Madras High Court
Nagarajan vs State : Inspector Of Police on 25 April, 2019
Author: P. Velmurugan
Bench: P. Velmurugan
Crl.A.No.262 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 17.02.2021
Delivered on : 15.04.2021
CORAM :
THE HONOURABLE MR. JUSTICE P. VELMURUGAN
Crl.A.No.262 of 2019
1.Nagarajan
2.Sivasankar
3.Vijay
4.Vijayakumar ... Appellants
Vs.
State : Inspector of Police,
Erumapatty Police Station,
Namakkal District. ... Respondent
Criminal Appeal filed under Section 374(2) Cr.P.C., praying to
set aside the judgment of conviction and sentence, dated 25.04.2019, in
S.C.No.51 of 2015, on the file of the Principal Sessions Court, Namakkal.
For Appellants : Mr.A.Padmanaban
For Respondent : Mr.R.Suryaprakash
Government Advocate (Crl. Side)
Page 1 of 22
Crl.A.No.262 of 2019
JUDGMENT
This Criminal Appeal is filed against the judgment of conviction and sentence, dated 25.04.2019, passed by the learned Principal Sessions Judge, Namakkal, in S.C.No.51 of 2015.
2.The respondent police registered a case against the appellants in Crime No.70 of 2014 for the offences under Sections 120-B, 302 and 201 r/w.34 IPC. After the investigation, they laid a charge-sheet against the appellants before the Judicial Magistrate Court No.I, Namakkal, for the offences under Sections 302 r/w.120-B, 302 r/w. 34 and 201 r/w. 302 IPC. The learned Magistrate had taken the charge-sheet on file in P.R.C.No.6 of 2015, and after completing the formalities, he committed the case to the Principal Sessions Court, Namakkal, since the offences are triable by a Sessions Judge.
3.The learned Principal Sessions Judge, Namakkal, had taken the case on file in S.C.No.51 of 2015 and after completing the formalities, Page 2 of 22 Crl.A.No.262 of 2019 framed the charges for the offences under Sections 120-B and 201 r/w.302 IPC as against A1 to A4, Sections 307 and 302 IPC as against A1 and A2, Sections 307 r/w. 34 and 302 r/w. 34 IPC as against A3, and Sections 307 r/w. 120-B and 302 r/w. 120-B IPC as against A4.
4.In order to prove the case of the prosecution during trial, on the side of the prosecution, as many as 15 witnesses were examined as P.W.1 to P.W.15 and 55 documents were marked as Exs.P1 to P55, and 5 Material Objects were exhibited as M.O.1 to M.O.5. Three Court Documents were marked as Exs.C1 to C3.
5.After completing the trial and hearing of the arguments advanced on either side, considering the materials, the trial Court convicted and sentenced the accused/appellants as follows :
Accused Provision under Sentence
which convicted
A1 to A4 Section 120-B Rigorous Imprisonment for five
IPC years each and a fine of Rs.2,000/-
each, in default, to undergo Simple
Imprisonment for 15 months each.
A1 and A2 Section 307 IPC Rigorous Imprisonment for five years each and a fine of Rs.2,000/-
each, in default, to undergo Simple Imprisonment for 15 months each.
Page 3 of 22 Crl.A.No.262 of 2019 A3 Section 307 r/w. Rigorous Imprisonment for five 34 IPC years and a fine of Rs.2,000/-, in default, to undergo Simple Imprisonment for 15 months.
A4 Section 307 r/w. Rigorous Imprisonment for five 120-B IPC years and a fine of Rs.2,000/-, in default, to undergo Simple Imprisonment for 15 months.
The sentences shall run concurrently.
6.Challenging the said conviction and sentence passed by the trial Court, all the accused have preferred the present appeal before this Court.
7.The learned counsel appearing for the appellants/accused would submit that there is no eye-witness in this case and no independent witness has been examined to substantiate the motive, and none of the witnesses has spoken about the motive. There is no eye-witness in this case and the conviction is based on circumstantial evidence and none of the witnesses has spoken that the deceased was last seen with the appellants, and all the prosecution witnesses have turned hostile, except P.W.9 (Village Administrative Officer) and P.W.10 (Assistant to Village Administrative Officer), who have also only partly supported the case of the prosecution and they also turned hostile in respect of the remaining Page 4 of 22 Crl.A.No.262 of 2019 accused persons other than A1.
