BAIL SLIP The Appellant / Accused No.5 viz. Panneerselvam, S/o. Kalyanasundaram was directed to be released on bail as per order of this Court dated 4.7.2006 made in M.P.1 of 2006 in Crl.Appeal No.532 of 2006 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20-7-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.Nos.532 and 628 of 2006 Panneerselvam .. Appellant/A-5 in CA 532/2006 1.Seetharaman @ Shiva @ Murugan @ Ranjith Kumar 2.Sivakumar .. Appellant/A-1 and A-4 in CA 628/2006 vs State rep by: Inspector of Police Virudhachalam Police Station Cuddalore District Crime No.92/02 .. Respondent/Complainant in both appeals Criminal appeals preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional District Court (Fast Track Court No.III), Virudhachalam, made in S.C.No.234 of 2003 dated 29.5.2006. For Appellants : Mr.S.Vijayan in CA 532/2006 Mr.K.Gandhi Kumar in CA 628/2006 For Respondent : Mr.N.R.Elango Additional Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern these two appeals in C.A.No.628/2006 by A-1 and A-4 and C.A.No.532/2006 by A-5. These appellants along with other three accused shown as A-2, A-3 and A-6, stood charged, tried and found guilty as follows: ACCUSED CHARGES FINDING PUNISHMENT A-1 to A-6 120(B) IPC -- A-1 & A-2 364 IPC A-1 Guilty A-2 Acquitted 10 years RI with a fine of Rs.1000/- A-1 to A-4 302 IPC A-1 & A-4 Guilty under Sec.302 r/w 34 IPC A-2 & A-3 acquitted Life imprisonment A-1 to A-4 201 IPC A-1 & A-4 guilty under Sec.201 r/w 34 IPC A-2 and A-3 acquitted 3 years RI with a fine of Rs.1000/- A-5 & A-6 302 r/w 109 IPC Acquitted A-1 to A-6 396 IPC -- A-5 was found guilty by the trial Court under Sec.201 r/w 34 of IPC and awarded three years Rigorous Imprisonment along with a fine of Rs.1000/- and default sentence. The trial Court made an order of acquittal of A-2, A-3 and A-6 in respect of all the charges levelled against them. 2.Short facts necessary for the disposal of these appeals can be stated as follows: (a) P.W.1 Abdul Razak was entrusted with M.O.1 ambassador car, bearing registration No.TN-31/C-9169 by P.W.3 who is the owner of the car. P.W.1 in turn employed the deceased Ramesh and was hiring it out. Whenever Ramesh took the car for the purpose of taking the passengers, he used to inform P.W.1 over phone. Accordingly, on 10.2.2002 around 5.00 P.M., Ramesh informed to P.W.1 that he had got a passenger to go to Jayankondam and thereafter to proceed to Chennai and would come back to Vridhachalam on the next day. (b) P.W.5 is the mother and P.W.6 is the father of Ramesh. When P.W.5 was in her house at about 5.30 P.M. on 10.2.2002, Ramesh came to the house to change the dress and told her that he was going to Chennai and would come back only in the next evening. At that time, A-1 who came there stated that it was he who hired the car and asked a cup of water. He further informed that he belonged to https://hcservices.ecourts.gov.in/hcservices/ Udayarpalayam. Since Ramesh did not come for a few days, P.W.1 gave a complaint to Vridhachalam Police Station on 13.2.2002. The same is marked as Ex.P1. On the strength of Ex.P1, P.W.29, the Sub Inspector of Police, attached to the respondent police station, registered a case in Crime No.92/2002 under Sec.365 of IPC. The printed FIR Ex.P21 was despatched to the Court. (c) P.W.29 took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P10, and also a rough sketch, Ex.P22. Then he examined the witnesses and recorded their statements. After doing so, the case was altered to Sec.379 of IPC. The amended FIR, Ex.P23, was despatched to the Court. (d) On receipt of the copy of the FIR, P.W.33, the Inspector of Police of the said Circle, took up further investigation. On 27.9.2002, pending investigation by the Inspector of Police, Ariyalur Police Station, in Crime No.176/2002 under Sections 302 and 379 of IPC, the accused were arrested. They gave confessional statements to the effect that they kidnapped the deceased Ramesh along with the car, murdered him and have stolen the car. The said Inspector of Police, Ariyalur, informed the same to P.W.33, who took up further investigation in this case. On perusal of these materials produced, P.W.33 converted the case in Crime No.92/2002 to Sections 302 and 379 of IPC. The amended FIR, Ex.P26, was despatched to the Court. (e) Continuing with his investigation, P.W.33 gave a requisition to the Chief Judicial Magistrate to conduct identification parade. Accordingly, identification parade was conducted by P.W.27, the Judicial Magistrate, Tittagudi, in which P.Ws.1, 3, 5 and 6 participated. The identification parade proceedings are marked as Ex.P19. (f) The Investigator proceeded to the house of A-1, made an inspection and prepared an observation mahazar marked as Ex.P27, and also a rough sketch Ex.P28. Pursuant to the requisition made by the Investigator, the skull and the skeleton of Ramesh were sent to Forensic Laboratory for analysis. On 23.9.2002, the Investigator arrested A-4 when he came forward to give a confessional statement in the presence of P.W.22, the Village Administrative Officer, and his Assistant. The same was recorded. The admissible part is marked as Ex.P11. Then A-4 took the police party to A-1's house and produced an