IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23-7-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN C.A.Nos.752 of 2008 and 356 and 379 of 2009 Kanagaraj @ Duraisamy @ Ganesh .. Appellant/A-1 in CA 752/2008 Palanisamy .. Appellant/A-3 in CA 356/2009 S.Nataraj .. Appellant/A-2 in CA 379/2009 vs State by: Inspector of Police Arachalur Police Station Crime No.88 of 2007 Erode District .. Respondent in all appeals Criminal appeals preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Court/Fast Track Court No.I, Erode, made in S.C.No.8 of 2008 dated 20.8.2008. For Appellants : Mr.N.Manokaran in CA 752/2008 Mr.Dhanasekaran in CA 356/2009 Mr.R.Nalliyappan in CA 379/2009 For Respondent : Mr.N.R.Elango Additional Public Prosecutor COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) These three appeals challenge a judgment of the Additional https://hcservices.ecourts.gov.in/hcservices/ Sessions Division, Fast Track Court No.I, Erode, made in S.C.No.8/2008 whereby the appellants three in number stood charged, tried and found guilty as follows: ACCUSED CHARGES FINDING PUNISHMENT A-1 to A-3 447 IPC Guilty 3 months RI A-1 to A-3 379 IPC Guilty 3 years RI A-1 to A-3 302 IPC Guilty Life imprisonment along with a fine of Rs.2000/- and default sentence A-1 A-2 & A-3 429 IPC 429 r/w 34 IPC Guilty Guilty 3 years RI 3 years RI 2.Short facts necessary for the disposal of these appeals can be stated as follows: (a) The deceased Natchimuthu Nadar was employed as a Watchman at Sivakumar Mandradiyalar Garden. P.W.2 was employed as a Watchman in his bungalow, and P.W.3 was employed as Manager who used to supervise the work. During day time, Natchimuthu Nadar used to graze the cattle and thereafter come to his house to take food, and after taking food, he used to go back at 9.00 P.M. and guard during night hours. Accordingly, on 27.4.2007 at about 9.00 P.M., after taking his dinner, he left his house. The next morning P.W.1, the wife of Natchimuthu Nadar, was informed that his husband's dead body is found with all stab injuries on his body. On hearing this, she rushed over there and found the dead body. Then she informed to P.W.3 also, who also came to the spot. At about 8.30 A.M., P.W.1 proceeded to the respondent police station and gave Ex.P1, the report, on the strength of which P.W.15, the Inspector of Police, registered a case in Crime No.88 of 2007 under Sec.302 IPC. The printed FIR, Ex.P19, was despatched to the Court. (b) P.W.15 took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and a rough sketch, Ex.P20. He deputed a Constable at the place of occurrence for security purpose. The finger print expert was called, and he took the finger prints. The sniffer dog squad was also called. P.W.11, the photographer, was called, who took the photographs. M.O.18 series are the photographs, and M.O.19 series are the negatives. Then the Investigator conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared Ex.P21, the inquest report. The dead body was sent to the Government Hospital along with a requisition for the purpose of autopsy. (c) The dead body was subjected to postmortem by P.W.7, the Doctor, attached to the Government Hospital, Erode, and he issued a postmortem certificate, Ex.P12, with his opinion that the deceased would appear to have died of shock and injuries sustained 10 to 24 hours prior to autopsy. (d) At the place of occurrence, a goat was also found killed. The same was sent to P.W.8, the Veterinary Doctor, who conducted https://hcservices.ecourts.gov.in/hcservices/ autopsy, and he has given a postmortem certificate, Ex.P13, that the animal died due to bleeding and shock caused by a sharp cutting object. (e) Pending investigation, on 7.6.2007, when P.W.6, the Village Administrative Officer (VAO), was proceeding to Komarapalayam along with his Assistant, A-1 appeared before him and gave an extra- judicial confession. The same was recorded, and it is marked as Ex.P5. P.W.6 gave his report Ex.P6. He produced A-1 along with Exs.P5 and P6 before the respondent police station. P.W.15 interrogated A-1, and A-1 came forward to give a confessional statement voluntarily. The same was recorded in the presence of witnesses. Ex.P7 is the admissible part of the confession. Then he took the police party and produced, M.O.10, aruval, M.O.11, pant, and M.O.12, shirt, which were recovered under a cover of mahazar. He also produced M.O.8, YAMAHA motorbike, which was also recovered under a mahazar. Thereafter he identified A-2 and A-3. They were arrested. A-2 gave a confessional statement. The admissible part is Ex.P9. He produced M.O.13, TVS XL Moped, which was recovered under a cover of mahazar. He also produced M.O.15, dhoti, M.O.16, shirt, and M.O.17, torch light, and M.O.14, aruval, which were recovered under a cover of mahazar. All of them were sent for judicial remand. All the material objects were subjected to chemical analysis which brought forth Ex.P16, the chemical analyst's report, and Ex.P17, the serologist's report. On completion of investigation, the Investigator filed the final report. 3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 15 witnesses and also relied on 21 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, but one document was marked as Ex.D1. The trial Court heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt and found the appellants guilty and sentenced them to imprisonment which is the subject matter of challenge before this Court. 