Sunday, June 15, 2003 Janarthanam, J.@mdashThe appellant was first accused in S. C. No. 44/86 on the file of Court of Session, Dharmapuri
Dist. Division at Krishnagiri. The first accused and others, viz., accused 2 to 6 faced charges under sections 147, 302 read with 149 I.P.C. and
201 I.P.C. 1st accused alone was found guilty under Sections 302 and 201 I.P.C., convicted thereunder and sentenced to imprisonment for life u/s
302 I.P.C. and R.I. for three years u/s 201 I.P.C., with a direction for the sentences to run concurrently. The rest of the accused, viz., accused 2
to 6 were found not guilty of the offences with which they stood charged and they were acquitted thereof.
2. Aggrieved by the conviction and sentence, the present action had been resorted to by the first accused.
3. Brief facts are :
a. Chinnathallapadi and Periya Thallapadi are two tiny villages and the distances between them is about 1 k.m. Both the villages are situate within
the jurisdictional limits of Singarapettai Police Station. All the accused 1 to 6 are the residents of Chinna Thallapadi, while one Vedian, (since
deceased) was the resident of Periya Thallapadi. His wife is one Manonmani, who is none-else than the sister of 1st accused. Ever since, their
marriage, there were frequent skirmishes and quarrels between the spouses. Consequently, the wife Manonmani had very often resorted to take
shelter in her parents house.
b. Some three months prior to the occurrences, which event happened on 7-7-1995, the wife Manonmani as usual, had gone to the house of her
parents, obviously after picking up quarrel wife her husband the deceased. The deceased took steps for bringing back his wife to the matrimonial
abode by reporting the matter to P. Ws. 5 and 6 who it is said, tried their best to effect mediation between the spouses. However, such a
mediation proved colossal failure two months prior to the occurrence.
c. The first accused was stated to have some sort of an embittered relationship with his brother-in-law, the deceased as a consequence of his not
having good marital relationship with his wife, the sister of first accused. It appears that the first accused, in a bid to do away with the deceased,
had been moving in the company of the other accused, viz., accused 2 to 6 some time prior to the occurrence. On 7-7-1985 at about 7:30 P.M.
or 7:45 P.M., 6th accused went to the grocery shop of P. W. 7 and purchased a coir rope and then at 8:00 P.M. he purchased two bottles of
arrack from P. W. 8 the salesman of No. 3 arrack shop at Periya Thallapadi, obviously for the consumption of the arrack by him and his
associates.
d. P. Ws. 3 and 4 residing in the vicinity of the house of 1st accused, heard some hue and cry emerging from the house of first accused. Attracted
by such hue and cry, they went there and had the fortuitous opportunity of observing the presence of all the accused and the deceased lying on the
floor in the house of first accused at 10:00 P.M. They were able to presume from such a situation that the deceased had been done to death by the
accused.
e. In the meantime the deceased, who was stated to have gone out of his house in his cycle M. O. 6 at 10:00 A.M. on 7-7-1985, did not at all
return to his house. His daughter P. W. 2 waited for his arrival and return till up to 17-7-1985 on which date she went and reported to her uncle
Selvaraj, as to her father''s missing for quite long and he in turn enquired about the whereabouts of the deceased and despite the efforts so taken,
he could not locate him. Consequently, P. W. 2 went and reported the matter to P. W. 19, the Sub Inspector of Police Singarapettai Police
Station Exhibit P. 2 is the complaint. In the said complaint she had given the description of the clothes worn by the deceased, her father when he
last departed from his house. On the strength of the said complaint, P. W. 19 in turn, registered a case in Crime No. 68/85 as a man missing case.
He prepared express reports and send the same to the concerned officials. Exhibit P. 21 is the express First Information Report.
f. In the mean time, P. W. 1, the then Assistant Engineer, Pambar Dam, was able to locate a dead body floating in the dam at 9:00 A.M. on 10-7-
1985. The body was found tied by means of a rope on the neck and hip region with two stones dangling on either side of the ends of the rope.