iron pipe, M.O.6, crowbar, M.O.7, and spade, M.O.8. They were all recovered under a cover of Ex.P12, the mahazar. He was sent for judicial remand. (g) The Investigator has taken A-5 to police custody following the order passed by the Judicial Magistrate, Vridhachalam. A-5 came forward to give a confessional statement voluntarily, and the same was recorded. The admissible part is Ex.P13. Following the same, he produced a TVS 50 motorcycle, M.O.9, from his house. The same was also recovered under a cover of mahazar, Ex.P14. A-5 was also produced before the Court for judicial remand. https://hcservices.ecourts.gov.in/hcservices/ (h) The further investigation was taken up by P.W.34, the Inspector of Police. He took up investigation in Crime No.176/2002 of Ariyalur Police Station and arrested the accused Baskar, A-2, and Sivakumar, A-4. A-2 came forward to give a confessional statement in the presence of witnesses. The same was recorded through video camera. M.O.10 is the video camera, and the video cassette is M.O.11 which was sent to the Judicial Magistrate's Court, Ariyalur. They were sent for judicial remand. (i) Police custody was ordered for A-3. A-3 came forward to give a confessional statement. The same was recorded. Pursuant to the same, he took the police party and identified the place where the dead body of Ramesh was buried. An intimation was given to the Investigator in Crime No.92/2002 and also to the parents of the deceased. A-3 identified the place where the dead body was buried. The observation mahazar and rough sketch were prepared. They are Exs.P30 and P31 respectively. Then the dead body was exhumed in the presence of the Tahsildar, P.W.26. The parents of the deceased and also the other witnesses identified that it was that of the deceased Ramesh. P.W.26 conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P16. A requisition was given to the hospital authorities for the purpose of autopsy. (j) The dead body was subjected to postmortem by P.Ws.24 and 25, the Civil Surgeons, attached to the Government Hospital, Jayankondam. They issued a postmortem certificate, Ex.P15, with their opinion that the deceased would appear to have died of the injuries sustained. (k) Following the same, M.O.2, pant, M.O.3, shirt, and M.O.4, silver waist cord were recovered under a cover of mahazar, Ex.P32. On that day, on suspicion, A-6 was arrested. He came forward to give a confessional statement. The same was recorded under a video cassette M.O.14. The confessional statement of A-5 was also recorded. M.O.1, white ambassador car, was recovered under a cover of Ex.P3, mahazar. Further, the confessional statements of A-1 and A-4 were recorded in the presence of Tahsildar, Ariyalur, under video cassettes, marked as M.Os.15 and 16 respectively. On completion of investigation, the Investigator filed the final report under Sections 364, 302 r/w 34, 302 r/w 109 and 201 of IPC. 3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution marched 34 witnesses and relied on 34 exhibits and 16 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 in respect of A-1, A-4 and A- 5 and hence found them guilty and awarded punishment as referred to https://hcservices.ecourts.gov.in/hcservices/ above. Hence these appeals at the instance of the appellants. 4.Advancing arguments on behalf of A-5, the learned Counsel would submit that according to the prosecution, a TVS 50 motorcycle was used by the accused for disposing of the body of the deceased; that the trial Court also much relied on the recovery of TVS 50 motorcycle from A-5; but, there is no evidence at all indicating that it was used in the commission of the crime; that in fact, A-5 had no knowledge in that regard; that in the absence of such a knowledge established by the prosecution, the conviction is bad in law; that apart from that, the prosecution has failed to prove the identity of the dead body; that there is also no proof that Ramesh was done to death by any of the accused; that it is pertinent to point out that there was no charge framed against A-5 under Sec.201 r/w 34 of IPC; that in the absence of the same, A-5 cannot be found guilty; under the circumstances, the judgment of the trial Court has got to be set aside, and he is entitled for acquittal. 5.The learned Counsel appearing for A-1 and A-4 would submit that the prosecution has not proved its case beyond reasonable doubt; that there is delay in lodging the complaint to the respondent police; that no explanation is forthcoming; that the only possible evidence of P.W.5, the mother of the deceased, was different from chief and cross-examination; that at the time of trial, she has stated in the chief that the person who accompanied her son on 10.2.2002 was not present in Court; that though she has identified A- 1 and A-2 at the time of identification parade, she has deposed before the Court that the person whom she identified at the time of identification parade, was not available in Court; that under the circumstances, the evidence of P.W.5 cannot be accepted at all; that as far as the recovery of M.O.1 car, is concerned, according to the Investigator, it was recovered under Ex.P3 mahazar; that if Ex.P3 is looked into, it would indicate that it is