BAIL SLIP The Appellant / Accused - 1, namely, Ravi, S/o. Subbaraya Mudaliar was directed to be released on bail by the order of this Court dated 24.1.2007 and made in Crl.M.P.1 of 2007 in Crl.A.25/07. BEFORE THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.11.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL No.25 OF 2007 Ravi .. Accused-1/ Appellant Vs. State rep. by Deputy Superintendent of Police, Kondapalayam Police Station Vellore (Crime No.177/2004) .. Complainant/Respondent This criminal appeal is preferred under Section 374 Cr.P.C against the judgment of the learned Principal Sessions Judge, Vellore made in Special S.C.No.5 of 2004, dated 02.12.2006. For Appellant : Mr.V.Gopinath, Senior Counsel for M/s L.Mahendran For Respondent : Mr.P.Kumaresan, APP JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to a Judgment of the Principal Sessions Judge, Vellore in Special S.C.No.5 of 2004, whereby the appellant/accused-1 along with two others stood charged, tried and found guilty under Sections 341, 302, 201 of IPC and 3(2)(5) of the the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act and awarded punishment as detailed below:- Conviction and sentence: S. 341 IPC - a fine of Rs.200/-, in default to undergo 1 week SI. S.302 IPC - life imprisonment https://hcservices.ecourts.gov.in/hcservices/ S.201 IPC - 2 years RI S (3)(2)(5) of The Prevention of Atrocities Act - 10 years RI S (3)(2)(6) of The Prevention of Atrocities Act - 2years RI All the sentences should run concurrently. The trial Court made an order of acquittal against A2 and A3. 2. The short facts necessary for the disposal of the Criminal Appeal can be stated thus: (a) P.W.3 is the wife of the deceased. They had 3 children. The deceased was originally working in TVS Company and thereafter he was dismissed from service. He took on lease the landed property of Kannappanaidu and he was cultivating the land and apart from that, P.W.3 was lending money for interest. Monies were actually lent to the first and third accused. For getting interest, the deceased used to come to the house of A1 and A3. In that, there were quarrels that arose between them. While P.W.5 belonged to Pulivalam Village, the deceased also belonged to the same village and on many occasions, the deceased used to create quarrels. On a number of occasions he outraged the modesty of women. On 31.12.2002, a petition was given to the respondent police by one Sankari, which was treated as petition No.175/2002 for an attempt to outrage the modesty. An enquiry was made and it was pacified. Equally, on 14.01.2003 a petition was given against the deceased and was treated as Petition No.9/2003 and P.W.15, higher official also conducted enquiry and pacified the same. On 12.06.2003, the deceased attempted to outrage the modesty of the first accused, pursuant to which a case came to be registered in Crime No.108 of 2003 for the offences punishable under Sections 354, 323, 506(ii) of the Penal Code. An express FIR was taken and was recorded so. When there has been a quarrel which arose between the first accused and the deceased as to the conduct of the deceased in outraging the modesty of the wife of the first accused, the first and second accused made a plan and caused the death of the deceased. (b) While the matter stood thus, on 14.08.2004, when P.W.1, Village Administrative Officer, was in his office at about 08.00 a.m., the 1st accused appeared before him and gave a confessional statement that it was he along with other accused has killed the deceased. Then the statement was recorded by P.W.1, which was reduced into writing, and was marked as Ex.P.1. P.W.1, along with his report Ex.P.2, produced the accused before the Police Station. P.W.15, Sub Inspector of Police of the respondent police station, on the strength of Exs.P1 and P2, registered a case in Crime No.177 of 2004 under Sections 302 and 201 IPC and under Sections 3(2)(5) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act. The express F.I.R. Ex.P26 was despatched to Court. https://hcservices.ecourts.gov.in/hcservices/ (c) Then, the matter was placed before P.W.17, Deputy Superintendent of Police of the concerned Division, who took up investigation. On receipt of the copy of the FIR, she proceeded to the spot and she recorded the confession given by the accused. She has also taken A1 to the place of occurrence, from where M.O.1 blood stained earth, M.O.2, sample earth were recovered under a cover of mahazaar. Ex.P.4. She also recovered M.O.3 Cycle under a cover of mahazaar Ex.P.5 and prepared an observation mahazaar Ex.P.3 and a rough sketch Ex.P.30. Photographs were taken which were marked as Ex.P.31 series. Thereafter, she also took the first accused to the place, where the first accused identified the place where the dead body was buried. (d) P.W.8, Tahsildar, on information, reached the place and it was he who exhumed the dead body of the deceased from the place and thereafter conducted inquest on the dead body and an inquest report was prepared. Thereafter, the dead body was subjected to post mortem and P.W.10 Doctor who conducted post mortem gave her opinion that the deceased died out of shock due to haemorrhage and asphyxia caused by the injuries sustained by him, which