Madras High Court
Kavitha vs The State By on 26 July, 2012
Bench: K.N.Basha, P.Devadass
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.7.2012 CORAM THE HON'BLE MR.JUSTICE K.N.BASHA and THE HON'BLE MR.JUSTICE P.DEVADASS Crl.A.Nos.608 & 643/2010 and 306 & 837/2011 Kavitha .. Appellant in Crl.A.No.608/2010 Muthukumar .. Appellant in Crl.A.No.643/2010 Siva @ Sivachandran .. Appellant in Crl.A.No.837/2011 Murugan Raja .. Appellants in Crl.A.No.306/2011 Versus The State by, The Inspector of Police, Perumanallur Police Station, Coimbatore District. .. Respondent/Complainant in all the Crl. Appeals Prayer in all the Crl.As. :- Criminal Appeals filed under Section 374(2) of Cr.P.C., to set aside the conviction and sentence passed against the appellants in S.C.No.8 of 2010 dated 28.08.2010 by II Additional Sessions Judge (formerly Fast Track Court No.V), Tirupur. For Appellant in Crl.A.No.608/2010 : Mr.N.Manokaran For Appellant in Crl.A.No.643/2010 : Mr.G.Saravanakumar For Appellant in Crl.A.No.837/2011 : Mr.R.Karthikeyan for Mr.K.Govindarajan For Appellant in Crl.A.No.306/2011 : Mr.V.Bharathidasan for Mr.S.Dhanasekaran For Respondent : Mr.V.M.R.Rajendran in all Crl. Appeals Addl. Public Prosecutor - - - - - COMMON JUDGMENT
(Judgment of the Court was made by P.DEVADASS, J.,) THE APPEALS:
Since all these Criminal Appeals arises out of the same Judgment, they were heard together and are being disposed of by this common Judgment.
THE APPELLANTS:
2. In these appeals, A1 to A5, in S.C.No.8 of 2010, VII Additional Sessions Judge, (formerly Fast Track Court No.V), Tirupur are challenging their conviction and sentences.
CONVICITION AND SENTENCES:
3. On 28.8.2010, they were convicted and sentenced as detailed below:
Accused Conviction under Section Sentence imposed Crl.Appeal A1
(i) 120-B IPC
(ii) 364 r/w 109 IPC
(iii) 302 r/w 109 IPC
(i) Life sentence and fine of Rs.1000/-, in default, 6 months Rigorous Imprisonment
(ii) 10 years Rigorous imprisonment and fine of Rs.1,000/-, in default 6 months Rigorous Imprisonment
(iii) Life sentence and fine of Rs.1000/-, in default, 6 months Rigorous Imprisonment C.A.No.608/2010 A2
(i) 120-B IPC
(ii) 364 IPC
(iii) 302 IPC
(i) Life sentence and fine of Rs.1000/-, in default, 6 months Rigorous Imprisonment
(ii) 10 years Rigorous imprisonment and fine of Rs.1,000/-, in default 6 months Rigorous Imprisonment
(iii) Life sentence and fine of Rs.1000/-, in default, 6 months Rigorous Imprisonment C.A.No.837/2011 A3
(i) 120-B IPC
(ii) 364 IPC
(iii) 302 IPC
(i) Life sentence and fine of Rs.1000/-, in default, 6 months Rigorous Imprisonment
(ii) 10 years Rigorous imprisonment and fine of Rs.1,000/-, in default 6 months Rigorous Imprisonment
(iii) Life sentence and fine of Rs.1000/-, in default, 6 months Rigorous Imprisonment C.A.No.643/2010 A4
(i) 120-B IPC
(ii) 364 IPC
(iii) 302 r/w 109 IPC
(i) Life sentence and fine of Rs.1000/-, in default, 6 months Rigorous Imprisonment
(ii) 10 years Rigorous imprisonment and fine of Rs.1,000/-, in default 6 months Rigorous Imprisonment
(iii) Life sentence and fine of Rs.1000/-, in default, 6 months Rigorous Imprisonment C.A.No.306/2011 A5
(i) 120-B IPC
(ii) 364 IPC
(iii) 302 r/w 109 IPC
(i) Life sentence and fine of Rs.1000/-, in default, 6 months Rigorous Imprisonment
(ii) 10 years Rigorous imprisonment and fine of Rs.1,000/-, in default 6 months Rigorous Imprisonment
(iii) Life sentence and fine of Rs.1000/-, in default, 6 months Rigorous Imprisonment C.A.No.306/2011 All the sentences were directed to run concurrently.
PROSECUTION CASE:
4. (i) A1 Kavitha is wife of deceased Selvaraj. P.W.7, Sumathi is his brother's wife. A1's neighbour is A2 Siva @ Sivachandiran. They are residing in Bharathi Nagar 3rd Street, Thottipalayam, Tirupur. They are neighbours. A3 to A5 viz., Muthukumar, Murugan @ Balamurugan and Raja are acquaintance of A2.
(ii) Illegal intimacy developed between A1 and A2. On a day, in his house, the deceased saw them in a compromising position. The deceased attempted to cut A1. He had reprimanded A2. This was witnessed by P.W.7.
(iii) P.W.5, Periyasamy, a neighbour of the deceased, is having his shop in Kongu Main Road, Tirupur. On 23.9.2008, at about 4 p.m., in P.W.5's shop, the deceased took tea and left. Within 10 minutes, A2 came and enquired about the deceased. P.W.5 replied him that he had already left his shop.
(iv) At about 5 p.m., A1 telephoned P.W.1, Palanisamy, their relative that her husband did not return home. P.W.1 went in search of him. Near the Cooliepalayam Railway gate, P.W.1 seen the dead body of the deceased. At a little distance, his dhoti, chappals, Motor Bike were found. At about 7.30 p.m., at the Perumanallur Police Station, P.W.1 gave Ex.P.1, complaint to P.W.14, Manoharan, Head Constable. He registered this case in Cr.No.448 of 2008 under Section 302 IPC. He sent the Express FIR, Ex.P.20, through P.W.15, Ashokan, Constable, to the court and copies to P.W.18, Mohanraj, Inspector and to Superior Officers.
