Gunasekaran v. State By

Bail Slip The Appellant/Accused Viz. Gunasekaran, S/o. Veerasamy, aged 38 years, hereby directed to be released on bail as per order dated 24.07.2012 made in Crl.MP No.2/2012 in Crl.A.No.2/2012.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 28.01.2016

CORAM

THE HONOURABLE MR.JUSTICE S.NAGAMUTHU AND THE HONOURABLE MR.JUSTICE C.T.SELVAM Criminal Appeal No.2 of 2012 Gunasekaran S/o.Veerasamy ... Appellant/Accused -vsState represented by The Inspector of Police, Karumalai Kudal Police Station, Salem District.

Crime No.100 of 2010 ... Respondent/Complainant Criminal Appeal filed under Section 374 of Criminal Procedure Code against the judgment of learned Additional Sessions Judge, Fast Track Court II, salem, passed in S.C.No.122 of 2011 on 28.11.2011.

For Appellant :

Mr.K.Janarthanan For Respondent :

Mr.V.M.R.Rajentren Additional Public Prosecutor

J U D G M E N T

(Judgment of the Court was made by C.T.SELVAM, J.) This appeal arises against judgment of learned Additional Sessions Judge, Fast Track Court II, Salem, passed in S.C.No.122 of 2011 on 28.11.2011 convicting the appellant for offence u/s.302 IPC and sentencing him to life imprisonment and fine of Rs.1,000/- i/d 1 year R.I.

2. The case of the prosecution is that the deceased was the paternal uncle of the accused. On the intervening night between 26.04.2010 and 27.04.2010, at about 01.00 a.m., while the accused and the deceased were consuming alcohol, a wordy altercation took place, owing to which the accused, with intention to kill the deceased, indiscriminately assaulted him with an axe and caused his death.

3. PW-1, daughter-in-law of the deceased, preferred Ex.P1, complaint on 27.04.2010 at about 09.00 a.m., before PW13, Sub-Inspector of Police, Karumalai Kudal Police Station, who registered a case in Crime No.100 of 2010 for offence u/s.302 IPC. Ex.P13 is the First Information Report. PW-16, Inspector of Police, took up investigation. On 27.04.2010 at about 10.15 a.m., he went to the scene, prepared Ex.P2, observation mahazar and Ex.P16, rough sketch, in the presence of PW-8. PW-16 conducted inquest over the body of the deceased in the presence of panchayatdhars and witnesses at about 11.15 a.m. The inquest report is Ex.P17. After completion of inquest, he forwarded the body to Government Hospital, Mettur, through PW-12, Head Constable, for post-mortem along with Ex.P11, requisition. PW-14, Doctor, conducted post-mortem.

The post-mortem report is Ex.P14 and the same reads thus: "Post-mortem Certificate Regarding the body of a male aged about 70 years, named Chinnakkannan @ Senaikgounder. Requisition received at 3.00 p.m. on 27.04.2010 from the Inspector of Police, K.Koodal PS Crime No.100/10 u/s.302 IPC dated 27.04.2010. Body in charge of Police Constable No.HC 1294 named Thiru. Rajan. Identification and caste marks - A BM over the left side of chest A BM over the left thigh A WS below the left knee.

The body was first seen by the undersigned at 3.20 p.m. on 27.04.2010. Its condition then was RMpresent in all 4 limbs. Postmortem commenced at 3.30 p.m. on 27.04.2010 at GH mortuary Metturdam.

Appearances found at the post-mortem:

Body of male lying on its back; eyes-closed; tonguekept in; teeth - 4+3/6+6; mouth-closed; blood stain + over the face and head and both thigh; sand particle present all over the face; blood stain + in both ears;

External injuries:

1. A 1.5 x 0.5 x 1 cm punctured wound + over the centre of forehead

2. A 5 x 1 cm x bone deep lacerated injury + over the right temperopariatal area, bone exposed

3. A 4 x 3 cm contusion present over the right pariatal region

4. A 4 x 3 cm contusion below the left eye

5. A 10 x 6 cm contusion + over the right side of face

6. A 3 x 1⁄4 cm cut injury + over the right side of neck

7. A 4 x 2 x 2 cm cut injury + over the base of right thumb (web space between in the thumb right index finger)

8. A stab wound 3 x 2 cm present in the middle of the right thigh laceral aspect.

9. A 1.5 x 1⁄2 x 1⁄2 cm cut injury + over the left lower leg.

10.A cut injury size about 4 x 1⁄2 cm present over the left ankle medial mallous 11.A 3 x 2 cm abrasion + in the right cheek.

Internal Examination:

Hyoid bone-intact, ribs-intact, lungs - right wt about 390 gms c/s congested left wt about 350 gms c/s congested; Heart - wt about 260 gms c/s pale, chambers empty; liver - wt about 1400 gms c/s congested; stomach - contains about 500 ml of blackish colour partially undigested food materials +; intestine - empty; kidney - right wt about 100 gms. c/s pale; left wt about 90 gms c/s pale; bladder empty.

