Vijayan @ Jayapandian v. State

State rep. by Inspector of Police,Chidambaram Town Police Station,Chidambaram,Cuddalore District.(Crime No.262 of 1999) .. Respondent/Complainant in all these appealsR.T.4/07:- Trial referred by the Additional District Sessions Judgeof the Court of Sessions of the Chidambaram Division at Chidambaram(Fast Track Court I) for confirmation of the sentence of deathpassed upon the said prisoner in sessions case No.323 of theCalender for 2005 on 29.6.2007.Prayer : Criminal Appeals filed under Section 374(2) of the Code ofCriminal Procedure against the judgment of conviction and sentencepassed by the learned Additional District and Sessions Judge, (FastTrack Court No.I), Chidambaram, dated29.06.2007 in S.C.No.323 of2005.Prisoner in RT 4/07 andFor Appellants/A-1, A-3: Mr.S.Ashok Kumar, SC & A-5 in Crl.A.Nos.657 for M/s.A.Sasidharan & 692/2007For Appellant/A-2 in: Mr.R.Sethuvarayar Crl.A.No.689/2007For Appellant/A-4 in: Mr.K.V.Sridharan Crl.A.No.626/2007For Respondentin all: Mr.C.T.Selvam these appeals Addl.Public ProsecutorJ U D G M E N TK.N.BASHA, J.A-1, Selvam, the appellant in Crl.A.No.657 of 2007, A-2,Ramesh, the appellant in Crl.A.No.689 of 2007, A-3 and A-5,Mariammal and Arul, the appellants in Crl.A.No.692 of 2007 and A-4,Vijayan @ Jayapandian, the appellant in Crl.A.No.626 of 2007 havepreferred these appeals challenging their conviction and sentencepassed by the learned Additional District and Sessions Judge, FastTrack Court No.I, Chidambaram, in S.C.No.323 of 2005 dated29.06.2007 as they have been tried, convicted and sentenced in thefollowing manner : https://hcservices.ecourts.gov.in/hcservices/ AccusedCharge u/s ConvictionSentenceA-1 toA-5120(B)I.P.C.GuiltyA-1 death sentence, A-2to A-5 – LifeImprisonment withRs.1000/-, i/d 1 yearR.I.A-1 toA-5147 I.P.C.A-1 to A-4guiltyA-1 to A-4 – 2 years R.I.A-1148 I.P.C.A-1 guiltyA-1 – 3 years R.I.A-1 toA-5341 r/w 149I.P.C.A-1 to A-4guilty A-5 notguiltyA-1 to A-4 – 3 monthsS.I. ;A-1 toA-5302 r/w 149A-1 to A-5guiltyA-1 death sentence ; A-2to A-5 – life sentencewith Rs.1000/- each, i/d1 year R.I.A-1 toA-5201 r/w 149A-1 to A-4guiltyA-1 – 5 years R.I. ; A-2to A-4 5 years R.I. withRs.1000/- each, i/d 3months R.I. There are originally 8 accused have been charge sheeted. One ofthe accused, viz., Kaliaperumal died before the commencement of thetrial and the two other accused, viz., Veeramani @ Veera and Guru @Gurunathan @ Sivagurunathan @ Mahesh were absconding.2. The occurrence in this case is shown to have taken place on02.06.1999 at 4.00 p.m. in pursuance of the conspiracy hatched byA-1 to A-5 to kill the deceased Paramanantham, a Head Constable, asA-1 and the absconding accused Veeramani @ Veera armed with deadlyweapon, viz., iron pipes and while the deceased, Paramanantham,came in his scooter bearing Registration No.TN F 5785 taking theabsconding accused Guru @ Gurunathan @ Sivagurunathan @ Mahesh inhis scooter, A-1 and A-2 intercepted the deceased and prevented himto proceed further and the absconding accused Veeramani @ Veerasaying that the deceased is not allowing them to sell the arrackand beat the deceased on his head with iron pipe and while thedeceased got down from the scooter and attempted to run away fromthe scene, A-2 and the absconding accused Guru @ Gurunathan @Sivagurunathan @ Mahesh caught hold of the deceased and again theabsconding accused Veeramani @ Veera beat the deceased with theiron pipe on the back side of his head twice and the blows fell onthe two hands of the deceased. A-1 beat the deceased on the backside of his head twice with the iron pipe and beat once on the leftshoulder and the deceased fell down unconscious. Thedeceased/accused, Kaliaperumal and A-3 instigated the other accusedto kill the deceased. After confirming that the deceased died A-1asked Guru @ Gurunathan @ Sivagurunathan @ Mahesh to bring the auto https://hcservices.ecourts.gov.in/hcservices/ of A-4 and the deceased/accused, Kaliaperumal and A-3 brought onegunny bag and A-1 also further strangulated the deceased with thecoconut