Bail Slip The Appellants/Accused No.1 and 2 namely, Ramamurthy S/o Munisamy and Deepa H/o Jayabalan were directed to be released on bail as per the order dated 24.4.2007 made in MP.No.1/07 in Crl.Appeal No.338/07. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16-7-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.No.338 of 2007 and M.P.No.1 of 2009 1.Ramamurthy 2.Deepa .. Appellants/Accused vs State: represented by The Inspector of Police Pallikondan Vellore District .. Respondent/Complainant Criminal appeal preferred under Sec.374 of the Code of Criminal Procedure against the judgment of the Principal Sessions Judge, Vellore, made in S.C.No.415 of 2005 dated 12.3.2007. For Appellants : Mr.R.Sankarasubbu For Respondent : Mr.N.R.Elango Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Sessions Division, Vellore, in S.C.No.415 of 2005 whereby the appellants two in number stood charged under Sections 120-B, 302 and 201 of IPC, and on trial, they were found guilty and awarded life sentence under Sec.302 IPC, 1 year Rigorous Imprisonment under Sec.120(B) IPC and 2 years Rigorous Imprisonment under Sec.201 IPC. https://hcservices.ecourts.gov.in/hcservices/ 2.The short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is the brother of the deceased Jayapal. P.W.2 is the mother. A-2 is the wife of the deceased. A-1 was residing in the opposite house. They were all residents of Moolaigate, Pudur, within the jurisdiction of the respondent police. A-2 was often visiting A-1 in his house. It was being questioned by the deceased. A-2 felt her husband the deceased as a hurdle in developing friendship with A-1. P.W.5 heard when A-1 and A-2 were hatching up a conspiracy. Immediately, he also informed the same to the deceased. Pursuant to a conspiracy made, they caused the death of the deceased, took the dead body and buried at a place in a lake on 6.11.2004. (b) For a few days, A-2 did not cook, and hence P.W.2 the mother, placed the prepared food in the house of her son, the deceased. On the date of occurrence namely 6.11.2004, the deceased was not found in the house. P.W.2 questioned about the same. A-2 did not give a proper answer, but gave evasive answer. P.W.2 in turn informed to P.W.1. They made a search for a few days, and then finally P.W.1 lodged a complaint, Ex.P1, before P.W.12, the Inspector of Police, attached to the respondent Police Station on 8.11.2004 at about 6.00 P.M. On the strength of the said complaint, a case came to be registered in Crime No.439 of 2004 for man missing. The printed FIR, Ex.P25, was despatched to the Court. (c) While the matter stood thus, on 9.11.2004, when P.W.3, the Village Administrative Officer (VAO), was with his Assistant in his office, A-2 appeared and gave a confession as to the crime. The same was recorded by P.W.3. The said confession is marked as Ex.P2. Along with Ex.P3, the report, she was produced by the VAO before the respondent police. Thereafter, the case was altered to Sections 302, 201 and 120(b) IPC, and Ex.P26, the express report, was sent to the Court. The Police Officer caused arrest and enquired her. She came forward to give a confessional statement, and the admissible part is marked as Ex.P27. (d) The Investigator proceeded to the scene of occurrence, made an inspection and prepared an observation mahazar, Ex.P4, and also a rough sketch, Ex.P28. Following the same, A-2 produced M.O.8, saree, M.O.9, jacket and also M.O.6, a part of the cotton bed, and all were recovered under a cover of mahazar in the presence of P.W.6, the VAO. Thereafter, she also took the police party and identified the place where the dead body was buried. Immediately a requisition, Ex.P29, was given to P.W.7, the Tahsildar, who came to the place, and in his presence, the dead body was exhumed. On exhumation of the dead body and also on preparation of the observation mahazar and sketch, an inquest was conducted on the dead body in the presence of witnesses and panchayatdars. The inquest report is Ex.P15. Then, she was sent for judicial remand. (e) Thereafter the dead body was subjected to postmortem by P.W.11, the Doctor, attached to the Government Hospital, Vellore. The Doctor has issued a postmortem certificate, Ex.P24, with his opinion that the deceased would appear to have died of hypo volumic https://hcservices.ecourts.gov.in/hcservices/ shock due to right sided neck great vessels caused by the multiple cut injuries sustained about 3 to 5 days prior to autopsy. (f) Pending investigation, the Investigator came to know that on 10.11.2004, A-1 surrendered before the Metropolitan Magistrate, Egmore, Madras. He was taken to police custody on application. Then A-1 came forward to give a confessional statement. The admissible part is Ex.P11. He also produced M.O.10, crowbar, M.O.12, knife, M.O.13, full arm shirt, and M.O.14, pant, which were all recovered under a cover of mahazar. He was sent for judicial remand. All the material objects were subjected to chemical analysis which brought forth two reports namely Ex.P19, toxicology report, and Ex.P20, serologist's report. On completion of investigation, the Investigator filed the final report. 3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 12 witnesses and also relied on 30 exhibits and 15 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which they flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt and hence found the appellants guilty and awarded punishment referred to above. Hence this appeal at the instance of the appellants. 