IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 2-3-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.Nos.689, 728 and 732 of 2009 and 73 of 2010 Murugesan .. Appellant in CA 689/2009/Accused No.10 Rani alias Ranichandra .. Appellant in CA 728/2009/Accused No.2 Periannan .. Appellant in CA 732/2009/Accused No.1 1.Ramu @ Ramkumar 2.Sara @ Saravanan 3.Sakthi @ Sakthivel 4.White @ Vellaiyan @ Selvam 5.Beeran @ Beer Mohammed .. Appellants in CA 73/2010/Accused No.5 to 9 vs State represented by Inspector of Police Sangagiri Taluk Sangagiri Police Station Crime No.501/2007 .. Respondent in all appeals/Complainant Criminal appeals preferred under Sec.374(2) of 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.269 of 2008 dated 21.10.2009. For Appellants : Mr.R.Natarajan in CA 689/2009 Mr.B.Vasudevan in CA 728/2009 Mr.V.Gopinath Senior Counsel for Mr.L.Mahendran in CA 732/2009 https://hcservices.ecourts.gov.in/hcservices/ Mr.N.Manokaran in CA 73/2010 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 all these four appeals namely CA 732/2009 by A-1, 728/2009 by A-2, 689/2009 by A-10 and 73/2010 by A-5 to A-9. All these appeals concentrate in challenging a judgment of the Additional Sessions Division, Fast Track Court No.I, Salem, made in S.C.No.269/2008 whereby these appellants along with two other accused ranked as A-3 and A-4, stood charged, tried, found guilty and awarded punishment as follows: ACCUSED CHARGES FINDING PUNISHMENT A-1 & A-2 120(B) r/w 302 IPC Guilty Life imprisonment with a fine of Rs.10000/- and default sentence A-3 & A-9 148 IPC Guilty 3 years RI with a fine of Rs.3000/- and default sentence A-1, A-4 to A-8 & A-10 147 IPC Guilty 2 years RI with a fine of Rs.2000/- and default sentence A-1 & A-3 to A-9 449 IPC Guilty Life imprisonment with a fine of Rs.10000/- and default sentence A-3, A-5, A-6 & A-7 302 r/w 149 IPC Guilty Life imprisonment with a fine of Rs.10000/- and default sentence A-1, A-2, A-4 & A-8 to A-10 302 r/w 109 IPC Guilty Life imprisonment with a fine of Rs.10000/- and default sentence https://hcservices.ecourts.gov.in/hcservices/ ACCUSED CHARGES FINDING PUNISHMENT A-2 302 r/w 120(B) IPC Guilty Life imprisonment with a fine of Rs.10000/- and default sentence A-4 to A-10 157 r/w 302 IPC Guilty 6 years RI with a fine of Rs.6000/- and default sentence 2.Short facts necessary for the disposal of these appeals can be stated as follows: (a) A-2 is the wife of the deceased Selvam. P.Ws.1 and 2 are the parents of the deceased. A-1 was the nephew of A-2, and they had illicit intimacy. P.Ws.4, 5 and 8 are nephews of the deceased. Six months prior to the date of occurrence, the deceased met with an accident, and he was admitted in N.K. Hospital, Erode. P.W.8, one of the nephews of the deceased, went to the hospital where he was under treatment, and at that time, he saw the deceased lonely. Then he asked him about the wife, and the deceased informed him that she was standing outside. Then, he went outside and found A-1 and A-2 talking to each other in a feeble voice. On seeing him, they abruptly stopped talking. Thereafter, P.W.8 advised her to be present near the bed and came back. (b) One week later, the deceased was discharged from the hospital. P.W.8 went to the house of the deceased to enquire about his health. At that time, he found A-1 and A-2 talking near the haystack. At that time, A-2 requested A-1 that the deceased husband was the hurdle to their intimacy, and hence he should be finished off. A-1 replied that all arrangements were made, and things would take in shape within 10 days. P.W.8, considering the relationship with the family, did not want to reveal anything since it would disturb the family peace, and hence he returned. (c) On 19.6.2007, the date of occurrence, at about 2.00 A.M., when P.W.1 and his wife were sleeping in the room, A-2 with bleeding injuries came there and informed them that unknown persons stabbed herself and also her husband. P.W.1 immediately rushed over to the other side where the deceased was sleeping and found his dead body in a pool of blood, and his head was found to be severed. Immediately, P.W.1 informed to P.W.3, one of the neighbours. Thereafter, P.W.3 rushed to the house of P.W.4, and then A-2 was taken to the Government Hospital where she was given treatment by P.W.22, the Doctor. The accident register copy is marked as Ex.P19. Thereafter, P.Ws.1 and 2 went to Sankagiri Police Station, and P.W.1 lodged a complaint to P.W.27, the Sub Inspector of Police, which is marked as Ex.P1, on the strength of which a case came to be registered in Crime No.501 