Madras High Court
Seetharaman, Baskar, Ramesh And M. ... vs State Rep. By The Inspector Of Police on 8 October, 2007
Author: K.N. Basha
Bench: D. Murugesan, K.N. Basha
JUDGMENT K.N. Basha, J.
Page 2419
1. A1 to A4 are the appellants. The appellants/A1 to A3 preferred appeal in Crl.A. No. 934 of 2005 and the appellant/A4 preferred appeal in Crl.A. No. 936 of 2005. The appellants are challenging their conviction and sentence passed by the learned Sessions Judge, Perambalur, in S.C. No. 116 of 2003 by the judgment dated 23.09.2005. A1 to A4 have been convicted under Section 364 I.P.C. and sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs. 2,000/-, in default, to undergo three months rigorous imprisonment, convicted under Section 302 I.P.C. and sentenced to undergo life imprisonment and to pay a fine of Rs. 2,000/-, in default, to undergo three months rigorous imprisonment, convicted under Section 201 I.P.C. and sentenced to undergo five years rigorous imprisonment and to pay a fine of Rs. 2,000/-, in default, to undergo three months rigorous imprisonment and convicted under Section 392 I.P.C. and sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs. 2,000/-, in default, to undergo three months rigorous imprisonment. The learned trial Judge, disbelieving the prosecution case, acquitted A5 and A6 from all the charges.
2. The learned trial Judge framed five charges as hereunder:
(i) Firstly, A1 to A6, being friends and A1 to A5 used to commit theft of vehicles like car, van etc. by committing robbery and they used to sell the vehicle through A6 and in the month of February 2002, A1 to A6 conspired to earn money by committing robbery or dacoity and as such A1 to A6 are liable to be punished under Section 120B I.P.C.
(ii) Secondly, in pursuance of the said conspiracy A1 approached the deceased Ravichandran, a taxi driver, on 21.03.2002 at 2.30 p.m. for hiring Tata Sumo vehicle bearing Registration No. TN 46 F 4777 and by paying an advance amount of Rs. 300/- asked him to come on 22.03.2002 at 10.00 a.m. at Kaikatti and on 22.03.2002 at 10.00 a.m., the deceased brought the Tata Sumo car and A1 got into the car and asked the deceased to proceed to Udaiyarpalayam R.D.O. Office and on the way, A2 and A3 boarded into the vehicle and proceeded to Ayyur village and A4 also boarded into the care at Ayyur village and thereafter, with the intention of committing robbery, they went to Srimushnam and Kumbakonam and ultimately kidnapped the deceased to Ayyur-Kulathur Road Cashew grove and as such A1 to A4 are liable to be punished under Section 364 I.P.C.
(iii) Thirdly, in pursuance of the said transaction A1 to A4 with the intention of killing the deceased, while the Tata Sumo proceeding to the Ayyur-Kulathur Road, A-4 put a cycle chain on the neck of the deceased and pulled him down from the car and while the deceased Page 2420 attempted to escape, A1 beat the deceased on his private part, A2 and A3 assaulted the deceased with their hands and A4 with a towel strangulated the deceased and thereby A1 to A4 are liable to be punished under Section 302 I.P.C.
(iv) Fourthly, in pursuance of the same transaction, A-1 to A-4 in order to screen the offence and occurrence, dragged the body of the deceased from the road to Cashew grove and A4 brought a spade and dug a pit and buried the body of the deceased and as such A1 to A4 liable to be punished under Section 201 I.P.C. and
(v) Fifthly, in pursuance of the same transaction, A1 took the Tata Sumo car bearing Registration No. TN 46 F 4777 to Pappakudi village and left the car with A4 and thereafter A1 and A5 met A6 and received a sum of Rs. 9,000/- as advance from him and left the vehicle with him and A6 in turn sold the said car to one Leo, P.W. 23, for Rs. 1,50,000/- and also received an advance amount of Rs. 50,000/- and as such A1 to A6 committed the offence of dacoity of a car worth about Rs. 4,04,000/- and jewelry worth about Rs. 4,000/- and thereby punishable under Section 396 I.P.C.
3. The prosecution, in order to bring home the charges against the accused, examined P.Ws. 1 to 27, filed Exs.P.1 to P.45 besides marking M.Os.1 to 26.