(v) P.W.18 took up his investigation. Visited the scene place. In the presence of P.W.4, Rangasamy and Rajendran, Village Assistants, Neriperichal Village, prepared Ex.P.2, Observation Mahazar. Drew Ex.P.25, rough sketch. Examined P.Ws.1, 2 and 7 and other material witnesses and recorded their statements. Between 10 p.m. and 12 p.m., in the presence of Panchayathars, he conducted inquest over the dead body. Ex.P26 is his inquest report. He sent the dead body through P.W.17 Ramachandran, Head Constable with Ex.P.21 requisition to the Govt. Hospital, Tirupur to conduct post-mortem. From the scene place, P.W.18 recovered M.O.7, blood stained-sand, M.O.8, plain-sand, M.O.1, blood stained-dhoti, M.O.5, pair of chappals and M.O.6, TVS bike.
(vi) On 24.9.2008, at the said Hospital, P.W.16, Dr.Senthilkumar conducted post-mortem on the dead body of Selvaraj and noticed the following injuries:-
(1) Injuries left hand: (a) Cut injury medial aspect left thumb 2 x 1 x 1 cm; (b) cut injury palmar aspect of middle finger 1 x 1 x 0.5 cms (c) cut injury palmar region 2 x 1 x 1 cm.
(2) Injuries right hand: (a) cut injury -palmar region 7 x 0.5 x0.5 cms (b) cut injury palmar aspect thumb 1 x 1 x 1.
(3) Injury over neck : (a) cut injury right side neck below mandible size 7 x 4 x 2 cms deeper upto muscle level (b) cut injury left neck extending from 4 cm below left mandible, left sternomastoid muscle and left external jugular vein left carotid vessel intact 4 cms away from midline on right side size 15 x 7 x 5 cms edges are irregular in shape (c)Partial cut injury over trachea 2 x 1 x 1 cm.
(vii) P.W.16 opined that the deceased would appeared to have died of shock and hemorrhage due to multiple injuries.
(viii) On 27.9.2008, at about 9 am, when P.W.8, Natraj, ward member, Thottipalayam Panchayat was in his office, A2 appeared before him. He confessed his illegal intimacy with A1 and on her advice, on 23.9.2008, at about 5 pm, he had killed the deceased. P.W.8 recorded it. Obtained his signature. He also signed. At the police station, he handed over A2 to P.W.18 along with Ex.P.6.
(ix) In the presence of P.W.13 Arumugam, V.A.O. and his Assistant Rajendran, Neriperichal Village, P.W.18 recorded Ex.P.11, confessional statement of A2. In pursuance of it, from a bush, near Cooliepalayam Railway gate, A2 produced M.O.12 knife and M.O.13 blood stained-shirt. P.W.18 seized them under Mahazar. Then A2 took them to A1's house. P.W.18 arrested A1. She gave him Ex.P.13 confessional statement that she will show him the Pawn Broker's shop where she had pledged her jewel and gave Rs.5,000/- to A2. Accordingly, she took them to 'Sri Lakshmi Finance', in M.S.Nagar, Kongu Main Road, Tirupur. P.W.9 Vellaichamy, produced M.O.11 gold chain and Ex.P.14 pawn ticket. P.W.18 seized them under Mahazar.
(x) Thereafter, P.W.19, Somasundaram, Inspector continued the investigation. A3 and A5 have surrendered before Judicial Magistrate No.I, Tiruppur. On 10.10.2008, P.W.19 took them into his custody. In the presence of P.W.13 and Rajendran, he had recorded their confessional statements Ex.P.15 and Ex.P.16. In pursuance of that, from a place near Cooliepalayam Railway bridge, A3 produced M.O.14, knife. P.W.19 seized it under Mahazar. On 17.10.2008, A4 surrendered before the said court. P.W.19 took him into his custody. In the presence of said witnesses, A4 gave him Ex.P.18, confessional statement. In pursuance of it, he had produced M.O.15 Bajaj Motor Cycle from his house. P.W.19 seized it under mahazar.
(xi) P.W.19 received Ex.P.23 and Ex.P.28 Scientific reports. Concluding his investigation, he filed the Final Report for offences under Section 120-B, 302, 364 and 109 IPC.
CHARGES:
5. As against the accused, the Trial Court framed the following charges:-
Accused Charges A1 120-B , 364 r/w 109, 302 r/w 109 IPC A2 120-B , 364, 302 IPC A3 120-B , 364, 302 IPC A4 120-B , 364, 302 r/w 109 IPC A5 120-B , 364, 302 r/w 109 IPC EVIDENCE:
6. To substantiate the charges, prosecution examined P.Ws.1 to 19, marked Ex.P.1 to Ex.P.28 and exhibited M.Os.1 to 15.
EXAMINATION OF THE ACCUSED:
7. On the incriminating aspects in the prosecution evidence, when the Trial Court examined the accused, they came forward with the version that they have been falsely implicated in this case. A2 retracted Ex.P.6 confession. They did not examine any witness nor file any document.
TRIAL COURT FINDINGS:
8. Analyzing the said evidence, the Trial Court accepted Ex.P6 extra-judicial confession as genuine and voluntary and also accepted other circumstances pressed into service by the prosecution and ultimately found the accused guilty of all the charges and sentenced them as already stated in para 3, supra.
TRIAL COURT FINDINGS ASSAILED:-
9. The sum and substance of the arguments of Mr.N.Manokaran (Crl.A.No.608 of 2010), Mr.G.Saravanan (Crl.A.No.643 of 2010), Mr.R.Karthikeyan (Crl.A.No.837 of 2011) and Mr.V.Bharathidhasan (Crl.A.No.306 of 2011), learned counsel for the appellants are as under:-
(1) None of the circumstances projected by the prosecution has been established. There is no link between the circumstances. They do not form a complete chain implicating the accused with this case.