of 2007 under Sections 302 and 307 of IPC. Ex.P27, the printed FIR, was despatched to the Court. https://hcservices.ecourts.gov.in/hcservices/ (d) P.W.28, the Inspector of Police of Sankagiri, on receipt of the copy of the FIR and Ex.P1, took up investigation, went to the scene of occurrence at about 8.00 A.M., made an inspection and prepared an observation mahazar, Ex.P3, and also a rough sketch, Ex.P28. Thereafter, he conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P29. Then, the dead body was handed over to the Government Hospital along with a requisition for the purpose of autopsy. (e) P.W.26, the Tutor in Department of Forensic Medicine, Government M.K.M. College & Hospital, Salem, on receipt of the requisition, conducted autopsy on the dead body of Selvam and has given his opinion in the postmortem certificate, Ex.P26, that the deceased would appear to have died of shock and haemorrhage due to cut injury sustained by him. (f) On 19.6.2007 at about 12.15 P.M., P.W.28 recovered M.O.1, bloodstained rope, M.O.2, yellowish black tape, M.O.3 towels, M.O.4, a pair of cheppals, M.O.5, bloodstained earth, and M.O.6, sample earth, from the place of occurrence under a cover of mahazar. He recorded the statement of the witnesses. (g) While the investigation was pending, on 28.6.2007 at about 10.00 A.M., when P.W.14, the Village Administrative Officer (VAO) of Arasiramani Village, was in his office, A-1 appeared before him and gave a confessional statement regarding the occurrence. The same was recorded by P.W.14, and he took A-1 to the police station and produced before the police officer. P.W.28, the Inspector of Police, arrested him and recorded the confessional statement of A- 1. The report given by P.W.14, VAO, is Ex.P9. Pursuant to the confessional statement given by A-1 to the police officer, he also produced a motorbike, M.O.1, bearing registration No.TN 30 U 7234, which was recovered under a cover of mahazar. He was sent for judicial remand. The other witnesses were examined and their statements were recorded. (h) On 29.6.2007, P.W.28 arrested A-3. He gave a confessional statement voluntarily. Pursuant to the same, he produced M.O.11, bloodstained knife, M.O.12, bloodstained jumper, and M.O.13 bloodstained glove, which were recovered under a cover of mahazar. He was sent for judicial remand. Thereafter, A-10 was arrested, and he gave a confessional statement voluntarily. He also produced a Van, M.O.18, which was recovered under a cover of mahazar. Thereafter he was sent for judicial remand. (i) The further investigation was taken up by P.W.29, the Inspector of Police. Then A-2 was arrested, and he also gave a confessional statement. He was sent for judicial remand. Thereafter, A-5 was arrested, and he gave a confessional statement. A towel was recovered from him, and he was sent for judicial remand. The Investigator came to know that A-4 surrendered before the Judicial Magistrate, and police custody was sought for. It was also given for A-4 and also A-1 who was in judicial custody. Both https://hcservices.ecourts.gov.in/hcservices/ of them were again enquired by the Investigator. A-1 gave a confessional statement, and the same was recorded. At that time, he also produced a cell phone marked as M.O.14, which was recovered under a cover of mahazar. Then A-6 and A-7 were taken to custody. They also gave confessional statements which were recorded. A-8 was arrested on 1.8.2007, and he gave a confessional statement, which was recorded. Pursuant to the same, he produced a towel which was recovered under a cover of mahazar. All the accused were sent for judicial remand. All the material objects were subjected to chemical analysis which brought forth two reports namely Ex.P23, serologist's report, and Ex.P24, chemical analyst's report. On completion of investigation, the Investigator filed the final report. 3.The case was committed to Court of Sessions, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 29 witnesses and also relied on 29 exhibits and 23 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 on either side and took the view that the prosecution has proved the case beyond reasonable doubt and hence found them guilty along with the other two accused and awarded the punishment as referred to above. Hence these appeals at the instance of the appellants. 