4. The prosecution case in a nutshell is as follows:
(i) The deceased, Ravichandran, was working as a taxi driver for the Tata Sumo Vehicle bearing Registration No. TN 46 F 4777 which was owned by P.W. 1. Both P.W. 1 and the deceased were residents of Ariyalur. P.W. 2 is the wife of the deceased. On 21.03.2002, the deceased said to have informed P.W. 1 that the vehicle was engaged to go to Srimushnam and Kumbakonam on 22.03.2002 and accordingly, he has taken the vehicle from P.W. 1 on 23.03.2002 at 8.00 a.m.
(ii) P.W. 2, the wife of the deceased, stated that the deceased left their place on 21.03.2002 saying that he would return for lunch but he has not returned.
(iii) P.W. 5, the taxi driver, claimed that A1 came to the taxi stand on 21.03.2002 at 2.00 p.m. and asked for a Tata Sumo vehicle for hire and at that time, the deceased was present and P.W. 5 asked A1 to discuss with the deceased. The deceased, after discussing with A-1, informed him that he accepted to bring the vehicle for Kaikatti on 22.03.2002. The deceased also informed P.W. 5 that he has fixed the hire charges to Rs. 1,600/- and also received a sum of Rs. 300/- as advance. P.W. 5 also stated that P.W. 9 was also present at that time.
(iv) P.W. 9, another taxi driver, also claimed that he was also present along with P.W. 5 during the above said incident of A1 hiring the vehicle Tata Sumo driven by the deceased.
(v) P.W. 4 is the taxi stand President. He was also informed by the deceased that on 21.03.2002 his taxi was hired for going to Srimushnam and Kumbakonam and he fixed the charges to Rs. 1,600/- Page 2421 and also received a sum of Rs. 300/- as advance. P.W. 4 further stated that if any driver of their stand used to stay back during the night hours, it should be informed over the phone and as he has not received any information on 22.03.2002 night as well as on 23.03.2002, he got suspicion and started searching for the deceased.
(vi) P.W. 1, the owner of the vehicle Tata Sumo, stated that as there is no information from the deceased, he went and enquired at the Taxi stand from P.W. 4, President and other taxi drivers. P.W. 2, wife of the deceased and other relatives were also searched for the deceased. They were searching the deceased for three days, but they were not able to trace the deceased. Thereafter, P.W. 1 decided to give a report to the police.
(vii) P.W. 6, who claimed to be the resident of Ayyur village, has stated that he knows A1 and A4 as A1 and A4 belong to his village and A4 is residing nearer to his house. He has stated that on 22.03.2002 at 9.00 p.m., he went to the forest to answer nature's call and at that time, there was a moon light. He saw a Tata sumo car was coming slowly and heard crying of a person and one person got down from the vehicle and ran away and he was chased by another person and the said person kicked him on his chest and pushed him down. At that time, he heard the voice of A2, A3 and A4. He also heard a person asking another person to bring towel from the vehicle and also heard the voice of A4 stating that he would bring the towel. He also heard the voice of four persons saying that they would kill the person lying down. He got frightened and left for his house. At 11.30 p.m., A4 came to him and asked for his TVS 50 two wheeler stating that he has to go to the hospital to take treatment for scorpion bite and accordingly, he gave his vehicle to A4 and A4 returned the vehicle on the next day at 7.00 a.m. to him. Thereafter, as he is having a family of his wife and a child, he left the village itself.
(viii) On 26.03.2002, at 10.30 p.m., P.W. 1 went to Ariyalur Police Station and gave a report, Ex.P.1 to P.W. 26, Sub Inspector of Police. P.W. 26 registered a case in Crime No. 176 of 2002 for the offence under Sections 363 and 379 I.P.C. Ex.P.34 is the Express First Information Report. He examined P.Ws. 1, 4, 5 and 9 and recorded their statements.
(ix) P.W. 27, Inspector of Police, took up investigation on 18.07.2002. On 08.09.2002, he arrested A2 and A4 at Ariyalur bus stand at 5.30 a.m. He recorded the confessional statements of A2 and A4. In pursuance of the admissible portion of the confession of A2 under Ex.P.19, he recovered M.O. 10 scent bottle, M.O. 12 series-two cassettes, M.O. 11, key chain under a mahazar in the presence of witnesses. In pursuance of the admissible portion of A4 under Ex.P.21, he recovered MO.14, cycle chain. He sent a requisition to P.W. 2, wife of the deceased, asking her to come to Cashew grove at Ayyur-Kulathur Road at 10.00 a.m. He sent a requisition to P.W. 12, Tahsildar, stating that the body of the deceased Ravichandran was buried in the Cashew Page 2422 grove at Ayyur-Kulathur Road and the Tashildar has to conduct inquest. At 11.30 a.m., as identified by A-4, he prepared the Rough Sketch, Ex.P.35 and the Observation Mahazar, Ex.P.5 in respect of the scene of occurrence. He also recovered M.O. 8 sample sand from the place of burial of the body of the deceased and M.O. 9, sample sand from the occurrence place.
