M. Chockalingam, J.@mdashChallenge is made to a judgment of the learned Additional District and Sessions Judge/Fast Track Court No. I, Madurai in S.C. No. 73 of 2008 on 27.11.2008, whereby the first accused/appellant stood charged, tried and found guilty under Sections 364, 302 and 201 IPC and imposed punishment of 5 years R.I. with a fine of Rs. 500/- and default sentence u/s 364 IPC, Life Imprisonment with a fine of Rs. 1000/- and default sentence u/s 302 IPC and 3 years R.I. with a fine of Rs. 500/- and default sentence u/s 201 IPC.
2. The short facts that are necessary for the disposal of this appeal can be stated as follows:
a) P.W.4- Senthamarai is the wife of the deceased-Vasimalai. P.W.5-Paramasivam is the father of P.W.4. The husband of P.W.4, the deceased in the instant case, purchased goats from the accused, but he did not make the payment therefor. Whenever there was a demand made, he gave an evasive answer. On 22.10.2004, A1 and A2 came to the house of the deceased and demanded money, and there was a quarrel. On 24.10.2004, both the accused came at about 9.00 a.m., and informed that goats were available for sale. So saying, A1 and A2 took the deceased and thereafter, the deceased did not return. This was informed by P.W.4 to her father-P.W.5 and thereafter they were searching for the deceased. On 31.10.2004, at about 8.45 a.m., when P.W.1-Village Administrative Officer (VAO) was in his office, A1 and A2 appeared before him and gave a confessional statement and the same was recorded by P.W.1 in the presence of P.W.2-Village Assistant and others, and he got the signature of the first accused. The second accused was also present there at that time. The said statement made by the accused is marked as Ex.P1, based on which Ex.P2-Report of the VAO, was made and both Ex.P1 and P2 along with the accused, were produced before the respondent-Police Station.
b) P.W.9- Sub-Inspector of Police, received Ex.P1 and Ex.P2 from the VAO. On the strength of Ex.P1, a case came to be registered in Crime No. 156 of 2004 u/s 302 of the Code. Ex.P15-Express F.I.R. was despatched to the Court and the copies were sent to the higher-ups.
c) P.W.10- Inspector of Police, on receipt of the copy of F.I.R., proceeded to the spot, made inspection and prepared Ex.P3- Observation Mahazar and also Ex.P16-Rough Sketch. Following the same, the accused persons were taken to the place where the dead body was found and thereafter, M.Os.1 and 2 were recovered under a cover of Ex.P9-Seizure Mahazar, M.Os.3 and 4 were recovered under a cover of Ex.P4-Seizure Mahazar, M.os. 5, 6, 7 and 8 were recovered under a cover of Ex.P5-Seizure Mahazar and M.O.10-Wrist watch of the deceased, was recovered under a cover of Ex.P7-Seizure Mahazar. The second accused also produced his lungi and shirt, and the same were recovered under Ex.P11-Seizure Mahazar. The first accused also produced his lungi and shirt, and the same were recovered under Ex.P10-Seizure Mahazar. Pieces of broken liquor bottles were recovered under Ex.P8-Seizure Mahazar. A green colour TVS-50 vehicle marked as M.O.15 was also recovered under a cover of Ex.P6-Seizure Mahazar, from the garden of one Ayyavu.
d) The investigator conducted inquest over the body of the deceased in the presence of witnesses and panchayatars and prepared Ex.P17-Inquest Report. Since the dead body was in a decomposed state, the post mortem was conducted at the place where the body was recovered.
e) P.W.7-Doctor, attached to the Government Hospital, Usilampatti, conducted autopsy on the dead body of the deceased and issued Ex.P12-Post Mortem Report. Further, a Superimposition Test was conducted over the dead body, pursuant to which a report was also received under Ex.P13. The superimposition test would also confirm that the skull was that of the deceased.
f) Thereafter, P.W.11-Inspector of Police, took up further investigation. On completion of the investigation, he filed final report against the accused under Sections 302, 364 and 201 IPC before the concerned court, which in turn committed the case to the Court of sessions, and necessary charges were framed.
