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N. Senthil @ Senthilkumar Vs. State rep by the Inspector of Police, Madurai - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberCrl.A(MD).No. 179 of 2015
Judge
AppellantN. Senthil @ Senthilkumar
RespondentState rep by the Inspector of Police, Madurai
Excerpt:
code of criminal procedure, 1973 -section 374 indian penal code, 1860 - section 302 read with section 34, section 302, section 396 read with section 398 - indian evidence act, 1872 -section 30 - commission of murder order of conviction - accused nos.1 and 2 trespassed into the said mosque building in which deceased was on duty as a watchman - when deceased tried to intervene, appellant/accused attacked deceased with a knife and he succumbed to multiple injuries which resulted in death trial court convicted appellant - hence instant appeal issue is whether order of conviction by appellant by trial court is maintainable court held -there is no iota of evidence to conclude that magistrate was satisfied that second accused was willing to make judicial confession voluntarily -.....(prayer: appeal is filed under section 374 of the code of criminal procedure against the judgment and conviction dated 16.08.2001 made in s.c.no.490 of 2000, on the file of the learned second additional district judge, madurai.) s. nagamuthu, j. 1. the appellant is the first accused in s.c.no.490 of 2000, on the file of the learned second additional district judge, madurai. there were five other accused, who were arrayed as accused nos.2 to 6 in the case. the trial court framed as many as three charges against the accused, as detailed below. chargeaccusedpenal provisions11 to 6396 r/w 398 ipc21302 ipc32 to 6302 r/w 34 ipc by judgment dated 16.08.2001, the trial court convicted the accused, as detailed below:- accusedsection of lawsentencefine amount1 to 5396 r/w 398 ipcto undergo rigorous.....
Judgment:

(Prayer: Appeal is filed under Section 374 of the Code of Criminal Procedure against the Judgment and conviction dated 16.08.2001 made in S.C.No.490 of 2000, on the file of the learned Second Additional District Judge, Madurai.)

S. Nagamuthu, J.

1. The appellant is the first accused in S.C.No.490 of 2000, on the file of the learned Second Additional District Judge, Madurai. There were five other accused, who were arrayed as accused Nos.2 to 6 in the case. The Trial Court framed as many as three charges against the accused, as detailed below.

ChargeAccusedPenal Provisions
11 to 6396 r/w 398 IPC
21302 IPC
32 to 6302 r/w 34 IPC

By Judgment dated 16.08.2001, the Trial Court convicted the accused, as detailed below:-

AccusedSection of LawSentenceFine amount
1 to 5396 r/w 398 IPCTo undergo rigorous imprisonment for seven years.Rs.100/- in default to undergo simple imprisonment for one month.
1302 IPCTo undergo imprisonment for life.Rs.200/- in default to undergo simple imprisonment for two months.
2 to 5302 r/w 34 IPCTo undergo imprisonment for life.Rs.200/- in default to undergo simple imprisonment for two months.

The sentences have been ordered to run concurrently. As against the said conviction and sentence, the appellant/the first accused has come up with this Criminal Appeal with a delay of 4855 days 13 years and 4 months]. By order dated 10.08.2015, the delay was condoned. That is how, this Criminal Appeal is before us for disposal, at this length of time.

2. The case of the prosecution, in brief, is as follows:-

The deceased, in this case, was one Mr.Jailani. He was working as a Watchman in a Mosque at South Veli Street, Madurai. On the night, intervening 27.03.2000 and 28.03.2000, the deceased was on duty in the premises of the Mosque, but, outside the building. It is alleged that around 03.00 AM, on 28.03.2000, the accused Nos.1 and 2 trespassed into the said Mosque building. The accused Nos.3 to 6 were waiting outside the Mosque, watching the movement of the people so as to facilitate the accused Nos.1 and 2 to commit the crime. They entered into the Mosque and when they attempted to break open the Hundi, the deceased noticed the same. When the deceased tried to intervene, it is alleged that the second accused held him and the first accused attacked the deceased with a knife. The deceased succumbed to the multiple injuries caused by the first accused. Then, all the six accused ran away from the scene of occurrence.

