BEFORE THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 06.11.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN REFERRED TRIAL No.6 & 7 OF 2008 AND CRIMINAL APPEAL Nos.249 & 247 OF 2008 Ramesh .. Accused in both the R.Ts. and Appellant in both the C.As. Vs. State rep. by Inspector of Police, Aavinangudi Police Station (Crime No.16/2007 ) .. Complainant in R.T.6/2008 and Respondent in CA.249/2008 State rep. by Inspector of Police, Pennadam Police Station (Crime No.17/2007 ) .. Complainant in R.T.7/2008 and Respondent in CA.247/2008 and 249 of 2008 These Referred trials have been preferred seeking confirmation of the sentence passed by the learned Additional District Sessions Judge, Fast track Court No.III, Virudhachalam and the criminal appeals have been preferred under Section 374(2) Cr.P.C. and prays that this Hon'ble Court may be pleased to set aside his conviction and sentence against the judgment of the said Court made in S.C.Nos.191 and 192 of 2007 respectively dated 6.8.2007 on the file of The learned Additional District Sessions Judge and Fast Track Court No.III, Virudhachalam and to acquit the Appellant. For Appellant : Mr.P.Venkatasubramanian For Respondents : Mr.P.Kumaresan, Additional Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) This judgment shall govern the two referred trial cases viz., R.T.Nos.6 and 7 of 2008 and the criminal appeals viz., C.A.Nos.249 and 247 of 2008. 2. These Referred Trials have arisen from the judgment of the Additional District and Sessions Division, Virudhachalam made in S.C.Nos.249/2007 and 247/2007 respectively whereby the sole accused therein stood charged under Sections 341, 302, 382 and 413 I.P.C., tried and found guilty as per the charges and awarded capital punishment of death sentence. 3. The said judgments are also challenged by the accused therein in C.A.Nos.249/2008 and 247/2008. Both the Referred Trials seeking confirmation of the sentence made by the Sessions Court and also both the Criminal Appeals filed at the instance of the appellant/accused are taken up together for consideration this day. 4. The short facts necessary for the disposal of Criminal Appeal No.249/2008 can be stated thus: (a) The deceased Thiruvatchi Ammal wife of Sadayappa Padayatchi belonged to Neivasal Village. On 19.11.2004, she went to the field along with P.W.12 who was the owner of the adjacent land. At about 2.45 p.m., P.W.12 left the field while Thiruvatchi Ammal was working in the field. On that day, at about 4.00 p.m., when P.W.3 Kurunji Selvam was walking through the passage to reach the adjacent village, he was informed by the school children that an old lady was lying on the bank of Vellaru. Immediately, he went there and found Thiruvatchi Ammal with severe injuries. P.W.3 and others, on hearing this, went over there and found Thiruvatchi Ammal. Immediately, they took her to P.W.9 Dr.Ponnusamy who gave first aid and thereafter, they took Thiruvatchi Ammal to Krishna Hospital, Cuddalore where she was given treatment by Dr.Velumani and she was taken out of the hospital without taking further treatment and without advise of the doctor to the house of the deceased at Neivasal. Thereafter, on 21.11.2004, Thiruvatchi Ammal died. The death of Thiruvatchi Ammal was also registered. (b) After a period of two years, on 16.2.2007, P.W.23 Inspector of Police arrested the accused in connection with Crime No.470/2006 of Vridhachalam Police Station. The accused came forward to give confessional statement voluntarily. The same was recorded in the presence of P.W.17 and another witness. The matter was published in the newspapers that the accused/appellant committed murder of several women including the murder of Thiruvatchi Ammal of Neivasal. P.W.1 and his brother were fined for omission of informing the murder of their mother to the Police. On seeing the news item, P.W.1 the daughter of the https://hcservices.ecourts.gov.in/hcservices/ deceased Thiruvatchi Ammal preferred a complaint Ex.P1 before Tittagudi Police Station which was registered in Crime No.16/2007 under section 302 and 379 I.P.C. The express F.I.R. Ex.P8 was despatched to Court. (c) In the confessional statement, the accused admitted that he committed murders, rapes and robberies in various places and the properties were sold through one Krishnamoorthy. The admissible part of the same was marked as Ex.P5. Based on the confession, P.W.23 took the accused and witnesses to Avinankudi where the accused identified Sri Ganapathy Banker and also Balakrishnan-P.W.22 owner of the pawn broker shop. The owner of the shop produced a pair of stud M.O.1 and one nose screw M.O.2 which were recovered under a cover of mahazar Ex.P6 in the presence of witnesses P.W.17 and another witness. P.W.23 sent all the articles to Court. He examined the witnesses and recorded their