1.Leave granted in appeal arising out of SLP (Crl.) No.2306 of POOJA ARORA
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. At about 9.30 p.m. Venkatesh @ Venki came to the room. Venki injected 4 ml of Tidijesic drug into the left wrist of 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 boy 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 engineering college at Chennai. However, he was not studying properly and 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 thereafter went to Triplicane Police Station and lodged the report.
5.On the basis of the aforesaid report a case being Crime No.1150 of 2004, was registered. The body of the deceased was sent for post-mortem. Dr. A.N. Shanmugham (PW-6) conducted the post-mortem. He stated that he could not say with certainty what 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 investigation 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 Nadu. There were three suspects before the police viz., Venkatesh @ Venki, Sivaprakash @ Siva and Chandrasekaran @ Chandru. All three were subjected to Polygraph, Brainmapping and Narcoanalysis tests at a Forensic Science Laboratory. According to the Investigating 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.
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 ‘CrPC’) 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 trial 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, Venki had injected 4 ml of Tidijesic injection in the left wrist of the deceased. It was also alleged that Venki was paid Rs.50/- by the accused Siva for his services. According to this complaint, Arun had been injected 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 stated 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.
8.After the filing of the private complaint, the metropolitan magistrate recorded the statements of seven witnesses 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 and 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 with regard to appreciation of circumstantial evidence has been clearly enunciated in the case of Hanumant v. State of Madhya Pradesh1, 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 established 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: “RULE 1. – The facts alleged as the basis of any legal inference must be clearly proved, and beyond reasonable doubt connected with the factum 1 AIR 1952 SC 343 2 Butterworths, Seventh Edition, Pp 296-329. RULE 2. – The burden of proof is always on the party who asserts the existence of any fact which infers legal 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 guilt, 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 conclusion. Unfortunately, in this case, though a
reference has been made to some circumstances, the
circumstances have not been discussed separately. Therefore,
we propose to discuss the various circumstances relied upon
by the prosecution:
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
circumstance is proved. Though this circumstance is
proved, we must also look into the circumstances under
which the accused were last seen 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
that 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 maternal uncle of the deceased (PW-1)
states that one Jeyaraj, 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 deceased 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 proceed 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 with an 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 trip but it was the
deceased, who had organised the trip and, therefore, it
cannot be said that the accused had taken 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 the Department of Legal and Forensic
Medicines, Royapettai 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 that the deceased
died due to overdosing of drug.
PW-11 stated that if a 20 ml syringe is used then about 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 state 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 the deceased.
Even in the post-mortem report the approximate time of
death has not been indicated. Dr. A.N. Shanmugham (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 injection 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
injection 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 give 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 at about 10.30 p.m.. The next morning
the deceased was found dead. No recoveries of any
ampoules or syringe have been made from the accused or at
their instance to connect them with the offence.
The prosecution, by means of the aforesaid medical
evidence, has failed to link the accused with the death of the
deceased. The prosecution has failed to prove the exact
time of death of the deceased. The deceased was first
injected an injection between 9.30 p.m. to 10.00 p.m.. As
per doctor, the effect of this could end in about six hours.
Therefore, the possibility of the deceased getting up himself
in the middle 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 miserably
failed to link the accused with the death of the deceased.
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 close
relationship and were regularly chatting with each other on
phone and through SMS-es. This was not liked by Siva
(Accused No.1), who thereafter conspired with Chandru
(Accused No. 2) to kill the deceased by overdosing him. R
(PW-10) in her 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 mention 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 first
time only in the complaint filed four years after the death of
Arun. There is no explanation for this long silence of four
years. Therefore, we are clearly of the view that the motive
has not 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 such love triangle.
Both the courts below have come to the conclusion that
Chandru was asked by Siva to commit the crime because
Chandru was a medical student and he alone knew how to
inject the substance into the body of the deceased. We are
constrained 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 medical student, studying in a
profession meant to save lives and not to kill people. From
the evidence on record it stands established 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 discussed 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 relatives and from there
they contacted their respective mothers. Since they had
obtained permission of their mothers by giving false
excuses, they got scared and went back. Even as per 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 reliable 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 stage. 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 deceased, 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 investigation. They succeeded once and failed on the second occasion. In case the version of PW-1 that his signatures were taken on blank papers was correct, then he would have definitely said so much earlier. 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 original 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. This also casts a doubt on the veracity of the statement of PW-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 the charge-sheet was filed against Venki by the Investigating Officer (DW-4), neither PW-1 nor PW-5 filed any protest petition to the effect that the accused (appellants herein) should also be arraigned as accused. They let the matter go on and it was only after Venki 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 (PW-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 reliable 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 drug. The prosecution had miserably failed to prove that the accused injected this drug. It is the case of the prosecution that the first 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 given 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 accused 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 required in any other case. Pending application(s), if any, stand(s) disposed of. (SANJAY KISHAN KAUL) (DEEPAK GUPTA) New Delhi February 12 , 2019