Suspecting some foul play P. W. 1 went and reached Oothangarai Police Station at 12 noon and lodged Exhibit P. 1 information to P. W. 22, the
then Sub Inspector of Police in charge of the station, who in turn on receipt of the same, registered a case in Crime No. 110/85 u/s 174 Cr.P.C.
He prepared express reports and sent the same to the concerned officials. Exhibit P. 25 is the copy of the express report.
g. P. W. 23 was the then Inspector of Police. On receipt of the express First Information Report at 12:00 P.M., he took up further investigation of
the case. He then rushed and reached Pambar dam at 12:50 P.M. After inspecting the scene, he prepared Exhibit P.3 observation mahazar. He
drew a rough sketch of the scene Exhibit P. 26. He caused the body to be removed from the dam. Between 2:00 P.M. and 4:30 pm. , he held
inquest over the body of the deceased. Exhibit P.27 is the inquest report. During inquest, he examined P. W. 1 and others. Since the body was in
an advanced stage of putrefaction, he sent Exhibit P. 10 requisition through the Constable P. W. 21 for the purpose of conducting the autopsy over
the body of the deceased at the spot itself. He also caused photographs of the body to be taken by the Photographer, P. W. 17. M. Os. 14 and
15 series are respectively negatives and photo copies. At 4:45 P.M. he recovered the peeled of loose skin from the left palm of the deceased
under Exhibit P.4 mahazar. At 5:00 P.M. he recovered from the body M. O. 4 two rupee note, M. O. 9 coir rope, M. O. 10 series two stones,
besides recovering blood stained earth M. O. 11 from the place where the body was allowed to lie under Exhibit P.5 mahazar. Exhibits P.3 to P.5
were attested by P. W. 9.
h. P. W. 11 was the then Civil Assistant Surgeon attached to Primary Health Centre, Mathur. On receipt of Exhibit P. 10 requisition, P. W. 11
rushed and reached the spot at 4:45 P.M. on 10-7-1985 and straightway commenced the autopsy. Exhibit P. 11 is the post mortem certificate he
issued. He would opine that the deceased would have died 60 to 70 hours prior to autopsy due to the fracture of skull bone and fracture of upper
jaw and removal of right eye.
i. After the autopsy was over, P. W. 23 seized the right hand fingers of the deceased from the Doctor P. W. 11 who severed it from the body of
the deceased under Exhibit P. 28 mahazar at 5:45 P.M. for the purpose of taking the impression of those fingers.
j. After the autopsy was over P. W. 21 seized from the body of the deceased M. O. 1 shirt, M. O. 2 sleeveless banian, M. O. 3 inner garment, M.
O. 5 thread waist cord and M. O. 13 Nylon rope and handed over the same at the police station, where it was seized under Exhibit P. 24 form
96.
k. Since the autopsy revealed that the deceased died of homicidal violence, P. W. 23 altered the case into one u/s 302 I. P. C. and sent express
reports to concerned officials. Exhibit P. 29 is the express copy of the first information report. On 11-7-1985 he examined P. Ws. 17 and 21 and
recorded their statements. On 12-7-1985 he examined P. W. 11. On 17-7-1985, P. W. 19 the then Inspector of Police Singarapettai Police
Station, caused Exhibit P. 21 the copy of the express first information report concerned in Crime No. 68/85 of his Police Station to be handed
over to P. W. 23 Inspector of Police through the medium of P. W. 2 P. W. 23 showed the photographs M. O. 15 series to P. W. 2 on that day
itself, he sent Exhibit P. 30 requisition to the Judicial II Class Magistrate''s Court. Oothangarai, for identifying the Material objects, viz., M. O. 1
shirts, M. O. 2 banian, M. O. 3 inner garment and M. O. 5 thread waist cord found on the body of the deceased. M. O. 1 shirt was stated to have
been stitched by the deceased some time prior to the occurrence by purchasing cloth from the shop of P. W. 16 with the aid of the tailor P. W. 15,
P. W. 23 obtained permission from the Judicial II Class Magistrate, Oothangarai and got back M. O. 1 shirt so as to enable him to have the same
identified by P. Ws. 2 and 15, who on the production of the same, identified as the shirt of the deceased.
