BAIL SLIP CRIMINAL APPEAL NOs.384 and 371 OF 2008 The Appellants viz., Amudha/I accused and Seenu @ Srinivasa Gounder (II accused) in Crl.A.384 and 371/2008 respectively were directed to be released on bail in and by the order of this Court dated 30.09.2008 and 27.06.2008 and made in M.P.Nos.2 and 1 of 2008 in Crl.A.Nos.384 and 371/2008 respectively. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.06.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRIMINAL APPEAL NOs.384 and 371 OF 2008 Amudha ..Appellant(Accused No.1) in Crl.A.384/08 Seenu @ Srinivasa Giounder ..Appellant (Accused No.2) in Crl.A.371/08 Vs. State represented by Inspector of Police, Bramedesam Police Station, Bramadesam-Tindivanam Taluk Villupuram District (Crime No.21 of 2007) ..Respondent in both 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,Tindivanam, Villupuram Dsitrict made in S.C.No.23 of 2008, dated 24.4.2008. For Appellant in Crl.A.No.384/08 : Mr.R.C.Paul Kanagaraj For Appellant in Crl.A.371/08 : Mr.D.Gubendragunabalan https://hcservices.ecourts.gov.in/hcservices/ For Respondent : Mr.N.R.Elango, APP in both appeals COMMON JUDGMENT (The judgment of the court was delivered by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the Additional District and Sessions Fast Track Court I,Tindivanam, Villupuram District made in S.C.No.23 of 2008, dated 24.4.2008 whereby the first accused/appellant stood charged along with A-2 under Sections 302 IPC, tried and both of them found guilty under Section 302 IPC and awarded life imprisonment and to pay a fine of Rs.1000/-, in default to undergo 3 months R.I and also under Section 201 IPC to undergo Rigorous imprisonment for 5 years and to pay a fine of Rs.500/- in default to undergo Rigorous imprisonment for 3 months and the sentences are ordered to run concurrently. 2.The short facts necessary for the disposal of these appeals can be stated as follows: a)P.W.1 is the elder brother of the deceased Perumal. A1 is the wife of Perumal. A1 had developed illicit intimacy with A2 and the family of PW1 and Perumal were living in the same place. But, they were living separately. On 20.7.2006 at about 8 a.m., A1 accompanied her husband Perumal and went to the field, but they did not return home on that day. On the next day morning, when she came alone, the mother of the deceased questioned about her son Perumal and she gave an evasive answer. Thereafter, all the family members searched for him. They could not trace him. On 9.8.2006, P.W.1 proceeded to the respondent police station and gave Ex.P.1, the complaint to P.W.13, the Inspector of Police. On the strength of Ex.P.1, a case was registered for 'man missing' in Crime No.279/2006. Ex.P.12 is the F.I.R. Thereafter on the very same day, PW1 was informed that the dead body was found in the nearby field. He went there and found the dead body and immediately informed to the police. PW1 has given another complaint which is marked as Ex.P.13. Then the case was altered into one under Section 302 IPC for "suspicious death". Immediately, he proceeded to the spot. Tahsildar was also informed and exhumation was done in the presence of Tahsildar. The Tahsildar conducted inquest on the dead body and also given the inquest report which is marked as Ex.P.3. b.Pursuant to the requisition made, PW12 conducted postmortem on the dead body of Perumal and has given his opinion that the dead body was found at the highly decomposed stage and the doctor could not fix the cause of death and to that effect he gave a post mortem certificate which is marked as Ex.P.11. https://hcservices.ecourts.gov.in/hcservices/ c. P.W.15 took up the investigation and he went to the place of occurrence and made an inspection in the presence of the witnesses. He has prepared observation Mahazar and rough sketch Ex.P.15, is the rough sketch. He has sent requisition to the Judicial Magistrate II, Tindivanam for sending the dead body for chemical examination which is marked as Ex.P.16 and who in turn sent a letter to the Forensic Science Department which is marked as Ex.P.17. A requisition was also made to the Judicial magistrate concerned for sending the Hyoid bone for Hyoid Bone examination which is marked as Ex.P.18 who in turn sent a letter to the Professor, Law and Medical Department, Chengalpet which is marked as Ex.P.19 and Ex.P.20 is the requisition from PW15 to Judicial Magistrate for sending the skull for super impossion examination. e)Pending investigation, A1 appeared before the respondent police and she has come forward to give confessional statement, which was recorded in the presence of the witnesses. The admissible portion of confessional statement of A-1 was marked as Ex.P.8. Pursuant to the confessional statement, A-1 produced M.O.1 Crow bar, which was recovered under Ex.P.9, the mahazar. The first accused was sent for judicial remand. The photograph of deceased Perumal along with the first accused was also produced by the first accused. An opinion was given by P.W.8, the Assistant Director, Anthropology Division, Forensic Sciences Department and the Super impossion report is marked as Ex.P.5. The dead body was subjected to chemical examinatiion. Since the body was at the decomposed stage, the report cannot be obtained. P.W.16, the Inspector of Police, took up further investigation and on completion of the investigation, he filed the final report. 