Bail SlipC.A.No.584 of 2007 v. State by Inspector of Police,Palacode Police Station,Dharmapuri DistrictCri

Bail SlipC.A.No.584 of 2007: The Appellant / Accused No.3 Viz. Subbu, S/o.Gopal was directed to be released on bail as per order of this Courtdated 12.7.07 made in Crl.M.P.No.1/07 in Criminal Appeal No.584 of2007 on the file of this Court.C.A.No.584 of 2007: The Appellants/Accused No.1 and 2 Viz. 1.Rani,W/o.Late Raja 2.Arjunan, S/o.Gopal were directed to be released onBail as per order of this Court dated 30.7.07 made in Crl.M.P.No.2 of2007 in Crl.A.NO.584/07 on the file of this Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 27.01.2009 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE M.VENUGOPALCRIMINAL APPEAL NO.584 OF 20071.Rani2.Arjunan3.Subbu.. Appellants / Accused Nos 1 to 3Vs.State by Inspector of Police,Palacode Police Station,Dharmapuri DistrictCrime No.661 of 2003.. Respondent / Complainant This criminal appeal has been preferred under Section 374(2)Cr.P.C. against the judgment of the learned Additional SessionsJudge, Fast Track Court, Dharmapuri made in S.C.No.179 of 2006, dated28.06.2007. For Appellants : Mr.N.ManokaranFor Respondent : Mr.P.Kumaresan, APP - - - - JUDGMENT(The judgment of the Court was delivered by M.CHOCKALINGAM, J.)This appeal challenges the judgment of the Additional SessionsDivision, Fast Track Court, Dharmapuri made in S.C.No.179 of 2006,whereby A-1 and A-2 were stood charged under Section 302 IPC and A-1 https://hcservices.ecourts.gov.in/hcservices/ to A-3 were stood charged under Sections 302 r/w S.201 IPC, tried andfound guilty as per the charges. A-1 and A-2 were sentenced toundergo life imprisonment each and to pay a fine of Rs.2000/-, indefault to undergo one year R.I. under Section 302 IPC and A-1 to A-3 were sentenced to undergo three years R.I. each and to pay a fineof Rs.1000/-, in default to undergo 6 months R.I. under Section 302r/w S.201 IPC and the sentences imposed on A-1 and A-2 were orderedto run concurrently. 2.The short facts necessary for the disposal of this appeal canbe stated as follows:a)P.W.1 is the brother of the deceased Raja. A-1 is the wife ofthe deceased. A-2 and A-3 are the brothers of A-1. The marriagebetween the first accused and the deceased took place 9 years priorto the occurrence. The deceased was addicted to liquor and wascarrying on wayward life. The spouses had quarrel often. On17.11.2003 at about 8.30 p.m., the deceased went to the house of hismother-in-law to call A-1 back to live with him. Thereafter, he didnot return. On 18.11.2003, P.W.1 was informed that there was a deadbody on the railway track nearby. Immediately, he rushed over thereand found that it was that of his brother. b)The railway employees informed to the Railway station master on18.11.2003 as to the fact that the dead body of the deceased waslying in the railway track. On that information, a case came to beregistered in Crime No.292 of 2003 under Section 174 Cr.P.C. Ex.P.25,the F.I.R. was despatched to the court. P.W.15, the Sub Inspector ofPolice of Railway police went to the spot and made an inspection inthe presence of the witnesses. He prepared the observation mahazarand Ex.P.27, the rough sketch. He recovered the material objects fromthe place of occurrence under a cover of mahazar. Then, he conductedinquest on the dead body of the deceased in the presence of thewitnesses and panchayatdars and prepared Ex.P.28, the inquest report.Then, the dead body was sent for the purpose of autopsy. P.W.1 didnot entertain any suspicion and that the railway police closed thecase as it was the railway accident. c)P.W.17, the Doctor attached to the Government Hospital,Dharmapuri, on receipt of the requisition, has conducted autopsy onthe dead body of the deceased and has issued Ex.P.33, the post-mortemcertificate, wherein he has opined that the deceased would appear tohave died of shock and haemorrhage due to the multiple injuriessustained. d)A-1 to A-3 were called for and were enquired before thevillagers. But they came forward to state that they did not knowanything about the incident. Thereafter, on 02.12.2003, again theywere called and A-1 and A-2 made extra judicial confession to P.W.2in the presence of P.W.1, P.W.5 and villagers that on the date ofoccurrence, the deceased came in a drunken mood and quarreled with A-1 and at that time, A-1 pressed his testicles and when he fell sown,it was A-2, who dashed him on the ground and caused his death and inorder to screen the evidence, A-1 to A-3 took the dead body and https://hcservices.ecourts.gov.in/hcservices/ placed it on the railway track. e)After knowing about the same, P.W.1 