(x) P.W. 12, the Tahsildar, on receipt of the requisition under Ex.P.10 to conduct inquest, went to the scene of occurrence on 08.09.2002. A2 and A4 identified the burial place. From the burial place, the body was exhumed and the same was identified by P.W. 2, wife of the deceased. He held inquest at 12.00 noon and during inquest he examined some witnesses and recorded their statements. Ex.P.11 is the inquest report.
(xi) P.W. 27, in continuation of his investigation, made arrangements for the post-mortem of the body. The Doctor, P.W. 8 along with another Doctor, P.W. 17, went to the scene of occurrence and found the body which was taken from the pit and thereafter conducted post-mortem. They found the body in a decomposed position. The Doctor, P.W. 8, issued Ex.P.3, Post- Mortem Certificate. The contents of the Post-mortem Certificate is as follow:
The trunk with head and neck was in a state of advanced decomposition. Both forearms skeletanised and both lower limbs mummified;
Except the Lumbosacral vertebrae and pelvic joints, other joints were intact but easily detachable. A twisted long towel was found encircling the neck below the level of thyroid cartilage, running transversely and ends in a single knot in front of the neck. On removing the towel, there was a 3 cm wide impression of the ligature in the soft tissue of the neck completely encircling the neck horizontally. Hyoid bone preserved for examination.
All internal viscera are decomposed and reduced to small masses of brownish black pulpy material.
Skull Bone, Ribs, Long Bones of arms and legs do not show any fracture. Skull and lung bones preserved for identification process.
The Hyoid bone report is Ex.P.4. The Doctor is of the opinion that the deceased would have died due to strangulation from three months to six months prior to the date of autopsy.
(xii) P.W. 27, in continuation of his investigation, on the same day, i.e. on 08.09.2002 at 4.30 p.m., arrested A3 near Kallakurichi temple. The Ariyalur Tahsildar recorded the confession statement from A3 and other accused. M.Os.21 to 23 are video cassettes and recovered the said cassettes under mahazar Ex.P.37. He examined some more witnesses and recorded their statements and sent the materials objects to the Court. He recovered the clothes of the deceased, M.O. 2, pant, M.O. 3, Shirt, M.O. 4, banian, M.O. 5 jatty M.O. 6, kerchief and M.O. 7, towel and sent the same to the Magistrate Court with a requisition to Page 2423 send the same for chemical examination under Exs.P.38 and 39. He took the police custody of A-3 on 13.09.2002. He also arrested A6 and in pursuance of the admissible portion of confession of A6 recovered M.O. 1, Tata Sumo car under Ex.P.25. The Ariyalur Tahsildar also recorded the statement from A6 and for that the video cassette is marked as M.O. 24. On 14.09.2002, he arrested A1 and A5 at V. Kaikatti four road. In pursuance of the admissible portion of confession of A1 under Ex.P.23, he recovered M.O. 15, gold ring and M.O. 16, waist guard. The Ariyalur Tahsildar also examined A1 and A5 and recorded their statements under video cassettes, M.Os.25 and 26 and the same were seized under Ex.P.42. P.W. 27 sent requisition to the District Sessions Judge to nominate a Judicial Magistrate for conducting identification parade in respect of A1.
(xiii) P.W. 11, the Judicial Magistrate, Perambalur, conducted identification parade on 21.09.2002 in respect of identifying A1. P.Ws. 5 and 9, taxi drivers participated in the identification parade. P.W. 5 identified A1 twice and P.W. 9 also similarly identified A1. While the Magistrate questioned the accused, the accused stated to the Magistrate that the witnesses have already seen him in the photographs published in the newspaper as well as in the prison. Ex.P.9 is the identification report.