statement. (d) On 19.2.2007, on the direction of Superintendent of Police concerned District, a team was constituted in order to conduct investigation based on the confessional statement of the accused in crime No.45/2007. The accused was produced before the Judicial Magistrate,Kallakurichi. He gave the confessional statement and the same was recorded by the Judicial Magistrate, Kallakurudhi which was marked as Ex.P7. Following the orders of the Superintendent of Police, further investigation was conducted in the case. P.W.24 Investigating Officer took up the case in crime No.16/2007. (e) The Investigating Officer proceeded to the place of occurrence and prepared the observation mazahar Ex.P2 in the presence of P.W.15 and other witness and drew a rough sketch Ex.P16 and at 12.30 p.m. he went to the house of the deceased and prepared the observation mahazar of the house of the deceased Ex.P3 and also drew a rough sketch Ex.P17. He examined the witnesses and recorded their statements. He made a formal arrest of the accused in the Central Prison on 20.3.2007. On completion of the investigation, the Investigating officer filed a final report under Section 341, 302, 323, 382, 413 and 75 of I.P.C. (f) The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the appellant, 24 witnesses were examined and 18 exhibits were marked and 4 material objects were also marked. On completion of evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. and he denied them as false. No defence witness was examined. After hearing the submissions made on either side and also on scrutiny of the material available, the trial Court took a view that it was a fit case where capital punishment of death sentence has got to be awarded and awarded death sentence. For the purpose of affirmation, the matter has been referred to this Court. Notice was served upon the appellant/accused. The accused also preferred https://hcservices.ecourts.gov.in/hcservices/ an appeal in Crl.A.No.249/2008 which is taken up for consideration. 5. The short facts necessary for the disposal of Criminal Appeal No.247/2008 can be stated thus: (a) The deceased Sivakkkozhundu, wife of Rasakannu/P.W.1 belonged to Ariyaravi. On 2.1.2006 at about 5.00 p.m., she went for cutting grass for her cattle. P.W.1 Rasakannu husband of the deceased went in his cycle to take the grass bundle. When he went to the the usual spot, he could not find his wife. Then, he went to the next field of one Chinnaponnu but there he found the dead body of his wife along with contusion of rope in her neck and also found the nose and ears were cut and the jewels were robbed. Thereafter, he called for help and along with others he took the dead body to his house and cremated the body on 3.1.2006. He did not given any complaint to the Police. (b) After lapse of one year, P.W.20 Inspector of Police Vridhachalam took the accused/appellant into custody in Crime No.470/2006 of the said Police Station. The accused came forward to give confessional statement. The same was recorded at 8.00 a.m. on 7.2.2007 in the presence of P.W.17 and another witness. The matter was published in the newspapers stating that the accused/appellant has committed several murders. On seeing the news item, P.W.1 preferred a complaint before the respondent police station on 18.2.2007. (c) On the strength of the complaint Ex.P1, P.W.19 Sub- Inspector of Police registered a case in Crime No.17/2007 under Section 302 and 379 I.P.C. The printed F.I.R. Ex.P7 was sent to Court. In the course of the said confession, the accused/appellant admitted that he committed number of murders, rapes and robbery in various places. The admissible part that pertaining of the same was marked as Ex.P4. The Inspector of Police P.W.20 took the accused along with the above witnesses to Avinankudi where the accused identified R.K.R. Bankers and its Proprietor who produced the nose screw M.O.1 and the same was seized under a cover of mahazar Ex.P5 in the presence of the said witnesses. The statement of the witnesses were also recorded. (d) On 19.2.2007, the Superintendent of Police of Cuddalore District constituted a special team for investigating the case based on the confession given by the appellant/accused in Crime No.45/2007 of Kallakuruchi Police Station. He was produced before the Judicial Magistrate, Sankarapuram where he gave a confessional statement. The same was also recorded by the Judicial Magistrate, Sankarapuram which was marked as Ex.P6. Pursuant to the orders of the Superintendent of Police, P.W.21 Inspector of Police on 5.3.2007 took up the case for investigation and went to the occurrence spot at 10.30 a.m. He made an observation and prepared Observation mahazar Ex.P2 in the presence of P.W.13 Village Administrative Officer and another witness Village Menial. He also https://hcservices.ecourts.gov.in/hcservices/ drew a rough sketch Ex.P9. He went to the house of P.W.1 at 2.00 p.m. where also he prepared the observation mahazar Ex.P3 in the presence of the above witnesses and drew a rough sketch Ex.P10. He examined the witnesses and recorded their statement. The Investigating Officer made a formal arrest of the accused in the Central Prison on 23.3.2007 in respect of the instant case. After completion of the investigation, the Investigating Officer filed a final report under section 341, 302, 323, 382, 413 and 75 of I.P.C. (d) The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution examined 21 witnesses and relied on 11 exhibits and one material object. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. and the accused denied them as false No defence witnesses were examined. The trial Court heard the arguments advanced on either side and took a view that the prosecution has proved its case beyond reasonable doubt and it was a fit case where the capital punishment of death sentence has got to be awarded and accordingly awarded and has referred the matter for affirmation. Notice was ordered to the accused/appellant. The accused also preferred an appeal in Criminal Appeal No.247/2008 which is taken up for consideration. 6. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made and perused the materials available on record. 7. Advancing the arguments on behalf of the appellant in respect of the referred trials and also the appeals the learned counsel Mr.P.Venkatasubramaniam would submit that the trial court should have acquitted the accused but, on the contrary, it is a matter of surprise to note that the trial Court has awarded capital punishment of death sentence. According to the prosecution, in the first case, the occurrence had taken place on 19.11.2004 but the complaint was given after a period of two years. In the second case, the occurrence had taken place on 2.1.2006 and the complaint was given after a period of one year. It is pertinent to point out that the accused was actually arrested not in either of the cases but he was arrested in Crime No.470/2006 registered on the file of Vridhachalam Police Station and the confessional statement had been recorded from him. 8. It is pertinent to point out that paper publication was made stating that the accused/appellant had committed several murders which would include the murder of the deceased persons in these cases. According to P.W.1 in both the cases, after looking into the publication, they proceeded to the Police Station and gave the respectively complaints. Thus, in the instant case there was huge and inordinate delay. There was no explanation for not bringing the case to the notice of the Police. The explanation tendered by the prosecution that in one case the prosecution witnesses were fined for not giving information to the police, cannot be accepted at all. https://hcservices.ecourts.gov.in/hcservices/ 9. The learned counsel would further submit that in so far as the death of Sivakkozhundu is concerned, though the witnesses have been examined to state that she was found with number of injuries on 2.1.2006, she was not even taken to any hospital for medical examination. Immediately, on the next day i.e., on 3.1.2006 she was cremated even without informing the Police. Thus, in the instant case, except the version of the witnesses who have been examined after number of years to state that the deceased sustained injuries and died, there is no other evidence available. Had it been true that such injuries were really sustained by the deceased and the jewels of the deceased were actually robbed, naturally one would expect the witnesses to give a complaint but they have not done so. So far as the other case is concerned, the witnesses would state that Thiruvatchi Ammal who sustained severe injuries was actually taken to P.W.9 Doctor, Tittakudi where she was given initial treatment and thereafter, he asked the witnesses to take her to Krishna Hospital and they took her to Krishna Hospital, Cuddadlore and Dr.Velumani, Krishna Hospital, Cuddalore treated her but despite the advise they took her home where she died on 21.11.2004. It is quite clear that it is known to P.W.9 doctor and also Dr.Velumani of Krishna Hospital,Cuddalore that it is a medicolegal case and it should be brought to the notice of Police but they have not done so. The prosecution witnesses who are the close relatives of the deceased have not even brought the incident to the notice of the Police. At this juncture, it is pertinent to point out that either by P.W.9 doctor at Tittagudi or from the Krishna Hospital, the Accident Register copy or the Medical Certificate was produced. Thus, in both the cases, what is the cause of death of the deceased, remains unknown. The prosecution has not proved the case beyond reasonable doubt. 