BAIL SLIP Crl.A.Nos.170,182,218,241,271,311 and 322/2007 The Appellants viz., A.V.Raju (A-9)- Appellant in Crl.A.No.170/07, Ravi @ Ravikumar/(A-10)-Appellant in Crl.A.182/07,Krishnamurthy and Mathesh(A-7 & A-11)Appellants in Crl.A.218/07, Govindan @ Govindaraj (A-2) Appellant in Crl.A.241/07, Chakarai @ Chakaravarthi(A-1) Appellant in Crl.A. 271/07,Dinakaran @ Dina(A-8)Appellant in Crl.A.311/07,and Karthik @ Elumban,Prakasam,A.Asaithambi and Kumaresan(A-3,4,5 and 6),Appellants 1 to 4 in Crl.A.322/07 were directed to be released on bail in and by the orders of this Court dated 06.3.07,06.3.07, 06.3.07, 27.3.07,30.3.07, 13.4.07 and 20.4.07 respectively in MP.Nos.1/2007 in each of the respective appeals. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16-6-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.Nos.170, 182, 218, 241, 271, 311 and 322 of 2007 A.V.Raju .. Appellant/A-9 in CA 170/2007 Ravi @ Ravikumar .. Appellant/A-10 in CA 182/2007 1.Krishnamurthy 2.Mathesh .. Appellants/A-7 & A-11 in CA 218/2007 Govindan @ Govindaraj .. Appellant/A-2 in CA 241/2007 Chakarai @ Chakaravarthi .. Appellant/A-1 in CA 271/2007 Dinakaran @ Dina .. Appellant/A-8 in CA 311/2007 1.Karthik @ Elumban 2.Prakasam 3.A.Asaithambi 4.Kumaresan .. Appellants/A-3, A-4, A-5 and A-6 in CA 322/2007 vs State by: Inspector of Police Azhagapuram Police Station https://hcservices.ecourts.gov.in/hcservices/ (Cr.No.1332/2005) .. Respondent in all appeals Criminal appeals preferred under Sec.374 of the Code of Criminal Procedure against the judgment of the Additional Sessions Judge (Fast Track Court No.II), Salem, made in S.C.No.5 of 2006 dated 7.2.2007. For Appellants : Mr.V.Gopinath Senior Counsel for Mr.L.Mahendran in CA 170 & 218/2007 Mr.K.V.Sridharan in CA 241/2007 Mr.Anantha Narayanan in CA 271 & 322/2007 Mr.Nalliyappan in CA 311 Mr.Chandramouli in CA 182/2007 For Respondent : Mr.N.R.Elango in all Appeals Additional Public Prosecutor COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) These appeals seven in number namely CA 271/2007 by A-1, CA 241/2007 by A-2, CA 322/2007 by A-3 to A-6, CA 218/2007 by A-7 and A- 11, CA 311/2007 by A-8, CA 170/2007 by A-9 and CA 182/2007 by A-10, concentrate on challenging a judgment of the Additional Sessions Division (Fast Track Court No.II), Salem, made in S.C.No.5 of 2006. 2.All these appellants/accused stood charged, tried and found guilty as follows: ACCUSED CHARGES FINDING PUNISHMENT A-1 to A-11 120(B) IPC Guilty Life imprisonment with a fine of Rs.2000/- and default sentence A-1 to A-8 148 IPC Guilty 2 years Rigorous Imprisonment A-1 to A-8 364 IPC Guilty Life imprisonment with a fine of Rs.1000/- and default sentence https://hcservices.ecourts.gov.in/hcservices/ ACCUSED CHARGES FINDING PUNISHMENT A-9 to A-11 364 r/w 120(B) IPC Guilty Life imprisonment with a fine of Rs.1000/- and default sentence A-1 to A-8 302 r/w 149 IPC Guilty under Sec.302 IPC Life imprisonment with a fine of Rs.2000/- and default sentence A-9 to A-11 302 r/w 120(B) IPC Guilty under Sec.302 r/w 109 IPC Life imprisonment with a fine of Rs.2000/- and default sentence A-1 to A-8 201 IPC Guilty 5 years RI with a fine of Rs.1000/- and default sentence A-9 to A-11 201 r/w 120(B) IPC Guilty 5 years RI with a fine of Rs.1000/- and default sentence A-1 to A-4 404 IPC Guilty 2 years RI with a fine of Rs.1000/- and default sentence 3.The short facts necessary for the disposal of these appeals can be stated thus: (a) The deceased Ramamurthy was working as a Collection Agent in New Centurion Bank at Salem. A-1 and A-2 were relatives, and the other accused were their associates. A-1 and A-2 availed vehicle loans from the said bank; but, they defaulted in making payment of the instalments. As Collection Agent, the deceased was authorized to repossess the vehicles. Accordingly, he repossessed the two wheeler of A-1 bearing Registration No.TN 30 D 1013. A-1 repaid Rs.15,000/- and made a request for delivery of the vehicle to which course the deceased was not amenable. On 20.1.2005, A-1 to A-8 along with A-10 went to the house of the deceased and warned P.W.2 the mother of the deceased, that her son should be careful thereafter. She informed the same to the deceased. 