(2) P.W.7, Sumathi spoken about the motive, namely, illegal intimacy between A1 and A2, for the first time in the court. She did not state it in her previous statement to P.W.18, the Investigation Officer.
(3) Since the deceased and A2 are business partners, there is no unusual about A2 having enquired about A1 from P.W.5.
(4) Statement of P.Ws.5 Periasamy and 7 stated to have been recorded by P.W.18 under Section 161 Cr.P.C. had been submitted to the court nearly after 9 months. It would show that no such statements as stated by P.W.18 were recorded. They are his concoction. P.Ws.5 and 7 are his got up witnesses. They deserve no credence.
(5) A2 has no close acquaintance with P.W.8 Nataraj. There is nothing to show that A2 had reason to repose confidence in him to make extra-judicial confession.
(6) P.Ws.18 and 19, the I.Os since already knew about the involvement of the accused on 23.09.2008 itself, it is highly doubtful that on 27.09.2008 for the first time A2 had appeared before P.W.8 and made the extra-judicial confession.
(7) As regards the extra-judicial confession P.W.8 simply vacillate in his deposition before the court. The extra-judicial confession is not voluntary and genuine. It is a weak piece of evidence. And also there is no corroboration to it.
(8) There is no substantive evidence as against A1, A3 to A5 to use the extra-judicial confession of A2 as against them.
(9) The recovery of weapons, M.O.11 gold chain and Ex.P27 pawn ticket are stage managed. P.Ws.13 and 9 Arumugam and Vellaisamy are the obliging witnesses of the police.
(10) When P.W.18 already knew about the involvement of A1 and A2, A2's subsequent extra-judicial confession to P.W.8 and the subsequent Section 27 of Evidence Act recoveries stated to have been effected through their disclosure statements are all farce.
(11) The main recovery is from A2, which is immediately after the extra-judicial confession. When the extra-judicial confession itself is bristled with many infirmities and inherent improbability the Section 27 of the Evidence Act recovery is also falls to the ground.
(12) On the evidence of prosecution except suspicion nothing has been generated as against the accused.
(13) The charges as against the accused are not established by the prosecution beyond all reasonable doubts. Thus, the findings of the Trial Court is flawed.
TRAIL COURT FINDINGS SUPPORTED:-
10. Mr.V.M.R.Rajendran, learned Additional Public Prosecutor called for upholding the Judgment of the Trial Court and he essayed it as under:-
(1) A2, a business partner as well as neighbour of the deceased belied the confidence, the deceased had reposed in him. A2 eyed on his wife (A1). Both were once got red-handed by the deceased himself. This has been witnessed to by P.W.7 and her mother-in-law Arukkani. These aspects have also find a place in Ex.P6 extra-judicial confession.
(2) The evidence of P.W.7 establishes the motive, which had goaded A2 to kill the deceased with the assistance of hirelings A3 to A5.
(3) Surreptitiously, with evil design, on the occurrence day, just prior to the occurrence, A2 got verified from P.W.5 the whereabout of the deceased, shortly thereafter, the deceased was murdered.
(4) P.W.8 is an important person in the Village. He is residing in the next Street. Since A2 was tormented by his guilty conscience, he had revealed to him his culpability in eliminating the deceased as he was mad after A1 and the deceased has been an hindrance to his affair with her.
(5) Ex.P6 extra-judicial confession has been signed by A2. P.W.8 is neither a friend of the family of the deceased nor a foe of the accused, so that he could implicate the accused. He has no reason or any benefit to make a false declaration in the court that A2 had confide him his killing of the deceased with the assistance of his compeers, namely, A3 to A5.
(6) Based on the voluntary disclosure statement of the accused, the weapon of offence and the motor-bike, which had carried the killers to the killing field have been clearly spoken to by P.Ws.13,18 and 19.
(7) The circumstances are incriminating in nature and have been proved and the proved circumstances cumulatively taken, goes without any missing link, to the only conclusion that the accused are authors of the crime committed. Thus, the Trial Court had rightly found them guilty and sentenced them accordingly.
CONSIDERATION:-
11. We have given our thoughtful consideration to the forceful submissions of both sides. We have carefully scrutinized the entire evidence and the materials on record. We have gleaned through the impugned Judgment and also referred to the several decisions on the point.
DEATH OF SELVARAJ:
12. On 23.9.2008, at about 5 p.m., near the Cooliepalayam Railway gate, Tirupur, the dead body of Selvaraj, husband of A1, was found with multiple cut injuries on his vital organs. The autopsy examination of P.W.16 Dr.Senthilkumar revealed that his death is homicidal (see Ex.P-22 Post-mortem Certificate). Thus, Selvaraj has been murdered.
13. Question is who murdered him. Prosecution version is that on the insistence of A-1, her paramour A-2 and his associates, namely, A3 to A5 have killed him.
CIRCUMSTANTIAL EVIDENCE:-
14. There is no eye witness (direct evidence) to the killing of Selvaraj. However, there are certain circumstances relied on by the prosecution to implicate the accused in the death of Selvaraj. A fact may be proved by witnesses and also by circumstances (indirect evidence). Circumstantial evidence is used to establish the guilt through reasoning. It is a theory supported by significant quantity of corroborating evidence. It is a logical principle of deduction.
15. It would be useful to note down the various requisites/tests propounded by the Hon'ble Apex Court in assessing and accepting circumstantial evidence.
