Bail Slip Kalam @ Abdul Kalam Accused/(Appellant herein) in S.C.No.91/02 on the file of the Additional Sessions Judge, FTC No.3, Chengalpet was released on bail by the order of this court dated 3.3.04 and made in Crl.Mp.1466/04 in Crl.A.188/04 pending on the file of this court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09..03..2011 CORAM THE HONOURABLE Mr. JUSTICE S.NAGAMUTHU Crl. Appeal No.188 of 2004 Kalam @ Abdul Kalam ... Appellant -Versus- The Inspector of Police, Madipakkam Police Station, Chengalpattu District. [Crime No.338 of 2001] ... Respondent Memorandum of Grounds of Criminal Appeal under Section 374(2) of the Criminal Procedure Code against the judgement dated 26.08.2003 made in S.C.No.91 of 2002 by the learned Additional Sessions Judge, Fast Track Court No.III, Poonamallee, Chengalpattu District. For Appellant : M/s.J.R.Prabhakaran and N.Muthukrishnan For Respondent : Mr.R.Muniyapparaj, Government Advocate [Criminal Side] JUDGEMENT The appellant is the 1st Accused in S.C.No.91 of 2002 on the file of the Additional Sessions Judge , Fast Track Court No.III, Poonamallee, Chengalpattu District. There were altogether two accused in the case. The 2nd Accused has been acquitted by the trial court. The appellant has been convicted for offence under Section 304(ii) of IPC and Section 201 r/w 34 of IPC and sentenced to undergo R.I. for 5 years for the offence under Section 304(ii) of IPC and to undergo R.I. for 1 year for the offence under Section 201 r/w 34 of IPC by the judgement dated 26.08.2003. Both the https://hcservices.ecourts.gov.in/hcservices/ sentences have been ordered to run concurrently. Challenging the said conviction and sentence, the appellant is before this court with this criminal appeal. 2. The facts of the prosecution case in brief is as follows:- The deceased in this case was one Nabisha @ Asha. The appellant/A1 had developed intimacy with her. But, he doubted her conduct. Therefore, according to the prosecution, he wanted to do away with her. P.W.10 claims to be an eye witness to the occurrence. According to her, on the date of occurrence , she and P.W.9 along with their friends were sitting at Palavanthangal Railway Station. The deceased Nabisha came there some time late. These two accused also came there thereafter. At that time, P.W.10 and one Geetha had gone to the nearby hotel for buying food. When they returned, they found the deceased Nabisha lying on the platform and froth was coming from her mouth. They also found the deceased omitting. The body temperature of the deceased was on the higher side. While she omitted some tablets also came out. The 1st Accused told them that Nabisha was not alright and she was unwell. But, Geetha told her that Kalam attacked Nabisha on her chest. P.W.15 Geetha has stated that 1st Accused fisted the deceased on her chest. She would further state that since Nabisha became unconscious, they all took her along with the 1st accused to Puzhidhivakkam to an semi constructed building. Then P.W.15, P.W.9, P.W.10 and the 2nd Accused took Nabisha to the said incomplete building. There, all of them sprinkled water on her face. They found Nabisha alive. All the four stayed in the same building. At about 4.00 a.m. the accused put Nabisha in a bathroom of the house and thereafter all of them fled away from the scene of occurrence. 3. On 16.08.2001, P.W.2 was at his house which is nearby the said incomplete building. He felt some foul smell. He informed P.W.1 who happened to be his friend. P.W.1 went to the house of P.W.2 and thereafter, after ascertaining that the foul smell was emanating from the semi constructed building, P.W.1 preferred a complaint to the police. On receiving the complaint, the police rushed to the spot, where they found the body of deceased in a highly decomposed condition. At that time, identity of the deceased could not be made out by P.W.1 and P.W.2. The police took up the investigation and proceeded to the place of occurrence. Since the bathroom of the house could not be opened, P.W.4 was directed by the police to open the bathroom where they found the dead body. An observation mahazar was prepared for the same in the presence of P.W.4 and a saree found on the body of the deceased was also recovered. The dead body was taken to Royapettah Government Hospital and kept in the mortuary. Thereafter, on information by the investigating officer, P.W.5, the grand father of the deceased Nabisha came to the police station where from he was taken to Royapettah Government Hospital. On 16.08.2001 at about 10.00 p.m. He identified the body as that of Nabisha. P.W.6 is the son of P.W.5. He also identified the body at Royapettah Government Hospital. P.W.7 is the Judicial Magistrate, who recorded the https://hcservices.ecourts.gov.in/hcservices/ statements of witnesses Sathya and Geetha under Section 164 of Cr.P.C. On completing the inquest by P.W.17 at Royapettah Government Hospital, the body was forwarded for post-mortem. P.W.12 Doctor conducted autopsy. Ex.P.7 is the Post-mortem Certificate. He found that the body was in a highly decomposed condition. The findings and opinion of