IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16-6-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.Nos.170, 182, 218, 241, 271, 311 and 322 of 2007 A.V.Raju .. Appellant/A-9 in CA 170/2007 Ravi @ Ravikumar .. Appellant/A-10 in CA 182/2007 1.Krishnamurthy 2.Mathesh .. Appellants/A-7 & A-11 in CA 218/2007 Govindan @ Govindaraj .. Appellant/A-2 in CA 241/2007 Chakarai @ Chakaravarthi .. Appellant/A-1 in CA 271/2007 Dinakaran @ Dina .. Appellant/A-8 in CA 311/2007 1.Karthik @ Elumban 2.Prakasam 3.A.Asaithambi 4.Kumaresan .. Appellants/A-3, A-4, A-5 and A-6 in CA 322/2007 vs State by: Inspector of Police Azhagapuram Police Station (Cr.No.1332/2005) .. Respondent in
all appeals
Criminal appeals preferred under Sec.374 of the Code of Criminal Procedure against the judgment of the Additional Sessions Judge (Fast Track 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 & 322/2007
Mr.Chandramouli
in CA 182/2007
For Respondent : Mr.N.R.Elango
Additional Public
Prosecutor
COMMON JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)
These appeals seven in number namely CA 271/2007 by A-1, CA 241/2007 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 Sessions Division (Fast Track Court No.II), Salem, made in S.C.No.5 of 2006.
2.All these appellants/accused stood charged, tried and found guilty as follows:
ACCUSED
CHARGES
FINDING
PUNISHMENT
A-1 to A-11
120(B) IPC
Guilty
Life imprisonment with a fine of Rs.2000/- and default sentence
A-1 to A-8
148 IPC
Guilty
2 years Rigorous Imprisonment
A-1 to A-8
364 IPC
Guilty
Life imprisonment with a fine of Rs.1000/- and default sentence
A-9 to A-11
364 r/w 120(B) IPC
Guilty
Life imprisonment with a fine of Rs.1000/- and default sentence
A-1 to A-8
302 r/w 149 IPC
Guilty under Sec.302 IPC
Life imprisonment with a fine of Rs.2000/- and default sentence
A-9 to A-11
302 r/w 120(B) IPC
Guilty under Sec.302 r/w 109 IPC
Life imprisonment with a fine of Rs.2000/- and default sentence
A-1 to A-8
201 IPC
Guilty
5 years RI with a fine of Rs.1000/- and default sentence
A-9 to A-11
201 r/w 120(B) IPC
Guilty
5 years RI with a fine of Rs.1000/- and default sentence
A-1 to A-4
404 IPC
Guilty
2 years RI with a fine of Rs.1000/- and default sentence
3.The short facts necessary for the disposal of these appeals can be stated thus:
(a) The deceased Ramamurthy was working as a Collection Agent in New Centurion Bank at Salem. A-1 and A-2 were relatives, and the other accused were their associates. A-1 and A-2 availed vehicle loans from the said bank; but, they defaulted in making payment of the instalments. As Collection Agent, the deceased was authorized to repossess the vehicles. Accordingly, he repossessed the two wheeler of 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 the deceased was not amenable. On 20.1.2005, A-1 to A-8 along with A-10 went to the house of the deceased and warned P.W.2 the mother of the deceased, that her son should be careful thereafter. She informed the same to the deceased. 1 = months prior to the date of occurrence, the deceased seized the vehicle of A-2. A-2 questioned the deceased about the same. The deceased replied that he could do whatever he likes; but, he would not return the vehicle if not settled in full. Thus they were inimically disposed towards the deceased.
(b) 10 days prior to the occurrence, A-1 to A-8, A-10 and A-11 hatched up a conspiracy in Shivaya Nagar Auto Stand. A-10 was asked to follow the deceased. A-2 agreed for payment of Rs.2000/- and A-11 for Rs.1000/- towards the expenditure. A-10 gave a Maruthi van bearing Registration No.TN 58 A 6565 for murdering the deceased. On 14.5.2005 at about 7.00 A.M., A-1 contacted the deceased over phone and informed him that he wanted to collect a sum of Rs.20 lakhs from a person at Karur and requested the deceased to arrange persons for collecting the same. He also informed him that he will arrange after two days.
