both appeals Criminal appeals preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional Sessions Judge (FTC), Namakkal, made in S.C.No.116/2005 dated 16.12.2005.
For Appellants : Mr.K.V.Sridharan in C.A.189/2006 Mr.N.Sudharsan for Mr.B.Vasudevan in C.A.229/2006 For Respondent : Mr.P.Kumaresan Additional Public Prosecutor COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern these two appeals namely C.A.No.229/2006 by A-1 and C.A.No.189 of 2006 by A-2. They challenge a judgment of the Additional Sessions Division (FTC), Namakkal, made in S.C.No.116 of 2005 whereby the appellants herein who were ranked as A-1 and A-2 respectively, along with A-3 stood charged namely A-1 to A-3 under Sec.120(b) of IPC, A-1 and A-3 under Sec.450 of IPC, A-1 and A-2 under Sec.302 of IPC and A-3 under Sec.302 read with 109 of IPC, and tried, and A-1 was found guilty under Sec.450 of IPC for which he was awarded 3 years Rigorous Imprisonment along with a fine of Rs.2000/- and default sentence, and A-1 and A-2 were found guilty under Sec.302 read with 109 of IPC and awarded life imprisonment along with a fine of Rs.5000/- and default sentence, while A-3 was acquitted of all the charges.
2.The short facts necessary for the disposal of these appeals can be stated as follows:
(a) The deceased Kuppayee was the mother-in-law of A-2. A-2 developed illicit intimacy with A-1, a neighbour. This fact was not only known to A-3, but also she helped them for that cause. Both A-1 and A-2 felt that the deceased Kuppayee was the hurdle for their relationship since she often quarrelled with A-2. Hence, they planned to finish her off. Accordingly, A-1 to A-3 hatched up a conspiracy, pursuant to which on 3.9.2003 at about 10.30 A.M., A-1 and A-3 entered into the house of A-2. A-1 switched on the T.V., and the deceased was quarrelling with A-1 at 12.00 hours. At that time, A-1 and A-2 strangulated the neck of Kuppayee with M.O.2 rope, when A-3 facilitated the crime by catching hold of her. A-1 and A-3 left the scene of occurrence. A-2 adumbrated that her mother-in-law Kuppayee died naturally. Following the same, the dead body was also buried.
(b) P.W.2 was the Panchayat President during the relevant time. On 6.10.2003 at about 7.00 A.M., when he was in his office, A-1 appeared before him along with A-2 and A-3, and he made mention about the incident and their involvement. Immediately, P.W.2 took all the three to P.W.1, the Village Administrative Officer (VAO) of the place, to whom A-1 gave a confessional statement. P.W.1 recorded the same, which is marked as Ex.P1. P.W.1 also prepared his own report marked as Ex.P2. P.W.1 in turn produced all the three accused along with Exs.P1 and P2 before P.W.14, the Sub Inspector of Police, attached to the respondent police station. On the strength of those documents, P.W.14 registered a case in Crime No.366 of 2003 under
Sections 302 and
201 of IPC. The printed FIR, Ex.P23, was despatched to the Court.
(c) P.W.16, the Inspector of Police, on receipt of the copy of the FIR, took up investigation and enquired the accused. A-1 to A-3 gave confessional statements. The admissible part of the confessional statement of A-1 is marked as Ex.P18. Thereafter, the Investigating Officer went to the scene of occurrence, prepared an observation mahazar, Ex.P21, and also drew a rough sketch, Ex.P26. Further, M.O.2, rope, was produced by A-1. The same was recovered under a cover of mahazar. Then, P.W.8, the Tahsildar, was informed about the same, who came over to the place, and the place where the dead body was buried, was actually identified by the accused. Ex.P27, the rough sketch, was prepared in that regard. Then, the dead body was exhumed. P.W.8 conducted the inquest on the dead body of Kuppayee in the presence of witnesses and panchayatdars between 4.15 and 5.15 P.M. and prepared Ex.P9, the inquest report. The dead body was sent to the Government Hospital along with a requisition for the purpose of postmortem.
