IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 06.04.2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRIMINAL APPEAL No.110 of 2010 Kannadhasan .. Appellant/Accused No.2 Vs. State by Inspector of Police, Annadhanapatti Police Station, Salem. (Crime No.1096/2009) .. Respondent/Complainant The criminal appeal has been preferred under Section 374 (2) of Cr.P.C. against the judgment of the learned Additional District and Sessions Court and Fast Track Court II, Salem, made in S.C.No.216 of 2009 dated 18.8.2009. For Appellant : Mr.M.R.Sivakumar For Respondent : Mr.V.R.Balasubramanian, A.P.P. J U D G M E N T (The judgment of the Court was made by M.CHOCKALINGAM, J.) This appeal challenges the judgment of the Additional Sessions Division, Fast Track Court-II, Salem, made in S.C.No.216 of 2009 whereby the appellant shown as A2 in the said case was found guilty along with A1 and A3 under sections 302 r/w 109 and 201 of I.P.C. and awarded life imprisonment along with fine of Rs.1000/-, in default, to undergo six months rigorous imprisonment for the offence under section 302 r/w 109 IPC and three years rigorous imprisonment for the offence under section 201 IPC. 2. The short facts necessary for the disposal of this appeal can be stated as follows: (i) P.W.1 is the Village Administrative Officer of Annadhanapatti Village. On 18.8.200 at about 7.00 a.m. when he was in his office, he was informed by the Village Assistant Kaveriappan that a dead body of https://hcservices.ecourts.gov.in/hcservices/ a female was found burried. On receipt of the information, he proceeded to the spot and after verification, he proceeded to the respondent Police Station and gave a report, Ex.P1. (ii) On the basis of Ex.P1 report, P.W.12 Sub Inspector of respondent Police registered a case in Crime No.1096/200 under section 174 Cr.P.C. The F.I.R. Ex.P15 was dispatched to the Court. (iii) An intimation was given to P.W.7,Tahsildar of the said place and he went to the spot along with Assistant and the dead body was exhumed. He conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared in the inquest report Ex.P7. The dead body was actually identified by P.W.2, father of the deceased and also P.W.4. Thereafter, the dead body was sent for the purpose of post mortem. (iv) P.W.8 doctor conducted autopsy on the dead body and found the following injuries: "1. Perioral swelling with underlying contusion (bluish black) 7x2x0.5 cms above upper lip and 6x3x0.5 cms below lower lip. Both lips swollen and contused on cut section. 2. Fracture nasal bone with surrounding soft tissue contused (antemortem ) 3. Bluish black contusion medial side of right upper thigh 4x2x0.5 cms and medial side of left upper thigh 3x2x0.5 cms. Swelling of labia majora with haemorrhagic contusion on the cut section (antemortem) 4. Bluish black contusion frontal region of scalp 4x2x0.5 cms(antemortem)." The doctor gave his opinion that the deceased would appear to have died out of asphyxia due to smothering. (v) Pending investigation, A1 appeared before P.W.1, Village Administrative Officer on 10.8.2009 at about 7.00 a.m. and gave extra judicial confession. The same was recorded by P.W.1 which was marked as Ex.P3. P.W.1 produced A1 before the respondent Police. A1 came forward to give confessional statement voluntarily and the same was recorded by P.W.12 Investigating officer and the admissible part of the same was marked as Ex.P5. Thereafter, A1 produced M.O.1 pillow. The same was recovered under Ex.P6 mahazar. Following the same, it was brought to the notice of the investigating officer about the involvement of A2 to A4. At 11.00 a.m. on 10.8.2009, A2 to A4 were arrested. A2 came forward to give confessional statement. The admissible part of the same was marked as Ex.P11. A2 produced M.O.6 spade which was recovered under a cover of mahazar. A3 also gave confessional statement and the admissible art was marked as Ex.P12. A4 produced M.O.7 which was recovered under a cover of https://hcservices.ecourts.gov.in/hcservices/ mahazar Ex.P14. All the accused were sent for judicial remand. On completion of the investigation, the investigating officer filed a final report. (vi) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges, the prosecution examined 12 witnesses and relied on 17 exhibits and 8 material objects. 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 the prosecution witnesses. They denied them as false. No defence witness was examined. The trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt insofar as A1 to A3 are concerned and awarded the punishments as referred to above. The trial Court found that the prosecution has not brought home the guilt of A4 and recorded the order of acquittal. 