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.Nos.399 and 425 of 2010 Gobinath .. Appellant in CA 399/2010 T.Kather Basha .. Appellant in CA 425/2010 vs State rep. By Inspector of Police Kitchipalayam Police Station Crime No.2003/2006 .. Respondent in both appeals Criminal appeals preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge, Fast Track Court No.I, Salem, made in S.C.No.84 of 2008 dated 6.10.2009. For Appellants : Mr.M.Sankar in CA 399/2010 Mr.R.Rajan in CA 425/2010 For Respondent : Mr.V.R.Balasubramanian Additional Public Prosecutor COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern these two appeals in C.A.No.399/2010 by A-2 and C.A.No.425/2010 by A-4. 2.Challenge is made to a judgment of the Additional Sessions Division, Fast Track Court No.I, Salem, made in S.C.No.84 of 2008 whereby the appellants shown as A-2 and A-4 respectively, along with four others stood charged, tried and found guilty as hereunder: ACCUSED CHARGES FINDING PUNISHMENT A-1 to A-5 302 IPC Guilty Life imprisonment along with a fine of Rs.10000/- and default sentence https://hcservices.ecourts.gov.in/hcservices/ ACCUSED CHARGES FINDING PUNISHMENT A-1 to A-5 404 IPC Guilty 3 years Rigorous Imprisonment along with a fine of Rs.3000/- and default sentence A-6 404 r/w 109 IPC Guilty 3 years Rigorous Imprisonment along with a fine of Rs.3000/- and default sentence A-1 to A-5 201 r/w 302 IPC Guilty 7 years Rigorous Imprisonment along with a fine of Rs.7000/- and default sentence 3.Short facts necessary for the disposal of these appeals can be stated as follows: (a) The deceased Mahaboob Basha was employed in a factory owned by P.W.6 where the steel parts are being manufactured. A-2 to A-6 were associates. On the date of occurrence i.e., 30.12.2006, all of them came to the shop, took the deceased outside and demanded money for taking liquor to which course he was not amenable. Following the same, A-1 took a broken bottle and stabbed him. A-3 caught hold of his legs and A-2 also caught hold of the other parts of the body, and he was strangulated and stabbed to death. Immediately, they took the dead body and threw the same in a nearby lake and fled away from the place of occurrence. (b) On 31.12.2006 morning hours, the Assistant of P.W.1, the Village Administrative Officer (VAO), found a dead body in the lake and informed to P.W.1. On receiving the said information, P.W.1 proceeded to the place after verifying the fact, and then proceeded to the respondent police station and gave Ex.P1, the report, on the strength of which, a case came to be registered by P.W.10, the Sub Inspector of Police, in Crime No.2003/2006 under Sec.174 of Cr.P.C. The printed FIR, Ex.P8, was despatched to the Court. (c) On receipt of the copy of the FIR, P.W.12, the Inspector of Police of that Circle, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P11. Thereafter, the dead body was sent to the Government Hospital for the purpose of postmortem. (d) P.W.11, the Tutor in Department of Forensic Medicine, Government M.K.M. College and Hospital, Salem, on receipt of the requisition, conducted autopsy on the dead body of Mahaboob Basha, issued a postmortem certificate, Ex.P10, and reserved his opinion. Thereafter, he gave a final opinion on 24.1.2007, under Ex.P19 that the deceased would appear to have died of shock and haemorrhage due to head injuries sustained. (e) On receipt of the postmortem certificate, the case which was originally registered under Sec.174 Cr.P.C., was converted to Sec.302 of IPC on 8.1.2007. The amended FIR, Ex.P13, was sent to the Court. https://hcservices.ecourts.gov.in/hcservices/ Thereafter, the further investigation was proceeded with. (f) Pending the investigation, A-4 appeared before P.W.1, the VAO, on 9.1.2007, at about 7.30 A.M. and gave an extra-judicial confession. The same was recorded by P.W.1. He took A-4 along with his report, Ex.P3, and produced before the Investigator at about 9.00 A.M. At that time, A-4 also gave a confessional statement to the Investigator, which was also recorded. The admissible part is marked as Ex.P17. Pursuant to the same, A-4 produced M.O.6, cycle, which was recovered under a cover of mahazar. The Investigator came to know about the involvement of the other accused. A-5 and A-6 were arrested on 9.1.2007. They came forward to give confessional statements which were recorded. Pursuant to the same, A-6 produced the cycle spare parts, M.O.5, which was recovered under a cover of mahazar. They were all sent for judicial remand. (g) The Investigator came to know that A-1 to A-3 were in Mumbai. The police party proceeded to Mumbai, and they were arrested on 11.1.2007. They were brought back to Salem. A-1 came forward to give a confessional statement, which was recorded. The admissible part is marked as Ex.P16. He produced M.O.7, money purse, which was recovered under a cover of mahazar, Ex.P7, in the presence of P.W.1. All the material objects recovered from the place of occurrence and also the material objects recovered from the accused on production, were subjected to analysis by the Forensic Sciences Department which resulted in Ex.P20, the chemical analyst's report, and Ex.P21, the serologist's report. On completion of investigation, the Investigator filed the final report. 