(c) On 14.5.2005 at about 8.30 P.M., the deceased left the house from Salem in his motorcycle bearing Registration No.TN 27 K 9113 to attend IAS examination to be held at Madras. Again at about 9.15 P.M., A-1 contacted the deceased to come near STD booth at Brindavan Road. At about 9.30 P.M., the deceased came there along with P.W.8, and immediately the accused abducted the deceased from there. Since P.W.8 tried to rescue the deceased, he was threatened by the accused. The accused drove the van towards Mittapudur, and A-4 gagged the mouth of the deceased with a kerchief. A-3 took a knife and stabbed him. He fainted, and then they took him to Chettichavadi. A-1 and A-2 cut the throat of the deceased. A-4 stabbed him on the left flank. A-5 to A-8 stabbed the deceased on the stomach. Then they took the deceased near Shivaya Road, and at about 1.30 A.M., they threw the dead body on the road and left the place. A-3 and A-4 took the watch and finger ring of the deceased. A-1 took the cell phone of the deceased.
(d) P.W.1 who is the father of the deceased, tried to contact the deceased through cell phone; but, he could not get any reply. On 15.5.2005 at 3.00 A.M., P.W.1 went in search of the deceased. At about 3.30 A.M., P.W.18, the Village Administrative Officer (VAO) of Reddiyur Village, received an information that an unidentified male dead body was found near Shivaya Nagar. Then he went to the scene of occurrence. At the scene of occurrence he enquired about the identity of the dead body. P.W.1 who was present there, informed that the deceased was the his son. Immediately P.W.18 went to Azhagapuram Police Station and lodged a written report, Ex.P6, to P.W.22, the Sub Inspector of Police who was on duty. On the strength of the report, P.W.22 registered a case in Crime No.1332 of 2005 under Sec.302 IPC. The printed FIR, Ex.P33, was despatched to the Court. 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 the FIR. Then, he took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar and also a rough sketch, marked as Exs.P7 and P34 respectively. Thereafter, from 6.00 A.M. to 9.00 A.M., he conducted inquest on the dead body in the presence of witnesses and pachayatdars and prepared Ex.P35, the inquest report. He seized the bloodstained earth, M.O.5 and sample earth, M.O.6, under a cover of mahazar. Then the dead body was sent to the Government Hospital for the purpose of autopsy along with a requisition, Ex.P31.
(f) P.W.21, the Doctor, attached to Kumaramangalam Government Hospital, Salem, on receipt of the said requisition, conducted autopsy on the dead body of Ramamurthy and has issued a postmortem certificate, Ex.P32, with his opinion that the deceased would have died due to shock and haemorrhage due to multiple injuries.
(g) On 17.5.2005, P.W.23 enquired P.Ws.9, 11 and 16 and recorded their statements. On 18.5.2005 at 7.00 P.M., A-1 appeared before P.W.12, the Tahsildar, Salem, and gave an extra-judicial confession which 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 with A-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 the same, P.W.23 seized M.O.7, bloodstained maruthi van sticker, M.O.8 shirt and M.O.9 pant under a mahazar, Ex.P10. He also seized M.O.10 Omni 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 and recorded his confessional statement. The admissible part is Ex.P13. Based on the confession, he produced M.O.14, motorbike, bearing Registration No.TN 27 A 9113, M.O.15, knife, M.O.16, pant, and M.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, he enquired P.Ws.10 and 19 and recorded their statements. On 21.5.2005, he arrested A-10 and A-11 and recorded their confessional statements in the presence of witnesses. On the same day, he also arrested A-7 and recorded his confessional statement. The admissible part is Ex.P27. Pursuant to the same, he also produced M.O.28, bloodstained knife, M.O.26 bloodstained shirt and M.O.27, pant, under a mahazar Ex.P28. On 27.5.2005, P.W.23 enquired P.W.7 and recorded his statement. 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 Judicial Magistrate No.V, Salem. When it came to the knowledge of the police, the Investigator filed a memo, got custody and recorded their confessional statements. The admissible part of the confessional statement of A-4 is Ex.P17. As per the statement, he produced a suri knife, which was recovered under a cover of mahazar, Ex.P18. Then he recorded the confessional statement of A-5, the admissible part of which is Ex.P19. He also produced M.O.21 pen knife, which was recovered under a mahazar. He recorded the confessional statement of A-6, the admissible part of which is Ex.P21. Based on the same, he produced M.O.22, pen knife, which was recovered under a cover of mahazar. On 7.7.2006, P.W.23 recorded the confessional statement of A-8 in the presence of witnesses. The admissible part is Ex.P25. Pursuant to the confession, he produced a knife, which was recovered under a mahazar.
