IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 06.03.2008 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Criminal Appeal No.880 of 2005 Elumalai S/o Ramalingam .. Appellant -vs- State of Tamil Nadu rep.by Inspector of Police I/C Thalaivasal Police Station Crime No.4/2004 .. Respondent Memorandum of Grounds of Criminal Appeal under Section 374(2) of the Criminal Procedure Code against the judgment dated 20.7.2005 made in S.C.No.342 of 2004 on the file of the learned Principal Sessions Judge, Salem. For Appellant :: Mr.S.N.Narasimhalu For Respondent :: Mr.V.R.Balasubramanian Addl. Public Prosecutor JUDGMENT
(Judgment of the Court was delivered by D.MURUGESAN, J.)
The appellant/Accused No.1 was tried along with Accused No.2 for the offence under Sections 364 & 302 IPC and was found guilty, convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for six months for the offence under Section 364 IPC and to undergo life imprisonment and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for six months for the offence under Section 302 IPC and both the sentences have been ordered to run concurrently by the judgment dated 20.7.2005 made in S.C.No.342 of 2004 passed by the learned Principal Sessions Judge, Salem. However, the learned trial Judge acquitted Accused No.2 of the charges under Sections 364 and 302 r/w 109 IPC. Challenging the conviction and sentence, the appellant has preferred this appeal.
2. The facts of the prosecution case in brief are as follows:-
The deceased-Amudha is the daughter of the appellant, who will be hereinafter referred to as the accused. As the deceased intended to marry one Shankar, which was objected to by the accused, and in spite of the objection the deceased insisted for marrying the said Shankar, the accused, with the assistance of Accused No.2, kidnapped the deceased in a lorry bearing Regn.No.TN-07-AB-0734 on 7.1.2004 at 5.00 p.m., driven by Accused No.2, and murdered her and threw the body in the Manivilunthan lake.
3. At about 10.30 a.m., on 8.1.2004 when P.W.1, the Village Administrative Officer was in his office, his Assistant by name Sekar came and informed him that a body of a female aged approximately 30 years was found in the lake with cut injuries. Thereafter, he visited the scene of occurrence at 12.00 noon and found the body of the deceased. Though he enquired the persons present there as to the identity of the body, nobody had identified the body and therefore, after asking his Assistant to stay near the body, he went to Thalaivasal Police Station and lodged the complaint, Ex.P-1 to P.W.13, the Sub Inspector of Police at about 12.30 p.m., and upon such complaint, he registered a case in Cr.No.4 of 2004 for the offence under Section 302 IPC and prepared the printed First Information Report, Ex.P-23. He forwarded the First Information Report along with the complaint to the Court as well as the copies to the higher police officials.
4. P.W.16, the Inspector of Police attached to Veeraganoor and in-charge of Thalaivasal Police Station, took up further investigation and he proceeded to the scene of occurrence at 1.30 p.m., on 8.1.2004 and prepared an Observation Mahazar, Ex.P-2 and also drew a rough sketch, Ex.P-28 in the presence of P.W.1 and his Assistant. He also caused photographs of the scene of occurrence. He also seized the bloodstained earth, M.O.1, sample earth, M.O.2, bloodstained towel, M.O.3, a pair of chappals, M.O.4 series, identity card, M.O.5, Rs.50 denomination note, M.O.6, Rs.20 denomination note, M.O.7 and three one ruppee coins, M.O.8 series under the mahazar, Ex.P-3 in the presence of the said witnesses. Thereafter he conducted inquest on the body of the deceased in the presence of panchayatdars and witnesses between 3.30 p.m., and 4.30 p.m., and prepared the inquest report, Ex.P-29. He sent the body of the deceased through the Head Constable 299 along with a requisition to the doctor for conducting post-mortem.
5. P.W.7, Police Surgeon and Prof. of Forensic Medicine attached to Government Mohan Kumaramangalam Medical College & Hospital, Salem, commenced post-mortem on the body of the deceased at 10.15 a.m., on 9.1.2004 and he noted the following injuries:-
“1. An oblique gaping cut injury present over the inner aspect of lower one third of R forearm 3.5 cm 1.5 cm bone deep.
2. 3 cm below the previous injury a gaping cut injury present 2 cm 0.5 cm bone deep.
3. On the middle one third of R forearm on the outer aspect, a gaping cut injury present 4.5 cm 2 cm bone deep.
4. A gaping cut injury present over the middle one third of L forearm two cut injuries present 12 cm 4 cm bone deep cut fracture of bone present below it.