4.The case was committed to Court of Sessions, and necessary charges were framed. In order to substantiate the charges, the prosecution marched 12 witnesses and also relied on 21 exhibits and 8 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 advances and took the view that the prosecution has proved the case beyond reasonable doubt and hence found them guilty under the above provisions of law and awarded punishment as referred to above. Hence these appeals at the instance of A-2 and A-4 respectively. 5.Advancing arguments on behalf of the appellants, the learned Counsel inter alia made the following submissions: (a) The prosecution had no direct evidence to offer. According to the prosecution, the occurrence has taken place on 30.12.2006 at 10.15 P.M. There was no eyewitness available. The prosecution relied on certain circumstances, but all or no one of the circumstances was indicative of the nexus of the accused persons to the crime. (b) In the instant case, according to the prosecution, A-4, the appellant in C.A.No.425/2010 appeared before the VAO, P.W.1, on 9.1.2007 at 7.30 A.M., and gave an extra-judicial confession, and the same was recorded and thereafter, he was taken to the police station where he gave a confessional statement voluntarily to the Investigator following which he produced M.O.6, cycle, which was recovered under a cover of mahazar. https://hcservices.ecourts.gov.in/hcservices/ 6.Pointing to the evidence of P.W.1 that A-4 appeared before him and made a confession which was recorded by him in the vernacular, and the same was made in the presence of his Assistant Kandasamy, the learned Counsel would submit that the confessional statement alleged to have been given by A-4 and also recorded by P.W.1, was not produced before the trial Court; that the Investigating Officer has categorically admitted that such a confessional statement was not produced before the Court, and thus it would be quite clear that a confessional statement not produced before the Court, cannot be relied on by the prosecution; that the said confessional statement was relied on by the prosecution for the involvement of A-1, A-2 and A-3; and that in order to believe the said confessional statement against the co-accused, there must be some corroborative piece of evidence, but not at all available in the present case. 7.The learned Counsel would submit that the case was originally registered under Sec.174 Cr.P.C, and it was altered to Sec.302 IPC on 8.1.2007; that the Investigator has categorically pointed out that on receipt of the medical opinion, he came to know that it was a case of murder, and then he altered the same; and that from the evidence of the postmortem Doctor and also the contents of the postmortem certificate, it would be quite clear that the final opinion was given on 24.1.2007. 8.The learned Counsel pointing to the inquest report column No.7 would submit that all the injuries found therein would clearly indicate that it was a case of murder and under such circumstances, the case should have been converted to murder that time, but not done so; and that what is the reason behind it remained unknown. 9.The learned Counsel would further add that as far as A-4 is concerned, the alleged confessional statement is highly doubtful; that the case was actually converted to Sec.302 IPC only on 8.1.2007; but, according to the police officer, he gave the confessional statement on 9.1.2007, and thus it would be indicative of the fact that after the case was converted to Sec.302 IPC, the police has taken such a measure as if A-4 has given an extra-judicial confession to P.W.1 and thereafter, a confessional statement to the Investigator and then produced a cycle which was recovered; and that all would clearly indicate the fact that the documents were actually fabricated. 