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2021 Supreme(Mad) 2909
IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.N. PRAKASH, R. PONGIAPPAN, JJ.
Gunasekaran – Appellant
Versus
State by Inspector of Police, Sankarapuram Police Station – Respondent
Crl. Appeal No. 47 of 2018
Decided On : 29-07-2021
Advocate Appeared:
For the Appellants : Mr. C. Munusamy, Mr. R. Arun Dattan.
For the Respondent: Mr. M. Babu Muthu Meeran.
Headnote:
Criminal Procedural Code, 1973 - Section 174, 207, 313 - Indian Penal Code, 1860 - Sections 364, 328, 302 and 201 – Criminal Appeal - Kidnapping or abducting in order to murder - Causing hurt by means of poison, etc., with intent to commit an offence - Held, At this juncture, it may be necessary to state that on mere statement of (PW-6), police have altered case by adding Sections 364, 328, 302 and 201 IPC on very same day vide alteration report - Section 328 IPC relates to causing hurt by means of poison, etc., with intent to commit an offence - Then, how did police include Sections 328 and 201 IPC in alteration report, when according to them appellant surrendered to VAO only on next day and gave extra-judicial confession - Thus, court are led to irresistible inference that appellant had come into custody of police itself and thereafter, he has been made to appear before VAO for recording extra-judicial confession - (PW-6) would have told police that her husband had gone with appellant and beyond that, there was no way, by which she would have told police that appellant had made her husband consume liquor, for purpose of murdering him - Scientific evidence that neither liquor nor poison was detected in visceral organs, belies extra-judicial confession - Therefore, extra-judicial confession (Ex.P9) that was allegedly given by appellant deserves to be rejected - Criminal Appeal is allowed.
JUDGMENT :
P.N. PRAKASH, J.
1. This criminal appeal is directed against the judgment and order of conviction and sentence dated 18.01.2018 passed by the III Additional District and Sessions Judge, Kallakurichi in S.C. No. 345 of 2016.
2. The prosecution case is as under:
2.1. The deceased Jayaraman was residing with his wife Jayakantham (PW-6) in Perungalathur village, Tiruvannamalai District and the appellant is his distant relative.
2.2. The appellant is said to have borrowed Rs. 1,05,000/- sometime in 2013-14 from Jayaraman and had not returned the same. Jayaraman was pestering the appellant for return of the amount, on account of which, the appellant developed animosity towards Jayaraman.
2.3 While that being so, on 11.01.2016, the appellant is said to have called from his mobile number 73588 46252 to Jayaraman's mobile number 80986 05526. During the telecon, the appellant is said to have told Jayaraman that if he (Jayaraman) comes and meets him (appellant), he (appellant) will return the amount. Accordingly, Jayaraman told his wife Jayakantham (PW-6) that the appellant has called him and saying so, Jayaraman left his house in his bicycle (M.O.14) to meet the appellant.
2.4. En route, Jayaraman parked his bicycle (M.O.14) in the saloon of Senthilkumar (PW-13). The appellant is said to have borrowed a twowheeler (M.O.13) belonging to Manikandan (PW-14) and picked up Jayaraman and took him to a desolate place, where, both of them consumed liquor. Thereafter, when Jayaraman was intoxicated, the appellant is said to have murdered him, by smashing his head with a stone (M.O.11), stabbing him with a stick and thereafter, setting fire to his body with petrol allegedly obtained from Yesuraja (PW-12).
2.5. On 14.01.2016 around 07.00 a.m. Kuzhandaivel (PW-1), Village Administrative Officer (VAO) and his assistant Periasamy (PW-2) found a charred body in the barren land of one Antonysamy in Irudayampattu village. Kuzhandaivel (PW-1) gave a written complaint (Ex.P1) to the police, based on which, R.Kannan (PW-27), Sub-Inspector of Police, registered a case in Moongilthuraipattu P.S. Crime No. 6/2016 on 14.01.2016 under Section 174 Cr.P.C. and prepared the printed FIR (Ex.P30), which reached the jurisdictional Magistrate on 04.02.2016 at 17.15 p.m. as could be seen from the endorsement thereon.
2.6. Investigation of the case was taken over by Senthil Kumar (PW-13), Inspector of Police, who went to the place where the body was found and prepared the observation mahazar (Ex.P2) and the rough sketch (Ex.P6). From the place of occurrence, the Investigating Officer recovered the following items under the cover of mahazars (Ex.P3, P4 and P5) for the purpose of investigation:
| M.O.1 | A small quantity of bloodstained earth (with plants) |
| M.O.2 | Earth without bloodstain (with plants) |
| M.O.3 | Red colour waist belt with an iron talisman and copper talisman |
| M.O.4 | A portion of half burnt rose colour half-sleeve shirt with black stripes |
| M.O.5 | A portion of blue colour vest with yellow border |
| M.O.6 | Half burnt lungi cloth with white and blue checks |
| M.O.7 | Half burnt and bloodstained lungi with blue, white and black checks |
| M.O.8 | A burnt portion of half-sleeve rose colour shirt with black stripes and bloodstains |
| M.O.9 | A portion of white and green colour polythene rice sack |
2.7. Inquest was conducted over the body of Jayaraman and the inquest report was marked as Ex.P31. The body of Jayaraman was sent to the Government Hospital, Villupuram, where Dr. Gitanjali (PW-25) performed autopsy and issued the post-mortem certificate (Ex.P27). Samples of the visceral organs were sent to the Tamil Nadu Forensic Science Laboratory, for chemical analysis and after obtaining viscera report (Ex.P23), biological report (Ex.P24) and serology report (Ex.P25), Dr. Gitanjali (PW-25) gave her final opini