pertaining to recovery of two items and did not include car; that there is no material available to accept the said recovery; that according to the prosecution, M.Os.6 to 8, iron pipe, crowbar and spade respectively, were recovered near the house of A-1 pursuant to the arrest and confession of A-4 on 23.9.2002; that according to the Investigator, A-1 was arrested on 14.9.2002 itself; that in such circumstances, it is highly doubtful whether the recovery of those weapons could have been made as put forth by the prosecution; that as regards A-1, nothing was recovered from him; that according to the prosecution, A- 3 on arrest gave a confessional statement, and following the same, he identified the place where the dead body of Ramesh was buried; that a perusal of the inquest report would indicate that on 13.9.2002 at about 7.30 A.M., one Chinnaian @ Muthusamy gave information to the V.A.O., Pilakurichi that a dead body was buried in the said spot; that it also clearly speaks about the name of the deceased as Ramesh, and he was 22 years old, and he was a car driver; that this would indicate that the place where the dead body was buried came to the knowledge of the police even on 13.9.2002 itself through the VAO, and thus the confessional statement leading to the above recovery cannot be accepted; that the trial Court has erroneously found A-1 and A-4 guilty, and hence they are entitled for acquittal in the hands of https://hcservices.ecourts.gov.in/hcservices/ this Court. 6.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 7.The case of the prosecution as could be seen above was that the appellants shown as A-1, A-4 and A-5 respectively along with the other accused A-2, A-3 and A-6 who were acquitted by the trial Court, hatched up a conspiracy on 7.2.2002, in the house of A-1; that pursuant to the conspiracy, A-1 and A-2 kidnapped the deceased Ramesh from the Taxi Stand at Vridhachalam along with his Car; that in pursuance of the plan, A-1 attacked the deceased with an iron pipe while A-3 and A-4 strangulated him with a towel and caused his death; and that in order to screen the same, they buried the dead body in the cashew grove. In order to substantiate the alleged conspiracy and also the crime of murder, the prosecution much relied on the evidence of P.W.9, who turned hostile before the trial Court, and thus his evidence was not useful to the prosecution. 8.Further, the prosecution placed reliance on the evidence of P.W.5, the mother of the deceased. She has deposed before the Court that on 10.2.2002 at about 5.30 P.M., when she was in the house, her son Ramesh came to the house for changing his dress, and also informed that he was to take the car to Jayankondam and therefrom to Madras, and he would be coming in the next afternoon. The evidence would go to show that at that time, A-1 accompanied him and asked for a cup of water from P.W.5, and she was talking to him for sometime. Thus, she was able to identify A-1. The trial Court has accepted the said evidence and has also pointed out that the prosecution has proved the last seen theory and has observed that it was A-1 who took Ramesh from the house on the evening hours of 10.2.2002, and thereafter the deceased did not return, and hence it is a strong circumstance against A-1. This Court is afraid whether the evidence of P.W.5 could be accepted for two reasons. Firstly, at the time of trial when all the accused were in the Court, she has categorically deposed in the chief-examination that the person who accompanied her son on 10.2.2002, was not present in Court. The identification parade was conducted on 20.9.2002, and the proceedings are marked as Ex.P19. The claim of the prosecution before the trial Court was that she was able to identify A-1 and A-2 at the time of the parade; but, when she was examined in Court on 10.6.2004, she has categorically deposed that among the accused present in Court, the person whom she identified at the time of identification parade was not available. The learned Additional Public Prosecutor brought to the notice of the Court that the matter was adjourned for further chief-examination, and it was taken on 6.7.2004, and on that day, she was able to identify A-1 and A-2 before the Court, and thus she has given evidence to the effect that she identified A-1 and A-2 at the time of the parade. When she has categorically deposed at the time of chief- examination on 10.6.2004 itself that the person who accompanied her son to the house that day was not available in Court and she also did not identify any one in Court at the time of trial, it would be highly unsafe to accept her evidence to sustain a conviction. https://hcservices.ecourts.gov.in/hcservices/ 9.Apart from the evidence of P.W.5, the reliance was also placed by the trial Court on the alleged confession and recovery. However, the Court below was not ready to accept the confessional statement recorded through video cassettes produced before the Court and was not ready to accept the case of the prosecution in respect of A-2, A- 3 and A-6, and acquitted them. P.W.34, the Inspector of Police, who took up investigation of Ariyalur PS Crime No.176/2002, has claimed that the confessional statements of A-2 and A-3 were recorded on 8.9.2002, in which they have also spoken about their involvement in the present crime in Crime No.92/2002 of the respondent police station. The witness has clearly pointed out that A-2 and A-3 were actually in the police station on 7.9.2002 itself, and thus it would be indicative of the fact that the arrest of A-2 and A-3 claimed by the police on 8.9.2002, could not be believed. Equally there was possibility for P.Ws.5 and 6 to see the accused persons already. The learned Counsel brought to the notice of the Court that this confession alleged to have been recorded in Crime No.176/2002 was not believed by the Court in an appeal from the conviction and sentence in the said case wherein it was observed that the so-called confession could not be believed. 