2.2. PW-2 is a resident of East Chanthaipettai and PW-3 is a resident of Eastveli Street at Madurai. PW-2 and PW-3 had planned to go over to Chennai in connection with their business. Before going over to Chennai, they decided to have a prayer in the Mosque early in the morning. Therefore, PW-2 and PW-3 went to the Mosque around 03.30 AM to 04.00 AM. PW-2 and PW-3 were lying for sometime. Within half an hour, they heard the noise of someone, knocking at the doors of the Mosque. The deceased, who was sleeping in front of the Mosque building, went to open the door. It is alleged that at that time, the accused Nos.1 and 2 pushed the door, trespassed into the building, the second accused held the deceased and the first accused cut the deceased with a long size aruval. PW-2 and PW-3 raised alarm and thereafter, all the assailants ran away from the scene of occurrence.

2.3. PW-1 is a resident of Pandi Velalar Street, at Madurai. According to him, on 28.03.2000, at 05.45 AM, he went to the Mosque for prayer. At that time, he noticed an auto standing in front of the Mosque. The people there were found carrying the deceased and putting him into the auto. When he enquired, the persons there told that the deceased was cut by two persons. They took the deceased to the Government Hospital. The deceased told that one person held him and the other cut him with an aruval. Thereafter, PW-1 went to the Therkuvasal Police Station, Madurai City and made a complaint, at 06.45 AM, on 28.03.2000. EX-P1 is the complaint and EX-P19 is the First Information Report.

2.4. Taking up the case for investigation, at 07.30 AM, on 28.03.2000, PW-22, the then Inspector of Police, proceeded to the place of occurrence, prepared an Observation Mahazer and a Rough Sketch, showing the place of occurrence in the presence of the witnesses. He recovered bloodstained earth and sample earth from the place of occurrence. He also recovered bloodstained clothes worn by the deceased. He examined few more witnesses and recorded their statements. At 09.20 AM, he received death intimation of the deceased from the hospital. Thereafter, he altered the case into one under Section 302 of the Indian Penal Code. EX-P24 is the death intimation report and EX-P25 is the alteration report. Then, between 10.00 AM and 12.00 AM, he conducted inquest on the body of the deceased. EX-P12 is the inquest report. Then, he forwarded the dead body for postmortem.

2.5. PW-13 - Dr.B.Thiyagarajan conducted autopsy on the body of the deceased, at 01.45 PM, on 28.03.2000. EX-P26 is the postmortem certificate. He noticed the following injuries:-

"1. Antero-posterio oblique cut injury centre of forehead toright temporal 12 CM X 0.5 CM X bone deep cutting underlying bone upto brain.

2. Oblique cut injury right posterior parietal 8 CM X 0.5 CM X bone deep cutting underlying bone.

3. Oblique cut injury mid parietal occipital 10 CM X 2 CM X bone deep cutting underlying bone.

4. Oblique cut injury posterior parietal to right occipital 12 CM X 0.5 CM X bone deep cutting the underlying bone.

5. Transversely oblique cut injury left frontal to right frontal 6 CM X 0.5 CM X bone deep.

6. oblique cut injury antero-posteriorly 2 CM behind wound No.5 - 5 CM X 0.5 CM X bone deep.

7. Defence wound on right dorsum index to ring finger obliquely below upwards 10 CM X 1 CM X bone deep cutting the underlying bones below upwards".

He gave opinion that the deceased would appear to have died of coma, as a result of cranic cerebral due to head injuries. According to him, the death of the deceased would have been caused by a weapon, like aruval.

