Madras High Court
Ramesh vs State Represented By on 2 September, 2021
Criminal Appeal Nos.429, 450 and 544 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.09.2021
CORAM
THE HONOURABLE MR. JUSTICE P.N.PRAKASH
and
THE HONOURABLE MS. JUSTICE R.N.MANJULA
Criminal Appeal Nos.429, 450 and 544 of 2020
Ramesh
S/o.Perumal .. Appellant in Crl.A.No.429/2020
N.Ramesh
S/o.Nataraj .. Appellant in Crl.A.No.450/2020
R.Vimalraj
S/o.Rajendran .. Appellant in Crl.A.No.544/2020
Vs.
State represented by
The Assistant Commissioner of Police,
L&O, North Range,
Salem City.
[Veeranam Police Station
Crime No.251/2014] .. Respondent in all appeals
1/32
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Criminal Appeals filed u/s.374(2) of the Code of Criminal Procedure
against the judgment and order dated 18.09.2020 passed in S.C.No.262 of
2015 on the file of learned Principal Sessions Judge (Special Court of
Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989)
Salem.
For Appellants : Mr.C.Emalias
for Mr.F.Wellington [Crl.A.No.429/2020]
Mr.C.Sivakumar [Crl.A.No.450/2020]
Mr.E.C.Ramesh [Crl.A.No.544 of 2020]
For Respondent : Mr.M.Babu Muthu Meeran
Additional Public Prosecutor [in all appeals]
*****
COMMON JUDGMENT
[Judgment of the Court was delivered by P.N.PRAKASH, J]
As all these appeals arise out of one and the same judgment, they are
considered and decided by this common judgment.
2. These criminal appeals are directed against the judgment and order
of conviction and sentence dated 18.09.2020 passed by the learned Principal
Sessions Judge (Special Judge of Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989), Salem, in S.C.No.262 of 2015.
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3. The prosecution story runs thus:
3.1. Regina (deceased) was married to Ramesh [A1] 12 years prior to
the date of occurrence (date of occurrence being 30.07.2014) and through the
wedlock, they were blessed with two children. After the birth of second child,
Ramesh [A1] deserted Regina and got married to one Malathi. Malathi died
in suspicious circumstances, in connection with which, Ramesh [A1] was
prosecuted for murder, but, he was acquitted in that case. Ramesh [A1], his
mother Mani [PW-1] and his sister Selvi [PW-2] were residing in Sathya
Nagar, North Krishnanputhur village.
3.2. Regina was also residing nearby with her two children. Regina
used to go as a daily wager in construction sites and at the relevant point of
time, she is said to have worked under Balu [PW-6] and Sathish [PW-17].
Though Ramesh [A1] got estranged from Regina, the family members of
Ramesh [A1] were very cordial with Regina.
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3.3. It is alleged that Ramesh [A1] developed intimacy with one
Thangam and wanted to get married to her. This was resented to by Regina,
on account of which, it is alleged that Ramesh [A1] and Thangam had, in a
quarrel, vowed to get rid of Regina. This was projected as the motive for the
offence in this case.
3.4. While so, on 30.07.2014, Ramesh [A1], Ramesh (A2), Vimalraj
(A3), Thangam and Vignesh (juvenile accused) met in a cremation ground
outside the village in the afternoon, consumed liquor and conspired to
liquidate Regina, pursuant to which, they abducted Regina from her work
place in the evening in a Tata Indica car bearing Registration No.TN-55-Z-
5193 [MO-16], murdered her by strangulation and discarded her body on the
railway track between Minnampalli Railway Station and Salem Town
Railway Station.
3.5. The body of Regina was first noticed by Govindan [PW-12], the
Railway Gang Mastry, at 07.30 a.m. on 31.07.2014, who passed on the
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information to Rakeshkumar [PW-32], Assistant Station Master, Minnampalli
Railway Station.
3.6. Inquest over the body of Regina was conducted by the railway
police and the body was sent to the Government Mohan Kumaramangalam
Medical College and Hospital, Salem, where the body of Regina was kept in
the mortuary.
3.7. On a written complaint [Ex.P39] given by Rakeshkumar [PW-32],
Assistant Station Master, which was forwarded by Jayaraman [PW-33],
Assistant Manager, Salem Junction, to the railway police, a case in Salem
Railway P.S.Crime No.524 of 2014 u/s.174 Cr.P.C. was registered on
31.07.2014 at 9.00 hours and the printed First Information Report was
marked as Ex.P40.