(d) P.W.7, the Doctor, attached to the Government Hospital, Velur, Namakkal District, on receipt of the said requisition, conducted autopsy on the dead body of Kuppayee and has issued a postmortem certificate, Ex.P6. She gave her opinion in Ex.P7 that the deceased would appear to have died of complications of asphyxia about 30 to 45 days prior to autopsy.
(e) P.W.17, the Inspector of Police, took up further investigation and filed the final report on completion of investigation.
3.The case was committed to Court of Sessions, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 17 witnesses and also relied on 28 exhibits and 2 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, looked into the materials available and took the view that the prosecution has proved the case beyond reasonable doubt, and hence found A-1 and A-2 guilty and awarded punishment as referred to above, but recorded an order of acquittal of A-3. Hence these appeals at the instance of A-1 and A-2.
4.Advancing arguments on behalf of the appellants, the learned Counsel inter alia would submit that the prosecution has miserably failed to prove its case; that the prosecution commenced its story that the entire incident was pursuant to a conspiracy hatched up between A-1 to A-3; but, the trial Court was not ready to believe the conspiracy theory; that even according to the prosecution, all the three were present at the time of occurrence of strangulation of Kuppayee; that if to be so, the trial Court was not ready to believe the evidence adduced by the prosecution in respect of A-3; but, the lower Court has accepted the evidence of the very same witnesses adduced by the prosecution to prove the guilt of A-1 and A-2; and that all those reasons which were adduced for an order of acquittal of A-3, were equally applicable to A-1 and A-2.
5.Added further the learned Counsel that the entire case rested upon the extra-judicial confession alleged to have been given by A-1 first to P.W.2 and thereafter to P.W.1, the VAO, on production; that in the instant case, there is nothing to indicate that A-2 and A-3 gave any extra-judicial confessions, nor was it recorded by the VAO; that what was all available was Ex.P1, the extra-judicial confession alleged to have been given by A-1 to and recorded by P.W.1, and also the report of P.W.1, the VAO; that P.W.1 would claim that he was in his office on 6.10.2003 at about 7.00 A.M., and A-1 to A-3 were produced, and A-1 gave a confessional statement, and the same was actually recorded which is Ex.P1, and he also gave his report under Ex.P2; but, contrarily, when they were examined in Court, P.W.2 has categorically admitted that all the accused were taken to the police station and produced on 5.10.2003 itself, and P.W.2 was called to the police station; but, P.W.1 has categorically admitted that he was summoned to the police station, and all these documents were prepared in the police station wherein he put his signature, and his seal was brought from his office and then affixed, and thus it would clearly indicate that the extra judicial confession as put forth by the prosecution was nothing but false and could not be acted upon and should have been rejected; but, the lower Court has erroneously accepted the same.
6.Added further the learned Counsel that in the instant case, there could not have been any inquest conducted by P.W.8, the Tahsildar; that according to P.W.8, on requisition, he went to the spot and conducted the inquest between 4.15 and 5.15 P.M. on 6.10.2003; that it could be well seen from the available materials that P.W.7, the Doctor, commenced the postmortem at 4.15 P.M. and the requisition to conduct the postmortem was also given at 4.15 P.M; that all would go to show that such an inquest could not have been conducted as put forth by P.W.8, the Tahsildar, and hence there was no inquest at all.
7.The learned Counsel would further submit that the lower Court has found A-2 also guilty, and the basis for the same was the extra judicial confession alleged to have been given by A-1, which could not be acted upon against A-2.
8.Added further the learned Counsel as his last point that in the instant case, there could not have been any recovery of M.O.2 pursuant to the confession since all other pieces of evidence have been found to be false, and hence the prosecution has miserably failed to prove its case, and they are entitled for acquittal in the hands of this Court.
9.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious attention over the same.
