Chandru @ Chandrasekaran v. State Rep. by Deputy Superintendent of Police Cb Cid and Anr.

DEEPAK GUPTA, J. 1. Leave granted in appeal arising out of SLP (Crl.) No.2306 of 2011. 2. Both the appeals are being disposed of by a common judgment. 3. The undisputed facts are that the deceased Arun was a friend of accused Siva @ Sivaprakash, Accused No.1. The deceased along with Accused No. 1 and Chandru @ Chandrasekaran, Accused No. 2, travelled to Chennai on 30.10.2004. They went to Meena Guest House, run by M. Sheik Davood (PW-3) at about 9 p.m. where room no. 203 was allotted to them. A t about 9.30 p.m. Venkatesh @ Venki came to the room. Venki injected 4 ml of Tidijesic drug into the l eft wrist of CHANDRU @ CHANDRASEKARAN v. STATE REP. BY DY. SUPDT. OF POLICE CB CID AND ANR. deceased Arun. Venki also used 2 ml drug for himself. Thereafter, Venki left the guest house. Next morning i.e. on 31.10.2004, the two appellants herein called Venki since Arun did not get up. The room b oy of the lodge viz., Sankar (PW-4) complained to the Manager of the lodge that a lot of people were coming into room no. 203. It was found that Arun was dead. Thereafter, Iqbal (PW-2), working as Manager in the company owned by father of the deceased Arun and Ponsekar (PW-1), maternal uncle of the deceased came to the room. 4. PW-1 filed a complaint on 31.10.2004 at 9.45 a.m., in which he stated that his nephew Arun was earlier studying in an e ngineering college at Chennai. However, he was not studying properly an d had developed some bad habits and, therefore, he was shifted to a college at Thoothukudi. The relevant portion of the complaint is to the effect that on 31.10.2004 at about 7.30 a.m. he had received a call from Iqbal (PW-2) informing him that his nephew Arun, who stayed the night in Room No.203 of Meena Guest House had consumed heavy dose of a drug through injection and is unconscious. He immediately went to the guest house where he found that his nephew was dead. He thereaft er went to Triplicane Police Station and lodged the report. 5. On the basis of the aforesaid report a case being C rime No.1150 of 2004, was registered. The body of the deceased was sent for post-mortem. Dr. A.N. Shanmugham (PW-6) conducted the pos t- mortem. He stated that he could not say with certainty wh at was the cause of death but it was possible by drug injection. Venki was arrested in connection with the said crime and he allegedly made a confessional statement to the police on 08.11.2004 which led to the discovery of Tidijesic syringe, empty ampoules, unused Tidijesic ampoule etc.. PW- 1, the maternal uncle of the deceased, filed a petition in the High Court of Madras in February, 2005 seeking transfer of the investigati on to some other agency since he was not happy with the manner in which the case was being investigated. The High Court vide order dated 28.02.2005 transferred the investigation to the CB CID, Tamil Na du. There were three suspects before the police viz., Venkatesh @ Venki, Sivaprakash @ Siva and Chandrasekaran @ Chandru. All three w ere subjected to Polygraph, Brainmapping and Narcoanalysis te sts at a Forensic Science Laboratory. According to the Investigat ing Officer (DW-4), who carried the investigation, the two appellants herein cleared the said tests and there was no suspicion against them since they disclosed no signs of deception. However, during the tests, Venki’s answers were found deceptive. 111 6. In the year 2006, PW-5, father of the deceased, filed a petition in the Madras High Court for transferring the investigation of the case to the Central Bureau of Investigation (CBI). This petition was rejected by the High Court on 08.02.2008. Meanwhile, on 23.01.2008, more than three years after the incident, a charge-sheet was filed by the CB CID under Section 173 of the Criminal Procedure Code (for short ‘C rPC’) only against Venkatesh @ Venki under Section 304 Part II of the Indian Penal Code (for short ‘IPC’). The present accused (appellants herein) were cited as prosecution witnesses in the said charge- sheet. Venki died after the filing of the charge-sheet but before tri al of the case on 21.07.2008. 7. It was only thereafter that PW-1, maternal uncle of the deceased, filed a private complaint before the court which is Exhibit P- 1. In this complaint it was stated that the two accused and the deceased had stayed in Room No. 203 and Venki came to the room at the invitation of the accused Chandru. Venki was a drug peddler and Arun was not in the habit of taking drugs. On the request of the accused, Ve nki had injected 4 ml of Tidijesic injection in the left wrist of the dece ased. It was also alleged that Venki was paid Rs.50/- by the accused Siva for his services. According to this complaint, Arun had been inje cted for the second time in the left arm inner portion. When this witness went to the room No. 203, Venki was present and told the complainant that the accused had given excess narcotic drugs on the left inner portion of the arm due to which the deceased died. In the