3.8. Since Regina did not return home from work, Mani [PW-1], Selvi
[PW-2] and other relatives started searching for her and ultimately, Mani
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[PW-1] gave a written complaint [Ex.P45] on 31.07.2014, based on which,
Angappan [PW-35], Sub-Inspector of Police, registered a case in Veeranam
P.S.Crime No.251/2014 for 'woman missing' at 23.00 hours and prepared the
printed First Information Report [Ex.P46].
3.9. Since the identity of the body was unknown, the railway police
passed on the information to the local police stations and the photograph of
Regina was also given publicity. On seeing that, Selvi [PW-2], sister-in-law of
Regina and sister of Ramesh [A1], along with other family members,
approached the railway police on 03.08.2014 and with their help, she and
other relatives identified the body of Regina at the mortuary.
3.10. Dr.Padmavathi [PW-25] conducted autopsy on the body of
Regina and issued the postmortem certificate [Ex.P32], wherein, she has
noted 15 injuries and has ultimately opined as follows:
'OPINION:- Died of effects of multiple crush injuries with
evidence of compression over the neck.
Time since death: 2 to 3 days prior to autopsy.'
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3.11. Since the postmortem findings disclosed the possibility of
homicide, the railway police altered the case on 03.08.2014 from one u/s.174
Cr.P.C. to one u/s. 174 Cr.P.C. (suspicious death) vide alteration report
Ex.P54.
3.12. It may be relevant to state here that there was decapitation at the
level of the neck and the head portion from the neck region was found
separated from the body portion. Since Dr.Padmavathi [PW-25] observed
evidence of compression over the neck, the case was transferred from the file
of railway police to the file of Inspector of Police, Veeranam Police Station
where the case was re-registered as Crime No.251/2014 for an offence
u/s.302 IPC.
3.13. On the identification of the body of Regina by her relatives, the
investigation of the case was taken over by Nagarajan [PW-39], Inspector of
Police, Veeranam Police Station.
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3.14. Till 04.08.2014, the police were clueless as to who the
perpetrator was. On 05.08.2014, Vimalraj [A3], Thangam and Vignesh
[juvenile accused] surrendered before Govindaraj [PW-7], Village
Administrative Officer and each of them gave separate extra judicial
confessions, which were marked as Ex.P5 [Thangam], Ex.P6 [Vimalraj – A3]
and Ex.P7 [Vignesh – juvenile accused].
3.15. In the confession statements, Vimalraj [A3], Thangam and
Vignesh [juvenile accused] stated that they planned with Ramesh [A1] and
Ramesh [A2] to get rid of Regina as Ramesh [A1] wanted to get married to
Thangam. Pursuant to the conspiracy, they abducted Regina from her work
place in SK Towers in a car, strangulated her and threw the body on the
railway track so as to make it appear as if she had died in a rail accident.
3.16. After recording the extra judicial confessions, Govindaraj [PW-
7], V.A.O., took all three of them and produced them before Nagarajan [PW-
39], Inspector of Police, who formally arrested them and recorded their police
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confessions. Ramesh [A1] was arrested by the police on 11.08.2014 and
based on his confession, the Tata Indica car [MO-16] was recovered under
the cover of a mahazar [Ex.P14] from the residence of Ramesh [PW-13].
Apart from that, the police also recovered a winding wire [MO-15] under the
cover of a mahazar [Ex.P13] based on the disclosure statement of Ramesh
[A1].
3.17. The police arrested Ramesh [A2] on 07.11.2014 and from his
possession, a knife [MO-20] was recovered under the cover of a mahazar
[Ex.P27].
3.18. Since Regina was a Dalit, the investigation of the case was taken
over by Uthayakumaran [PW-40], Assistant Commissioner. The community
certificate showing that Regina was a Dalit and Ramesh [A1] is a non-Dalit
was obtained. The investigation revealed that Ramesh [A2], Vimalraj [A3]
and Vignesh [juvenile accused] are Dalits and Thangam was a non-Dalit.
