Bail SlipThe v. State

Bail SlipThe Appellant herein/Accused viz. Rani @ Unnamalai-A1 the petitionerin MP 1/2008 in CA 540/2008, Markas (A2) Petitioner inCrl.A.NO.113/2009 (Accused in S.C.No.81/2006 dated 27.5.2008, on thefile of the Additional District & Sessions Judge, Fast Track CourtNo.1,Chenglepet) were directed to be released on bail as per order ofthis Court dt.4.8.2008 and 11.3.2009 respectively and made inCrl.M.P.1/2008 in Crl.A.NO.540/2008 and Crl.M.P.No.1/2009 inCrl.A.113/2009 respectively.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 18.06.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCriminal Appeal Nos.540 of 2008 and 113 of 2009Rani @ Unnamalai.. Appellant/Accused No.1 in C.A.No.540 of 2008Markas.. Appellant/Accused No.2 in C.A.No.113 of 2009Vs.State represented byInspector of Police,Peerkan Karanai Police Station,Chenglepet District.(Crime No.315/2004).. Respondent in both the appeals. These criminal appeals have been preferred under Section 374(2)Cr.P.C. against the judgment of conviction and sentence passed by thelearned Additional District & Sessions Judge, (Fast Track CourtNo.1), Chenglepet made in S.C.No.81 of 2006, dated 27.05.2008. For Appellants : Mr.Ashok Kumar, Senior Counsel for Mr.Sasidharan in C.A.No.540 of 2008For Respondent : Mr.N.R.Elango, APP COMMON JUDGMENT(The judgment of the Court was delivered by M.CHOCKALINGAM, J.)These two appeals have been filed by the first and second https://hcservices.ecourts.gov.in/hcservices/ accused challenging the judgment of the Additional Sessions Division,Fast Track Court No.1, Chenglepet, whereby, on trial, A1 was foundguilty under section 302 r/w 34 and 201 I.P.C. and awarded lifeimprisonment and 7 years rigorous imprisonment respectively alongwith fine and default sentences and A2 was found guilty undersection 201 r/w 34 I.P.C. and awarded 7 years rigorous imprisonmentalong with fine and default sentence.2. The short facts necessary for the disposal of these appealscan be stated as follows:(a) A1 is the wife of the deceased Shankar. A1 developed illicitintimacy with A2. When it came to the knowledge of the deceased., henot only warned her but also began to quarrel and beat her. Hence, A1and A2 desired to finish him off. On the date of occurrence i.e., on15.4.2003 at 11.30 hours when both A1 and the deceased were in thehouse, they were quarrelling. On seeing the deceased beating A1, A2beat the deceased on different parts of the body. A1 took her husbandinside the house and A2 left the place. After sometime, when A2 camethere, A1 informed him that she has caused the death of her husbandby strangulation. Immediately, A1 and A2 took the body of thedeceased and buried the same nearby the lake bund. (b) On 18.11.2004, when P.W.1-Ward Councillor was in his office,A2 appeared before him and gave a confessional statement. It was alsorecorded by P.W.1 and P.W.1 took A2 to the Police Station andproduced him before P.W.7, Inspector of Police of the concernedcircle. P.W.2 registered a case in Crime No.315 of 2004 underSections 302, 201 r/w 34 I.P.C. and the express F.I.R.-Ex.P9 wasdespatched to Court. Following the confessional statement made by A2,A1 was arrested.(c) P.W.7, Investigating Officer took up investigation. A1 tookthe Police Officer and the witnesses to the place of burial and thedead body was exhumed in the presence of Tahsildar, P.W.5 and otherwitnesses. The investigating officer made an inspection and preparedan observation mahazar Ex.P5 in the presence of witnesses and drew arough sketch Ex.P10. The dead body was subjected to post mortem.Thereafter, A1 and A2 were sent for judicial remand. (d) P.W.4 doctor who conducted autopsy on the dead body of thedeceased has given the post mortem certificate Ex.P.3 wherein he hasopined that the deceased would appear to have died due to effects ofligature strangulation. On completion of investigation, theinvestigating officer filed a final report.(e) The case was committed to the Court of Sessions. Necessarycharges were framed. In order to substantiate the charges, theprosecution examined 7 witnesses and relied on 13 exhibits and 7material objects. On completion of the evidence on the side of theprosecution, the accused were questioned under Section 313 Cr.P.C. asto the incriminating circumstances found in the evidence of theprosecution and they denied them as false. D.W.1 Durga was examined https://hcservices.ecourts.gov.in/hcservices/ on the side of the defence. The trial Court heard the argumentsadvanced on either side and took a view that the prosecution hasproved the case beyond reasonable doubt and found A1 guilty undersection 302 r/w 34 and 201 I.P.C. and awarded life imprisonmentand 7 years rigorous imprisonment respectively along with fine anddefault sentences and found A2 guilty under section 201 r/w 34I.P.C. and awarded 7 years rigorous imprisonment along with fine anddefault sentence. Hence, these appeals at the instance of theappellants. 