Bail Slip The Appellant/Accused was directed to be released on bail vide order of this court dated 13.8.2007 and made in Crl.M.P.No.1/2007 Crl.A.No.652/2007. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.07.2008 CORAM THE HONOURABLE MR. JUSTICE P.D.DINAKARAN and THE HONOURABLE MR. JUSTICE K.N.BASHA Criminal Appeal No.652 of 2007 Madesh ... Appellant/Accused vs State rep. by Inspector of Police, Magudanchavady Police Station, Salem District. ... Respondent/Complainant (Cr.No.32/2003) Prayer:- Appeal against the judgment passed in S.C.No.269 of 2004 on the file of the learned Principal Sessions Judge, Salem, dated 01.02.2005. For Appellant : Mrs.Jayasri Baskar For Respondent : Mr.N.R.Elango, Addl. Public Prosecutor. J U D G M E N T (Judgment of the Court was delivered by K.N.BASHA,J.) The sole accused-Madesh has come forward with this appeal challenging the judgment of the learned Principal Sessions Judge, Salem, dated 01.02.2005 made in S.C.No.269 of 2004 convicting the appellant for the offence under Section 302 I.P.C. and sentencing him to life imprisonment and also to pay a fine of Rs.1,000/-, in default, to undergo six months rigorous imprisonment and also convicting him for the offence under Section 201 IPC. and sentencing him to three years rigorous imprisonment and to pay a https://hcservices.ecourts.gov.in/hcservices/ fine of Rs.1,000/-, in default, to undergo six months rigorous imprisonment. The sentences are ordered to run concurrently. 2. The prosecution version in a nutshell is as follows:- (a) P.W.1 is the wife of the deceased. P.W.2 is the brother of the deceased. P.W.1 along with her husband, the deceased, were residing at Meyyanur Arasamarathukkattu Village. They got married 15 years prior to the occurrence. Three children were born out of their wedlock, viz., two daughters and one son. P.W.2 is also residing in the same Village. P.W.1 along with her husband, the deceased, Velu @ Velusamy, were working in the factory of P.W.4. The accused is also residing in the same Village and he is known to the deceased and P.W.1. Both P.W.1 and the deceased used to go to the factory of P.W.4 for their work through the house of the accused. As a result, the deceased developed illicit intimacy with the wife of the accused, P.W.8. The accused came to the house of the deceased and stated to P.W.1 about the illicit intimacy of her husband with his wife and threatened the deceased with dire consequences. The accused also complained about the deceased to P.W.2 and his mother and asked them to control the deceased otherwise he would kill him. As the accused suspected illicit intimacy of the deceased with his wife, P.W.8, there were frequent quarrels between the accused and his wife, P.W.8 and as a result, P.W.8 left for her parental house. (b) On 25.12.2002, P.W.1 and the deceased, as usual, left for their work to the factory of P.W.4. P.W.1 alone returned to her house at 6.00 p.m. after finishing her work. The deceased informed P.W.1 that he would come later. But thereafter, the deceased has not returned to the house and hence, P.W.1 informed the brother of the deceased, P.W.2, about the missing of the deceased. Thereafter, P.W.1 along with P.W.2 searched for the deceased in their relatives houses, but the whereabouts of the deceased were not known. 15 days thereafter, P.W.1 heard through the villagers that a body was found near the house of the accused. P.W.1 went to that place along with P.W.2, where they found a body and a blue and black colour striped lungi near the house of the accused. P.W.1 identified the said lungi as that was worn by the deceased while he went to the work. P.W.1 suspected that only the accused could have murdered the deceased. Thereafter, she went to Magudanchavadi Police Station along with P.W.2. (c) P.W.12, the Inspector of Police, Magudanchavadi Police Station, recorded the statement of P.W.1 on 12.01.2003 at 10.00 p.m. under Ex.P-1. He registered a case in Crime No.32 of 2003 under Section 174 of the Cr.P.C. Ex.P-22 is the express First Information Report and he has sent the same to the higher police officials and to the Magistrate. He has sent a requisition to the Tahsildar, Sangagiri. https://hcservices.ecourts.gov.in/hcservices/ (d) P.W.11, the Tahsildar, Sangagiri, received the message from the police station at 12.30 mid night on 12/13.01.2003. Thereafter, he went to the scene of occurrence. The body was exhumed in the presence of P.W.11, Tahsildar. P.W.11 sent a letter, Ex.P-21, to the Government Mohankumaramangalam Medical College Hospital, Salem. (e) P.W.12 took up investigation and went to the scene of occurrence on 13.01.2003. He prepared an observation mahazar, Ex.P-4 and drew a rough sketch, Ex.P-23, in the presence of the Village Administrative Officer, P.W.7 and another. He has made arrangements to take photographs of the scene of occurrence. Thereafter, he recovered a skull, at a distance of 350 feet away from the place, where the body was recovered, under Ex.P-5 mahazar and held inquest. Ex.P-24 is the inquest report. About 500 feet away from the place where the skull was recovered, he found pieces of bones and held inquest in the presence of witnesses. Ex.P-25 