(Prayer: Criminal Appeal filed under Section 374(2) of the Criminal Procedure Code, to call for the records relating to the Principal Sessions Judge, Tirunelveli, in Sessions Case No.289 of 2021, dated 01/11/2022 and to set aside the same and consequently to acquit the appellant/sole accused.)

R. Poornima, J.

1. This Criminal Appeal is directed as against the judgment of conviction and sentence passed by the Principal Sessions Judge, Tiruneveli, in SC No.289 of 2021, dated 01.11.2022 and consequently to acquit the appellant.

2. The accused was charged for the offences under Sections 302 and 201 of the Indian Penal Code. According to the prosecution, the accused was temporarily residing in the house of the deceased, Sudalaimuthu. The sister of the accused was residing in the house of her relative, Anna Vadivu, and was working as a teacher. The deceased and the sister of the accused were acquainted with each other. Subsequently, she fell in love with another person. Owing to this, the deceased developed enmity towards the sister of the accused. Therefore, with the intention of killing the deceased, the accused allegedly took him on 19.12.2020 at about 12.30 midnight to a place at Muneerpallam, Etteri, Tirunelveli, belonging to one Sham Patric.

3. At that time, the deceased was sitting on the parapet of the well with his legs hanging inside. The accused allegedly came there and kicked the deceased on his chest, as a result of which the deceased fell into the well and died due to drowning. Thereafter, the accused falsely stated that he was not present at the place of occurrence. Hence, he was charged under Sections 302 and 201 IPC.

4. The complaint was lodged by P.W.1, the paternal uncle of the deceased. In the complaint, he stated that on 18.02.2020, the deceased and the accused came to Etteri, Tirunelveli. One Raja (P.W.3) took them to a field for work. About 15 persons were already staying there for employment, and the said Raja had arranged the work for them. All of them had dinner and went to sleep. The deceased, the accused, and others were sleeping near a well situated in the place of occurrence, about 10 feet away from the well.

5. At about 1.00 a.m., the accused woke up and went to charge his cell phone. He then heard a noise and noticed that the deceased was not present at the place. He also found the chappal worn by the deceased inside the well. Immediately, he woke up the others and informed them about the same. All of them came and looked into the well, but they could not find anything. They also informed the same to P.W.3.

6. Thereafter, the father of the deceased came to the place of occurrence and at about 6.30 a.m., the dead body of the deceased was found in the well and taken out. The father of the deceased was unable to bear the death of his son and returned to his house. Subsequently, P.W.1 lodged the complaint.

7. The complaint was received by P.W.16 – Tmt. Mariyadoss, who registered a case in Crime No.46 of 2020 under Section 174 Cr.P.C. The original FIR was forwarded to the Judicial Magistrate concerned and copies were sent to the higher officials for further action.

8. P.W.18–Tmt.Sundar, Inspector of Police, took up the investigation. He visited the place of occurrence and prepared the Observation Mahazar (Ex.P2) and Rough Sketch (Ex.P9). He conducted an inquest over the dead body and prepared the Inquest Report (Ex.P10).

9. Thereafter, the investigation was handed over to P.W.19 – Tmt. Seethalakshmi, Inspector of Police. She continued the investigation. In the meantime, the accused surrendered before the Village Administrative Officer, who produced him before the police. She arrested the accused and recorded his confession statement (Ex.P11). Based on the confession, the accused produced a knife (M.O.1), which was recovered under a Seizure Mahazar (Ex.P7).

10. Subsequently, the section of law was altered from Section 174 Cr.P.C. to Section 302 IPC through an Alteration Report (Ex.P13). After completing the investigation, she filed the final report on 22.07.2020 against the accused for the offences under Sections 302 and 201 IPC (Ex.P14).

11. P.W.13–Dr.Selvamurugan conducted the postmortem examination and issued the Postmortem Certificate (Ex.P4). During the postmortem, he noted the following external injuries on the body of the deceased:

                   (i) Abrasions of size 2 x 1 cm in middle of forehead;

                   (ii) Old incised scare of priya present in front of left forearm;

                   (iii) Multiple horizontal recent incised wound of age 5 to 7 days noted I front of left forearm; and

                   (iv) On dissection of Thorax & Abdomen: contusion of size 25 x 8 cm noted in middle of front of chest.

Viscera report (Ex.P5) was issued by the forensic expert.

12. On receipt of the records, the Judicial Magistrate No.V, Tirunelveli, took up the case in PRC No.62 of 2020 and issued summons to the accused. After the appearance of the accused, copies of the entire records were furnished to him free of cost under Section 207 Cr.P.C.

13. Since the offence is exclusively triable by a Court of Session, the learned Judicial Magistrate committed the case records to the Principal District and Sessions Judge, Tirunelveli, under Section 209(A) Cr.P.C for further action.