(xiv) P.W. 27, has sent the car, M.O. 1 seized from P.W. 23 under Ex.P.25 to one auto works, viz., Mustafa Auto Works for repairs on 20.09.2002 and after repair, the vehicle was handed over to P.W. 27 on 26.09.2002 and he recovered the same under Form 95. On 25.09.2002, he examined some more witnesses. He also examined the Doctors, who have conducted post-mortem and after completion of the investigation, filed the charge sheet against the accused on 03.12.2002 for the offence under Sections 120B, 364, 404, 396, 302 and 201 I.P.C.
5. When the accused were questioned under Section 313 of Cr.P.C. in respect of the incriminating materials appearing against each of them, they denied each and every circumstance as false and contrary to the facts and they have stated that they have been falsely implicated in this case and they have not chosen to examine any witness on their side.
6. Mr. K. Gandhi Kumar, learned Counsel for appellants/A1 to A3 contended that the entire prosecution case rests on the circumstantial evidence and the prosecution has miserably failed to put forward clear, cogent and consistent circumstances unerringly pointing to the guilt of the accused. It is submitted by the learned Counsel that the arrest of A2 and A4 and thereafter, discovery of the body of the deceased are not proved by the prosecution beyond reasonable doubt in view of the admission by P.Ws. 4 and 15 to the effect that A2 and A4 have already been secured on 07.09.2002 itself and as such the contention of the prosecution that they have been arrested on 08.09.2002 is false. It is further contended by the learned Counsel that the evidence of P.W. 15, Page 2424 Village Administrative Officer, clearly shows that A2 and A4 have been examined only under the police custody at the police station and his signature was obtained only in the police station and as such, the arrest of A2 and A4 and further discovery of the body of the deceased cannot be believed. It is also submitted that even the contention of the prosecution that A1 was arrested on 14.09.2002, as claimed by P.W. 27 Investigating Officer, is also falsified by the evidence of P.W. 13 to the effect that he has seen A1 on 08.09.2002 itself at the police station and as such the arrest of A1 and further recovery from A1, viz., gold ring, M.O. 15 and waist guard, M.O. 16 could not be believed. The learned Counsel also contended that the test identification parade conducted by the Judicial Magistrate, P.W. 11 is in no way helpful to advance the case of the prosecution as A-1 was seen by P.Ws. 5 and 9 even prior to conducting the identification parade at the police station, soon after the arrest, as per the admission of P.W. 9.
Therefore, it is submitted that the arrest of A1 and his confession and recovery from him viz., M.O. 15, gold ring and M.O.16, waist guard could not be believed. The learned Counsel also submitted that even the evidence of P.W. 6 is unreliable and unbelievable as P.W. 6 claimed that he has identified the voice of A2, A3 and A4. It is pointed out by the learned Counsel that P.W. 6 stated that he knew only A1 and A4 and there is no explanation as to how he identified the voice of other accused, viz., A2 and A3. The conduct of P.W. 6 is also unnatural and abnormal as he has not disclosed about the alleged hearing of voice of A2, A3 and A4 on the date of occurrence and his further version is one person getting down from the vehicle and thereafter, he was chased by another person and he pushed him down and kicked on his chest and thereafter, he heard the noise that he would kill the person who was pushed by him and he has not disclosed the same till his examination by the police on 24.11.2002, i.e., after a period of 8 months. The explanation given by P.W. 6 that he was frightened and left his village with his family is unbelievable. The learned Counsel also contended that the discovery of the body of the deceased at the instance of A2 and A4 is also unbelievable and highly doubtful as A2 and A4 have been arrested on 07.09.2002 itself and further on the same day night itself police gone to the spot, where the body was buried as per the admission of P.W. 4. Lastly, it is contended by the learned Counsel that the prosecution also not proved the recovery of the vehicle Tata Sumo car bearing Registration No. TN 46 F 4777 from PW. 23 as he has turned hostile. It is pointed out that A1 sold the vehicle to A6 and A6, in turn, sold the vehicle to PW.23. But PW.23 has not supported the prosecution case and even the trial Judge disbelieved the prosecution version in respect of A5 and A6 and both of them have been acquitted.
7. Mr. R.Shivakumar, learned Counsel for the appellant/A4 in Crl.A. No. 936 of 2005 re-iterated the submissions made by the learned Counsel for the appellants/A1 to A3. The learned Counsel further submitted that the identification of the body of the deceased is also not proved by acceptable evidence as there is absolutely no identification of dress and other material objects said to have been used by the deceased.