4.Advancing arguments on behalf of A-1, the learned Counsel inter alia would submit that the occurrence has taken place on 28.4.2007, according to the prosecution; that the prosecution had no direct evidence to offer, and it rested its case only on two pieces of evidence namely the alleged extra-judicial confession given by A-1 to P.W.6, VAO, and also the extra-judicial confession alleged to have been given by A-3 to P.W.9, the Cycle Stand Owner; and that apart from that, the prosecution also relied on the recovery of M.Os.8 and 10 to 12 from A-1, and M.Os.13 to 17 from A-2. 5.The learned Counsel would further submit that in the instant case, the prosecution from the inception till the end could not attribute any motive to the accused; that even as per the prosecution case, the accused had nothing to do with the deceased; that apart from this, it was not the specific case of the prosecution that any https://hcservices.ecourts.gov.in/hcservices/ goat which was actually maintained and guarded by the deceased, was stolen; but, one of the goats was actually found dead with injuries; that it is also subjected to postmortem; and that under the circumstances, the prosecution had no motive to offer. 6.Added further the learned Counsel that it was not also a case of theft; that it is true that the prosecution was successful enough in proving that Natchimuthu Nadar died out of homicidal violence; that though it relied on circumstantial evidence, it did not bring forth any circumstance pointing to the guilt or the nexus of the accused to the crime; that as far as the evidence of P.W.6 was concerned, the trial Court should have rejected it outright; that P.W.6 was a VAO of Komarapalayam, a village situated about 30 kilometers away from the place of occurrence; that the occurrence has taken place on 28.4.2007; but, the alleged extra-judicial confession was made on 7.6.2007, nearly after a lapse of 40 days; that the witness has candidly admitted that the accused was not known to him previously; that apart from that, the case of the prosecution was that on 7.6.2007, P.W.6 came to know that A-1 was searching for him to make a confessional statement, and he made it also in the tea shop where he recorded the same; that when he gave evidence before the Court, he has given a go-by to the same; that further, he has not followed the procedural formalities; that he has also recorded the same in the tea shop; that the tea shop wala or the menial who was actually by his side, was not examined before the Court; that when P.W.6 was examined before the Court, he has deposed that his menial was not present; that when his statement was recorded by the Police Officer, he has stated that the menial was present, and thus it also casts a doubt; that apart from that, as far as the evidence of P.W.6 was concerned, he has not followed the procedures contemplated; that he has also recorded it after the investigation was commenced; and that under the circumstances, the alleged extra-judicial confession should have been outright rejected by the trial Court both factually and legally. 7.Added further the learned Counsel that as far as the recovery of the material objects pursuant to the confessional statement from A-1 was concerned, the Investigator has deposed that when he brought him to the police station, A-1 came forward to give a confessional statement voluntarily, and the same was recorded in the presence of P.W.6; that P.W.6 was the only witness examined for the alleged confession before the Police Officer at the police station and also recovery of the material objects mentioned above; that apart from that, the extra-judicial confession alleged to have been given by A-1 to P.W.6 is found to be exactly in the very terms as found in the confession given before the Police Officer; that it could be well stated that it was only a replica; that apart from the above, as far as the recovery is concerned, P.W.6 has categorically stated that he did not remember, but he was standing outside the house, and it was the accused who brought the material objects and produced, and he did not remember the material objects; that under the circumstances, the alleged confession to the Investigator and the recovery are nothing but false, and they should have been rejected; that these two pieces of evidence if rejected, then the prosecution had no more evidence to https://hcservices.ecourts.gov.in/hcservices/ offer, and hence the trial Court should have outrightly rejected the case put forth by the prosecution and acquitted A-1. 8.As far as A-2 and A-3 are concerned, the learned Counsel would submit that both the accused were identified by A-1; that the confession given by one accused if to have a binding force on the other accused, there must be other pieces of evidence which could lend assurance to the Court; that in the instant case, as far as A-3 is concerned, nothing was recovered and not even a confessional statement was recorded; that as far as A-2 was concerned, the recovery would clearly indicate that it could not have been made at all; that the same witness was examined for that purpose; that all would go to show that the prosecution had no evidence to offer, and hence they are entitled for acquittal in the hands of this Court. 