8.The learned counsel appearing for the appellants would submit that the medical evidence has also not corroborated with the confession statement said to have been made by A1. The trial Court convicted the appellants/accused only based on the confession statement made by A1 and the confession statement said to have been given by A1 before the Village Administrative Officer (P.W.9) has not corroborated with the medical evidence, and the prosecution has failed to prove its case beyond reasonable doubt. Though the trial Judge charged the appellants for the offence under Section 302 IPC, which is a major offence, has convicted them only for the offence under Section 307 IPC.
9.The learned counsel appearing for the appellants would submit that there is no material to show that, prior to the occurrence, all the four accused have entered into a conspiracy and they have put a plan to murder the deceased, and therefore, the conviction under Section 120-B IPC is not sustainable. Therefore, in the absence of any corroborative evidence, it is unsafe to convict the appellants, except the extra-judicial confession said Page 5 of 22 Crl.A.No.262 of 2019 to have been made by A1 before the Village Administrative Officer (P.W.9). The Village Administrative Officer (P.W.9) has only admitted a part of the confession, but not supported the remaining portion of the prosecution. Therefore, the benefit of doubt has to be extended to and in favour of the accused/appellants, and therefore, the trial Court wrongly convicted the appellants for the offence under Sections 307 IPC and also 120-B IPC, which warrants interference by this Court.
10.The learned Government Advocate (Crl. Side), appearing on behalf of the respondent, would submit that the motive between the appellants and the deceased has been clearly established and the father of the deceased (P.W.1) has given the complaint, which is marked as Ex.P1. The Village Administrative Officer (P.W.9) and the Assistant to the Village Administrative Officer (P.W.10) of Erumapatti Village have clearly spoken about the extra-judicial confession made by A1, which clearly proves the motive and also the offences committed by the appellants. Since the opinion of the Doctor, who conducted the post- mortem, does not corroborate with the confession statement made by A1, the trial Court rightly acquitted the appellants for the offence under Page 6 of 22 Crl.A.No.262 of 2019 Section 302 IPC, however, A1 has admitted that they made an attempt to murder the deceased, and therefore, the trial Court rightly convicted the appellants and there is no merit in the appeal and the appeal is liable to be dismissed.
11.Heard the learned counsel on either side and perused the materials available on record.
12.The case of the prosecution is that the deceased Vasanthakumar, a relative of A1, was working as a Driver under A1. A2 and A3 were also working as Drivers under A1. A4 is a friend of A1 to A3. While such being the state of affairs, the deceased Vasanthakumar developed illicit intimacy with A1's wife. On coming to know about this, A1 warned the deceased, despite which, the deceased continued his illicit relationship with A1's wife. Therefore, about one week prior to 06.03.2014, at about 06.00 p.m., at Sellipalayam Bus Stop, A1 to A4 hatched into a criminal conspiracy to murder the deceased Vasanthakumar. In pursuance of the above said criminal conspiracy, on 06.03.2014 after 07.00 p.m. and before 10.00 p.m., at Pannakaranpatty Page 7 of 22 Crl.A.No.262 of 2019 Athuvari, located near Erumapatty to Devarayapuram Road, A1 to A3 administered the deceased with brandy mixed with Organophosphorus compound (poison). A3 caught hold of the legs of the deceased Vasanthakumar and A1 and A2 tied a towel around the neck of the deceased and strangulated till the deceased breathed his last. A1 to A3, with the help of A4, took the body of the deceased in TATA ACE and threw the body into a well belonging to one Rajappa.
13.Since the deceased Vasanthakumar did not return to his house, his father (P.W.1) started searching for his son, and on 07.03.2014 at about 09.00 a.m., he received information that his son is lying dead in the well of one Rajappa, and he lodged a complaint before the Erumapatti Police Station and the same was registered as Crime No.70 of 2014.
