BAIL SLIPCrl.A.Nos.170 v. State

(Cr.No.1332/2005).. Respondent in all appealsCriminal appeals preferred under Sec.374 of the Code of CriminalProcedure against the judgment of the Additional Sessions Judge (FastTrack 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 182/2007For Respondent: Mr.N.R.Elangoin all Appeals Additional Public ProsecutorCOMMON JUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)These appeals seven in number namely CA 271/2007 by A-1, CA241/2007 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 SessionsDivision (Fast Track Court No.II), Salem, made in S.C.No.5 of 2006. 2.All these appellants/accused stood charged, tried and foundguilty as follows:ACCUSEDCHARGESFINDINGPUNISHMENTA-1 to A-11120(B) IPCGuiltyLife imprisonmentwith a fine ofRs.2000/- and defaultsentenceA-1 to A-8148 IPCGuilty2 years RigorousImprisonmentA-1 to A-8364 IPCGuiltyLife imprisonmentwith a fine ofRs.1000/- and defaultsentence https://hcservices.ecourts.gov.in/hcservices/ ACCUSEDCHARGESFINDINGPUNISHMENTA-9 to A-11364 r/w 120(B)IPCGuiltyLife imprisonmentwith a fine ofRs.1000/- and defaultsentenceA-1 to A-8302 r/w 149IPCGuilty underSec.302 IPCLife imprisonmentwith a fine ofRs.2000/- and defaultsentenceA-9 to A-11302 r/w 120(B)IPCGuilty underSec.302 r/w 109IPCLife imprisonmentwith a fine ofRs.2000/- and defaultsentenceA-1 to A-8201 IPCGuilty5 years RI with afine of Rs.1000/- anddefault sentenceA-9 to A-11201 r/w 120(B)IPCGuilty5 years RI with afine of Rs.1000/- anddefault sentenceA-1 to A-4404 IPCGuilty2 years RI with afine of Rs.1000/- anddefault sentence3.The short facts necessary for the disposal of these appealscan be stated thus:(a) The deceased Ramamurthy was working as a Collection Agent inNew Centurion Bank at Salem. A-1 and A-2 were relatives, and theother accused were their associates. A-1 and A-2 availed vehicleloans from the said bank; but, they defaulted in making payment ofthe instalments. As Collection Agent, the deceased was authorized torepossess the vehicles. Accordingly, he repossessed the two wheelerof 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 thedeceased was not amenable. On 20.1.2005, A-1 to A-8 along with A-10went to the house of the deceased and warned P.W.2 the mother of thedeceased, that her son should be careful thereafter. She informedthe same to the deceased. 1 ½ months prior to the date ofoccurrence, the deceased seized the vehicle of A-2. A-2 questionedthe deceased about the same. The deceased replied that he could dowhatever he likes; but, he would not return the vehicle if notsettled in full. Thus they were inimically disposed towards thedeceased. (b) 10 days prior to the occurrence, A-1 to A-8, A-10 and A-11hatched up a conspiracy in Shivaya Nagar Auto Stand. A-10 was askedto follow the deceased. A-2 agreed for payment of Rs.2000/- and A-11for Rs.1000/- towards the expenditure. A-10 gave a Maruthi vanbearing Registration No.TN 58 A 6565 for murdering the deceased. On14.5.2005 at about 7.00 A.M., A-1 contacted the deceased over phoneand 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 forcollecting the same. He also informed him that he will arrange aftertwo days. (c) On 14.5.2005 at about 8.30 P.M., the deceased left the housefrom Salem in his motorcycle bearing Registration No.TN 27 K 9113 toattend IAS examination to be held at Madras. Again at about 9.15P.M., A-1 contacted the deceased to come near STD booth at BrindavanRoad. At about 9.30 P.M., the deceased came there along with P.W.8,and immediately the accused abducted the deceased from there. SinceP.W.8 tried to rescue the deceased, he was threatened by the accused.The accused drove the van towards Mittapudur, and A-4 gagged themouth of the deceased with a kerchief. A-3 took a knife and stabbedhim. He fainted, and then they took him to Chettichavadi. A-1 andA-2 cut the throat of the deceased. A-4 stabbed him on the leftflank. A-5 to A-8 stabbed the deceased on the stomach. Then theytook the deceased near Shivaya Road, and at about 1.30 A.M., theythrew the dead body on the road and left the place. A-3 and A-4 tookthe watch and finger ring of the deceased. A-1 took the cell phoneof the deceased. (d) P.W.1 who is the father of the deceased, tried to contactthe deceased through cell phone; but, he could not get any reply. On15.5.2005 at 3.00 A.M., P.W.1 went in search of the deceased. Atabout 3.30 A.M., P.W.18, the Village Administrative Officer (VAO) ofReddiyur Village, received an information that an unidentified maledead body was found near Shivaya Nagar. Then he went to the scene ofoccurrence. At the scene of occurrence he enquired about theidentity of the dead body. P.W.1 who was present there, informedthat the deceased was the his son. Immediately P.W.18 went toAzhagapuram Police Station and lodged a written report, Ex.P6, toP.W.22, the Sub Inspector of Police who was on duty. On the strengthof the report, P.W.22 registered a case in Crime No.1332 of 2005under Sec.302 IPC. The printed FIR, Ex.P33, was despatched to theCourt. 