K.N. Basha, J.@mdashChallenge in this appeal is to the judgment of the I-Additional Sessions Judge, Madurai, dated 25.01.2010, made in S.C. No. 187 of 2009, convicting the appellant for the offence u/s 302 IPC and sentencing him to undergo life imprisonment with a fine of Rs. 10,000/-, in default to undergo simple imprisonment for one year.
2. The prosecution case in a nutshell is hereunder:
(a) PW1 is the sister of the accused and daughter of the deceased. PW2 is the maternal uncle of PW1. The accused is the brother of PW1, born to the first wife of her father. PW1, deceased and the accused are having common property about three acres of land at Nagamalaipuram Village. The accused sold 20 cents out of the said land for the marriage of PW1. The accused as well as the deceased were living in the same house in a separate portion. PW1 is married and residing in a nearby place. PW8 is the sister of the accused, who is also already married.
(b) PWs.1 to 4 are the eyewitnesses and all of them have turned hostile. PW1 is the author of the report marked as Ex.P12, FIR in this case. As she has turned hostile, the prosecution version has to be culled out only from the FIR viz., Ex.P12. PW1''s husband is working as mason. She is the only daughter of the deceased Pownthai and the deceased was residing separately in a house at Irattai Kinaru, Nagamalaipuram. The accused was born to the first wife of PW1''s father. There was a dispute between the deceased and the accused in respect of the proposed sale of the property measuring 20 cents, out of the joint family property. The said conduct of the accused was objected to by PW1 and the deceased, and they gave legal notice to the accused. As a result, the accused complained the same to his maternal uncle, PW2. PW2 discussed with the deceased and the accused along with PW1 on 18.05.2008 at about 2.00 p.m. However, no settlement arrived at between them. The accused threatened the deceased with dire consequences, if she intervenes in the proposed sale of the property. Thereafter, PW1, PW2 and the deceased were chatting inside the house. The deceased came out of the house and she was washing vessel in front of her house. On the same day, at about 4.00 p.m., the accused came with an aruval and questioned her conduct of issuing a legal notice and cut on her right side neck with MO.1 Aruval. PWs.1 & 2 raised hue and cry. When the accused threatened PWs.1 & 2 with dire consequences, if they intervene, again the accused gave another cut on the neck of the deceased with Aruval MO.1 and ran away from the scene towards east. The deceased died instantaneously.
(c) PW1 along with PW2 went to Chekanoorani Police Station and gave a report Ex.P11 to PW13, Sub-Inspector of Police. PW13 registered the case under Sections 302 & 506(ii) IPC in Crime No. 173 of 2008 at 4.45 p.m. Ex.P12 is the FIR. He sent the same to the higher police officials and to the Court.
(d) PW17, Inspector of Police on receipt of FIR took up investigation at 5.15 pm. on 18.05.2008. He went to the scene of occurrence and prepared the observation mahazar, Ex.P18 and a rough sketch, Ex.P17 in the presence of witnesses. He has also taken photographs of the scene of occurrence. He held inquest on the dead body from 6.30 p.m. to 9.00 p.m. Ex.P19 is the inquest report.
(e) PW.17, recovered bloodstained earth MO.2 and sample earth MO.3 under Ex.P20 in the presence of witnesses. On 19.05.2008 at 12.30 p.m., PW5, Village Administrative Officer and Thalayari (Village Assistant) produced the accused before PW17 along with a report Ex.P4 and the confession statement recorded from the accused, Ex.P3. PW17 arrested the accused. In pursuance of the admissible position of the confession of the accused under Ex.P21, he has recovered MO.1 Aruval under Ex.P6. He has also recovered bloodstained dhoti (M.O.5) and shirt (M.O.4) under Form 95. He has also recovered the bloodstained cloths of the deceased under Form 95. MO.6 is the Polyester saree. MO.7 is the jacket. MO.8 is the petticoat. A piece of saree, MO.9 is also recovered. He has sent the material objects for chemical examination through the Court. He examined the witnesses on 20.05.2008, 21.05.2008 and 29.05.2008.
