BAIL SLIP The Appellants/Accused were directed to be released on bail as per order of this Court dt.18.9.2006 and made in Crl.M.P.1/06 in Crl.A.No.750/06. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12-9-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOUARBLE MR.JUSTICE M.VENUGOPAL CRL.A.No.750 of 2006 1.Thangavelu 2.Balamurugan .. Appellants vs State by: The Inspector of Police Sulur Police Station Sulur, Coimbatore District (Crime No.19/2003) .. Respondent Criminal appeal preferred under Section 374(2) of the Code of Criminal Procedure against the judgment dated 28.7.2006 made in S.C.No.99 of 2005 on the file of the Additional District and Sessions Judge, Fast Track Court No.II, Coimbatore. For Appellants : Mr.P.M.Duraiswamy For Respondent : Mr.V.R.Balasubramanian Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Additional Sessions Division, Coimbatore, made in S.C.No.99 of 2005 whereby these two appellants stood charged, tried and found guilty under Sections 302 and 201 of IPC and awarded punishment of life imprisonment along with a fine of Rs.500/- and default sentence under Sec.302 IPC and also one year Rigorous Imprisonment along with a fine of Rs.500/- and default sentence under Sec.201 of IPC. 2.The short facts necessary for the disposal of this appeal https://hcservices.ecourts.gov.in/hcservices/ can be stated thus: (a) P.Ws.3 and 4 are the brothers of the deceased Vasudevan. P.W.5 is his brother-in-law. A-1 is the nephew of P.W.10. The deceased was doing a travel service in which A-1 was employed as a Driver. A-1 and A-2 are associates. A-1 fell in love with P.W.11 Kavitha, and he introduced P.W.11 to the deceased. Taking advantage of the situation, the deceased attempted to separate them. Aggrieved over the same, A-1 hatched up a plan with A-2 to finish him off. Accordingly, both of them caused his death by strangulating him with a nylon rope, M.O.7, and placed the body on the railway track. (b) On 25.11.2002 at about 9.55 A.M., P.W.1 who was the Station Master, Podanur Railway Station, received a phone call from P.W.2, another Station Master, that P.W.21, a Constable, attached to the Railway Police, when he was on patrol duty during night hours, found a dead body near the railway track in between Somanur and Soolur, and he also found an Ambassador Car M.O.1, with registration No.TNN 2666. P.W.2 also instructed P.W.1 to give necessary report. Accordingly, P.W.1 proceeded to the Railway Police Station at Podanur and gave a report under Ex.P1 on 25.11.2002, on the strength of which P.W.26, the Head Constable, attached to the Railway Police Station, registered a case in Crime No.990 of 2002 under Sec.174 of Cr.P.C. The FIR, Ex.P26, was despatched to the Court. (c) P.W.28, the Inspector of Police, attached to the Railway Police Station, took up investigation, proceeded to the spot, made an inspection, prepared an observation mahazar, Ex.P2, and drew a rough sketch, Ex.P28. Then, he conducted inquest on the dead body of Vasudevan in the presence of witnesses and panchayatdars. The dead body was identified by P.Ws.3, 4 and 5. All the material objects were recovered from the place of occurrence. M.O.1, Car, was also recovered near the place of occurrence. Then the dead body was sent to the Government Hospital for the purpose of postmortem along with a requisition Ex.P21. (d) One Dr.G.Gnanadurai, the Tutor in Forensic Medicine, Coimbatore Medical College, on receipt of the said requisition, conducted autopsy on the dead body of Vasudevan and has issued a postmortem certificate, Ex.P24. The Doctor has given his final opinion under Ex.P25 that the deceased would appear to have died of head injury and its complications. (e) While the investigation was pending, on 29.11.2002, when P.W.16 was in the house of P.W.15, who were Ward Councilors, A-1 appeared before them and gave a confession of the crime. P.Ws.15 and 16 took him to the Inspector of Police, P.W.28, and produced them along with Ex.P29 report. Following the same, A-1 was arrested. Immediately, A-1 volunteered to give a confessional statement which was recorded in the presence of the very same witnesses. The admissible part of the confession is marked as Ex.P3 pursuant to which he produced M.O.7, nylon rope, and M.O.8, lunghi, which were recovered under a cover of mahazar. Then, he was sent for judicial remand. (f) Equally on the very same day, when P.W.18 was in the house of P.W.17, A-2 appeared before them and made an oral https://hcservices.ecourts.gov.in/hcservices/ confession. They also produced him before the police station at about 7.00 p.m. At that time, A-2 volunteered to give a confessional statement, pursuant to which he produced M.O.11, TVS 50, which was recovered under a cover of mahazar. Then, he