is the inquest report. He examined the witnesses, P.Ws.1, 2 and others and recorded their statements. (f) The Doctor, P.W.10, attached to Government Mohan Kumaramangalam Medical College Hospital, Salem, as per the requisition of the Tahsildar, P.W.11, went to the scene of occurrence and he was present at the time of collecting the bone pieces and skull. The report, Ex.P-16, discloses that there is no poison detected in view of the decomposed position of the bones. The doctor, P.W.10, has given his final opinion under Ex.P-17 to the following effect:- "No definite opinion possible regarding the cause of death, due to skeletonization and Chemical Examiners report being negative." (g) On 14.01.2003, while P.W.7, the Village Administrative Officer, was in his Office along with his Assistant, the accused appeared before him at 8.00 a.m. and stated that he had killed the deceased. P.W.7 recorded the extra-judicial confession given by the accused under Ex.P-6. He also prepared his report, Ex.P-7. Thereafter, P.W.7 took the accused along with Exs.P-6 and P-7 to Magudanchavadi Police Station and produced him before P.W.12, the Inspector of Police, who on receipt of Exs.P-6 and P-7, altered the offence from Section 174 Cr.P.C. to one under Section 302 IPC. Ex.P-26 is the altered First Information Report. In pursuance of the admissible portion of the confession statement given by the accused, under Ex.P-8, P.W.12 recovered M.O.1, a blue colour lungi, M.O.2, an underwear, M.O.3, pieces of a shirt, M.O.4, an iron key, M.O.5, a match box and M.O.6, a beedi in the presence of the Village Administrative Officer and another. Thereafter, the accused produced a crowbar, M.O.7 and a spade M.O.8, from his house, which were recovered under a mahazar in the presence of the https://hcservices.ecourts.gov.in/hcservices/ same witnesses. He has sent the material objects and skull and bone pieces for chemical examination through the Court. (h) P.W.12, in continuation of his investigation, made arrangements for recording the statements of P.Ws.1, 2 and 8 under Section 164 Cr.P.C. by the Magistrate. After completion of investigation, he filed the charge sheet against the accused on 19.11.2003. 3. The prosecution, in order to bring home the charges against the accused, examined P.Ws.1 to 12, marked Exs.P-1 to P-30 and M.Os.1 to 11. 4. When the accused was questioned under Section 313 of the Code of Criminal Procedure in respect of the incriminating circumstances appearing against him, the accused has come forward with a version of total denial. He has not chosen to examine any witnesses or mark any documents on his side. 4. Mrs.Jayasri Baskar, learned counsel appearing for the appellant, contended vehemently that the prosecution has miserably failed to prove its case by adducing clear and convincing evidence. It is contended that the entire prosecution case rests on the circumstantial evidence and the prosecution has not put forward any clinching circumstances implicating the accused with the crime and there are several missing links in the chain of circumstances put forward by the prosecution. It is submitted that the last seen theory was spoken by P.W.1, the wife of the deceased, to the effect that she along with her husband, the deceased, went to the factory of P.W.4 for their work and she alone returned back to her house, as the deceased informed her that he would return after finishing his work. It is submitted that strangely, P.W.1, the wife of the deceased, kept quiet for more than two weeks and the report, Ex.P-1, was given only on 12.01.2003 at 10.00 p.m. It is contended that there is absolutely no materials available on record to show that the deceased was lastly seen with the accused. It is further contended that the only piece of circumstance relied on by the prosecution is the alleged extra-judicial confession, Ex.P-6, said to have been given by the accused to P.W.7, the Village Administrative Officer. It is contended that it is improbable for the accused to repose confidence on P.W.7, the Village Administrative Officer, to give such an extra-judicial confession, Ex.P-6, as he was not having any close acquaintance with P.W.7. The learned counsel pointed out that P.W.1 stated even in the Chief-examination that she gave the report on 12.01.2003 and on the next day, i.e., on 13.01.2003 afternoon, the police along with the Tahsildar, P.W.11 and the Village Administrative Officer, P.W.7, came to the place, where the skull was found and at that time, the police also brought the accused to the spot. Therefore, it is contended that the version of P.W.7, the Village Administrative Officer, to the effect that https://hcservices.ecourts.gov.in/hcservices/ the accused appeared before him on 14.01.2003 at 8.00 a.m. and thereafter, he recorded the extra-judicial confession, Ex.P-6, and produced the accused along with the extra-judicial confession, Ex.P-6, to the police is proved to be false. It is submitted that as per the version of P.W.1, the accused was in the custody of the police even before the extra-judicial confession, Ex.P-6, is said to have been recorded by P.W.7, the Village Administrative Officer. It is also contended that excluding the extra-judicial confession, Ex.P-6, there is no other incriminating circumstance available on record to implicate the accused with the crime. The learned counsel would contend that the skull or the bones are not proved to be that of the deceased. The learned counsel would also contend that P.W.1, has not stated, in the statement recorded under Section 164 Cr.P.C., that after seeing the clothes, viz., the lungi, the underwear and the shirt, she has identified the body of the deceased as that of her husband. It is pointed out that even in the report, Ex.P-1, P.W.1 has not stated that after seeing the clothes, viz., lungi and underwear, she has confirmed that the body was that of her husband. 