l. On 18-7-1985 P. W. 23 examined P. Ws. 3 and 4. At 10:00 A.M. on that day he made an inspection of the house of the first accused. After
such inspection he prepared Exhibit P. 12 mahazar in the presence of P. W. 12. He drew a rough sketch Exhibit P. 31 at 5:00 P.M. He arrested
accused 2 and 5 on some credible information at Chinnathallapadi junction road in the presence of P. W. 10. On interrogation 2nd accused was
stated to have given a confession statement u/s 27 of the Evidence Act. The admissible portion of the confession statement is Exhibit P.6 Likewise,
5th accused also gave a confession statement u/s 27 of the Evidence Act. The admissible portion of the said statement is Exhibit P. 8. Pursuant to
Exhibit P. 6, 2nd accused took P. W. 23 to his house and produced M. O. 7, dothi, which was seized under Exhibit P. 7 mahazar. Likewise 5th
accused, pursuant to Exhibit P. 8 confession, also took P. W. 23 to his house and produced M. O. 12 bamboo stick, which was seized under
Exhibit P.9 mahazar. Exhibits P.6 to P.9 were all attested by P. W. 10 and another. He took both accused 2 and 5 along with the seized
properties to Oothangarai Police Station and put them in the lock up of the Police Station. On the next day he sent them to Court for remand.
m. P. W. 13 was the then Village Administrative Officer, Chinnathalapadi Village. He was stated to be having an office at Mittapalli village. While
he was available in the said Office at 6:00 A.M. on 19-7-1985, the first accused appeared before him and gave an extra judicial confession
implicating himself and the rest of the accused, viz., accused 2 to 6 in the commission of the murder of the deceased by beating him with a wooden
log and subsequently dropping the body of the deceased at Pambar dam. Exhibit P. 13 is the extra Judicial confession statement stated to have
been given by first accused. P. W. 13 then took the first accused and went and reached Oothangarai Police Station at 9:00 A.M.
n. P. W. 23 was then available in the Police Station. To him, P. W. 13 handed over the first accused, besides Exhibit P. 13 Extra Judicial
confession statement of the first accused and his special report Exhibit P. 14 P. W. 23 arrested the first accused in the presence of P. W. 14. On
interrogation, he gave a voluntary confession statement u/s 27 of the Evidence Act. Exhibit P. 15 is the admissible portion of the confession
statement. Pursuant to the said confession statement, he took P. W. 23 to his house and produced M. O. 6 cycle M. O. 8 Aruvamanai kattai kept
concealed in the left of his house and they were seized under Exhibit P. 16 mahazar attested by P. W. 14 and another on the way at 5:00 P.M. P.
W. 23 also arrested 4th accused in front of Singarapettai Bus Stand. He then brought both the accused 1 and 4 to the Police Station, and later,
sent them to Court for remand.
o) On 19-7-1985, P. W. 23 examined P. W. 6, who in turn, divulged the factum of 4th accused making an extra judicial confession statement to
him in the sense of himself joining hand with first accused committing the murder of the deceased and subsequently dropping the body at Pambar
dam.
p) On 20-7-1985 he examined P. Ws. 5, 7, 8 and others at 7: 30 P.M. he arrested 3rd accused at Ramagoundan valasu. He brought him to the
Police Station at 9:00 P.M. The next day he sent 3rd accused to Court for purpose of remand. On 22-7-85 he examined P. W. 16 and others.