3.19. It appears that during the course of investigation, Thangam died
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on 19.04.2015. The case against Vignesh [juvenile accused] was spilt up and
his case was sent to the Juvenile Justice Board to be dealt with in accordance
with law.
3.20. After examining various witnesses and collecting the reports of
the experts, Uthayakumaran [PW-40], Assistant Commissioner of Police, filed
a final report in PRC No.16 of 2015 in the Court of the Judicial Magistrate
(Additional Mahila Court) Salem, against Ramesh [A1] for the offences
u/s.120-B, 364, 302 IPC r/w 34, 201 IPC r/w 302 IPC and 3(2)(v), 3(2)(vi) of
the SC/ST (POA) Act and against Ramesh [A2] and Vimalraj [A3] for the
offences u/s.120-B, 364, 302 IPC r/w 34, 201 IPC.
3.21. On appearance of the appellants, the provisions of Section 207
Cr.P.C. were complied with and the case was committed to the Court of
Session in S.C.No.262 of 2015.
3.22. The Sessions Court, which is also the Special Court for trial of
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cases under the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989, framed charges u/s.120-B, 364 and 201 r/w 302 IPC
against Ramesh [A1], Ramesh [A2] and Vimalraj [A3] and an additional
charge u/s.302 r/w 3(2)(v) of the SC/ST (POA) Act was framed against
Ramesh [A1] as he is a non-Dalit and charge u/s.302 r/w 34 IPC was framed
against Ramesh [A2] and Vimalraj [A3]. When questioned, the appellants
pleaded 'not guilty'.
3.23. To prove the case, the prosecution examined 40 witnesses and
marked 65 exhibits and 20 material objects.
3.24. When the appellants were questioned u/s.313 Cr.P.C. on the
incriminating circumstances appearing against them, they denied the same.
3.25. From the side of the accused, one Raja, the brother of Thangam,
was examined as DW-1. Ex.C1, viz., the signature of the father of DW-1 in
the arrest memo of A1, was marked.
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3.26. After considering the evidence on record and hearing either side,
the trial Court, by judgment and order dated 18.09.2020 in S.C.No.262 of
2015, convicted and sentenced the appellants as follows :
Provision under
Accused Sentence
which convicted
A1 Section 120(B) r/w Life imprisonment and fine of Rs.1,000/-,
S.302 IPC r/w in default, to undergo 4 years rigorous
S.3(2)(v) of SC/ST imprisonment.
(POA) Act
Section 364 IPC r/w Life imprisonment and fine of Rs.1,000/-,
S.3(2)(v) of SC /ST in default, to undergo 4 years rigorous
(POA) Act imprisonment.
Section 302 IPC r/w Life imprisonment and fine of Rs.1,000/-,
S.3(2)(v) of SC/ST in default, to undergo 4 years rigorous
(POA) Act imprisonment.
Section 201 r/w S.302 3 years rigorous imprisonment and fine
IPC of Rs.1,000/-, in default, 9 months
rigorous imprisonment.
Section 3(2)(vi) of 3 years rigorous imprisonment and fine
SC/ST (POA) Act of Rs.1,000/-, in default, 9 months
rigorous imprisonment.
A2 Section 120(B) r/w 302 Life imprisonment and fine of Rs.1,000/-,
IPC in default, to undergo 4 years rigorous
imprisonment.
Section 364 IPC 10 years rigorous imprisonment and fine
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Provision under
Accused Sentence
which convicted
of Rs.1,000/-, in default, to undergo 2½
years rigorous imprisonment.
Section 302 r/w 34 IPC Life imprisonment and fine of Rs.1,000/-,
in default, to undergo 4 years rigorous
imprisonment.
Section 201 r/w 302 3 years rigorous imprisonment and fine
IPC of Rs.1,000/-, in default, 9 months
rigorous imprisonment.
A3 Section 120(B) r/w 302 Life imprisonment and fine of Rs.1,000/-,
IPC in default, to undergo 4 years rigorous
imprisonment.
Section 364 IPC 10 years rigorous imprisonment and fine
of Rs.1,000/-, in default, to undergo 2½
years rigorous imprisonment.
Section 302 r/w 34 IPC Life imprisonment and fine of Rs.1,000/-,
in default, to undergo 4 years rigorous
imprisonment.
Section 201 r/w 302 3 years rigorous imprisonment and fine
IPC of Rs.1,000/-, in default, 9 months
rigorous imprisonment.
