INSPECTOR OF POLICE, T.N. v.

PALANISAMY @ SELVAN (Criminal Appeal No. 177 of 2003)

OCTOBER 1, 2008 [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM

SHARMA, JJ.]

The Judgment of the Court was delivered by

DR. ARIJIT ASAYAT, J. Heard. The  State  of  Tamil  Nadu  questions  the  correctness  of  the

judgment  rendered by a Division Bench of the Madras High Court directing  acquittal  of  the  respondent.  Learned  Addiitonal  Sessions Judge, Erode had found the respondent guitly of offence punishable under Section 302, Indian Penal Code (in short ‚IPC‘) and convicted him accordingly and sentenced him to undergo imprisonment for life. The  case  at  hand  rests  on  circumstantial  evidence.  The  first circumstance  which  was  highlighted  by  the  prosecution  was  that Pws.  1 and 2 allegedly saw the  deceased in  the company of  the accused around 11 0' clock in the night. The second was an alleged extra judicial  confession before PW3 the village head.  Though the trial Court placed reliance on these factors to find the accused guilty the High Court found the evidence of Pws. 1 and 2 to be unreliable so far as the claim to have seen accused and the deceased together around 11 0‘clock in the night. Similarly the High Court found that the so-called extra judicial confession has not been established by PW3. Learned  counsel  for  the  appellant-State  submitted  that  the  High Court should not have discarded the evidencne of Pws 1 and 2 so far as  the  last  seen  aspect  is  concerned.  Similarly,  the  High  Court should  not  have disbelieved PW3 about  the  alleged extra  judicial confession.  Learned  counsel  for  the  respondent  supported  the judgment of the High Court.

We find that the High Court has analysed the evidence in great detail and we find that the evidence of Pws 1 and 2 is not truthful so far  identification  aspect  is  concerned.  Undisputedly  it  was  a  dark night. They claimed to have identified them from their voice. Though

such identification in some cases is possible in the instant case no evidence  was  adduced  to  show  that  the  witnesses  were  closely acquainted with the accused to even identify him from his voice, that too from a very short replies, purported to have been given. This fact was  lost  sight  of  by  the  Trial  court.  The  High  Court  found  the possibility  of  identification  as  claimed  by  Pws  1  and  2  an impossibility.  So  far  the  purported  extra  judicial  confession  is concerned the High Court  found that  the same also has not  been established through the evidence of PW3. The reasons given by the High Court to discard the evidence of PW3 do not suffer from any infirmity. The High Court after analysing the evidence concluded as follows:

‚ First we analysed the evidence of PW3 to find out whether the prosecution  had  established  that  the  accused  had  given  the extra  judicial  confession  to  him.  PW  3  would  state  that  the accused appeared before him on 12.6.1991 around 9.00 a.m. and confessed. The occurence was on 5.6.1991 and Nagarajan was found dead in the early morning on 6.6.1991. PW3 is the former  President  of  the  Village  Panchayat  Board  of Kalangapalayam. If really the accused appeared before him and gave the  extra  judicial  confession,  then  prudence  on his  part demands that he should have surrendered the accused at the police station. He being responsible witness and on that day not holding any office, nothing prevented him to reduce into writing the extra judicial confession given by the accused. But, he would state that he only advised the accused to go and surrender at the  police  station  for  which  the  accused  was  not  willing. Thereafter, he claims to have advised the accused to surrender in court with the help of a lawyer. These two advises as stated above which was given by PW3 shows without any doubt that he is a man who knows what to be done when an offender appears before him. Inspite of the accused appearing before him, he had not chosen to reduce into writing the extra judicial confession of the accused or produce him at the police sation. On the contrary, he would state  that  on 12.6.1991  in the night  he went to  the polcie  station  and  informed  the  police  officer  about  the  extra judicial confession given by the accused. What PW3 was doing right  from 9.00  a.m.  on 12.6.1991,  at  which point  of  time the accused  appeared  before  him  and  gave  the  extra  judicial

confession,  till  late  in  the  night  is  a  suspicious  circumstances which make us to disbelieve his oral evidence.’

The appeal is dismissed.