Page 2425
8. Per contra, learned Additional Public Prosecutor submitted that the prosecution has proved its case by adducing clear and consistent evidence. It is submitted by the learned Additional Public Prosecutor that the hiring of the vehicle, Tata Sumo bearing Registration No. TN 46 F 4777 by A-1 has been proved by the prosecution through the evidence of P.Ws. 5 and 9, taxi drivers as P.Ws. 5 and 9 identified A1 as the person who hired the vehicle in the test identification parade as well as before the Court. It is further submitted by the learned Additional Public Prosecutor that the evidence of P.W. 6 does not suffer from any infirmities and he has seen the Tata Sumo near the scene of occurrence and also heard the voices of A2, A3 and A4 and A2 and A3 calling A4 to bring the towel from the vehicle and thereafter, strangulated the deceased. It is submitted that the evidence of P.W. 6 is quite natural and the delay in examining P.W. 6 is not fatal as he has given reasonable explanation as he was frightened and left the village and further P.W. 6 stated that the accused are terrorists. It is submitted that the fact of the murder of the deceased and the discovery of the body at the instance of A2 and A4 also proved through the evidence of P.W. 4, President of the taxi stand and P.W. 12, Tahsildar. The Tahsildar, P.W. 12 stated that P.W. 2, wife of the deceased and P.W. 3, sister of the deceased are identified the body. It is submitted that the admission of P.W. 4 to the effect that the police reached the scene place of the burial of the body of the deceased on 07.09.2002 itself could not be taken against the prosecution as such admission is only due to the ignorance of P.W. 4. The evidence of P.Ws. 8 and 10 is also corroborated the version of the prosecution in respect of the recovery of the body. The minor discrepancy in respect of the date of arrest of A2 and A4 whether on 07.09.2002 or 08.09.2002 not affected the main prosecution case as the body was admittedly recovered as spoken by the independent witness, the Doctor, P.W. 8, who conducted post-mortem and P.W. 12, Tahsildar who held inquest on the dead body of the deceased. The prosecution has also proved the recovery of the vehicle M.O. 1, Tata sumo, through the evidence of P.W. 19 and the Inspector, P.W. 22, who has seized the vehicle and their version is also corroborated by P.W. 24. The learned Additional Public Prosecutor further contended that the prosecution is also proved the arrest of A1 and A5 on 14.09.2002. It is submitted that even if the arrest of A1 is shown to be false, still in view of the other circumstances of the case, A1's involvement in the crime would stand established.
9. We have given our careful and thoughtful consideration to the rival contentions put forward by either side and also thoroughly scrutinized the entire materials available on record.
10. The prosecution, in order to prove its case, adduced evidence in the following manner:
(1) A1 hiring the Tata Sumo vehicle bearing Registration No. TN 46 F 4777 driven by the deceased, Ravichandran.
(2) The evidence of P.W. 6, who has been focussed as eye-witness to the occurrence proper.
Page 2426 (3) Discovery of the body of the deceased in pursuance of the admissible portion of confession of A2 and A4 under Exs. P.19 and 21.
(4) Arrest, confession and recovery from the accused;
11. (I). A1 hiring the vehicle Tata Sumo bearing Registration No. TN 46 F 4777 driven by the deceased, Ravichandran:
The prosecution heavily placed reliance on the evidence of P.Ws. 5 and 9, taxi drivers, to speak about A1 hiring the vehicle Tata Sumo bearing Registration No. TN 46 F 4777 driven by the deceased, Ravichandran on 21.03.2002. Before proceeding to consider the evidence of P.Ws. 5 and 9, it is to be borne in mind that A1 is not known to them earlier. It is claimed by P.W. 5 that on 21.03.2002 at 2.00 p.m., while he was in the Ariyalur taxi stand, A1 came and asked for Tata Sumo vehicle for hire and at that time, the deceased was also present and P.W. 5 asked him to discuss with the deceased. The deceased, after discussing with A1, informed P.W. 5 that the vehicle has been fixed for going to Srimushnam and thereafter, to Kumbakonam on 22.03.2002 and the hire charges was fixed to Rs.1,600/- and a sum of Rs. 300/- was given towards advance. While the deceased was informing as stated above to P.W. 5, P.W. 9 was also said to have been present. P.W. 9 also re- iterated the version of P.W. 5 and both of them stated that the deceased took his vehicle Tata Sumo on 