14.After completing the investigation, the respondent police laid a charge-sheet before the learned Judicial Magistrate Court No.1, Namakkal, in P.R.C.No.6 of 2015, and after completing the formalities, the case was committed to the Court of Session in S.C.No.51 of 2015 and was made over to the Principal Sessions Court, Namakkal, for trial. Page 8 of 22 Crl.A.No.262 of 2019
15.The trial Court framed the charges against the appellants as stated supra. When questioned, the appellants pleaded “not guilty”.
16.In order to prove the case of the prosecution, on the side of the prosecution, 15 witnesses were examined and 55 documents were marked and 5 Material Objects were exhibited. There is no eye-witness in this case. Three Court documents were also marked.
17.After completing the examination of the prosecution witnesses, the incriminating circumstances culled out from the evidence of the prosecution witnesses were put before the appellants and they denied the same as false. On the side of the defence, no oral or documentary evidence was produced.
18.After considering the evidence on record and hearing either side, the trial Court, by judgment dated 25.04.2019, in S.C.No.51 of 2015, convicted the appellants and sentenced them as stated above. Page 9 of 22 Crl.A.No.262 of 2019
19.Challenging the said judgment of conviction and sentence, the appellants have filed the present appeal before this Court.
20.This Court, being an Appellate Court, is a fact finding Court, and it has to give a finding independently after appreciating the entire evidence independently. Accordingly, this Court has re-appreciated the entire evidence.
21.There is no eye-witness in this case. The entire case rests upon the extra-judicial confession said to have been made by A1 before the Village Administrative Officer (P.W.9). The father of the deceased (P.W.1) gave a complaint (Ex.P1) before the respondent police based on the information received from one Rajappa, and based on the complaint given by P.W.1, the respondent police registered a case in Crime No.70 of 2014 and investigated the matter. The complaint (Ex.P1) was given on 07.03.2014.
Page 10 of 22 Crl.A.No.262 of 2019
22.The father of the deceased (P.W.1) has stated in his evidence that on 06.03.2014 at about 02.00 p.m., the deceased went for his work and thereafter, on 07.03.2014 at about 11.00 a.m., he received information from one Rajappa of Nallappanaickenpatty that his son is lying dead along with his TVS-50 vehicle, and thereafter, he went to the police station and gave the written complaint and the complaint is marked as Ex.P1.
23.Though P.W.2 to P.W.8 were examined by the prosecution to prove the motive and other things, they have not supported the case of the prosecution, and they have turned as hostile witnesses.
24.The only prosecution witness in order to support the case of the prosecution is P.W.9, who is the Village Administrative Officer of Erumapatti Village, and he has deposed that, on 08.03.2014, one Venkatachalam (P.W.10), the Assistant to Village Administrative Officer of Erumapatti Village, informed him that one Nagarajan (A1), who belongs to Sellipalayam, came to the office of the Erumapatti Village Administrative Officer and informed about the murder of the deceased; Page 11 of 22 Crl.A.No.262 of 2019 after hearing the same, P.W.9 (Village Administrative Officer) went to the office and he saw A1 in the Erumapatti Village Administrative Office, and he identified A1; A1 had confessed that, on 06.03.2014, he murdered the deceased Vasanthakumar with the help of the other accused A2 to A4 and the confession statement recorded by the Village Administrative Officer (P.W.9) was marked as Ex.P5 and the signature of A1 found in the said confession statement was marked as Ex.P4; he also made a Special Report before the Inspector of Police along with the confession statement recorded by him; The Special Report was marked as Ex.P6.
25.The said Village Assistant, who was examined as P.W.10, has also admitted that he informed to the Village Administrative Officer (P.W.9) and the Village Administrative Officer came to the office of the Erumapatti Village Administrative Officer, and at that time, A1 gave the confession statement; he also signed as a witness, and subsequently, they took A1 to the Police Station and produced him before the Inspector of Police and gave a report.
Page 12 of 22 Crl.A.No.262 of 2019
26.The Doctor, who conducted the post-mortem of the deceased, was examined as P.W.11 and he has given his opinion, which is marked as Ex.P32. As per Ex.P32, the Doctor (P.W.11) has opined that the deceased would have died due to consumption of Organophosphorus poison. Further, he has stated in his evidence that there is a possibility of consumption of Organophosphorus poison mixed in the alcohol.