3.27. Challenging the aforesaid conviction and sentences, the accused
are before this Court in these appeals.
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4. Heard Mr.C.Emalias, learned counsel appearing for the appellant in
Crl.A.No.429/2020, Mr.C.Sivakumar, learned counsel appearing for the
appellant in Crl.A.No.450/2020, Mr.E.C.Ramesh, learned counsel appearing
for the appellant in Crl.A.No.544 of 2020 and Mr.M.Babu Muthu Meeran,
learned Additional Public Prosecutor, appearing for the respondent State.
5. The case of the prosecution mainly rests on the extra judicial
confession of Vimalraj [A3] and circumstantial evidence.
6. With regard to circumstantial evidence, it is profitable to refer to the
following passage from the Constitution Bench judgment of the Supreme
Court in Govinda Reddy and another vs. State of Mysore1:
"In cases where the evidence is of a circumstantial
nature, the circumstances from which the conclusion of guilt is
to be drawn would 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
1 AIR 1960 SC 29
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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."
7. In the context of circumstantial evidence, it is also useful to refer to
the following five classic rules reiterated in Shaik Mustan Vali vs. State of
Andhra Pradesh2:
"(1) the circumstances from which the conclusion of guilt
is to be drawn should be fully established. The circumstances
concerned must or should and not may be established;
(2) the facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say, they
should not be explainable on any other hypothesis except that
the accused is guilty;
(3) the circumstances should be of a conclusive nature
and tendency;
(4) they should exclude every possible hypothesis except
the one to be proved; and
2 (2007) 9 SCC 342
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(5) 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 the act must have been done by the
accused."
8. Bearing in mind the principle enunciated by the Constitution Bench
of the Supreme Court in the judgment referred to supra, we propose to deal
with each of the circumstances in this case.
9. At the outset, the learned counsel for the defence stated that they are
not disputing the identity of Regina, but it is their contention that Regina
committed suicide or inter alia even if this Court comes to the conclusion that
the death of Regina was a homicide, the appellants herein were not
responsible for it. Thus, the discovery of the body of Regina from the railway
track and its subsequent identification by the relatives of Regina are not in
dispute in this case.
10. The prosecution relies upon the following circumstances:
(i) the testimonies of Selvi [PW-2]/sister of Ramesh [A1] and Kumaran [PW-
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5]/husband of Selvi [PW-2], who have spoken about the motive.
(ii) the testimonies of Balu [PW-6] and Sathish [PW-17], who have stated that
Regina told them that she is going with her husband and left the work
place.
(iii)the testimony of Madhu [PW-11], who is said to have overheard the
accused conspiring (between 4.30 and 5.00 p.m. on 30.05.2014) in the
Pallipattu cremation ground for eliminating Regina.
(iv)the testimony of Govindharaj [PW-19], who is said to have seen Regina
getting into the car, in which the accused were there, at the Minnampalli
railway gate at 06.30 p.m. on 30.07.2014.
(v) the testimonies of Ponnusamy [PW-16] and Abubakkar [PW-18], who had
seen Regina in the company of the accused in a tea shop at 07.45 p.m. on
30.07.2014.
(vi)the extra judicial confession [Ex.P6] of Vimalraj [A3].
(vii)recovery of the Tata Indica car on the confession of Ramesh [A1].
11. At the outset, Mr.C.Emalias, learned counsel appearing for Ramesh
[A1], took us through the evidence of Dr.Padmavathi [PW-25], who
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conducted postmortem and submitted that she conducted the postmortem on
03.08.2014 and in the cross-examination, she has clearly admitted that it will
not be possible to find out if the compression around the neck was by hands
or by rope when postmortem is done two days later; she has also admitted in
the cross-examination that the injuries found on the body of Regina could
occur even on account of passing of trains over the body of Regina.
12. We have carefully examined the evidence of Dr.Padmavathi [PW-
25]. Admittedly, the occurrence was between the night of 30.07.2014 and
daybreak of 31.07.2014 and the postmortem was conducted only on
03.08.2014. A specific questionnaire [Ex.P31] has been given to
Dr.Padmavathi [PW-25] to state as to whether she had observed any ante-
mortem injuries, for which Dr.Padmavathi [PW-25] has not given any reply.
