Bail Slip The Appellant herein/Accused viz. Rani @ Unnamalai-A1 the petitioner in MP 1/2008 in CA 540/2008, Markas (A2) Petitioner in Crl.A.NO.113/2009 (Accused in S.C.No.81/2006 dated 27.5.2008, on the file of the Additional District & Sessions Judge, Fast Track Court No.1,Chenglepet) were directed to be released on bail as per order of this Court dt.4.8.2008 and 11.3.2009 respectively and made in Crl.M.P.1/2008 in Crl.A.NO.540/2008 and Crl.M.P.No.1/2009 in Crl.A.113/2009 respectively. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.06.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN Criminal Appeal Nos.540 of 2008 and 113 of 2009 Rani @ Unnamalai .. Appellant/Accused No.1 in C.A.No.540 of 2008 Markas .. Appellant/Accused No.2 in C.A.No.113 of 2009 Vs. State represented by Inspector of Police, Peerkan Karanai Police Station, Chenglepet District. (Crime No.315/2004) .. Respondent in both the appeals. These criminal appeals have been preferred under Section 374(2) Cr.P.C. against the judgment of conviction and sentence passed by the learned Additional District & Sessions Judge, (Fast Track Court No.1), Chenglepet made in S.C.No.81 of 2006, dated 27.05.2008. For Appellants : Mr.Ashok Kumar, Senior Counsel for Mr.Sasidharan in C.A.No.540 of 2008 For Respondent : Mr.N.R.Elango, APP COMMON JUDGMENT (The judgment of the Court was delivered by M.CHOCKALINGAM, J.) These two appeals have been filed by the first and second https://hcservices.ecourts.gov.in/hcservices/ accused challenging the judgment of the Additional Sessions Division, Fast Track Court No.1, Chenglepet, whereby, on trial, A1 was found guilty under section 302 r/w 34 and 201 I.P.C. and awarded life imprisonment and 7 years rigorous imprisonment respectively along with fine and default sentences and A2 was found guilty under section 201 r/w 34 I.P.C. and awarded 7 years rigorous imprisonment along with fine and default sentence. 2. The short facts necessary for the disposal of these appeals can be stated as follows: (a) A1 is the wife of the deceased Shankar. A1 developed illicit intimacy with A2. When it came to the knowledge of the deceased., he not only warned her but also began to quarrel and beat her. Hence, A1 and A2 desired to finish him off. On the date of occurrence i.e., on 15.4.2003 at 11.30 hours when both A1 and the deceased were in the house, they were quarrelling. On seeing the deceased beating A1, A2 beat the deceased on different parts of the body. A1 took her husband inside the house and A2 left the place. After sometime, when A2 came there, A1 informed him that she has caused the death of her husband by strangulation. Immediately, A1 and A2 took the body of the deceased and buried the same nearby the lake bund. (b) On 18.11.2004, when P.W.1-Ward Councillor was in his office, A2 appeared before him and gave a confessional statement. It was also recorded by P.W.1 and P.W.1 took A2 to the Police Station and produced him before P.W.7, Inspector of Police of the concerned circle. P.W.2 registered a case in Crime No.315 of 2004 under Sections 302, 201 r/w 34 I.P.C. and the express F.I.R.-Ex.P9 was despatched to Court. Following the confessional statement made by A2, A1 was arrested. (c) P.W.7, Investigating Officer took up investigation. A1 took the Police Officer and the witnesses to the place of burial and the dead body was exhumed in the presence of Tahsildar, P.W.5 and other witnesses. The investigating officer made an inspection and prepared an observation mahazar Ex.P5 in the presence of witnesses and drew a rough sketch Ex.P10. The dead body was subjected to post mortem. Thereafter, A1 and A2 were sent for judicial remand. (d) P.W.4 doctor who conducted autopsy on the dead body of the deceased has given the post mortem certificate Ex.P.3 wherein he has opined that the deceased would appear to have died due to effects of ligature strangulation. On completion of investigation, the investigating officer filed a final report. (e) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges, the prosecution examined 7 witnesses and relied on 13 exhibits and 7 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 and they denied them as false. D.W.1 Durga was examined https://hcservices.ecourts.gov.in/hcservices/ on the side of the defence. The trial Court heard the arguments advanced on either side and took a view that the prosecution has proved the case beyond reasonable doubt and found A1 guilty under section 302 r/w 34 and 201 I.P.C. and awarded life imprisonment and 7 years rigorous imprisonment respectively along with fine and default sentences and found A2 guilty under section 201 r/w 34 I.P.C. and awarded 7 years rigorous imprisonment along with fine and default sentence. Hence, these appeals at the instance of the appellants. 