Sahul Hameed v. The State Rep By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 15.12.2016

CORAM

THE HONOURABLE MR. JUSTICE S.NAGAMUTHU and THE HONOURABLE MR.JUSTICE N. AUTHINATHAN CRL.A.No.641/2016 Sahul Hameed ... Appellant Vs

1. The State rep by The Inspector of Police, F.3, Nungambakkam Police Station, Chennai

2. Jamal @ Jamaluddin

3. Mohammed Mythene ... Respondents Appeal filed u/s.372 Cr.P.C against the judgment in S.C.No.334 of 2008 on the file of I Additional Sessions Judge, Chennai dated 26.04.2011.

For Appellant :

Mr.V. Karthic, Sr. Counsel for Mr.D. Abdullah For 1st Respondent:

Mr.P. Govindarajan Addl. Public Prosecutor For 2nd respondent:

Mr.B. Kumar Sr.Counsel for Mr.A. Thiayagarajan For 3rd respondent:

Mr.R.C. Paul Kanagaraj

JUDGMENT

[Judgment of the court was delivered by S.NAGAMUTHU, J.] The respondents 2 and 3 herein are the accused 1 and 2 in S.C. No.334 of 2008 on the file of I Additional Sessions Judge, Chennai. They stood charged for the offence under Sections 302 read with 34 IPC. By Judgment dated 26.04.2011, the trial Court acquitted both the accused from the said charges. The appellant

herein is the brother of the deceased. Aggrieved over the said acquittal, he has come up with this appeal.

2.

The case of the prosecution in brief, is as follows:- (a) The deceased in this case was one Mr.Sikkandar. He was a businessman, having vast extent of properties in Chennai City. The first accused was a close friend of the deceased. The deceased sold three shops in Ranganathan Street, T. Nagar, Chennai to the first accused three years before the occurrence. After the sale was completed, the deceased had a feeling that he had sold the property for a lesser price. The deceased, on a few occasions, even told the first accused that the property would have fetched around Rs.5 crores, but by cheating him, the first accused/A.1 had purchased the same for a paltry amount of Rs.11⁄2 crores. The deceased was also demanding atleast one crore rupee more from the first accused/A.1. This gave rise to some ill feeling between them.

(b) On 25.01.2008, it is alleged that the deceased did not return home till 10.00 and 10.30 p.m. P.W.1, therefore, called the wife of the deceased and enquired about the deceased. She replied that the deceased contacted her over phone and told her that he was in the company of A.1. P.W.3, the wife of the deceased warned the deceased to come home soon. But the deceased did not return home. On the next day morning, P.W.1 came to know that near Loyola College, Nungambakkam, Sterling Avenue Road, a dead body was found in the platform. On hearing about the said information, he immediately rushed to the place of occurrence. He found that the dead body was that of the deceased. There were also injuries on the body of the deceased. He suspected that the deceased was done to death by someone. Therefore, he went to Nungambakkam Police Station and made a complaint at 1.40 p.m on 26.01.2008.

© P.W.26, the then Inspector of Police, on receipt of the said complaint, registered a case in Cr.No.37 of 2008 under Sec.302 IPC. The assailants were not known then and P.W.1 had not mentioned anything about the assailants. Ex.P.26 is the First Information Report.

d) P.W.26, the Inspector of Police took up the investigation. He went to the place of occurrence; prepared an Observation Mahazar and a Rough Sketch in the presence of witnesses. He conducted inquest on the body of the deceased and forwarded the same for postmortem.

e) One Dr.Mathimaran, the then Assistant Professor of Forensic Medicine Government Royapettah Hospital, conducted

autopsy on the dead body of the deceased. He found the following injuries on the dead body of the deceased. The body was first seen by the undersigned at 4 P.M on 26.01.2008.

Its condition then was Rigor mortis present all over the body.

Post Mortem commenced at 4 P.M on 26.01.2008 Appearances found at the post-mortem well nourished body of a male.

Dark red abrasions

1. 5 x 2 cms over front of Right shoulder

2. Multiple small abrasions over an area on 14 x 7 cms over front of Neck extending on both sides just above the sternal notch and clavicle on both sides each measuring 1.5 x .5 cms to .5 x .5 cms

3. 10 x 2 cms over left side of forehead

4. 4 x 1 cm over mid-forehead

5. 5 x 2 cms over outer aspect of left eye extending to left cheek.