(j) On 11.8.2005 at 5.30 A.M., P.W.23 arrested A-3 near Azhagapuram Venkatachalapathy Temple and recorded his confessional statement. The admissible part is Ex.P29. He also seized a knife under a cover of mahazar. On 15.8.2005, he examined other witnesses and recorded their statements. All the material objects were sent for analysis. Ex.P37 is the serological report. On completion of investigation, the Investigating Officer filed the final report.
4.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 23 witnesses and also relied on 37 exhibits and 29 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which they flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt in respect of the charges levelled against them and hence found them guilty and awarded punishment which is the subject matter of challenge before this Court.
5.Advancing arguments on behalf of A-1, A-3, A-5 and A-6, the learned Counsel would submit that the prosecution rested its entire case on the theory of conspiracy hatched up by A-1 along with others to do away with the deceased, a collection agent, who actually seized the vehicle from him and also because of the grudge over him; that the prosecution examined only one witness in order to speak about the theory of conspiracy namely P.W.11, before the trial Court, but he turned hostile; that except his evidence, the prosecution had no evidence to offer and hence the prosecution miserably failed to prove the conspiracy theory by any evidence known to law; but, the trial Court has erroneously taken the conspiracy theory as proved, and thus the prosecution failed in its attempt.
6.The learned Counsel would further add that in the instant case, the prosecution as far as A-1 was concerned, rested its case on the extra-judicial confession alleged to have been given by him to P.W.12, Tahsildar, on 18.5.2005; that the lower Court should have rejected this piece of evidence for the simple reason that P.W.12 was a Tahsildar; that it is not the case of the prosecution that the accused was already known to him or he has got any connection to him; that further he is a stranger; that the extra-judicial confession was alleged to have been given after four days; that there was no reason why A-1 should come forward after an interval to divulge the secrecy of such a heinous crime to the Tahsildar; that apart from that, the confessional statement is also hit under the provisions of law; that the Tahsildar, P.W.12, was not competent to record such a confessional statement under Sec.164 of Cr.P.C.; that apart from this, he cannot also exercise any one of the provisions to his help to record such a statement under the Evidence Act which is applicable to the Police Officer; that the Tahsildar has further added that he has got enormous powers under Sec.26 of the Evidence Act; that if to be so, the statement should have been recorded under Sec.26 of the Evidence Act, to which he has no evidence at all; that apart from this, that statement was actually recorded under Sec.26 of the Evidence 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 of evidence since it has no evidentiary value at all; and that under the circumstances, this part of the evidence should have been rejected by the 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 confessional statement alleged to have been given by A-1 to the Investigating Officer, pursuant to which the material objects have been recovered; that as could be seen, what was available was that of the statement given by the father of the deceased; and that even there is no whisper in the earliest document about any antecedent or the accused came over or the mother warned the son or he had got any suspicion 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 report was 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 for the alleged arrest, confession and recovery of the material objects from A-1; that he has categorically stated that he did not enter into the 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; and that in such circumstances, it is not certain whether those articles were seized properly.
9.The learned Counsel would further submit that the chemical analysis report was not filed; that when the document namely serological report, is looked into along with the requisitions sent, the serial numbers actually differ; that though it was found in the trial Court’s judgment that the blood group was found in those material objects recovered from A-1, and when compared with the blood group found in the clothes of the deceased, they were found to be tallying, this cannot in any way help or advance the prosecution case for the simple reason that the chemical analysis report is not filed, and serial number what is found in the requisition and the serological report do not tally, and hence it could not be taken as supportive evidence; that under the circumstances, it should have been rejected; that except this part of the evidence, the prosecution had no evidence to offer; that as far as A-1 is concerned, the prosecution had not only lack of evidence, but also no evidence at all; that as regards A-3, A-5 and A-6, there is no specific evidence worth 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 Counsel would urge that the entire case as against A-2 rested on the recovery of certain material objects from him; that according to the prosecution, he was arrested on 18.5.2005 at about 8.00 A.M., and P.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 pursuant to the confessional statement given by him; that it is pertinent to point out that as far as the place of arrest and recovery is concerned, it cast a doubt whether it could have taken place as put forth by the prosecution for the simple reason that P.W.18 would state that he was arrested and the recovery has been made from inside the house of A-2; but on the contrary, the recovery of the said material objects was made from a plantain thope according to P.W.23; and that this would make it clear that such arrest and recovery following the confession, could not have been made at all.