27.However, the accused have not stated anything that they mixed any poison in the alcohol. When there is no other independent witness in order to establish the motive and none of the witnesses has spoken before the Court that they have seen the deceased along with the appellants soon before the death, this case solely rests upon the confession statement made by A1.
28.Though the Inspector of Police (P.W.12) has stated that all the accused have given the confession statement and subsequently, they made recovery, the Village Administrative Officer (P.W.9) and the Assistant to the Village Administrative Officer (P.W.10) have admitted Page 13 of 22 Crl.A.No.262 of 2019 that A1 gave the confession statement and they have denied that the other accused have given their confession statement in their presence. However, they admitted their signature found in the confession statement of all other accused and the recovery mahazar. However, P.W.9 and P.W.10 have categorically stated that, no confession statement was recorded from A2 to A4 or recovered any Material Object in their presence.
29.It is well settled proposition of law that the evidence of hostile witnesses need not be ignored in total and it can be relied on to the extent to which the witnesses have spoken about incriminating circumstances. Therefore, in the extra-judicial confession statement made by A1 before the Village Administrative Officer (P.W.9), he has clearly stated that the deceased Vasanthakumar had illicit intimacy with his wife, and therefore, A1 committed the murder of Vasanthakumar along with the other accused. P.W.9 (Village Administrative Officer) recorded the confession statement given by A1 and obtained his signature and the signature is marked as Ex.P4. In the confession statement, the Village Administrative Officer (P.W.9) also signed and fixed his official seal. The Page 14 of 22 Crl.A.No.262 of 2019 said confession statement is also marked as Ex.P5. P.W.9 had also taken A1 to the Erumapatti Police Station and produced him before the Inspector of Police, along with the confession statement (Ex.P5) and a Special Report. The Special Report is marked as Ex.P6.
30.Though conviction can be made based on extra-judicial confession, the extra-judicial confession can be accepted and can be a basis of conviction, only if it passes the test of credibility. The extra- judicial confession should inspire confidence and the Court should find out whether there are cogent circumstances on record to support it.
31.In this case, P.W.1 (father of the deceased) has deposed that the deceased was working with A1 and he went for work, and subsequently, he did not return to the house and he received information on the next day that his son was lying dead. The other witnesses have not supported the case of the prosecution, except P.W.9 and P.W.10, who are the Public Officers, viz., Village Administrative Officer and Assistant to Village Administrative Officer respectively. A reading of the evidence of the Village Administrative Officer (P.W.9) and Village Assistant Page 15 of 22 Crl.A.No.262 of 2019 (P.W.10), it can be seen that they have categorically denied that A2 to A4 made a confession statement before the Inspector of Police in their presence, however, they put the signature in the confession statements, but they have not identified A2 to A4, but they have categorically admitted the confession statement given by A1 (Ex.P5) in their presence. Though the conviction can be made based on the confession statement made by the co- accused, in this case, the conviction is purely based on only the confession statement said to have been made by A1. P.W.9 and P.W.10 have deposed that A1 approached them and gave a voluntary confession in the Erumapatti Village Administrative Office itself, in the presence of P.W.9 and P.W.10, and they subsequently took A1 to the Erumapatti Police Station and handed over him to the Inspector of Police, along with the Special Report (Ex.P6) and the confession statement (Ex.P5), in which also, A1 has clearly admitted that the deceased was working with him and he had illicit intimacy with his wife and despite several warnings and advice, he did not hear the same, and even on the date of occurrence, while advising, without giving any response, the deceased called his wife even in front of him over phone and made unwanted conversation with his wife, and therefore, he (A1), with sudden provocation, put a towel on the Page 16 of 22 Crl.A.No.262 of 2019 neck of the deceased and strangulated him with the help of A2, and A3 held the legs of the deceased; when there was no movement in the body, he informed A4. However, the medical opinion of the Doctor is that the death of the deceased was not due to strangulation or breakage of hyoid bone, though he has mentioned about the ligature mark and other things which corroborate the confession statement made by A1, the reason for death as opined by the Doctor is not in consonance with the confession statement. When the confession statement does not reveal anything that they administered poison mixed with alcohol, based on the medical opinion, the appellants were rightly acquitted for the offence under Section 302 IPC, however, rightly convicted under Section 307 IPC. Therefore, the trial Court has rightly not accepted the case of the prosecution for the offence under Section 302 IPC, but based on the medical evidence and the confession statement made by A1 (Ex.P5), the trial Court has rightly convicted the appellants under Section 307 IPC. All the three accused, viz., A1 to A3, jointly participated in the offence, and therefore, the offence under Section 307 IPC as against A1 to A3 is made out, and therefore, A1 and A2 are liable to be convicted under Section 307 IPC and A3 is liable to be convicted under Section 307 r/w. 34 IPC. Page 17 of 22 Crl.A.No.262 of 2019
32.From a careful reading of the confession statement made by A1 (Ex.P5), it is clear that there is no whisper that all the appellants have entered into conspiracy to take away the life of the deceased prior to the occurrence. Therefore, there is no material to show that there was a criminal conspiracy between the appellants to murder the deceased, and therefore, this Court finds that the conviction of the appellants for the offence under Section 120-B IPC is not sustainable.