22.03.2002. It is the claim of the prosecution that in the identification parade which was conducted by P.W. 11, Judicial Magistrate, on 21.09.2002, P.W. 5 identified A1 twice and P.W. 9 also identified A1. It is also pertinent to note at this juncture that P.W. 11, the Judicial Magistrate stated in his chief examination that after the identification parade, when he questioned A1, A1 stated to him that P.Ws. 5 and 9 identified him easily as they have seen his photograph in the newspaper as well as in the prison. P.W. 9 categorically admitted in his cross-examination that he has seen the photograph of A1 in the newspaper published in respect of the arrest of A1 and he along with P.W. 4, the President of taxi stand, and P.W. 5 has also seen A1 when A1 was produced before the Ariyalur Magistrate Court after the arrest. The fact remains that A1 has been arrested by P.W. 27, Inspector of Police, on 14.09.2002 and the identification parade was conducted by P.W. 11 only on 21.09.2002. Therefore, it is crystal clear that as per the admission of P.W. 9, both P.Ws. 5 and 9 have already seen the photograph of A1 as published in the newspaper and also seen A1 when he was produced before the Magistrate Court at Ariyalur after his arrest, and as such, we are of the considered view that conducting identification parade is a futile exercise and no value could be attached to the evidence of P.Ws. 5 and 9, who claimed to have identified A1 in the identification parade as well as in the Court. The Hon'ble Apex Court in Budhsen v. State of U.P. has held as follows:
Page 2427
7. ...Keeping in view the purpose of identification parades the Magistrates holding them are expected to take all possible precautions to eliminate any suspicion of unfairness and to reduce the chance of testimonial error. They must, therefore, take intelligent interest in the proceedings, bearing in mind two considerations : (i) that the life and liberty of an accused may depend on their vigilance and caution and (ii) that justice should be done in the identification....
The power to identify, it may be kept in view, varies according to the power of observation and memory of the person identifying and each case depends on its own facts, but there are two factors which seem to be basic importance in the evaluation of identification. The persons required to identify an accused should have had no opportunity of seeing him after the commission of the crime and before identification.
It is also relevant to note that P.W. 4, the President of the taxi stand, stated that they were searching for the deceased and he came to know that some unknown boy has taken the Tata Sumo for hire. It is pertinent to note that A1 is not a small boy and at the time of his examination under Section 313 of Cr.P.C. in the statement his age is mentioned as 29. It is also highly improbable for P.Ws. 5 and 9 to identify A1 after a period of eight months and that too admittedly A1 is not known to them. Therefore, the version of P.W. 4 coupled with the above said improbability raises serious doubt about the veracity of the version of P.Ws. 5 and 9. In view of the above said infirmities, we have no hesitation to hold that the evidence of P.Ws. 5 and 9 are unreliable and untrustworthy and as such, the prosecution miserably failed to establish that A1 hired the Tata Sumo vehicle bearing Registration No. TN 46 F 4777 driven by the deceased.
(II). The evidence of P.W. 6, who has been focussed as eye-witness to the occurrence proper:
The prosecution made an attempt to focus P.W. 6 as an eye-witness in this case to the occurrence proper. P.W. 6 claimed that he is a resident of Ayyur village. A1 and A4 are also belong to his village and A4 is residing nearer to his house and as such he knows both of them. It is the further version of P.W. 6 that on 22.03.2002, he went to the forest to answer nature's call at 9.00 p.m. and in the moon light he has seen a Tata Sumo White car was coming slowly and a person got down from the car raising hue and cry and he was chased by another person and the said person kicked the person, who was running, on his chest and pushed him down and he heard the voice of A2, A3 and A4. It is further claimed by P.W. 6 that he heard the voice of A4 saying that they would kill the person already pushed down by one of them. P.W. 6, ultimately, stated that he was frightened and left for his house and at 11.30 p.m. A4 came to him and asked for his two wheeler TVS Page 2428 50 saying that he has to go to the hospital to take treatment for scorpion bite.