9.The 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 the dead body of one Natchimuthu Nadar, the watchmen of the garden, was found. A case was registered by P.W.15, and thereafter the inquest was made. Then the dead body was subjected to postmortem by P.W.7, the Doctor, who has given a categorical opinion that he died out of shock and injuries sustained. This fact was never disputed by the appellants before the trial Court, and hence it has got to be recorded so. 11.In order to substantiate that the appellants are involved in the crime of murder of Natchimuthu Nadar, the prosecution had no direct evidence to offer; but, it relied on the circumstantial evidence. If the case of the prosecution rests on the circumstantial evidence, the circumstances must constitute a chain without a snap and be pointing to the hypothesis that except the accused, no one could have committed the offence. In this case, this Court is afraid whether it could accept the prosecution story. To start with, according to the prosecution, the occurrence has taken place on 28.4.2007 night hours. According to P.W.6, the VAO, on 7.6.2007, he was coming around in his village namely Komarapalayam, and at that time, he came to know that A-1 was searching for him to give a confessional statement, and thereafter, he called him to a tea stall where he actually recorded the statement in the presence of his village menial and also the tea shop wala. This confessional statement cannot be accepted for the following reasons. When P.W.6 was examined in Court, he has deviated from the statement given by him to the police officer under Sec.161 of Cr.P.C. In the case on hand, it was quite unnatural that A-1 was searching for him to give a confessional statement. According to P.W.6, he did not know the accused early, and thus he was a stranger. He was also a VAO of Komarapalayam, which is situated 30 kilometers from the place of the accused. That apart, he recorded the confessional statement in a public place namely a tea stall, and not in his office or house. It was actually recorded in the place before the tea shop wala; but, he was not examined. According to the Investigator, he has recorded the statement of P.W.6 under Sec.161 Cr.P.C. when the village menial was https://hcservices.ecourts.gov.in/hcservices/ also present; but, in evidence, P.W.6 has stated that the menial was absent. 12.Added further, even the name and address of the person were actually not recorded in the extra-judicial confession, and thus procedural formalities have not been followed. All the circumstances would indicate that the said extra-judicial confession could not have been given to the VAO and that too a stranger, and thus his evidence cannot be given any evidentiary value at all. Before accepting any extra-judicial confession to sustain a conviction, the Court has to apply two tests firstly under what circumstance the extra-judicial confession was made and secondly, whether the evidence of the person to whom the extra-judicial confession was made inspires the confidence of the Court. If these two tests are applied, the extra- judicial confession alleged to have been given by A-1 to P.W.6 cannot but be rejected. 13.As far as the other part namely the recovery of the material objects pursuant to the confessional statement alleged to have been made by A-1 to the Investigator at the police station is concerned, this Court is unable to agree with the prosecution case. P.W.6 is the only witness about whom criticisms were levelled and accepted by the Court as above. The Investigator would claim that A-1 was produced before the police, and he gave a confessional statement voluntarily, and it was also recorded. The admissible part is marked as Ex.P.7 pursuant to which he produced M.Os.8 and 10 to 12 which were all recovered under a cover of mahazar. The confession alleged to have been given to the Investigator at the police station is admittedly the replica of the extra-judicial confession alleged to have been recorded by P.W.6 in the tea shop. This would clearly indicate that all the documents should have been prepared at the same place. Added further, the evidence of P.W.6 for the recovery was actually found to be shaky. Further in the instant case, P.W.6's evidence cannot be relied on for the reasons stated above. Also it cannot in any way advance the prosecution case, and thus the prosecution had no further evidence to offer. 14.As regards A-2 and A-3, the evidence available for the prosecution is of the same nature, and both the accused were identified by A-1. The prosecution relied upon the extra-judicial confession alleged to have been given by A-3 to P.W.9, the cycle stand owner. It would lead to no recovery at all or any relevant fact. Further, as far as A-2 is concerned, the alleged confession and also the evidence adduced before the Court remained shaky. All put together in short would clearly reveal that the prosecution has miserably failed to place or prove the necessary circumstances warranting for a conviction; but, the trial Court has taken an erroneous view. Hence the judgment of the trial Court has got to be made undone by upsetting the same. https://hcservices.ecourts.gov.in/hcservices/ 15.Accordingly, these criminal appeals are allowed setting aside the judgment of the trial Court. The appellants are acquitted of the charges levelled against them. They are directed to be released forthwith unless their presence is required in connection with any other case. The fine amounts if any paid by them will be refunded to them. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv To: 1.The Additional Sessions Judge Fast Track Court No.I, Erode. 2.-do- thro' The Principal District and Sessions Judge, Erode. 3.The Judicial Magistrate No.II, Erode. 4.-do- thro' The Chief Judicial Magistrate,Erode. 5.The Superintendent, Central Prison, Coimbatore. 6.The Inspector of Police Arachalur Police Station Crime No.88 of 2007 Erode District 7.The Public Prosecutor High Court, Madras. 8.The District Collector,Erode. 9.The Director General of Police, Mylapore, Chennai. +1cc to Mr.N.Manokaran, Advocate Sr 33936 +1cc to Mr.S.Dhanasekharan, Advocate Sr 34749 +1cc to Mr.R.Nalliyappan, Advocate Sr 33873 BVN(CO) km/30.7. C.A.Nos.752 of 2008 and 356 and 379 of 2009 https://hcservices.ecourts.gov.in/hcservices/