Inspector of Police,
T.N. Vs. Palanisamy @ Selvan  INSC 1677 (1 October 2008)
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