PAVUNU Vs. STATE

JUDGEMENT

(1.) THIS judgment shall govern these two criminal appeals, namely Criminal Appeal No.125 of 2007 filed by A-3 and Criminal Appeal No.408 of 2007 filed by A-1 and A-2.

(2.) THE appellants three in number stood charged, tried and found guilty by the Additional District and Sessions Division, Fast Track Court, Vellore in S.C.No.183 of 2005 as follows.Table

(3.) ADVANCING arguments on behalf of the appellants, the learned Senior Counsel has made the following submissions:a)The occurrence has taken place, according to the prosecution, on 26.04.2004 between 7.00 p.m. and 8.00 p.m. The prosecution had no direct evidence to offer. But, it relied upon mainly the evidence speaking about the motive. Secondly, extra judicial confession alleged to have been given by A-1 and A-2 to P.W.8, V.A.O. on 07.05.2004 and also the recovery of M.O.4 under a cover of mahazar pursuant to the confessional statement given by A-1. Except this, the prosecution had no evidence to offer. Even though the prosecution made an attempt to prove the case through these circumstances, it has miserably failed to prove its case either, or bring home the guilt of the accused. b)According to the prosecution, the occurrence has taken place on 26.04.2004 between 7.00 and 8.00 p.m. P.Ws.1 and 2 have categorically admitted that on the next morning, they were informed by P.W.4 that a pit was dug and was closed in his brother's land. Immediately, they went over there and opened the pit, but they could not see the body and they found only the bloodstains. Even at that time, the police officials and the V.A.O. were all present. It was also added by P.W.2 that they gave a clear information and it was also recorded by the police and thus, it would be quite clear that the police of the said jurisdiction went over to the place and came to know about the occurrence and have recorded so. If to be so, the first information which was recorded by the police on 27.04.2004 itself has been suppressed in the instant case. c)Secondly, even after seeing the dead body in the railway track, P.W.1 has given the complaint to the railway police, where he has categorically stated that it was the act of one Ramesh, namely A-1, who has committed the murder and threw the dead body in the railway line and thus, in the uncertain terms, an information was given to the police. Further, the case was not converted to Section 302 IPC even after transfer of the case from the Railway police to the regular police for the reasons best known to the police officials. For the first time, the case was altered from Section 174 Cr.P.C. to Section 302 IPC only after the extra judicial confession alleged to have been made by A-1 and A-2 to P.W.8, the V.A.O. and till that time, the case was not altered at all. In the instant case, there was not only suppression of the first information, but also the police were waiting for a period of 7 days even after the cognizable offence was brought to their notice.d)In the instant case, so far as the extra judicial confession alleged to have been made is concerned, it should have been rejected by the trial court for the simple reason that A-1 and A-2 were all along available in the village, but they appeared before the Village Administrative Officer on 07.05.2004. The police neither registered the case for murder nor arrested them, but has kept quiet. There is no reason for A-1 and A-2 to appear suddenly before P.W.8, V.A.O. to confess about the offence on 07.05.2004 and that too after a period of nearly about 10 days. It is not the case that P.W.8, V.A.O. was already acquainted to A-1 and A-2 and there is no reason as to why they should make confession before P.W.8 and thus, that confessional statement has been created in order to shape the case of murder like this. e)Further, in the instant case, M.O.4, which is alleged to have been recovered from A-1 pursuant to the confessional statement, did not contain any blood at all. According to the prosecution, the occurrence has taken place on 26.04.2004 at about 7.00 to 8.00 p.m., but P.W.13, the Doctor, who conducted post-mortem on the dead body of the deceased on 29.04.2004, has categorically stated in his report and also in his evidence that the deceased would appear to have died about 36 hours prior to autopsy. If to be so, it should have been on the night hours of 27.04.2004 or on the morning hours of 28.04.2004 and hence the time of death is also not proved by the prosecution. Under these circumstances, all would cast a doubt and that too in a case of circumstantial evidence, if they are not placed and proved properly and cogently, the trial court should have rejected the case of the prosecution in entirety and hence the appellants are entitled for acquittal in the hands of this court.