q) On 29-7-1985 at about 7:00 A.M. he arrested 6th accused in front of Magadurpatti Government High School situate at Singarapettai -
Tirupathur Main Road in the presence of P. W. 20. On interrogation, 6th accused gave a confession statement u/s 27 of the Evidence Act. Exhibit
P.22 is the admissible portion of the confession statement, 6th accused pursuant to the said confession statement, took P. W. 23 to his house and
produced M. O. 16 series empty bottles-two in number and M. O. 17 aluminium tumbler, which were seized under Exhibit P.23 mahazar. Exhibits
P.22 and P.23 were all attested by P. W. 20 and another.
r) On 11-8-1985 P. W. 23 sent Exhibit P. 17 requisition to the Judicial II Class Magistrate, Oothangarai for the purpose of sending the
incriminating Material Objects to the Chemical Examiner for the purpose of examination.
s) P. W. 18 was the then Head Clerk attached to Judicial Magistrate''s Court, Oothangarai. On receipt of Exhibit P. 18 requisition, he after
obtaining the orders of learned Magistrate, despatched the incriminating Material Objects to the Chemical Examiner for the purpose of examination
under the original of Exhibit P. 18 office copy of the letter. Exhibits P. 19 and P. 20 are respectively the reports of the Chemical Examiner and
Seriologist.
t) P. W. 23 after completing the formalities of investigation, filed the final report u/s 173(2) Cr.P.C. before Judicial Magistrate, Oothangarai on 31-
12-1985 against the accused 1 to 6 for alleged offences under Sections 147, 302 read with 149 and 201 I.P.C.
4. On committal, learned Sessions Judge, framed charges against accused 1 to 6 Sections 147, 302 read with 149 and 201 I.P.C.
5. The accused, when questioned as respects the charges so framed, denied the same and claimed to be tried.
6. The prosecution in proof of the charges so framed, examined P. Ws. 1 to 23, filed Exhibits P. 1 to P. 31 and marked M. Os. 1 to 17.
7. The accused when questioned u/s 313 Cr.P.C. as respects the incriminating circumstances appearing in evidence against them, denied their
complicity in the crime. They, however, did not choose to examine any witness on their behalf.
8. Learned Sessions Judge on consideration of the materials placed and after hearing the arguments of learned counsel for the defence and learned
Public Prosecutor, however, rendered the verdict, as stated above.
9. Mr. P. Venkatasubramaniam, learned counsel appearing for the appellant/first accused would submit that the evidence available on record is so
grossly inadequate and insufficient as is not possible to mulct or fasten criminal liability for any offence whatever upon the appellant-first accused
and in that view of the matter, he would say, the appellant/first accused deserves to be acquitted by giving him the benefit of reasonable doubt after
setting aside the conviction and sentence imposed upon him, as had been done by the Court below, to which course, Mr. R. Raghupathi, learned
Additional Public Prosecutor would strike a discordant note.
10. In order to bring home the guilt of the appellant/first accused, the prosecution relied upon various pieces of evidence as below :-
1) The embittered relationship, that came to prevail between the first accused and the deceased, on account of the deceased not having a good
marital relationship with his wife Manonmani, who is none else than the sister of first accused and the wife of the deceased Manonmani very often
taking shelter in the house of her parents, as disclosed by the testimony of P. Ws. 5 and 6.
2) The emergence of a hue and cry from the house of the first accused at 10:00 P.M. on 7-7-1985 and daunted by curiosity of such cries, P. Ws.
3 and 4 rushing towards the house of the first accused and having had the opportunity of perceiving what transpired within the house of first
accused then.