Based on the contusion found on the decapitated neck, Dr.Padmavathi [PW-
25] has opined that there was compression in the neck. In the absence of any
categorical evidence as to the existence of ante-mortem injuries on the body
of Regina, we are unable to persuade ourselves to rely on the contusion alone
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to come to a conclusion that there was strangulation, especially, in the light of
the answers given by Dr.Padmavathi [PW-25] in the cross-examination,
which we have alluded to above.
13. Now, let us discuss the circumstances enumerated above:
13.1. Circumstance No.(i) : the testimonies of Selvi [PW-2]/sister of
Ramesh [A1] and Kumaran [PW-5]/husband of Selvi [PW-2], who have
spoken about the motive.
13.1.1. The testimonies of Selvi [PW-2] and Kumaran [PW-5] are to
the effect that Ramesh [A1] got estranged from his wife Regina, got married
to Malathi, who died in suspicious circumstances, for which Ramesh [A1]
was prosecuted, but, eventually acquitted; Ramesh [A1] had developed
intimacy with Thangam and wanted to marry her, due to which, there were
misunderstandings between Ramesh [A1] and Regina; Selvi [PW-2] was
warning Regina not to get once again attached to Ramesh [A1], but Regina
refused to heed to her advice; on 30.07.2014, Regina went for work, called
Selvi [PW-2] at 6.30 p.m. over phone and told her that she is going with her
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husband Ramesh [A1] for shopping by car; since Regina did not return home
in the night, her daughter Swathi [PW-4] called Regina over phone and at that
time, Regina told her that she is in a textile shop; after that, Regina did not
return home and they all searched for her the next day; on 31.07.2014, Selvi
[PW-2], went along with her mother Mani [PW-1] and gave a written
complaint [Ex.P45], based on which, the police registered a 'woman missing'
First Information Report in Crime No.251 of 2014 vide Ex.P46.
13.1.2. A reading of the complaint [Ex.P45] does not show that Regina
told Selvi [PW-2] that she is going with her husband for shopping. It merely
states that, when contacted, Regina told them that she is in a shop for
purchasing dress for her daughter. Had Regina informed Selvi [PW-2] that
she is going for shopping with her husband, the needle of suspicion would
have pointed to Ramesh [A1] at the very inception. As stated above, none
suspected the involvement of Ramesh [A1] till 05.08.2014 when Thangam,
Vimalraj [A3] and Vignesh [juvenile accused] surrendered before Govindaraj
[PW-7], V.A.O. and gave their confession. Therefore, we are unable to place
much credence on the testimonies of Selvi [PW-2] and Kumaran [PW-5] that
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Regina told them that she was going for shopping with her husband.
13.2. Circumstance No.(ii) : the testimonies of Balu [PW-6] and
Sathish [PW-17], who have stated that Regina told them that she is going
with her husband and left the work place.
13.2.1. On the same grounds [circumstance No.(i)], we are unable to
place much reliance on the testimonies of Balu [PW-6] and Sathish [PW-17]
under whom Regina was working on the fateful day. Assuming for a moment
that Regina did tell these four witnesses that she was going for shopping with
her husband, that, by itself, would not prove the fact that she had indeed gone
for shopping with her husband [Ramesh (A1)].
13.3. Circumstance No.(iii) : the testimony of Madhu [PW-11], who is
said to have overheard the accused conspiring (between 4.30 and 5.00 p.m.
on 30.05.2014) in the Pallipattu cremation ground for eliminating Regina.
13.3.1. The testimony of Madhu [PW-11] is to the effect that on
30.05.2014, between 4.30 and 05.00 p.m., while he was passing through the
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Pallipattu cremation ground, he saw and heard Ramesh [A1] and four others
including a lady talking to themselves for eliminating Regina; he heard some
sound at a distance of 25 feet away and out of curiosity, he went there and
heard their conversations.
13.3.2. A reading of the testimony of Madhu [PW-11] sounds
unbelievable inasmuch as seldom would conspiracy be entered into publicly
by loud conversations. The very essence of conspiracy is secrecy. It may be
pertinent to state here that both in the chief-examination as well in cross-
examination, this witness has stated that he overheard the conversation on
30.05.2014 when actually the prosecution case was that the accident had
taken place on 30.07.2014. Hence, we are unable to place much reliance on
his evidence to infer that the accused had entered into conspiracy in the
cemetery to the hearing of others for eliminating Regina.