was sent for judicial remand. (g) P.W.29, the Inspector of Police, took up further investigation, proceeded with the same, verified the records and examined further witnesses. On completion of investigation, the Investigating Officer filed the final report against the accused on 4.3.2003 under Sections 302, 109 read with 302 and 201 read with 511 of IPC. 3.The case was committed to Court of Session and necessary charges were framed. In order to substantiate the charges, the prosecution examined 29 witnesses and also relied on 30 exhibits and 22 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 Court below heard the arguments advanced, looked into the materials available and found that both the accused/appellants are guilty as per the charges and awarded punishment as referred to above. Hence this appeal at the instance of the appellants. 4.Advancing arguments on behalf of the appellants, the learned Counsel Mr.P.M.Duraiswamy would submit that in the instant case, the prosecution has miserably failed to prove its case; that the prosecution had no direct evidence to offer; that the prosecution rested its case on the alleged extra-judicial confessions alleged to have been made by A-1 to P.Ws.15 and 16 and A-2 to P.Ws.17 and 18; that both these confessions were not reduced into writing; but, P.Ws.15 and 16 produced A-1 before the police station along with a report, which is marked as Ex.P29; that P.W.15 has categorically admitted that Ex.P29 was written by the Police Officer at the police station, and it did not contain the signature of the accused; that under the circumstances, no evidentiary value could be attached to this document; that equally, P.W.17 was examined in order to prove the alleged extra- judicial confession made by A-2 to him; and that it is pertinent to point out that when A-1 appeared before P.Ws.15 and 16 on 29.11.2002, on the same day A-2 has also appeared before P.Ws.17 and 18 which is highly unnatural. 5.Added further the learned Counsel that as far as the confession in respect of A-2 was concerned, only the signature of the witness was marked and not the admissible part of the confession, and thus it is highly improbable; that it is further to be pointed out that when these witnesses produced A-1 and A-2, the prosecution came forward to state as if they gave confessional statements pursuant to which the material objects were recovered; and that it is highly improbable that such a confession could have been made. https://hcservices.ecourts.gov.in/hcservices/ 6.The learned Counsel would further submit that in the instant case, the prosecution came with the specific charge that both the accused strangulated the deceased with the nylon rope, caused his death and placed the body on the railway track; but, on the contrary, the medical opinion was to the effect that the deceased would appear to have died out of the head injury and not by strangulation; that under the circumstances, the medical evidence did not in any way corroborate the prosecution case; that in the instant case, no other evidence was available; that even assuming that some material objects were recovered from the accused, the same by itself would not be sufficient to sustain a conviction, and hence they are entitled for acquittal in the hands of this Court. 7.The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the rival submissions made. 8.It is not in controversy that the dead body of one Vasudevan was found nearby the railway track. On registration of the case, the Investigating Officer conducted inquest. After the preparation of the inquest report, the dead body was subjected to autopsy, and the medical opinion was canvassed from which it could be seen that the deceased would appear to have died out of the head injury sustained by him, and thus, it was a homicidal death. Therefore, the prosecution was successful enough to bring forth that fact to the notice of the Court. 9.In the instant case, as rightly pointed out by the learned Counsel for the appellant, the prosecution had no direct evidence to offer. It depends upon the circumstantial evidence. The prosecution mainly relied on and the lower Court has also accepted the two pieces of extra-judicial confessions alleged to have been made by A-1 to P.Ws.15 and 16 and by A-2 to P.Ws.17 and 18. The circumstances attendant would clearly indicate that such a confession could not have been made at all. The occurrence has taken place, according to the prosecution case, on 24.11.2002 during night hours. P.Ws.15 and 16 are the two Ward Councilors. According to P.W.15, A-1 appeared before him and at that time, P.W.16 was also available in the house, and he confessed the crime committed by him, and the same was not reduced into written form. But, according