g) In order to substantiate the charges, at the time of trial, the prosecution examined 11 witnesses and relied on 17 exhibits and 15 material objects. On completion of the evidence adduced on the side of the prosecution, the accused were questioned u/s 313 of Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses. They denied them as false. No defence witness was examined. After hearing the arguments of the counsel and looking into the available materials, the Trial Court took the view that the prosecution has proved the case beyond reasonable doubt insofar as A1 is concerned and awarded the punishments as referred to above. The Trial Judge has recorded an order of acquittal insofar as A2 is concerned. Hence, this Criminal Appeal at the instance of the first accused/appellant.
3. Advancing arguments on behalf of the first accused/appellant, the learned Counsel would submit that the prosecution has miserably failed to prove the case. According to the learned Counsel, the prosecution had no direct evidence to offer. According to the prosecution, on 24.10.2004 at about 9.00 a.m., A1 and A2 came to the house of the deceased and took him. According to P.W.4, she was searching the deceased for a number of days and she has categorically admitted that she gave a complaint to the respondent-Police Station, but the same was not placed before the Court and the suppression of the said complaint would clearly indicate that had it been produced before the Court, it would have been against the prosecution case.
4. Added further the learned Counsel for the first accused/appellant that in the instant case, even according to the prosecution, insofar as the last seen theory, both the accused persons had clearly given a confessional statement to P.W.1-VAO, but P.W.1 has not bserved the procedural formalities. He has to maintain a proper register, wherein he should record the same, and apart from that, in the instant case, he has obtained the signature of A1 only. Therefore, according to the counsel, the said confessional statement should not be believed and it should have been rejected by the Trial Court for the reason that there are inconsistencies and discrepancies noted therein.
5. Added further the learned Counsel for the first accused/appellant that according to the investigator, it was the accused who took him to the place of occurrence where the dead body was actually found, but P.Ws.1 and 2 have not deposed anything in that regard. Learned Counsel for the first accused/appellant would further add that the investigator would claim that the wrist watch was actually recovered from A1 on the basis of the confessional statement given by him, but contrarily, P.W.2 has categorically stated that at the place of occurrence, the wrist watch was recovered, which would be clearly indicative of the fact that the alleged confessional statement and the alleged recovery of the materials object cannot but be false. Even the Doctor who conducted post mortem did not give any proper reason as to how the death of the deceased occurred.
6. Added further the learned Counsel for the first accused/appellant that even according to P.W.1, A1 and A2 came to the place of the deceased, where the deceased joined them for the purpose of purchase of goats, and there is no evidence to indicate that the accused actually abducted the deceased from that place.
7. Added further, the learned Counsel for the first accused/appellant in the instant case, the application of Section 201 of IPC on the accused is not correct, since there were no evidence to that effect and hence the Trial Judge had taken an erroneous view and hence the first accused/appellant is entitled for acquittal. He further added that when the same evidence projected through the same witnesses in respect of A1 and A2 have been placed before the Court, the Trial Court, having acquitted A2, should have acquitted A1 also, but it had miserably failed to do so, and under the circumstance, the judgment of the Trial Court has got to be set aside.
8. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made and also scrutinised the materials available.
9. It is not in controversy that following the registration of the case by P.W.9, Sub-Inspector of Police, on the basis of Exs.P1 and P2, i.e. the confessional statement given by the accused and also the report prepared by P.W.1 respectively, the Investigator had taken up investigation and after conducting inquest over the body of the deceased, he prepared Ex.P17-Inquest Report. The dead body of the deceased was also subjected to post mortem by P.W.7-Doctor, who has also given her opinion that the death would have occurred due to homicidal violence. Insofar as the identity of the deceased is concerned, P.W.4 has identified the dead body of her husband and superimposition test was also done and a report was received wherein it has been stated that the skull recovered was that of the deceased. Thus, the prosecution was able to show the identity of the deceased and also proved that the death of the deceased was due to homicidal violence.
