Judgment · High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 12-11-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAHCRL.A.No.383 of 20091.Karthik2.Prabhu3.Karuppayee @ Murugesan4.Mathi @ Mathivanan5.Kumar6.Nagaraj.. Appellants/Accused 1 to 6vsState by Inspector of PoliceBhavani Police StationCrime No.368 of 2006 Erode District.. Respondent/ComplainantCriminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional Districtand Sessions Judge, Fast Track Court No.IV, Bhavani, made inS.C.No.29 of 2008 dated 29.5.2009.For Appellants: Mr.N.ManokaranFor Respondent: Mr.Babu Muthu Meeran Additional PublicProsecutorJUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)Challenge is made to a judgment of the Additional SessionsDivision, Fast Track Court No.IV, Bhavani, Erode, in S.C.No.29 of2008 whereby the appellants six in number stood charged, tried, found guilty and awarded punishment as follows:ACCUSEDCHARGESFINDINGPUNISHMENTA-1 to A-6364 IPCGuilty7 years RI witha fine ofRs.2000/- and default sentence https://hcservices.ecourts.gov.in/hcservices/ ACCUSEDCHARGESFINDINGPUNISHMENTA-1 to A-6302 r/w 34 IPCGuiltyLifeimprisonmentwith a fine ofRs.2000/- and default sentenceA-1 to A-6201 IPCGuilty7 years RI witha fine ofRs.2000/- and default sentence2.Short facts necessary for the disposal of this appeal can be stated as follows: (a) P.Ws.5 and 6 are brothers of the deceased Mathi @Mathivanan.

They were residents of Sokkaramman Street, Bhavani. Theywere all doing painting work. All the accused were associates, and they were all doing work along with the deceased and the above witnesses. The family members of the deceased went to Thirupathi and returned on Friday, that was prior to the occurrence, and the next day, the deceased went to the bus stand and came back, and he was in his house. He was found worrying. The prosecution witnesses were asking him about the reason for the same. He replied that the cellphone was found missing and thereafter, on the next day i.e.,19.6.2006, at about 6.00 A.M., he left the house, and he hadRs.8000/- in his pocket. But he did not return that day. P.Ws.5 and6 came to know from the news paper that a dead body of a male was found. Then they went to the place. They were present when the head part and also the arms were recovered from the river Bhavani. (b) P.W.1, who was the Assistant Commissioner of HR & CE, Salem, made a visit to Kuduthurai at Sangameswarar Temple, Bhavani, on19.6.2006 in the evening hours, and found a crowd on the river bank.

Then he went over there and found a trunk of a body. Immediately, he proceeded to the respondent police station and gave a complaint, Ex.P1, to P.W.31, the Sub Inspector of Police. On the strength ofEx.P1, the complaint, a case came to be registered in Crime No.368 of2006 under Sec.302 of IPC. The printed FIR, Ex.P31, along with Ex.P1,the report, was despatched to the Court. (c) On receipt of the copy of the FIR, P.W.33, the Inspector of Police of the Circle, took up investigation, proceeded to the spot, made an inspection at 1920 hours in the presence of witnesses and prepared, Ex.P3, the observation mahazar, and also a rough sketch, Ex.P32. Thereafter, he conducted inquest on the the trunk part of the body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P33. Then, it was sent to the hospital along with a requisition for the purpose of autopsy. (d) Pending the investigation, the witnesses were examined, and their statements were recorded.

While the investigation was on, whenP.W.20, the Village Administrative Officer (VAO), was in his office on 22.6.2006, along with his menial, P.W.22, A-2 appeared before him https://hcservices.ecourts.gov.in/hcservices/ and gave an extra-judicial confession, which was recorded, and the same is marked as Ex.P15. P.W.20 accompanied his menial P.W.22 tookA-2 to the respondent police station and produced before the Investigator, P.W.33. He was arrested by the Investigator, to whom he gave a confessional statement, and in the presence of witnesses, it was recorded. The admissible part is marked as Ex.P16. Pursuantto the same, he took the police officials and produced M.O.1, knife, and M.O.3, lungi, which were recovered under a cover of Ex.P14mahazar, in the presence of P.W.20, the VAO. Thereafter, he took the police party to the river side and identified the place where the head and also arms were actually immersed.