P.W.12 Doctor are as follows:- "partly skeletonised, highly decomposed, moderately nourished female body with plenty of maggots. Hair could be easily plucked off . Eye balls were not found and maggots were coming out of orbital sockets. Nose was not found. Post mortem loosening of some of the teeth seen. Post mortem disarticulation of right hand fingers at the level of meta carpo phalangeal joints, left shoulder joint, right ankle joint and left foot toes at the level of meta tarsophalangeal joints. Post mortem disarticulation of cervical vertebra between C4 and C5, temporo mandibular joints, sternochondral junction and most of the costo vertebral joints. Most of the internal organs were highly decomposed liquified and not found. Intermittent bruised areas with variegated colours seen over the scalp and ectocranial surface of the vault of the skull on both sides. Fissured fracture of the right parietal bone extending from the middle of right coronal suture to the middle of right parieto temporal sutures measuring 5.5 cms long. The fracture margins showed evidence of bruising . All sutures were intact and not fused. The brain was not found. The skull cavity empty. Length of the right humerus measured 28 cms in length. So by applying the multiplication factor the stature of the individual was about 149 cms.” He opined that the deceased would have died of head injuries and the death would have happened 5 to 10 days prior to the post- mortem. 4. The accused surrendered before the learned XIII Metropolitan Magistrate on 17.08.2001. On 29.08.2001, P.W.17 took up police custody on the orders of the learned Magistrate. He requested the Tahsildar [P.W.13] to come over to Madipakkam Police Station in order to be a witness to the confessions to be given by the accused. Accordingly, in the presence of P.W.17, the Inspector of Police and P.W.13, the Tahsildar, the 1st Accused [appellant herein] and the other accused gave confessions. The said confessions were all videographed. Apart from that, the confessions were also recorded in writing, in which, P.W.13 signed as a https://hcservices.ecourts.gov.in/hcservices/ witness. On completing the investigation, P.W.17 laid the final report against the appellant herein and another for offences under Sections 201 and 302 r/w 34 of IPC. 5. Based on above materials, the trial court framed charges under Sections 302 of IPC against the 1st Accused alone and for offence under Section 201 r/w 34 of IPC as against both 1st Accused and 2nd Accused. The accused denied the charges. They were put on trial. During trial, on the side of the prosecution, as many as 17 witnesses were examined, 28 documents were exhibited and 7 material objects were marked. When the incriminating materials were put to the accused, they denied the same. They examined one Ms.Selvi as D.W.1. However, no document was exhibited on their side. Having considered all the above materials, the trial court found the appellant/A1 alone guilty and accordingly convicted him. That is how, the appellant is now before this court with this criminal appeal. 6. I have heard Mr.J.R.Prabhakaran, the learned counsel appearing for the appellant / A1 and Mr.R.Muniyapparaj, learned Government Advocate [Criminal Side] for the State and also perused the records carefully. 7. The learned counsel for the appellant would point out that the evidence of P.W.15 Geetha cannot be relied on for any purpose. According to him, the conduct of P.W.15 as spoken to by her would itself go to show that she is not a believable witness. He would further submit that the evidences of P.W.9 and P.W.10 also of the same character. Therefore, their evidences also cannot be believed. 8. The learned counsel for the appellant would further submit that apart from the above, the prosecution relies on the confession said to have given by the accused which were videographed in the presence of P.W.13, the Tahsildar and P.W.17, the Inspector of Police. The learned counsel would submit that these confessions are not admissible in evidence in any manner since there was no discovery of fact made out of the same. The learned counsel would further submit that the medical evidence also does not support the case of the prosecution. 9. The learned Government Advocate [Criminal Side] would, however, refute all the above grounds. According to him, the evidence of P.W.15 is believable as she happens to be an eye- witness. The evidences of P.W.9 and P.W.10 duly corroborate the evidence of P.W.15. He would submit that the presence of the deceased in the company of the accused was lastly witnessed by P.W.9 and P.W.10 and that P.W.15 had seen the accused beating the deceased on her chest. He would further submit that because of the fall on the platform, the deceased sustained head injuries and due to the injuries, she died as opined by the Doctor. Therefore, according to the learned Government Advocate, the prosecution has https://hcservices.ecourts.gov.in/hcservices/ proved the case and, therefore, the findings of the trial court does not require any interference at the hands of this court. 10. I have carefully considered the above rival submissions. 