6. Abrasion extending from inner aspect of left eye to the inner aspect of right eye.

7. 3 x 1 cm over Right Cheek

8. 3 x 2 cms over left side of nose

9. Dark red contusion over left side of lower lip 4 x 2 cms 10.Laceration over left upper eyelid 5 x 2 cms x muscle deep 11.Laceration over inner aspect of left lower lip 2 x 1 cm x muscle deep 12.Two lacerations over right upper eyelid each measuring 1 x .5 cms x muscle deep 13.Superficial incised wound over front of lower third of right forearm 2.5 x 0.3 cms 14.Superficial incised wound over inner aspect of middle of Right Thumb 1 x .3 cms 15.Three superficial incised wounds one across the umbilicus 18 x 0.3 cms and one above 12 x .2 cms

16. Incised wound over left side of front of abdomen 10 cms from midline 1.5 x 1 cm x fascia deep.

17.Gaping incised wound at the level of Thyroid cartilage on left side of neck measuring 5 x 2 cms x cavity deep "On dissection the underlying muscles and vessels found severed and also the wound enters the left side of Tracheal cavity art the level of 1st Tracheal Ring"."

18. Gaping incised wound seen 3 cms above the level of thyroid cartilage over left side of Neck with tailing extending to the Right side of Neck 4 x 1.5 cms x Muscle deep with tailing 6 cms in length.

19.Incised wound over right side of neck at the level of Thyroid cartilage measuring 2.5 x 1 cm x 3 cm with tailing 4 cms towards left side of Neck.

20.Superficial incised wound over left side of Neck above sternal notch 6 x .3 cms.

On Dissection:- Sub-scalpel bruising over right occipital 10 x 5 cms and right from to parietal area 9 x 4 cm and left frontal 8 x 4 cms. Fissured fracture over Right Temporo parietal area 10 cms in length comminuted fracture involving frontal areas on both sides. Fissured fracture over Right Parietal 5 cms in length. Brain oedematous.

Sub-dural and sub-arachnoid haemorhage over right front parietal of Temporal - occipital and left front temporal and front of cerebellum communited fracture seen over anterior crassial fossa on both sides and right middle crassial fossa.

Fracture of Ramus of left side of mandible with surrounding bruising of soft tissues.

On dissection of Neck Extra vasation of blood seen over front of Larynx. Hyoid Bone Intact Thoracic cage Intact.

Heart Normal in size Chambers contained scant fluid blood. Both coronaries patent.

Lungs c/s Pale Stomach contained 200 ml of occult blood.

Mucosa pale.

Liver, spleen and kidneys c/s pale.

Intestines Distended with gas.

Bladder empty.

Pelvis and spinal column intact.

The opinion as to cause of death (a) Reserved pending report of ....

(b) The deceased would appear to have died of multiple injuries.

Dr.Mathimaran was not examined as witness. Ex.P.25 is the Post Mortem Certificate.

f) P.W.22 Dr.S. Baskar, referring to the Post Mortem Certificate (vide Ex.P.25) has given evidence stating that the death of the deceased was due to cumulative effect of the multiple injuries on the body of the deceased. During the course of investigation, P.W.26 examined many people, arrested both the accused and finally laid charge sheet against them. 3.

Based on the above materials, the Trial Court framed charges under Sec.302 read with 34 IPC. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as 26 witnesses were examined and 29 documents and 14 material objects were also marked. 4.

Out of the said witnesses, P.W.1, who is the brother of the deceased, has spoken about the transaction between A.1 and the deceased relating to the property. He has further stated that the deceased did not return home on 25.01.2008 till late night and on the next day morning, he found the dead body of the deceased with injuries near Loyola College, Nungambakkam, Sterling Avenue Road. He has further spoken about the complaint made by him to the police.

P.W.2 is the yet another brother of the deceased. He has also stated about the missing of the deceased in the night of 25.01.2008. He has further spoken about the fact that he found the dead body of the deceased with injuries on the next day. 5.

P.W.3 is the wife of the deceased. She has stated that on 25.01.2008 the deceased spoke to her over phone and informed that he was in the company of A.1. Thereafter, he did not return. In the normal course, he would have returned between 11 and 11.30 p.m. Since he did not return, she went and searched for him. She has further spoken that the dead body was found on the next day.

6.

P.W.4 has spoken about the preparation of observation mahazar and rough sketch and also the motor cycle, bearing Registration No.TN-09-AE-5484. He has further spoken about the recovery of blood stained earth and sample earth from the place of occurrence. P.W.5 has stated that he was present at the time when the deceased was removed to the hospital. P.W.6 has stated that he used to sell tender coconut near the place of occurrence. On 26.01.2008 at about 7.30 a.m he found the dead body of the deceased. Then, he informed the same to others. 7.

P.W.7 is the Senior Executive (Legal Support) of Aircel Cellular Company. He stated that the Investigating Officer had asked for call details of the Cell phone of the A.1, deceased and P.W.10. He has spoken about the call details. Ex.P.4 is his report. P.W.8 is the Legal Executive in Bharti Airtel Company,

According to him, as per records, the cell No:9840454646 stood in the name of Jeinoodheen. Ex.P.7 is the report. P.W.9 turned hostile and he has not supported the case of the prosecution. 8.