They were all taken out and recovered. A-2 was sent for judicial remand. The Investigatorconducted inquest on those parts of the body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P36.The photographs of the skull were taken. Those parts were also sent to the Government Hospital for postmortem along with a requisition. Both the trunk part of the body and also the head were fixed together and found to be belonging to a male person. (e) P.W.19, the Tutor in Forensic Medicine, Coimbatore MedicalCollege Hospital, on receipt of the said requisition, conducted autopsy on the body of a male and has issued a postmortem certificate, Ex.P9.(f) The same Medical Person, P.W.19, on receipt of the said requisition, conducted autopsy on the decapitated head of a male and has issued a postmortem certificate, Ex.P11.(g) The Doctor has given his final opinion, Ex.P13, that the deceased would appear to have died of antemortem compression over neck.

(h) Pending investigation, A-1 and A-3 were arrested on23.6.2006, and they volunteered to give confessional statements which were recorded in the presence of witnesses. The admissible part ofA-1's confessional statement is marked as Ex.P20, pursuant to which he produced M.O.4, knife, and M.O.5, omni van, which were recovered under a cover of mahazar. Pursuant to the confessional statement given by A-3, he produced M.O.7, aruval, which was recovered under acover of mahazar. The accused were sent for judicial remand. (i) On 24.6.2006, A-5 and A-6 were arrested by the Investigator, and they came forward to give confessional statements which were recorded in the presence of the VAO and another witness. Theadmissible parts of those confessional statements were marked as Exs.P24 and P25 respectively. Pursuant to the same, A-5 producedM.O.8, aruval, which was recovered under a cover of Ex.P26 mahazar.

Then, A-6 produced M.O.9, aruval, which was recovered under Ex.P27,the mahazar. The accused were sent for judicial remand. (j) The Investigator arrested A-4 on 29.6.2006, and he came forward to give a confessional statement voluntarily, which was recorded. The admissible part is marked as Ex.P18, pursuant to which he produced M.O.6, knife, which was recovered under a cover of https://hcservices.ecourts.gov.in/hcservices/ mahazar, Ex.P19. He was sent for judicial remand. (k) The skull was actually sent along with the photographs to the Forensic Sciences Department for the purpose of superimpositiontest. Accordingly it was conducted by P.W.16, the Scientific Expert, and she has given a categorical evidence before the Court that the skull when compared with the photographs which were found in M.O.3was found to be that of the same individual, and the report is marked as Ex.P4. (l) All the family members including P.Ws.5 and 6 of the deceased identified the dead body as that of Mathi @ Mathivanan.

Oncompletion 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 marched 33 witnesses and also relied on 38 exhibits and11 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. asto 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 on their side. The trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and hence found them guilty as per the charges and awarded the punishment as referred to above. Hence this appeal at the instance of the appellants. 4. Advancing arguments on behalf of the appellants, the learnedCounsel would submit that in the instant case, the motive, according to the prosecution, was that A-1 and the deceased Mathivanan were working together, and at that time, Mathivanan used to make frequent visit to the house of A-1 when he developed illicit intimacy with A-1's wife which came to the knowledge of A-1, and A-1 in turn informed to A-2 and other associates, and they designed a plan, and accordingly, they took the deceased to the river Bhavani and immersed him and thus caused his death by drowning, and thereafter, they severed different parts of the body and head also and threw both the arms and also the head inside the river and placed the trunk of the body in the river bank and left the place; in order to substantiate the charges framed against the appellants/accused, the prosecution had no direct evidence to offer, and it relied upon circumstantial evidence; that the circumstances were first of all the motive part as stated above and secondly, the extra-judicial confession alleged to have been given by A-2 to P.W.20 the VAO, in the presence of P.W.22,the menial, which is marked as Ex.P15; that the trial Court has accepted this part of the evidence namely the extra-judicialconfession alleged to have been given by A-2; that the trial Courtshould have rejected the same for the reason that according toP.W.20, the same was recorded in his office and thereafter he had taken him to the police station; that P.W.22, the menial, has contrarily deposed that when A-2 came to the office, he was immediately taken to the police station, and nothing was recorded and thus, it would be quite clear that the extra-judicial confession has https://hcservices.ecourts.gov.in/hcservices/ not come into existence as put forth by the prosecution.