14. The Principal District and Sessions Judge, Tirunelveli, received the case records and numbered it as SC No.289 of 2021 and framed the charges against the accused under Sections 302 and 201 IPC. The charges were read over and explained to the accused. The accused denied the charges and claimed to be tried. Therefore, the case was posted for trial.

15. On the side of the prosecution, 19 witnesses were examined as PW1 to PW19 and 15 documents were marked as Exs.P1 to P15. Material Object MO1 was produced. On the side of the accused, no witness was examined and no document was marked.

16. The Trial Court on appreciation of the evidence, both oral and documentary, came to the conclusion that the accused found guilty and convicted him for the offences under Sections 302 and 201 IPC and sentenced him to undergo imprisonment as detailed below:-

                  

17. Against which, this present appeal is filed by the appellant following among other grounds:-

The Trial Court failed to consider the fact that motive and the circumstantial evidence was not corroborated with the version of the prosecution. The medical evidence also not supported with the version of the prosecution and it was held that 'no definite opinion' would be given regarding the exact cause of the death. However, death due to drowning could not be ruled out. Viscera positive for ethyl alcohol. The cause of death was not established in the postmortem report of the deceased (Ex.P4). As per the Viscera report, the deceased stomach contents 679.0 mg alcohol and small intestine contents 299.0 mg in his liver contents, 472.0 mg of alcohol. It is proved that the deceased along with others intoxicated alcohol at night hours on 18.02.2020. The Trial Court ought to have presumed the fact the deceased himself fell down in the well due to intoxication of alcohol. The confession statement of the accused was marked as Ex.P6 and the knife was recovered from the accused, but no corroboration was proved by the prosecution with regard to the confession statement. The sister of the accused was not investigated to prove that the deceased gave love torture to her. The Trial Court failed to consider the principles of circumstantial evidence. The prosecution failed to prove the case beyond all reasonable doubt. But the Trial Court erroneously convicted the appellant/accused by presuming the entire occurrence and believed that the accused committed the murder without properly applying the criminal law. The Trial Court failed to consider the fact that the extra judicial confession is not a substantial evidence to corroborate the evidence to other witnesses. But in the instant case, the extra judicial confession was considered as substantial evidence; hence, the conviction based on the extra judicial confession is not sustainable in law and no evidence connecting the accused with the guilt of the offence. Without considering the above, the Trial Court has wrongly convicted the accused and prays for allowing the appeal by acquitting the appellant.

18. Per contra, the learned Additional Public Prosecutor appearing for the respondent State contended that on the date of occurrence, the accused and the deceased were staying together. The existence of previous enmity was spoken to by P.W.9 and P.W.11. It was further contended that the accused had taken the deceased under the guise of securing employment. Though the deceased was under the influence of alcohol, there was no reason for him to accidentally fall into the well. The accused subsequently appeared before the Village Administrative Officer and made an extra-judicial confession admitting his guilt and referring to the previous enmity. According to the prosecution, since the accused had taken the deceased with the intention of causing his death, he later informed the persons staying nearby that the deceased was missing in order to portray himself as innocent. The learned Trial Judge, after considering the entire evidence on record, rightly convicted the accused. Hence, it was contended that the conviction does not warrant any interference by this Court and the appeal deserves to be dismissed.

19. Heard the learned counsel on either side and perused the materials available on record.

20. On a careful perusal of the entire records, it is seen that the complaint does not mention any previous enmity between the deceased and the accused. Admittedly, the deceased and the accused had gone to the place of occurrence for work. P.W.3, one Raja, is a contractor. He deposed that his marriage was fixed with one Esakkiammal. The said Esakkiammal informed him that her brother, namely the deceased, was unemployed and requested him to provide employment for him. Accordingly, he asked the deceased to come for work.

21. On the date of occurrence, i.e., 19.02.2020, the deceased along with the accused came to the KTC bus stop. P.W.3 picked up both of them on his two-wheeler and thereafter they consumed alcohol. Later, he lay down near the well while the deceased was sleeping in a cart. Subsequently, at about 12.30 a.m., the accused woke him up and stated that he had gone to charge his cell phone. When he returned, the deceased Sudalaimuthu was not found at the place. However, his slippers were found in the well and he heard some unusual noise. P.W.3 went inside the well but did not find anything. Thereafter, both the accused and P.W.1 searched for the deceased but could not find him. The same was informed to his father, who came to the spot at about 03.30 p.m. They again searched the well using a hook and a shirt was caught in the hook, after which the dead body was retrieved from the well. His father initially took the dead body to their village, but on the instruction of the police, he brought the body back and it was taken to Etteri.