4.Advancing arguments on behalf of the appellants, the learned Counsel Mr.R.Sankarasubbu would submit that in the instant case, the prosecution rested its origin on the conspiracy alleged to have been hatched up between A-2 and A-1; that the prosecution came out with the story that A-2 and A-1 had illicit intimacy as if A-1 was the paramour of A-2; but the prosecution failed to prove that story; that if to be so, there was nothing to show that they hatched up a conspiracy; that for the purpose of proving the conspiracy theory, the prosecution adduced evidence through P.W.5; that according to P.W.5, he heard when A-1 and A-2 were talking to each other whereby they hatched up a conspiracy; that the evidence of P.W.5 would clearly indicate that such a thing could not have happened at all; that the prosecution had no more evidence to offer, and thus the conspiracy theory failed. 5.Added further the learned Counsel that as far as A-2 was concerned, the prosecution rested its entire case on the extra- judicial confession alleged to have been given by A-2 to P.W.3, the VAO, on 9.11.2004 at about 6.00 A.M.; that the prosecution added further certain material objects which were recovered from A-2 pursuant to the alleged confessional statement given to the police officer; that the trial Court should have rejected both pieces of evidence for the simple reason that as far as the extra-judicial confession was concerned, from the evidence of P.Ws.1 and 2 it would be quite clear that A-2 was actually kept in the police station on 6th, 7th and 8th of November, 2004; that if to be so, that cannot but be an illegal custody; that only in the next morning, https://hcservices.ecourts.gov.in/hcservices/ according to the prosecution that was on 9.11.2004, A-2 came forward to give a confessional statement to the VAO; that it would be clearly indicative of the fact that A-2 was actually kept under police custody for a period of three days illegally, and thus, it would certainly lead to the irresistible conclusion that such an extra-judicial confession as found under Ex.P2, could have been extracted by procuring the service of P.W.3, the VAO, and thus the extra-judicial confession should not be relied upon and it should have been rejected. 6.Taking the Court to the questioning of A-2 under Sec.313 of Cr.P.C., the learned Counsel would point out that she has given a statement to the effect that she was in police custody on 9th November, 2004 also, and hence the alleged extra-judicial confession should not be given any evidentiary value; that all the recoveries have taken place pursuant to the confessional statement, and hence the recovery would also go. 7.The learned Counsel would further add that A-2 has actually taken the police officer and identified the place where the dead body was buried; that even the witness has spoken to the fact that the place where the dead body was actually buried was already known to the entire villagers and this is spoken to by P.W.4; that under the circumstances, it was not a new fact which was brought to the notice of the police by A-2, and hence it cannot be taken as a relevant fact which has come out of the confessional statement and was useful to the prosecution, and under the circumstances, the prosecution has miserably failed to prove its case. 8.The learned Counsel would further add that as far as A-1 was concerned, he actually surrendered before the Metropolitan Magistrate Court, Egmore; that he was taken on police custody; that the story that he was taken to police custody, and he came forward to give a confessional statement and all the material objects were recovered from him was nothing but a cooked up one; and that except the recovery of these material objects, the prosecution had no evidence as against A-1. 9.The learned Counsel would further contend that even assuming that there was a confessional statement given by A-2 as to the involvement of A-1, the same itself will not suffice; that it must be assured of lending support of some other pieces of evidence; that in the instant case, nothing is available; that as far as A-1 was concerned, the prosecution has not only lacked evidence, but also there was bereft of evidence; and that under the circumstances, they are entitled for acquittal, 10.The Court heard the learned Additional Public Prosecutor on the above contentions. https://hcservices.ecourts.gov.in/hcservices/ 11.It is not in controversy that the dead body of Jayapal the husband of A-2, was exhumed, and after the preparation of Ex.P15, the inquest report, by the Tahsildar, P.W.7, the dead body was subjected to postmortem by P.W.11, the Doctor, who has given his opinion that the deceased would appear to have died of multiple injuries sustained on the right neck vessel 3 to 5 days prior to autopsy. The fact that Jayapal died out of homicidal violence was never disputed by the appellants, and hence no impediment was felt by the trial Court in recording so and rightly too. 12.In order to substantiate that both the accused joined together and caused the death of the husband of A-2, pursuant to a conspiracy hatched up, since A-2 and her paramour A-1 found him as a hurdle in their illicit intimacy, and in order to screen the evidence, they buried the dead body in a lake, the prosecution though examined 12 witnesses, no one was an eyewitness either as to the occurrence of murder or as to the screening of evidence. Though the prosecution examined P.W.5 to the fact that he heard when A-1 and A-2 were talking to each other when they decided to finish him off, the evidence of P.W.5 stating that he saw both the accused walking together and talking to each other cannot be sufficient to indicate that they had any plan to cause the death of the deceased. What are all stated by P.W.5 was that he found both of them talking on the roadside, and then he complained to the deceased about the same. This piece of evidence cannot be taken as a direct evidence as to conspiracy. It is settled position of law that in a given case though not direct evidence is available to prove the conspiracy, it can also be inferred from the proved circumstances from which such a conspiracy could be proved. In the instant case, on scrutiny of the materials, this Court is of the considered opinion that neither direct evidence nor circumstance indicative of or from which conspiracy could be inferred was placed or proved. 