coir and the deceased/accused, Kaliaperumal and A-3 put thebody of the deceased in the gunny bag and tied the same and A-1took the body of the deceased in his scooter and put the same intothe haystack in his garden and thereafter, A-1 and the abscondingaccused Guru @ Gurunathan @ Sivagurunathan @ Mahesh took the bodyand buried the same in a nearby ‘Kalam’ of the field by digging apit and they have also buried the gunny bag in the pit itself andthe accused also thrown away the iron pipes and coconut coir on thebackside of the Velikaruvanthope with a view to screen the offenceand further they have hidden the TVS 50, spade and iron pipes aftercleaning the same with the water in the hut of one Arumugam and thebloodstained clothes were hidden by the deceased/ accused,Kaliyaperumal, in the house of A-5.3. The prosecution, in order to bring home the charges againstthe accused examined as many as 39 witnesses, viz., P.Ws.1 to 39,filed Exs.P.1 to P.51 besides marking M.Os.1 to 25.4. The facts of the case, as projected by the prosecutionduring trial, are as follows :I. Motive : It is the case of the prosecution that the accused personswere involved in selling illicit arrack and the deceased,Paramanantham, who happened to be the Head Constable attached tothe Town Police Station, Chidambaram, has taken action against thesaid accused persons and therefore, the accused, being aggrieved,conspired to kill the deceased who is standing as an obstacle to dotheir illicit arrack business.II. Missing of the deceased : The deceased, Paramanantham, was residing with his familymembers at the police quarters at Parangipettai. P.W.1 is the wifeof the deceased, P.W.2 is the brother of P.W.1 and P.W.3 is thebrother of the deceased. The deceased left the house on 02.06.1999in the morning saying to his wife that he is going to attend hisduty and he would return back to his home in the night. It isstated by P.W.1 that on the same day i.e. on 02.06.1999 at 9.00p.m., one constable came and enquired her that whether the deceasedreturned back and for that, P.W.1 replied that the deceased notreturned back to the home. P.W.1 was expecting the deceased duringnight-time and as the deceased not returned even till 03.06.1999,she went to Chidambaram Police Station and enquired the Writer andthe Sub Inspector of Police about her husband's whereabouts. Theyinformed that the deceased has not come. Thereafter, she went toher daughter, Chithradevi's house at Cuddalore and the deceased wasnot found even there. Again, she went to the Chidambaram Town https://hcservices.ecourts.gov.in/hcservices/ Police Station in the evening and enquired the constable and theSub Inspector of Police and told them that she was frightened, asher husband was not found. III. First Information Report :P.W.1 gave a report, Ex.P.1 to P.W.36, Sub Inspector ofPolice, Chidambaram Police Station, and P.W.36 registered the FirstInformation Report in Crime No.262 of 1999 for man-missing on03.06.1999 at 6.00 p.m.IV. Continuous search of the deceased by P.W.1 :P.W.1 again searched for the deceased and also informed P.W.2,her brother about the same. She once again went to the ChidambaramPolice Station and she was informed by one constable that herhusband, the deceased, had gone to the railway track nearMeethikudi Railway Station. Again, she searched for the deceasedwith her brother P.W.2 and enquired the persons from the saidlocality. Two-three persons informed her that the deceased wastaken by one Guru @ Gurunathan @ Sivagurunathan @ Mahesh, theabsconding accused. They have also informed that Veeramani @Veera, another absconding accused and A-1, Selvam, and one Raviwere also chatting and proceeding with the deceased. They havealso told P.W.1 that they are frightened that they would be killed,if they further disclose anything. Thereafter, she went to thePolice Station and informed P.W.39, Inspector of Police, about theinformation received by her on 05.06.1999.V. First Alteration of the First Information Report:On the basis of the further statement recorded by