P.W.10 is an important witness for the prosecution. According to him, on 25.01.2008 around 11.p.m, he spoke to the deceased over his cell phone. At that time, the deceased told that he was in the Company of A.1 and taking liquor. He warned him to go home soon. He has further stated that on the next day, he heard that the deceased was lying dead near Loyola College, Nungambakkam, Sterling Avenue Road. He has further stated that he attended the funeral, in which, A.1 did not participate. It raised suspicion in his mind. Therefore, according to him, he spoke to A.1 over phone and A.1 told him that he along with A.2 alone killed the deceased. Then he informed the same to P.W.1 and others.

9.

P.W.11 has stated that on 26.01.2008, around 11.00 a.m, he came to know that the deceased was no more. He spoke to A.1 and informed him that he was going to his native place. He has not stated anything incriminating against the accused. P.Ws.12, 13 and 14 have turned hostile and they have not supported the case of prosecution in any manner. P.W.15 has spoken about the arrest of A.1 on 27.01.2008 and the confession made by him. He has further spoken about the consequential recoveries M.Os.4 and 5 ( a pant and a shirt) from his possession. Similarly, he has spoken about the arrest of the second accused and recoveries of M.O.9 (knife) and M.O.s 4 to 7 - (black colour pant, blood stained full hand short, cell phone Nokia and Innova Car). He has also spoken about the recovery of M.Os 10 to 14 - (blood stained pant, blood stained shirt, Nokia Phone, Yamaha Bike and Photographs) and the alleged confession made by A.2. 10.

P.W.16 turned hostile and he has not supported the case of prosecution in any manner. P.W.17 has not stated anything incriminating the accused. P.W.18 has spoken about the arrest of the accused. P.W.19 the learned Magistrate has spoken about the recording of the statement under Sec.164 of Criminal Procedure Code from the witnesses more particularly, P.Ws.10 and

11. P.W.20 has spoken about the ownership of the registration of the vehicle bearing Registration No.TN.10.3387. According to him, it stood in the name of one G. Peer Mohamed. 11.

P.W.21 an Expert from the Forensic Lab, has stated that she examined the Material Objects and found blood stains on all the material objects. P.W.22 has spoken about the postmortem conducted by Dr. Mathimaran. P.W.23 has stated that he took the dead body from the place of occurrence and handed over the same for postmortem, as directed by the Investigating Officer. P.W.24 has spoken about the photographs taken at the place of

occurrence, as instructed by the Investigating Officer. P.W.25 has stated that three policemen came to his village on 06.02.2008 and searched for a cell phone, but nothing could be recovered. P.W.26 has spoken about the registration of the case and the investigation done. He has also spoken about the final report filed.

12.

When the above incriminating materials were put to the accused u/s.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 mark any document on his side. Having considered all the above, the Trial Court acquitted the accused. Challenging the said acquittal, the appellant has come up with this appeal against the accused.

13.

We have heard the learned Counsel for the appellant, the learned Additional Public Prosecutor appearing for the State and the learned Senior Counsel, appearing for the accused. We have also perused the records carefully.

14.

This is a case based on circumstantial evidence. At the outset, we should say that it is well settled that in a case based on circumstantial evidence, the prosecution is bound to prove the circumstances projected by it beyond reasonable doubts and such proved circumstances should form a complete chain without any break, unerringly pointing to the guilt of the accused and there should not be any other hypothesis which is inconsistent with the guilt of the accused.

15.

It is also well settled that the initial presumption of innocence of the accused gets doubled by the acquittal recorded by the trial court. Unless the appellant is able to show perversity in the judgment of the trial court acquitting the accused and unless the appellant is able to rebut the above stated presumption by making out a very strong case, it is not possible for any scope to interfere with the acquittal of the accused. In other words, even if there are two views, which are equally possible, the view taken by the trial court cannot be disturbed so as to convict the accused by taking into account the other view, which is also equally possible. 16.

As guaranteed under Article 21 of the Constitution of India, the life and liberty of an individual could be deprived of only by following the procedure established by law. The said procedure denotes a fair procedure where the proof of guilt should be made beyond any reasonable doubt. In other words, the Court cannot afford to convict an individual on mere surmises or suspicion. Keeping these principles in mind, let us go into the circumstances, projected by the prosecution.

17.

From the evidence of P.W.1 and the wife of the deceased (P.W.3) it has been clearly established by the prosecution that the deceased was lastly seen alive on the evening of 25.01.2008 and the dead body of the deceased was found at 7.00 a.m on 26.01.2008. There were a number of injuries on the dead body of the deceased. From the medical opinion, the prosecution has established that the death was a homicide. Thus, the prosecution has succeeded in establishing that the deceased was done to death by somebody some time between the evening of 25.01.2008 and 7.00 a.m on 26.01.2008.