(f) PW16, Doctor, attached to the Madurai Medical College Hospital, conducted postmortem on the dead body of Pownthai on 19.05.2008 at 01.30 p.m. He found the following injuries:
1. An oblique cut injury 15 cms x 3 cms bone deep noted on the back of right side of middle of neck, 8 cms below left ear lobe. On dissection, the wound found cutting the underlying muscles, vessels, nerves and body of C4 cervical vertebra and found cutting the underlying spinal cord partially.
2. An oblique cut injury 13 cms x 3 cms bone deep noted on the back of right side of middle of neck, 1 cm below the injury No. 1.
PW16, Doctor is of the opinion that "the deceased would appear to have died of shock and hemorrhage due to cut injuries to the neck, 20 - 24 hours prior to autopsy." Ex.P16 is the Postmortem Certificate.
(g) PW18, another Inspector of Police took up further investigation. PW18 on receipt of the postmortem certificate, Ex.P16, chemical examination report, Ex.P14, serologist report, Ex.P15 and on completion of the investigation, laid the charge sheet against the accused on 04.03.2009 for the offence under Sections 302 and 506(ii) IPC.
3. The prosecution, in order to bring home the charges against the accused, examined PWs.1 to 18, filed Exs.P1 to P22 and marked MOs.1 to 9.
4. When the accused was questioned u/s 313 of the Code of Criminal Procedure in respect of the incriminating materials appearing against him through the evidence adduced by the prosecution, he has come forward with the version of total denial. He has not chosen to examine any witnesses on his side.
5. Mr. K.Jeganathan, learned Counsel appearing for the appellant, while assailing the impugned judgment of conviction, would contend that the prosecution has miserably failed to prove its case by adducing clear and consistent evidence and put forward the following contentions:
(a) The prosecution heavily placed reliance on the evidence of PWs.1 to 4, who are the eyewitnesses, but all the four eyewitnesses are completely turned hostile and no reliance can be placed on their evidence.
(b) The only piece of evidence available on record, as per the prosecution, is the extra-judicial confession, Ex.P3, said to have been recorded by PW5, Village Administrative Officer and he being the stranger to the accused, the accused could not have reposed confidence to give such extrajudicial confession to PW5 and as such no reliance can be placed on the extrajudicial confession, Ex.P3.
(c) Ex.P3, extra-judicial confession also cannot be stated to be a voluntary confession as the said confession was made only on the next day i.e., on 19.05.2008, whereas the occurrence is said to have been taken place on the previous day i.e., on 18.05.2008. Apart from this, it is highly improbable for the accused to wander in and around the village with bloodstained cloths and thereafter appear before PW5, Village Administrative Officer to give such extra-judicial confession.
(d) The extra-judicial confession, Ex.P3 also contains minute details and it is on the face of it unbelievable and improbable, as the accused could not have given such minute details and it cannot be said to be a voluntary one.
(e) PW5, Village Administrative Officer also admitted that for reaching his office the accused has to pass through the respondent police station and such being the position, the accused could not have gone to the office of PW5 voluntarily to give the extra-judicial confession Ex.P3.
(f) Ex.P3, extra-judicial confession, is said to have been recorded by PW5, Village Administrative Officer in the presence of the Thalayari (Village Assistant), but the prosecution neither examined Thalaiyari (Village Assistant) nor the VAO obtained any attestation from him in Ex.P3.
(g) No reliance can be placed on the alleged recovery of MO.1, aruval said to have been recovered pursuant to the confession of the accused, as the prosecution has not chosen to examine any independent witnesses to speak about the recovery of MO.1, aruval.
6. Per contra, Mr. Samuvel Raj, learned Additional Public Prosecutor would submit that the prosecution has proved its case by adducing clear and cogent evidence. It is contended that though the eyewitnesses PWs.1 to 4 have turned hostile, the prosecution placed reliance on the extra-judicial confession, Ex.P3 recorded by PW5, Village Administrative Officer and as such the said confession is admissible and reliable. It is contended that there is no infirmity or inconsistency in the evidence of PW5 and the said evidence also has not been shattered by the defence during the course of cross-examination.
7. The learned Additional Public Prosecutor would further contend that the case of the prosecution is also corroborated by the recovery of bloodstained cloths from the accused as well as the weapon MO.1. It is pointed out by the learned Additional Public Prosecutor that the blood group viz., ''O'' group found in the cloths of the accused as well as the weapon are tallied with the blood group found in the cloths of the deceased.