was marked as Ex.P.16. (e) Thereafter, the accused was sent for judicial custody. All the material objects were subjected to chemical analysis and reports were received. Thereafter, the Deputy Superintendent of Police also received the community certificates for both the deceased and the accused and they were produced before the Court. (f) The case was committed to the Court of Sessions and necessary charges were framed. (g) In order to substantiate the charges levelled against the accused, prosecution examined 17 witnesses and also relied on 32 documents and 13 material objects. (h) On completion of evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. and they 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 the prosecution has proved the case beyond reasonable doubt as far as A1 was concerned and found him guilty under Sections 341, 302 and 202 IPC and also under Section 3(2)(5) & (6) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act and awarded the punishment referred to above and passed an order of acquittal against A2 and A3. The first accused preferred an appeal, which is taken up for consideration. 3. Advancing the arguments on behalf of the appellant Mr.V.Gopinath, learned Senior Counsel would submit that the occurrence had taken place at about 12 noon on 09.08.2004 and the prosecution had no direct evidence to offer and only rested its case on the circumstantial evidence. It placed two circumstances, one of which is the extra judicial confession alleged to have been given by A1 to the Village Administrative Officer on the next day morning https://hcservices.ecourts.gov.in/hcservices/ viz., 10.08.2004 at about 08.00 a.m. when he was in office and the second circumstance was that P.W.8 Tahsildar on receiving the information, came to the spot and it was the accused A1 who identified the place where the dead body was buried and it is only on this information, the said dead body was exhumed from the ground. Apart from that, the prosecution recovered all the material objects, had rested its case on the above evidence. Added further the learned Senior counsel that with those circumstances, though prosecution made an attempt to prove the guilt of the accused, it miserably failed. 4. Insofar as the first circumstance, namely the extra judicial confession was concerned, P.W.1 was examined. According to him, when he was in his office at about 08.00 a.m. on 10.08.2004, A1 came to his office, and volunteered to give a confessional statement. The same was reduced into writing and that was Ex.P.1, Then, P.W.1 along with his report Ex.P.2, Ex.P.1 produced the accused before the police station. Contrarily, it would be quite clear that P.W.5 has stated that when he went to the police station the very day, number of persons gathered in the police station including A-1, and thus it would be quite clear that at the relevant time, A1 was not available and the Village Administrative Officer came to the police station later. That establishes clearly the fact that the claim of P.W.1 that the accused appeared before him in his office and gave a confessional statement was nothing but a falsehood. 5. Added further the learned Senior Counsel that according to P.W.1, Village Administrative Officer, he used to affix the seal in all the statements recorded by him. But in the instant case there was no seal available at all. He has also further stated in his evidence that after the statement had been prepared in the office, he affixed the seal, but not done so. Hence, it would be clear that the document has been prepared only at the police station and also at the instance of the police and hence it cannot be attached withany evidentiary value at all and under the circumstances it has got to be rejected. 6. So far as the second circumstance relied upon by the prosecution is concerned it should have been rejected by the trial Court for the simple reason that according to the materials available, it was P.W.1, who had taken the accused to the place of occurrence where the dead body was buried, but number of persons gathered in the place where the dead body was buried and hence the evidence of P.W.8 that A1 identified the place where the dead body was buried only when he came to the spot was nothing but a development made by the prosecution. From the evidence of P.W.1., it would be quite clear that the place where the dead body was buried was not identified pursuant to the confessional statement and it was already known to the police. Both put together would go to show that the prosecution had not proved either of the circumstances. Hence the prosecution has miserably failed. 7. Added further the learned senior counsel that in the instant case, the Court has taken an erroneous view and found the appellant/first accused guilty and hence prayed for acquittal of the https://hcservices.ecourts.gov.in/hcservices/ first accused. 8. 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. 9. It is not in controversy that the dead body of Siva was found buried in a place and the same was exhumed by P.W.8 Tahsildar on information. After that, the dead body was subjected to post mortem by P.W.10 Doctor, who gave her opinion that the death would have occurred due to shock and haemorrhage and asphyzia caused by the injuries sustained by him. The post mortem certificate issued by the Doctor, was also marked and thus the prosecution was successful enough to show that Siva died out of homicidal violence and hence it remain undisputed. 