13.4. Circumstance No.(iv): the testimonies of Govindharaj [PW-19],
who is said to have seen Regina getting into the car, in which the accused
were there, at the Minnampalli railway gate at 06.30 p.m. on 30.07.2014.
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13.4.1. Govindharaj [PW-19], in his evidence, has stated that on
30.07.2014 around 06.30 p.m., while he was near a railway gate, he saw a
lady getting into a Tata Indica car, in which three persons were seated;
thereafter, he saw in the newspaper the photo of the body of the lady on
06.08.2017, based on which he connected the dots and went on his own to
the police station and gave a statement. However, in the witness box, he has
stated that he does not remember whether the persons standing in the dock
were the occupants of the car. It was not the case of this witness that he knew
the accused earlier. The police have not conducted any Test Identification
Parade for this witness to identify whether the accused were the three
persons, who were the occupants of the car. Thus, in the absence of conduct
of Test Identification Parade as well in the light of the failure of Madhu [PW-
11] to identify the accused in the dock, his evidence would be of no avail to
the prosecution.
13.5. Circumstance No.(v) : the testimonies of Ponnusamy [PW-16]
and Abubakkar [PW-18], who had seen Regina in the company of the
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accused in a tea shop at 07.45 p.m. on 30.07.2014.
13.5.1. Coming to the testimonies of Ponnusamy [PW-16] and
Abubakkar [PW-18], it is seen that Ponnusamy [PW-16] turned hostile and
did not support the prosecution case.
13.5.2. Abubakkar [PW-18], in his evidence, has stated that on
30.07.2014 while he and Ponnusamy [PW-16] were drinking tea in a tea shop
in Ayodiyapattinam around 07.45 p.m., a grey colour Tata Indica car came to
the tea shop from which four persons (one female and three males) got down,
had tea and left. He identified the three accused in the dock as the persons,
who came in the car. In the chief-examination itself, he has stated that while
he was in the tea shop, the same persons returned around 9'o clock on
30.07.2014 and at that time, the lady, who was earlier with them, was not
there; two days later, he saw in the newspaper a news item relating to this
case and went to the police station on 06.08.2014 along with Ponnusamy
[PW-16] and gave a statement. It is not the case of this witness that the
accused were earlier known to him. It is his case that he saw them coming to
the tea shop in the evening around 07.45 p.m. No Test Identification Parade
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was conducted qua this witness for identifying the accused. What perplexes
us is that how he witnessed the accused returning to the same tea shop at 9'o
clock without the lady. Yet another noteworthy feature is that this witness,
who came as a customer to drink tea, appears to have remained in the tea
shop for over two hours though he was a tailor by profession and his house
was nowhere near the tea shop. Through his evidence, the prosecution wants
this Court to believe that the accused went around the village with Regina,
exposed themselves and their victim to all and sundry, eliminated her and
came back to the same tea shop thereafter. All these defy common sense,
logic and credulity.
13.6. Circumstance No.(vi) : the extra judicial confession [Ex.P6] of
Vimalraj [A3].
13.6.1. Coming to the extra judicial confession [Ex.P6] of Vimalraj
[A3], he has stated about the motive and other stories. With regard to the
actual commission of offence, he has merely stated that they all murdered
Regina and threw her body in the railway track. This is a generalised extra
judicial statement and not an unequivocal one. It will be dangerous to place
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Criminal Appeal Nos.429, 450 and 544 of 2020
sole reliance upon this vague extra judicial confession to mulct criminal
liability on the maker viz., Vimalraj [A3] and as regards the co-accused, it can
be used as an evidence only in terms of Section 30 of the Evidence Act and
not as a substantive evidence. We are not placing any reliance on the extra
judicial confession [Ex.P6] of Vimalraj [A3] for mulcting criminal liability on
the accused.
13.7. Circumstance No.(vii) : recovery of the Tata Indica car on the
confession of Ramesh [A1].
13.7.1. Coming to the recovery of Indica car [MO-16], we find that the
prosecution has not submitted any record whatsoever to show that Ramesh
[PW-13] was the owner of the car. Ramesh [PW-13], in his evidence, has
stated that he is the owner of the Indica car and that he had given his car to
his younger brother Suresh [PW-14] for his use as a public carrier. He has,
however, stated that the car is under hypothecation with Shriram Finance.