P.W.39,Inspector of Police, from P.W.1, the offence was altered for theoffence under Section 147, 148, 342, 325 and 364 I.P.C. Ex.P.38 isthe altered First Information Report. He sent the altered FirstInformation Report to the Magistrate Court on 07.06.1999.VI. Investigation :P.W.39, the Inspector of Police, took up investigation on03.06.1999 from the Sub Inspector of Police in this case. Asalready stated, he recorded further statement of P.W.1 on05.06.1999 and altered the First Information Report for theoffence, as stated above. He went to the scene of occurrence andprepared the Observation Mahazar, Ex.P.6 and the Rough Sketch,Ex.P.39. He also recovered the scooter bearing Registration No.TNF5785, M.O.21, under Ex.P.40 near the scene of occurrence. He alsorecovered the bloodstains from the bumper removed from the Feat Carbearing Registration No.MTR 4971 under Ex.P.41. Feat Car is markedas M.O.22, which was recovered under the mahazar Ex.P.42. He https://hcservices.ecourts.gov.in/hcservices/ examined P.Ws.1, 2, 4 to 9 and others and recorded theirstatements. Arrest of A-2 : On 07.06.1999 at 4.00 p.m., on informationP.W.39 arrested A-2, Ramesh, and in pursuance of the admissibleportion of his confession under Ex.P.7, he recovered the Auto,M.O.7, in front of the house of A-5 under Ex.P.8. He examined somemore witnesses and recorded their statements. Thereafter, heremanded the accused for judicial custody. Arrest of the absconding accused Guru @ Gurunathan @Sivagurunathan @ Mahesh and discovery of the body of the deceased :On 08.06.1999, he arrested the absconding accused Guru @ Gurunathan@ Sivagurunathan @ Mahesh at Chidambaram Railway Station in thepresence of witnesses. In pursuance of the admissible portion ofhis confessions under Ex.P.44, the burial place of the body of thedeceased was discovered and he summoned the Tahsildar, P.W.31, asper the requisition, Ex.P.45 and also summoned the policephotographer. Thereafter, P.W.31, came to that place and the bodyof the deceased was exhumed from that place which was identified bythe absconding accused Guru @ Gurunathan @ Sivagurunathan @ Mahesh,P.W.1/wife of the deceased, P.W.2/brother of P.W.1 and P.W.3/brother of the deceased.VII. Second alteration of the First Information Report :In pursuance of the arrest of A-2 and the absconding accusedGuru @ Gurunathan @ Sivagurunathan @ Mahesh, P.W.39 altered theoffence to one under Sections 147, 148, 342, 302 and 204 I.P.C.Ex.P.43 is the altered First Information Report and he sent thesame to the Magistrate Court.VIII. Continuation of investigation by P.W.39 :From the burial place, P.W.39 prepared the ObservationMahazar, Ex.P.13 and the Rough Sketch, Ex.P.46. He also recoveredbloodstained earth, M.O.14, sample earth, M.O.15 and bloodstainedgunny bag, M.O.5 under Ex.P.14 from the burial place in thepresence of witnesses. Once again, he examined P.Ws.1, 2, 3 andothers and recorded their statements.Inquest : P.W.31, after exhuming the body of the deceased heldinquest on the dead body of the deceased and examined P.W.1 andrecorded her statement under Ex.P.2, Ex.P.3 statement from P.W.3and Ex.P.4 statement from P.W.3. Ex.P.26 is the inquest report.IX. Post-Mortem :On 08.06.1999, as per the request of the Tahsildar, P.W.31,the Doctor, P.W.29 and the Doctor, P.W.30, conducted post-mortem onthe dead body of the deceased. They found the following injuries : https://hcservices.ecourts.gov.in/hcservices/ External Injuries :(1)A lacerated wound on the middle of the occipitalregion 12 X 1 X 1 cm pale in colour. Oblique in nature.(2)A lacerated wound on the left parietal region 5 X 1 X1 cm pale.(3)Haemotomo on the left side of the occipital region 2X 1 X 1 cm.Internal Examination :All organs in position.Chest : Symmetrical. Ribs : intact. Lungs : weight 280gms. Congested with region of decomposition. Heart :Pale, Empty, weight 200 gm. All organs in decomposition.Liver : weight 800 gms. Pale. Spleen : weight 250 gms.Pale. Kidney : Each weight 250 gms, pale. Stomach :Distended with gas. Intestine : distended with gas.External genitalia : Intact.Skull bones, membranes : intact. Brain : Liquefied,Greyish in colour.Internal Injuries :(1)The upper 1/3 of left ulna fractured.