13.As far as the other part of the case namely A-1 and A-2 have committed the murder of the husband of A-2 and buried the dead body, the prosecution had no direct evidence to offer, and it rested on two pieces of evidence namely extra-judicial confession given by A-2 wherein she has admitted the crime of murder and also the screening of evidence and the involvement of A-1, and the recovery of material objects. Before accepting the extra-judicial confession, the Court has to apply two tests firstly when and under what circumstance the said extra-judicial confession was given by the accused and secondly whether the evidence of the person to whom the extra-judicial confession was made inspired the confidence of the Court. If these tests are applied, this Court is afraid whether it could act on the extra-judicial confession alleged to have been given by A-2 to P.W.3, the Village Administrative Officer (VAO). From the evidence of P.W.3, it would be quite clear that he was the VAO of the very same place. Admittedly, Ex.P1 complaint was given by P.W.1 to P.W.12, the Inspector of Police, stating that Jayapal was found missing for a few days. A case came to be registered in Crime No.439 of 2004 for man missing at about 6.00 https://hcservices.ecourts.gov.in/hcservices/ P.M. on 8.11.2004. It is candidly admitted by P.Ws.1 and 2 that when they went to the police station, A-2 also accompanied them. P.W.3, VAO has stated that when he was in his office at about 6.00 A.M. on 9.11.2004, A-2 came and gave a confessional statement, and he recorded the same as found in Ex.P2., and along with the report Ex.P3, he produced her before the police. When it was admitted by the witnesses and in particular P.W.2 that A-2 accompanied P.Ws.1 and 2 to the police station on 6.11.2004 and 7.11.2004 and in particular on 8.11.2004, it is highly doubtful even after three days why she should go to the VAO to give such a statement. Thus, it would be quite clear that when she was in the police station, such a statement as found in Ex.P2 could have been prepared with the help of the VAO who belonged to the same place. When P.W.3 claimed that A-2 came to his office and made a confession as to the commission of the crime, he did not even make an attempt to go to the place of occurrence and verify the truth of such statement, but mechanically recorded the same. Had he done so, it could lend some assurance to the said extra-judicial confession. So long there is evidence to indicate that A-2 was in the police station for nearly three days and the extra-judicial confession alleged to have been given has also followed the same on the fourth day morning, it would be quite clear that the extra-judicial confession statement cannot but be one created, and for that purpose the service of P.W.3 was procured by the police. When this extra-judicial confession became shaky and doubtful, the recovery of the material objects cannot constitute any evidence. 14.Now, the learned Additional Public Prosecutor brought to the notice of the Court that the place of burial of the husband of A-2 was actually pointed out by A-2 pursuant to which the dead body was exhumed, and inquest was conducted by P.W.7, the Tahsildar. Contrarily it is found that all the villagers were actually at the place where the dead body was buried, even before the police personnel went to the spot along with the accused. Thus the place where the dead body was buried was already known to the villagers, and there was nothing further to identify by A-2. 15.As far as A-1 was concerned, what was all available in the case was the extra-judicial confession alleged to have been given by A-2, wherein the involvement of A-1 was spoken. Needless to say that the confessional statement of one accused cannot ordinarily be relied upon except when there are other materials to lend assurance as to the involvement of the other offender. In the instant case, on arrest of A-1, it is stated that he gave a confessional statement and the weapon of crime was recovered. But all were subjected to chemical analysis, and the test was with a result inconclusive. Thus, the prosecution which could not place any direct evidence, placed the above circumstances which lacked evidentiary value. In the considered opinion of this Court, it would he highly unsafe to sustain a conviction, and hence the judgment of the trial Court has got to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 16.Accordingly, this criminal appeal is allowed setting aside the judgment of the trial Court. The appellants are acquitted of the charges levelled against them. The bail bonds executed by them shall stand terminated. In view of the judgment above, M.P.No.1 of 2009 does not require consideration, and accordingly, it is closed. nsv Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To: 1.The Principal Sessions Judge Vellore 2.The Inspector of Police Pallikondan Vellore District 3.The Public Prosecutor High Court, Madras. 4.The Superintendent, Central Prison, Vellore. 5.The Superintendent, Central Prison (Women) Vellore. 6.The Judicial Magistrate No.V, Vellore. 7.Do Through The Chief Judicial Magistrate, Vellore. 8.The Section Officer, Criminal Section, High Court, Madras. CRL.A.No.338 of 2007 RSI(CO) SR/28.7.2009 https://hcservices.ecourts.gov.in/hcservices/