3) The appellant-first accused appearing before P.W. 13 at 6:00 A.M. on 19-7-1985 while he was available in his office at Mittapalli and giving
the extra judicial confession statement under Exhibit P.13 and his being produced by P. W. 13 before P.W. 23 Inspector of Police at 9:00 A.M.
and his being arrested by him immediately on such production and his giving voluntary confession statement under Exhibit P. 15 in the presence of
P. W. 14 leading to the recovery of M.O.6 cycle and M.O.8 Aruvamanai kattai, seized under Exhibit P. 16 mahazar.
11. (a) Of P. Ws. 5 and 6, on whom so much of reliance had been placed by the prosecution for the purpose of proving the motive aspect, P. W.
6 turned hostile wholesale. No doubt, his resiled version had been brought on record in the manner allowed by law.
(b) There remains the solitary testimony of P. W. 5. P. W. 5 of course, would state that there was want of cordial relationship between the
deceased and his wife Manonmany and he in fact, tried to mediate and settle the difference between them and brought the wife of the deceased to
his custody from her parents house, some two months prior to the occurrence and the efforts he made towards that direction proved a colossal
failure. He would not at all advert to anything relatable to the embittered relationship the first accused had towards the deceased on account of his
not having good marital relationship with his wife Manonmani, who is none else than the sister of the first accused. The proved resiled version of
the hostile witness P. W. 6 is in tune with the evidence of P. W. 5. The evidentiary value of the hostile witness P. W. 6 is almost practically nil.
Even otherwise, his testimony, along with the testimony of P. W. 5 cannot at all be stated to have advanced the case of the Prosecution to any
extent whatever, inasmuch as already indicated, P.W. 5 did not at all whisper anything as to the first accused-appellant having any sort of animosity
towards the deceased on account of his not having a good marital relationship with his wife Manonmani, the sister of the first accuse. As such, the
so called incriminating pieces of evidence as disclosed by P. W. 6 and 5 relatable to motive aspect of the prosecution case bristle next to nothing.
12. No doubt, P. Ws. 3 and 4 had been residing in the vicinity of the house of the first accused-appellant. Both of them had been cited by the
prosecution to prove that at 10 P.M. on the fateful night in question, the first accused-appellant and his associates, viz., Accused 2 to 6, were
bodily present in the house of the first accused-appellant and their presence was noticed by them on the emergence of hue and cry from the house
of the first accused. The prosecution further expected them to say that by the time they went to the house of the first accused-appellant, the
deceased was lying dead on the floor and all the accused were collecting the weapons of offence and from such a situation, they were able to
gauge that the deceased met his death at the hands of the accused 1 to 6. Alas! unfortunately, to the prosecution, both of them, viz., P. Ws. 3 and
4 turned hostile wholesale. The prosecution, of course, brought their earlier versions made during the course of investigation, in the manner allowed
by law. In the absence of any other evidence available on record to point out the hands of first accused and his associates in the heinous crime the
resiled version of P. Ws. 3 and 4 throwing light on the criminality of the first accused and his associates on the fateful night in question cannot at all
be safely relied upon, inasmuch as the evidentiary value attached to their testimony, as already stated, is practically nil. Consequently, the testimony
of P. Ws. 3 and 4 has to be eschewed out of consideration, and as such the criminality on the part of the first accused-appellant, as sought to be
projected by the prosecution, is of no consequence.
13. The so-called extra-judicial confession said to have been made by the appellant/first accused implicating himself in the commission of the
murder of the deceased, along with his associates-accused 2 to 6 and screening the commission of such an offence by throwing the body of the
deceased in the Pamber dam is sought to be unfolded by the testimony of P. W. 13, Village Administrative Officer of Chinna Thallapadi. His
evidence would disclose that when he was in his Office at Mittapalli on 19-7-1985 at 8:00 A.M. the appellant/first accused appeared before him
on his own accord and divulged the mystery of the murder of the deceased, besides the body of the deceased being thrown in Pamber dam, which
was stated to have been reduced into writing by P. W. 13 as per his narration, under Exhibit P. 13. He would further say that he handed over the
appellant/first accused, along with Exhibit P. 13 extra judicial confession and his special report, Exhibit P. 14 to P.W. 23, when he was at
Oothangarai Police Station at 9:00 A.M. on the same day. It is the further case of the prosecution that P.W. 23 arrested the appellant/first accused
on his being produced before him and the first accused-appellant also voluntarily gave a confession statement u/s 27 of the Evidence Act, the
admissible portion of which is Exhibit P. 15 leading to the recovery of M. O. 6 cycle and M. O. 8 Aruvamani Kattai, seized under Exhibit P. 16
mahazar, attested by P. W. 14.