10.As far as the recovery of M.O.1 car, is concerned, P.W.33 has categorically stated that it was recovered under Ex.P3 mahazar. When Ex.P3 mahazar, is looked into, it is pertaining to recovery of two items of property which did not include the car. Thus it would be quite clear that though the Investigator claimed to have recovered M.O.1 car, there is no material available to accept the said recovery as put forth by the prosecution. Thus, the prosecution was unable to point out from whom and when it was recovered. Further, the case of the prosecution was that M.O.6, iron pipe, M.O.7, crowbar, and M.O.8, spade, were recovered near the house of A-1 pursuant to the arrest and confession of A-4 on 23.9.2002. It is pertinent to point out that the Investigator has claimed that A-1 was arrested on 14.9.2002 itself. Hence it is highly doubtful whether these weapons alleged to have been recovered in front of the house of A-1 could have been made as claimed by the prosecution on 23.9.2004 when it was identified by A-4. As far as A-1 was concerned, nothing was recovered from him. 11.According to P.W.33, the Investigator, on arrest A-3 gave a confessional statement voluntarily, and the same was recorded, and following the same, he took the police party and other witnesses to the place where the dead body of Ramesh was buried, and after preparation of the observation mahazar, Ex.P30, and the rough sketch, Ex.P31, in the presence of the Tahsildar, P.W.26, the dead body was exhumed, and thereafter it was identified. But, the perusal of the inquest report marked as Ex.P16, would read that on 13.9.2002 at about 7.30 P.M., one Chinnaian @ Muthusamy gave information to the VAO, Pilakurichi, that a dead body was buried in the said spot. It also clearly speaks about the name of the deceased as Ramesh, and he was 22 years old, and he was a car driver. Thus it would be quite clear that the place where the dead body was buried came to the knowledge of the police even on 13.9.2002 itself through the VAO. https://hcservices.ecourts.gov.in/hcservices/ Under the circumstances, the case of the prosecution that the place of burial was identified by A-3, and the confessional statement led to the recovery of that relevant fact cannot be accepted. 12.As far as A-5 was concerned, the trial Court has found him guilty under Sec.201 read with 34 of IPC and awarded the punishment. But, a perusal of the charges framed against the accused, would indicate that such a charge was not framed against A-5, and thus the conviction in that regard cannot but be illegal. In the instant case, the prosecution though attempted to rest its case originally on the direct evidence for conspiracy and also the crime of murder, had failed. The circumstances placed by the prosecution and in particular, the pieces of evidence relied on by the prosecution namely identification parade, arrest, confession and recovery and also the evidence of P.W.5, for the reasons stated above could not be accepted. This Court is of the view that basing a conviction on the above feeble evidence would be highly unsafe. Under the circumstances the judgment of the trial Court has got to be set aside, and the appellants are entitled for acquittal. 13.In the result, both these criminal appeals are allowed setting aside the judgment of conviction and sentence passed by the trial Court. The appellants are acquitted of the charges levelled against them. The bail bond executed by the appellant/A-5 in CA 532/2006 shall stand terminated. A-1 and A-4 are directed to be released forthwith unless their presence is required in connection with any other case. The fine amounts paid by the appellants will be refunded to them. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv/ To: 1.The Additional District Judge Fast Track Court No.III Vridhachalam. 2.-Do-Thro' The Principal Sessions Judge, Cuddalore. 3.The Judicial Magistrate No.1, Virudhachalam. 4.-Do-Thro' The Chief Judicial Magistrate, Cuddalore. https://hcservices.ecourts.gov.in/hcservices/ 5.The Inspector of Police Virudhachalam Police Station Cuddalore District. 6.The Superintendent, Central Prison, Trichy. 7.The District Collector, Cuddalore. 8.The Director General of Police, Mylapore, Chennai. 9.The Public Prosecutor, High Court, Madras. 1 cc To Mr.K.Gandhi Kumar, Advocate, SR.32746 1 cc To Mr.S.Vijayan Advocate, SR.32932 CRL.A.Nos.532 and 628 of 2006 CK(CO) PMK(28/7/2009) https://hcservices.ecourts.gov.in/hcservices/