2.6. During the course of investigation, around 12.00 noon, on 04.04.2000, at Kaja Street, PW-22 arrested the second accused in the presence of the witnesses. On such arrest, he gave a voluntary confession, in which he disclosed the place, where he had hidden the aruval. In pursuance of the same, the accused took the police and the witnesses to the place of hide out and produced the aruval. PW-22 recovered the same under a mahazer. Then, at 02.00 PM, on 04.04.2000, near the Tamil Nadu Electricity Board Office situated at Villapuram, PW-22 arrested the accused Nos.3 to 5. On such arrest, the fourth accused gave a voluntary confession, in which he disclosed the place, where he had hidden a knife. In pursuance of the same, the accused took the police and the witnesses to the hide out and produced the knife. He also produced a sum of Rs.1,000/- from his possession. Then, he took the police and the witnesses to the place of Electricity Board Office and produced three knives. PW-22 recovered the same under a mahazer. At 09.30 AM, on 08.04.2000, he arrested the first accused at Sappani Kovil Street, Therkuvasal. On such arrest, the first accused gave a voluntary confession, in which he disclosed the place, where he had hidden a knife. In pursuance of the same, the accused took the police and the witnesses to the hide out and produced the knife. PW-22 recovered the same under a mahazer. On returning to the Police Station, he forwarded the accused to the Court for judicial remand and handed over the material objects also to the Court. At his request, the learned Judicial Magistrate No.VI, Madurai, conducted Test Identification Parade. On completing the investigation, he laid charge sheet against the accused.

2.7. Based on the above materials, the Trial Court framed appropriate charges, as detailed in the first paragraph of this Judgment. When the accused were questioned in respect of the charges, they pleaded innocence. In order to prove the charges, on the side of the prosecution, 22 witnesses were examined, 26 documents and 14 material objects were marked. Out of the said 22 witnesses, PW-1 has stated that when he went to the Mosque, at 05.45, AM, on 28.03.2000, he found the deceased being taken in an Auto. He has further stated that the deceased was found alive and he was admitted at the hospital. He has further stated that at 06.00 AM, he made a complaint to the police.

2.8. PW-2 has stated that he along with PW-3 planned to go over to Chennai in connection with the business purpose. Before going over to Chennai, PW-2 and PW-3 had planned to have a prayer in the Mosque. For that purpose, around 03.30 PM, according to him, on 28.03.2000, he along with PW-3 went to the Pallivasal, where PW-2 and PW-3 were lying for sometime. At that time, according to him, he heard the noise of someone knocking at the door of the Pallivasal. The deceased, who was sleeping, went near the door and opened the door. At that time, three persons pushed the door violently and entered into the Pallivasal and out of three persons, one person, whom he had identified later as the first accused, cut the deceased with aruval. He has further stated that the second accused, who was having a long size knife went in search of Hundi in the Mosque. The third accused held the deceased to facilitate the first accused to cut him. He has further stated that three other accused were seen under the light post, just in front of the Pallivasal, watching the movement of the people. Thus, according to him, the accused Nos.1 to 3 trespassed into the Mosque and the accused No.3 held the deceased and the first accused cut the deceased. The second accused did not hold the deceased. But, he was found moving inside the Mosque. PW-3 has stated that he also heard the noise of someone, knocking at the doors of Pallivasal. The deceased went near the door and opened the same. Suddenly, one person pushed the door violently and entered into the Pallivasal and went near the Hundi. The second accused held the deceased and the other one cut him with aruval. During trial, he has identified the first accused as the one, who cut the deceased and the second accused was the one, who held the deceased. He has further stated that four other persons, who were armed with knives, were standing outside the Pallivasal. Thus, according to him, only two persons, namely, the accused Nos.1 and 2 entered into the Pallivasal and four other persons were waiting outside.

2.9. PW-4 is a resident of Madurai Meenakshi Nagar. He has stated that he came to the Pallivasal, at 05.30 AM, on 28.03.2000. At that time, he found the deceased lying in a pool of blood with injuries. His further evidence is that the deceased told him that the second accused held the deceased and the first accused cut him with a long size knife. He has further stated that when the deceased was taken to the hospital, he was conscious. He told the doctor that two persons entered into the Pallivasal, out of whom, one person held him and the other cut him. However, he was not able to say anything about the identifiable features of the assailants. PW-5 has stated that he took the deceased to the hospital along with PW-4. PW-6 has spoken about the preparation of Observation Mahazer and the Rough Sketch and the recovery of material objects from the place of occurrence. PW-7 has also spoken about the same facts. PW-8 has spoken about the arrest of the second accused and the consequential recovery of MO-1, aruval from his possession. PW-9 has also spoken about the same facts. He has also stated about the arrest of the accused Nos.3, 4 and 5.