1 ½ months prior to the date of occurrence, the deceased seized the vehicle of A-2. A-2 questioned the deceased about the same. The deceased replied that he could do whatever he likes; but, he would not return the vehicle if not settled in full. Thus they were inimically disposed towards the deceased. (b) 10 days prior to the occurrence, A-1 to A-8, A-10 and A-11 hatched up a conspiracy in Shivaya Nagar Auto Stand. A-10 was asked to follow the deceased. A-2 agreed for payment of Rs.2000/- and A-11 for Rs.1000/- towards the expenditure. A-10 gave a Maruthi van bearing Registration No.TN 58 A 6565 for murdering the deceased. On 14.5.2005 at about 7.00 A.M., A-1 contacted the deceased over phone and informed him that he wanted to collect a sum of Rs.20 lakhs from https://hcservices.ecourts.gov.in/hcservices/ a person at Karur and requested the deceased to arrange persons for collecting the same. He also informed him that he will arrange after two days. (c) On 14.5.2005 at about 8.30 P.M., the deceased left the house from Salem in his motorcycle bearing Registration No.TN 27 K 9113 to attend IAS examination to be held at Madras. Again at about 9.15 P.M., A-1 contacted the deceased to come near STD booth at Brindavan Road. At about 9.30 P.M., the deceased came there along with P.W.8, and immediately the accused abducted the deceased from there. Since P.W.8 tried to rescue the deceased, he was threatened by the accused. The accused drove the van towards Mittapudur, and A-4 gagged the mouth of the deceased with a kerchief. A-3 took a knife and stabbed him. He fainted, and then they took him to Chettichavadi. A-1 and A-2 cut the throat of the deceased. A-4 stabbed him on the left flank. A-5 to A-8 stabbed the deceased on the stomach. Then they took the deceased near Shivaya Road, and at about 1.30 A.M., they threw the dead body on the road and left the place. A-3 and A-4 took the watch and finger ring of the deceased. A-1 took the cell phone of the deceased. (d) P.W.1 who is the father of the deceased, tried to contact the deceased through cell phone; but, he could not get any reply. On 15.5.2005 at 3.00 A.M., P.W.1 went in search of the deceased. At about 3.30 A.M., P.W.18, the Village Administrative Officer (VAO) of Reddiyur Village, received an information that an unidentified male dead body was found near Shivaya Nagar. Then he went to the scene of occurrence. At the scene of occurrence he enquired about the identity of the dead body. P.W.1 who was present there, informed that the deceased was the his son. Immediately P.W.18 went to Azhagapuram Police Station and lodged a written report, Ex.P6, to P.W.22, the Sub Inspector of Police who was on duty. On the strength of the report, P.W.22 registered a case in Crime No.1332 of 2005 under Sec.302 IPC. The printed FIR, Ex.P33, was despatched to the Court. Thereafter, he forwarded the copies to the higher officials. (e) On 15.5.2005 at 5.25 A.M., P.W.23, the Inspector of Police, attached to the respondent police station, received the copy of the FIR. Then, he took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar and also a rough sketch, marked as Exs.P7 and P34 respectively. Thereafter, from 6.00 A.M. to 9.00 A.M., he conducted inquest on the dead body in the presence of witnesses and pachayatdars and prepared Ex.P35, the inquest report. He seized the bloodstained earth, M.O.5 and sample earth, M.O.6, under a cover of mahazar. Then the dead body was sent to the Government Hospital for the purpose of autopsy along with a requisition, Ex.P31. (f) P.W.21, the Doctor, attached to Kumaramangalam Government Hospital, Salem, on receipt of the said requisition, conducted autopsy on the dead body of Ramamurthy and has issued a postmortem certificate, Ex.P32, with his opinion that the deceased would have died due to shock and haemorrhage due to multiple injuries. https://hcservices.ecourts.gov.in/hcservices/ (g) On 17.5.2005, P.W.23 enquired P.Ws.9, 11 and 16 and recorded their statements. On 18.5.2005 at 7.00 P.M., A-1 appeared before P.W.12, the Tahsildar, Salem, and gave an extra-judicial confession which is marked as Ex.P1. Based on Ex.P1, P.W.12 prepared a report, Ex.P2, and he produced both the records before the police along with A-1. A-1 was actually arrested by the Investigating Officer. Then, P.W.23 recorded the confessional statement of A-1 given voluntarily. The admissible part of the confession is Ex.P9. Pursuant to the same, P.W.23 seized M.O.7, bloodstained maruthi van sticker, M.O.8 shirt and M.O.9 pant under a mahazar, Ex.P10. He also seized M.O.10 Omni Van and M.O.11 knife under a mahazar, Ex.P11. (h) On 19.5.2005 at about 8.00 A.M., P.W.23 arrested A-2 and recorded his confessional statement. The admissible part is Ex.P13. Based on the confession, he produced M.O.14, motorbike, bearing Registration No.TN 27 A 9113, M.O.15, knife, M.O.16, pant, and M.O.17, shirt, which were recovered under a cover of mahazar, Ex.P14. P.W.23 enquired P.W.11 and recorded his statement. On 21.5.2005, he enquired P.Ws.10 and 19 and recorded their statements. On 21.5.2005, he arrested A-10 and A-11 and recorded their confessional statements in the presence of witnesses. On the same day, he also arrested A-7 and recorded his confessional statement. The