(2)The middle of left radius is fractured.(3)The left shoulder is anteriorly dislocated.Ex.P.22 is the Post-Mortem Notes Paper and Ex.P.23 is the Post-Mortem Report. The Doctor is of the opinion that the deceased dieddue to head injury and shock. Ex.P.24 is the chemical examinationreport and Ex.P.25 is the report in respect of Hyoid bone receivedby the Doctors.X. Continuation of investigation by P.W.39 :P.W.39, the Inspector of Police, arrested thedeceased/accused, Kailaperumal, at 4.00 p.m. on 08.06.1999 nearChidambaram Bus stand and thereafter, remanded the accused tojudicial custody through the Court. He also recovered the clothesas produced by the Head Constable under Form 95. On 09.06.1999, hegave a request to the Judicial Magistrate No.I, Chidambaram, torecord the statement from the absconding accused, Guru @ Gurunathan@ Sivagurunathan @ Mahesh under Section 164 of Cr.P.C. as heexpressed his desire to give such statement. XI. Recording the judicial confession of the absconding accusedGuru @ Gurunathan @ Sivagurunathan @ Mahesh by P.W.38, the JudicialMagistrate : P.W.38, the Judicial Magistrate No.I, Chidambaram, receivedthe request made by the Investigating Officer dated 09.06.1999under Ex.P.33, to record the statement of the absconding accusedGuru @ Gurunathan @ Sivagurunathan @ Mahesh under Section 164 of https://hcservices.ecourts.gov.in/hcservices/ Cr.P.C. and by following the procedure contemplated by givingsufficient time, summoned the said absconding accused Guru @Gurunathan @ Sivagurunathan @ Mahesh and recorded the statementunder Section 164 of Cr.P.C. Ex.P.34 is the request made by thelearned Judicial Magistrate to produce the said accused before theCourt. Ex.P.35 is the confession statement recorded from theaccused Guru @ Gurunathan @ Sivagurunathan @ Mahesh.Recording the statement under Section 164 of Cr.P.C. from theeye-witnesses : The Judicial Magistrate, P.W.38, received therequest from the investigating officer to examine the eye-witnesses, P.Ws.17, 18, 19 and 33 but only P.Ws.17 and 33 wereproduced before the Court for recording the statements underSection 164 of Cr.P.C. and accordingly, P.W.38, recorded thestatement under Section 164 of Cr.P.C. from the eye-witnesses,P.Ws.17, and 33 on 20.07.1999 under Exs.P.5 and 37.XII. Continuation of investigation by P.W.39 :On 11.06.1999 at 6.00 a.m, P.W.39, arrested the abscondingaccused Veeramani @ Veera near Thirupapuliyur Railway Station intheir presence of witnesses. In pursuance of the admissibleportion of his confession, P.W.39, recovered spade, M.O.12, TVS 50bearing registration No.TN 31 6072, M.O.13 under Ex.P.12. On thesame day, i.e., on 11.06.1999 at 10.00 a.m., he arrested A-1 at theresidence of A-5 at Pondicherry. In pursuance of the admissible ofhis confession under Ex.P.9, he recovered bloodstained iron pipeand coconut coir/M.O.23 under Ex.P.11. He arrested A-5 also on thesame day and recovered the shirt, lungi of the absconding accusedVeeramani @ Veera as well as A-1 on the basis of the confession ofA-5. Thereafter, he remanded all the accused for judicial custody.He sent the requisition under Ex.P.47 for sending the materialobjects for chemical examination. He also received the chemicalexamination report, Ex.P.49, Serologist Report, Ex.P.50 and he hasmade arrangements to get the superimposition of the deceased bysending the skull. He examined some more witnesses and alsoreceived the photographs and negatives, M.Os.16 to 20 and M.O.25series. After completing the investigation, he filed the chargesheet against the accused on 25.09.1999 for the offence underSections 147, 148, 341, 302, 201, 212 and 120(b) r/w 149 I.P.C.5. When the accused were questioned under Section 313 ofCr.P.C., in respect of the incriminating circumstances andmaterials appearing against them, all the accused denied each andevery circumstance put to them as false and contrary