8. We have given our careful and anxious consideration to the rival contentions put forward by either side and thoroughly scanned through the entire evidence available on record and also perused the impugned judgment of conviction.
9. The fact remains that the prosecution has heavily placed reliance on the evidence of the eyewitnesses, PWs.1 to 4 and the extra-judicial confession recorded under Ex.P3 by PW5, Village Administrative Officer. However, the eyewitnesses PWs.1 to 4 have given a total go by to their earlier version and they have turned hostile completely. Though it is well settled by a catena of decisions of the Hon''ble Apex Court that the evidence of hostile witness cannot be rejected in toto and any portion, which is either in favour of the prosecution or in favour of the defence, can be placed reliance, as far as the case on hand is concerned, as already pointed out, the evidence of the hostile witnesses viz., PWs.1 to 4 is neither in favour of the prosecution nor in favour of the defence and as such the evidence of such witnesses has to be excluded by this Court from its consideration.
10. It is seen that PW1 is none else than the daughter of the deceased. She has completely turned hostile. PW2 is the maternal uncle of the accused. He has stated that he heard through his brother that the accused cut the deceased and he has not stated any further particulars about the actual occurrence. Such being the position, this Court is of the considered view that his evidence is hearsay and no reliance can be placed on his evidence. PWs.3 & 4 are the neighbours of the accused and both of them turned completely hostile. Therefore, the entire prosecution case is left with the sole and solitary piece of evidence viz., the extra- judicial confession, Ex.P3 said to have been recorded by PW5, Village Administrative Officer.
11. Now let us assess and analyze Ex.P3, extra-judicial confession, said to have been recorded by PW5, Village Administrative Officer. At the outset, it is to be stated that PW5 was not having close acquaintance with the accused. Even as per the case of the prosecution, he being the Village Administrative Officer claimed to have recorded Ex.P3, extra-judicial confession, said to have been given to him by the accused. There is no material available on record to indicate as to how the accused reposed confidence on PW5 to give such an extra-judicial confession. It is also relevant to note that even the said extra-judicial confession is retracted by the accused.
12. At this juncture, it is relevant to refer to a decision of this Court, in respect of such extra-judicial confession, in Ravi @ Ravichandran and Anr. v. State represented by Inspector of Police, Steel Plant Police Station, S alem reported in 2007 (1) L.W. (Crl.) 555, wherein this Court has held as follows;
28. But, in this case, it is found that there is no evidence to show that the Village Administrative Officer was known to A1. Unless a person trusts another, there is no question of unburdening his heart to such a person. Therefore, we straightway reject the untrustworthy testimony of the Village Administrative Officer, PW9 that A1 voluntarily confessed the crime to him.
13. The Hon''ble Apex Court in Jaswant Gir v. State of Punjab, reported in (2005) 12 SCC 438, has held hereunder.
7. The first and foremost aspect which needs to be taken note of is that PW9 is not a person who had intimate relations or friendship with the appellant. PW9 says that he knew the appellant "to some extent" meaning thereby that he had only acquaintance with him. In cross-examination, he stated that he did not visit his house earlier and that he met the appellant once or twice at the bus-stand. There is no earthly reason why he should go to PW9 and confide to him as to what he had done.
14. In yet another decision, the Hon''ble Apex Court in
15. The third contention of Mr. Sodhi viz., that it is highly improbable that Jaspal Singh (A1) would have gone to this witness along with his co-accused to confess the guilt, is equally formidable. Chhota Singh (P.W.7) has not given any reason a s to why and how Jaspal singh (A 1 ) and other co-a c cu sed have reposed such a confidence in him and confes sed their guilt. After going through the evidence of Chhota Singh (P.W.7), we do not find it safe to hold any of the appellants guilty in the present crime.
15. In yet another decision, the Hon''ble Apex Court in
17. It is wholly unlikely that the accused would make extra-judicial confession to a person whom they never knew. It also appears to be wholly improbable that unknown persons would come to seek his help unless he was known to be close to the police officers. His statements, thus, do not even otherwise inspire confidence.