10.Added further the learned Counsel that it was claimed by the Investigator that pursuant to the confessional statement given by A-4 to the Investigator, M.Os.1 to 4, 6 and 8 were recovered; that M.Os.1, 4 and 5 were sent for chemical analysis; that blood grouping could not be done since it was disintegrated; and that even that recovery cannot be relied on by the prosecution. 11.Added further the learned Counsel that in the instant case even assuming that such a confessional statement was made, in the absence of any corroborative piece of evidence, it cannot be used against A-2; that according to the Investigator, A-2 was actually arrested at Mumbai on 11.1.2007, and he was brought back to Salem on 13.1.2007 at about 5.00 A.M., and he came forward to give a confessional statement at about 9.00 A.M.; that there are https://hcservices.ecourts.gov.in/hcservices/ circumstances to indicate that all these documents have been cooked up in order to strengthen the prosecution case; that when the police officer has gone to Mumbai to arrest A-2, there should have been documents for the travel, but they have not produced any document and also any tickets; that there is nothing available to indicate that the police officer or the Investigator went over to Mumbai and arrested him; and that even assuming that there was an arrest on 11.1.2007, he would have been produced before the Metropolitan Magistrate, Mumbai, but they have not done so, and instead, he was for about two days in the course of travel, and thereafter, he was brought back. 12.Added further the learned Counsel that as far as A-1 and A-3 were concerned, two appeals were already preferred before this Court in Crl.A.Nos.178 and 179 of 2010 and this Court after considering the merits on either side, has made an order of acquittal by setting aside the very same judgment in their regard; that all those reasons are equally applicable to the present appellants also; that in the absence of any corroborative piece of evidence and in view of the evidence adduced which are doubtful, the trial Court should have acquitted the accused, and hence they are entitled for acquittal in the hands of this Court. 13.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 14.It is not in controversy that the dead body of one Mahaboob Basha was found in a lake by the Assistant of P.W.1, the VAO, who in turn went to the respondent police station and gave the complaint on the strength of which a case came to be registered originally under Sec.174 of Cr.P.C. and subsequently it was altered to Sec.302 of IPC on 8.1.2007. The further investigation was proceeded with. Following the inquest made, the dead body was sent to the Government Hospital for postmortem and the Doctor, P.W.11, who conducted autopsy, reserved his opinion and at the final, he has given opinion on 24.1.2007, that the deceased died of shock and haemorrhage due to the head injury sustained. The cause of death as put forth by the prosecution was never disputed by the appellants before the trial Court, and hence the learned trial Judge was perfectly correct in recording that the death was due to homicidal violence. 15.In order to substantiate the charges levelled against these appellants along with four other accused who faced trial before the trial Court, the prosecution had no direct evidence to offer. The only evidence on which the prosecution story proceeded, was actually the extra-judicial confession alleged to have been given by A-4 to P.W.1, the VAO. The following circumstances are noticed by the Court which actually stand against the prosecution case. 16.First of all, the case was originally registered under Sec.174 of Cr.P.C. According to the Investigator, the case was actually converted to Sec.302 of IPC on 8.1.2007 following the medical opinion. But, from the evidence of the postmortem Doctor, it would be quite clear that the final opinion was given on 24.1.2007, that he died of shock and haemorrhage due to the head injuries https://hcservices.ecourts.gov.in/hcservices/ sustained by him. As rightly pointed out by the learned Counsel for the appellants, column No.7 of the inquest report would clearly indicate all the injuries sustained by him, and it would be quite possible to know that it was a case of murder. Under such circumstances, the case should have been converted to Sec.302 IPC but not done so, and instead, it was delayed and later converted on 8.1.2007. 