3. Advancing the arguments on behalf of the appellant the learned counsel would submit that in the instant case, the prosecution has no direct evidence to offer but relied on the circumstantial evidence. The circumstances placed by the prosecution were not proved. Apart from that, the proved circumstances did not indicate the nexus of the crime with A2 in the alleged occurrence. According to the prosecution, the occurrence has taken place at about 11.00 p.m. on 1.8.2009. Before the trial Court, the prosecution relied on the extra judicial confession alleged to have been given by A1 to P.W.1 Village Administrative Officer on 10.8.2009 at about 7.00 a.m. where he has spoken about the involvement of A2 and A3. The learned counsel would submit that it is well settled principle of law that the extra judicial confession given by one accused is to be acted upon against the co-accused, there must be other corroborative piece of evidence, otherwise, it cannot be looked into and it cannot be given any evidentiary value. 4. The learned counsel would further submit that in the instant case, no corroborative piece of evidence is available to the prosecution while relying on the extra judicial confession. According to the prosecution, three witnesses were examined to speak about the last seen theory. P.W.4, eatable vendor at the bus stand was examined. According to him, the deceased was a prostitute by provision. Under such circumstances, there could be so many ill wills and she could have been murdered by somebody. According to P.W.4, he saw A1 and A2 in the company of the deceased at 6.00 p.m. on the day of occurrence. The occurrence has taken place at 11.00 p.m. in the house of A1. Therefore, the statement that A1 and A2 were found in the company of the deceased at 6.00 p.m. cannot be taken as the last seen theory, as there was sufficient interval. https://hcservices.ecourts.gov.in/hcservices/ 5. Added further learned counsel, according to P.W.5, he saw A2 and A3 coming near the place of occurrence where the dead body was burried at 10.30 p.m. This cannot be taken as a piece of evidence to implicate A2 in the instant case. The trial Judge was not ready to believe the evidence of P.W.6 since he did not know the identity of A4 and A4 was acquitted. If to be so, the same parameter would be applicable to A1 to A3. Insofar as A2 is concerned, neither there is direct evidence nor circumstantial evidence. 6. Added further learned counsel, in the instant case, the prosecution has not proved the cause of death. According to the post mortem doctor, the death has been caused by asphyxia due to smothering. There are injuries and abrasions found on the dead body at the time of post mortem. Thus, the prosecution has no reason to offer how the injuries have been caused. Added further learned counsel, even according to P.W.5, A1 was found on 9.8.2004 itself. If to be so, according to the prosecution, he appeared before the Village Administrative Officer on 10.8.2004 and gave such a report could not be believed. The extra judicial confession alleged to have been made by A1 could not be believed. There is no truth in the prosecution case. Under such circumstances, the recovery of the alleged weapon M.O.6 spade was also nothing but subsequently invented in order to strengthen the prosecution case. The prosecution has miserably failed to prove its case. Hence, the appellant/A2 is entitled for acquittal but the trial Court has erroneously found A2 guilty of the offence. Hence, the judgment of the trial Court has got to be set aside. 7. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 8. It is not in controversy that the dead body of Selvi, daughter of P.W.2 was found burried on 8.8.2009 at 7.00 a.m and the same was informed to P.W.1 Village Administrative Officer of Annadhanapatti who went to the spot and verified the same and proceeded to the respondent police and gave a report. On the strength of the said report, a case came to be registered in Crime No.1096/2009 under Section 174 Cr.P.C and on receipt of the copy of the F.I.R., P.W.7 Tahsildar has caused excavation and conducted inquest on the dead body of Selvi and subjected the dead body of the deceased Selvi to post mortem. The doctor who conducted post mortem has categorically opined that she died out of asphyxia due to smothering. The Court is unable to find any reason why the opinion given by the medical person has got to be looked into with suspicion. Hence, the trial Court is perfectly correct in recording that the deceased Selvi died out of asphyxia due to smothering and this court has no impediment in recording so. https://hcservices.ecourts.gov.in/hcservices/ 9. True it is, the prosecution had no direct evidence to offer. The prosecution relied on three circumstances to bring home the guilty of A2. Firstly, the extra judicial confession given by A1 to P.W.1 on 10.8.2009. Secondly, the evidence of P.W.4 to the effect that he saw A1 and A2 in the company of the deceased at 6.00 p.m. on the date of occurrence. Apart from that, the evidence of P.W.5 that he saw A2 and A3 coming nearby the house of the A1, the place of occurrence on the day of occurrence. Thirdly, pursuant to the confessional statement given by A2 M.O.6 spade has been recovered from him in the presence of witnesses. 