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 theFIR. Then, he took up investigation, proceeded to the spot, made aninspection and prepared an observation mahazar and also a roughsketch, marked as Exs.P7 and P34 respectively. Thereafter, from 6.00A.M. to 9.00 A.M., he conducted inquest on the dead body in thepresence of witnesses and pachayatdars and prepared Ex.P35, theinquest report. He seized the bloodstained earth, M.O.5 and sampleearth, M.O.6, under a cover of mahazar. Then the dead body was sentto the Government Hospital for the purpose of autopsy along with arequisition, Ex.P31.(f) P.W.21, the Doctor, attached to Kumaramangalam GovernmentHospital, Salem, on receipt of the said requisition, conductedautopsy on the dead body of Ramamurthy and has issued a postmortemcertificate, Ex.P32, with his opinion that the deceased would havedied 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 recordedtheir statements. On 18.5.2005 at 7.00 P.M., A-1 appeared beforeP.W.12, the Tahsildar, Salem, and gave an extra-judicial confessionwhich 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 withA-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 thesame, P.W.23 seized M.O.7, bloodstained maruthi van sticker, M.O.8shirt and M.O.9 pant under a mahazar, Ex.P10. He also seized M.O.10Omni 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 andrecorded his confessional statement. The admissible part is Ex.P13.Based on the confession, he produced M.O.14, motorbike, bearingRegistration No.TN 27 A 9113, M.O.15, knife, M.O.16, pant, andM.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, heenquired P.Ws.10 and 19 and recorded their statements. On 21.5.2005,he arrested A-10 and A-11 and recorded their confessional statementsin the presence of witnesses. On the same day, he also arrested A-7and recorded his confessional statement. The admissible part isEx.P27. Pursuant to the same, he also produced M.O.28, bloodstainedknife, M.O.26 bloodstained shirt and M.O.27, pant, under a mahazarEx.P28. On 27.5.2005, P.W.23 enquired P.W.7 and recorded hisstatement. 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 JudicialMagistrate No.V, Salem. When it came to the knowledge of the police,the Investigator filed a memo, got custody and recorded theirconfessional statements. The admissible part of the confessionalstatement of A-4 is Ex.P17. As per the statement, he produced a suriknife, which was recovered under a cover of mahazar, Ex.P18. Then herecorded the confessional statement of A-5, the admissible part ofwhich is Ex.P19. He also produced M.O.21 pen knife, which wasrecovered under a mahazar. He recorded the confessional statement ofA-6, the admissible part of which is Ex.P21. Based on the same, heproduced M.O.22, pen knife, which was recovered under a cover ofmahazar. On 7.7.2006, P.W.23 recorded the confessional statement ofA-8 in the presence of witnesses. The admissible part is Ex.P25.Pursuant to the confession, he produced a knife, which was recoveredunder a mahazar. (j) On 11.8.2005 at 5.30 A.M., P.W.23 arrested A-3 nearAzhagapuram Venkatachalapathy Temple and recorded his confessionalstatement. The admissible part is Ex.P29. He also seized a knifeunder a cover of mahazar. On 15.8.2005, he examined other witnessesand recorded their statements. All the material objects were sent foranalysis. Ex.P37 is the serological report. On completion ofinvestigation, 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, theprosecution examined 23 witnesses and also relied on 37 exhibits and29 material objects. On completion of the evidence on the side ofthe prosecution, the accused were questioned under Sec.313 of Cr.P.C.as to the incriminating circumstances found in the evidence of theprosecution witnesses, which they flatly denied