(i) In Hanumant Govind Nargundkar v. State of M.P.(AIR 1952 SCC 343), it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
(ii) In Padala Veera Reddy v. State of A.P. (AIR 1990 SC - 79), it was laid down that when a case rests on circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
(iii) In C.Chenga Reddy v. State of A.P. {(1996 SCC (Cri.) 1205}, it has been observed as under:
"21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
(iv) In STATE OF RAJASTHAN Vs. RAJA RAM (2003) 8 SCC - 180, it is observed as follows:-
"9. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (see Hukam Singh v. State of Rajasthan, Eradu v. State of Hyderabad, Earabhadrappa v. State of Karnataka, State of U.P. v. Sukhbasi, Balwinder Singh v. State of Punjab and Ashok Kumar Chatterjee v. State of M.P.). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
(v) Recently, in SK.YUSUF Vs. STATE OF WEST BENGAL (2011) 3 SCC (Cri) 620, on the aspect of circumstantial evidence, Honourable Apex Court observed as under:-
"32. Undoubtedly, conviction can be based solely on circumstantial evidence. However, the Court must bear in mind while deciding the case involving the commission of serious offence based on circumstantial evidence that the prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence case. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability that the act must have been done by the accused."
(vi) In NAVARASU murder case, [STATE OF TAMIL NADU Vs. JOHN DAVID [2011 (3) CTC 104], the Hon'ble Apex Court laid down the following guidelines in considering the circumstantial evidence.
"19. .......... each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion that could be drawn is the guilt of the Accused and that no other hypothesis against the guilt is possible."
CIRCUMSTANCES:-
16. In this case, to implicate the accused with the death of Selvaraj, the prosecution relies on the following circumstances:-
(i) Motive-Illegal intimacy between A1 and A2.
(ii) Prior to the occurrence, A2 enquired about the deceased with P.W.5.
(iii) Extra-Judicial confession of A2 to P.W.8.
(iv) Section 27 Evidence Act Recovery.
ANALYSIS OF THE CIRCUMSTANCES:-
17. Now, keeping the tests propounded by the Hon'ble Supreme Court to appreciate the circumstances woven to implicate the accused, in our mind let us proceed to see the circumstances projected by the prosecution one by one and see whether they have been proved and whether the proved circumstances cumulatively taken, form a complete chain without any missing link unerringly proceeding towards the only conclusion that the accused are the perpetrators of the killing of Selvaraj excluding any hypothesis of innocence in their favour.
MOTIVE:-
18. In C.B.I. Vs. MAHENDRA SINGH DAHIYA [2011 (3) SCC 109), with regard to the motive in a criminal case, the Hon'ble Apex Court observed as under:-
"29. ....... But in cases based on circumstantial evidence, motive for committing the crime assumes great importance. In such circumstances, absence of motive would put the court on its guard to scrutinise the evidence very closely to ensure that suspicion, emotion or conjecture do not take the place of proof (see Surinder Pal Jain v. Delhi Admn.(1993 SUPP (3) SCC 681: 1993 SCC (Cri) 1096), SCC p. 687, para 11 and Tarseem Kumar v. Delhi Admn, (1994 SUPP (3) SCC 367: 1994 SCC (Cri) 1735)."
19. Motive is irrelevant in a case based on the evidence of eye witnesses. But, it assumes importance in a case based on circumstantial evidence, as it will lend assurance to the quality, reliability and acceptability of the evidence of witnesses examined to prove the circumstances. [see J.Xavier Raj Vs. State by Inspector of Police, Dindugul Taluk Police Station (2012 (1) TLNJ 51 Crl)] [see C.VENKATESH Vs. INSPECTOR OF POLICE, MUNNEERPALLAM POLICE STATION, MUNNEERPALLAM, TIRUNELVELI DIST.(2012 (2) MLJ (Crl) 433)]
20. In the case before us, the motive attributed as against A1 and A2 is this. A2, a business partner of the deceased, wanted also to be partner of his business partner's life partner, namely, A1. The deceased seen A1 and A2 in lewd posture in his bed and went in rage and reprimanded A2 and since the deceased having been an obstacle for their shady relationship, A1 goaded A2 with money to finish her husband.
21. To establish the said motive, prosecution examined P.W.7, Sumathi, who had married Rajendran, the brother of the deceased. She is a neighbour of the deceased. Her evidence is that 10 days prior to the death of the deceased, around 12.30 noon, the deceased came to his house, P.W.7 and her mother-in-law, Arukkani heard loud sound from his house, they went in, seen the deceased shouting at his wife/A1 for she having shared the bed with A2, he also chased her with a bill-hook. P.W.7 and her mother-in-law and their neighbour, P.W.5, Periyasamy caught hold of the deceased. It is also the evidence of P.W.7 that the deceased had also scolded A2 and thereafter, the deceased did not talk to him.
22. In her cross-examination, P.W.7 admits that she did not tell the said matter to P.W.18 Investigation Officer, when she was interrogated by him. In his cross-examination, P.W.18 also confirms this. P.W.5 did not spoke about this aspect in his evidence. Thus, no such statement was given by P.W.7 in her previous statement recorded under Section 161 Cr.P.C. She had stated about the said alleged incident only for the first time in the court.
23. In SUBHASH Vs. STATE OF HARYANA (2011 (2) SCC (Cri) 689), P.Ws.2 and 10 when examined in the court have narrated about some aspects. However, they did not state those aspects when they were examined under Section 161 Cr.P.C.
24. In this context, the Hon'ble Apex Court observed as under:-
"16. We may also refer to the Explanation to Section 162 Cr.P.C. The same is reproduced hereinbelow:
"Explanation. An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact. A bare reading of this Explanation would reveal that if a significant omission is made in the statement of a witness recorded under Section 161 Cr.P.C., the same may amount to a contradiction and that whether it so amounts is a question of fact in each case."
25. In Dr.Sunil kUmar Sambhudayal Gupta and Others. Vs. State of Maharashtra (2010 (13) SCC 657), the Hon'ble Supreme Court held that where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witnesses also make material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence.