5. Added further the learned Counsel that both the extra-judicialconfession alleged to have been given by A-2 to P.W.20 and also the confessional statement which was given by him to the Investigator at the police station which led for the recovery of the material objects, are actually the replica, and hence they were prepared only at the police station; that according to P.W.20, he came to his office on 22.6.2006 when A-2 gave the extra-judicial confession, andit was also recorded by him in the presence of the menial, P.W.22;that P.W.2 on the contrary has deposed that A-2 was actually in the police station on the next day and also the subsequent day to the occurrence that was on 20.6.2006 and 21.6.2006; that had A-2 been in the police station on 20.6.2996 and 21.6.2006, there was no question of any extra-judicial confession which could have been given by him to the VAO, P.W.20, on 22.6.2006, and this would also falsify the so-called theory; and that under the circumstances, that part of the evidence should have been rejected by the trial Court, but the trialCourt has erroneously accepted the evidence.

6. The learned Counsel would further submit that the other circumstances are that actually it was A-2 who identified all the other accused; but in the instant case, as far as A-2 is concerned, he is shown to be the friend of A-1; that as regards the other accused, they had no motive at all; that as far as motive is concerned, there is nobody to speak about that fact; that under the circumstances, the prosecution has failed to bring forth motive part also; that as far as the arrest and recovery of material objects are concerned, all other accused were actually identified by A-2 and it was only the basis for the arrest of those accused pursuant to the confessional statement alleged to have been given by A-2; that if theso-called extra-judicial confession and also the confession before the police officer fail, no credence could be given to any other part of the evidence put forth by the prosecution; and that in the instant case, all the material objects were not sent for chemical analysis.

7. The learned Counsel also brought to the notice of the Courtthat in the instant case, as per the charge, the case of the prosecution was that death was caused due to drowning; but, the Investigating Officer would categorically admit that death has been caused by strangulation; that the Investigator who filed the chargesheet before the Court has put forth a different version in respect of cause of death; and that under the circumstances, it is also doubtful. 8. Added further the learned Counsel that as regards the confessional statements to the police officer and the consequent recovery of the material objects, the witnesses examined were allVillage Administrative Officers attached to the Government; that under the circumstances, their services were taken for the purpose of strengthening the prosecution case if possible, but in vain; that the trial Court has taken an erroneous view, and hence they are entitled for acquittal in the hands of this Court. https://hcservices.ecourts.gov.in/hcservices/

The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.

It is not in controversy that the trunk part of the body of one Mathivanan was found on the banks of the river on 19.6.2006.Then, P.W.1 gave a complaint to P.W.31, the Sub Inspector of Police, on the strength of which a case came to be registered under Sec.302IPC. A few days later, the head and also the arms of the body were all recovered from the river Bhavani, and all parts were actually put together, and it was found that it belonged to the male person. Itwas actually photographed. M.O.3, the photo of the head part was also sent to the Forensic Sciences Department for the purpose ofsuperimposition test. It was actually conducted by the expertP.W.16, who has given opinion in Ex.P4 that the skull could very well have belonged to the male individual seen in the photographs of Mathi@ Mathivanan. All the family members have also identified the body. Thus as far as the identity of the deceased was concerned, it was never questioned by the appellants. That apart, there was medical opinion advanced by the prosecution before the trial Court. Thus, it would be quite clear that death was due to homicidal violence. Thisfact was also not disputed by the appellants. Hence it has got tobe recorded so.