went to the railway policeand gave the complaint. The matter was referred to Palacode Policestation, the respondent herein. On the strength of Ex.P.1, thecomplaint received from P.W.1, a case came to be registered by therespondent police in Crime No.661 of 2003 under Sections 302 and 201IPC. Ex.P.34, the F.I.R. was despatched to the Court.f)P.W.19, the Inspector of Police, took up the investigation,proceeded to the spot and made an inspection in the presence of thewitnesses. He prepared Ex.P.35 and P.37, the observation mahazars andExs.P.36 and P.38, the rough sketches. He examined the witnesses andrecorded their statements. M.O.1, the pant of the deceased wasrecovered and the same was identified by P.W.1. A-1 to A-3 werearrested and A-1 came forward to give confessional statement, whichwas recorded in the presence of the witnesses, the admissible part ofwhich was marked as Ex.P.6. Pursuant to the same, A-1 produced M.Os.2and 3, clothes, which were recovered under a cover of mahazar. Thematerial objects were recovered from the place of occurrence under acover of mahazar. The second and third accused also came forward togive confessional statements, which were recorded in the presence ofthe witnesses. The admissible parts of the confessional statements ofA-2 and A-3 were marked as Exs.P.40 and P.39. The accused were sentfor judicial remand. The Investigator examined the witnesses andrecorded their statements. The material objects recovered were sentfor chemical analysis. Ex.P.14, the Chemical Analyst's report andEx.P.15, the Serologist's report were received. On completion of theinvestigation, the Investigating Officer has filed the final report.3.The case was committed to the court of Sessions and necessarycharges were framed. In order to substantiate the charges levelledagainst the accused, the prosecution examined 19 witnesses and alsorelied on 40 exhibits and 6 M.Os. On completion of the evidence onthe side of the prosecution, the accused were questioned underSection 313 Cr.P.C. as to the incriminating circumstances found inthe evidence of prosecution witnesses, which they flatly denied asfalse. No defence witness was examined. The trial court, afterhearing the submissions made and also looking into the materialsavailable, took the view that the prosecution has proved the casebeyond reasonable doubt, found them guilty as per the charges andawarded punishments as referred to above. Hence this appeal hasarisen at the instance of the appellants.4.Advancing arguments on behalf of the appellants, the learnedcounsel inter-alia has made the following submissions:a)The occurrence has taken place on 17.11.2003 night, but theprosecution had no direct evidence to offer and it has relied on itsentire case on circumstantial evidence. The main circumstance reliedon by the prosecution was the extra judicial confession alleged tohave been given by A-1 to A-3 on 02.12.2003, pursuant to which P.W.1went to the railway police and gave Ex.P.1, the report and the samewas also transferred to the regular police, namely Palacode police https://hcservices.ecourts.gov.in/hcservices/ station and the case was registered in Crime No.661 of 2003. Exceptthis piece of evidence, the prosecution had no further evidence tooffer. So far as the extra judicial confession was concerned,according to the prosecution, it was given by A-1 to A-3 to P.W.2,the Oorgounder in the presence of P.Ws.1,5 and the others. So far asP.W.2 was concerned, he has turned hostile. So far as P.W.1 wasconcerned, he has categorically stated that A-1 to A-3 gave extrajudicial confession on 02.12.2003 itself and they waited for a fewdays and he went to the police station on 08.12.2003, but accordingto the statement recorded by the police, extra judicial confessionwas made only on 07.12.2003 and not before that. Further, if theextra judicial confession was made by A-1 to A-3 on 02.12.2003 asclaimed by P.W.1, why there was a delay of 5 days in making such areport as found in Ex.P.1 and no reason was coming from theprosecution. Thus, this would cast a doubt whether A-1 to A-3 couldhave committed the offence and that P.W.1 has given a false report asfound in Ex.P.1. Further, P.W.5 was the other witness examined inthis regard. P.W.5 has not stated when the extra judicial confessionwas made. Further, initially, the dead body of the deceased wasfound and it was actually recorded as an accident. The prosecutionwas able to show through the medical evidence that it was actuallynot an accident, but it was due to homicidal violence, but theprosecution has miserably failed to prove the nexus of the accusedwith the crime and the trial court took an