11. At the out set , I have to state that the so-called confession said to have been given by the 1st accused to the police in the presence of P.W.13, the Tahsildar is not admissible in evidence in view of the clear bar contained in Section 25 of the Evidence Act. Admittedly, at the time when the confession was allegedly made in the Police Station A1 was in the police custody. Therefore, under Section 26 of the Evidence Act, if the same has been recorded by a Judicial Magistrate , certainly, the same would be admissible. But, the same was recorded by an Executive Magistrate. Here, the term "Magistrate" referred to in Section 26 of the Evidence Act does not refer to the Executive Magistrate in view of Section 3 (3) of the Code of Criminal Procedure. Section 26 of the Evidence Act and Section 3(3) of the Code of Criminal Procedure read as follows:- Section 26 of the Evidence Act, 1872 26. Confession by accused while in custody of police not to be proved against him.- No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. [Explanation.- In this section "Magistrate" does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure.] Section 3 (3) of the Code of Criminal Procedure, 1973 "3. Construction of references.- (1) In this code, (a) .......................... (b) ........................... (c) .......................... (d) ........................ (2) ......................... (3) Unless the context otherwise requires, any reference in any enactment passed before the commencement of this code, - https://hcservices.ecourts.gov.in/hcservices/ (a) To a magistrate of the first class, shall be construed as reference to a judicial Magistrate of the first class; (b) To a magistrate of the second class or of the third class, shall be construed as a reference to a judicial Magistrate of the second class; (c) To a presidency Magistrate or chief presidency magistrate, shall be construed as a reference respectively, to a metropolitan magistrate or the chief metropolitan magistrate; (d) To any area, which is included in a metropolitan area, as a reference to such metropolitan area, and any reference to a magistrate of the first class or of the second class in relation to such area, shall be construed as reference to the metropolitan magistrate-exercising jurisdiction in such area." 12. Admittedly, the Evidence Act was enacted before the commencement of the Code of Criminal Procedure, 1973 and, therefore, as per the above provision, the term "Magistrate" as referred to in Section 26 of the Evidence Act will mean only a Judicial Magistrate. Therefore, the confession either videographed or recorded by the police in the presence of P.W.13, the Executive Magistrate will be hit by Sections 25 and 26 of the Evidence Act. Thus, the confessions said to have given by the accused to the police in the presence of P.W.13, the Executive Magistrate is not admissible in evidence as the same does not fall under Section 27 of the Evidence Act as well. 13. Now, coming to the evidences of P.W.9, P.W.10 and P.W.15, the narration of the facts would go to show that they are not innocents but, accomplices. They have stated that they were together along with the accused and the deceased Nabisha at Palavanthangal Railway Station for some time and after the accused had fisted the deceased on her chest, they accompanied the accused to take the deceased while she was unconscious to a distant place and even after knowing that she was alive they allowed her to die and then they left the body in a bathroom in the semi constructed building. They did not inform the same to the police or even to the relatives of the deceased. This conduct of P.W.9, P.W.10 and P.W.15 would go to show that they are only accomplices. Though they were not arrayed as accused and also as approvers, still they are only accomplices in legal sense. For this I may refer to a https://hcservices.ecourts.gov.in/hcservices/ judgement of the Hon'ble Supreme Court in Laximipat Choraria and others v. State of Maharashtra, AIR 1968 SC 938 wherein it has been held as follows:- "13. On the side of the State many cases were cited from the High Courts in India in which the examination of one of the suspects as a witness was not held to be illegal and accomplice evidence was received subject to safeguards as admissible evidence in the case. In those cases, s. 342 of the Code and s. 5 of the Indian Oaths Act were considered and the word 'accused' as used in those sections was held to denote a person actually on trial before a court and not a person who could have been so tried. The witness was, of course, treated as an accomplice. The evidence of such an accomplice was received with necessary caution in those cases. These cases have all been mentioned in In re Kandaswami Gounder AIR 1957 Mad 727, and it is not necessary to refer to them in detail here. The leading cases are: Queen Empress v. Mona Puna, (1892) ILR 16 Bombay 661: Banu Singh v. Emperor, (1906) ILR 33 Cal 1353; Keshav Vasudeo v. Emperor, ILR 59 Bom 355 : AIR 1935 Bom 186; Empress v. Durant, (1899) ILR 23 Bom 213; Ashok Kumar Mookerjee v. Emperor, ILR 45 Cal 