complaint it was also stat ed that immediately after he had visited the guest house on 31.10.2004, he had gone to the Triplicane Police Station, where the police forcibly obtained his signatures on two blank papers. It was alleged that the FIR was lodged by the police in connivance with the two accused. In this complaint it is also mentioned that there were marks of injecting two injections and, according to the report of the Forensic Science Laboratory, a huge amount of narcotic substance had been injected into the deceased which caused his death. In this complaint it was also alleged that the accused Siva had close association with PW-10 (hereinafter referred to as ‘R’). According to the complainant, R (PW-10) was introduced to the deceased Arun and they used to regularly talk to each other on phone every day and therefore, accused Siva could not tolerate that his girlfriend should shift loyalty to some other person. Therefore, he approached Chandru, who was a student in a medical college and with his help injected excess dose of Tidijesic with the intention of killing Arun. CHANDRU @ CHANDRASEKARAN v. STATE REP. BY DY. SUPDT. OF POLICE CB CID AND ANR. [DEEPAK GUPTA, J.] 8. After the filing of the private complaint, the metropol itan magistrate recorded the statements of seven witness es and found sufficient grounds for proceeding with the case under Section 302 IPC. Thereafter, the case was committed to the Court of Sessions and charges were framed against the accused, who pleaded not guilty. The evidence of the witnesses were recorded. Accused also examined four witnesses. The trial court convicted the accused for having committed the offence punishable under Section 302 IPC read with Section 120B IPC a nd sentenced them to undergo life imprisonment. Aggrieved, the accused filed two separate criminal appeals, which have been dismissed. Hence, the present appeals. 9. Admittedly, there are no eye-witnesses to the case and this is a case based on circumstantial evidence. The law w ith regard to appreciation of circumstantial evidence has been clearly enunciated in the case of Hanumant v. State of Madhya Pradesh 1, wherein this Court held as follows: “10 ……It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so establis hed should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 10. This law has been consistently followed and has been repeated in catena of authorities. It is not necessary to refer to all the authorities. However, we may refer to Sir Alfred Wills book Wills on Circumstantial Evidence (Chapter VI) 2, in which he has laid down the following Rules specially to be observed in the case of circumstantial evidence: 1AIR 1952 SC 343 2.Butterworths, Seventh Edition, Pp 296-329 113 “RULE 1. – The facts alleged as the basis of any legal inference must be clearly proved, and beyond reasonable doubt connected with the factum probandum............ RULE 2. – The burden of proof is always on the party who asserts the existence of any fact which infers lega l accountability................ RULE 3. – In all cases, whether of direct or circumstantial evidence, the best evidence must be adduced which the nature of the case admits......... RULE 4. – In order to justify the inference of guil t, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt.................. RULE 5. – If there by any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.” 11. The law can be summarised in the following terms: 1. The circumstances relied upon by the prosecution which lead to an inference to the guilt of the accused must be proved beyond doubt; 2. The circumstances should unerringly point towards the guilt of the accused; 3. The circumstances should be linked together in such a manner that the cumulative effect of the chain formed by joining the links is so complete that it leads to only one conclusion i.e. the guilt of the accused; 4. That there should be no probability of the crime having been committed by a person other than the accused. 12. It is in the light of the aforesaid law that we have to consider the evidence and the circumstances relied upon by the courts below. 13. In a case based on circumstantial evidence it is always better for the courts to deal with each circumstance separately and then link the circumstances which have been proved to arrive at a co nclusion. Unfortunately, in this case, though a reference has been made to some circumstances, the circumstances have not been discussed sep arately. Therefore, we propose to discuss the various circumstances relied upon by the prosecution: CHANDRU @ CHANDRASEKARAN v. STATE REP. BY DY. SUPDT. OF POLICE CB CID AND ANR. [DEEPAK GUPTA, J.] 1. LAST SEEN TOGETHER – As far as this circumstance is concerned, the same stands proved. It is the case of all that Room No. 203 in Meena Guest House was hired by the two accused and the deceased. Venki came at about 9.30 p.m., but he left at 10.15 p.m. Thereafter the lodge was locked. Therefore, this circumst ance is proved.Though this circumstance is proved, we must also look into