagarkumar and
on their confession, he recovered the bloodstained clothes, namely M.O. 15 pant and M.O. 16 shirt from Al and M.O. I7 lungi and M.O. 18 slack
shirt from A2. When he arrested Al Suresh, he was found with injury on his right palm.
So, he was sent to the hospital where he was given treatment by P.W. 16 Doctor on 25.10.1996. P.W. 16 issued the Accident Register Ex.P7.
(k) After the arrest, finger print of A2 was sent to the Office of the Finger Print Expert which was received by P.W.20 Finger Print Expert on
15.11.1996. P.W. 20 sent Ex.P 10 report on 21.11.1996. He also sent the final report Ex. Pll stating that the finger prints found on the Auto
tallied with the finger print of A2.
(l) P.W. 23 Inspector of Police, the successor to P.W. 22, took up further investigation in the matter and examined P.W. 17 Doctor as well as the
other witnesses. Then, P.W. 23 made arrangement to send the material objects for chemical examination. He obtained Chemical Examiner''s
Report Ex.P 23 and Serologist''s Report Ex.P 24 to the effect that the blood group of the deceased tallied with the group of the blood contained in
the clothes of the accused.
(m) After completion of the investigation, P.W. 23 Inspector of Police filed the charge sheet against the accused for the offence u/s 302 read with
34 I.P.C.
During the course of trial, on behalf of the prosecution, P. Ws. l to 23 were examined, Exs. Pl to P 24 were filed and M. Os.l to 18 were
marked.
Then, both the accused were questioned u/s 313 Code of Criminal Procedure with regard to the incriminating materials. They simply denied
their complicity in the crime.
After analysis of the materials available on record, the trial Court accepted the case of prosecution and convicted both the accused for the
offence u/s 302 read with 34 I.P.C. and sentenced them thereunder. This is the subject matter of challenge in this appeal filed by both the accused.
Mr. R. Shanmugasundaram, the learned senior counsel appearing for the Appellants would take us through the entire evidence and submit that
the eye witnesses examined in this case turned hostile and as such, only evidence available is some pieces of circumstantial evidence and they are
not sufficient to hold the accused guilty and therefore, they are entitled to be acquitted.
We have heard the Additional Public Prosecutor on this aspect.
We have perused the records and also given our anxious consideration to the rival contentions urged by the counsel for the parties.
There are two eye witnesses. P.W. 1 is the brother of the deceased who travelled along with the accused in the Auto. P.W. 2 is another Auto
Driver, who had seen the occurrence. Initially, the case was registered u/s 307 I.P.C. on the complaint given by P.W. 1 who rushed to the police
station after escaping from the scene. Unfortunately, P. Ws. l and 2 turned hostile. Consequently, the complaint which has been marked as Ex.P 12
given by P.W. 1 would be of no use.
The prosecution examined the other witnesses to prove another aspect of the case. P.W. 3 is the Proprietor of Kamadhenu Coffee Shop
which is situated opposite to the place of occurrence. He was informed by a worker working in the Coffee shop that there was a quarrel between
the accused and the deceased Auto Driver and the accused removed the bottles from the shop and attacked the deceased. P.W. 4 was a Head
Constable in Armed Reserve. On 24.10.1996, he was on the guard duty of the Treasury of Union Bank which is situated very near to the place of
occurrence, P.W. 3, the Proprietor of-Coffee shop informed P.W. 4 about the occurrence. Immediately, P.W. 4 came to the scene and saw that
the victim was taken in the Auto by the accused persons.
Though these P. Ws. 3 and 4 were examined to speak about the above aspect, P.W. 3 did not support the prosecution. Therefore, he was
treated hostile. Though P.W. 4 would state that the deceased with injuries was taken in the Auto TN 59F 2004 from the scene of occurrence, he
admitted that he had not seen the accused in the scene. P.W. 4 who had not been treated hostile, would specifically state, as indicated above, that
he did not notice the presence of the accused in the Auto. Therefore, the evidence of P.Ws. 3 and 4 would not help the prosecution.