3. Advancing the arguments on behalf of the appellants, learned senior counsel made the following submissions. (a) The gist of the case of the prosecution is A1 and A2 had illicit intimacy; that this came to the knowledge of the husband of A1 who quarrelled with his wife; that A2 saw A1's husband quarrelling and beating A1; that since he could not tolerate the same, he beat the deceased and left the place; that thereafter, A1 took her husband inside the house; that after some time, she caused the death of her husband; that when A2 came over there, A1 informed A2 that she had murdered her husband by strangulation; that both of them took the deceased and buried near the lake bund and that the occurrence has taken place on 15.11.2004. (b) Learned counsel would further submit that as per the prosecution, on 18.11.2004, A2 suddenly appeared before P.W.1- Ward councillor who is a stranger and gave extra judicial confession as to the occurrence and thereafter, a case came to be registered by the respondent police. Learned counsel would submit that the prosecution had no direct evidence to offer. The evidence available for the prosecution was only the extra judicial confession alleged to have been given by A2 to P.W.1. This extra judicial confession could not be used either against A2 or against A1. The occurrence has taken place on 15.11.2004, at that time, A2 was not present. A2 did not know what actually happened inside the house of A1. (c) The case of the prosecution is that three days after the occurrence i.e., on 18.11.2004, A2 suddenly appeared before P.W.1- ward councillor. It is not the case of the prosecution that A2 already knew the councillor. Thus, he was a stranger to A2. Apart from that, a perusal of the confession statement would clearly indicate that it was only an exculpatory. Even A2 did not have any direct knowledge of the alleged incident i.e., the cause of death of the deceased Shankar. (d) Further, in the instant case, even according to the prosecution, A2 appeared before the councillor-P.W.1 during night hours on 18.11.2004 but the witnesses clearly reveal that the police came to the spot during noon hours and A1 and A2 informed the cause of death of A1's husband to the Police. Thus, the Police knew about the incident even much earlier. The story that A2 went to P.W.1's office and gave extra judicial confession and the same was recorded and a case came to be registered only thereafter, were all concocted for the case of the prosecution. (e) Added further, learned counsel in so far as A2 is concerned, he has not spoken anything about the act of A1. Even https://hcservices.ecourts.gov.in/hcservices/ assuming he has given any statement about the act of A1, it would not bind on A1. Learned counsel would submit that the extra-judicial confession made by an accused pointing to the other accused, cannot be a substantive piece of evidence; that the Court in order to find out whether it lends assurance, should also look into whether other pieces of evidence are available. In the instant case, there is no supportive evidence available. In so far as A1 is concerned, the extra judicial confession alleged to have been given by A2 could not be acted to sustain conviction. Hence, A1 has got to be acquitted. (f) Added further learned counsel, as far as A2 is concerned, the trial Court found him guilty under section 201 r/w 34 I.P.C. and awarded punishment of seven years rigorous imprisonment. This part of the judgment cannot be sustained for the simple reason that the confession statement was alleged to have been made before P.W.1 by A2 during night hours on 18.11.2004, that too, to a stranger. The witnesses came to know about the incident and as to the involvement of A1 and A2 in the crime at the noon hours of 18.11.2004. Thus, the extra judicial confession which came into existence was only a cooked up affair and it cannot be given any evidentiary value even to apply against A2. Under such circumstances, A2 is also entitled for acquittal. 4. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 5. It is not in controversy that the dead body of one Shankar was exhumed and examined in the presence of P.W.5-Tahsildar and other witnesses and following the inquest made, the dead body was subjected to postmortem. P.W.4 doctor who conducted post mortem has given his opinion through post mortem certificate Ex.P3 that the deceased would appear to have died due to effects of ligature strangulation. This was never disputed by the appellant either before this Court or before the trial Court. Hence, it could be safely recorded that the deceased Shankar died out of homicidal violence. 6. The charges levelled against these appellants before the Trial Court was that A1 caused the death of her husband and A1 and A2 joined together and buried the dead body and that they have not only committed the crime of murder but also screened the offence. It is seen from the evidence of P.Ws 2 and 3, A1 developed illicit intimacy with A2 and when it came to the knowledge of her husband/deceased Shankar, he scolded her and beat her. On the date of occurrence i.e., on 15.11.2004, A2 beat the husband of A1 for torturing his wife and A1 caused the death of her husband. In order to prove the factual position, the prosecution had no direct evidence to offer but only the extra judicial confession alleged to have been given by A2 to P.W.1-Ward councillor. Before adverting to the factual position, the Court is mindful of the caution made by the Apex Court and the settled principle of law that the confession of a co-accused is not substantive evidence against other co-accused person in the same trial. In any event, no evidentiary value could be attached. https://hcservices.ecourts.gov.in/hcservices/ 7. Even as per the prosecution case, A2 had no role to play in the alleged offence and it was only A1 who informed him that she caused the death of her husband. A2 has given extra judicial confession, few days after the date of occurrence, to P.W.1-Ward councillor who was a stranger. A perusal of the extra judicial confession would clearly indicate that he has not given any inculpatory statement regarding participation in the murder. The extra judicial confession alleged to have been given by A2 to P.W.1, a stranger will not in any way bind A2 and this is the only piece of evidence available before the trial Court. Barred this evidence, the prosecution has no evidence at all. Under such circumstances, at no stretch of imagination, conviction could be sustained on the said piece of evidence which has no evidentiary value at all. 8. In so far as A2 is concerned, what are all found by the trial Court is screening the evidence. What was available for the prosecution is only the extra judicial confession given by A2 to P.W.1. At this juncture, learned counsel brought to the notice of the Court that from the evidence available, it could be seen that police went to place of occurrence during noon hours on 18.11.2004, earlier before the confession statement given by A2 to P.W.1 but the police have not registered a case at that time. Hence, the extra judicial confession and the alleged arrest are all cooked up story. Under such circumstances, such evidence in the opinion of the Court cannot form basis to sustain the conviction as against A2 and it would be unsafe to sustain the conviction as against A2 on such evidence. The lower court has lost sight of the factual and legal position and has taken an erroneous view and passed the judgement of conviction and sentence which has got to undone only by setting aside the same. 9. Accordingly, these criminal appeals are allowed, setting aside the conviction and sentence imposed on the appellants by the court below. The appellants are acquitted of the charges levelled against them. The bail bonds if any executed by the appellants shall stand terminated and the fine amounts if any paid by them is ordered to be refunded to them. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vsi https://hcservices.ecourts.gov.in/hcservices/ To 1. The Additional District & Sessions Judge, (Fast Track Court No.1), Chenglepet 2.-do- Through The Principal Sessions Judge, Chenglepet. 3. Inspector of Police, Peerkan Karanai Police Station, Chenglepet District. 4.The Public Prosecutor, High Court, Madras. 5.The Judicial Magistrate, Tambaram. 6.-do- Through the Chief Judicial Magistrate, Chengalpattu (for information) 7.The Superintendent, Central Prison, Cuddalore (Crl.A.540/2008) 8.The Superintendent, Central Prison, Puzhal, Chennai (Crl.A.113/2009) 9.The District Collector, Chingleput. 10.The Director General of Police, Madras. Copy to The Section Officer, Criminal Section, High Court,Madras. +1cc to Mr.P.Palaninathan, Advocate Sr 24857 PUR(CO) km/2.7. Crl.A.Nos.540/2008 and 113/2009 https://hcservices.ecourts.gov.in/hcservices/