10. As could be seen from the available records the specific charge levelled against the appellant was that he murdered the deceased at about 12.00 noon on 09.08.2004 and after causing the death, he buried the dead body inside the ground. The deceased belonged to the Scheduled caste and hence the provisions of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act would attract. In the instant case the prosecution had no direct evidence to offer. But it rested its case exclusively on the circumstantial evidence. 11. As rightly pointed out by the learned senior counsel for the appellant, the prosecution had rested its case entirely on two circumstances, firstly extra judicial confession alleged to have been given by A1 to P.W.1 at 08.00 a.m. on 10.08.2004 and secondly the place of burial, from which the dead body was exhumed by P.W.8 after the place was identified by the 1st accused. 12. On a careful scrutiny of the materials available, this Court is unable to agree with the case of the prosecution as it has not brought home the guilt of the accused and the two circumstances though placed before the trial Court were not at all proved. 13. In sofar as the extra judicial confession alleged to have been given by the 1st accused to P.W.1, Village Administrative Officer, it was the specific evidence of P.W.1 that when he was in his office at 08.00 a.m. on the day, A1 appeared before him and gave a confessional statement and the same was recorded and it was Ex.P.1. On the contrary, P.W.5, a villager, has given his categorical evidence that in the police station there were number of persons and A1 was also one of the suspects and he was also taken to the police station and was also enquired. It is pertinent to point out that only thereafter, the Village Administrative Officer has come to play his role and thus the claim of P.W.1 Village Administrative Officer that A1 appeared before him in his office and recorded Ex.P.1 was nothing but only a falsehood. 14. Added further, according to P.W.1, Village Administrative Officer, he used to affix the seal on every statement recorded by https://hcservices.ecourts.gov.in/hcservices/ him. But Ex.P.1 did not carry the same. Had the statement been prepared in his office, there would have been affixture of seal. All these would go to show that Ex.P.1 has got to be rejected. Apart from that, the evidence adduced by the prosecution was of no worth and has got to be rejected. 15. In so far as the second contention that it was the accused who identified the place of burial of the dead body pursuant to the confession was concerned, it has also got to be rejected for the simple reason that according to P.W.1,Village Administrative Officer, it was the accused who has identified the place of burial, but there were number of villagers available in that place and therefore, the claim of the investigating agency that the place of burial came to the knowledge of the police only after the place was identified by A1 i.e., at the time of confessional statement and according to P.W.8 Tahsildar, when he went to the place of burial, he found number of persons who gathered there and therefore this information cannot be considered to be an information which was recorded by the police agency pursuant to the confessional statement recorded under Section 27 of the Evidence Act. Hence those circumstances placed before the Court did not bring home the guilt of the accused or the complicity of the vendor viz., the appellant. 16. The Court is unable to notice any material pointing out to frame a charge under Section 3(2)(5) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act. 17. Under the circumstances, the prosecution miserably failed to prove its case. It is settled principle of law that the prosecution has to bring home the guilt of the accused beyond reasonable doubt and also when the prosecution rests its case on circumstantial evidence, it must place necessary circumstances pointing to the hypothesis that except the accused no one else could have committed the offence. If it is applied, the Court cannot agree on the prosecution and hence the accused is entitled for acquittal. 18. In the result, this criminal appeal is allowed, setting aside the conviction and sentence imposed on the appellant by the learned Principal Sessions Judge, Vellore in Special S.C.No.5 of 2004. The appellant is acquitted of the charges levelled against him. The bail bond executed by him shall stand terminated. The fine amount paid by him will be refunded to him. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ rg To 1. THE PRINCIPAL SESSIONS JUDGE VELLORE 2. THE JUDICIAL MAGISTRATE,SHOLINGAN 3. -DO- THRO THE CHIEF JUDICIAL MAGISTRATE,VELLORE 4. THE SUPERINTENDENT,CENTRAL PRISON,VELLORE 5. THE DEPUTY SUPERINTENDENT OF POLICE, KONDAPALAYAM POLICE STATION, VELLORE 6. THE PUBLIC PROSECUTOR HIGH COURT,MADRAS 2 ccs To Mr.L.Mahendran, Advocate, SR.64637 CRIMINAL APPEAL No.25 OF 2007 KSK(CO) SRA(26/11/2008) https://hcservices.ecourts.gov.in/hcservices/