10. In both the cases, the prosecution placed much reliance on the confessional statement alleged to have been given to the Police Officer originally and thereafter, the confessional statement which was given to Judicial Magistrate, Sankarapuram examined as P.W.20 and P.W.18 respectively. So far as the judicial confession is concerned, it should not have acted upon for the simple reason that the original confession statement was not produced before the Court. Since it is the case of murder, the prosecution would have summoned for originals and would have placed before the Court for perusal but not done so. Only the xerox copy was placed before the trial Judge and the trial Judge has acted on the xerox copy. Apart from this, the confessional statement has legal infirmity for the simple reason that when a confessional statement is to be recorded, it requires certain procedural formalities to be followed strictly and one of the formalities is that the person who declines to make confession should be given an assurance that he will not be remanded to judicial custody. A perusal of the confessional statements Ex.P.5 and Ex.P.4 respectively, marked in both the cases would reveal that no such assurance was given to the accused. Under such https://hcservices.ecourts.gov.in/hcservices/ circumstance, it is quite clear the alleged confessional statements could not be acted upon. 11. Added further, the law would require time for reflection when the accused is produced before the Court in recording judicial confession. Under Section 164 Cr.P.C., the Magistrate has to necessarily give him time for reflection. In the instant case, it is stated that when the Judicial Magistrate asked the accused whether he need time for reflection, he answered, it was not necessary. Even then, the Judicial Magistrate should have given him time for reflection but has not done so. Hence, it affects the case of the prosecution. 12. In so far as the first case (S.C.No.191/2008) is concerned, only one witness namely P.W.17 was examined for the purpose of recovery. According to the prosecution M.O.1 stud and M.O.2 nose screw were recovered from P.W.22 owner of the shop but P.W.22 has turned hostile. Thus, the recovery could not be believed. In so far as the recovery of the material object-jewels in the second case (S.C.192/2007) is concerned, no witness has been examined hence, the same could not be believed. Apart from this, it was not the case where the Court could draw presumption available under Section 114-A of the Indian Evidence Act for the reason that in the first case (S.C.No.191/2007), recovery has been made after a period of two years and in other case (S.C.No.192/2007) recovery has been made after a period of one year. Thus, it has gone out of reasonable time as contemplated under Section 114-A of the Indian Evidence Act and drawing presumption was also not available for the prosecution. Under such circumstances, the prosecution has miserably failed either of the case. Hence, the appellant is entitled for acquittal in both the cases. 13. In these two cases as narrated above, the trial Court in S.C.No.191/2007 and S.C.No.192/2007 respectively, on trial, has awarded capital punishment of death sentence and has referred the matters for affirmation in R.T.No.6/2008 and R.T.No.7/2008 respectively. On notice, the accused who appeared through counsel has also preferred the above appeals viz., C.A.No.249/2008 and C.A.No.247/2007. 14. The gravamen of the charge in both the cases is that the accused/appellant caused grievous injuries to one Thiruvatchi Ammal on 19.11.2004 and robbed her jewels marked as M.Os.1 and 2 gold stud and nose screw respectively, and despite treatment given to her at Titttakudi by P.W.9, the Doctor, and also at Krishna Hospital,Cuddalore, she died on 21.11.2004. In so far as the other case is concerned, the accused caused the death of one Sivakkozhundu on 2.1.2006 and robbed her jewels. In both the cases, the prosecution had no direct evidence to offer. It rested its case exclusively on the circumstantial evidence. When the prosecution rests its case on circumstantial evidence, it must place necessary circumstances pointing to the hypothesis that https://hcservices.ecourts.gov.in/hcservices/ except the accused no one else could have committed the offence. From the available evidence, it could be seen that the prosecution rested its entire case on the confessional statements given by the accused before the Judicial Magistrate, Sankarapuram marked as Ex.P5 and Ex.P6 respectively and the recovery of jewels of the deceased from the witnesses as identified by the accused/appellant. 