IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15-9-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN CRL.A.No.387 of 2010 Kandasamy .. Appellant/Accused vs State: Inspector of Police Kolathur Police Station Salem District Crime No.306/2008 .. Respondent/Complainant Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge cum Fast Track Court No.I, Salem, made in S.C.No.313 of 2009 dated 21.4.2010. For Appellant : Mr.A.Raghunathan Senior Counsel for Mr.T.I.Ramanathan For Respondent : Mr.V.R.Balasubramanian Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Additional Sessions Division, Fast Tract Court No.I, Salem, made in S.C.No.313/2009 whereby the sole accused/appellant stood charged under Sec.302 of IPC, tried, found guilty of murder and awarded life imprisonment along with a fine of Rs.50000/- and default sentence. 2.The short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is the son of the deceased Palaniyappan. P.Ws.2 and 3 are close relatives. They are all residents of Koil Kottaiyur within the jurisdiction of the respondent police. The deceased had two wives. P.W.1 was born through the first wife. Apart from him, there were two other children who were born through the first wife. One child was born through the second wife. The father of the accused and the deceased were brothers. They were all six in the family. The accused was born through the first wife. With regard to the property, there was a long enmity between them. https://hcservices.ecourts.gov.in/hcservices/ (b) On the date of occurrence that was on 17.12.2008 at about 7.45 P.M., the appellant/accused who came with a koduval, which was marked as M.O.3, attacked him indiscriminately. The same was witnessed by P.Ws.1 to 4. When there was a distressing cry, he ran away from the place of occurrence. The deceased died at the spot. (c) P.W.1 proceeded to the respondent police station and gave a complaint Ex.P1, which was received by P.W.7, the Sub Inspector of Police, at about 21.00 hours. On the strength of Ex.P1, the report, a case came to be registered in Crime No.306/2008 under Sec.302 of IPC. The printed FIR, Ex.P7, was despatched to the Court. (d) P.W.9, the Inspector of Police of that Circle, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P10. He conducted inquest on the dead body of the deceased in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P11. He also recovered the material objects from the place of occurrence. He enquired the witnesses and recorded their statements under Sec.161 of Cr.P.C. Then the dead body was sent to the Government Hospital for the purpose of autopsy. (e) P.W.8, the Doctor, attached to the Government Hospital, Mettur, on receipt of the requisition, conducted autopsy on the dead body of Palaniyappan and has issued a postmortem certificate, Ex.P9, wherein he opined that the deceased would appear to have died of shock and haemorrhage and injuries to major blood vessels and nerves of neck and injury to brain. (f) Pending investigation, when P.W.5, the Village Administrative Officer (V.A.O.), was in his office along with his Assistant on 19.12.2008 at about 12.00 P.M., the accused appeared before him and gave a confessional statement, and he also prepared a report. Along with his report, Ex.P4, he produced the accused before the respondent police station. Then, he was arrested, and the Investigator recorded the confessional statement given by him voluntarily, following which he produced M.O.3, koduval, and also M.O.5, bloodstained dothi, which were recovered under a cover of mahazar. Then he was sent for judicial remand. All the material objects recovered from the place of occurrence and from the dead body and also the material objects recovered from the accused on production following the confessional statement, were subjected to chemical analysis which resulted in two reports, Ex.P20, the chemical analyst's report, and Ex.P21, the serologist's report. (g) P.W.10, the Inspector of Police, took up further investigation and on completion of the same, filed the final report. 3.The case was committed to Court of Sessions, and necessary charge was framed. In order to substantiate the charge, the prosecution examined 10 witnesses and also relied on 21 exhibits and 6 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which he flatly denied 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 https://hcservices.ecourts.gov.in/hcservices/ case beyond reasonable doubt and hence found the appellant/accused guilty and awarded the above punishment. Hence this appeal at the instance of the appellant before this Court. 4.Assailing the judgment of the trial Court, the learned Senior Counsel Mr.A.Raghunathan would submit that in the instant case, the judgment of the trial Court was thoroughly erroneous which is liable to be set aside by this Court on so many grounds. Firstly, the prosecution examined four witnesses who are eyewitnesses, namely P.W.1, the son of the deceased, and P.Ws.2 and 3, the close relatives, and P.W.4, a Ward Councilor who belonged to a political party. Thus all have turned hostile, and the prosecution had no direct evidence to offer. Under the circumstances, the prosecution relied on the evidence of P.W.5, the VAO. According to P.W.5, he came to his office in the morning hours on 19.12.2008, and also gave a confessional statement. The same was recorded. Along with his report, he produced the accused before the Investigator. It is a matter of surprise to note that though P.W.5 has stated that he recorded the extra-judicial confession of the accused, it was not produced before the Court. A perusal of Ex.P4 would clearly indicate that it was only a report given by the VAO and not the statement recorded by him. Even that Ex.P4 document, should have been rejected by the trial Court for the simple reason that the witnesses have categorically stated that the accused was actually found in the police station on the night hours of 17.12.2008 and thus it would be quite clear that when he was in the police station Ex.P4 has come into existence, and under the circumstances, no reliance could be placed on Ex.P4 document. 