It is pertinent to note that P.W. 6 claimed that he knows only A1 and A4 and as such, it is curious to note that as to how he claimed that he heard the voice of A2 and A3 also, apart from A4. P.W. 6 has not whispered a word about hearing the voice of A1. At the outset, we have to state that the evidence of P.W. 6 is not only artificial but also unacceptable and unreliable. P.W. 6 has categorically admitted in his cross- examination that the scene of occurrence is one kilometer away from his house and it is highly improbable for P.W. 6 to go to such a distance at night hours for answering the nature's call. The conduct of P.W. 6 is also unnatural and abnormal as he has admitted that he has not disclosed about witnessing the occurrence and hearing the voice of A2, A3 and A4 at the scene of occurrence to anyone till he was examined by the police after eight months. P.W. 6 was examined by the police only on 24.11.2002. P.W. 6 claimed that police came in search of him but he has not reported to the police. It is also admitted by P.W. 6 that the person who got down and running from the Tata sumo vehicle was not visible to him. P.W. 27, Investigating Officer, has stated that he came to know through an informant that P.W. 6 is aware about the occurrence and he has admitted that he has not recorded such information in writing. We are of the view that there is absolutely no explanation from the prosecution as to how they have traced P.W. 6. Apart from the above said infirmities, it is also highly improbable for P.W. 6 to recognize the voice of A2, A3 and A4 as admittedly he has not closely associated or having acquaintance with A2, A3 and A4. In view of the said infirmities, we are of the considered view that it is most unsafe and hazardous to place reliance on the evidence of P.W. 6.
III. Discovery of the body of the deceased in pursuance of the admissible portion of confession of A2 and A4 under Exs.P.19 and 21:
The prosecution version is that A2 and A4 have been arrested on 08.09.2002 and thereafter, in pursuance of the admissible portions of the confession of A2 and A4 under Exs.P.19 and 21, the place of burial of the body was found and thereafter, the body was exhumed. It is seen from the evidence of P.W. 4, the President of the taxi stand, that A2 and A4 have been arrested on 07.09.2002 itself. It is the version of P.W. 4 that he was going to the police station daily as he was searching for the deceased. It is stated by P.W. 4 even in his chief examination that he was informed by the police on 07.09.2002 night that they have arrested two persons and thereafter, he was summoned by the police to the place of occurrence, viz., Cashew grove which was in between Ayyur-Kuluthur village and accordingly, he along with P.W. 2, wife of the deceased and P.W. 3, sister of the deceased, P.Ws. 4 and 5, went to that place and at that time he found two accused, A2 and A4, at that place. It is clear that even as per the chief examination of P.W. 4, the police arrested A2 and A4 as Page 2429 early as on 07.09.2002 itself. P.W. 4 further re-iterated in the cross-examination that the police also reached the place of burial of the body of the deceased on 07.09.2002 night itself. Therefore, it is crystal clear that there is no discovery of the place of burial of the body of the deceased at the instance of A2 and A4 as the version of the prosecution is belied by the version of P.W. 4 that A2 and A4 have already been arrested on 07.09.2002 itself and not on 08.09.2002 as claimed by the Investigating Officer, P.W. 27. P.W. 15, the Village Administrative Officer, who has been examined by the prosecution to speak about the arrest of A2 and A4, categorically admitted in his cross-examination that A2 and A4 have been examined by the police only at the lockup in the Police station and he has also signed the recovery mahazar only in the police station. It is also relevant to note that P.W. 27, Investigating Officer, recorded the confession of A2 and A4 at the same time, and in the presence of the Village Administrative Officer, P.W. 15 and the admissible portions of their confession, Exs.P.19 and 21, disclosed that it is mentioned that they would identify the burial place of the body of the deceased. The Hon'ble Supreme Court in Sukhvinder Singh v. State of Punjab has held as follows:
That Section 27 of the Evidence Act is an exception to the general rule that a statement made before the police is not admissible in evidence is not in doubt. However, vide Section 27 of the Evidence Act, only so much of the statement of an accused is admissible in evidence as distinctly leads to the discovery of a fact. Therefore, once the fact has been discovered, Section 27 of the Evidence Act, cannot again be made use of to 'rediscover' the discovered fact. It would be a total misuse - even abuse - of the provisions of Section 27 of the Evidence Act.
The principle laid down by the Hon'ble Apex Court is squarely applicable to the facts of the instant case as in this case also A2 and A4 claimed to have arrested on the same date and at the same time and simultaneously their confessions have been recorded under Section 27 of the Indian Evidence Act and the admissible portion of the the confessions are marked as Exs.P.19 and 21 and as already pointed out, both of them have stated that they would show and identify the burial place of the body of the deceased. As already pointed out, the police reached the place of burial of the body of the deceased on 07.09.2002 as per the evidence of P.W. 4 and P.W. 4 further admitted that he was informed by the police that two persons were arrested on 07.09.2002 and he was visiting the police station daily and he has seen that two persons, viz., A2 and A4 on 07.09.2002 night itself at the place of the burial of the body of the deceased. In view of this categoric statement of P.W. 4, the version Page 2430 of the prosecution that A2 and A4 have been arrested only on 08.09.2002 and thereafter, at their instance, the place of burial of the body of the deceased was discovered is blatantly false.