4.Advancing arguments on behalf of the appellant/A-1 in C.A.No.732/2009 the learned Senior Counsel Mr.V.Gopinath would inter alia submit that in the instant case, the prosecution commenced its story with a conspiracy hatched up between A-1 and A- 2 pursuant to which the commission of the crime of murder has taken place; that the only witness examined by the prosecution in this regard is P.W.8; that according to P.W.8, he was a nephew of the deceased, and his nephew, the deceased, met with an accident, and he was hospitalized in Erode Hospital, and he went over there in order to see him, and at that time, he found A-1 and A-2 talking outside the hospital in a feeble voice; that he did not whisper anything about the conspiracy part; that further the witness added that after the deceased Selvam was discharged from the hospital, he went to his house to see him, and at that time also, he found A-1 and A-2 talking outside near the haystack, and A-2 was requesting A-1 that her husband was the hurdle and therefore he should be finished off early, and in reply A-1 assured her that it would be done within a short span of 10 days, and she should wait for that. The learned Senior Counsel attacking this part of the evidence would urge that had it been true, he would have immediately entertained a suspicion and informed either to the deceased, his nephew, or his parents or any close relatives, but he has not done so; that only after a lapse of time and that too after the occurrence, he came forward to give such a statement; that this would be indicative of the fact that the evidence of P.W.8 was actually secured by the prosecution for the purpose of roping in https://hcservices.ecourts.gov.in/hcservices/ all the accused as if there was a conspiracy; that the circumstances would clearly indicate that the evidence of P.W.8 was only a planted one, and hence the prosecution has miserably failed to prove the conspiracy part. 5.Added further the learned Senior Counsel that insofar as the participation of A-3 to A-10, there is no evidence available; that what was all recovered from them was only a towel and also a cell phone respectively; that there is nothing to indicate that they have got anything to do with the crime in question; that it is not the case of the prosecution that they were actually conspirators or they acted pursuant to the conspiracy; and that in the case on hand, not even any direct evidence or circumstantial evidence would indicate the participation of A-3 to A-10 at the time of the occurrence. 6.The learned Senior Counsel would further submit that as far as A-1 is concerned, the prosecution much relied on the extra- judicial confession alleged to have been given by A-1 to P.W.14, the VAO, on 28.6.2007. The learned Senior Counsel would urge that if the extra-judicial confession inspires the confidence of the Court, there cannot be any legal impediment to convict the accused; but in the instant case, there are so many circumstances which would clearly throw suspicion on the alleged extra-judicial confession; that according to P.W.14, A-1 came to his office at about 10.00 A.M. on 28.6.2007, and he immediately phoned over to Thevur Police Station; but, there was no reply; and thereafter he took him to Thevur police station, and Ex.P9 is the statement given by him what is found in the chief examination; that at the time of cross-examination, he has candidly admitted that when he took him to Thevur Police Station, the Sub Inspector of Police and Inspector of Police were available, and his statement was also recorded at the police station; that now it is pertinent to point out that if Ex.P9 is perused, it would clearly indicate that it was only a report made by P.W.14 to the police officer; but the prosecution had not placed the confessional statement alleged to have been given by A-1 to P.W.14; that had it been true that according to P.W.14, he actually recorded a statement, what happened to that statement remained unknown and also a duty was cast upon the prosecution to place and prove the same, but not done so; that so long as that document is not produced before the Court, no evidentiary value could be attached to that part of the evidence; that the non-production, would suffice to draw the presumption under Sec.114(G) of the Evidence Act; that apart from that, the evidence of P.W.28 would be contrary to the evidence of P.W.14; that this will go to show that there was no such statement which would have come into existence; that if at all such a statement has come into existence, there could not be any impediment for the prosecution to produce the same; and that under the circumstances, the evidence of the prosecution in that regard should have been rejected by the trial Court, but failed to do so. 7.Added further the learned Senior Counsel that as far as A-2 was concerned, she sustained some injuries as could be seen from https://hcservices.ecourts.gov.in/hcservices/ the accident register copy, Ex.P19; that the prosecution had no explanation to offer how those injuries were sustained by her at the time of occurrence, and thus the prosecution has miserably failed to prove either the conspiracy or the participation of the accused in the crime; that as far as the recovery of the weapons of crime is concerned, even assuming that they have been recovered, that by themselves cannot form basis for a conviction and under such circumstances, all of them are entitled for acquittal in the hands of this Court. 