as false. No defencewitness was examined. The trial Court heard the arguments advancedand took the view that the prosecution has proved the case beyondreasonable doubt in respect of the charges levelled against them andhence found them guilty and awarded punishment which is the subjectmatter of challenge before this Court.5.Advancing arguments on behalf of A-1, A-3, A-5 and A-6, thelearned Counsel would submit that the prosecution rested its entirecase on the theory of conspiracy hatched up by A-1 along with othersto do away with the deceased, a collection agent, who actually seizedthe vehicle from him and also because of the grudge over him; thatthe prosecution examined only one witness in order to speak about thetheory of conspiracy namely P.W.11, before the trial Court, but heturned hostile; that except his evidence, the prosecution had noevidence to offer and hence the prosecution miserably failed to provethe conspiracy theory by any evidence known to law; but, the trialCourt has erroneously taken the conspiracy theory as proved, and thusthe prosecution failed in its attempt. 6.The learned Counsel would further add that in the instantcase, the prosecution as far as A-1 was concerned, rested its case onthe extra-judicial confession alleged to have been given by him toP.W.12, Tahsildar, on 18.5.2005; that the lower Court should haverejected this piece of evidence for the simple reason that P.W.12 wasa Tahsildar; that it is not the case of the prosecution that theaccused was already known to him or he has got any connection to him;that further he is a stranger; that the extra-judicial confession wasalleged to have been given after four days; that there was no reasonwhy A-1 should come forward after an interval to divulge the secrecyof such a heinous crime to the Tahsildar; that apart from that, theconfessional statement is also hit under the provisions of law; thatthe Tahsildar, P.W.12, was not competent to record such aconfessional statement under Sec.164 of Cr.P.C.; that apart fromthis, he cannot also exercise any one of the provisions to his helpto record such a statement under the Evidence Act which is applicableto the Police Officer; that the Tahsildar has further added that hehas got enormous powers under Sec.26 of the Evidence Act; that if tobe so, the statement should have been recorded under Sec.26 of theEvidence Act, to which he has no evidence at all; that apart fromthis, that statement was actually recorded under Sec.26 of theEvidence 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 ofevidence since it has no evidentiary value at all; and that under thecircumstances, this part of the evidence should have been rejected bythe 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 theInvestigating Officer, pursuant to which the material objects havebeen recovered; that as could be seen, what was available was that ofthe statement given by the father of the deceased; and that eventhere is no whisper in the earliest document about any antecedent orthe accused came over or the mother warned the son or he had got anysuspicion 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 reportwas 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 forthe alleged arrest, confession and recovery of the material objectsfrom A-1; that he has categorically stated that he did not enter intothe 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; andthat in such circumstances, it is not certain whether those articleswere seized properly. 9.The learned Counsel would further submit that the chemicalanalysis report was not filed; that when the document namelyserological report, is looked into along with the requisitions sent,the serial numbers actually differ; that though it was found in thetrial Court's judgment that the blood group was found in thosematerial objects recovered from A-1, and when compared with the bloodgroup found in the clothes of the deceased, they were found to betallying, this cannot in any way help or advance the prosecution casefor the simple reason that the chemical analysis report is not filed,and serial number what is found in the requisition and theserological report do not tally, and hence it could not be taken assupportive evidence; that under the circumstances, it should havebeen rejected; that except this part of the evidence, the prosecutionhad no evidence to offer; that as far as A-1 is concerned, theprosecution had not only lack of evidence, but also no evidence atall; that as regards A-3, A-5 and A-6, there is no specific evidenceworth 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 Counselwould urge that the entire case as against A-2 rested on the recoveryof certain material objects from him; that according to theprosecution, he was arrested on 18.5.2005 at about 8.00 A.M., andP.