IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15.12.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NOS.725 OF 2006 AND 103 OF 2007 Sekar @ Subramani .. Appellant in CA.No.725/2006 1.Thaga @ Thagir Hussain 2.Ramu @ Ramakrishnan .. Appellants in CA.No.103/2007 Vs. State by Inspector of Police, Sennimalai Police Station, Crime No.259/2000 .. Respondent in both the appeals These criminal appeals have been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Additional District Sessions Judge, Fast Track Court No.1, Erode made in S.C.No.26 of 2006, dated 21.7.2006. For Appellants : Mr.R.Shanmughasundaram Senior Counsel for M/s.L.Baskaran in CA.No.103 of 2007 Mr.N.Chandrasekaran in CA.No.725 of 2006 For Respondent : Mr.P.Kumaresan, APP - - - - COMMON JUDGMENT (The judgment of the court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern these two appeals, namely Criminal Appeal No.725 of 2006 filed by the second accused and Criminal Appeal No.103 of 2007 filed by A-1 and A-3. https://hcservices.ecourts.gov.in/hcservices/ 2.These two appeals challenge the judgment of the Additional District and Sessions Division, Fast Track Court No.1, Erode made in S.C.No.26 of 2006, whereby the appellants, three in number, stood charged under Sections 364, 302 r/w S.34 and 201 IPC and A-1 was also charged under Section 506(2) IPC, tried and found guilty under Sections 302 r/w S.34, 364 and 201 IPC and they were awarded life imprisonment each under Sections 364 and 302 r/w S.34 IPC and 5 years R.I. each under Section 201 IPC and the sentences were ordered to run concurrently and A-1 was found not guilty under Section 506(2) IPC. 3.Necessary facts for the disposal of these appeals can be stated as follows: a)P.W.2 is the driver of TMY 5061, which belonged to P.W.9. On 23.6.2000, A-2 engaged the said Taxi, telling that for the purpose of arranging the marriage work, he has to go to Chennimalai. Accordingly, P.W.2 took the car. A-1 to A-3, one Srinivasan and the deceased got into the car. The car was parked for a while at Chennimalai Bazaar. All the three accused and the deceased got down and after 15 minutes, they got into the car and the car was just nearing the Noyyal river bridge. P.W.2 heard the noise and he just turned down to see the same. At that time, A-1 and A-2 were actually holding the deceased, while A-3 was strangulating the neck of the deceased with the towel. On seeing this, immediately P.W.2 questioned their conduct and they replied that "you drive the car, otherwise, you will also meet the same fate". When they were just crossing the bridge, they took the body of the deceased and threw it into the river and thereafter, they proceeded. When they were returning to the original place, A-1 to A-3 threatened him that he should not speak about the occurrence. b)On 24.6.2000 in morning hours, P.W.1, the Village Administrative Officer of Ekkattampalayam, on information, found the dead body of the deceased in the river bed. Immediately, he proceeded to the respondent police station and gave Ex.P.1, the report. P.W.21, the Inspector of Police on receipt of Ex.P.1, the report, registered a case in Crime No.259 of 2000 under Section 174 Cr.P.C. Ex.P.25, the F.I.R. was despatched to the Court. c)P.W.21 took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.26, the observation mahazar and Ex.P.27, the rough sketch. The place of occurrence was photographed through P.W.15, the photographer. M.O.3 (series) photos and M.O.4 (series) negatives were marked. P.W.21 conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.28, the inquest report. Then, the dead body was sent to the Government Hospital, Erode for the purpose of autopsy. d)P.W.10, the Doctor attached to the Government Hospital, Erode, on receipt of the requisition, has conducted autopsy on https://hcservices.ecourts.gov.in/hcservices/ the dead body of the deceased and has issued Ex.P.3, the post- mortem certificate and Ex.P.4, the final opinion, wherein he has opined that the deceased would appear to have died of asphyxia due to strangulation between 8 hours to 24 hours prior to autopsy. e)The matter was pending investigation. While the matter stood thus, when P.W.8, the Village Administrative Officer of Chitthiravuthan was in his office on 5.10.2005 at about 10.00 a.m., A-1 and A-2 appeared before him and gave confessional statements regarding the incident, which were actually recorded by him. P.W.8 took both of them to P.W.22, the Inspector of Police of Vellakovil Police Station, who recorded the statements of A-1 and A-2. The case records were sent to Chennimalai Police station. A-3 was also arrested on 07.10.2005, who has also come forward to give confessional statement. f)P.W.23, the Inspector of Police of Chennimalai Police Station, took up the investigation. He altered the case into Section 302 IPC and the other provisions and Ex.P.24, the alteration report was sent to the court. On 08.10.2005, he arrested P.W.2, who came forward to give confessional statement. Pursuant to his confessional statement, M.O.1, Car was recovered under a cover of mahazar. It was brought to the knowledge of the Investigator that P.W.2 had the knowledge about the occurrence even prior to the incident and therefore, he had a role to play and he gave his willingness to become an approver. Thus, proceedings were initiated and before the Chief Judicial Magistrate concerned, tender of pardon was accorded and hence he was made as a witness, namely P.W.2. On completion of the investigation, the Investigating Officer has filed the final report. 4.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution examined 23 witnesses and also relied on 30 exhibits and 4 M.Os. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses which they flatly denied as false. No defence witness was examined. The trial court, after hearing the learned counsel on either side and looking into the materials available, took the view that the prosecution has proved the case beyond reasonable doubt and found the accused guilty as per the charges and awarded punishments as referred to above. Hence these appeals have arisen at the instance of the appellants. 5.Advancing arguments on behalf of the appellants, the learned Senior Counsel has made the following submissions: a)According to the prosecution, the occurrence has taken place on 23.6.2000 at about 5.45 p.m. The prosecution mainly relied on the evidence of P.W.2, calling him as an approver. Originally, the case was registered under Section 174 Cr.P.C. on 24.6.2000 at the instance of P.W.1, the Village Administrative https://hcservices.ecourts.gov.in/hcservices/ Officer of Ekkattampalayam. Thereafter, the case was altered to Section 302 IPC and the other provisions only on 06.10.2005. According to the prosecution, materials were available to alter the case into Section 302 IPC. b)Firstly, before P.W.8, the Village Administrative Officer of Chitthiravuthan, A-1 and A-2 appeared and made confessional statements. P.W.8 caused the production of these accused before P.W.22 and thereafter, they were taken to Chennimalai Police Station, where the original case was registered. They gave confessional statements, which were also recorded. The second piece of evidence, which was mainly relied on by the prosecution, was the evidence of P.W.2. P.W.2 was called by the prosecution as approver. When the case was altered to Section 302 IPC on 6.10.2005, his name was also shown as an accused. In the instant case, proceedings of tendering pardon by P.W.2, who continued to be an accomplice till discharged, though actually initiated, no report was placed before the trial court as to how the concerned Chief Judicial Magistrate, who has recorded the tender of pardon, was satisfied. Those materials should have been placed before the trial court and an opportunity should have been given to the accused/appellants to cross examine such a witness on that ground. c)Apart from that, so far as P.W.2 was concerned, he claimed to be an eyewitness for the occurrence that took place on 23.06.2000, but he was keeping mum for a period of 5 years, namely till his arrest on 08.10.2005. It is pertinent to point out that though he claimed to be an approver, at the earliest statement recorded by the concerned Judicial Magistrate under Section 164 Cr.P.C., he has categorically stated that both A-1 and A-2 strangulated the deceased by using towel, while A-3 was holding the deceased. Contrarily, when he was examined as a witness before the trial court, he has stated that it was A-3, who strangulated the deceased and A-1 and A-2 were holding him. Thus, these contradictions what were found on the statement given before the Judicial Magistrate concerned under Section 164 Cr.P.C. and also in his evidence before the trial court would go to show that he could not have seen the occurrence at all. Further, he has been keeping mum for a period of 5 years. Apart from that, before the Investigator, he has stated that he clearly knew about the occurrence previously and after knew about the plan, A-2 hired the taxi and originally, he denied, but due to threat, he took the taxi. Further, Investigator has stated that these statements were not given by P.W.2 at the time of initial statement given to the Investigator. Thus, all would go to show that it is highly unsafe to rely on the evidence of P.W.2. Further, his evidence did not get corroboration from any quarter and under these circumstances, his evidence should have been rejected. Thus, the trial court has erroneously accepted the evidence placed by the prosecution and hence the prosecution has not proved the case beyond reasonable doubt and further, the evidence produced by the prosecution was not worth mentioning and therefore, the judgment of the trial court has got to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 6.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 7.It is not in controversy that the dead body of Senthilkumar was found by P.W.1, the Village Administrative Officer of Ekkattampalayam, who gave the report to P.W.21, the Inspector of Police of Chennimalai Police station on 24.6.2000, who registered the case under Section 174 Cr.P.C. Following the inquest conducted by the Investigating Officer, the dead body was subjected to post-mortem by P.W.10, the Doctor, who has given his categorical opinion that the deceased would appear to have died of asphyxia due to strangulation and has also issued Ex.P.3, the post-mortem certificate and Ex.P.4, the final opinion. Thus, this part of the evidence was not disputed by the appellants. Hence no impediment is felt by the court in recording so. 8.From the materials available, the court is able to notice that the prosecution rested its entire case on the evidence of two pieces. Firstly, the extra judicial confessional alleged to have been given by A-1 and A-2 before P.W.8, the Village Administrative Officer of Chitthiravuthan. Secondly, the evidence of P.W.2, who was called by the prosecution as approver. After careful scrutiny of the entire materials available, the court is afraid whether it can sustain conviction as done by the trial court, since the court is unable to see anything that these two pieces of evidence will be useful to the prosecution. 