the circumstances under which the accused were last see n together with the deceased. The case of the prosecution is that it is the accused who took the deceased to the room with the intention of killing him since the accused Siva suspected th at R (PW-10) was having an affair with the deceased. However, the manner in which the accused reached Chennai and the guest house in question suggests a total different story. The mater nal uncle of the deceased (PW-1) states that one Jeyara j, an employee of PW-5 informed him over the phone at about 6/7 p.m. on 30.10.2004 that the deceased Arun along with his friend Siddharth was coming to stay in the night with PW-1 at Chennai. A few minutes later, PW-1 talked to his nephew Arun, who also told him that he would be coming to his uncle’s house but did not come. Siddharth is the son of Gomti Pandian (PW-7). According to her, Siddharth told her that he was going to Chennai along with his friend Arun (deceased) to purchase some clothes. She was reluctant to send her son with his friend but then she talked to Arun who told her that they would be going to Chennai by bus and convinced her to send Siddharth with him. She dropped Siddharth at the bus stand. Later she came to know that her son Siddharth had gone to Chennai along with the dec eased Arun and three other persons in a car which had met with an accident. She was informed about this by Kala Devi (PW-8), whose son Mathesh had also travelled in the same car. Thus , it is clear that it was Arun (deceased), who convinced Siddharth’s mother to send Siddharth with him. This witness also stated that later her son informed her that the car had met with an accident and, thereafter, he and Mathesh did not proc eed to Chennai and returned to their homes. PW-8 states that her son Mathesh had told her that he was going to Coimbatore. Next morning she received a call from her brother’s son. He told her that the car in which Mathesh was travelling had met wit h an 115 accident. She was also told that Mathesh along with his friends Siva, Chandru, Siddharth and Arun came to the house of her brother and thereafter Mathesh returned to home. Thus, it is clear that Siddharth and Mathesh were also travelling in the car and they would have also gone to Chennai but for the fact that the car met with an accident. Thereafter, Siddharth and Mathesh did not proceed further and returned to their homes. As such, it is clear that it was not the accused, who had organised the t rip but it was the deceased, who had organised the trip and, therefore, it cannot be said that the accused had t aken the deceased to the guest house with the intention of killing him. This assumption by both the courts below is based on no evidence. 2. MEDICAL EVIDENCE Medical evidence led in this case clearly indicates that the deceased died due to overdose of Tidijesic. It is not disputed that 4 ml of Tidijesic was injected into the wrist of the deceased by Venki, who administered 2 ml of the same substance into himself and thereafter the deceased died. The evidence of Dr. R. Baskaran (PW-11), who is Professor and Head of t he Department of Legal and Forensic Medicines, Royapet tai Government Hospital, Chennai clearly shows that after chemical analysis it was found that the amount of the offending substance found in the blood of the deceased would be equal to injecting 40 ml of Tidijesic. Therefore, there is no manner of doubt tha t the deceased died due to overdosing of drug. PW-11 stated that if a 20 ml syringe is used then ab out 40 ml of Tidijesic could be injected in two attempts. However, if a 5 ml syringe is used, it would require 8-10 attempts. He clearly states that he cannot tell when and how this 40 ml Tidijesic was injected into the body of the deceased. He also could not sta te what time the death had occurred. He also stated that it takes 6 to 24 hours for the drug to take effect and this would further depend upon the quantity of the drug, the physique and the actions of the person injected. Therefore, his statement does not help us with regard to the time of death or with regard to the number of attempts in which the drug was injected into the body of t he deceased. Even in the post-mortem report the approximate time of death has not been indicated. Dr. A.N. Shanmugh am CHANDRU @ CHANDRASEKARAN v. STATE REP. BY DY. SUPDT. OF POLICE CB CID AND ANR. [DEEPAK GUPTA, J.] (PW 6), who conducted the post-mortem also could not say when the death took place. Dr. A.N. Shanmugham (PW-6) in his statement had stated that injuries caused by the needle due to injec tion of medicine were found in fore arm, ankle of front foot, front and middle fore arm. He has been confronted with the post-mortem report (PD-5), in which there is mention of only two injecti on marks – one in front of left elbow joint and one in middle of left fore arm. It is clearly mentioned that no other external or internal injuries seen over the body. He has not been able to giv e a proper explanation why he did not mention other injuries in the post-mortem report. This