33.Further, the Village Administrative Officer (P.W.9) has not stated that A4 made a confession before him. P.W.9 and P.W.10 have categorically denied that the other accused made confession statement in their presence, but they only put their signature in the confession statements of other accused. Any confession made before a Police officer is not admissible in evidence and the recovery from A4 is not proved beyond reasonable doubt. P.W.9 and P.W.10 have not supported the confession made by A4 and recovery made before him. Therefore, the confession and recovery of A4 has not been proved substantially. However, at the time of commission of offence, A4 did not participate as Page 18 of 22 Crl.A.No.262 of 2019 per the confession statement of A1, wherein, A1 has stated that the deceased was having illicit intimacy with his wife and on the date of occurrence, when he advised the deceased, he was not ready to hear the same, and in front of him, the deceased called his wife and conversed in an unwanted language, and hence, he put a towel on the neck of the deceased and strangulated with the help of A2 and asked A3 to hold the legs of the deceased and A3 also held the legs of the deceased, till he lost his breath; when there was no movement in the body, he called A4 and only thereafter, A4 came there. Therefore, as per the confession statement of A1, A4 has not participated in the commission of offence. Therefore, the benefit of doubt has to be extended to and in favour of A4 and hence, this Court finds that the conviction of A4 for the offence under Section 307 r/w. 120-B is not sustainable.
34.Accordingly, the conviction and sentence as against A4 for the offence under Section 307 r/w. 120-B IPC is set aside and A4 is acquitted of all the charges against him. The conviction and sentence as against A1 and A2 for the offence under Section 307 IPC and the conviction and sentence as against A3 for the offence under Section 307 Page 19 of 22 Crl.A.No.262 of 2019 r/w. 34 IPC are confirmed. The conviction and sentence as against A1 to A4 for the offence under Section 120-B IPC is set aside and all the appellants are acquitted of the charge under Section 120-B IPC.
35.In the result, this Criminal Appeal is partly allowed with the above modifications.
36.The trial Court is directed to secure A1 to A3 and commit them to prison for sufferance of remaining sentence. The suspension of sentence and bail, granted to A1 to A3, in Crl.M.P.No.6475 of 2019, dated 09.05.2019, shall stand cancelled and the bail bonds, if any, executed by them, shall stand cancelled. Since A4 is acquitted of all the charges, bail bond, if any, executed by A4, shall stand discharged.
15.04.2021 mkn To
1.The Principal Sessions Judge, Namakkal.
Page 20 of 22 Crl.A.No.262 of 2019
2.The Inspector of Police, Erumapatty Police Station, Namakkal District.
3.The Public Prosecutor, High Court, Madras.
4.The Deputy Registrar | with a direction to send back the (Criminal Section), | original records to the trial Court, High Court, Madras. | if any, immediately Page 21 of 22 Crl.A.No.262 of 2019 P. VELMURUGAN, J. mkn Pre-delivery Judgment in Crl.A.No.262 of 2019 15.04.2021 Page 22 of 22