9.The occurrence has taken place, according to the prosecution, on 23.6.2000 at 5.45 p.m. When the car driven by P.W.2 was just crossing the Noyyal River bridge, all the three accused were actually inside the car and caused the death of the deceased. P.W.2 was the only eyewitness, according to the prosecution, when the occurrence has taken place. P.W.2 has claimed that he was the eyewitness. He was actually made as an accused when the case was altered to Section 302 IPC and the other provisions on 06.10.2005. It has to be pointed out that had P.W.2 really seen such an occurrence inside his car when he was driving the same, a reasonable conduct of a man would be to come out and unfold the truth immediately, but for a period of 5 years till he was arrested by the Investigator, he did not open his mouth. This silence would not only be telling the conduct of P.W.2, but also cast a doubt on his evidence. The prosecution has treated him as approver. The Investigator would claim that P.W.2 has stated that A-2 approached him and hired the taxi and P.W.2 was not willing, but he was threatened and hence he took the car and when the car was actually driven by him, the incident has taken place. When the Investigator was examined in court, he has clearly deposed that the above statements were not given by P.W.2 at all at the initial stage and if to be so, https://hcservices.ecourts.gov.in/hcservices/ there was nothing to add him as an accused in the case. This court is unable to notice what were the materials available basically to include him as an accused in this case. Further, he has been treated as approver, for which there must be a statement recorded by the concerned Chief Judicial Magistrate and an assurance must be given to him and the Chief Judicial Magistrate, who gives tender of pardon, must be satisfied with the availability of circumstances for doing so. In the instant case, though the prosecution claimed that he was an approver and he was also examined as P.W.2, no proceedings in respect of tender of pardon were placed before the trial court and thus, the trial court had no opportunity to scrutinize whether tender of pardon was proper or not. Further, an opportunity what was available to the accused to cross-examine the witness in this regard was also denied, in view of the non production of proceedings of tender of pardon, which was alleged to have been done. 10.Apart from that, P.W.2 was actually arrested on 08.10.2005 after the case was altered to section 302 IPC and the other provisions on 06.10.2005. So far as P.W.2 was concerned, he was the only eyewitness according to the prosecution. In a given case like this, when the prosecution rested its case on a solitary piece of evidence, the evidence must be carefully scrutinized. It this test is applied, the evidence of P.W.2 cannot be accepted at all. He was not only keeping mum for a period of 5 years, but also inconsistencies were noticed in his statements. He was actually taken before the Judicial Magistrate concerned and the statement was recorded under Section 164 Cr.P.C. and thereafter, he has given evidence before the trial court. When the statement under Section 164 Cr.P.C was recorded, he has categorically stated that both A-1 and A-2 strangulated the deceased by using towel, while A-3 was holding the deceased. Contrarily, when he was examined before the trial court, he has stated that it was A-3, who strangulated the deceased and A-1 and A-2 were holding him. Had he really seen the occurrence, there would not be such inconsistencies as to the act of the accused. In the instant case, the court is of the considered opinion that it would be highly unsafe to accept the evidence of P.W.2 in order to sustain conviction and hence his evidence cannot be relied upon. 11.The other piece of evidence which was relied on by the prosecution and accepted by the trial court was the extra judicial confessional alleged to have been given by A-1 and A-2 before P.W.8, the Village Administrative Officer of Chitthiravuthan. But, it casts a thorough doubt for the simple reason that the occurrence has taken place on 23.6.2000, but A-1 and A-2 according to the prosecution, came forward to give such a statement on 05.10.2005, i.e. nearly after a period of 5 years and that too to the Village Administrative Officer of different place. Neither he was acquainted nor known to them previously. The delay of 5 years coupled with the fact of non acquaintance https://hcservices.ecourts.gov.in/hcservices/ would be sufficient to reject that part of the evidence produced by the prosecution. It is a matter of surprise that A-1 and A-2 suddenly appeared before P.W.8, the V.A.O. of different place and gave such a statement after a period of 5 years about the incident in which they were involved, which in the opinion of the court would be sufficient to reject that piece of evidence. 12.If these two pieces of evidence are not available for the prosecution, the prosecution had no other evidence to offer. Apart from that, some of the witnesses examined by the prosecution have turned hostile. Under these circumstances, the prosecution has not brought home the guilt of the accused beyond reasonable doubt. Hence relying on the evidence of P.W.2 either or the extra judicial confession of A-1 and A-2 before P.W.8 would be highly unsafe to sustain conviction. Therefore, the judgment of the trial court has got to be made undone only by upsetting the same. 13.Accordingly, the judgment of conviction and sentence made on the appellants by the trial court is set aside and the appellants are acquitted of the charges levelled against them. They are directed to be released forthwith unless their presence is required in connection with any other case. Accordingly, these criminal appeals are allowed. Vvk Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1.The Additional District Judge, Fast Track Court No.1, Erode. 2.The Inspector of Police, Sennimalai Police Station. 3.The Additional Public Prosecutor, High Court, Madras. 4.The Director General of Police, Chennai. 5.The District Collector, Erode. 6.The Superintendent of Police, Erode. 7.The Superintendent of Central Prison, Coimbatore. + 2 ccs to Mr. L. Baskaran, Advocate SR No.70051 + 1 cc to Mr. N. Chandrasekar, Advocate SR No.70079 SSK(CO) SR/22.12.2008 CRL.A.NOS.725 OF 2006 AND 103 OF 2007 https://hcservices.ecourts.gov.in/hcservices/