to the factsand they have stated that they have been falsely implicated in thecase. They have not chosen to examine any witnesses and to markany documents on their side.6. Mr.S.Ashok Kumar, learned senior counsel appearing for A-1, https://hcservices.ecourts.gov.in/hcservices/ A-3 and A-5 contended that the prosecution has miserably failed toprove its case against the accused beyond reasonable doubt. It issubmitted by the learned senior counsel that the eye-witnesses,P.Ws.17, 18, 19 and 33 turned hostile and they have not supportedthe prosecution case. It is submitted that therefore, theprosecution is left with no other material to implicate the accusedin this case. It is submitted by the learned senior counsel thatthe only piece of evidence placed reliance by the prosecution isthe alleged judicial confession recorded from the abscondingaccused Guru @ Gurunathan @ Sivagurunathan @ Mahesh under Ex.P.35by the learned Judicial Magistrate, P.W.38. It is contended by thelearned senior counsel that such piece of evidence could not beplaced reliance by the prosecution, as the said absconding accusedwas not tried along with the present accused persons in this case.The prosecution also cannot place reliance on the allegedstatements recorded under Section 164 of Cr.P.C. from the eye-witness, viz., P.Ws.17 and 33, by the learned Judicial Magistrate,P.W.38, as both P.Ws.17 and 33 turned hostile and and theprosecution has not elicited any question in respect of theirSection 164 statement, but the defence, as far as P.W.17 isconcerned elicited an answer from P.W.17 to the effect that he hasgiven a statement to the Magistrate only at the instance of thepolice. Therefore, it is submitted by the learned senior counselthat there is absolutely no legal evidence adduced by theprosecution to implicate the accused in this case.7. Mr.R.Sethuvaryar, learned counsel for A-2 andMr.K.V.Sridharan, learned counsel for A-4 re-iterated the argumentsas advanced by the learned senior counsel for A-1, A-3 and A-5.Mr.K.V.Sridharan, learned counsel for the appellant/A-4, furthercontended that the learned trial Judge has committed a seriouserror of law in placing reliance on the alleged judicialconfession, Ex.P.35 recorded from the absconding accused Guru @Gurunathan @ Sivagurunathan @ Mahesh which cannot be used againstthe present accused persons in this case and it is furthersubmitted by the learned counsel that the learned trial Judge hasequally committed an error of law in placing reliance on thestatements recorded from the eye-witnesses, P.Ws.17 and 33 underExs.P.5 and 37 respectively by the learned Magistrate as both thesaid statements Exs.P.5 and 37 not put to P.W.17 and 33 by theprosecution.8. We have heard Mr.C.T.Selvam, learned Additional PublicProsecutor, on the submissions made by the learned senior counselfor the appellants and other learned counsel for the appellants.9. We have carefully considered the rival contentions putforward by either side and also thoroughly scrutinized the entireevidence available on record.10.1. The prosecution mainly placed reliance on the evidence https://hcservices.ecourts.gov.in/hcservices/ of P.Ws.1 to 11. P.W.1 is the wife of the deceased. P.W.2 is thebrother-in-law of the deceased and brother of P.W.1. P.W.3 is thebrother of the deceased and they have examined to speak about themissing of the deceased and searching for the deceased and theyhave informed by some persons that the deceased was last scene withthe absconding accused Guru @ Gurunathan @ Sivagurunathan @ Maheshand one Veeramani @ Veera and A-1 were proceeding and talking withthe deceased and the said absconding accused Guru @ Gurunathan @Sivagurunathan @ Mahesh. P.W.2 further added in his evidence thatthe absconding accused Guru @ Gurunathan @ Sivagurunathan @ Maheshwas selling arrack and the deceased taken him in his scooter and atthat time, absconding accused Veeramani @ Veera and A-1 interceptedthe deceased and asked the deceased to leave the absconding accusedGuru @ Gurunathan @ Sivagurunathan @ Mahesh and thereafter, thesaid accused Veeramani @ Veera beat the deceased and dragged him.P.W.3, brother of the deceased, has spoken only about identifyingthe body of the deceased. 