720:AIR 1919 Cal 1021; A. V. Joseph v. Emperor, ILR 3 Rang 11 : AIR 1925 Rang 122; Amdumiyan V. Emperor, ILR 1937 Nag 315 : AIR 1937 Nag 17 (FB); Galagher v. Emperor, ILR 54 Cal 52 : AIR 1927 Cal 307; and Emperor v. Har Prasad, ILR 45 ALL 226 : AIR 1923 ALL 91. In these cases (and several others cited and, relied upon in them) it has been consistently held that the evidence of an accomplice may be read although he could have been tried jointly with the accused. In some of these cases the evidence was received although the procedure of s. 337, Criminal Procedure Code was applicable but was not followed. It is not necessary to deal with this question any further because the consensus of opinion in India is that the competency of an accomplice is not destroyed because he could have been tried jointly with the accused but was not and was instead made to give evidence in the case. Section 5 of the Indian Oaths Act and s.342 of the Code of Criminal Procedure do not stand in the way of such a procedure." In view of the above settled position of law there can be no difficulty to conclude that P.W.9, P.W.10 and P.W.15 are only accomplices. https://hcservices.ecourts.gov.in/hcservices/ 14. Under Section 114(b) of the Evidence Act, the evidences of accomplices are always untrustworthy unless they are corroborated in material particulars. Under Section 133 of the Evidence Act, though it is not illegal to convict an accused on the basis of an uncorroborated testimony of an accomplice, still a conjoint reading of the two provisions namely Sections 114 (b) and 133 of the Evidence Act would go to show that without corroboration in material particulars, it is difficult to base conviction solely on the basis of the tainted evidences of accomplices unless the court finds that their evidences inspire the confidence of the court and that it will not be unsafe to convict on the basis of the same. In this regard, I may refer to a judgement of the Hon'ble Supreme court in Bhiva Doulu Patil v. State of Maharashtra, AIR 1963 SC 599 wherein the Hon'ble Supreme Court in paragraph 9 has held as follows:- "7. The combined effect of Ss. 133 and 114, illustration (b) may be stated as follows : According to the former, which is a rule of law, an accomplice is competent to give evidence and according to the latter which is a rule of practice it is almost always unsafe to convict upon his testimony alone. Therefore though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the Courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars. The law may be stated in the words of Lord Reading C.J. in R. v. Baskerville 1962-2 KB 658 as follows:- "There is no doubt that the uncorroborated evidence of an accomplice is admissible in law [R. v. James Attwood, (1787) 1 Leach 464]. But it has been long a rule of practice at common law for the judge to warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice, and in the discretion of the Judge, to advise them not to convict upon such evidence, but the judge should point out to the jury that it is within their legal province to convict upon such unconfirmed evidence [R. v. Stubbs, (1855) Dears C C 555; in re, Meunier, 1894-2 Q.B. 415]" https://hcservices.ecourts.gov.in/hcservices/ We, therefore, allow this appeal, set aside the order of conviction and direct that the appellant be released forthwith." 15. Applying the above settled principle of law to the facts of the present case, if the evidences of P.W.9, P.W.10 and P.W.15 are analysed, they are not corroborated in any material particulars by any other source. As a matter of fact, the medical evidence contradict their evidences . There is no sign of any injury on the chest of the deceased. Further, the evidence of Doctor also does not go to prove the time of death. Apart from all these things, these witnesses, as I have already stated, are untrustworthy which is so evident from their conduct. Above all, the tainted testimony of one accomplice cannot draw corroboration from the tainted testimony of another accomplice. 16. In view of all the above, I am of the firm opinion, that it is not safe to convict the appellant/A1 on the evidences of P.Ws.9, P.W.10 and P.W.15 alone. Thus, I hold that the prosecution has failed to prove the case beyond any reasonable doubt and, therefore, the appellant/A1 is entitled for acquittal. 17. In the result, the criminal appeal is allowed; and the conviction and sentence recorded by the trial court against the appellant/A1 are set aside. Bail Bond executed by the appellant shall stand cancelled. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar kmk To 1.The Addl. Sessions Judge,FTC-III,Poonamallee,Chennai. 1a. -do- Through The Principal Sessions Judge, Chengapet. 2.The Inspector of Police, Madipakkam P.S.Chengalpet District. 3. The District Munsif-cum- Judicial Magistrate Alandur. 4. -do- Through The Chief Judicial Magistrate Chengalpet. 5. The Superintendent, Central Prison, Chennai. 6. The Public Prosecutor, High Court, Madras. + 1 cc to Mr.J.R. Prabakaran, Advocate SR.17155 Crl. Appeal No.188 of 2004 KSJ(CO) Eu 8.4.11 https://hcservices.ecourts.gov.in/hcservices/