Skull: A fracture size about 4 x 1⁄2 x 1⁄2 cm running over the right pariatal bone, EDH and IDH present. Brain wt about 1300 gms c/s pale, brain cavity contain about 30 ml of blood clots.

Opinion:

The deceased would appear to have died about 12 to 18 hours prior to autopsy.

Cause of death:

Death due to shock and haemorrhage due to head injury."

PW-16 recovered MOs.1 to 3, blood stained axe, blood stained earth and sample earth under Ex.P3 and Mos.4 to 6, blood stained lungi, full hand shirt and a blood stained towel under Ex.P4 in the presence of PW-8. Thereafter, he examined PWs.1 to 8 and eight others and recorded their statements. Accused was produced before the Karumalaikudal police station by PW-9, Village Administrative Officer. PW-16, arrested the accused and recorded his confessional statement in the presence of PW9. Accused was forwarded to Government Hospital, Mettur for treatment and thereafter, forwarded to Court for judicial custody. P.W.16 recovered Mos.7 to 10, blood stained trouser, shirt, banian and a towel under Form-95. Thereafter, he

examined witnesses and recorded their statements. He forwarded the seized materials to Court under Form-95 towards sending the same for chemical analysis. He handed over case papers to PW-17 for further investigation. PW-17 examined PW-14, Doctor, who conducted postmortem and recorded his statement. PW-17 examined PW-11, Scientific Assistant and recorded his statement. The biology and serology reports respectively are Exs.P9 and P10. Thereafter, PW-17 examined PWs.10, 12, 13 and 15 and recorded their statements.

Upon completion of investigation, PW-17 filed charge sheet informing commission of offence u/s.302 IPC.

4. To substantiate its case, the prosecution examined, PWs.1 to 17, marked Ex.P1 to P17 and MOs.1 to 10. None were examined on the side of the defence nor were any exhibits marked. On questioning u/s.313 Cr.P.C., the accused denied the charges.

5. On appreciation of evidence, the trial Court found the appellant guilty of offence u/s.302 IPC and sentenced him to life imprisonment and fine of Rs.1,000/- i/d 1 year R.I. Against his conviction and sentence, the appellant is before this Court with this Criminal Appeal.

6. Heard learned counsel on either side and perused the materials on record.

7.This appeal succeeds for the following reasons: (i) The prosecution case of the deceased and accused having been drinking on the night of occurrence and of the accused having caused death of the deceased on such night by causing him the injuries found on the body, finds no support from the postmortem report. The postmortem report Ex.P.14 does not indicate that the deceased had consumed alcohol prior to his death. The postmortem report informs the cause of death as shock and haemorrhage due to head injury, not so much as a chemical analysis report having been called for. (ii) Admittedly, the accused did not know P.W.9 prior to his approaching P.W.9 towards informing his confession in Ex.P.5. P.W.9, a stock witness, admits to having tendered evidence in as many as 300 cases and in about 10 to 15 cases of the respondent police station.

The Apex Court in Siva Kumar v. State (2006) 1 M.L.J. (Crl.) 228, has explained that extrajudicial confession made to a Village Administrative Officer would be admissible in evidence. Therein reference is made to State of Rajasthan v. Raja Ram, (2003) 8 S.C.C.

"19. 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 mount 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 extrajudicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility."

The F.I.R. allegedly has been registered at 9.00 a.m. and the same reached the Court only at 3.10 p.m. It is the suggestion of the accused of the defence that the accused had been arrested even earlier by around 12.00 p.m. That the wording of Ex.P.5, allegedly recorded at 6.00 p.m. on 27.04.2010 is almost the same as that informed in Ex.P.13, F.I.R. is one other reason to suspect the same. All these point to a stage managed prosecution. Though admissible in evidence, the extrajudicial confession made to a Village Administrative Officer should inspire confidence of the Court. In this case, it does not.

(iii) P.Ws.3 and 4 son and nephew of the accused, P.W.5, a relative and P.W.7, a neighbour all of whom have been examined to speak to both the accused and deceased being given to drinking ways, of the deceased having questioned the accused regards him having caused injury to his father, the brother of the deceased and of their having been seen taking a drink on the night of occurrence, have all turned hostile. 8.This Criminal Appeal is allowed. The conviction and sentence imposed on appellant/accused by the trial Court, is set aside. Appellant is acquitted of the charge. Bail bond(s)

executed by him, shall stand cancelled. Fine amount paid by him, shall be refunded.

Sd/- Assistant Registrar(CS-II) //True Copy// Sub Assistant Registrar gm To 1.The Judicial Magistrate No.II, Mettur.

2.The Chief Judicial Magistrate, Salem.

3.The Additional Sessions Judge, Fast Track Court II, Salem.

4.The Superintendent, Central Prison, Coimbatore.

5.The Inspector of Police, Karumalai Kudal Police Station, Salem District.

6.The Public Prosecutor, High Court, Madras.

7.The Principal District Judge, Salem.

8.The Superintendent of Police, Salem.

Criminal Appeal No.2 of 2012 ugi co kra 28.04.2016