Nothing prevented the prosecution from producing the RC Book or any other
document to establish that Ramesh [PW-13] was the owner of the car.
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Criminal Appeal Nos.429, 450 and 544 of 2020
However, Ramesh [PW-13] has not, in any way, implicated any of the
accused. It is Suresh [PW-14], who, in his evidence, has stated that he had
taken the car from his brother Ramesh [PW-13] and was using it; that on
30.07.2014 Ramesh [A2], who was known to him earlier, telephoned him and
asked him to bring the car saying that he [A2] wants to go for a function;
Ramesh [A2] further asked him to bring the car near a location viz., Pallipattu
cremation ground and accordingly, when he went there between 3.00 and
3.30 p.m., Ramesh [A2] told him that he is going for the function on the next
day and asked him to leave the car and go; accordingly, Suresh [PW-14]
handed over the key to Ramesh [A2] and left; since the car was not returned,
Suresh [PW-14] called Ramesh [A1] and enquired with him, for which
Ramesh [A1] asked him to come near the military road rountana, where he
handed over the car on the next day.
13.7.2. In the cross-examination, this witness [PW-14] has clearly
stated that he knows nothing about Ramesh [A1]; he is the driver-cum-owner
of a private car, which he uses for business purposes for ferrying customers;
he is not in the business of giving out cars for hire; Ramesh [A2] called for
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Criminal Appeal Nos.429, 450 and 544 of 2020
the car and he handed over the car to Ramesh [A2] and left for his use;
thereafter, when he did not get back the car, he strangely contacted Ramesh
[A1] instead of Ramesh [A2]; it was Ramesh [A1], who came to military road
rountana and handed over the car to him. In the chief-examination, he had
stated that Ramesh [A2] called him in the afternoon of 30.07.2014 to bring
the car to a place near Pallipattu cremation ground. However, in the cross-
examination, he has stated that Ramesh [A2] called him on 31.07.2014 in the
morning around 6.00 to 6.30 a.m. and asked him to bring the car. He has
categorically stated in the cross-examination that around 06.40 in the morning
of 30.07.2014, he had taken the car to the place where Ramesh [A2] had
asked him to come. According to the prosecution, the car was recovered from
the house of Suresh [PW-14] on the alleged disclosure of Ramesh [A1] and
not on the disclosure of Ramesh [A2].
13.7.3. For the aforesaid reasons, we are unable to give credence to the
testimonies of Ramesh [PW-13] and Suresh [PW-14] that their car was used
by the accused.
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Criminal Appeal Nos.429, 450 and 544 of 2020
14. Further, we find that the evidence adduced by the prosecution in
this case does not pass muster the test laid down by the Constitution Bench of
the Supreme Court in Govinda Reddy's case (supra) and as a sequel, these
appeals deserve to be allowed.
In the result, these Criminal Appeals are allowed and the appellants are
acquitted of all charges. The conviction and sentences passed in S.C.No.262
of 2015 on the file of the Principal Sessions Judge (Special Judge of
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989),
Salem, vide judgment and order dated 18.09.2020, are set aside.
Fine amount, if any, paid by the appellants shall be refunded. The appellants
are directed to be released forthwith, unless their presence/custody is required
in connection with any other case/proceedings.
[P.N.P., J] [R.N.M., J]
02.09.2021
Index: Yes/No
gm
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Criminal Appeal Nos.429, 450 and 544 of 2020
To
1.The Principal Sessions Judge,
(Special Court of Scheduled Caste and Scheduled
Tribes (Prevention of Atrocities) Act, 1989)
Salem.
2.The Assistant Commissioner of Police,
L&O, North Range,
Salem City.
3.The Superintendent,
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Criminal Appeal Nos.429, 450 and 544 of 2020
Central Prison,
Coimbatore.
4.The Superintendent,
Central Prison, Salem.
5.The Public Prosecutor,
High Court, Madras.
P.N.PRAKASH, J
and
R.N.MANJULA, J
gm
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Criminal Appeal Nos.429, 450 and 544 of 2020
Criminal Appeal Nos.429, 450 and 544 of 2020
02.09.2021
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