erroneous view. All theevidence did not support the prosecution case in any way and underthese circumstances, the appellants are entitled for acquittal in thehands of this court.5.The court heard the learned Additional Public Prosecutor on theabove contentions and has paid its anxious consideration on thesubmissions made.6.It is not in controversy that the dead body of Raja, thehusband of A-1, was found on the railway track and a case wasregistered by the railway police in Crime No.292 of 2003 underSection 174 Cr.P.C. Though P.W.1 identified the dead body that it washis brother, did not whisper anything about the suspicion that heentertained and that the case was also closed as an accident.Thereafter, according to the prosecution, suspicion was entertainedby the villagers and P.W.2, the Oorgounder called A-1 to A-3 andenquired them, but they pleaded no knowledge. Thereafter, on02.12.2003, again they were called by P.W.2 and in the presence ofP.Ws.1,5 and the villagers, A-1 to A-3 made extra judicial confessionand P.W.1 went to the railway police station and gave Ex.P.1, thereport. The case was referred to Palacode Police Station and a casecame to be registered in Crime No.661 of 2003 under Sections 302 and201 IPC against all the three accused. As rightly pointed out by thelearned counsel for the appellants, the prosecution had no directevidence to offer. The only circumstance, which according to theprosecution was strong, was the extra judicial confession alleged tohave been given by A-1 to A-3 to P.W.2 in the presence of P.Ws.1, 5and the villagers on 02.12.2003. P.W.2, the Oorgounder has turnedhostile. So far as P.W.1 was concerned, he was so categorical thatextra judicial confession was made only on 02.12.2003, but they https://hcservices.ecourts.gov.in/hcservices/ waited for a period of 5 days and he went to the police station on08.12.2003. What was the reason for such a delay remained unknown. Ifreally such an extra judicial confession was made on 02.12.2003, asclaimed by P.W.1, he would have rushed to the police stationimmediately, but not done so. Apart from that, even after the extrajudicial confession alleged to have been made by A-1 to A-3 as to theinvolvement of murder of the deceased, who is the brother of P.W.1,the witnesses did not claim that they produced A-1 to A-3 before thepolice, but it was the police who caused the arrest of them. Had itbeen so, there was no impediment for producing them before the policeon that day itself. 7.Apart from that, in the instant case, no other material wasplaced before the court. The identity of the dead body was not indispute. The medical opinion was canvassed to show that the death wasdue to homicidal violence. In a given case like this, the prosecutionmust prove clearly the nexus between the crime and the accused. Inthe instant case, though the prosecution was successful enough inbringing forth the fact that the death was due to homicidal violenceand the dead body was placed on the railway track, it has rested itscase entirely on the circumstantial evidence, namely the extrajudicial confession alleged to have been given by A-1 to A-3 to P.W.2in the presence of P.Ws.1,5 and the villagers. But, even the extrajudicial confession for the above reasons cannot be accepted as apiece of evidence to act so or to come to a conclusion. Hence thetrial court without appreciation of the circumstances in the properperspective, has taken an erroneous view. Except the extra judicialconfession, the prosecution had no evidence to offer. Hence it wouldbe highly unsafe to sustain conviction on such a weakest piece ofevidence. Therefore, the appellants are entitled for acquittal.8.Accordingly, the conviction and sentence imposed by the trialcourt on the appellants are set aside and the appellants areacquitted of the charges levelled against them. The bail bonds if anyexecuted by them shall stand terminated and the fine amounts if anypaid by them shall be refunded to them. Accordingly, this criminalappeal is allowed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvvkTo1. The Judicial Magistrate, Palacode2. -Do-Thro The Chief Judicial Magistrate, Dharmapuri3. The Additional Sessions Judge, Fast Track Court, Dharmapuri https://hcservices.ecourts.gov.in/hcservices/

4. -Do-Thro The Principal Sessions Judge, FTC, Dharmapuri5. The Inspector of Police, Palacode Police Station, Dharmapuri District.6. The Superintendent, Central Prison, Vellore7. The District Collector, Dharmapuri8. The Director General of Police, Mylapore, Chennai.9.The Public Prosecutor,High Court, Madras.1 cc To Mr.N.Manokaran, Advocate, SR.3702CRL.A.NO.584 OF 2007CK(CO)SRA(05/02/2009)