10. The learned counsel would submit that all the circumstances would not constitute any evidence to sustain the conviction. The Court has to necessary disagree with him. Insofar as the first circumstance, viz., the extra judicial confession alleged to have been given by A1 to P.W.1 Village Administrative officer is concerned, the Court is mindful of the caution made by the Apex court and the settled principle of law that the confessional statement given by one accused against the co-accused, in the absence of any corroborative piece of evidence on the material aspects, should not be relied on to sustain the conviction. In the instant case, the extra judicial confession was admittedly given by A1 where the involvement of A2 and A3 were spoken about. Hence, in the said circumstances, the Court has to look into the other corroborative piece of evidence. On scrutiny of the available material, the Court is satisfied that the other corroborative piece of evidence to accept the said evidence of A1 is available in the instant case. According to P.W.4, who was an eatable vendor in the platform of the Central bus stand, the deceased was a prostitute by profession and she had close association with A3 during the relevant time and A1 and A2 were also already known to him. According to P.W.4 at about 6.00 p.m. he found A1 and A2 in the company of the deceased. Further, according to P.W.5, he saw both A2 and A3 nearby the house of A1 where the occurrence has taken place. Thus, from the evidence of P.W.4 and P.W.5, the deceased was found in the company of A1 and A2, 4 or 5 hours prior to the occurrence and she was taken by them. The occurrence has taken place in the house of A1 and nearby the occurrence place, A2 and A3 were noticed by P.W.4. Hence, both the evidence were strong in favour of the prosecution, one speaking about the last seen theory and the other speaking about the presence of A2 and A3 nearby the place of occurrence. Therefore, it is for them to explain how they happen to be there, but A2 has no explanation to offer. 11. Following the confessional statement, M.O.6 spade has also been recovered from A2. According to the prosecution, it was the weapon used to dig the pit where the dead body of Selvi was burried subsequent to the occurrence to screen the offence. It was actually the weapon which was used by the accused. This piece of evidence https://hcservices.ecourts.gov.in/hcservices/ projected by the prosecution before the trial Court stood in full corroboration with the extra judicial confession given by A1. Therefore, the contention putforth by the learned counsel for the appellant that the evidence of P.W.6 was not believed by the trial court and A4 was acquitted and the same parameter should be applied to the appellant also, cannot be accepted. The Court is unable to see any reason to look with suspicious the evidence of P.Ws. 4 and 5. They are actually vendors and they have no grudge or in inimical terms with the accused. It is true that Selvi was a prostitute by profession. She has got close association with A3 during the relevant time. According to the learned counsel, there is no motive attributed on A2. The Court is unable to see any merit in this contention. Once it was shown that she was a prostitute by profession and was in close association with A3, what was the reason for A1 and A2 being in her company at the relevant time should be well within their knowledge. Therefore, this contention cannot be accepted. The prosecution has placed and proved necessary circumstances to prove its case which in the considered opinion of the Court, would be suffice to indicate the involvement of A2. Thus, the trial Court is perfectly correct in finding A2 guilty of the charge of murder and also for screening the murder as the one warranted in law. There is nothing to interfere with the judgment passed by the trial Court, either factually or legally. 12. Accordingly, the criminal appeal fails and the same is dismissed confirming the judgment of conviction and sentence passed by the trial Court. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. vsi To 1. The Additional District and Sessions Court Fast Track Court-II, Salem. 2. -Do- Through The Principal Sessions Judge, Coimbatore 2. The Inspector of Police, Annadhanapatti Police Station, Salem. 4. The Public Prosecutor, High Court, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 5. The Superintendent, Central Prison, Salem 6. The District Collector, Salem 7. The Director General of Police, Chennai. Copy to The Section Officer, High Court, Madras. + 1 cc to Mr.N.R.Sivakumar, Advocate SR 22601 CRL.A.No.110 of of 2010 VSV (CO) RH (15.4.10) https://hcservices.ecourts.gov.in/hcservices/