According to the prosecution, both the accused took the victim to the private hospital run by P.W. 5 Doctor. P.W. 5 on noticing the serious
injuries on the body of the deceased brought by the accused persons, advised them to take him to the Government Hospital. From there, the
accused persons took the victim deceased to the General Hospital where P.W. 15 Doctor admitted the deceased who wa3 brought by both the
accused. After examining the deceased, P.W. 15 declared him dead. He issued Accident Register Ex.P6.
On the basis of this evidence of P.W. 5 and P.W. 15, the prosecution sought to prove the fact that the deceased was taken to the hospital only
by the accused persons. P.W. 5 did not produce any document to show that this deceased victim was brought to him by the two accused, even
though in his evidence, ha stated that 11/2 years back, the victim with injuries was brought to the hospital by two persons informing that the
deceased sustained injury due to a fall. He was not able to identify the accused persons in the Court as the persons who brought the deceased to
the hospital. Consequently, P.W. 5 has been treated hostile.
P.W. 15, the Doctor at General Hospital, who issued Ex.P6, would note down that one Suresh, s/o Krishnan and Kumar, s/o
Shanmuganathan brought the victim, who was dead. This document would not conclusively establish that the Appellants/accused only took the
deceased to the General Hospital inasmuch as P.W. 15 did not identify the accused in Court to the effect that they only brought the deceased to
the hospital. Therefore, the evidence of P.W. 15 and Ex.P6 would not be of any use for the prosecution.
Another piece of evidence adduced by the prosecution is that during the course of occurrence, Al had an injury on the hand while attacking the
deceased with broken bottle and for that injury, Al was treated by P.W. 16 Doctor on the basis of the memo issued by the police who arrested
him on 25.10.1996. P.W. 16 would state that one Thennarasu with a small cut injury on the right palm was produced before him by the
Constables with memo. He issued Ex.P 7 Accident Register. According to P.W. 16, he was Informed by the accused that on 24.10.1996 at about
9.00 P.M., Al sustained injury on the right palm when there was a scuffle. This is mentioned in Ex.P 7 also. As per Ex.P 7, the first accused told
the Doctor that he -was assaulted by known persons during the scuffle on 24.10.1996 at about 9.00 P.M. at Theni Road.
It is not the case of prosecution that the accused had a scuffle with several persons. Furthermore, P.W. 16 Doctor did not identify Al in the
Court to the effect that he was Thennarasu who was produced before him on 25.10.1996 with reference to whom Ex.P 7 was issued. Further,
when Al was questioned u/s 313 Code of Criminal Procedure with regard to his production before P.W. 16 on 25.10.1996 for giving treatment to
the injury on the hand, Al denied having taken treatment from P.W. 16. Therefore, the evidence of P.W. 16 and Ex.P 7 relating to the injury on Al
also would not be of any use for the prosecution.
The next piece of evidence would relate to the finger print reports Exs.P 10 and P. l1 issued by P.W. 20 Finger Print Expert. According to the
prosecution, as per the requisition of P.W. 22,the Inspector of Police, P.W. 20 Finger Print Expert went to the hospital and took finger prints from
the Auto which was stationed nearby. This was on 25.10.1996. On 15.11.1996, P.W. 20 received the finger print of A2 Alagar for comparison.
Ultimately, P.W. 20 found out that the finger print of A2 would tally with the finger prints taken from the Auto. The finger print reports are Exs.P
10 and P 11.
Ex.P 11 would indicate that the chance print taken from the Auto developed and marked as PI and P2 on the Auto TN 59F 2004 on
25.10.1996 was compared with specimen left middle finger print taken from Alagar (A2) sent on 15.11.1996 and found out that they are identical
with each other and relate to the one and the same finger of the same person. On the basis of the evidence of P.W. 20 and Exs.P 10 and P 11, the
prosecution sought to prove that A2 had accompanied the deceased to the hospital and thereafter, he absconded.
At the outset, it shall be stated that even according to P.W. 21 Sub Inspector of Police, P.W. 1 Jeganathan came to the police station at about
9.45 P.M. on 24.10.1996 and gave a written complaint against both Al and A2 by mentioning their names stating that both of them attacked the
deceased. When identity of the accused persons was known to the investigating officer at about 9.45 P.M. on 24.10.1996, where is the necessity
for P.W. 22 to request the Finger Print Expert to com"" and take finger print from the Auto stationed near the hospital?