admissible part is Ex.P27. Pursuant to the same, he also produced M.O.28, bloodstained knife, M.O.26 bloodstained shirt and M.O.27, pant, under a mahazar Ex.P28. On 27.5.2005, P.W.23 enquired P.W.7 and recorded his statement. He also produced P.W.8 before the Judicial Magistrate, Salem, for recording his statement under Sec.164 of Cr.P.C. Accordingly, it was recorded. (i) A-4, A-5, A-6 and A-8 surrendered before the Judicial Magistrate No.V, Salem. When it came to the knowledge of the police, the Investigator filed a memo, got custody and recorded their confessional statements. The admissible part of the confessional statement of A-4 is Ex.P17. As per the statement, he produced a suri knife, which was recovered under a cover of mahazar, Ex.P18. Then he recorded the confessional statement of A-5, the admissible part of which is Ex.P19. He also produced M.O.21 pen knife, which was recovered under a mahazar. He recorded the confessional statement of A-6, the admissible part of which is Ex.P21. Based on the same, he produced M.O.22, pen knife, which was recovered under a cover of mahazar. On 7.7.2006, P.W.23 recorded the confessional statement of A-8 in the presence of witnesses. The admissible part is Ex.P25. Pursuant to the confession, he produced a knife, which was recovered under a mahazar. (j) On 11.8.2005 at 5.30 A.M., P.W.23 arrested A-3 near Azhagapuram Venkatachalapathy Temple and recorded his confessional statement. The admissible part is Ex.P29. He also seized a knife under a cover of mahazar. On 15.8.2005, he examined other witnesses and recorded their statements. All the material objects were sent for analysis. Ex.P37 is the serological report. On completion of investigation, the Investigating Officer filed the final report. 4.The case was committed to Court of Session, and necessary https://hcservices.ecourts.gov.in/hcservices/ charges were framed. In order to substantiate the charges, the prosecution examined 23 witnesses and also relied on 37 exhibits and 29 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 and took the view that the prosecution has proved the case beyond reasonable doubt in respect of the charges levelled against them and hence found them guilty and awarded punishment which is the subject matter of challenge before this Court. 5.Advancing arguments on behalf of A-1, A-3, A-5 and A-6, the learned Counsel would submit that the prosecution rested its entire case on the theory of conspiracy hatched up by A-1 along with others to do away with the deceased, a collection agent, who actually seized the vehicle from him and also because of the grudge over him; that the prosecution examined only one witness in order to speak about the theory of conspiracy namely P.W.11, before the trial Court, but he turned hostile; that except his evidence, the prosecution had no evidence to offer and hence the prosecution miserably failed to prove the conspiracy theory by any evidence known to law; but, the trial Court has erroneously taken the conspiracy theory as proved, and thus the prosecution failed in its attempt. 6.The learned Counsel would further add that in the instant case, the prosecution as far as A-1 was concerned, rested its case on the extra-judicial confession alleged to have been given by him to P.W.12, Tahsildar, on 18.5.2005; that the lower Court should have rejected this piece of evidence for the simple reason that P.W.12 was a Tahsildar; that it is not the case of the prosecution that the accused was already known to him or he has got any connection to him; that further he is a stranger; that the extra-judicial confession was alleged to have been given after four days; that there was no reason why A-1 should come forward after an interval to divulge the secrecy of such a heinous crime to the Tahsildar; that apart from that, the confessional statement is also hit under the provisions of law; that the Tahsildar, P.W.12, was not competent to record such a confessional statement under Sec.164 of Cr.P.C.; that apart from this, he cannot also exercise any one of the provisions to his help to record such a statement under the Evidence Act which is applicable to the Police Officer; that the Tahsildar has further added that he has got enormous powers under Sec.26 of the Evidence Act; that if to be so, the statement should have been recorded under Sec.26 of the Evidence Act, to which he has no evidence at all; that apart from this, that statement was actually recorded under Sec.26 of the Evidence Act; that not only he has no powers, but also it is hit; that such a statement cannot be taken into account as a piece of evidence since it has no evidentiary value at all; and that under the circumstances, this part of the evidence should have been rejected by the trial Court but failed to do so. 7.Added further the learned Counsel that in the instant case, the prosecution relied on and also the trial Court accepted the https://hcservices.ecourts.gov.in/hcservices/ confessional statement alleged to have been given by A-1 to the Investigating Officer, pursuant to which the material objects have been recovered; that as could be seen, what was available was that of the statement given by the father of the deceased; and that even there is no whisper in the earliest document about any antecedent or the accused came over or the mother warned the son or he had got any suspicion over the accused person. 