IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.07.2009 CORAM: THE HON'BLE MR.JUSTICE M.CHOCKALINGAM AND THE HON'BLE MR.JUSTICE C.S.KARNAN CRL.A.NO.776 of 2008 SenthilKumar ..Appellant/Accused I Vs. State rep. by Inspector of Police, Pallipalayam Police Station, Pallipalayam, Tiruchengodu Taluk, Namakkal District. ..Respondent/Complainant (*)(Crime No.514/2004) This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the conviction and sentence imposed in S.C.No.34 of 2005 dated 29.8.2006 on the file of Additional District Sessions Court-cum-Fast track Court, Namakkal. For Appellant : Mr.B.Rajamani For Respondent : Mr.N.R.Elango, Additional Public Prosecutor JUDGMENT (The judgment of the court was delivered by M.CHOCKALINGAM, J.) Challenge is made to the Judgment of the Additional District cum Sessions Court-cum-(Fast Track Court)Namakkal made in S.C.No.34 of 2005 whereby the appellant herein ranked as A1 stood charged under Section 302 IPC (2 counts) while the other accused ranked as A2 to A8 stood charged under Section 201 IPC and on trial, the appellant was found guilty of the charges of murder and awarded life imprisonment along with the fine of Rs.1000/- in default to undergo 2 months Simple Imprisonment and the sentence is ordered to run concurrently, while A2 to A8 found guilty under Section 176 of the IPC and awarded one month SI along with fine of 500/- and in default to undergo one week simple imprisonment. https://hcservices.ecourts.gov.in/hcservices/ 2. The short facts necessary for the disposal of this appeal can be stated as follows: The first accused is native of Veppatai Village. He belonged to Hindu faith. PW3, one Chitra belonged to christian faith. They loved each other and married in a temple at Pallipalayam on 30.5.2004, as a result they had two children, viz.,one boy aged 4 years old and female child of 2-1/2 years. After marriage, PW3 followed Hindu faith and putting forth her prayer. After sometime, she again began to follow christian faith by making her prayers and quarrel arose between the spouse on that ground. She treated the children cruelly. The first accused became vexed and thus he took both the children and threw them into a well situated in the field of one Palaniappan. Both the children immersed in the well and died. b. PW1, the Village Administrative officer was in his office at about 8' O clock, the 1st accused/appellant appeared before him and gave extra judicial confession statement and the same was recorded and which is marked is Ex.P.1. c)Thereafter, P.W.1 proceeded to the respondent police station whereby, PW.11 Inspector of Police was on duty. P.W.1 produced the accused and also gave a complaint Ex.P.1 along with a covering letter which is marked as Ex.P.2 to PW.11, on the strength of which, a case came to be registered in Crime No.541/2004 under Sections 302 and 201 IPC. Ex.P.10, the Express FIR was sent to the Court. P.W.11 took up the investigation and arrested the first accused and recorded the confession statement and the admissible part is marked as EX.P.3 and pursuant to which he recovered M.O.1 Cycle under the cover of Mahazar Ex.P.5 Following the same, the second accused was arrested and he gave confession statement voluntarily in the presence of witnesses and pursuant to which ,M.O.2, bones of the children were recovered under the cover of Mahazar Ex.P.7 and all the other accused who were involved in the offence were arrested on the very same day. d)Thereafter, a requisition was forwarded to the Judicial Magistrate, Namakkal for sending the bones and ash seized of the children for chemical analysis. Ex.P.8 is the letter from the Judicial Magistrate, Thiruchengode to the Director, Tamil Nadu Forensic Science Laboratory which resulted in Ex.P.9, the anatomy eport P.W.11, the Inspector of Police, took up further investigation and on completion of the investigation, he filed the final report. 3.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 11 witnesses and also relied on 12 exhibits and 3 M.Os. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found https://hcservices.ecourts.gov.in/hcservices/ in the evidence of prosecution witnesses. The accused flatly denied the same as false. No defence witness was examined. The trial court, after hearing the arguments advanced and scrutinizing the materials available, took the view that the prosecution has proved the case beyond reasonable doubt found him guilty and awarded punishment as referred to above. Hence this appeal has arisen at the instance of 1st accused/appellant herein. 4. Advancing arguments on behalf of the learned counsel for the appellant, learned counsel would submit that the prosecution has miserably failed to prove its case by adducing any evidence. According to the Prosecution, the occurrence has taken place on 30.5.2004 at 8 p.m, the father of the children threw both the children viz.,one male child aged four years and one female child aged 2-1/2 years in the well situated in the field of one Palaniappan and caused the death of the children and thereafter with the assistance of other accused, he took the dead body of the children and cremated. In order to substantiate the charges levelled against the appellant, the prosecution had no direct evidence to offer. It mainly rested upon the extra judicial confession alleged to have been given by A1 to PW1, Village Administrative Officer on 30.5.2004. A very reading of the evidence of Village Administrative Officer and the evidence of PW.11 the Investigating Officer would clearly indicative of the fact that such a confessional statement could not have been given at all. It was PW2 who took the first accused to the Office of PW1, Village Administrative Officer and the alleged extra judicial confession statement has been recorded by the Village Administrative Officer, but PW2 has turned hostile. Under such circumstances, the prosecution was duty bound by adducing entire evidence