3. Advancing the arguments on behalf of the appellants, learnedsenior counsel made the following submissions.(a) The gist of the case of the prosecution is A1 and A2 hadillicit intimacy; that this came to the knowledge of the husband ofA1 who quarrelled with his wife; that A2 saw A1's husbandquarrelling and beating A1; that since he could not tolerate thesame, he beat the deceased and left the place; that thereafter, A1took her husband inside the house; that after some time, she causedthe death of her husband; that when A2 came over there, A1 informedA2 that she had murdered her husband by strangulation; that both ofthem took the deceased and buried near the lake bund and that theoccurrence has taken place on 15.11.2004. (b) Learned counsel would further submit that as per theprosecution, on 18.11.2004, A2 suddenly appeared before P.W.1- Wardcouncillor who is a stranger and gave extra judicial confession as tothe occurrence and thereafter, a case came to be registered by therespondent police. Learned counsel would submit that the prosecutionhad no direct evidence to offer. The evidence available for theprosecution was only the extra judicial confession alleged to havebeen given by A2 to P.W.1. This extra judicial confession could notbe used either against A2 or against A1. The occurrence has takenplace on 15.11.2004, at that time, A2 was not present. A2 did notknow what actually happened inside the house of A1. (c) The case of the prosecution is that three days after theoccurrence i.e., on 18.11.2004, A2 suddenly appeared before P.W.1-ward councillor. It is not the case of the prosecution that A2already knew the councillor. Thus, he was a stranger to A2. Apartfrom that, a perusal of the confession statement would clearlyindicate that it was only an exculpatory. Even A2 did not have anydirect knowledge of the alleged incident i.e., the cause of death ofthe deceased Shankar.(d) Further, in the instant case, even according to theprosecution, A2 appeared before the councillor-P.W.1 during nighthours on 18.11.2004 but the witnesses clearly reveal that the policecame to the spot during noon hours and A1 and A2 informed the causeof death of A1's husband to the Police. Thus, the Police knew aboutthe incident even much earlier. The story that A2 went to P.W.1'soffice and gave extra judicial confession and the same was recordedand a case came to be registered only thereafter, were all concoctedfor the case of the prosecution. (e) Added further, learned counsel in so far as A2 isconcerned, he has not spoken anything about the act of A1. Even https://hcservices.ecourts.gov.in/hcservices/ assuming he has given any statement about the act of A1, it would notbind on A1. Learned 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. In the instant case, there is nosupportive evidence available. In so far as A1 is concerned, theextra judicial confession alleged to have been given by A2 could notbe acted to sustain conviction. Hence, A1 has got to be acquitted.(f) Added further learned counsel, as far as A2 is concerned,the trial Court found him guilty under section 201 r/w 34 I.P.C. andawarded punishment of seven years rigorous imprisonment. This part ofthe judgment cannot be sustained for the simple reason that theconfession statement was alleged to have been made before P.W.1 by A2during night hours on 18.11.2004, that too, to a stranger. Thewitnesses came to know about the incident and as to the involvementof A1 and A2 in the crime at the noon hours of 18.11.2004. Thus, theextra judicial confession which came into existence was only acooked up affair and it cannot be given any evidentiary value even toapply against A2. Under such circumstances, A2 is also entitled foracquittal. 