IV. Arrest, confession and recovery from the accused:
The prosecution placed reliance on the arrest, confession and recovery of M.O. 1, Tata Sumo, made at the instance of A1 and A6. The fact remains that the learned trial Judge disbelieved the prosecution version in respect of A5 and A6 and they have been acquitted. It is pertinent to note that M.O.1, Tata Sumo vehicle is said to have been recovered by P.W. 22 under mahazar, Ex.P.25 on 20.09.2002 from P.W. 23, who alleged to have purchased M.O. 1, Tata Sumo, from A6. But P.W. 23 has given a total go-by to his earlier version and turned hostile and not supported the prosecution case. In view of P.W. 23 turning hostile, there is absolutely no link between A-6 and P.W. 23. The fact remains that A1 to A4 have not given any confession leading to the recovery of M.O. 1, Tata Sumo. The prosecution also not proved clearly as to how P.W. 1, owner of the vehicle-Tata Sumo, identified M.O. 1. P.W. 1 claimed in his chief examination that he has identified the vehicle, M.O. 1 by seeing the engine Number and chasis number from the R.C.Book, but in the cross-examination he has categorically admitted that the chasis number and vehicle number of the Tata Sumo were found to be erased when he went to identify to vehicle at the police station. Therefore, the identification of M.O. 1, Tata Sumo car by P.W. 1 itself is highly doubtful.
As far as A1 is concerned, it is claimed by the prosecution through the evidence of P.W. 27 that he was arrested on 14.09.2002. It is the version of P.W. 27 that in pursuance of the admissible portion of confession of A1, he recovered M.Os.15 and 16, gold ring and waist guard as produced by A1. Neither P.W. 2, wife of the deceased nor P.W. 3, sister of the deceased identified M.O. 15 and M.O. 16 as belong to the deceased. Apart from this infirmity, it is seen from the evidence of P.W. 13 that A1 must have been arrested as early as on 08.09.2002 and not on 14.09.2002. The Tahsildar, P.W. 13, categorically admitted in the chief examination itself that on 08.09.2002 he was summoned by P.W. 27 to record the confession of A1 in video cassette recorder and he has been called to the police station and he found A1 was present in the police station. Therefore, it is crystal clear that A1 was taken into custody by the police as early as on 08.09.2002. As far as A2 and A4 are concerned, we have already disbelieved the prosecution case in respect of their arrest and confession leading to the discovery of the burial place of the body of the deceased. In view of the above said reasons, the version of the prosecution suffers from serious infirmities and inconsistencies in respect of arrest, confession and recovery of A1 to A4.
Page 2431 In a similar case of the accused hiring a taxi of the deceased and thereafter kidnapping and murdering him and the prosecution relied the recoveries made from the accused and the discovery of the body in Hatti Singh v. State of Haryana 2007 AIR SCW 2609, the Hon'ble Supreme Court held that the recovery of articles belonging to deceased at behest of the accused was not free from doubt and the evidence of last seen theory itself, apart from having been proved, cannot be much significance and accordingly, benefit of doubt given to the accused. It is also further held by the Hon'ble Apex Court in the very same decision that presumption under Section 114 of the Indian Evidence Act is limited. The Hon'ble Apex Court has held as follows:
32. ...A presumption may be in respect of commission of theft or receipt of stolen property ; if a person is found to be in possession of the property belonging to the deceased, but on such presumption alone, the appellant could not have been convicted for commission of murder particularly when on the same evidence other persons had been given benefit of doubt.
As far as the instant case is concerned, the prosecution, as it is already pointed out, miserably failed to prove the arrest, confession and recovery and even the recovery of M.O. 1, Tata Sumo itself is highly doubtful. Therefore, the entire prosecution case bristles with suspicious circumstances and as such the inevitable conclusion of this Court would be to allow these appeals preferred by the appellants/A1 to A3 in Crl.A. No. 934 of 2005 and the appellant/A4 in Crl.A. No. 936 of 2005.
12. Accordingly, these appeals are allowed and the conviction and sentence imposed on the appellants/A1 to A4 by the learned Sessions Judge, Perambalur, in S.C. No. 116 of 2003 by the judgment dated 23.09.2005 are set aside.