2.10. PW-10 and PW-11 have turned hostile and they have not supported the case of the prosecution in any manner. PW-12 has spoken about the arrest of the first accused and the alleged consequential recovery of MO-1, aruval from his possession. PW-13 has spoken about the autopsy conducted by him and his final opinion regarding the cause of death. PW-14, the learned Judicial Magistrate, No.VI, Madurai, has spoken about the Test Identification Parade held by him. According to him, the Test Identification Parade was held at 02.00 PM, on 26.04.2000. His further evidence is that he conducted Test Identification Parade for the accused Nos.1 and 5. PW-2, who participated in the Test Identification Parade, identified only the fifth accused and not the first accused. He identified some others wrongly as the assailants, like one Mr.Muthiah and Mr.Haridass. PW-3, during Test Identification Parade, identified the first accused and one Mr.Haridass as the assailants. Then, he conducted Test Identification Parade for the accused Nos.2, 3 and 4, during which, PW-3 identified the fourth accused and identified two others wrongly. PW-3 had identified the second accused correctly and the accused Nos.2 and 4 and identified the others wrongly.

2.11. PW-15, Mrs.A.Shanthi, was the then learned Judicial Magistrate No.VI, Madurai. She was requested to record the judicial confession from the second accused, as he was in a mood to confess voluntarily. Accordingly, she directed the second accused to be produced before her on 12.04.2000. She administered oath on him. She warned him that the statement could be used against him. Then, she had recorded the judicial confession made by the second accused. However, she did not give any certificate regarding the voluntariness of the said confession made, as required under Section 164 of the Code of Criminal Procedure.

2.12. PW-16, the Head Clerk of the Court of learned Judicial Magistrate, has stated that he forwarded the material objects to the Forensic Lab for chemical examination, as directed by the learned Judicial Magistrate. PW-17, an official in the Tamil Nadu Electricity Board, has stated that on the day of occurrence, there was enough light in the Mosque. PW-18, a Head Constable, has stated that he handed over the complaint and the First Information Report to the Court, at 07.30 AM, on 28.03.2000. PW-19, yet another Head Constable, has stated that he handed over the dead body to the hospital for postmortem, as directed by the Investigating Officer.

2.13. PW-20 has spoken about the registration of the case, on the complaint made by PW-1. PW-21 has stated that while he was on duty in the hospital, around 06.00 AM, the deceased was brought to the hospital. At that time, he was conscious. He told the doctor that around 05.30 AM, he was attacked by two unknown persons. He noted down the injuries found on the body of the deceased. He has further stated that the said injuries could have been caused by a weapon, like aruval. PW-22 has spoken about the investigation conducted by him and the filing of final report.

2.14. When the Trial Court examined the accused under Section 313 of the Code of Criminal Procedure in respect of the incriminating evidences available against them, they denied the same as false. However, they did not choose to examine any witness nor to exhibit any document. Having considered all the above materials, the Trial Court convicted the accused Nos.1 to 5 alone, as detailed in the first paragraph of this Judgment and punished them accordingly. However, the Trial Court acquitted the sixth accused.

2.15. As against the said conviction and sentence, the accused Nos.2, 3 and 5 filed Crl.A.Nos.790 of 2002, 1256 of 2002 and 1514 of 2002. A Division Bench of this Court, by Judgment dated 19.07.2006, allowed Crl.A.Nos.796 and 1256 of 2002 and acquitted the accused Nos.3 and 5. However, the Division Bench dismissed Crl.A.No.1514 of 2002 filed by the second accused and confirmed the conviction and sentence imposed on the second accused. It is not known as to whether the fourth accused filed any appeal. The first accused, as we have already stated, did not file any appeal at once, and after a lapse of 14 years, he has filed the present Criminal Appeal, challenging the conviction and sentence imposed on him. That is how, this Criminal Appeal is before us for disposal.

3. We have heard the learned counsel appearing for the appellant, the learned Additional Public Prosecutor appearing for the respondent and also perused the records carefully.