5. We have heard Mr.N.R.Elango, learned Additional Public Prosecutor, on the submissions made by the learned counsel for the appellant. 6. We have given our careful and anxious consideration to the rival contentions put forward by either side and also thoroughly scrutinised the entire materials available on record and perused the impugned judgment of conviction. 7. The entire prosecution case rests on the circumstantial evidence. It is well settled by catena of decisions of the Honourable Apex Court that circumstances, from which the conclusion of guilt is to be drawn, should be fully proved and the circumstances must be conclusive in nature to connect the accused with the crime. 8. In the light of the above stated settled principle of law regarding the circumstantial evidence, let us now scrutinise the circumstances put forward by the prosecution. The prosecution placed reliance on the following circumstances:- i.The motive put forward by the prosecution to the effect that the deceased was having illicit intimacy with the wife of the accused. ii.The last seen theory spoken to by P.W.1, the wife of the deceased and P.W.4, the employer of P.W.1 and the deceased. iii.The extra-judicial confession, Ex.P-6, said to have been recorded by P.W.7, the Village Administrative Officer. iv.The recovery of skull and pieces of bones near the house of the https://hcservices.ecourts.gov.in/hcservices/ accused and the recovery of clothes of the deceased, viz., M.Os.1, 2 and 3 at the instance of the accused. 9. As far as the 1st circumstance, viz., the motive put forward by the prosecution is concerned, we are having the evidence of P.Ws.1, 2 and 3. It is seen that P.W.1, the wife of the deceased, as well as P.W.2, the brother of the deceased, have categorically stated that the accused informed them about the illicit intimacy of the deceased with his wife, P.W.8 and threatened the deceased with dire consequences. P.W.3, in his evidence, has stated that the accused informed him that the deceased was having illicit intimacy with his wife and he has warned his brother, P.W.2. P.W.8, the wife of the accused, stated, in her evidence, to the effect that there were frequent quarrels between herself and the accused and as a result, she left her matrimonial house and went to her parental house. P.W.8 emphatically denied any illicit intimacy with the deceased. From the evidence of P.Ws.1, 2 and 3, we are able to see that there were strained relationship between the accused and the deceased, but that motive itself is not sufficient to implicate the accused with the crime without any other incriminating circumstances put forward by the prosecution. The Honourable Apex Court has held in Mohd. Zahid -vs- State of Tamil Nadu reported in (1999) 6 Supreme Court Cases Page 120 that motive, being a double edged weapon, could cut both ways, by helping or harming both the prosecution and the defence. 10. The next circumstance put forward by the prosecution is the last seen theory said to have been spoken to by P.W.1, the wife of the deceased and P.W.4, the employer of the deceased. It is the version of P.W.1 that she along with her husband, the deceased, went to the factory of P.W.4 for their work and she alone returned back to the house at 6.00 p.m., as the deceased informed her that he would come after finishing his work. But thereafter, the deceased did not return back to the house. Hence, P.W.1 went and inquired P.W.4, the employer of P.W.1 and the deceased, who informed her that the deceased left the factory at 7.00 p.m. after receiving Rs.50/- and he has not come to the job thereafter. P.W.1, therefore, went and told the brother of the deceased, P.W.2 and both of them searched for the deceased, but they were not able to trace the deceased. It is pertinent to be noted that admittedly there are no materials available on record to show that the deceased was lastly seen in the Company of the accused. Therefore, we are of the considered view that the evidence of P.Ws.1, 2 and 4 are not at all helpful to advance the case of the prosecution to implicate the accused in any manner with the crime. 