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 pursuantto the confessional statement given by him; that it is pertinent topoint out that as far as the place of arrest and recovery isconcerned, it cast a doubt whether it could have taken place as putforth by the prosecution for the simple reason that P.W.18 wouldstate that he was arrested and the recovery has been made from insidethe house of A-2; but on the contrary, the recovery of the saidmaterial objects was made from a plantain thope according to P.W.23;and that this would make it clear that such arrest and recoveryfollowing the confession, could not have been made at all. https://hcservices.ecourts.gov.in/hcservices/

11.Added further the learned Counsel that when these materialobjects were marked through the witness and both P.W.18 and P.W.23have spoken in length in their evidence, corresponding questionsshould have been asked to the accused under Sec.313 of Cr.P.C. sincethey were prejudicial to the interest of the accused; but a perusalof Sec.313 Cr.P.C. questioning of A-2 would clearly indicate that ithas not been asked to him, and thus it was a denial of opportunityavailable to the accused in that regard; that the same would alsoaffect that piece of evidence as to the recovery of those materialobjects; that under the circumstances, the prosecution cannot have orplace its hands on that piece of evidence; that as far as A-2 isconcerned, no case is made out and hence he is entitled foracquittal.12.The learned Senior Counsel Mr.V.Gopinath appearing for A-7would submit that in the instant case, what was available was onlythe extra-judicial confession alleged to have been given by A-1 toP.W.12 which cannot be acted upon as against A-7. Relying on thedecision of the Apex Court reported in 1987 L.W. (CRL.) 274 (PARAMHANS YADAV & SADANAND TRIPATHI V. STATE OF BIHAR AND OTHERS), thelearned Senior Counsel would submit that the extra-judicialconfession made by an accused pointing to the other accused, cannotbe a substantive piece of evidence; that the Court in order to findout whether it lends assurance, should also look into whether otherpieces of evidence are available; that in the instant case, the otherpiece of evidence available, according to the prosecution, is therecovery of M.Os.26, 27 and 28, pant, shirt and knife respectively;that they were all recovered according to the prosecution; that asfar as these three items are concerned, the place of recovery woulddiffer; that apart from that, though they were sent for chemicalanalysis, the chemical report was not filed; that only theserological report was filed; that as far as Sec.313 Cr.P.C.questioning was concerned, those questions pertaining to thecontaining of blood group or tallying of the same with that of thedeceased were not asked at all; that it was a denial of opportunityavailable to the accused; that under the circumstances, that evidenceloses its value; that as far as the confession is concerned, the samecannot be acted upon; that under the circumstances, no othersupportive piece of evidence is available; that the extra-judicialconfession by one accused against the other accused cannot be asubstantive piece of evidence; that in the instant case, no furthersupportive evidence is available; that under the circumstances, itshould have been rejected by the trial Court, but not done so, andhence he is entitled for acquittal.13.As far as the other accused were concerned, the learnedCounsel adopted the arguments advanced by the Counsel and recordedabove. Amicus Curiaes appointed by this Court are relieved.14.The Court heard the learned Additional Public Prosecutor onall the above contentions and paid its anxious consideration on thesubmissions 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 Bankwhose 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. Onthe strength of that report, a case came to be registered directlyunder Sec.302 IPC, and the investigation was taken up by P.W.23, theInspector of Police. Following the