4. The learned Additional Public Prosecutor appearing for the respondent would take us through the Common Judgment of this Court, dated 19.07.2006, made in Crl.A.Nos.790 of 2002, 1256 of 2002 and 1514 of 2002 and submit that in the instant case, the Trial Court as well as a Division Bench of this Court have believed the eyewitness account of PW-2 and PW-3 and therefore, there can be no reason for this Court to disbelieve the evidences of PW-2 and PW-3.

5. We are not persuaded by the said argument advanced by the learned Additional Public Prosecutor, as any argument advanced by the other accused before the other Division Bench would not bind the first accused. He has got his own independent case, where he is entitled to urge the grounds raised by him. The accused is entitled to have a fair trial, as guaranteed under Article 21 of the Constitution of India. Thus, in our considered view, the decision taken, on considering the defence taken by the other accused, would not influence the decision in the instant Criminal Appeal. Therefore, we reject the argument advanced by the learned Additional Public Prosecutor on this ground and we proceed to appreciate the evidences independently.

6. Admittedly, the deceased was a Night Watchman in the Mosque. The occurrence had taken place around 05.00 AM, inside the Mosque. According to the case of the prosecution and as found in the charges, the accused Nos.1 and 2 alone entered into the Mosque. The second accused held the deceased and the first accused cut the deceased. According to the charge, the accused Nos.3 to 6 were standing outside the Pallivasal on the road under the light post, watching the movement of the people. Thus, it is clear and positive case of the prosecution that the accused Nos.3 to 6 did not enter into the premises of the Mosque at all.

7. Now, turning to the evidence of PW-1, he has stated that three people entered into the Mosque, out of whom, according to PW-1, the second accused did not hold the deceased at all. He has further stated that it was the third accused, who held the deceased and it was the first accused, who cut him. This is contrary to the case of the prosecution. He has further stated that only two people were waiting outside the Mosque under the light post. He has identified the accused Nos.4 to 6 as the persons, who have been waiting outside the premises. This is also contrary to the case of the prosecution. Above all, he has tacitly admitted that none of the accused was already known to him. That is the reason why, the Test Identification Parade was conducted. In the Test Identification Parade, PW-2 was not able to identify the first accused at all. He identified the fifth accused and identified two other persons wrongly, who are not the real assailants. For the first time, he identified the first accused only in Court. He was not able to identify the first accused during the Test Identification Parade, which was conducted soon after the arrest of the accused, I.e., within a short period. Thus, it is difficult to believe the identification made by him during trial, after one year. Thus, from and out of the evidence of PW-1, it cannot be held that the first accused was one of the assailants.

8. Now, turning to the evidence of PW-3, he has stated that he went along with PW-2 to the Mosque. He has further stated that only two persons entered into the Mosque. He has identified the second accused as the one, who held the deceased and the first accused was the one, who cut the deceased. He has further stated that the other persons were waiting outside the Mosque under the light post. Though his evidence is in consonance with the charges framed, it is contrary to the evidence of PW-1. During Test Identification Parade, PW-3 identified one Mr.Muthiah and Mr.Haridoss as the assailants, who are not the accused. Then, he told the learned Judicial Magistrate that he was not able to identify the others. During second round of Test Identification Parade, again, he identified one Mr.Haridoss as the assailant. This time, he identified the first accused also. During the third round of Test Identification Parade, he identified one Mr.Haridoss as the assailant and also the first accused. Thus, the identification of the accused made by PW-3 cannot be given any weightage of, because, during first round of Test Identification Parade, he was not able to identify any one of the assailants. During the second round of Test Identification Parade, he identified one Mr.Haridoss as the assailant. However, this time he identified the first accused also. During the third round of Test Identification Parade, he wrongly identified one Mr.Haridoss as the assailant and also the first accused. Thus, in view of the above contradictions, we are not able to attach any importance at all to the evidences. Therefore, the identity of the first accused made by PW-3 during trial also cannot be given any weightage of.

9. Above all, the presence of PW-2 and PW-3, at the place of occurrence, is highly doubtful. Their explanation was that they had decided to go over to Chennai and before going to Chennai, they planned to have a prayer in the Mosque. Accordingly, they went to Mosque, where they were lying for sometime. Their presence at the place of occurrence was, thus, by chance. After the occurrence, they did not even go to the hospital accompanying the deceased. Thereafter, PW-1 came to the place of occurrence only at 05.45 AM and found the deceased lying with injuries. Then, PW-1 took the deceased to the hospital along with PW-4 and PW-5. Neither PW-1 nor PW-4 and PW-5 have stated about the presence of PW-2 and PW-3 at the place of occurrence.