Now the question is " who was the perpetrator of the crime? " 18.

In order to prove that these two accused are the perpetrators of the crime, the prosecution mainly relies on the evidence of P.Ws.10 and 11.

P.W.10 has stated that since A.1 did not turn up to participate in the funeral of the deceased, he spoke to him over phone and at that time A.1 confessed to him that A.1 and A.2 killed the deceased. In our considered view, it is difficult to believe this evidence of P.W.10 for more than one reason. The call details obtained from Service provider, though have been marked as evidence, cannot be looked into by this Court as per the decision of the Hon'ble Supreme Court in Anvar P.V vs P.K. Basheer and Others reported in 2014 (10) SCC 473). They need to be eschewed as Sec.65 (b) of the Indian Evidence Act has not been complied with. Apart form that, the wife of the deceased has stated that the deceased had told her that he was in the Company of A.1 the previous night. The call details obtained from the Service provider, as already pointed out, cannot be looked into, as they need to be eschewed of the Evidence Act.

19.

According to the wife of the deceased, lastly, the deceased was in T.Nagar, Chennai, allegedly in the company of A.1. But the dead body of the deceased was found near Loyola College, Nungambakkam, Sterling Avenue Road. Absolutely, there is no investigation as to how the dead body had gone there. It is also not clear as to where the deceased was done to death. 20.

The learned counsel for the appellant would make reliance on the statement made by P.W.11 to Judicial Magistrate under Sec.164 of the Criminal Procedure Code, wherein, he has stated that A.1 confessed to him. In our considered view, the said statement recorded under Sec.164 of the Criminal Procedure Code cannot be treated as substantive evidence. P.W.11 in his evidence has not stated anything incriminating A.1. Therefore the reliance placed by the prosecution on the statement made

under Sec.164 Cr.P.C by P.W.11 cannot be appreciated and the same is rejected.

21.

Assuming that P.W.10 had spoken to A.1, P.W.10 has stated that from the male voice that came from the other end, he assumed that it was A.1. As already pointed out, P.W.10 did not see A.1 at all. Assuming that P.W.10 could recognise the voice of A.1, the possibility to one imitating the voice of A.1 cannot be ruled out. Above all, going by the natural human conduct, it is difficult to believe that A.1 had made such a statement as he would not have had any reason to make such a statement to P.W.10. Apart from that, it is true that the extra judicial confession by its very nature, is a very weak piece of evidence. Unless the extra-judicial confession inspires the confidence of the court, as a rule of prudence, the court should expect corroboration from any other independent source on material particulars. Here, in this case, there is no such corroboration drawn from any other source. For these reasons, no reliance can be made on the evidence of P.W.10. Therefore, the evidence of P.W.10 is rejected.

22.

Then comes the recovery of Material Objects on the alleged disclosure statement made by the accused. In this regard, we have to state that it is not every fact that is discovered out of a disclosure statement that is admissible in evidence under Section 27 of the Indian Evidence Act. It is the law that the disclosure statement which led to the discovery of a relevant fact alone makes the statement admissible under Section 27 of the Indian Evidence Act. In other words, the nexus between the discovered fact and the crime should be established. In this case, the link between the recovered Material Objects and crime has not been established. Therefore, the statements allegedly made by A.1 and A.2 are not even admissible evidence as they do not fall within the purview of Sec.27 of Indian Evidence Act. Thus, absolutely, there is no evidence conclusively to prove that the deceased was done to death by these accused.

23.

The trial Court has well appreciated the evidences and has acquitted the accused on holding that there is no convincing evidence to prove the alleged guilt of the accused. We hold that the judgment of the trial court is a well considered one which does not require any interference. The learned counsel for the appellant is not able to show any perversity in the judgment.

24.

In the result, the appeal fails and accordingly the same is dismissed. The acquittal of the accused is confirmed. Sd/- Assistant Registrar(CS II) //True Copy// Sub Assistant Registrar sr To

1. The Inspector of Police, F.3, Nungambakkam Police Station, Chennai

2. The I Additional Sessions Judge, Chennai.

3. -Do- Thro The Principal Sessions Judge, Chennai.

4. The XIV Metropolitan Magistrate, Egmore, Chennai.

5. -Do- Thro The Chief Metropolitan Magistrate, Chennai.

6.The Public Prosecutor, High Court, Chennai.

Copy to The Section Officer, Criminal Section, High Court, Madras.

+1cc to Mr.D.Abdullah, Advocate Sr.73185 Crl.A.No.641/2016 pa[co] srg 06/01/2017