Ramamurthy2. Deepa.. v. State

Bail SlipThe Appellants/Accused No.1 and 2 namely, Ramamurthy S/oMunisamy and Deepa H/o Jayabalan were directed to be released onbail as per the order dated 24.4.2007 made in MP.No.1/07 inCrl.Appeal No.338/07. IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 16-7-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRL.A.No.338 of 2007andM.P.No.1 of 20091.Ramamurthy2.Deepa.. Appellants/AccusedvsState: represented byThe Inspector of PolicePallikondanVellore District.. Respondent/Complainant Criminal appeal preferred under Sec.374 of the Code ofCriminal Procedure against the judgment of the Principal SessionsJudge, Vellore, made in S.C.No.415 of 2005 dated 12.3.2007.For Appellants: Mr.R.SankarasubbuFor Respondent: Mr.N.R.Elango Additional PublicProsecutorJUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)Challenge is made to a judgment of the Sessions Division,Vellore, in S.C.No.415 of 2005 whereby the appellants two in numberstood charged under Sections 120-B, 302 and 201 of IPC, and ontrial, they were found guilty and awarded life sentence underSec.302 IPC, 1 year Rigorous Imprisonment under Sec.120(B) IPC and2 years Rigorous Imprisonment under Sec.201 IPC. https://hcservices.ecourts.gov.in/hcservices/

2.The short facts necessary for the disposal of this appealcan be stated as follows:(a) P.W.1 is the brother of the deceased Jayapal. P.W.2 isthe mother. A-2 is the wife of the deceased. A-1 was residing inthe opposite house. They were all residents of Moolaigate, Pudur,within the jurisdiction of the respondent police. A-2 was oftenvisiting A-1 in his house. It was being questioned by thedeceased. A-2 felt her husband the deceased as a hurdle indeveloping friendship with A-1. P.W.5 heard when A-1 and A-2 werehatching up a conspiracy. Immediately, he also informed the sameto the deceased. Pursuant to a conspiracy made, they caused thedeath of the deceased, took the dead body and buried at a place ina lake on 6.11.2004. (b) For a few days, A-2 did not cook, and hence P.W.2 themother, placed the prepared food in the house of her son, thedeceased. On the date of occurrence namely 6.11.2004, the deceasedwas not found in the house. P.W.2 questioned about the same. A-2did not give a proper answer, but gave evasive answer. P.W.2 inturn informed to P.W.1. They made a search for a few days, andthen finally P.W.1 lodged a complaint, Ex.P1, before P.W.12, theInspector of Police, attached to the respondent Police Station on8.11.2004 at about 6.00 P.M. On the strength of the saidcomplaint, a case came to be registered in Crime No.439 of 2004 forman missing. The printed FIR, Ex.P25, was despatched to the Court.(c) While the matter stood thus, on 9.11.2004, when P.W.3, theVillage Administrative Officer (VAO), was with his Assistant in hisoffice, A-2 appeared and gave a confession as to the crime. Thesame was recorded by P.W.3. The said confession is marked asEx.P2. Along with Ex.P3, the report, she was produced by the VAObefore the respondent police. Thereafter, the case was altered toSections 302, 201 and 120(b) IPC, and Ex.P26, the express report,was sent to the Court. The Police Officer caused arrest andenquired her. She came forward to give a confessional statement,and the admissible part is marked as Ex.P27. (d) The Investigator proceeded to the scene of occurrence,made an inspection and prepared an observation mahazar, Ex.P4, andalso a rough sketch, Ex.P28. Following the same, A-2 producedM.O.8, saree, M.O.9, jacket and also M.O.6, a part of the cottonbed, and all were recovered under a cover of mahazar in thepresence of P.W.6, the VAO. Thereafter, she also took the policeparty and identified the place where the dead body was buried.Immediately a requisition, Ex.P29, was given to P.W.7, theTahsildar, who came to the place, and in his presence, the deadbody was exhumed. On exhumation of the dead body and also onpreparation of the observation mahazar and sketch, an inquest wasconducted on the dead body in the presence of witnesses andpanchayatdars. The inquest report is Ex.P15. Then, she was sentfor judicial remand. (e) Thereafter the dead body was subjected to postmortem byP.W.11, the Doctor, attached to the Government Hospital, Vellore.The Doctor has issued a postmortem certificate, Ex.P24, with hisopinion that the deceased would appear to have died of hypo