JUDGMENT
M. Karpagavinayagam, J.
1. The conviction under Section 302 I.P.C. imposed upon the the appellant is being challenged in this appeal.
2. According to the prosecution, on 30.12.1994 at about 8.00 a.m., the deceased Babu, brother of the accused, was coming to his house and stared at the accused. Some months prior to the date of occurrence, the deceased attacked the wife and child of the accused with reference to which, a case was registered and in that case, he was sent to jail and he came out on bail. The accused on noticing that the deceased was staring at him, took revenge against the deceased to finish him off once for all. Then, the accused followed the deceased and entered into his house and attacked him with aruval and wooden log. The deceased died at the spot. Then, the accused went to the Village Administrative Officer (P.W.5) at 10.45 a.m. and gave an extra-judicial confession (Ex.P1) which was recorded by P.W.5 V.A.O. Then, P.W.5 produced the accused and Ex.P1 extra-judicial confession along with Ex.P2 report to the Sub Inspector of Police (P.W.10). The case was registered under Section 302 I.P.C. P.W.11 Inspector of Police took up investigation and went to the scene and observed all the formalities. He conducted inquest and examined the witnesses. After finishing the investigation, he filed the charge sheet.
3. The accused was questioned under Section 313 Cr.P.C. after the trial is over. The accused denied his complicity in the crime.
4. The trial Court though disbelieved the recording of the extra-judicial confession, chose to convict the accused on the basis that the statement given by the accused to V.A.O. could be taken as oral statement and on the basis of the said oral extra-judicial confession, the conviction could be given.
5. Mr. K.S. Rajagopalan, the learned counsel for the appellant would take us through the entire evidence and contend that there is no acceptable legal evidence to connect the accused with the offence.
6. We have heard the Additional Public Prosecutor.
7. Two sets of materials have been collected during the course of investigation:
(1) The witnesses saw that the deceased was being chased by the accused near his house on the date of occurrence.
(2) The extra-judicial confession Ex.P1 made by the accused to P.W.5 V.A.O.
8. During the course of trial, all the witnesses, who speak about the chasing of the deceased by the accused, have turned hostile. As such, the prosecution has failed to prove the first aspect of the material. However, the prosecution has produced Ex.P1 extra-judicial confession and examined P.W.5 V.A.O. to establish that the extra-judicial confession was made by the accused confessing that he committed the murder of the deceased as retaliation of his having attacked his wife and child.
9. On going through the records, we are of the view that the extra-judicial confession made by the accused to V.A.O. P.W.5 could not be considered as a voluntary one. Both P.W.5 V.A.O. and P.W.10 Sub Inspector of Police would admit that the police station is situated only 100 feet away from V.A.O’s office. P.W.5 would further admit that he has no personal acquaintance with the accused. When such being the situation, there is no reason as to why the accused should choose to go to V.A.O. instead of going to the police station.
10. Further, the reading of Ex.P1 extra-judicial confession would show that the accused requested V.A.O. to take further action. The perusal of the records would not show that out of fear for the police, he has come to V.A.O. and given statement.
11. Under those circumstances, we have no other go except to hold that the extra-judicial confession, which is the main material placed by the prosecution, cannot be considered to be sufficient evidence to base the conviction, especially when we hold that this extra-judicial confession would not have been recorded by V.A.O. on the basis of the voluntary statement from the accused.
12. Therefore, we are of the view that the conviction and sentence imposed upon the accused/appellant are liable to be set aside and accordingly, the same are set aside. Thus, the appeal is allowed.