8.Added further the learned Counsel that in the instant case, for the reasons best known to the prosecution, the chemical report was not filed; that what was filed was only the serological report; that as could be seen, even P.W.18, the VAO, was the only witness for the alleged arrest, confession and recovery of the material objects from A-1; that he has categorically stated that he did not enter into the house of A-1, and A-1 went inside the house and brought them out, and the police officer and the witnesses were standing outside; and that in such circumstances, it is not certain whether those articles were seized properly. 9.The learned Counsel would further submit that the chemical analysis report was not filed; that when the document namely serological report, is looked into along with the requisitions sent, the serial numbers actually differ; that though it was found in the trial Court's judgment that the blood group was found in those material objects recovered from A-1, and when compared with the blood group found in the clothes of the deceased, they were found to be tallying, this cannot in any way help or advance the prosecution case for the simple reason that the chemical analysis report is not filed, and serial number what is found in the requisition and the serological report do not tally, and hence it could not be taken as supportive evidence; that under the circumstances, it should have been rejected; that except this part of the evidence, the prosecution had no evidence to offer; that as far as A-1 is concerned, the prosecution had not only lack of evidence, but also no evidence at all; that as regards A-3, A-5 and A-6, there is no specific evidence worth mentioning pointing to the nexus of those accused to the crime, and hence they are entitled for acquittal. 10.Advancing arguments on behalf of A-2, the learned Counsel would urge that the entire case as against A-2 rested on the recovery of certain material objects from him; that according to the prosecution, he was arrested on 18.5.2005 at about 8.00 A.M., and P.W.18 was the VAO in whose presence the Investigating Officer, P.W.23, has arrested him; that according to the prosecution, M.O.15, aruval, M.O.16, pant and M.O.17, shirt, were seized from him pursuant to the confessional statement given by him; that it is pertinent to point out that as far as the place of arrest and recovery is concerned, it cast a doubt whether it could have taken place as put forth by the prosecution for the simple reason that P.W.18 would state that he was arrested and the recovery has been made from inside the house of A-2; but on the contrary, the recovery of the said material objects was made from a plantain thope according to P.W.23; and that this would make it clear that such arrest and recovery following the confession, could not have been made at all. https://hcservices.ecourts.gov.in/hcservices/ 11.Added further the learned Counsel that when these material objects were marked through the witness and both P.W.18 and P.W.23 have spoken in length in their evidence, corresponding questions should have been asked to the accused under Sec.313 of Cr.P.C. since they were prejudicial to the interest of the accused; but a perusal of Sec.313 Cr.P.C. questioning of A-2 would clearly indicate that it has not been asked to him, and thus it was a denial of opportunity available to the accused in that regard; that the same would also affect that piece of evidence as to the recovery of those material objects; that under the circumstances, the prosecution cannot have or place its hands on that piece of evidence; that as far as A-2 is concerned, no case is made out and hence he is entitled for acquittal. 