volumic https://hcservices.ecourts.gov.in/hcservices/ shock due to right sided neck great vessels caused by the multiplecut injuries sustained about 3 to 5 days prior to autopsy. (f) Pending investigation, the Investigator came to know thaton 10.11.2004, A-1 surrendered before the Metropolitan Magistrate,Egmore, Madras. He was taken to police custody on application.Then A-1 came forward to give a confessional statement. Theadmissible part is Ex.P11. He also produced M.O.10, crowbar,M.O.12, knife, M.O.13, full arm shirt, and M.O.14, pant, which wereall recovered under a cover of mahazar. He was sent for judicialremand. All the material objects were subjected to chemicalanalysis which brought forth two reports namely Ex.P19, toxicologyreport, and Ex.P20, serologist's report. On completion ofinvestigation, the Investigator filed the final report.3.The case was committed to Court of Session, and necessarycharges were framed. In order to substantiate the charges, theprosecution examined 12 witnesses and also relied on 30 exhibitsand 15 material objects. On completion of the evidence on the sideof the prosecution, the accused were questioned under Sec.313 ofCr.P.C. as to the incriminating circumstances found in the evidenceof the prosecution witnesses which they flatly denied as false. Nodefence witness was examined. The trial Court heard the argumentsadvanced and took the view that the prosecution has proved the casebeyond reasonable doubt and hence found the appellants guilty andawarded punishment referred to above. Hence this appeal at theinstance of the appellants.4.Advancing arguments on behalf of the appellants, the learnedCounsel Mr.R.Sankarasubbu would submit that in the instant case,the prosecution rested its origin on the conspiracy alleged to havebeen hatched up between A-2 and A-1; that the prosecution came outwith the story that A-2 and A-1 had illicit intimacy as if A-1 wasthe paramour of A-2; but the prosecution failed to prove thatstory; that if to be so, there was nothing to show that theyhatched up a conspiracy; that for the purpose of proving theconspiracy theory, the prosecution adduced evidence through P.W.5;that according to P.W.5, he heard when A-1 and A-2 were talking toeach other whereby they hatched up a conspiracy; that the evidenceof P.W.5 would clearly indicate that such a thing could not havehappened at all; that the prosecution had no more evidence tooffer, and thus the conspiracy theory failed.5.Added further the learned Counsel that as far as A-2 wasconcerned, the prosecution rested its entire case on the extra-judicial confession alleged to have been given by A-2 to P.W.3, theVAO, on 9.11.2004 at about 6.00 A.M.; that the prosecution addedfurther certain material objects which were recovered from A-2pursuant to the alleged confessional statement given to the policeofficer; that the trial Court should have rejected both pieces ofevidence for the simple reason that as far as the extra-judicialconfession was concerned, from the evidence of P.Ws.1 and 2 itwould be quite clear that A-2 was actually kept in the policestation on 6th, 7th and 8th of November, 2004; that if to be so, thatcannot but be an illegal custody; that only in the next morning, https://hcservices.ecourts.gov.in/hcservices/ according to the prosecution that was on 9.11.2004, A-2 cameforward to give a confessional statement to the VAO; that it wouldbe clearly indicative of the fact that A-2 was actually kept underpolice custody for a period of three days illegally, and thus, itwould certainly lead to the irresistible conclusion that such anextra-judicial confession as found under Ex.P2, could have beenextracted by procuring the service of P.W.3, the VAO, and thus theextra-judicial confession should not be relied upon and it shouldhave been rejected.6.Taking the Court to the questioning of A-2 under Sec.313 ofCr.P.C., the learned Counsel would point out that she has given astatement to the effect that she was in police custody on 9thNovember, 2004 also, and hence the alleged extra-judicialconfession should not be given any evidentiary value; that all therecoveries have taken place pursuant to the confessional statement,and hence the recovery would also go. 7.The learned Counsel would further add that A-2 has actuallytaken the police officer and identified the place where the deadbody was buried; that