16. The above said principles laid down by the Hon''ble Apex Court as well as this Court in the decisions cited supra are squarely applicable to the facts and circumstances of the instant case, as in this case also there is absolutely no material available on record to show as to how the accused reposed confidence on PW5, Village Administrative Officer to give such an extra-judicial confession, Ex.P3. The prosecution has also miserably failed to produce any materials to show that the accused was having close acquaintance with PW5. On this ground alone, the case of the prosecution is liable to be rejected, as it is not safe to place reliance on extra-judicial confession, Ex.P3 said to have been recorded by PW5.
17. It is also pointed out by the learned Counsel for the appellant that Ex.P3, extra judicial confession contains minute and photographic details about the occurrence and such statements could not have been voluntarily given by the accused viz., the appellant herein. The learned Counsel for the appellant placed reliance on a decision of the Hon''ble Apex Court to contend that such extra-judicial confession containing minute and photographic details could not be placed reliance.
18. The Hon''ble Apex Court in Thangavelu v. State of Tamil Nadu reported in 2002 SCC (Cri) 1382 has held hereunder:
7. At this juncture, we may take note of the prosecution case that the appellant had made an extra judicial confession to PW12, another VAO on the day following the incident. Though the Courts below have not placed any reliance on this confession, we take note of this document for the purpose of appreciating the genuineness of the prosecution case. A perusal of this confession Ex.P14 gives us an indication of the attempt of the prosecution to build a case against this appellant. This extra judicial confession is so full of facts starting from about 25 years prior to the date of the incident and graphically details what happened over these years to his sister and his family which actually is the motive suggested by the prosecution for the crime. Ex.P14 is recorded in nearly 4 full pages, it not only speaks of his motive to kill D1 and D2 but also gives graphic details of the nature of the attack on the deceased and also mentions in detail the persons whom he saw during and after the incident. In a manner of speaking, if this confession is true the appellant had the foresight to guess as to who the prosecution witnesses are going to be and gives an impression, therefore, he was seeking to corroborate their future evidence. In our opinion, this would hardly be the natural conduct of an accused if he was voluntarily making a confession.
19. The principles laid down by the Hon''ble Apex Court in the decision cited supra is also applicable to the case on hand, as in this case also the perusal of Ex.P3, extra-judicial confession reveals that the same contains not only motive, but also other details of the alleged occurrence and it appears that it is highly improbable and unbelievable for the accused to give such a confession voluntarily. It is also pertinent to note, at this juncture, that the contents of Ex.P12, FIR is very much similar to the contents of the extra-judicial confession, Ex.P3 and as such, there is serious doubt about the genuineness of Ex.P3, extra judicial confession.
20. In order to test the credibility of the extra-judicial confession, Ex.P3 recorded by PW5, VAO, we are also of the considered view that certain other infirmities found in the prosecution case cannot be brushed aside. It is pertinent to note that PW5 has categorically stated in his evidence that the accused appeared before him on 19.05.2008 at 10 a.m. while he was with his Village Assistant. But the fact remains that the prosecution neither examined the Village Assistant nor VAO has obtained a signature from him in the extra-judicial confession, Ex.P3 to substitute his version that the accused has voluntarily appeared before them and thereafter given the said extra-judicial confession.
21. It is also relevant to note that the said extra-judicial confession, Ex.P3 itself was recorded only on the next day i.e., on 19.05.2008, whereas the occurrence is said to have taken place on 18.05.2008 and added to such infirmity, as it is claimed by the prosecution that the accused was found with bloodstained cloths, this Court is of the considered view that such version of the prosecution is not only artificial but also improbable as the accused could not have taken the risk of roaming around the village with the bloodstained cloths. Therefore, this Court is of the considered view that the prosecution theory is unbelievable and improbable and even the alleged recovery of M.O.1, aruval and MOs. 4 & 5, bloodstained shirt and dhoti of the accused are also highly doubtful as there is no independent witness to speak about the recoveries.
22. In view of the serious infirmities and inherent improbabilities, as pointed out earlier, this Court has come to the irresistible conclusion that the impugned judgment of conviction is unsustainable in law. The appeal is allowed and the conviction and sentence are set aside. The appellant/accused is directed to be released forthwith unless his presence is required in connection with any other case. Fine amount paid, if any is directed to be refunded to the appellant. Bail bond executed shall stand terminated.