11. The prosecution heavily placed reliance on yet another circumstance, viz., the alleged extra-judicial confession, Ex.P-6, https://hcservices.ecourts.gov.in/hcservices/ said to have been given by the accused to the Village Administrative Officer, P.W.7. P.W.7 has not stated that he knew the accused earlier. It is highly improbable for the accused to repose confidence on P.W.7, the Village Administrative Officer, to give such an extra-judicial confession, Ex.P-6, as P.W.7 is a total stranger to the accused. The Honourable Apex Court in Sunny Kapoor -vs- State (UT of Chandigarh) reported in 2006(10) Supreme Court Cases 182 has held that it was wholly unlikely that the accused would make extra judicial confession to a person whom they never knew. Therefore, the evidence of P.W.7 to the effect of recording the extra-judicial confession, Ex.P-6, from the accused is liable to be rejected on this sole ground. 12. The yet another infirmity found in respect of recording the extra-judicial confession, Ex.P-6, is the version of P.W.1. Even in the Chief-examination, she has deposed to the effect that she has given the report, Ex.P-1, to P.W.12, on 12.01.2003 and on the next day, i.e., on 13.01.2003, the police came to the place, where the skull was found, along with the accused and Tahsildar, P.W.11 and the Village Administrative Officer, P.W.7 and as such, the alleged version of the prosecution to the effect that the accused made an extra-judicial confession on 14.01.2003 to the Village Administrative Officer, P.W.7 and thereafter, P.W.7 produced the accused before the police and the accused was arrested, falls into ground. The version of P.W.1 is further corroborated by P.W.2 to the effect that P.W.2 has stated, in his Chief-examination, that the police brought the accused on the next day after receiving the report, Ex.P-1, from P.W.1, to the spot where the skull was found. It is pertinent to be noted that the above said version of P.Ws.1 and 2 in their Chief-examination was not clarified by the prosecution by any re-examination. We have no reason to brush aside such a categorical version of P.Ws.1 and 2 in their Chief-examination. Therefore, it is crystal clear that the accused was already in the police custody even before the alleged extra-judicial confession, Ex.P-6, said to have been made on 14.01.2003 to P.W.7, the Village Administrative Officer. In view of the above said reasons, we have no hesitation to reject the prosecution version regarding the recording of Ex.P-6, the alleged extra-judicial confession, from the accused. 13. The last circumstance relied on by the prosecution is the alleged recovery of skull and bone pieces near the house of the accused and the recovery of the clothes said to have been worn by the deceased at the instance of the accused. It is pertinent to be noted that the clothes, M.Os.1 to 3 were not identified by P.W.1 properly as that of the deceased. In Ex.P-1, report, P.W.1 has not stated that he has identified the body of the deceased, on seeing the above said clothes, M.Os.1 to 3. P.W.1 also not stated during her examination under Section 164 of the Cr.P.C. before the Judicial Magistrate that she has confirmed the https://hcservices.ecourts.gov.in/hcservices/ bones and skull were that of the deceased after seeing the clothes, M.Os.1 to 3. P.W.1 also admitted in her cross- examination that along with the skull, the lungi was seen. Therefore, it cannot be stated that the lungi and other clothes were recovered only at the instance of the accused. It is relevant to note, as already pointed out, that the pieces of the bones could not have been identified by the police at the instance of the accused as it is the version of P.Ws.1 and 2 that the skull was found even before the report, Ex.P-1, was given to the police. Further, the prosecution has not proved that the skull and the bones were that of the deceased. Therefore, we are of the considered view that the prosecution cannot place any reliance on the alleged recoveries of skull, bone pieces and clothes, M.Os.1 to 3 to implicate the accused with the alleged crime. 14. Therefore, in view of the above said reasons, the entire prosecution case suffers from serious infirmities and inherent improbabilities. The prosecution miserably failed to put forward any incriminating circumstance by completing the chain of circumstances unerringly pointing to the guilt of the accused and as such, the conviction and sentence imposed on the appellant are unsustainable. 15. For the aforesaid reasons, the conviction and sentence imposed upon the accused by the learned Principal Sessions Judge, Salem, in S.C.No. 269 of 2004 are set aside. The criminal appeal is allowed. It is stated that the accused/appellant is on bail. Hence, the bail bonds executed by the appellant/accused shall stand cancelled and the fine amount, if paid, shall be refunded. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar bs/ https://hcservices.ecourts.gov.in/hcservices/ To 1.The Judicial Magistrate No.2, Sankari. 2.-do- through the Chief Judicial Magistrate, Salem. 3.The Principal Sessions Judge, Salem. 4.The Inspector of Police, Magudanchavady Police Station, Salem. 5.The Superintendent, Central Prison, Coimbatore. 6.The District Collector, Madras. 7.The Director General of Police, Madras. 8.The Public Prosecutor, High Court, Madras. Copy to The Section Officer, Criminal Section, High Court of Madras, Madras. +1cc to Mr.Jaya Sri Baskar, Advocate Sr 38195 SSV (CO) km/31.7. Crl.A.No.652 of 2007 https://hcservices.ecourts.gov.in/hcservices/