would mean that the deceased was injected only twice. It is the case of the prosecution that on the first occasion the deceased was injected with 4 ml Tidijesic. Therefore, 36 ml could not have been injected in one go on the next occasion. The police has not recovered any syringe or other material from the room. As per the prosecution case, the lodge was locked a t about 10.30 p.m.. The next morning the deceased was found dead. No recoveries of any ampoules or syringe have be en made from the accused or at their instance to connec t them with the offence. The prosecution, by means of the aforesaid medical evidence, has failed to link the accused with the death of t he deceased. The prosecution has failed to prove the exact time of death of the deceased. The deceased was first injected a n injection between 9.30 p.m. to 10.00 p.m.. As per doctor, the effect of this could end in about six hours. There fore, the possibility of the deceased getting up himself in the mid dle of the night to inject himself cannot be ruled out. There is also the possibility of his calling some other person to inject him with the drug. Even more importantly, the prosecution has failed to prove where the balance 36 ml of drug came from. Who got this drug and when? There is no evidence that the accused purchased this drug. No recovery has been made from them and, therefore, we are of the view that though it stands proved that the deceased died due to overdose of drug, the prosecution has mis erably failed to link the accused with the death of the deceased. 117 3. MOTIVE The motive put forth is that R (PW-10) was close to accused Siva, who introduced her to Arun. According to the case set up by the prosecution, the two had developed a c lose relationship and were regularly chatting with each other on phone and through SMS-es. This was not liked by Siva (Accus ed No.1), who thereafter conspired with Chandru (Accused No . 2) to kill the deceased by overdosing him. R (PW-10) in h er statement has not at all supported the prosecution case and according to her, she had never met Arun but had talked to him over phone and that too occasionally. She also stated that she and the deceased Arun would exchange SMS-es which were usual in nature. She, in cross-examination, denied the suggestion that she used to talk to Arun every day. She stated that they talked generally about matters relating to college. She also denied that she had any special relationship with Siva. According to her, Siva was her friend being a college-mate. No other evidence has been led to prove that R (PW-10) had any special relationship with accused Siva or that she had developed any special relationship with deceased Arun. The only evidence in this regard is the statement of R (PW-10), which does not support the prosecution case at all. In this regard, it would also be pertinent to menti on that in the first complaint filed by PW-1, there is no mention of R (PW-10), much less of her having any affair with either the accused or the deceased. This was brought out for the fi rst time only in the complaint filed four years after the de ath of Arun. There is no explanation for this long silence of four years. Therefore, we are clearly of the view that the motive has n ot been proved. We must also remember that the accused and the deceased were good friends. They had studied for many years together and there is not even an iota of evidence about suc h love triangle. 4. CHANDRU WAS A MEDICAL STUDENT - Both the courts below have come to the conclusion t hat Chandru was asked by Siva to commit the crime becau se Chandru was a medical student and he alone knew how to inject the substance into the body of the deceased. We are constrained CHANDRU @ CHANDRASEKARAN v. STATE REP. BY DY. SUPDT. OF POLICE CB CID AND ANR. [DEEPAK GUPTA, J.] to observe that the inference drawn by the courts below was totally ill founded. Why would Chandru kill another human being just on the asking of the accused Siva? Chandru was a medica l student, studying in a profession meant to save lives and not to kill people. From the evidence on record it stands estab lished that the deceased was a drug addict and had been taking injectible drugs for a long time. It is well known that such drug addicts can easily inject themselves. What has happened in this case is not clear but it cannot be said with certainty that Chandru had injected the poisonous substance into the body of the deceased. There is no evidence in this regard. As we have disc ussed above, it was not only Siva and Chandru who were coming to Chennai with deceased Arun but Siddharth and Mathesh were also coming to Chennai in the same car. However, they went back only after the car met with an accident. All these boys were in their late teens or early 20s and two of them got scared after the accident and they went to the homes of their rel atives and from there they contacted their respective mothers. Si nce they had obtained permission of their mothers by giving false excuses, they got scared and went back. Even as pe r the prosecution, Chandru had no motive to kill Arun. Therefore, the inference drawn by the High Court as well as the trial court that Siva and Chandru had conspired or had the common intention of murdering Arun is not based on any cogent or rel iable evidence. 