10.It is not in controversy that the dead body of one Kuppayee was subjected to postmortem. The Doctor who conducted autopsy, has been examined as P.W.7, and also the postmortem certificate issued by her, has been marked as Ex.P6. According to the Doctor's opinion, she died out of complications of asphyxia. The fact that Kuppayee died out of homicidal violence was never disputed by the appellants, and hence it can be factually recorded so without any impediment.
11.As could be seen from the available materials, the entire case rested upon the extra-judicial confession alleged to have been given by A-1 originally to P.W.2 and thereafter to P.W.1, the VAO. The case of the prosecution was that the occurrence has taken place on 3.10.2003 pursuant to a conspiracy hatched up between A-1 to A-3; that A-1 and A-2 had illicit intimacy in which A-3 was assisting; that Kuppayee the mother-in-law of A-2, was found to be a hurdle, and therefore, they wanted to finish her off, as a result of which A-1 and A-2 strangulated her, and the act was facilitated by A-3 by catching hold of her. Now the lower Court was not prepared to accept either the conspiracy theory or the participation of A-3. It is pertinent to point out that the prosecution had only two materials before the trail Court. One was the extra-judicial confession alleged to have been given by A-1 to P.W.1, the VAO, at about 9.00 A.M. on 6.10.2003, and the second one was the recovery of M.O.2 pursuant to the confessional statement recorded by the Investigating Officer.
12.Now, both the above two pieces of evidence if materials are scrutinized carefully, should have been rejected. According to P.W.2, the Panchayat President, when he was in his office, all the three accused came confessing the same, and he immediately took them to the VAO, P.W.1, to whom A-1 gave the confessional statement. According to the prosecution, P.W.1 recorded the confessional statement of A-1, and the same was Ex.P1, and the report of P.W.1 was Ex.P2. Now, the specific case of the prosecution was that those extra judicial confession was made by A-1 to P.W.1 at about 9.00 A.M. Contrarily, P.W.2 before whom A-1 to A-3 appeared and first gave the extra judicial confession orally, has deposed before the trial Court that all the three accused were taken to the police station on the evening hours of 5.10.2003 itself; but, P.W.1 has come forward to depose that he went to the police station at about 7.00 A.M. next morning that was on 6.10.2003, and these documents were actually written on the instructions of the Inspector of Police, and he signed the documents, and thereafter, the seal was affixed after it was brought from his office. All would go to show that no such extra-judicial confession could have been ever given to P.W.2 or to P.W.1 as put forth by the prosecution. Under the circumstances, the case of extra-judicial confession on which the prosecution case was rested, fell to ground.
13.Abvoe all, as rightly pointed out by the learned Counsel for the appellants, there could not have been any inquest at all. The inquest, the requisition for postmortem and the commencement of the postmortem would clearly indicate that all took place at about 4.15 P.M. on 6.10.2003, which should be humanly impossible, and the same would be indicative of the fact that there could not have been any inquest by P.W.8, the Tahsildar, as put forth by the prosecution. Further, if the extra-judicial confession alleged to have been given by A-1 to P.W.1, could not be believed, then the confession given by A-1 to the Investigating Officer, and thereafter the recovery of M.Os.1 and 2 cannot also be believed, and they have got to be rejected. In such circumstances, it cannot be stated that the prosecution has proved the case in any way known to law. Therefore, it is a fit case where the judgment of the trial Court has got to be made undone by upsetting the judgment. Accordingly, it is set aside, and the appellants are M.CHOCKALINGAM, J.
AND M.VENUGOPAL, J.
nsv/ entitled for acquittal.
14.In the result, both these criminal appeals are allowed. The appellants are acquitted of the charges levelled against them. The fine amounts paid by them will be refunded to them. The bail bonds executed by them shall stand terminated.
(M.C.,J.) (M.V.,J.) 7-1-2009 Index: yes Internet: yes nsv/ To:
1.The Additional Sessions Judge FTC, Namakkal.
2.The Inspector of Police Velur Police Station (In charge Paramathy Police Station) Namakkal District (Crime No.368 of 2003)
3.The Public Prosecutor High Court, Madras.
CRL.A.No.189 and 229 of