inquest report, the dead body wassubjected to autopsy by P.W.21, the Doctor, attached toKumaramangalam Government Hospital who has given his categoricalopinion that the deceased would have died out of shock andhaemorrhage due to multiple injuries sustained. Thus, it would bequite clear that it was a homicidal death. This fact that he met ahomicidal death was never challenged by the appellants before thetrial Court, and hence no impediment is felt by this Court inrecording so.16.As could be seen from the charges levelled against theappellants, the first prime charge on which the entire case of theprosecution was rested, was that of the conspiracy alleged to havebeen hatched up by A-1 due to the grudge as to the repossession ofhis vehicle by the deceased, along with the other accused 10 daysprior to the occurrence. The prosecution, in order to prove theconspiracy theory, marched P.W.2 to speak about the fact that 30 daysprior to the occurrence, A-1 came along with others and informedP.W.2 as to the conduct of her son, the deceased, and told her thathe should be very careful thereafter, and at that time she came toknow that he was Sarkarai by name, and he was A-1. As far as thispart of the evidence is concerned, the prosecution could not have thebenefit of the same for the simple reason that when Ex.P6, thereport, was given by the VAO even after the verification and identityof the body of the deceased from P.W.1, there is no whisper abouteither A-1 or the incident that has taken place earlier. At thisjuncture, the earliest document that was recorded from P.W.2 themother, or Ex.P6 did not reveal this fact, and thus it would be quiteclear that it cannot but be a development made subsequently. Inorder to speak about the conspiracy that was alleged to have beenhatched 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 thetime of trial has turned hostile. Thus the prosecution could nothave the benefit of his evidence. Except these two pieces ofevidence, the prosecution had no evidence to offer. These two piecesof evidence for the reason recorded above, could not be accepted bythe Court. Under the circumstances, as rightly commented by thelearned Counsel for the appellants, the prosecution miserably failedto prove the conspiracy theory. 17.As far as the other part of the case of the prosecution isconcerned, a thorough analysis and marshaling of the evidence wouldclearly reveal that the prosecution focused its entire case on thefollowing circumstances. (i) The occurrence has taken place on 14.5.2005 night hours. On18.5.2005, A-1 appeared before P.W.12 Tahsildar of the said placenamely Salem, and narrated the entire incident. He has recorded the https://hcservices.ecourts.gov.in/hcservices/ same, which is marked as Ex.P1. He also produced A-1 along withEx.P1 and his report Ex.P2, before P.W.23, the Investigating Officer.(ii) The Investigating Officer recorded the confessionalstatement of A-1. The admissible part is marked as Ex.P9. Followingthe same, the material objects were recovered from him. (iii) The material objects so recovered were sent for chemicalanalysis along with the material objects recovered from the place ofoccurrence and also from the dead body of the deceased. They wereall put to analysis, and the serological report has also been filed.The prosecution brought to the notice of the trial Court that theblood group in all these material objects tallied with each other,and that would be pointing to the nexus of A-1 with the crime. 18.The learned Counsel for the appellants levelled criticismsutmost against Ex.P1, the extra-judicial confession alleged to havebeen given by A-1 to P.W.12 which is marked as Ex.P1. According tothe learned Counsel, this cannot be accepted in evidence since it islegally hit either under Sec.164 of Cr.P.C. or under Sec.26 of theEvidence Act. But, this contention cannot be countenanced at all inthe considered opinion of the Court. According to P.W.12, when hewas in office, at about 8.00 P.M. A-1 appeared and gave thestatement, and the same was recorded by him. At the first, thisCourt is to point out that P.W.22 is a Tahsildar, a respectablewitness, and what made or impelled A-1 to appear before him and gavesuch a statement should be well within the special knowledge of A-1, and unless he explains that, nobody could understand the same;probably he would have been under fear to bring to the notice of thepolice, and had it been done, they would have been dealt withseverely and that would have been deterring him from meeting thepolice. This Court is unable to see any reason why the evidence ofP.W.12, a witness like Tahsildar could be looked with suspicion. 