even the witness has spoken to the fact thatthe place where the dead body was actually buried was already knownto the entire villagers and this is spoken to by P.W.4; that underthe circumstances, it was not a new fact which was brought to thenotice of the police by A-2, and hence it cannot be taken as arelevant fact which has come out of the confessional statement andwas useful to the prosecution, and under the circumstances, theprosecution has miserably failed to prove its case. 8.The learned Counsel would further add that as far as A-1 wasconcerned, he actually surrendered before the MetropolitanMagistrate Court, Egmore; that he was taken on police custody; thatthe story that he was taken to police custody, and he came forwardto give a confessional statement and all the material objects wererecovered from him was nothing but a cooked up one; and that exceptthe recovery of these material objects, the prosecution had noevidence as against A-1. 9.The learned Counsel would further contend that even assumingthat there was a confessional statement given by A-2 as to theinvolvement of A-1, the same itself will not suffice; that it mustbe assured of lending support of some other pieces of evidence;that in the instant case, nothing is available; that as far as A-1was concerned, the prosecution has not only lacked evidence, butalso there was bereft of evidence; and that under thecircumstances, they are entitled for acquittal,10.The Court heard the learned Additional Public Prosecutor onthe above contentions. https://hcservices.ecourts.gov.in/hcservices/

11.It is not in controversy that the dead body of Jayapal thehusband of A-2, was exhumed, and after the preparation of Ex.P15,the inquest report, by the Tahsildar, P.W.7, the dead body wassubjected to postmortem by P.W.11, the Doctor, who has given hisopinion that the deceased would appear to have died of multipleinjuries sustained on the right neck vessel 3 to 5 days prior toautopsy. The fact that Jayapal died out of homicidal violence wasnever disputed by the appellants, and hence no impediment was feltby the trial Court in recording so and rightly too.12.In order to substantiate that both the accused joinedtogether and caused the death of the husband of A-2, pursuant to aconspiracy hatched up, since A-2 and her paramour A-1 found him asa hurdle in their illicit intimacy, and in order to screen theevidence, they buried the dead body in a lake, the prosecutionthough examined 12 witnesses, no one was an eyewitness either as tothe occurrence of murder or as to the screening of evidence.Though the prosecution examined P.W.5 to the fact that he heardwhen A-1 and A-2 were talking to each other when they decided tofinish him off, the evidence of P.W.5 stating that he saw both theaccused walking together and talking to each other cannot besufficient to indicate that they had any plan to cause the death ofthe deceased. What are all stated by P.W.5 was that he found bothof them talking on the roadside, and then he complained to thedeceased about the same. This piece of evidence cannot be taken asa direct evidence as to conspiracy. It is settled position of lawthat in a given case though not direct evidence is available toprove the conspiracy, it can also be inferred from the provedcircumstances from which such a conspiracy could be proved. In theinstant case, on scrutiny of the materials, this Court is of theconsidered opinion that neither direct evidence nor circumstanceindicative of or from which conspiracy could be inferred was placedor proved. 13.As far as the other part of the case namely A-1 and A-2have committed the murder of the husband of A-2 and buried the deadbody, the prosecution had no direct evidence to offer, and itrested on two pieces of evidence namely extra-judicial confessiongiven by A-2 wherein she has admitted the crime of murder and alsothe screening of evidence and the involvement of A-1, and therecovery of material objects. Before accepting the extra-judicialconfession, the Court has to apply two tests firstly when and underwhat circumstance the said extra-judicial confession was given bythe accused and secondly whether the evidence of the person to whomthe extra-judicial confession was made inspired the confidence ofthe Court. If these tests are applied, this Court is afraidwhether it could act on the extra-judicial confession alleged