In order to substantiate that all these accused were involved in the crime, the prosecution had no direct evidence to offer. Itrelied only on circumstantial evidence. After thorough scrutiny of the materials available, this Court is afraid whether it can sustain the judgment of the trial Court for the following reasons.

As far as the motive is concerned, the prosecution came with the specific case that the deceased had developed illicit intimacy with A-1's wife; that when he came to know, he sought the assistance of A-2 and other associates; and that all the accused persons pursuant to their plan, committed the murder of the deceased. Asregards motive part, no witnesses whispered, and the witnesses examined in that regard have all turned hostile. Thus, the prosecution could not bring forth the motive for the crime.

The next circumstance relied on by the prosecution and also accepted by the trial Court is the extra-judicial confession alleged to have been given by A-2 to P.W.20, the VAO, in the presence ofP.W.22, the Menial, and also the confessional statement given to the Police Officer, P.W.33, at the police station pursuant to which knife and lungi were recovered from him and also the head and arms of the deceased were recovered from the river. As far as this part of the evidence placed by the prosecution is concerned, this Court is of the considered opinion that this cannot be given any evidentiary value at all. P.W.20, the VAO, would claim that he was in his office on that day along with P.W.22, menial, and at that time, A-2 came there and gave an extra-judicial confession, and the same was recorded, and it was Ex.P15, and he was taken and produced before the police station. But P.W.22, the menial, has contrarily stated that A-2 came to the office, and immediately both himself and the VAO took him to the https://hcservices.ecourts.gov.in/hcservices/ police station. Hence it would be quite clear that the extra-judicial confession, Ex.P15, could not have come into existence at the office of P.W.20, the VAO. Apart from that, a reading of Ex.P15,the extra-judicial confession, and the confessional statement, Ex.P16, alleged to have been given by A-2 to P.W.33, the Investigator, would indicate that they are found to be the replica, and hence it would be quite clear that both the documents should have come into existence at the same time.

Added circumstance to doubt the evidence is that according toP.W.2, A-2 was actually found in the police station on the next two days to the occurrence that would mean 20.6.2006 and 21.6.2006, and hence such an extra-judicial confession could not have come into existence at the office of the VAO on 22.6.2006. Hence, it would be quite clear that the extra-judicial confession was only a prepared document to strengthen the prosecution case. Hence that part of the evidence has got to be rejected. In the absence of that document and also the recovery now put forth, it would be quite clear that as far as A-2 is concerned, the case has become shaky.

As far as the other accused are concerned, they were all arrested only pursuant to the alleged confessional statements given by A-2 to P.W.20 and also the police officer. It is well settled proposition of law that a confessional statement of one accused cannot have a binding nature on the other accused. Even then, the Court can look into whether there are any corroborative piece of evidence available in order to fix the culpability of the other accused. In the case on hand, as far as the other accused are concerned, this Court is unable to see any corroborative piece of evidence. All material objects have been recovered pursuant to the confessional statements of the accused in the presence of the VAOsand they were not sent for analysis. Further, the evidence in respect of the recovery of the material objects in the presence of the VAOs and the menial is completely found to be discrepant. Thelearned Counsel for the appellants brought to the notice of the Courtthat this would go to the root of the matter.

Apart from the above, the consistent case of the prosecution was that death was by drowning, and thereafter, they have actually severed different parts of the body. But the Investigator at the time of the cross-examination has categorically admitted that death was due to strangulation. It is quite evident that the InvestigatingOfficer has given a different opinion than one what is put forth by him in the charge sheet. Under the circumstances, the prosecution was not consistent with the cause of death also. So long as theextra-judicial confession alleged to have been given by A-2 is not believable, then any amount of corroborative piece of evidence will not have anything to further strengthen the prosecution case, and thus the prosecution has miserably failed to prove the circumstances. Applying the principle what is required in a case on circumstantial evidence, this Court is unable to see any circumstances proved pointing to the guilt of the accused. Hence, benefit of doubt shouldgo to the appellants. Accordingly, they are entitled for acquittal. https://hcservices.ecourts.gov.in/hcservices/