19.The learned Counsel brought to the notice of the Court thatat Azhagapuram, there was one Inspector of Police by name Mohan; thatthe said Mohan was actually related to the Tahsildar; that thepresent officer who took up investigation namely P.W.23, could havealso been related to both these persons, and thus the service of thisTahsildar could not have been taken into. But, this Court is of theview that this contention is farfetched. When this particularInspector of Police namely Mohan who was at the police station, wasnot known, and merely because the Tahsildar happened to be thebrother of Mohan who served as Inspector of Police in that particularpolice station and whose service under that police station remainedunknown, the Court need not and cannot infer that his service couldhave been taken for the purpose of supplying evidence in a case ofmurder like this. Needless to say, a Tahsildar like P.W.12 was notcompetent to record any statement under Sec.164 of Cr.P.C., andnowhere it is stated in the entire document that it is recorded underSec.26 of the Evidence Act. True it is, a question was posed toP.W.12 as a witness whether he has got power under Sec.26 of theEvidence Act. He has also answered in affirmative. But, it did notmean that he recorded the statement under Sec.26 of the Evidence Act. https://hcservices.ecourts.gov.in/hcservices/ So long there is nothing to indicate that he has recorded thestatement under Sec.26 of the Evidence Act either through hisevidence or under the document Ex.P1, it cannot be inferred that herecorded so. 20.Before accepting any extra-judicial confession, it has beenheld by the Apex Court that the Court has to apply two tests, firstlyto whom and under what circumstance such an extra-judicial confessionwas made and secondly whether the evidence of the person to whom suchextra-judicial confession is alleged to have been given, inspires theconfidence of the Court. In the instant case, P.W.23 was aTahsildar, an independent officer, whose evidence ordinarily cannotbe looked with suspicion, and he was also working in the same place.The occurrence has taken place on 14.5.2005. A-1 has appeared beforehim on 18.5.2005. There was no long interval, and the evidence ofP.W.12 when scrutinized inspires the confidence of the Court. Thusthis Court had no hesitation to accept the evidence of P.W.12, theTahsildar. His evidence, in the considered opinion of the Court, hasto be acted upon. 21.Insofar as the other piece of evidence regarding the recoveryof the material objects, as rightly pointed out by the learnedCounsel, when these material objects were placed before thelaboratory for chemical analysis, what prevented the prosecution fromfiling the chemical analysis report remained unknown. Added further,it is true that the blood group was found to be tallying as per theserological report. But, in the absence of any correlation, thisCourt is unable to agree or accept that piece of evidence which couldbe acted upon. As far as A-1 is concerned, in view of the evidenceadduced through P.W.12 and that too the extra-judicial confessionEx.P1, this Court has to act upon the same and find him guilty sincein the considered opinion of the Court, it is a strong piece ofevidence. 22.As far as A-2 is concerned, the contentions put forth by thelearned Counsel have got strong force. According to the prosecution,three material objects namely M.Os.15, 16 and 17, knife, pant andshirt respectively, were recovered from him, and the recovery wasmade on 19.5.2005. As regards the place of recovery, there is avital difference between the evidence of P.W.18, the VAO, and alsothe Investigating Officer, P.W.23, and it would go to show that sucha recovery could not have taken place at all. Added further, thestrong circumstance was that when the accused was questioned underSec.313 Cr.P.C., in respect of the blood group, though found to betallying, no questions were put to him, and it would be denial ofopportunity which is well established and ensured a right availableto the accused in a criminal trial. On that ground also, that partof the evidence cannot be accepted. Except this piece of evidence,the prosecution had no further evidence to offer before the trialCourt, and hence the Court can well comment that insofar as A-2,there was bereft of evidence. 