tohave been given by A-2 to P.W.3, the Village Administrative Officer(VAO). From the evidence of P.W.3, it would be quite clear that hewas the VAO of the very same place. Admittedly, Ex.P1 complaintwas given by P.W.1 to P.W.12, the Inspector of Police, stating thatJayapal was found missing for a few days. A case came to beregistered in Crime No.439 of 2004 for man missing at about 6.00 https://hcservices.ecourts.gov.in/hcservices/ P.M. on 8.11.2004. It is candidly admitted by P.Ws.1 and 2 thatwhen they went to the police station, A-2 also accompanied them.P.W.3, VAO has stated that when he was in his office at about 6.00A.M. on 9.11.2004, A-2 came and gave a confessional statement, andhe recorded the same as found in Ex.P2., and along with the reportEx.P3, he produced her before the police. When it was admitted bythe witnesses and in particular P.W.2 that A-2 accompanied P.Ws.1and 2 to the police station on 6.11.2004 and 7.11.2004 and inparticular on 8.11.2004, it is highly doubtful even after threedays why she should go to the VAO to give such a statement. Thus,it would be quite clear that when she was in the police station,such a statement as found in Ex.P2 could have been prepared withthe help of the VAO who belonged to the same place. When P.W.3claimed that A-2 came to his office and made a confession as to thecommission of the crime, he did not even make an attempt to go tothe place of occurrence and verify the truth of such statement, butmechanically recorded the same. Had he done so, it could lend someassurance to the said extra-judicial confession. So long there isevidence to indicate that A-2 was in the police station for nearlythree days and the extra-judicial confession alleged to have beengiven has also followed the same on the fourth day morning, itwould be quite clear that the extra-judicial confession statementcannot but be one created, and for that purpose the service ofP.W.3 was procured by the police. When this extra-judicialconfession became shaky and doubtful, the recovery of the materialobjects cannot constitute any evidence.14.Now, the learned Additional Public Prosecutor brought tothe notice of the Court that the place of burial of the husband ofA-2 was actually pointed out by A-2 pursuant to which the dead bodywas exhumed, and inquest was conducted by P.W.7, the Tahsildar.Contrarily it is found that all the villagers were actually at theplace where the dead body was buried, even before the policepersonnel went to the spot along with the accused. Thus the placewhere the dead body was buried was already known to the villagers,and there was nothing further to identify by A-2. 15.As far as A-1 was concerned, what was all available in thecase was the extra-judicial confession alleged to have been givenby A-2, wherein the involvement of A-1 was spoken. Needless to saythat the confessional statement of one accused cannot ordinarily berelied upon except when there are other materials to lend assuranceas to the involvement of the other offender. In the instant case,on arrest of A-1, it is stated that he gave a confessionalstatement and the weapon of crime was recovered. But all weresubjected to chemical analysis, and the test was with a resultinconclusive. Thus, the prosecution which could not place anydirect evidence, placed the above circumstances which lackedevidentiary value. In the considered opinion of this Court, itwould he highly unsafe to sustain a conviction, and hence thejudgment of the trial Court has got to be set aside. https://hcservices.ecourts.gov.in/hcservices/

16.Accordingly, this criminal appeal is allowed setting asidethe judgment of the trial Court. The appellants are acquitted ofthe charges levelled against them. The bail bonds executed by themshall stand terminated. In view of the judgment above, M.P.No.1 of2009 does not require consideration, and accordingly, it is closed.nsvSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo:1.The Principal Sessions Judge Vellore2.The Inspector of Police Pallikondan Vellore District3.The Public Prosecutor High Court, Madras.4.The Superintendent, Central Prison, Vellore.5.The Superintendent, Central Prison (Women) Vellore.6.The Judicial Magistrate No.V, Vellore.7.Do Through The Chief Judicial Magistrate, Vellore.8.The Section Officer, Criminal Section, High Court, Madras.CRL.A.No.338 of 2007RSI(CO)SR/28.7.2009