to substantiate the extra judicial confession. A perusal of the evidence given by PW1 would clear that extra judicial confession given by the first accused was recorded by him and at that time, the village assistant was also present, but he was not examined before the Court. Apart from that, according to PW1, he was actually not available in the village till 3.6.2004, but the extra judicial confession, as per the evidence put forth by the prosecution, was recorded on 3.6.2004 and hence he could not have recorded the said statement. According to PW1, A1 appeared before him at 8 a.m. and confession statement was recorded and thereafter he took him to the respondent police station and produced before P.W.11, Inspector of Police. Even P.W.11, even at the commencement of the chief examination has stated that at about 6 a.m. on 3.6.2004, when he was in the police station, PW1 produced A1 before him which would clearly indicative of the fact that such an extra judicial confession could not have been come into existence as put forth by the prosecution. The specific cause of death according to the prosecution was that the children were threw into the well and that they died due to asphyxia due to immerse into well and thereafter they were cremated and nothing was actually recovered, except the bones and ashes. The prosecution was enable to fix the cause of death. Added further the https://hcservices.ecourts.gov.in/hcservices/ counsel, PW3, the mother of children, though treated as hostile, has deposed that the death of the children was natural and both the children were immersed into well and it was an accident and under such circumstances, the prosecution had neither direct or indirect evidence to offer. But, the lower court has taken an erroneous view that two minor children were threw into the well and found the accused guilty and hence it is a fit case where the judgment of the trial Court has got to be set aside and the appellnt is entitled for acquittal in the hands of this Court. 5. Heard the learned Additional Public Prosecutor on the above contentions and the Court paid its anxious consideration on the submissions made. 6. It is not in controversy that two children of the accused/appellant and PW3 viz. One boy aged about 4 years and a female child aged 2 ½ years were done to death and at the time of investigation, only a part of bones of the children has been recovered. It is needless to state that in a case like this, the Court can sustain the conviction, if sufficient evidence is brought to the notice of the Court. In the instant case, the prosecution relied on the confession statement of the accused and the trial court has also accepted the evidence of PW1, Village Administrative Officer, to whom the extra judicial confession alleged to have been given by the first accused on 3.6.2004. Before accepting the case of the prosecution, in a case like this, if it is rested upon the extra judicial confession, the Court must apply two tests. Firstly, under what circumstances the extra judicial confession was alleged to have been given by the accused and secondly whether the evidence of the person to whom extra judicial confession alleged to have been given inspires confidence of the Court. According to the prosecution, PW1 was present in his office on the morning hours of 3.6.2004, but in the cross examination, he has categorically deposed that till 3.6.2004 he was not available in the village. Secondly, it was PW2, who took the first accused to the office of PW1, but PW2 has turned hostile. It is the evidence of PW1 that PW2 produced A1 before him in his office at about 8 a.m. and he recorded the extra judicial confession given by A1 and took him to the police station and produced before the police officer at about 11 a.m.. Contrarily, PW.11 Inspector of Police has given an evidence stating that when he was in the police station at about 6 a.m., A1 was produced by PW1. All would go to show that extra judicial confession could not have been recorded, as put forth by the prosecution. Under such circumstances, the extra judicial confession which was relied upon by the prosecution was not proved and accepted by the trial Court. It can be well stated that the prosecution had no evidence to offer and all the witnesses are of no use to the prosecution case. Even PW3, the mother of the children had gone to the extent of telling that it was the natural death. Under such circumstances, the prosecution neither proved the cause of death, nor brought any acceptable https://hcservices.ecourts.gov.in/hcservices/ evidence through PW1 as to the extra judicial confession or any other piece of evidence pointing to the guilt of the accused with the crime. 7. Accordingly, the conviction and sentence imposed upon the appellant/1st accused by the trial Court are set aside. He is acquitted of the charges. The appellant/1st accused is directed to be set at liberty forthwith, unless he is required in connection with any other case. 8. In the result,, the Criminal Appeal is allowed. Sd/ Asst.Registrar Dated : 11.08.2009 (*) Amended as per the order of this Court dated 22.10.2009 and made in M.P.No.1/09 in Crl.A.No.766/08 sd/- Asst.Registrar Dated : 22.10.2009. /true copy/ Sub Asst.Registrar VJY To 1. The Additional District Session Judge, cum Fast Track Court, Namakkal. 2. -do- Through The Principal District & Sessions Judge, Namakkal. 3. The Superintendent, Central Prison, Coimbatore. 4. The District Collector, Namakkal. https://hcservices.ecourts.gov.in/hcservices/ 5. The Director General Police, Mylapore, Chennai. 6. The Inspector of Police, Pallipalayam Police Station, Pallipalayam, Tiruchengode Taluk, Namakkal District. 7. The Public Prosecutor, High Court, Madras. 8. The Section Officer, Criminal Section, High Court, Madras. + 1 c.c. to Mr. B. Rajamani, Advocate. S.R.No.34979. Crl.A.No.776 of 2008 NTK (CO) GSK 23.10.2009. https://hcservices.ecourts.gov.in/hcservices/