15. After careful scrutiny of the entire materials, the Court is afraid whether it could sustain the conviction since in the considered opinion of the Court, the prosecution has not brought home the guilt of the accused in any way known to law. 16. The first and foremost circumstance which stood against the prosecution was the delay in the complaint Ex.P1 given by P.W.1 in both the cases. In the first case, the occurrence had taken place on 19.11.2004 and in the second case, the occurrence had taken place on 2.1.2006. The complaint was given after a period of two years and one year respectively. In both the cases, according to the prosecution, the deceased have gone to the fields for agricultural work and when they were alone, they were attacked severely by the accused and had robbed the jewels and fled away from the scene of occurrence. The witnesses who are close relatives of the deceased in either of the case, came to know about the occurrence within few hours. In the second case, when the incident took place on 2.1.2006 in the evening hours, immediately, the close relatives of the deceased went to the field and found her dead body and they also came to know that the jewels of the deceased were robbed but for a period of one year, they did not give any complaint at all. No acceptable reason is adduced by the prosecution witnesses. The explanation tendered by them that they did not desire to do so is not convincing at all. In so far as the other case (S.C.No.191/2007) is concerned, when the occurrence had taken place on 19.11.2004, Sivakkozhundhu was found with severe injuries and she was originally taken to P.W.9 Dr.Ponnusamy who gave initial treatment, and thereafter, she had been taken to Krishna Hospital where she was given further treatment. From Krishna Hospital, Cuddalore, without continuing the treatment, the witnesses have brought the severely injured lady to the house. Though, P.W.9 Dr. Ponnusamy of Tittagudi, who gave initial treatment, was examined as P.W.9 except his oral statement, no medical certificate or accident register copy was produced before the Court. Further, it is pertinent to point out that at the time when medical treatment was given by P.W.9 Doctor and by the doctor at Krishna hospital, Cuddalore, it was well known to them that it was a case of medicolegal nature. Hence, a duty is cast upon them to bring to the notice of the police, but they have not done so. 17. In the instant case, the complaint was given after a period of two years. The explanation tendered that they did not desire to do so is not convincing. The prosecution came forward with the explanation that prosecution witnesses were fined for not https://hcservices.ecourts.gov.in/hcservices/ bringing the crime to the notice of the police cannot be a reason accepted. 18. At this juncture, it is pertinent to point out that in both the cases there was not only the delay in giving the complaints but also the matter which impelled P.W.1 in either of the case to give such complaints has got to be mentioned. According to the prosecution, the accused came forward to give confessional statement in Crime No.470/2006 Virudhachalam Police Station, pursuant to which the police department gave a wide publication in the newspaper whereby they have clearly mentioned that the accused/appellant had committed murder of several women including the deceased in both the cases. After seeing the paper publication, the complainant in both the cases had gone to the police station and had given Ex.P1 complaints respectively. Thus, it would be quite clear that Ex.P1 complaints in either of the case is only after looking into the newspaper which was published by the police following the alleged confessional statement by the accused. It is needless to say that the delay in the complaints and also the reason impelled the prosecution witnesses in either of the case to give such complaints is fatal to the prosecution case. 19. Apart from the above, the prosecution relied on the judicial confessions given by the accused/appellant before the Judicial Magistrate, Sankapuram who was examined as a witness in both the cases. They were also marked as Ex.P5 and Ex.P4 respectively. The Court is of the considered opinion that these judicial confessions cannot be acted upon for two main reasons. Firstly, the originals were not filed in either of the Sessions Case but the xerox copies were filed. In such circumstances, a duty was cast upon the prosecution to summon the originals and place for scrutiny before the Court, but not done so. Further, the said judicial confession also suffers from legal infirmity. Before recording the judicial confession under Section 164 Cr.P.C., the law mandates that the Judicial Magistrate should follow certain procedures and one of them which has got to be adopted by the Magistrate is that he has to give assurance to the accused that even if he declines to make confession he shall not be remanded to police custody. But in the instant case, a perusal of the confessional statements recorded