3.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 16 witnesses and also relied on 23 exhibits and 2 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. The accused flatly denied the same as false. No defence witness was examined. The trial court, after hearing the arguments advanced and scrutinizing the materials available, took the view that the prosecution has proved the case beyond reasonable doubt both the accused and was found them guilty and awarded punishment as referred to above. Hence these appeals have arisen at the instance of appellants herein. 4.Advancing arguments on behalf of the appellant in Crl.A.No.384 of 2008, the learned counsel would submit that in the instant case, the gist of the case of the prosecution was that since A1 had illicit intimacy with A2 and there had been quarrels between the spouses, they decided that they would do away with the said Perumal, the husband of the first accused. On 20.7.2006, the first https://hcservices.ecourts.gov.in/hcservices/ accused took the husband to the field and thereafter she alone returned on the next day morning and she has committed murder with the help of A2 and the body was buried. Thus, both the accused stood charged before the trial Court for the act of crime of murder and also for screening of the evidence. Before the Trial Court, the prosecution had no direct evidence to offer. But it rested upon two circumstantial evidence. First one is the confessional statement alleged to have been given by A1 to the concerned police on 15.8.2006, equally by A2 to the concerned police on 31.8.2006. Except these two confessional statements that are alleged to have been given by A1 and A2 to the Police officials, no other evidence was available before the Trial Court. According to the prosecution, A1 along with the Perumal went to the filed at about 8 a.m. on 20.7.2006, but both of them were not returned on the night,but she alone came back in the next day morning and when she was asked by the mother of the deceased, she did not give any proper answer. But, the answer was evasive. Though such an evasive answer was given on 21.7.2006, no steps were taken or no complaint was given to the police or to the Village Administrative Officer. But the first complaint was given by PW1 only on 9.8.2006 which is marked as Ex.P.1. A perusal of Ex.P.1 would clearly indicate that before fifteen days, due to anger, the deceased went away from the house and nowhere it is stated that both the deceased and A1 went together and hence it could be seen that on the very day at about 2.45 hours, PW1 has given another complaint which is marked as Ex.P.13 wherein it is stated that he found the dead body and thus it would be quite clear that the two complaints were made on the very same day with different version, but nowhere it is stated that A1 and the deceased went together from the house on 20.7.2006 and thus the last seen theory has lost its importance. Added further the learned counsel that it is the case of the prosecution that the first accused voluntarily appeared before the police on 15.8.2006 and it is pertinent to note that even as per Ex.P.1 complaint, she was very much available just few days prior to Ex.P.1 and further it could be seen that the case of the prosecution that on 15.8.2006, A1 suddenly appeared before the Police Station and gave such a confessional statement would not be accepted since without anybody, a woman cannot be expected to appear before the Police Station to give such a confessional statement. Thus, it would be quite clear that actually it is a created evidence. Added further the learned counsel that A2 has been arrested only after he was identified by A1 and the confessional statement of A1 has been used against A2. Further in a case like this, the confession statement of one accused cannot be used as against the co-accused and if at all it is to be accepted, the Court must see whether any supporting evidence is available. But, in the instance case, no supporting evidence is available. There are cases rested upon the extra judicial confession alleged to have been given, except this, in the instant case, no evidence is available at all. Mere recovery of Crow bar and spade cannot by itself will speak about the conviction of the accused in the crime. Under such circumstances, the https://hcservices.ecourts.gov.in/hcservices/ prosecution had no evidence to offer and the lower court had taken an erroneous view and the judgment has got to be set aside. 5.