17.Apart from the above, according to the prosecution, the VAO, P.W.1, when he was in his office on 9.1.2007, A-4 appeared before him and gave such an extra-judicial confession. When the confessional statement is looked into, it would show that it was not actually in the language which was spoken by A-4, and it was only a substance as found therein. The law does not require that it must be in the verbal term as put forth by the accused, and it could be even a substance. But, in the instant case, it is claimed by A-4 that he has actually been in police custody. Here is also evidence to show that the case was registered on the previous day, and A-4 suddenly appeared before the VAO and gave such an extra-judicial confession on the next day. It is pertinent to point out that it was the extra- judicial confession given by A-4. It is well settled principle of law that a conviction could be sustained on the sole piece of evidence of extra-judicial confession given by a particular accused. In the case on hand, the extra-judicial confession was not made by the other accused. It is also well settled principle of law that the confession of one accused can be used against the co-accused to sustain a conviction, but the Court must look into corroborative piece of evidence in order to ensure the same. In this regard, so many circumstances are actually brought to the notice of the Court which are doubtful. 18.Firstly, P.W.1 would claim that he recorded the extra- judicial confession of A-4 in the vernacular. But the same was not produced before the Court. The Investigator would also admit that the same was not produced before the Court. 19.Secondly, the Investigator would claim that he came to know about the involvement of A-1 to A-3 and A-5 and A-6 only from the confessional statement given by A-4 on 9.1.2007. According to the Investigator, the police party went over to Mumbai where A-2 was arrested on 11.1.2007, and he was brought back to Salem on 13.1.2007 by 5.00 A.M., and he gave a confessional statement during morning hours i.e., 9.00 A.M. Now, at this juncture, it is pertinent to point out that if really the Investigator had gone over to Mumbai, there must be evidence available for that purpose. But, no material is placed before the Court that the police party went over to Mumbai and arrested him. A mahazar is placed before the Court along with the tickets as if they were recovered from A-1, but there is nothing to indicate that it was recovered from A-1 or they were the tickets with which they travelled to Mumbai. So long as the claim of the defence is that A-2 not at all in Mumbai, and he was actually at Salem and was in police custody, the fact that he has been arrested at Mumbai itself is a story created. In such circumstances, a duty is cast upon the prosecution to show that he was arrested in Mumbai, a relevant fact. https://hcservices.ecourts.gov.in/hcservices/ 20.Thirdly, if really he was arrested on 11.1.2007 at Mumbai, there was no impediment for the police officials to produce him before any Metropolitan Magistrate's Court at Mumbai, but he was on transit for a period of two days and was brought to Salem on 13.1.2007. Even for about five hours, he did not give any confessional statement. The confessional statement was recorded from 9.00 A.M. All would clearly indicate that the alleged confessional statement and the recovery which, according to the prosecution, are incriminating circumstances, were actually doubtful. In such circumstances, the prosecution has miserably failed to bring forth the nexus of these appellants with the crime, and thus all the doubts, in the considered opinion of the Court, are reasonable to which benefit they are entitled. Hence the appellants are entitled for acquittal. 21.In the result, both these criminal appeals are allowed setting aside the judgment of conviction and sentence passed by the trial Court in respect of the appellants/A-2 and A-4, and they are acquitted of all the charges levelled against them. The fine amounts if any paid by them, shall be refunded to them. The appellants are directed to be set at liberty forthwith unless their custody is required in connection with any other case. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv To: 1.The Additional District and Sessions Judge Fast Track Court No.I, Salem. 2.The Inspector of Police Kichipalayam Police Station Crime No.2003/2006 3.The Public Prosecutor High Court, Madras. 4. The District Sessions Judge-cum- Fast Track Court No.I, Salem. 5. The Superintendent, Central Prison, Salem. 6. The District Collector, Salem. https://hcservices.ecourts.gov.in/hcservices/ 7. The Director General of Police, Mylapore, Chennai - 04. 8. -do- Through The Chief Judicial Magistrate, Salem. 9. The Section Officer, V.R.Section, High Court, Madras. 1 cc To Mr.R.Rajan, Advocate, SR.67908. CRL.A.Nos.399 and 425 of 2010 LA(CO) RVL 22.09.2010 https://hcservices.ecourts.gov.in/hcservices/