26. The above decisions squarely applies to the facts of this case.
27. Section 161(1) Cr.P.C. empowers a Police Officer to examine orally any person, who is acquainted with the facts and circumstances of the case and as per Section 161(3) Cr.P.C. when he reduces it into writing he must make a true record of it. He is duty bound to send those statements to the court with least delay. It is to ensure the genuineness of the statement recorded by him. It is also intended to avoid procuring of false evidence to implicate innocent persons.
28. But, by delayed submissions of these statements to court alone, neither the investigation be flawed nor the testimony of the authors of the statements be dubbed as clouded with mystery unless such delay tells upon the acceptability of the veracity of such witnesses. If a witness speaks about an important aspect in a case, such as motive or reason for committing the crime, when especially the case is based on circumstantial evidence, the statement of such witnesses recorded under Section 161 Cr.P.C. if submitted to the court with least possible delay will ensure fairness in investigation and also will give authenticity to the testimony of the witnesses.
29. Now, in the case before us, since P.W.7 is a witness for the motive attributed, she becomes a key-witness. In this case, her statement has been recorded by P.W.18 on the next day of occurrence, namely, on 24.09.2008. But, her statement was submitted to the court only on 25.06.2009 along with the Final Report. So, according to prosecution, till such time it was tied with the Case Diary. The defence also cross-examined P.W.18 on the belated submission of her statement to court and it was also suggested to him that since she is a subsequent cooked-up witness, her statement has been submitted to the court belatedly.
30. In the facts and circumstances, we cannot dismiss the arguments of the learned counsel for the appellants that no reliance could be placed on the evidence of P.W.7 as devoid of any merit.
31. It is relevant to note that in VARUN CHAUDHARY Vs. STATE OF RAJASTHAN (2012 (1) SCC (Cri.) 616), the Hon'ble Apex Court held that in cases where there is no eye witness the prosecution should establish that there was motive behind the commission of offence.
32. It is also relevant to note that in Babu Vs. State of Kerala (2010(3) SCC (Cri.) 1179), the Hon'ble Apex Court held that in a case based on circumstantial evidence, when motive is not established, it will be a factor in favour of the accused.
33. Now, evaluating the evidence of P.W.7, we have no hesitation to hold that the motive attributed as against the accused for the death of the deceased is not established. Thus, one of the link in the chain of circumstances projected by the prosecution has been disrupted.
ENQUIRING OF A2 WITH P.W.5 ABOUT THE DECEASED:-
34. It is stated that on 23.09.2008, at about 4 p.m., A2 enquired P.W.5 about the deceased. According to the prosecution, it links A2 with the death of the deceased because on the same day at about 5 p.m. near the Cooliepalayam Railway gate, the deceased was found murdered.
35. In a case based on circumstantial evidence, each and every circumstance will not form part of the chain of circumstances woven to link the accused with the case. The circumstances must be an incriminating circumstance, otherwise it will be a mere circumstance having no consequence or significance in the case. It will not form the chain linking the accused with the case.
36. P.W.5 Periyasamy, is also residing in the same Bharathi Street in Tirupur. He is a neighbour of the deceased. The evidence of P.Ws.1 and 2, Palanisamy and Ravi, who are closely related to the deceased discloses that the deceased was in real estate business. The evidence of P.W.7 shows that the deceased and A2 did the real estate business together. Further, A2 and P.W.5 are neighbours of the deceased.
37. P.W.5 runs a motor coil Shop in Kongu Main Road. According to P.W.5, on 23.09.2008, at about 4 p.m., the deceased came to his shop, had tea with him, thereafter, left his shop and after 10 minutes, A2 came, enquired about the deceased and he replied him that he had already left the shop.
38. A1 is the wife of the deceased. P.W.7 is brother's wife of the deceased. Her neighbour is P.W.5. On 23.09.2008, at about 7.30 p.m., P.W.5 came to know about the murder of the deceased. For the whole day, P.W.5 did not tell either P.W.7 or A1 that at about 4 p.m. A2 enquired about the deceased. P.W.2 Ravi, is a brother of the deceased. Though, P.W.2 had stated in his evidence that P.W.5 had told him that on 23.09.2008, at about 4 p.m., in his shop, the deceased took tea along with him, he did not tell that P.W.5 had told him that shortly thereafter A2 came to his shop and enquired about the deceased.
39. P.W.18 examined P.W.5 on 24.09.2008. However, his statement recorded under Section 161 Cr.P.C. has been sent to the court only on 25.06.2009. Whatever we have stated as to the delayed submission of Section 161 Cr.P.C. statement of P.W.7 to the court also applies to such delayed submission of statement of P.W.5 to the court.
40. So far as the evidence of P.W.5 is concerned, there are two aspects. First, since A2 and the deceased are neighbours and business partners there is nothing unusual in A2 having enquired P.W.5 about his business partner. Second, the evaluation of evidence of P.W.5 does not inspire confidence in him. In the circumstances, in the chain of circumstances projected by the prosecution one more link has not been established and it is found disconnected.
A-2's EXTRA-JUDICIAL CONFESSION TO P.W.8:-
41. Extra Judicial Confession is a good piece of circumstantial evidence since it emanates from the accused himself as to the commission of the offence. It acts as an admission under Section 24 of the Evidence Act, 1872. There are certain tests to be satisfied for its acceptance. There are certain decisions on this aspect. It is profitable here to note them.
42. In STATE OF RASASTHAN v. RAJARAM (AIR 2003 SC 3601), while explaining the dimensions of the principles governing the admissibility and evidentiary value of an extra-judicial confession, the Hon'ble Supreme Court observed as under :-
"An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility."
43. In Balwinder Singh v. State of Punjab [1995 Supp. (4) SCC 259], the Hon'ble Supreme Court stated the principle that:
"10. An extra-judicial confession, by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extrajudicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance."
44. In Pakkirisamy v. State of TAMIL NADU[(1997) 8 SCC 158], the Hon'ble Supreme Court held that:
"8. ..... it is well settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession."