10.2. The prosecution examined P.Ws.4, 5 and 7 to 10 to speakabout the absconding accused Guru @ Gurunathan @ Sivagurunathan @Mahesh and another absconding accused Veeramani @ Veera and A-1were involved in selling illicit arrack. P.W.4 stated that he hasseen the deceased along with the absconding accused Guru @Gurunathan @ Sivagurunathan @ Mahesh and the said abscondingaccused informing the deceased that he was selling arrack for A-1,A-5 and the absconding accused Veeramani @ Veera and thereafter,the deceased taken the said absconding accused in his scooter tothe house of A-1 and the absconding accused Veeramani @ Veera.P.W.4 is the only witness corroborated the versions of P.Ws.1 and 2to the effect that some of the persons informed them that they haveseen the deceased has taken the absconding accused Guru @Gurunathan @ Sivagurunathan @ Mahesh in his scooter and A-1 and theanother absconding accused Veeramani @ Veera also seen with thedeceased. But P.W.4 has turned hostile and not supported theprosecution case. 10.3. P.Ws.5, 7 to 10, who have examined by the prosecution tospeak about the absconding accused Veeramani @ Veera, A-1 and A-5were involved in selling illicit arrack, also turned hostile andnot supported the prosecution case. 10.4. P.W.11, who has been examined by the prosecution tospeak about the conspiracy by the accused, viz., A-1, A-5 and theabsconding accused Veeramani @ Veera to kill the police officialsif they interfere with their business of selling illicit arrack asthey were standing as obstacles for their business. But even thiswitness turned hostile. 10.5. The prosecution also examined P.Ws.17, 18, 19 and 33 aseye-witnesses to speak about the occurrence proper. But the factremains even these eye-witnesses turned hostile and they have not https://hcservices.ecourts.gov.in/hcservices/ supported the prosecution case.11. It is well settled that the evidence of a hostile witnesscannot be rejected in toto and any portion either in favour of theprosecution or in favour of the defence can be placed reliance.But in this case, all the above said hostile witnesses havecompletely turned hostile and there is absolutely no portion intheir evidence available either in favour of the prosecution or infavour of the accused.12. Therefore, now, the prosecution left with the only piece,viz., alleged judicial confession, Ex.P.35, of the abscondingaccused Guru @ Gurunathan @ Sivagurunathan @ Mahesh recorded byP.W.38, the Judicial Magistrate No.I, Chidambaram. It is to beborne in mind that the said absconding accused was not jointlytried along with the accused persons in this case as he wasabsconding continuously. P.W.38, the Judicial Magistrate alsoexamined P.Ws.17 and 33, eye-witnesses under Section 164 of Cr.P.C.and their statements were marked as Exs.P.5 and 37 respectively.The learned trial Judge mainly placed reliance on the judicialconfession, Ex.P.35 of the absconding accused Guru @ Gurunathan @Sivagurunathan @ Mahesh and the 164 statement of P.Ws.17 and 33which were marked as Exs.P.5 and 37. 13. The main question arises for our consideration is whetherthe above said pieces of evidence adduced by the prosecutionamounts to a legal evidence and whether the same could be placedreliance for convicting the accused.14. Before proceeding to consider the above said main questioninvolved in this matter, let us analyse the other materialsavailable on record.15. It is the case of the prosecution that the accusedconspired to kill the deceased, a Head Constable, as the policeofficials were interfering with their business of selling illicitarrack. The witnesses, viz., P.Ws.4, 5 and 7 to 10, who haveexamined to speak about the involvement of the accused in illicitarrack sale, have turned hostile. The investigating agency alsonot produced any materials viz., any case records to show theinvolvement of the any of the accused in