Further, P.W. 22, the Inspector of Police arrested both the accused on 25.10.1996 at about 11.00 A.M. Till 29.10.1996, he continued the
investigation and thereafter, he handed over the investigation to P.W. 23, the successor Inspector of Police. According to the successor Inspector
(P.W. 23), he took up investigation on 30.10.1996. Both of them had not stated anything about the taking of the finger print from A2 and sending
of the same to P. W.20 for comparison. In the finger print reports Exs.P 10 and P 11, it is stated that the Finger Print Expert (P.W. 20) took two
finger prints from the Auto on 25.10.1996 and received the finger print of A2 Alagar on 15.11.1996. This means, the finger print must have been
taken from A2 during the period when P.W. 23 took up the investigation. P.W. 20 did not state that he took the finger print from A2 and sent the
same to P.W. 22, As such, the evidence relating to the taking of the finger print from A2 is conspicuously absent.
There are provisions available for taking of finger prints from the accused giving the procedural guidelines under the Identification of the
Prisoners Act as well as the Police Standing Orders. As per the Identification of the Prisoners Act, the Investigating Officer must obtain permission
from the Magistrate concerned and then, the finger prints of the accused shall be taken. u/s 801 K of the Police Standing Orders, the finger prints
of the accused shall be taken under the orders of the Superintendent of Police.
These procedures contained in the Identification of the Prisoners Act and the Police Standing Orders have not been admittedly followed. As
such, there are no details as to who took the finger print of A2 and in whose presence, the same was taken and whether permission has been
obtained under the Identification of the Prisoners Act before taking the finger print.
Under those circumstances, the evidence of P.W. 20 on the strength of Exs.P 10 and P 11 to the effect that the finger prints found in the Auto
tallied with the finger print of A2, cannot be taken as a conclusive proof in the absence of the evidence that any such finger prints were taken from
A2 by following the procedures by the investigating Officer. Therefore, this circumstance also would fail.
Yet another piece adduced by the prosecution is the recovery of the bloodstained clothes from the accused after they were arrested on
25.10.1996. P.W. 22, the Investigating Officer would state that he arrested them on 25.10.1996 at about 11.00 A.M. and recovered the
bloodstained clothes, namely M. Os.15, 16. 17 and 18 from both the accused. These bloodstained clothes were sent for chemical analysis. The
Chemical Examiner after analysis, sent the report Ex.P 23. As per the Serologist''s report Ex.P 24, it was found out that the clothes recovered
from the accused were stained with blood containing ''O'' group which tallied with the blood group of the deceased as found in pant and shirt of the
deceased. As such, the only evidence available is the recovery of the bloodstained clothes.
As stated above, all the eye witnesses turned hostile. As such no eye witness is available and 3 other evidence adduced by the prosecution is
only the various pieces of circumstances.
It is settled law, as laid down by the Supreme Court in Mahmood Vs. State of U.P., , Kansa Behera v. State of Orissa ( 1987 L.W. (Crl.)
460 (SC)), State of Madhya Pradesh Vs. Sanjay Rai, and Chandran v. State of Kerala ( 1991 S.C.C.(Cri) 245), where there is no direct
evidence and the inference of guilt has to be drawn from circumstantial evidence only, the circumstances should be of definite tendency pointing
towards the guilt of the accused and in their totality must unerringly lead to the conclusion that the offence was committed by the accused and none
else.
There must be a chain of evidence so complete as to leave the reasonable ground and they must show in all human probability the act must
have been done by the accused. The onus is on the prosecution to prove that the chain is complete.
In this case, as stated above, the only evidence available is the recovery of the bloodstained clothes and at any rate, this piece of evidence
could not be construed to be the conclusive evidence to show that the accused alone have committed the offence, especially when the other links
are missing.
Under those circumstances, we are of the firm opinion that the prosecution has miserably failed to prove its case and as such, the accused are
entitled to be given benefit of doubt. Accordingly, the accused/Appellants are to be acquitted.
In the result, the appeal is allowed. The Appellants/accused are found not guilty of the offence u/s 302 read with 34 I.P.C. and they are
acquitted of the said charge. They are ordered to be; set at liberty forthwith, unless they are required in connection with any other case. Fine
amount, if paid, shall be refunded. The bail bond, if any, shall stand cancelled.