45. In Jaspal Singh v. State of Punjab, [1997 (1) SCC 510], the Hon'ble Apex court held that the prosecution has to show as to why and how the accused had reposed confidence on a particular person to give the extra-judicial confession.
46. Again in Kavita v. State of TAMIL NADU[(1998) 6 SCC 108], the Hon'ble Supreme Court stated the dictum that:
"4. There is no doubt that conviction can be based on extrajudicial confession, but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon veracity of the witnesses to whom it is made."
47. In Jaswant Gir v. State of Punjab [2006 (1) SCC (Cri) 579, the Hon'ble Apex Court held as under :
"The first and foremost aspect which needs to be taken note of is, that PW.9 is not a person who had intimate relations or friendship with the appellant. PW.9 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 PW.9 and confide to him as to what he had done."
48. In Sunny Kapoor v. State (UT of Chandigarh) [AIR 2006 SC 2242), it was observed as under :
"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."
49. In Aloke Nath Dutta v. State of W.B. [(2007) 12 SCC 230], the Hon'ble Supreme Court, while holding the placing of reliance on extra-judicial confession by the lower courts in absence of other corroborating material, as unjustified, observed:
"87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; (iii) corroboration.
* * *
89. A detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a confession are required to be verified. If it is not done, no conviction can be based only on the sole basis thereof."
50. In Ravi @ Ravichandran and another v. State, through the Inspector of Police, Steel Plant Police Station, Salem [2007 (1) MLJ (Crl.) 1002], it was observed as under:
"But, in this case, it is found that there is no evidence to show that the Village Administrative Officer was known to A.1. Unless a person trusts another, there is no question of unburdening his heart to such a person. Therefore, we straight away reject the untrustworthy testimony of the Village Administrative Officer, PW.9 that A.1 voluntarily confessed the crime to him."
51. In ARUL RAJA v. STATE OF TAMIL NADU (2010 (8) SCC 233), popularly known as Aladi Aruna murder case, on the aspect of extra-judicial confession, our Hon'ble Apex Court observed as under :-
"The concept of an extra-judicial confession is primarily a judicial creation, and must be used with restraint. Such a confession must be used only in limited circumstances, and should also be corroborated by way of abundant caution. This Court in Ram Singh v. Sonia has held that an extra- judicial confession while in police custody cannot be allowed. Moreover, when there is a case hanging on an extra-judicial confession, corroborated only by circumstantial evidence, then the courts must treat the same with utmost caution. This principle has been affirmed by this Court in Ediga Anamma v. State of A.P AIR 1974 SC 799: (1974) SCC (Cr) 749 and State of Maharashtra v. Kondiba Tukaram Shirke AIR 1977 SC 268: (1976)SCC(Cri) 514."
52. As to the admissibility of extra-judicial confession, the Hon'ble Supreme Court in Sansar Chand v. State of Rajasthan [(2010) 10 SCC 604] held that :-
"29. There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. [Vide Thimma and Thimma Raju v. State of Mysore, Mulk Raj v. State of U.P., Sivakumar v. State (SCC paras 40 and 41 : AIR paras 41 & 42), Shiva Karam Payaswami Tewari v. State of Maharashtra and Mohd. Azad v. State of W.B. [2008 (15) SCC 449 : 2009 (3) SCC (Cri) 1082]
30. In the present case, the extra-judicial confession by Balwan has been referred to in the judgments of the learned Magistrate and the Special Judge, and it has been corroborated by the other material on record. We are satisfied that the confession was voluntary and was not the result of inducement, threat or promise as contemplated by Section 24 of the Evidence Act, 1872."
53. In Sk. Yusuf v. State of W.B. (AIR 2011 SC 2283), on the aspect of extra-judicial confession, the Hon'ble Supreme Court has observed as under :-
"The Court while dealing with a circumstance of extra-judicial confession must keep in mind that it is a very weak type of evidence and requires appreciation with great caution. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witness must be clear, unambiguous and clearly convey that the accused is the perpetrator of the crime. The "extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility". (see State of Rajasthan v. Raja Ram and Kulvinder Singh v. State of Haryana)."
54. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it. [see SK.YUSUF Vs. STATE OF W.B. [2011 (11) SCC 754] and PANCHO Vs STATE OF HARYANA [2011 (10) SCC 165 : 2012 (1) SCC (Cri) 223] .
55. Very recently in SUNIL RAI Vs. UNION TERITORY OF CHANDIGARH [2012 (1) SCC (Cri)], the Hon'ble Apex Court referring to S.ARUL RAJA Vs. STATE OF TAMIL NADU [2010 (3) SCC (Cri) 801] held that the extra-judicial confessional statement made to a person with whom the maker of the confession has no intimate relationship is not a very strong piece of evidence and in any event, it can only be used for corroboration.
56. In NANDA PRADHAN Vs. STATE OF ORISSA [2012 (2) Crimes 530 (Ori.)], a Division Bench of the Orissa High Court held that extra-judicial confession by itself was not clinching evidence and it would be used as a corroborative evidence.
57. In SAHADEVAN Vs. STATE OF TAMILNADU [2012 (6) SCC 403], the Hon'ble Supreme Court observed as under:-
"It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra- judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra- judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration."
58. To consider the veracity of an extra-judicial confession, in SAHADEVAN (supra), the Hon'ble Supreme Court laid down the following guidance:-
i. The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
ii. It should be made voluntarily and should be truthful.
iii. It should inspire confidence.
iv. An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
v. For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
vi. Such statement essentially has to be proved like any other fact and in accordance with law.
59. In the case before us, during his examination under Section 313 Cr.P.C. when A2 was questioned with reference to Ex.P6 extra-judicial confession he had denied it. So, he had retracted it.