8.The learned Counsels appearing for the other appellants adopted the above arguments. 9.This Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 10.It is not in controversy that one Selvam the husband of A-2 and the son of P.Ws.1 and 2, was done to death in an incident that had taken place on the night hours of 19.6.2007 in his residence. P.W.1 went to the police station and gave a complaint to P.W.27 on the strength of which the case came to be registered under Sections 302 and 307 of IPC. P.W.28, the Inspector of Police, took up investigation on receipt of the copy of the FIR. Following the inquest conducted by him, the dead body was subjected to postmortem. P.W.26, the Doctor, conducted postmortem and has opined that he died out of shock and haemorrhage due to the cut injury sustained by him. The fact that he died out of homicidal violence was never a subject matter of controversy before the trial Court, and hence no impediment was felt by the learned trial Judge to record so and rightly too. 11.The prosecution as regards the charge of conspiracy levelled against all the accused, relied on the evidence of P.W.8 exclusively. After scrutiny of the evidence of P.W.8, this Court is afraid whether it could accept his evidence. In a given case like this, the prosecution can prove conspiracy by direct evidence or from the proved facts it could be inferred. But, in the instant case, so far as the evidence of P.W.8 is concerned, this Court is afraid whether it can act on his evidence. According to P.W.8, he went to the hospital at Erode to see the deceased who was admitted there when he met with an accident, and at that time, he found A-1 and A-2 standing outside and taking to each other; but he does not whisper anything what they were talking about. The witness would further add that after the treatment, the deceased returned home, and he went to the house, and at that time, he found A-1 and A-2 talking near the haystack, and she (A-2) was making a request to A- 1 to finish him off. Now had it been actually true, he should have immediately informed to the members of the family since he is a close relative, and all the more it has become important since he has already entertained suspicion when he found both of them talking outside the hospital at Erode. Under such circumstances, one would reasonably expect him to speak; but, he has kept silent for a long time till the occurrence was over, and even after the https://hcservices.ecourts.gov.in/hcservices/ occurrence was over he did not reveal to anybody. He came after a longtime. The conduct of P.W.8 would clearly indicate that he actually witnessed both A-1 and A-2 talking to each other. Thus conspiring together or hatching up a conspiracy is highly improbable, and that part of the evidence has got to be rejected. 12.Insofar as the other part of the case of the prosecution, the occurrence has taken place on the night hours of 19.6.2007 at about 1.30 A.M. When P.Ws.1 and 2 were sleeping in the other part of the house, it was A-2 who came and informed that some unknown persons came and cut both of them namely herself and her husband, and immediately, P.Ws.1 and 2 rushed over there and found the dead body of the husband of A-2. At this juncture, it is pertinent to point out that A-2 was actually taken to the hospital for treatment and was treated by P.W.22, the Doctor. The injuries found on her are noted in Ex.P19, the accident register copy. One would naturally expect how those injuries have happened. But, the prosecution is unable to explain how it happened. Further, all these injuries, as could be seen from the materials available, are trivial in nature. In every case the prosecution is not duty bound to explain when the injuries are trivial in nature. 