5.Added further the learned Senior Counsel that the alleged recovery following the confessional statement should also be rejected, and under the circumstances, it can be well stated that there was not only lack of evidence, but also bereft of evidence, and hence the judgment of the trial Court has got to be set aside. 6.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 7.It is not in controversy that one Palaniyappan the father of P.W.1, was done to death in an incident that had taken place in the evening hours of 17.12.2008. Following the inquest made by P.W.9, the Inspector of Police, the dead body was subjected to autopsy by P.W.8, the Doctor, who has given a postmortem certificate, Ex.P9, wherein he has stated that he died out of shock and haemorrhage due to the injuries sustained. The cause of death as put forth by the prosecution was never subjected to controversy by the appellant before the trial Court. Hence the trial Judge was perfectly correct in recording that he died out of homicidal violence, and the prosecution was also successful enough in proving the cause of death as put forth before the trial Court. 8.In order to substantiate the charge of murder, the prosecution relied on the direct evidence by marching P.Ws.1 to 4, and unfortunate for the prosecution, all these witnesses have turned hostile. It is pertinent to point out that P.W.1 is the son of the https://hcservices.ecourts.gov.in/hcservices/ deceased, and P.Ws.2 and 3 are the close relatives, while P.W.4 is also a Ward Councilor. Their statements were recorded by the Investigator under Sec.161 of Cr.P.C., and they were all eyewitnesses to the occurrence. But, all have turned hostile. Thus the prosecution could not avail their evidence. 9.The prosecution next put forth Ex.P4, document, and also examined P.W.5, the VAO. It is settled position of law that in a given case like this, the extra-judicial confessional can form basis to sustain a conviction provided it satisfies two conditions. Firstly, the circumstances under which such an extra-judicial confession was given, and secondly, whether the evidence of the person to whom the extra-judicial confession is alleged to have been given, inspires the confidence of the Court. In the case on hand, this Court is afraid whether it could rely on the evidence of P.W.5 or Ex.P4 document. These pieces of evidence should have been rejected by the trial Court for two reasons. Firstly, P.W.5 would claim that the accused appeared before him on the noon hours of 19.12.2008 when he came forward to give a confessional statement, and the same was also recorded. But, the said statement was never placed before the Court. Secondly, Ex.P4 document, is only a report made by the VAO. Now, at this juncture, it is pertinent to point out that Ex.P4 document, did not contain the signature of the appellant/accused. 10.Added circumstance which would go against the prosecution was that he was actually found in the police custody on the night hours of 17.12.2008. If to be so, the document Ex.P4, should have come into existence when the accused/appellant was in the police custody. In such circumstances, the fact that he appeared before the VAO on 19.12.2008, cannot but be false. Hence no evidentiary value could be attached to the document Ex.P4, and also the evidence of P.W.5, and they are to be brushed aside. 11.What was all left for the prosecution was only the recovery of M.Os.3 and 5, the weapon of crime and the bloodstained dothi respectively. The learned Additional Public Prosecutor brought to the notice of the Court that the blood group also tallied. This contention of the prosecution has got to be rejected for two reasons. Firstly, the confessional statement which was actually recorded by the Police Officer while he was handed over by the VAO, has to be rejected for the reasons as stated above. The confessional statement could not have come into existence as put forth by the prosecution, and hence it cannot be a recovery following the confessional statement. Secondly, merely because of the recovery of those material objects, a conviction cannot be sustained, and hence it has got to be rejected. As rightly pointed out by the learned Senior Counsel for the appellant, not only there was lack of evidence, but also there is no evidence for the prosecution at all. Hence at no stretch of imagination, it can be stated that the prosecution has brought home the guilt of the accused, and the judgment of the trial Court cannot but be termed only as erroneous. The impugned judgment has got to be made undone only by upsetting the same. https://hcservices.ecourts.gov.in/hcservices/ 12.In the result, this criminal appeal is allowed setting aside the judgment of the trial Court. The appellant is acquitted of the charge levelled against him. He is directed to be set at liberty forthwith unless his presence is required in connection with any other case. The fine amount if any paid by him, shall be refunded to him Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar nsv To: 1.The Additional District & Sessions Judge FTC No.I, Salem. 2. -do- through The Principle Sessions Judge Salem. 3. The District Collector, Salem. 4. The Director General & Police Mylapore, Chennai. 5. The Superintendent, Central Prison Salem. 6.The Inspector of Police Kolathur Police Station, Salem District Crime No.306/2008 7.The Public Prosecutor, High Court, Madras. + 1cc to Mr. T.I. Ramanathan, Advocate SR.67703 CRL.A.No.387 of 2010 JRG(CO) EU 23.09.2010. https://hcservices.ecourts.gov.in/hcservices/