60. Dealing with the situation of retraction from the extra-judicial confession made by the accused in RAMESHBHAI CHANDUBHAI RATHOD Vs. STATE OF GUJARAT [2009 (5) SCC 740], the Hon'ble Supreme Court held as under:-
"It appears therefore, that the appellant has retracted his confession. When an extra-judicial confession is retracted by an accused, there is no inflexible rule that the court must invariably accept the retraction. But at the same time it is unsafe for the court to rely on the retracted confession, unless, the court on a consideration of the entire evidence comes to a definite conclusion that the retracted confession is true."
61. Now, keeping the above salutary principles laid down in a long line of judicial decisions to appreciate the veracity of witnesses examined to speak about the extra-judicial confession of the accused, we shall proceed to evaluate the extra-judicial confession pressed into service in this case.
62. In this case, on 23.09.2008, around 5 p.m., the dead body of Selvaraj was found at a lonely place near Cooliepalaym Railway gate near Tirupur. To speak about the extra-judicial confession stated to have been given by A2 P.W.8 Nataraj has been examined.
63. According to P.W.8, on 27.09.2008, at about 9 a.m., when he was in his Office in Thottipalayam, A2 appeared before him, confessed to him that he liked Selvaraju's wife, developed illegal intimacy with her, Selvaraj came to know about it, often Selvaraj quarreled with her, as there is property and insurance money she told him to do way with her husband and thus on 23.09.2008, at about 5 p.m. near the Cooliepalayam Railway gate he had murdered Selvaraj. P.W.8 recorded it, obtained his signature and took him to Permanallur Police Station, at about 11.45 a.m., handed over him to P.W.18 along with Ex.P6, extra-judicial confession.
64. Ex.P6 written in Tamil runs to 5 foolscap pages and one half page. It contains entire prosecution case. It is entire prosecution case in a capsule. It contains entire bio-data of A2, his birth place, family details, how and why he came to Tirupur, his participation in Selvaraju's real estate business, his illegal intimacy with A1, 10 days ago, Selvarj seen A2 sharing bed with his wife, quarrel between both, witnessed to by P.W.7 and others, insistence of A1 to kill her husband, her financial assistance to A2, A2's enlisting of A3 to A5 for the killing operation, carrying out of the assassination, their escapade, hiding of the weapons. It is also stated in Ex.P6 that since A2 had lost peace and there is fear of police harassment, he had confessed to P.W.8.
65. At the end, Ex.P6 extra-judicial confession was signed by A2. After that, it is stated that "vd; Kd;dhy; gjpt[ bra;ag;gl;lJ" (recorded in my presence) and then, P.W.8 signed. Below his signature, his designation has been given as "bjhl;oghisak; Cuhl;rp kd;wj; Jizj; jiyth;" (Vice President, Thottipalaym Panchayat) and it was dated 27.09.2008.
66. In his cross-examination, P.W.8 admits that then he was not the Vice President. He also admits that in the extra-judicial confession, he did not mention that he is Vice-President. He also admits that in the extra-judicial confession handed over to police, he did not describe as Vice-President. He also admits that if in the extra-judicial confession his designation is shown as Vice-President, then it was not written by him.
67. P.W.8 studied upto III Standard. In the Trial Court, when Ex.P6 was shown to him, he said that he could not read it. He also admits that he could not write Ex.P6. We may recall here that Ex.P6 has been written in 5 = pages. In his cross-examination, P.W.8 had also stated that Ex.P6 "xg;g[jy; thf;FK:yk;" (confessional statement) means a report meant for lodging with the police.
68. P.W.8 belongs to the same area. He is residing in another street. Till 27.09.2008, practically, P.W.8 was an utter stranger to A2, who belongs to a Village in Sivaganga District. Before that, there was any connection between A2 and P.W.8. Virtually, till such time, P.W.8 was an utter stranger to A2. In the circumstances, how and why A2 had chosen P.W.8 to make a statement implicating him in a murder charge has been established. No acceptable or plausible reasons or explanation has been given by the prosecution for A2 to repose confidence in P.W.8 and unburden his remorseful conduct and seek solace and protection from him.
69. The occurrence was on 23.09.2008. The extra-judicial confession has been stated to have been given by A2 to P.W.8 on 27.09.2008 i.e. after 4 days of the occurrence. P.W.18 Inspector, the first I.O. of this case, in his cross-examination admitted that on 23.09.2008 itself he knew the involvement of the accused in this case. P.W.18 also admits that even before 27.09.2008, they have decided who are all the accused in this case. P.W.18 also admits that on 23.09.2008 itself he knew about A1. But, he did not arrest her till 27.09.2008. P.W.19, Inspector, who has next investigated the case also in his cross-examination admits that even before the arrest of A2 on 27.09.2008, they knew who are all the real accused involved in this case. Thus, from the above, it is clear that it cannot be said that police came to know about A2 only on 27.09.2008, when he was produced by P.W.8 along with Ex.P6 extra-judicial confession. Thus, the extra-judicial confessional statement allegedly made before P.W.8 suffers from inherent improbability.
70. There is no corroboration for the extra-judicial confession allegedly made by A2 to P.W.8. One more aspect to be seen is that for the first time A1, A3 to A5 were implicated in this case based on the confessional statement of A2 to P.W.8.
71. Now, evaluating the evidence of P.W.8 and scrutinising Ex.P6 extra-judicial confession, it is crystal clear that it is too dangerous to rely on the evidence of P.W.8 and believe his statement that A2 has made him Ex.P6 extra-judicial confession. We have no hesitation to hold that the extra-judicial confession is not voluntary and genuine. Thus, it has not satisfied the twin tests to accept the extra-judicial confession. So, we reject it. So, it must be eschewed from our zone of consideration. Thus, in the chain of circumstances sketched by the prosecution there is one more disconnection.
RECOVERY EVIDENCE:
72. It is stated that in the presence of P.W.13 Arumugam, V.A.O., P.Ws.18 and 19, the Investigation Officers have recorded confessional statement of the accused and based on the information therein the weapons used in the commission of the offence and blood-stained shirt and certain other incriminating items were recovered.