23.So far as A-7 was concerned, this Court has to necessarily https://hcservices.ecourts.gov.in/hcservices/ agree with the learned Senior Counsel for the simple reason that itis a case where A-7 was arrested pursuant to the extra-judicialconfession made by A-1 to P.W.12. To what extent the extra-judicialconfession given by an accused could be acted upon against the co-accused came up for consideration before the Apex Court in a casereported in 1987 L.W. (CRL.) 274 (PARAM HANS YADAV & SADANANDTRIPATHI V. STATE OF BIHAR AND OTHERS) wherein it has been held asfollows:"9.It is well settled that the confession of a co-accusedis not substantive evidence against other co-accusedpersons in the same trial. As this Court pointed out inKashmira Singh v. State of Madhya Pradesh the confession ofa co-accused is not substantive evidence against the otheraccused persons at the trial but could only be used forlending re-assurance if there be any other substantiveevidence to be utilised or acted upon."24.From the very reading of the above decision, it would bequite clear that the extra-judicial confession given by an accused ina criminal case cannot be taken as a substantive piece of evidence asfar as the other accused is concerned. Apart from this, the saiddecision has got full application to the present facts of the case.In the instant case, the prosecution can come forward to state thatthe other substantive piece of evidence to lend assurance for thealleged extra-judicial confession is the so called recovery. As faras the recovery of M.Os.26 to 28 pant, shirt and knife respectively,is concerned, if looked into, the place of recovery would differ. Asfar as the Investigating Officer is concerned, he has stated that itwas recovered from the plantain thope. P.W.18 has stated that it wasdone inside the house. Thus the evidence would differ in thatregard. Apart from that, the chemical report was also not filedthough serological report was filed, and the correlation is also notmade clear. Under the circumstances, the benefit should go to A-7.25.Insofar as the other accused namely A-3 to A-6 and A-8 to A-11, it can be well stated that the prosecution has no iota ofevidence to show their nexus to the crime. As far as A-2 and A-7 areconcerned, for the reasons recorded above, there is nothing pointingto the complicity of A-2 and A-7 in the commission of the offence.As regards A-1, his nexus to the crime stood proved, and he has gotto be found guilty under Sec.302 IPC simplicitor. The life sentenceimposed by the trial Court has got to be sustained. A-1 is entitledfor acquittal in respect of the other charges. The other accused areentitled for acquittal in respect of all the charges. 26.In the result, C.A.No.271/2007 is dismissed, confirming thejudgment of conviction and sentence imposed on A-1 under Sec.302 IPCby the lower Court. A-1 is acquitted of all other charges, and thefine amounts if any paid by him in that regard will be refunded tohim. It is reported that A-1 is on bail. Hence the Sessions Judgewill take steps to commit A-1 to prison to undergo the life sentence.27.In the result, C.A.Nos.170, 182, 218, 241, 311 and 322 of https://hcservices.ecourts.gov.in/hcservices/ 2007 are allowed setting aside the judgment of the trial Court. A-2to A-11 are acquitted of all the charges levelled against them. Thebail bonds executed by them shall stand terminated. The fine amountsif any paid by them will be refunded to them. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar nsvTo:1.The Additional Sessions Judge Fast Track Court No.II Salem2.-do- Thro' The Principal Sessions Judge, Salem.3.The Inspector of Police Azhagapuram Police Station (Cr.No.1332/2005)4. The District Collector,Salem.5. The Director General of Police,Chennai.6. The Superintendent, Central Prison, Salem7. The Superintendent, Central prison, Coimbatore.8.The Public Prosecutor, High Court, Madras.+ 1 cc to Mr.S.Chandramouli,Advocate,SR.23478+ 1 cc to Mr.K.V.Sridharan,Advocate,SR.23624+ 1 cc to Mr.S.Anantha Narayanan,Advocate,SR.23773+ 1 cc to Mr.N.Mohideen Basha,Advocate,SR.24055+ 1 cc to Mr.R.Nalliyappan,Advocate,SR.23391+ 1 cc to Mr.L.Mahendran,Advocate,SR.23584C.A.Nos.170, 182, 218,241, 271, 311 and322 of 2007KG(CO)EM/1.7.09