4. The Court heard the learned Additional Public Prosecutor onthe above contentions and paid its anxious consideration on thesubmissions made.5. It is not in controversy that the dead body of one Shankarwas exhumed and examined in the presence of P.W.5-Tahsildar andother witnesses and following the inquest made, the dead body wassubjected to postmortem. P.W.4 doctor who conducted post mortem hasgiven his opinion through post mortem certificate Ex.P3 that thedeceased would appear to have died due to effects of ligaturestrangulation. This was never disputed by the appellant either beforethis Court or before the trial Court. Hence, it could be safelyrecorded that the deceased Shankar died out of homicidal violence. 6. The charges levelled against these appellants before theTrial Court was that A1 caused the death of her husband and A1 and A2joined together and buried the dead body and that they have not onlycommitted the crime of murder but also screened the offence. It isseen from the evidence of P.Ws 2 and 3, A1 developed illicit intimacywith A2 and when it came to the knowledge of her husband/deceasedShankar, he scolded her and beat her. On the date of occurrence i.e.,on 15.11.2004, A2 beat the husband of A1 for torturing his wife andA1 caused the death of her husband. In order to prove the factualposition, the prosecution had no direct evidence to offer but onlythe extra judicial confession alleged to have been given by A2 toP.W.1-Ward councillor. Before adverting to the factual position, theCourt is mindful of the caution made by the Apex Court and thesettled principle of law that the confession of a co-accused is notsubstantive evidence against other co-accused person in the sametrial. In any event, no evidentiary value could be attached. https://hcservices.ecourts.gov.in/hcservices/

7. Even as per the prosecution case, A2 had no role to play inthe alleged offence and it was only A1 who informed him that shecaused the death of her husband. A2 has given extra judicialconfession, few days after the date of occurrence, to P.W.1-Wardcouncillor who was a stranger. A perusal of the extra judicialconfession would clearly indicate that he has not given anyinculpatory statement regarding participation in the murder. Theextra judicial confession alleged to have been given by A2 to P.W.1,a stranger will not in any way bind A2 and this is the only pieceof evidence available before the trial Court. Barred this evidence,the prosecution has no evidence at all. Under such circumstances, atno stretch of imagination, conviction could be sustained on the saidpiece of evidence which has no evidentiary value at all.8. In so far as A2 is concerned, what are all found by the trialCourt is screening the evidence. What was available for theprosecution is only the extra judicial confession given by A2 toP.W.1. At this juncture, learned counsel brought to the notice of theCourt that from the evidence available, it could be seen that policewent to place of occurrence during noon hours on 18.11.2004, earlierbefore the confession statement given by A2 to P.W.1 but the policehave not registered a case at that time. Hence, the extra judicialconfession and the alleged arrest are all cooked up story. Undersuch circumstances, such evidence in the opinion of the Court cannotform basis to sustain the conviction as against A2 and it would beunsafe to sustain the conviction as against A2 on such evidence. Thelower court has lost sight of the factual and legal position and hastaken an erroneous view and passed the judgement of conviction andsentence which has got to undone only by setting aside the same.9. Accordingly, these criminal appeals are allowed, settingaside the conviction and sentence imposed on the appellants by thecourt below. The appellants are acquitted of the charges levelledagainst them. The bail bonds if any executed by the appellants shallstand terminated and the fine amounts if any paid by them is orderedto be refunded to them. Sd/Asst.Registrar/true copy/Sub Asst.Registrarvsi https://hcservices.ecourts.gov.in/hcservices/ To1. The Additional District & Sessions Judge, (Fast Track Court No.1), Chenglepet 2.-do- Through The Principal Sessions Judge,Chenglepet.3. Inspector of Police, Peerkan Karanai Police Station, Chenglepet District.4.The Public Prosecutor, High Court, Madras.5.The Judicial Magistrate,Tambaram.6.-do- Through the Chief Judicial Magistrate,Chengalpattu (for information)7.The Superintendent,Central Prison, Cuddalore (Crl.A.540/2008)8.The Superintendent,Central Prison, Puzhal, Chennai (Crl.A.113/2009)9.The District Collector,Chingleput.10.The Director General of Police,Madras.Copy to The Section Officer,Criminal Section, High Court,Madras.+1cc to Mr.P.Palaninathan, Advocate Sr 24857PUR(CO)km/2.7.Crl.A.Nos.540/2008 and 113/2009