73. In GEEJAGANDA SOMAIAH Vs. STATE OF KARNATAKA [2007 (9) SCC 315], the Hon'ble Supreme Court held as under:-
"21. Section 25 of the Evidence Act mandates that no confession made to a police officer shall be proved as against a person accused of an offence. Similarly Section 26 of the Evidence Act provides that confession by the accused person while in custody of police cannot be proved against him. However, to the aforesaid rule of Sections 25 to 26 of the Evidence Act, there is an exception carved out by Section 27 of the Evidence Act providing that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 27 is a proviso to Sections 25 and 26. Such statements are generally termed as disclosure statements leading to the discovery of facts which are presumably in the exclusive knowledge of the maker. Section 27 appears to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly it can be safely allowed to be given in evidence.
22. As the section is alleged to be frequently misused by the police, the courts are required to be vigilant about its application. The court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in terms of the aforesaid section should be seen with suspicion and it cannot be discarded only on the ground that it was made to a police officer during investigation. The court has to be cautious that no effort is made by the prosecution to make out a statement of the accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 of the Evidence Act."
74. In the case before us, P.W.8 stated that on 27.09.2008, at about 11.45 a.m., he had produced A2 to P.W.18 at the Permanallur Police Station, he had arrested him and in the presence of P.W.13, Arumugam, V.A.O. and his Assistant Rajendran, P.W.18 had recorded his Ex.P11 confessional statement and in pursuance of it from a bush, near the Cooliepalaym Railway gate, A2 had produced him M.O.12 knife and M.O.13, blood-stained shirt, he seized them, thereafter, on the same day, A2 shown him A1, she gave him Ex.P13 confessional statement, took them to a jewelry shop, P.W.9 Vellaisamy, produced her M.O.11 gold chain and Ex.P27 Pawn ticket and P.W.18 seized them. Further, on 10.10.2008, A3 and A5 gave P.W.19 Inspector Exs.P15 and 16 confessional statements. A3 produced him M.O.14 knife. Thereafter, on 17.10.2008, P.W.19 recorded Ex.P18, A4's confessional statement and he produced M.O.15 Bajaj Motorcycle from his house and P.W.19 seized them and the above recoveries were again witnessed to by P.W.13.
75. According to prosecution, the involvement of A1 and A3 to A5 was known to police on 27.09.208 from Ex.P6 extra-judicial confession. But, P.Ws.18 and 19 have admitted that even long before that they knew the involvement of the accused in this case. But, till 27.09.2008, A1 was freely available in her house, she was not arrested and no confessional statement was recorded from her and recoveries were effected through her. The disclosure statements of A2 and A1 and the recoveries all came to light only on 27.09.2008.
76. Ex.P6 extra-judicial confession contains the entire information relating to the weapons used by A2 to A5. So, according to prosecution by 27.09.2008 itself they knew the whereabouts of the weapons alleged to have used by all the accused. Further, on that day, A2 was also in their custody. In such circumstances, recovery of knife on 10.10.2008 based on the confession of A3 and recovery of M.O.15, bike, on 17.10.2008 based on the confession of A4 are highly doubtful.
77. The main recovery is based on the information of A2, it was after he was produced by P.W.8 to P.W.18. It is immediately after Ex.P6 extra-judicial confession. When extra-judicial confession itself goes away, the recovery evidence will also go away.
78. In the facts and circumstances, the recovery evidence pressed into service is stage managed and no reliance can be placed on it. Thus, the last circumstance projected by the prosecution has also gone out.
CONCLUSION:
79. Thus, none of the circumstances projected by the prosecution has been established. They do not form a complete chain linking the accused with the charges framed as against them. The circumstances woven in this case are not connecting, but disconnecting with one another. Excluding the so called circumstances which are totally innocuous or suspicious from our zone of consideration, the charges remain sans evidence.
80. Presumption of one's innocence is his basic human right. (see KAILASH GOUR AND OTHERS Vs. STATE OF ASSAM [2012 (2) SCC 34]. As a necessary corollary prosecution must prove the guilt alleged against a person beyond all reasonable doubts. Suspicion, however strong may not take the place of legal proof.
81. In this connection, it is apposite here to notice the following observations of the Hon'able Supreme Court made in Ashish Batham Vs. State of M.P. [2002 (7) SCC 317].
"Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between 'may be true' and 'must be true' and this basic and golden rule only helps to maintain the vital distinction between 'conjectures' and 'sure conclusions' to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record."
82. The above guiding note were also recently reiterated by the Hon'ble Supreme Court in RETHINAM Vs. STATE OF TAMILNADU AND ANOTHER [2011 (11) SCC 140].
83. In winding up our discussion on the evidence adduced, we are coming to the irresistible conclusion that the prosecution has not proved its case beyond all reasonable doubts. Thus, the findings of the Trial Court are required to be unseated.
NET OUTCOME:
84. The Criminal Appeals are allowed. The appellants are acquitted from all the charges. The conviction recorded and the sentences imposed upon them by the learned II Additional Sessions Judge, (formerly Fast Track Court No.V), Tirupur in S.C.No.8 of 2010 on 28/08/2010 are set aside. The appellants shall be released forthwith, if their further custody is no longer required in connection with any other case. Fine amount, if already paid shall be refunded to them.
rrg/smn/kua To
1.The Principal Sessions Judge, Tirupur.
2.The II Additional Sessions Judge, (formerly Fast Track Court No.V) Tirupur.
3.The Chief Judicial Magistrate, Tirupur.
4.The Judicial Magistrate No.II, Tirupur.
5.The District Collector, Tirupur.
6.The Superintendent of Police, Tirupur.
7.The Superintendent, Central Prison, Coimbatore.
8.The Inspector of Police, Perumanallur Police Station, Tirupur Dist.
9.The Additional Public Prosecutor, High Court, Madras.
10.The Section Officer, Criminal Section, High Court, Madras