10. In order to substantiate the charges levelled against the first accused/appellant and the other accused, the prosecution had no direct evidence to offer, but it relied on circumstantial evidence. The first circumstance that was relied on by the prosecution was that of the alleged extra-judicial confession made by A1 and A2 to P.W.1-Village Administrative Officer. Before accepting the extra-judicial confession, which can form a basis for sustaining the conviction, the Court must apply necessarily two tests. Firstly, what are the circumstances attendant, when the extra-judicial Confession was given and secondly, whether the evidence of the person to whom the extra judicial confession was said to have been given, inspires the confidence of the Court. According to P.W.1-VAO, when he was in his office, on the date of occurrence, i.e., 31.10.2004, at about 8.45 a.m., A1 and A2 came to his office and in the presence of P.W.2-Village Assistant, confessional statement was given by A1 and A2 and the same was recorded, and P.W.1 has also prepared a report under Ex.P2. It was only P.W.1 who produced the first accused/appellant along with the other accused and Exs.P1 and P2 before the Police Station. At this juncture, it is pertinent to point out that only on the strength of Ex.P1 and Ex.P2, a case came to be registered by the respondent Police Station and following the same, the investigation was actually taken up. The evidence of P.W.4, the wife of the deceased, was to the effect that on 24.10.2004, the first accused/appellant along with the other accused, took the deceased on the guise of purchase of goats and it was thereafter, the deceased did not return at all and hence P.W.4 along with P.W.5 made a search. In the mean while, the first accused/appellant and the other accused appeared before P.W.1-VAO and gave Ex.P1, on the strength of which the case came to be registered.
11. The contention put forth by the learned Counsel for the first accused/appellant that the signature of A2 was not obtained in the confessional statement, cannot be a reason to reject the case of the prosecution. Insofar as A1 is concerned, in the confessional statement the signature found was that of A1, which is an indisputable fact. When he was taken to the Police Station and the case was registered, it was the first accused who took the investigator to the place of occurrence and the dead body was identified and thereafter material objects were recovered. Had he not identified the place of occurrence and also the dead body, the investigator could not have found the same. Thus, the extra-judicial confession recorded by P.W.1, had actually led to the recovery of the dead body and other materials at the place of occurrence. Further, evidence is available to show that the wrist watch of the deceased was actually found in the place of occurrence and therefore, it may not have been recovered from A1, pursuant to the confessional statement made by the accused. This Court is of the opinion that not only the recovery of wrist watch, but also the above two circumstances are suffice to prove the case of the prosecution. Firstly, the extra-judicial confession which was given by the first accused to P.W.1-VAO, stood corroborated by the evidence of P.W.2, and secondly, the identity of the dead body and the recovery of the material objects from the place of occurrence.
12. Insofar as the contention put forth by the learned Counsel for the first accused/appellant that there are certain infirmities noticed in Ex.P1, this Court is of the considered opinion that they are minor-most and they are not of much weight.
13. From the evidence available on record, it is quite clear that the deceased had gone along with A1 and A2 willingly. Therefore, in the circumstances, no question of conviction of the first accused/appellant u/s 364 would arise. Hence, the contention put forth by the learned Counsel for the first accused/appellant in that regard has got to be accepted.
14. Insofar as the other charges levelled against the first accused/appellant, it is clear that the first accused had caused the death of the deceased and has left the dead body at the place of occurrence with an intention to screen the evidence. Hence, the conviction of the first accused/appellant under Sections 302 and 201 of the Code are liable to be confirmed.
15. In view of the reasons stated supra, while sustaining the conviction and sentences imposed on the first accused/appellant under Sections 302 and 201 of IPC, the conviction and sentence imposed on the first accused/appellant u/s 364 IPC are set aside. He is acquitted of the charge u/s 364 IPC. The fine amount if any paid by him in that regard shall be refunded to him. The sentences imposed under Sections 302 and 201 IPC shall run concurrently. The period of imprisonment already undergone by the first accused/appellant shall be given set off.
16. In the result, this Criminal Appeal is partly allowed.