13.Apart from the above, the prosecution much relied on and the trial Court has also accepted the extra-judicial confession alleged to have been given by A-1 to P.W.14, the VAO, when he was in his office at about 10.00 A.M. on 28.6.2007. It is well settled principle of law that the Court can sustain a conviction if the extra-judicial confession passes two tests; firstly, to whom and under what circumstances the extra-judicial confession was given and whether the evidence of the person to whom the extra-judicial confession is alleged to have been given inspires the confidence of the Court. If these two tests are applied, this Court is afraid whether it could accept the so-called extra-judicial confession. Firstly, in the instant case, according to P.W.14, he was in his office at about 10.00 A.M. on 28.6.2007, and at that time, A-1 came there and immediately, he phoned over to Thevur Police Station and was waiting for the reply, and there was no reply, and then he took him to Thevur Police Station. The reading of the chief-examination of this witness in entirety, does not reveal when he recorded the extra-judicial confession in his office. At the time of cross- examination he has categorically stated that he took him to Thevur Police Station, and at that time, the Sub Inspector of Police and the Inspector of Police were present and the extra-judicial confession was recorded. Hence it would be quite indicative of the fact that the so-called extra-judicial confession was actually recorded at Thevur Police Station. Once the extra-judicial confession is actually recorded in the presence of the Police Officer as spoken to by P.W.14, then it would be highly unsafe to act upon that extra-judicial confession. 14.Secondly, according to P.W.14, he actually recorded the extra-judicial confession. But what is available before the trial Court and recorded also is Ex.P9 only. Ex.P9 would clearly indicate that it is only a report which was addressed by him to the https://hcservices.ecourts.gov.in/hcservices/ Police Officer. Thus the extra-judicial confession alleged to have been given by A-1 to P.W.14 has not seen the day. What happened to such a statement remained unexplained by the prosecution. Hence in the face of the evidence of P.W.14 that the extra-judicial confession which was given by A-1, was recorded at Thevur Police Station and that too in the presence of the police officer and the same has also not been produced before the Court, it would be highly unsafe to rely on such an extra-judicial confession. The learned Additional Public Prosecutor for the State indicated that Ex.P9 contained the confession which was actually made by A-1. But, a perusal of Ex.P9 would indicate that it was only a letter. While the statement which was alleged to have been recorded by P.W.14 has not been produced before the Court, a duty is cast upon the prosecution to produce such an extra-judicial confession, and if not produced, the prosecution must have got a convincing explanation. In the case on hand, the prosecution has neither produced nor placed any explanation before the Court. In such circumstances, the learned trial Judge has taken an erroneous view as if there is an extra-judicial confession, and it could be acted upon. It can be well stated that that part of the evidence as to the extra-judicial confession cannot be a piece of evidence which could be relied on by the prosecution or accepted by the Court. 15.As far as the other accused are concerned, what are all produced are only towels with bloodstains and also two cell phones. In the absence of any materials to connect the accused, these materials though they were recovered pursuant to the confessional statement, cannot be acted upon as a piece of evidence in favour of the prosecution. It is well settled proposition of law that whenever any weapon of crime is recovered pursuant to the confessional statement recorded under Sec.27 of the Evidence Act, the said weapon must have got consistency with the mode of crime. What is actually put forth by the prosecution herein is the recovery of towels. Even assuming that there were bloodstains, they cannot form basis and cannot be taken as nexus of the accused with the crime. Under the circumstances, it cannot be stated that the prosecution has in any way brought home the guilt of the accused, and hence it is a fit case where they are entitled for the benefit of doubt. This Court is of the view that the learned trial Judge has taken an erroneous view, and it was a case where not only the prosecution lacked in evidence, but also reasonable doubts were available, and hence the judgment of the trial Court has got to be set aside. 16.It is brought to the notice of the Court that A-3 and A-4 have not preferred appeal, and the effect of this judgment could also be given