10. Had it been true that PW-2 and PW-3 were present at the place of occurrence, certainly, they would have stated about the occurrence to these witnesses and these witnesses would have mentioned about the presence of PW-2 and PW-3 during investigation. PW-22 has admitted that he examined PW-2 and PW-3 only on 01.04.2000, whereas the occurrence took place on 28.03.2000. Thus, between 28.03.2000 and 01.04.2000, PW-2 and PW-3 did not disclose about the occurrence to anybody. It is not their case that after the occurrence was over, as per their plan, they had gone to Chennai. It is not explained to the Court as to where they went until they were examined by PW-22, on 01.04.2000. The alleged silence of these two witnesses for such a long time would give an inference that these witnesses have been planted by the police. For the reasons stated above, it is difficult to believe PW-2 and PW-3 and to hold the first accused guilty.

11. The Trial Court has relied on the judicial confession made by the second accused to PW-15, the then learned Judicial Magistrate, No.VI, Madurai. We have got very serious reservation about the manner in which the said judicial confession had been recorded by the learned Judicial Magistrate. At the outset, we should say that it was illegal on the part of the learned Judicial Magistrate to administer oath on the second accused. Administering oath on the accused would amount to compulsion, which is unconstitutional, as the same would amount to testimonial compulsion. On this score alone, the judicial confession made by the second accused could be rejected.

12. Again, it is seen from the records that the second accused was produced before the learned Judicial Magistrate No.VI, at 03.30 PM, on 12.04.2000. The learned Judicial Magistrate, on the second accused being produced, told him that such statement could be used against him. Except giving such information to the second accused, the learned Judicial Magistrate did not even make an attempt to ascertain as to whether he was willing to make a judicial confession voluntarily. The learned Judicial Magistrate immediately recorded verbatim as it was stated by the second accused. Initially, the learned Judicial Magistrate had recorded her satisfaction that the second accused was making judicial confession voluntarily. Section 164 of the Code of Criminal Procedure mandates that there has to be a certificate appended to the confession recorded by the learned Judicial Magistrate. This has been held to be mandatory.

13. In this regard, we may also refer to a Judgment of the Hon'ble Supreme Court in Chandran Vs. The State of Madras reported in AIR 1978 SC 1574. In the said case, the learned Magistrate had, in fact, appended the footnote to the confession. While doing so, the learned Magistrate, instead of recording that he believed that the confession was voluntarily made, recorded that he hoped that the confession was voluntarily made. The Hon'ble Apex Court found vast difference in meaning between the words believe and the hope . The Hon'ble Apex Court has further held in that case, that the learned Magistrate had consciously omitted to use the expression believe and instead, he has used the expression hope , which itself would give rise to a presumption that the learned Magistrate had no belief that the confession was made voluntarily. In those circumstances, the Hon'ble Supreme Court doubted the voluntariness of the said retracted confession.

14. For better appreciation, the relevant paragraphs of the said judgment, viz., Chandran's case [cited supra], reads thus:-

30. In the instant case, the Magistrate, has nowhere in the record of the confession, certified his satisfaction or belief about the voluntariness of the confession. In the Memorandum [Ex.P.28] appended by him at the foot of the confession, he has merely expressed a hope that the confession was voluntarily made. Even in his oral evidence at the trial, the Magistrate [P.W.18] did not vouch for the voluntariness of the confession. He did not say that the use of the word hope by him in the memorandum [Ex.P.28] was due to some accidental slip or heedless error. P.W.28 is a Sub-Divisional Magistrate and a member of the Judicial service. He is supposed to be a judicial officer of standing and experience. The memo, Ex.P.28, is in English and in the handwriting of the Magistrate. It is, therefore, not possible to hold that the Magistrate was ignorant of the difference in the meaning of the words hope and believe and that he unwittingly chose the former, while in reality, he intended to express what was meant by the latter. There is every probability that the use of the word hope instead of believe . In the memorandum, Ex.P.28, by the Magistrate was deliberate and not inadvertent. There is a marked difference in what is connoted by hope and believe ; to hope means to want and expect ; to look forward with expectation and desire . Hope is a wishful feeling floating on nebulous foams projected into the unknown future. Deep hidden in hope dwells a lingering doubt, a speck of suspicion, that what is desired and expected may not turn out true. Not unoften, in the mind of the person hoping, there lurks subconscious fear that the hope may turn out a dupe . In the sense in which, it is used in S.164, has 'logical confidence' or 'rational conviction' as its essential element. It imports a very high degree of expectation wrought by reason, a satisfaction fastrooted interra firma, free from doubt as to the truth of the fact perceived and believed.