5. A gaping cut injury present over L wrist 3 cm 1 cm bone deep cut fracture of bone present below it.
6. A gaping cut injury present on the dorsum of L hand 3.5 cm 1 cm bone deep.
7. A cut injury present on L middle finger 2 cm x 0.5 cm bone deep.
8. A cut injury present over the front of L shoulder 7.5 cm 4 cm bone deep.
9. A cut injury present on outer aspect of L side of chest 6.5 cm 3.5 cm cavity deep (enters into the thoracic cavity) it passes through the 6th intercostal space. A stab injury on L lung present 4 cm 2 cm 1 cm L pleural cavity 50 ml of fluid blood.
10. A gaping cut injury over the occipital region 7 cm 3 cm bone deep cut fracture of bone present below.
11. 3 cm below the previous injury another cut injury present 7 cm 3 cm bone deep cut fracture of bone present below.
12. 2 cm below the above injury a gaping cut injury present 6.2 0.5 cm.
13. A gaping cut injury present over the L cheek 3.1 0.5 cm.
14. A superficial incision present on L cheek 7 cm.
15. Fracture of ribs 5 x 6 present on L side.
16. A cut injury present over the L side of forehead 3.1 0.5 cm.
17. A cut injury below L eye 3.1 0.5 cm.”
He issued the post-mortem certificate, Ex.P-9 with his opinion that the deceased died due to shock and haemorrhage due to multiple injuries.
6. P.W.16, in the meanwhile, examined P.W.12 and the Head Constable Ramasamy on 9.1.2004 and recorded their statements. P.W.6, the mother of the deceased, identified the body of the deceased as that of her daughter in the hospital on 10.1.2004. He examined P.W.6 and other witnesses and recorded their statements. He also seized the black coloured pettycoat, M.O.14 saree, M.O.15, bloodstained blouse, M.O.16, bloodstained bra, M.O.17 and and the blue coloured jatty, M.O.18 produced by the Head Constable from the body of the deceased and sent those material objects to the Court along with his special report. On the basis of information received, he went to Thadalur-Sengavalli road junction at 10.00 a.m., on 13.1.2004 and arrested the accused no.2 and in pursuance of the admissible portion of his confession, he seized the lorry bearing Regn.No.TN-07-AB-0734, M.O.9 under the mahazar, Ex.P-5. He remanded him to judicial custody. He gave requisition to the Chief Judicial Magistrate for recording the Section 164(5) Cr.P.C., statements of P.W.6 and other witnesses on 15.1.2004. On the basis of information received on 17.1.2004, he arrested the accused at 11.00 a.m., near the Vandavasi-Tindivanam road junction in the presence of P.W.9 and another and in pursuance of the admissible portion of his confession, he seized the shirt, M.O.10 and lungi, M.O.11 worn by the accused at the time of commission of offence under the mahazar, Ex.P-13. He also seized the bloodstained chopper, M.O.12 from the accused under the mahazar, Ex.P-14. He also seized the poison box, M.O.13 from the accused under the mahazar, Ex.P-15. Thereafter, he remanded the accused to judicial custody. He examined the post-mortem doctor, P.W.7 and recorded his statement. On 28.1.2004 he took the accused into police custody and, after producing him before the Tahsildar for recording the extra-judicial confession, he remanded him back to judicial custody. He examined the other witnesses and recorded their statements. He sent the seized material objects through the Court for chemical analysis. After completing investigation on 6.4.2004, he laid the final report against both the accused for the offence under Sections 364, 302 read with 109 IPC before the Court.
7. In order to prove its case, the prosecution had examined 16 witnesses, marked 29 exhibits and produced 18 material objects.
8. When the accused were questioned under Section 313 of the Criminal Procedure Code as to the incriminating materials appearing against them, they denied them as false. In fact both the accused also filed their written statements denying the prosecution case as false. No witness was examined and no document was marked on the side of the defence. The learned trial Judge convicted the accused for the offence as stated earlier, but acquitted the accused no.2 of all the charges. Hence this appeal.
9. Learned counsel for the appellant has submitted that as the prosecution case is purely on circumstantial evidence, the learned trial Judge has erred in convicting the accused solely on the basis of the extra-judicial confession, Ex.P-11 given to the Tahsildar, P.W.8. He would also submit that though the learned trial Judge has also relied upon the arrest of the accused and the recovery of chopper, M.O.12 from him, the Serologist’s report, Ex.P-20 does not support the recovery, as no bloodstain was detected. The learned counsel therefore submitted that as it is a case of circumstantial evidence, the burden on the prosecution has not been discharged to implicate the accused.
10. We have heard Mr.V.R.Balasubramanian, learned Additional Public Prosecutor for the respondent also.
11. The law on the circumstantial evidence is now well settled by the Apex Court in a number of judgments. In Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116, the Apex Court has held that “while dealing with circumstantial evidence, the onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea”.