12.The learned Senior Counsel Mr.V.Gopinath appearing for A-7 would submit that in the instant case, what was available was only the extra-judicial confession alleged to have been given by A-1 to P.W.12 which cannot be acted upon as against A-7. Relying on the decision of the Apex Court reported in 1987 L.W. (CRL.) 274 (PARAM HANS YADAV & SADANAND TRIPATHI V. STATE OF BIHAR AND OTHERS), the learned Senior Counsel would submit that the extra-judicial confession made by an accused pointing to the other accused, cannot be a substantive piece of evidence; that the Court in order to find out whether it lends assurance, should also look into whether other pieces of evidence are available; that in the instant case, the other piece of evidence available, according to the prosecution, is the recovery of M.Os.26, 27 and 28, pant, shirt and knife respectively; that they were all recovered according to the prosecution; that as far as these three items are concerned, the place of recovery would differ; that apart from that, though they were sent for chemical analysis, the chemical report was not filed; that only the serological report was filed; that as far as Sec.313 Cr.P.C. questioning was concerned, those questions pertaining to the containing of blood group or tallying of the same with that of the deceased were not asked at all; that it was a denial of opportunity available to the accused; that under the circumstances, that evidence loses its value; that as far as the confession is concerned, the same cannot be acted upon; that under the circumstances, no other supportive piece of evidence is available; that the extra-judicial confession by one accused against the other accused cannot be a substantive piece of evidence; that in the instant case, no further supportive evidence is available; that under the circumstances, it should have been rejected by the trial Court, but not done so, and hence he is entitled for acquittal. 13.As far as the other accused were concerned, the learned Counsel adopted the arguments advanced by the Counsel and recorded above. Amicus Curiaes appointed by this Court are relieved. 14.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 15.It is not in controversy that one Ramamurthy, the son of https://hcservices.ecourts.gov.in/hcservices/ P.W.1, was employed as a Collection Agent in the New Centurion Bank whose dead body was found by the VAO P.W.18 on information. Then, the dead body was also identified by P.W.1 as that of his son. P.W.18 lodged a report to P.W.22, the Sub Inspector of Police. On the strength of that report, a case came to be registered directly under Sec.302 IPC, and the investigation was taken up by P.W.23, the Inspector of Police. Following the inquest report, the dead body was subjected to autopsy by P.W.21, the Doctor, attached to Kumaramangalam Government Hospital who has given his categorical opinion that the deceased would have died out of shock and haemorrhage due to multiple injuries sustained. Thus, it would be quite clear that it was a homicidal death. This fact that he met a homicidal death was never challenged by the appellants before the trial Court, and hence no impediment is felt by this Court in recording so. 16.As could be seen from the charges levelled against the appellants, the first prime charge on which the entire case of the prosecution was rested, was that of the conspiracy alleged to have been hatched up by A-1 due to the grudge as to the repossession of his vehicle by the deceased, along with the other accused 10 days prior to the occurrence. The prosecution, in order to prove the conspiracy theory, marched P.W.2 to speak about the fact that 30 days prior to the occurrence, A-1 came along with others and informed P.W.2 as to the conduct of her son, the deceased, and told her that he should be very careful thereafter, and at that time she came to know that he was Sarkarai by name, and he was A-1. As far as this part of the evidence is concerned, the prosecution could not have the benefit of the same for the simple reason that when Ex.P6, the report, was given by the VAO even after the verification and identity of the body of the deceased from P.W.1, there is no whisper about either A-1 or the incident that has taken place earlier. At this juncture, the earliest document that was recorded from P.W.2 the mother, or Ex.P6 did not reveal this fact, and thus it would be quite clear that it cannot but be a development made subsequently. In order to speak about the conspiracy that was alleged to have been hatched up by A-1 along with others 10 days prior to the occurrence, the prosecution examined P.W.11, the only witness. P.W.11 at the time of trial has turned hostile. Thus the prosecution could not have the benefit of his evidence. Except these two pieces of evidence, the prosecution had no evidence to offer. These two pieces of evidence for the reason recorded above, could not be accepted by the Court. Under the circumstances, as rightly commented by the learned Counsel for the appellants, the prosecution miserably failed to prove the conspiracy theory. 17.As far as the other part of the case