31. In the light of the above discussion, we are of opinion, that the Magistrate advisedly chose to use the word hope , instead of believe , in the Memorandum Ex.P.28, because he was not fully convinced that the confession, Ex.P.27 had been voluntarily made, the Magistrate's mind being troubled by suspicion and doubt as to the voluntariness of the confession. The retracted confession, Ex.P.27, therefore, must be excluded from consideration. Here, in the instant case, the learned Magistrate has not at all recorded his belief that the confession was made voluntarily. Thus, we find no option, but to hold that the said confession, which now stands retracted, was not made voluntarily. Therefore, the same is inadmissible and the same cannot be acted upon.

15. In the instant case, as we have already pointed out, the learned Judicial Magistrate did not test as to whether the second accused was willing to make confession voluntarily or not, which is the essential function of the Magistrate, because, judicial confession recorded by the learned Judicial Magistrate carries its own special weightage. In the instant case, there is no iota of evidence to come to the conclusion that the learned Judicial Magistrate was satisfied that the second accused was willing to make judicial confession voluntarily. In fact, we regret to say that the learned Judicial Magistrate had failed to discharge her judicial function in the manner expected of.

16. For the reasons stated above, we find it difficult to hold that the second accused made the judicial confession voluntarily. Assuming that the second accused made judicial confession voluntarily, the same cannot be the foundation for convicting the first accused. At the most, it may be used against the second accused as a substantive evidence and not against the co-accused, namely, the first accused.

17. In this regard, we may refer to the Judgment of the Hon'ble Supreme Court in Kashmira Singh Vs. State of M.P, reported in AIR 1952 SC 159 : 1952 Crl LJ 839, wherein the Hon'ble Supreme Court has elaborately dealt with the scope of Section 30 of the Indian Evidence Act, 1872 and has held as follows:-

"The confession of an accused person is not evidence in the ordinary sense of the term as defined in Section 3. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first, to marshall the evidence against the accused excluding the altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then, of course, it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event, the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept".

18. Applying the above dictum, if we marahsll the entire evidences let in by the prosecution and on such marshalling, if the Court comes to the conclusion that the accused has committed the crime, in order to lend assurance to the said conclusion, as a last resort, the extra judicial confession of the co-accused could be taken into account. Thus, as held by the Hon'ble Supreme Court, in the absence of any other evidence, the extra judicial confession of a coaccused alone cannot be treated as a substantive evidence so as to convict the accused.

19. In the instant case, as we have already narrated, there is no evidence at all, by which this Court could come to the conclusion that the first accused is guilty of the charges framed. In such view of the matter, we are unable to use the judicial confession made by the second accused against the first accused.

20. Next comes the recovery of aruval. The prosecution relied on the recovery of aruval from the possession of the accused. The nexus between the recovered object and the crime has not been established. At any rate, the same would not go to conclusively prove the guilt of the accused. Thus, we find that the conviction and sentence imposed on the appellant/the first accused cannot be sustained, as the prosecution has failed to prove the case beyond reasonable doubts.

21. In the result, this Criminal Appeal is allowed; the convictionand sentence imposed on the appellant, by Judgment dated16.08.2001, made in S.C.No.490 of 2000, on the file of the SecondAdditional District Judge, Madurai, is set aside and the appellant isacquitted. Fine amount, if any, paid by the appellant shall be refundedto him. Bail bond executed by the appellant and the sureties shallstand terminated.


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