12. In Padala Veera Reddy v. State of Andhra Pradesh (1989 Supp (2) SCC 706), the Apex Court has laid down the following tests for consideration in a case of circumstantial evidence:
“(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.”
13. The above judgments were quoted with approval by the Apex Court in the judgment in Manjunath Chennabasapa Mudalli v. State of Karnataka (2007) 3 SCC (Crl.) 101. That apart, the Apex Court has also held in Sudama Pandey v. State of Bihar (2002 SCC (Crl.) 239 that the prosecution must establish its case without any missing link.
14. Keeping the above law laid down by the Apex Court in mind, we will have to analyse the circumstances put against the accused. Admittedly, the prosecution has let in only two circumstances against the accused namely (1) the extra-judicial confession, Ex.P-11 said to have been given by the accused to the Village Administrative Officer, P.W.8 on 28.1.2004 and (2) the arrest of the accused and the recovery of the chopper, M.O.12 on 17.1.2004.
15. So far as the extra-judicial confession is concerned, the investigation commenced as soon as the complaint, Ex.P-1 was registered by the Sub Inspector of Police, P.W.13 and thereafter, the Investigating Officer, P.W.16 had visited the scene of occurrence at 1.30 p.m., on 8.1.2004. It has now been well settled by the Apex Court in the judgment in Ram Singh v. Sonia and others (2007 (2) SCC Crl.1) that an extra-judicial confession given by the accused while he is in police custody is hit by Section 26 of the Evidence Act and it cannot be proved against him. In this case, the arrest of the accused was made on 17.1.2004 and he was remanded to judicial custody. Again he was taken into police custody on 28.1.2004 and on the same day, the extra-judicial confession, Ex.P-11 was recorded by the Tahsildar, P.W.8 in the presence of the police. According to us, the extra-judicial confession, Ex.P-11 lacks sanctity in the eye of law for more than one reason. Firstly, the confession was recorded after the investigation was commenced. Secondly, after the arrest of the accused and in the presence of the police, the Tahsildar, who is not competent to record any statement after the investigation commenced, has recorded the confession. Hence the prosecution cannot rely upon the extra-judicial confession given by the accused to the Tahsildar, P.W.8 as one of the circumstances.
16. This leads us to the next circumstance relied upon by the prosecution namely, the arrest of the accused and the recovery of M.O.12, chopper from him. The accused was arrested on 17.1.2004 and on the basis of the admissible portion of his confession, he has produced the chopper, M.O.12. However, though it is stated that the chopper contained bloodstain, the said stand of the prosecution is not supported by the serologist’s report, Ex.P-20. The Scientific Assistant who conducted the examination did not detect group ‘O’ human blood in the chopper though he detected such a group in the towel worn by the accused and in the skirt, saree and blouse worn by the deceased at the time of occurrence. Equally the earth collected from the place of occurrence also did not disclose any blood group. However, it is to be noted that though a faded violet silken full sleeved shirt with white cross stripes and a green silken lungi having white dotted design and back cross stripes namely, M.Os.10 & 11 were recovered from the accused, they have not even be forwarded for chemical examination apparently as they did not contain any blood. This is evident from the report of the Scientific Officer in Ex.P-19 that she did not detect any blood on the above two material objects. In these circumstances, the prosecution cannot also rely upon the recovery as another circumstance for establishing its case. Except the above circumstances, there are no other circumstance put forth by the prosecution for implicating the accused.
17. As we have found both the circumstances put forth by the prosecution against the accused cannot be taken into consideration for sustaining the conviction, the judgment of conviction and sentence passed by the learned trial Judge in S.C.No.342 of 2004 is liable to be set aside. Accordingly, the conviction and sentence imposed on the accused-appellant are set aside and the criminal appeal is allowed. Bail bonds executed by the accused shall stand terminated. Fine amount, if any, paid is ordered to be refunded.
Index : yes (D.M.,J.) (V.P.K.,J.) Internet: yes 06.03.2008 ss To 1. The Principal Sessions Judge, Salem 2. The Judicial Magistrate No.II, Attur, Salem District 3. -do- thru' the Chief Judicial Magistrate, Salem 4. The Chief Judicial Magistrate, Coimbatore 5. The Superintendent, Central Prison, Coimbatore 6. The Public Prosecutor, High Court, Madras 7. The Inspector of Police I/C, Thalaivasal Police Station, Salem District 8. The District Collector, Salem 9. The Director General of Police, Chennai D.MURUGESAN, J. & V.PERIYA KARUPPIAH, J. Crl.A.No.880 of 2005 06.03.2008