11.Added further the learned Counsel that when these material objects were marked through the witness and both P.W.18 and P.W.23 have spoken in length in their evidence, corresponding questions should have been asked to the accused under Sec.313 of Cr.P.C. since they were prejudicial to the interest of the accused; but a perusal of Sec.313 Cr.P.C. questioning of A-2 would clearly indicate that it has not been asked to him, and thus it was a denial of opportunity available to the accused in that regard; that the same would also affect that piece of evidence as to the recovery of those material objects; that under the circumstances, the prosecution cannot have or place its hands on that piece of evidence; that as far as A-2 is concerned, no case is made out and hence he is entitled for acquittal.
12.The learned Senior Counsel Mr.V.Gopinath appearing for A-7 would submit that in the instant case, what was available was only the extra-judicial confession alleged to have been given by A-1 to P.W.12 which cannot be acted upon as against A-7. Relying on the decision of the Apex Court reported in 1987 L.W. (CRL.) 274 (PARAM HANS YADAV & SADANAND TRIPATHI V. STATE OF BIHAR AND OTHERS), the learned Senior Counsel would submit that the extra-judicial confession made by an accused pointing to the other accused, cannot be a substantive piece of evidence; that the Court in order to find out whether it lends assurance, should also look into whether other pieces of evidence are available; that in the instant case, the other piece of evidence available, according to the prosecution, is the recovery of M.Os.26, 27 and 28, pant, shirt and knife respectively; that they were all recovered according to the prosecution; that as far as these three items are concerned, the place of recovery would differ; that apart from that, though they were sent for chemical analysis, the chemical report was not filed; that only the serological report was filed; that as far as Sec.313 Cr.P.C. questioning was concerned, those questions pertaining to the containing of blood group or tallying of the same with that of the deceased were not asked at all; that it was a denial of opportunity available to the accused; that under the circumstances, that evidence loses its value; that as far as the confession is concerned, the same cannot be acted upon; that under the circumstances, no other supportive piece of evidence is available; that the extra-judicial confession by one accused against the other accused cannot be a substantive piece of evidence; that in the instant case, no further supportive evidence is available; that under the circumstances, it should have been rejected by the trial Court, but not done so, and hence he is entitled for acquittal.
13.As far as the other accused were concerned, the learned Counsel adopted the arguments advanced by the Counsel and recorded above. Amicus Curiaes appointed by this Court are relieved.
14.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
15.It is not in controversy that one Ramamurthy, the son of P.W.1, was employed as a Collection Agent in the New Centurion Bank whose 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. On the strength of that report, a case came to be registered directly under Sec.302 IPC, and the investigation was taken up by P.W.23, the Inspector of Police. Following the inquest report, the dead body was subjected to autopsy by P.W.21, the Doctor, attached to Kumaramangalam Government Hospital who has given his categorical opinion that the deceased would have died out of shock and haemorrhage due to multiple injuries sustained. Thus, it would be quite clear that it was a homicidal death. This fact that he met a homicidal death was never challenged by the appellants before the trial Court, and hence no impediment is felt by this Court in recording so.