14. Other than the circumstances referred to above, there are other circumstances which go against the prosecution which we shall refer to now: 1. Inconsistency in the statement of PW-1 – PW-1 is the maternal uncle of the deceased. In his first complaint made in the police station on 31.10.2004, there is no reference to R (PW-10) or other facts which have been stated at a later sta ge. The private complaint filed by him four years later is contrary to the first complaint filed by him immediately after the occurrence. His explanation is that he was asked to sign on two blank papers by the police. First of all, we see no reason why the police in a case of this nature would try to help the accused and shield the actual criminal. Secondly, there is no material on record to show that PW-1, the maternal uncle or PW-5, father of the deceas ed, 119 ever complained to any authority that PW-1 had been forced to sign two blank papers. This is a case where the maternal uncle and the father of the deceased had approached the High Court on at least two occasions for transfer of the investigat ion. They succeeded once and failed on the second occasion. In case the version of PW-1 that his signatures were taken on blank p apers was correct, then he would have definitely said so much earli er. He would have reported the matter to the higher authorities or made mention of this in the petitions filed in the High Court . Despite a pointed query to the counsel for the orig inal complainant and the informant and the State they failed to point out whether any such complaint had been made by PW-1 or PW-5. Therefore, we do not accept the version of PW-1 that his signatures were obtained on blank sheets of papers. T his also casts a doubt on the veracity of the statement of P W-1. 2. Delay in filing the private complaint - It is true that PW-1 and PW-5 were moving the High Court for transfer of the case to some other investigating agency but, at the same time, it would be pertinent to mention that after t he charge sheet was filed against Venki by the Investigating Of ficer (DW 4), neither PW-1 nor PW-5 filed any protest petition to the effect that the accused (appellants herein) should also be arraigned a s accused. They let the matter go on and it was only after V enki died that the private complaint was filed. There is no explanation why no protest petition was filed when the police had only made out a case against accused Venki and that too under Section 304 IPC and not murder. 3. PW-1 and PW-5 are not coming to the Court with clean hands – The motive has been introduced after four years. The father and the maternal uncle of the deceased never brought up the issue of the deceased having conversations with R (P W 10) at any earlier stage. Therefore, PW-1 and PW-5 are not coming to the court with clean hands. They have cooked up the story of signing on blank papers and also cooked up the story relating to the motive. Therefore, their evidence is not r eliable and a person cannot be convicted on the basis of such evidence. 15. All that is proved is that the deceased and the accused were sleeping in one room and the deceased died due to overdose of dru g. CHANDRU @ CHANDRASEKARAN v. STATE REP. BY DY. SUPDT. OF POLICE CB CID AND ANR. [DEEPAK GUPTA, J.] The prosecution had miserably failed to prove that the accused injected this drug. It is the case of the prosecution that the fir st injection was administered by Venki, which was only 4 ml. There is possibility of the deceased injecting himself on the second occasion sometime in the middle of the night or early in the morning. In this context, we must remember that the doctor, who conducted the post-mortem has not give n any approximate time of death of the deceased which could have helped us in the matter. The circumstances proved cannot lead to the inference that it is the accused alone who committed the offence. In fact, the prosecution has even failed to prove beyond reasonable doubt that the death is homicidal in view of the inconsistencies in the medical evidence dealt by us above. Even otherwise, it is not proved that it was the accused who injected the deceased and the possibility of the a ccused injecting himself or some other person doing so cannot be ruled out. 16. In view of the above discussion we allow both the appeals, set aside the judgment dated 30.11.2010 of the High Court in Criminal Appeal No.592 of 2010 and 636 of 2010 and judgment dated 24.09.2010 of the Additional District and Sessions Judge, Fast Track Court No.V, Chennai in S.C. No.237 of 2009. The accused-appellants are acquitted. They are directed to be released immediately unless r equired in any other case. Pending application(s), if any, stand(s) disposed of. Kalpana K. Tripathy Appeals allowed.