the sale of illicitarrack. Therefore, we have no hesitation to hold that theprosecution has miserably failed even to prove the motive in thiscase.16. As already stated, apart from recording the statementsunder Section 164 of Cr.P.C of the absconding accused Guru @Gurunathan @ Sivagurunathan @ Mahesh under Ex.P.35, the learnedJudicial Magistrate, P.W.38, has also recorded the statement underSection 164 of Cr.P.C. from the eye-witnesses, P.Ws.17 and 33. It https://hcservices.ecourts.gov.in/hcservices/ is relevant to refer the legal position in respect of theevidentiary value of the witness from whom the statement underSection 164 of Cr.P.C. was obtained. The Hon’ble Supreme Court inBalak Ram V. State of U.P. (1974 SCC (Cri.) 837 has held as follows:“It would be wrong to find fault with the InvestigatingOfficer merely because he got the statements ofwitnesses recorded under Section 164. Nor can theevidence of a witness be discarded for the mere reasonthat his statement was recorded under Section 164. Butthe evidence of witnesses whose statements are recordedunder Section 164 must be approached with caution. Suchwitnesses feel tied to their previous statements givenon oath and have but a theoretical freedom to departfrom the earlier version. A prosecution for perjurycould be the price of that freedom. It is, of course,open to the Court to accept the evidence of a witnesswhose statement was recorded under Section 164, but thesalient rule of caution must always be borne in mind."Therefore, we have to consider and analyse the evidence of sucheye-witnesses with great care and caution. Out of four eye-witnesses, viz., P.Ws.17, 18, 19 and 33, the statements underSection 164 of Cr.P.C. were recorded only from P.Ws.17 and 33. Thefact remains that all the said eye-witnesses have completely turnedhostile and they have given a total go-by to their earlier version.The learned trial Judge, in spite of the same, placed reliance onthe 164 statements of P.Ws.17 and 33, viz., Exs.P.5 and 37. 17. As far as P.W.17 is concerned, the prosecution has notchosen to elicit any question in respect of his earlier statementrecorded under Section 164 of Cr.P.C., during the course of itscross-examination after P.W.17 has treated hostile and merely the164 statement of P.W.17, viz., Ex.P.5 was marked and during thecourse of the cross-examination by the defence, P.W.17 stated thathe has given the said 164 statement recorded by the Magistrate onlyas per the instructions of the police. AS far as P.W.33 isconcerned, the prosecution has not chosen to put any question atall in respect of his earlier statement given to the Magistraterecorded under Section 164 of Cr.P.C. under Ex.P.37. It isneedless to say that the statement under Section 162 of Cr.P.C. aswell as under Section 164 of Cr.P.C. can be used either tocorroborate or to contradict in respect of their earlier version.Therefore, we have no hesitation to hold that the learned trialJudge has wrongly placed reliance on such statements for convictingthe accused resulting in grave miscarriage of justice.18. Now let us consider the evidentiary value of theconfession of the co-accused, viz., the absconding accused Guru @Gurunathan @ Sivagurunathan @ Mahesh recorded by the Judicial https://hcservices.ecourts.gov.in/hcservices/ Magistrate No.I, Chidambaram, P.W.38 under Ex.P.35.19. It is relevant to refer the very provision of the IndianEvidence Act in respect of the confession of the co-accused.Section 30 of the Indian Evidence Act reads hereunder :“30. Consideration of proved confession affectingperson making it and others jointly under trial forsame offence : When more persons than one are beingtried jointly for the same offence, and a confessionmade by one of such person affecting himself and someother of such persons is proved, the Court may takeinto consideration such confession as against suchother person as well as against the person who makessuch confession.”The reading of the above said provision makes it crystal clear thatthe confession of the co-accused may be