14. It was not as if P. W. 13 was the best friend of the first accused-appellant, so that he could convey to him the secrets of his life. After all, P.
W. 13 is a Village Administrative Officer. There can be no difference between a Village Administrative Officer like P. W. 13 and the Police
personnel, in the shape of the Inspector of Police, P. W. 23. If P. W. 13 happened to be the best friend of the first accused-appellant, it is well
with possible for him to have gone to him and disclosed the mystery of the murder of the deceased at least in a bid to remove the burden from his
mind by way of LOCUS PENETENTIAE. If really the appellant/first accused wanted to divulge the mystery of the murder of the deceased to P.
W. 13, we are at a loss to understand as to why he had been waiting all along till up to 19-7-1985 although the murder of the deceased was stated
to have been committed on the night of 7-7-1985. It is here we have to notice the suggestion made by the defence when P. W. 13 was in the box.
The suggestion thrown by the defence to P. W. 13 was that the recording of extra judicial confession under Exhibit P. 13 was a stage managed
show and the so-called extra-judicial confession had been recorded in the Police Station. Of course, the suggestion so thrown had been
categorically denied by P. W. 13. The suggestion so thrown and categorically denied by P. W. 13 cannot at all be stated to be remaining as a shot
aimed in darkness without any purpose whatever on the facts and in the circumstances of the case. The significance of the suggestion so thrown,
would get revealed by a cursory glance of the evidence of P. W. 2.
15. It is the evidence of P. W. 2 that she gave Exhibit P. 2 complaint before P. W. 19, the Sub-Inspector of Police on 17-7-1985. She would
categorically depose in her cross-examination that on the next day of her preferring the complaint, i.e., to say on 18-7-1985, when she had been to
the Police Station to identify the cycle of his father, the deceased, she had seen the first accused and the other accused, viz., accused 2 to 6 in the
lock up of the Police Station. In such state of affairs, to say that the first accused-appellant appeared before P. W. 13 in his office at Mittapalli on
19-7-1985 at 6:00 A.M. and gave an extra-judicial confession under Exhibit P. 13 and his being subsequently produced at 9:00 A.M. before P.
W. 23 and his giving a confession statement u/s 27 leading to the recovery of certain Material Objects, viz., M. Os. 6 and 8 as had been stated
earlier, cannot be anyone, other than the one of the stage managed show for the purpose of making otherwise an inadmissible place of evidence
into one of the admissible piece of evidence. In such state of affairs, we are unable to place any safe reliance on the so-called extra-judicial
confession said to have been made by the first accused-appellant to P. W. 13 and his making a confession statement u/s 27 of the Evidence Act,
the admissible portion of which is Exhibit P. 15, leading to the recovery of M. Os. 6 and 8 seized under Exhibit P. 16 mahazar attested by P. W.
14.
16. For the reasons as above, the appellant-first accused deserves to be acquitted by giving him the benefit of reasonable doubt after setting aside
the conviction and sentence as had been imposed upon him by the Court below under Sections 302 and 201 I. P. C.
17. In fine, the appeal is allowed. The conviction and sentence, as had been imposed upon the appellant-first accused by the Court below, under
Sections 302 and 201 I. P. C., are set aside and he is acquitted thereof by giving him the benefit of reasonable doubt. The bail bond, if any,
executed by him shall stand cancelled.
18. Appeal allowed.