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 6.It is not in controversy that Perumal, husband of A1 was exhumed in the presence of Tahsildars and other officials on 9.8.2006 After the inquest was made by the Investigating Officer, the dead body was subjected to post-mortem by P.W.12, the Doctor, has given his categorical opinion that the death could not be fixed, since the body was found at the decomposed stage. The fact that the deceased died out of homicidal violence was never disputed by the appellants before the trial court and hence it has got to be recorded so. The Photograph of Perumal was recovered from A1. Skull was sent for super impossion examination and the same was also conducted. It is pertinent to point that the identity of the deceased Perumal was never questioned by the accused. The case of the prosecution that Perumal, husband of A1 made to Homicidal death and hence it can be recorded so. 7.In order to substantiate the charges levelled against the appellant/accused 1 and 2 that they have committed the murder of Perumal and also for screening the evidence, the prosecution had no direct evidence and it rested only on circumstantial evidence. In a case like this, when the prosecution has come forward to rest the case on the circumstantial evidence, except the accused 1 & 2, no one could have been committed the offence. In the instant case, in so far as the charges levelled against A1 and A2 are concerned, the entire case rests only on extra judicial confession alleged to have been given by A1 and A2. Following the investigation, crow bar has been recovered at the instance of A1 and spade has been recovered at the instance of A2. The occurrence, according to the prosecution was taken between 20.7.2006 and 21.7.2006.The last seen theory was spoken to by PW1 that A1 took her husband to the field on 8 a.m. on 20.7.2006, but he did not return on the next day, even then, no complaint was forthcoming from PW1 or anybody else from the family of the deceased and Ex.P.1 was the earlier complaint given on 9.8.2006 on the morning. 8. In Ex.P.1 nowhere it is stated that A1 accompanied her husband when he left the house on 20.7.2006. On the contrary he has categorically stated that due to anger, the deceased left the house and thus the case of the prosecution that at about 8 a.m.,A1 accompanied her husband, cannot be believed. Further,PW1 has given another complaint at about 3 a.m. on the same day which is marked as Ex.P.13.A perusal of Ex.P.13 would clearly indicate that he saw the dead body of his brother and it was buried on the very same day and at 2.45 p.m. another complaint has been given and hence two https://hcservices.ecourts.gov.in/hcservices/ complaints were given. One for 'man missing' and second one for "suspicious death", after the dead body was found. Thus, it would cast doubt whether both the complaints would have brought into existence after the dead body was found. Further added the learned counsel that in the instant case, the prosecution rested its case on two confessional statements, one at the instance of A1 and another at the instance of A2. The investigator would claim that A1 suddenly appeared before the Police Officials and gave a confessional statement. It is pertinent to point out that the case of the prosecution is that the occurrence had taken place on 5.8.2006 for nearly about 20 days later. It is a matter of surprise to note that A1 has suddenly appeared after 20 days before the Investigator to give such a confessional statement and equally A2 appeared before the same police officer on 31.8.2006 after he was identified by A1 and all would clearly indicate that both the confessional statements would have been prepared to suit the convenience of the prosecution case. Needless to say that mere recovery of the weapons i.e. Crow bar and spade in this case would not be sufficent to convict the accused. The Court is able to see that the evidence adduced by the prosecution was so feeble and weakest evidence. In the instant case, to sustain the conviction on such evidence would be highly unsafe to hold that the accused are guilty under the charges levelled against them and the trial Court has taken an erroneous view. Hence, without any hesitation whatsoever, this Court has to necessarily set aside the judgment of the court below. 8. In the result, the criminal appeal is allowed setting aside the judgment of conviction and sentence by the court below. The appellants/accused are acquitted of the charge under Sections 302 and 201 of I.P.C. Bail bonds, if any, executed by the appellants/accused 1 and 2 shall stand cancelled The fine amount, if, paid, shall be refunded to them. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar VJY To 1. The Additional District -cum- Sessions Judge, Fast Track Court I, Tindivanam. 2. -do- Through The Principal District & Sessions Judge, Villupuram. 3. The Judicial Magistrate No.2, Tindivanam. 4. -do- Through The Chief Judicial Magistrate, Villupuram. https://hcservices.ecourts.gov.in/hcservices/ 5. The Superintendent, Special Prison for Women, Vellore. 6. The Superintendent, Central Prison, Cuddalore. 7. The Inspector of Police, Bramadesam Police Station Bramedesam-Tindivanam Taluk, Villupuram District. 8. The Public Prosecutor, High Court, Madras. + 1 c.c. to Mr. R.C. Paul Kanagaraj, Advocate. S.R.No.25036. CRL.A.NO.384 and 371 OF 2008 KG (CO) GSK 07.07.2009. https://hcservices.ecourts.gov.in/hcservices/