considered against theother accused only if such co-accused has been tried jointly forthe same offence.20. The Hon’ble Supreme Court in Suresh Budharmal Kalani V.State of Maharashtra (AIR 1998 SC 3258) has categorically held asfollows :“Under Section 30 of the Evidence Act a confession ofan accused is relevant and admissible against a co-accused if both are jointly facing trial for the sameoffence. Since, admittedly, Dr.Bansal has beendischarged from the case and would not be facing trialwith Kalani his confession cannot be used againstKalani. The impugned order shows that the DesignatedCourt was fully aware of the above legal position but,surprisingly enough, it still decided to rely upon theconfession on the specious ground that the prosecutionwas not in any way precluded from examining Dr.Bansalas a witness in the trial for establishing the factsdisclosed in his confession. This again, was aperverse approach of the Designated Court while dealingwith the question of framing charges. At that stagethe Court is required to confine its attention to onlythose materials collected during investigation whichcan be legally translated into evidence an not uponfurther evidence (dehors those materials) that theprosecution may, adduce in the trial, which wouldcommence only after the charges are framed and theaccused denies the charges. The Designated Court was,therefore, not at all justified in taking intoconsideration the confessional statement of Dr.Bansalfor framing charges against Kalani.”In view of the above said settled principle of law laid down by the https://hcservices.ecourts.gov.in/hcservices/ Hon’ble Apex Court in the decision cited supra, as in this casealso the prosecution entirely left with the single piece ofevidence, viz., the confession of the absconding accused viz., Guru@ Gurunathan @ Sivagurunathan @ Mahesh under Ex.P.35 and suchconfession of the said absconding accused cannot be placed relianceagainst the present accused persons in this case as the saidabsconding accused Guru @ Gurunathan @ Sivagurunathan @ Mahesh wasnot jointly tried along with the accused persons in this case, weare of the considered view that the learned trial Judge hascommitted a serious error of law resulting in miscarriage ofjustice.21. Therefore, for the reasons stated above, our inevitableconclusion is to the effect that the impugned judgment passed bythe learned trial Judge is unsustainable and accordingly, thereference is answered in favour of the accused and the deathsentence imposed on A-1 by the learned trial Judge is set aside andall these appeals are allowed and the conviction and sentenceimposed on the appellants by the learned Additional Sessions Judge,Chidambaram, in S.C.No.323 of 2005 dated 29.06.2007 are set asideand the appellants are set at liberty forthwith, if their presenceis not required in connection with any other case. Fine amountpaid, if any, is directed to be refunded to the appellants.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ggTo1. The Additional District and Sessions Judge, (Fast Track Court No.I), Chidambaram, Cuddalore District.(in duplicate for communication to the prisoner)2. - do – thro' The Principal Sessions Judge, Cuddalore.3. The Judicial Magistrate No.I, Chidambaram.4. The Judicial Magistrate No.II, Chidambaram. https://hcservices.ecourts.gov.in/hcservices/

5. 3 & 4 – do – thro' The Chief Judicial Magistrate, Cuddalore.6. The Superintendent, Central Prison, Cuddalore.7. The Superintendent, Central Prison, Vellore.8. The Inspector of Police, C-5, Police Station, Chennai.9. The Inspector of Police, Chidambaram Nagar Police Station, Chidambaram.10. The Director General of Police, Chennai.11. The District Collector, Cuddalore District. 12. The Public Prosecutor, Madras High Court, Madras.13. The Superintendent of PoliceChidambaram Town Police Station,Chidambaram.1 cc to mr.K.V. Sridharan, SR. 667611 cc to Mr.A. Sasidharan, SR. 667201 c to Mr.R. Sethuvarayar, SR. 66495Referred Trial No.4 of 2007Crl.Appeal Nos.626 of 2007,657, 689 and 692 of 2007KM (CO)kk 22/11