16.As could be seen from the charges levelled against the appellants, the first prime charge on which the entire case of the prosecution was rested, was that of the conspiracy alleged to have been hatched up by A-1 due to the grudge as to the repossession of his vehicle by the deceased, along with the other accused 10 days prior to the occurrence. The prosecution, in order to prove the conspiracy theory, marched P.W.2 to speak about the fact that 30 days prior to the occurrence, A-1 came along with others and informed P.W.2 as to the conduct of her son, the deceased, and told her that he should be very careful thereafter, and at that time she came to know that he was Sarkarai by name, and he was A-1. As far as this part of the evidence is concerned, the prosecution could not have the benefit of the same for the simple reason that when Ex.P6, the report, was given by the VAO even after the verification and identity of the body of the deceased from P.W.1, there is no whisper about either A-1 or the incident that has taken place earlier. At this juncture, the earliest document that was recorded from P.W.2 the mother, or Ex.P6 did not reveal this fact, and thus it would be quite clear that it cannot but be a development made subsequently. In order to speak about the conspiracy that was alleged to have been hatched 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 the time of trial has turned hostile. Thus the prosecution could not have the benefit of his evidence. Except these two pieces of evidence, the prosecution had no evidence to offer. These two pieces of evidence for the reason recorded above, could not be accepted by the Court. Under the circumstances, as rightly commented by the learned Counsel for the appellants, the prosecution miserably failed to prove the conspiracy theory.
17.As far as the other part of the case of the prosecution is concerned, a thorough analysis and marshaling of the evidence would clearly reveal that the prosecution focused its entire case on the following circumstances. (i) The occurrence has taken place on 14.5.2005 night hours. On 18.5.2005, A-1 appeared before P.W.12 Tahsildar of the said place namely Salem, and narrated the entire incident. He has recorded the same, which is marked as Ex.P1. He also produced A-1 along with Ex.P1 and his report Ex.P2, before P.W.23, the Investigating Officer.
(ii) The Investigating Officer recorded the confessional statement of A-1. The admissible part is marked as Ex.P9. Following the same, the material objects were recovered from him.
(iii) The material objects so recovered were sent for chemical analysis along with the material objects recovered from the place of occurrence and also from the dead body of the deceased. They were all put to analysis, and the serological report has also been filed. The prosecution brought to the notice of the trial Court that the blood 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 criticisms utmost against Ex.P1, the extra-judicial confession alleged to have been given by A-1 to P.W.12 which is marked as Ex.P1. According to the learned Counsel, this cannot be accepted in evidence since it is legally hit either under Sec.164 of Cr.P.C. or under Sec.26 of the Evidence Act. But, this contention cannot be countenanced at all in the considered opinion of the Court. According to P.W.12, when he was in office, at about 8.00 P.M. A-1 appeared and gave the statement, and the same was recorded by him. At the first, this Court is to point out that P.W.22 is a Tahsildar, a respectable witness, and what made or impelled A-1 to appear before him and gave such 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 the police, and had it been done, they would have been dealt with severely and that would have been deterring him from meeting the police. This Court is unable to see any reason why the evidence of P.W.12, a witness like Tahsildar could be looked with suspicion.
19.The learned Counsel brought to the notice of the Court that at Azhagapuram, there was one Inspector of Police by name Mohan; that the said Mohan was actually related to the Tahsildar; that the present officer who took up investigation namely P.W.23, could have also been related to both these persons, and thus the service of this Tahsildar could not have been taken into. But, this Court is of the view that this contention is farfetched. When this particular Inspector of Police namely Mohan who was at the police station, was not known, and merely because the Tahsildar happened to be the brother of Mohan who served as Inspector of Police in that particular police station and whose service under that police station remained unknown, the Court need not and cannot infer that his service could have been taken for the purpose of supplying evidence in a case of murder like this. Needless to say, a Tahsildar like P.W.12 was not competent to record any statement under Sec.164 of Cr.P.C., and nowhere it is stated in the entire document that it is recorded under Sec.26 of the Evidence Act. True it is, a question was posed to P.W.12 as a witness whether he has got power under Sec.26 of the Evidence Act. He has also answered in affirmative. But, it did not mean that he recorded the statement under Sec.26 of the Evidence Act. So long there is nothing to indicate that he has recorded the statement under Sec.26 of the Evidence Act either through his evidence or under the document Ex.P1, it cannot be inferred that he recorded so.
20.Before accepting any extra-judicial confession, it has been held by the Apex Court that the Court has to apply two tests, firstly to whom and under what circumstance such an extra-judicial confession was made and secondly whether the evidence of the person to whom such extra-judicial confession is alleged to have been given, inspires the confidence of the Court. In the instant case, P.W.23 was a Tahsildar, an independent officer, whose evidence ordinarily cannot be 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 before him on 18.5.2005. There was no long interval, and the evidence of P.W.12 when scrutinized inspires the confidence of the Court. Thus this Court had no hesitation to accept the evidence of P.W.12, the Tahsildar. His evidence, in the considered opinion of the Court, has to be acted upon.