22. From the evidence of P.W.3, it is evident that the deceased, the accused and other persons were staying together. In fact, P.W.3 himself was sleeping near the well. It is further revealed that the accused alone informed P.W.3 and P.W.4, who was also working with P.W.3, about the missing of the deceased. P.W.4 also stated that all the employees woke up and later found the dead body of the deceased in the well. P.W.5, P.W.6, P.W.7, P.W.8 and P.W.9 have all stated that they were staying together and that the non-availability of the deceased was informed by the accused. It is also significant that the accused did not abscond from the place of occurrence. None of the witnesses had witnessed the occurrence or spoken about any suspicious circumstances surrounding the place of occurrence. The father of the deceased, examined as P.W.8, has also not stated anything about any previous enmity between the accused and the deceased. Though he stated that he had heard about some enmity, he did not witness the same.

23. P.W.11 has spoken about a different incident. According to him, about 2½ years prior to the occurrence, the accused, in an intoxicated condition during a temple bhajan, created a problem. Both P.W.11 and the deceased questioned him. At that time, the accused allegedly stated that he knew about the love affair between the deceased and his sister and that he would do away with him. However, this witness was examined only on 15.06.2022 and he had not stated anything about this incident to the Investigating Officer earlier. Except for this statement, none of the witnesses have spoken about any previous enmity between the accused and the deceased. The medical evidence also reveals that the deceased died due to drowning and that ethyl alcohol was found in his body.

24. P.W.15, the Village Administrative Officer of Munneerpallam, has spoken about the extra-judicial confession allegedly given by the accused. It is well settled that an extra-judicial confession is a weak piece of evidence and by itself cannot form the sole basis for conviction. However, if the prosecution establishes other incriminating circumstances linking the accused with the crime, such confession may be treated as a supporting piece of evidence.

25. In the present case, the prosecution has failed to prove the motive. Though it was alleged that the deceased had a love affair with the sister of the accused, the said sister was not examined. Further, the evidence shows that nearly fifteen persons, including the accused and other witnesses, were present at the place of occurrence. The deceased had consumed excessive alcohol and was in an intoxicated condition. It is also noteworthy that the accused did not abscond after the occurrence and it was he who informed others about the missing of the deceased. Had he committed the offence, it is quite probable that he would have fled from the scene. None of the witnesses have spoken about any suspicious circumstances against the accused. Even the father of the deceased initially did not suspect the accused and took the body to the village under the impression that his son had accidentally fallen into the well. Only later, on the instruction of the police, was the body brought back.

26. Therefore, the prosecution has failed to establish the guilt of the accused beyond reasonable doubt. Except for the extra-judicial confession, which is a weak piece of evidence, there is no material linking the accused with the alleged crime

27. At this juncture we relied upon a judgment of the Hon’ble Supreme Court in Ramu Appa Mahapatar v. State of Maharashtra, reported in (2025) 3 SCC 565, the Hon’ble Court held in paras 24 to 26

                   “24. Evidentiary value of an extra-judicial confession was again examined in detail by this Court in Sahadevan v. State of T.N. [(2012) 6 SCC 403] that was also a case where conviction was based on extra-judicial confession. This Court held that in a case based on circumstantial evidence, the onus lies upon the prosecution to prove the complete chain of events which shall undoubtedly point towards the guilt of the accused. That apart, in a case of circumstantial evidence where the prosecution relies upon an extra-judicial confession, the court has to examine the same with a greater degree of care and caution. An extra-judicial confession, if voluntary and true and made in a fit state of mind can be relied upon by the court. However, the confession will have to be proved like any other fact. The value of the evidence as to confession like any other evidence depends upon the veracity of the witness to whom it has been made.

                   25. This Court acknowledged that extra-judicial confession is a weak piece of evidence. Wherever the court intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If the extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent, such evidence should not be considered. This Court held as follows : (Sahadevan case)

                   “14. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration.”

                   26. Upon an indepth analysis of judicial precedents, this Court in Sahadevan’s case summed up the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused : (SCC pp. 412-13, para 16)

                   “16. … (i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.

                   (ii) It should be made voluntarily and should be truthful.

                   (iii) It should inspire confidence.

                   (iv)An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

                   (v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

                   (vi) Such statement essentially has to be proved like any other fact and in accordance with law.”

28. In view of the same, we find it difficult to sustain the conviction against the accused. We hold that the prosecution has failed to prove the case.

29. In the result, this Criminal Appeal is allowed and the judgment of conviction and sentence passed by the Principal Sessions Judge, Tirunelveli, in SC No.289 of 2021, dated 01.11.2022 is set aside and the appellant is acquitted from all the charges. Bail bonds, if any, executed by the appellant shall stand cancelled. Fine amount, if any, paid by him is ordered to be refunded to the appellant.