to P.W.15, a report was prepared by him, and the same is Ex.P29. It could be seen from Ex.P29 that A-1 appeared before him making confession of the crime which he committed along with A-2 also. When P.W.15 was examined in Court, in categorical terms he has admitted that it was prepared by the Police Officer. A look at Ex.P29 would clearly reveal that it has been prepared only in the Police Station, and it could not have been prepared by P.W.15 or 16 outside the police station or as claimed by the prosecution. Thus, it would be quite clear that the document Ex.P29 has come into existence in the police station. Under such circumstances, at no stretch of imagination, it could be taken as a piece of evidence in support of the prosecution speaking about the confession made by A-1 to P.Ws.15 and 16. Thus, it would be https://hcservices.ecourts.gov.in/hcservices/ quite evident that it was a document created in the police station to suit the prosecution case. 10.As far as A-2 is concerned, the prosecution relied on the extra-judicial confession alleged to have been made by A-2 to P.Ws.17 and 18. Insofar as the confessional statement alleged to have been made by A-2 before the police, only the signature of P.W.17 is marked and not the admissible part of the statement. At this juncture, it is a matter of surprise to note that two accused involved in a crime, have chosen the same date when A-1 proceeded to P.Ws.15 and 16 making a confession, and A-2 proceeded to P.Ws.17 and 18 making a confession. Both were produced before the Police Officer by different persons on the same day along with the reports which are relied on by the prosecution. This would clearly indicate that these documents have come into existence only in the police station. Once these documents have come into existence in the police station as if they have given extra- judicial confessions outside namely A-1 to P.W.15 and A-2 to P.W.17, the same cannot be attached with any evidentiary value. If these documents are not considered in evidence, the prosecution automatically would fail. Once the extra-judicial confessions are not believed, the pursuant confession and recovery cannot also be believed. Even assuming that such a recovery has been made following the confessional statements, the same by itself would not suffice to sustain a conviction in a given case like this. 11.Another circumstance which went against the prosecution case was the medical opinion. The specific charge levelled against these accused was that both the accused strangulated the deceased by using the nylon rope and caused his death and thereafter, in order to screen the evidence, put the dead body on the railway track. But the medical opinion was other way about. The medical opinion canvassed through the postmortem certificate and also the Doctor was to the effect that the deceased would appear to have died between 36 to 48 hours prior to autopsy and due to the injury sustained by him on the skull. The postmortem certificate is also perused. Though the nail mark was found, the Doctor has opined that the death was due to the head injury. Under the circumstances, it cannot be stated by the prosecution that the medical opinion canvassed was in favour of the prosecution; but, it was in negative. Under the circumstances, the medical opinion was also not in favour of the prosecution. Thus, in short, it can be stated that the prosecution cannot be said to have brought home the guilt of the accused beyond reasonable doubt. In such a situation, sustaining a conviction on the evidence now perused by the Court and noticed above, would be highly unsafe, and hence the judgment of the lower Court has got to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 12.In the result, this criminal appeal is allowed setting aside the judgment of conviction and sentence passed by the lower Court. The appellants are acquitted of all the charges levelled against them. The fine amounts if any paid by them, will be refunded to them. The bail bonds executed by them shall stand terminated. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv/ To: 1. THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAST TRACK COURT NO.II, COIMBATORE. 2. THE DISTRICT MUNSIF CUM JUDICIAL MAGISTRATE,PALLADAM. 3. THE CHIEF JUDICIAL MAGISTRATE, COIMBATORE. 4. THE SUPERINTENDENT, CENTRAL PRISON, COIMBATORE. 5. THE INSPECTOR OF POLICE, SULUR POLICE STATION,SULUR, COIMBATORE DIST. CR.NO.19/03 6. THE DISTRICT COLLECTOR, COIMBATORE. 7. THE DIRECTOR GENERAL OF POLICE, CHENNAI 4. 8.THE PUBLIC PROSECUTOR, HIGH COURT, MADRAS. Copy To THE SECTION OFFICER CRL.SECTION, HIGH COURT, MADRAS. +1cc to Mr.P.M.Duraiswamy, Advocate Sr 52142 RSM (CO) km/23.9. CRL.A.No.750 of 2006 https://hcservices.ecourts.gov.in/hcservices/