21.Insofar as the other piece of evidence regarding the recovery of the material objects, as rightly pointed out by the learned Counsel, when these material objects were placed before the laboratory for chemical analysis, what prevented the prosecution from filing the chemical analysis report remained unknown. Added further, it is true that the blood group was found to be tallying as per the serological report. But, in the absence of any correlation, this Court is unable to agree or accept that piece of evidence which could be acted upon. As far as A-1 is concerned, in view of the evidence adduced through P.W.12 and that too the extra-judicial confession Ex.P1, this Court has to act upon the same and find him guilty since in the considered opinion of the Court, it is a strong piece of evidence.
22.As far as A-2 is concerned, the contentions put forth by the learned Counsel have got strong force. According to the prosecution, three material objects namely M.Os.15, 16 and 17, knife, pant and shirt respectively, were recovered from him, and the recovery was made on 19.5.2005. As regards the place of recovery, there is a vital difference between the evidence of P.W.18, the VAO, and also the Investigating Officer, P.W.23, and it would go to show that such a recovery could not have taken place at all. Added further, the strong circumstance was that when the accused was questioned under Sec.313 Cr.P.C., in respect of the blood group, though found to be tallying, no questions were put to him, and it would be denial of opportunity which is well established and ensured a right available to the accused in a criminal trial. On that ground also, that part of the evidence cannot be accepted. Except this piece of evidence, the prosecution had no further evidence to offer before the trial Court, 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 agree with the learned Senior Counsel for the simple reason that it is a case where A-7 was arrested pursuant to the extra-judicial confession made by A-1 to P.W.12. To what extent the extra-judicial confession given by an accused could be acted upon against the co-accused came up for consideration before the Apex Court in a case reported in 1987 L.W. (CRL.) 274 (PARAM HANS YADAV & SADANAND TRIPATHI V. STATE OF BIHAR AND OTHERS) wherein it has been held as follows:
“9.It is well settled that the confession of a co-accused is not substantive evidence against other co-accused persons in the same trial. As this Court pointed out in Kashmira Singh v. State of Madhya Pradesh the confession of a co-accused is not substantive evidence against the other accused persons at the trial but could only be used for lending re-assurance if there be any other substantive evidence to be utilised or acted upon.”
24.From the very reading of the above decision, it would be quite clear that the extra-judicial confession given by an accused in a criminal case cannot be taken as a substantive piece of evidence as far as the other accused is concerned. Apart from this, the said decision has got full application to the present facts of the case. In the instant case, the prosecution can come forward to state that the other substantive piece of evidence to lend assurance for the alleged extra-judicial confession is the so called recovery. As far as the recovery of M.Os.26 to 28 pant, shirt and knife respectively, is concerned, if looked into, the place of recovery would differ. As far as the Investigating Officer is concerned, he has stated that it was recovered from the plantain thope. P.W.18 has stated that it was done inside the house. Thus the evidence would differ in that regard. Apart from that, the chemical report was also not filed though serological report was filed, and the correlation is also not made 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 of evidence to show their nexus to the crime. As far as A-2 and A-7 are concerned, for the reasons recorded above, there is nothing pointing to 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 got to be found guilty under Sec.302 IPC simplicitor. The life sentence imposed by the trial Court has got to be sustained. A-1 is entitled for acquittal in respect of the other charges. The other accused are entitled for acquittal in respect of all the charges.
26.In the result, C.A.No.271/2007 is dismissed, confirming the judgment of conviction and sentence imposed on A-1 under Sec.302 IPC by the lower Court. A-1 is acquitted of all other charges, and the fine amounts if any paid by him in that regard will be refunded to him. It is reported that A-1 is on bail. Hence the Sessions Judge will 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 2007 are allowed setting aside the judgment of the trial Court. A-2 to A-11 are acquitted of all the charges levelled against them. The bail bonds executed by them shall stand terminated. The fine amounts if any paid by them will be refunded to them.
nsv
To:
1.The Additional Sessions Judge
Fast Track Court No.II
Salem
2.The Inspector of Police
Azhagapuram Police Station
(Cr.No.1332/2005)
3.The Public Prosecutor
High Court,
Madras