IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.02.2008 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Criminal Appeal No.495 of 2007 Murugaiyan S/o Kalia Perumal .. Appellant -vs- State rep.by Inspector of Police Annamalai Nagar Police Station Chidambaram District (Crime No.242 of 2005) of Killai Police Station .. Respondent Memorandum of Grounds of Criminal Appeal under Section 374(2) of the Criminal Procedure Code against the judgment dated 4.8.2006 made in S.C.No.289 of 2006 on the file of the learned Principal Sessions Judge, Cuddalore. For Appellant :: Mrs.Jayasri Baskar For Respondent :: Mr.P.Kumaresan Addl. Public Prosecutor JUDGMENT
(Judgment of the Court was delivered by D.MURUGESAN, J.)
The appellant is the sole accused who was convicted by the judgment dated 4.8.2006 in S.C.No.289 of 2006 on the file of the learned Principal Sessions Judge, Cuddalore and sentenced to undergo life imprisonment and also to pay a fine of Rs.5,000/-, in default to undergo rigorous imprisonment for six months for the offence under Section 302 IPC and to undergo rigorous imprisonment for seven years and also to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for two months for the offence under Section 307 IPC and the sentences have been ordered to run concurrently. The legality of the said judgment is put in issue in this appeal.
2. The case of the prosecution is that the appellant/accused was serving in the Central Security Force and he was a liquor addict. He stayed in Thillaiamman Nagar, Chidambaram along with his mother, P.W.1 and younger brother, P.W.4 and did not leave the said place even after the leave had expired. As he had no source of money to purchase liquor, he used to demand money from his mother, P.W.1 as well from the deceased-Anjalatchi, who is none other than his younger brother’s wife. Whenever such demands were made, P.W.1 as well as the deceased used to scold him for his addict to liquor. On the fateful day i.e., on 23.12.2005 around 4.30 p.m., when the accused demanded money from his mother, P.W.1 for taking liquor, she stated that she did not have any money and therefore the accused scolded her. Thereafter, P.W.1 came out of the house. At that time, the deceased, working as a Teacher, returned back from the school at 5.30 p.m. When the deceased went inside the house after waiting outside for some time along with her daughter-Reshma, the accused again demanded money from her, but the deceased expressed her inability to provide money to the accused. Hence the accused took up a crow bar and threatened the deceased that he will murder her as well as her daughter in the event she did not pay money. As the deceased again told the accused that she did not have money, the accused attacked her daughter-Reshma with the crow bar on the back of her head and she fell down. As the deceased tried to save her daughter, the accused attempted to attack her but she ran out of the house fearing threat to her life. The accused followed her and hit on the head of the deceased with the same crow bar causing her instantaneous death and thereafter he fled from the place of occurrence.
3. P.W.1 thereafter took the injured-Reshma to Government Kamaraj Hospital, Chidambaram, where she was treated by the doctor, P.W.18 at 6.30 p.m., on 23.12.2005. He issued the accident register, Ex.P-23 with his opinion that the deceased was unconscious. He treated the injured and referred her to Rajah Muthiah Medical College & Hospital, Annamalai Nagar for further treatment.
4. On receipt of telephonic message from the Chidambaram Annamalai Nagar Police Station, P.W.17, the Sub Inspector of Police attached to Killai Police Station, visited the Rajah Muthiah Medical College & Hospital, where the injured-Reshma was taking treatment and recorded the complaint, Ex.P-21 from P.W.1-Adilakshmi, who was also in the hospital along with her granddaughter, at 7.30 p.m. He came back to the police station and registered a case in Cr.No.242 of 2005 for the offence under Section 307 & 302 IPC. The printed First Information Report is Ex.P-22. He forwarded the express reports to the Judicial Magistrate, Parangipettai as well to the higher police officials. He handed over the investigation to P.W.20.
5. P.W.20, the Inspector of Police in-charge of Annamalai Nagar Police Station, took up investigation in this case and proceeded to the scene of occurrence at 9.00 p.m., on 23.12.2005 and prepared an Observation Mahazar, Ex.P-19 and also drew a rough sketch, Ex.P-26 in the presence of P.W.16 and another witness. He also made arrangements to take photographs of the scene place. He also seized the bloodstained earth and the sample earth under the mahazar, Ex.P-20 in the presence of the same witnesses. The photographs and the negatives have been marked as M.Os.2 & 3 series. Between 10.00 p.m., and 11.45 p.m., he conducted inquest on the body of the deceased in the presence of the panchayatdars and witnesses and prepared the inquest report Ex.P-27.He examined P.Ws.2,3,4,8 and other witnesses and recorded their statements. Thereafter, he sent the body of the deceased along with a requisition through the Head Constable for conducting post-mortem on the body of the deceased.
6. P.W.13, Assistant Surgeon attached to Government Kamaraj Hospital, Chidambaram commenced post-mortem on the body of the deceased at 11.40 a.m., on 24.12.2005 and she noted the following external injuries:-
“A lacerated wound 7 cm x 1 cm x bone depth over parieto occipital region of scalp in the middle…Head: Scalp injury as above skull bone fracture over parieto occipital bone suture line 5 cm in length fracture through entire inter parietal bone suture line. Membrane torn over occipital region. Brain blood clots 100 gms over parieto occipital region of bran convulsion present.”
Post-mortem concluded at 12.40 p.m.”
She issued the post-mortem certificate, Ex.P-12 with her opinion that the deceased appeared to have died about 14 to 20 hours prior to post-mortem due to haemorrhage and shock due to head injury.
7. P.W.20, continuing with his investigation, went to Rajah Muthiah Medical College & Hospital, Annamalai Nagar on 24.12.2005 and examined P.W.1 and recorded her statement. He arrested the accused at 2.00 p.m., near Chidambaram gate in the presence of the Village Administrative Officer, P.W.9 and in pursuance of the admissible portion of his confession under Ex.P-4, he seized the crow bar, M.O.1 from the accused which was hidden in a bush under the mahazar, Ex.P-5. He brought the accused to the police station at 4.30 p.m., and remanded him to judicial custody. He seized the saree, M.O.4, inskirt, M.O.6 and the blouse, M.O.5 produced by the Head Constable from the body of the deceased under Form-95 in the presence of P.W.9. He sent the seized material objects to the Court under Form-95. He handed over the investigation to P.W.21.
8. P.W.21, the regular Inspector of Police attached to Annamalai Nagar Police Station, took up further investigation on 26.12.2005 after returning from leave. He examined P.Ws.5,6,7 and other witnesses and recorded their statements on the same day. He gave requisition on 30.12.2005 to the Judicial Magistrate No.II, Chidambaram for recording the statements of P.W.1, the injured Reshma and P.W.4 under Section 164 Cr.P.C., and accordingly, their statements were recorded by the Magistrate on 18.1.2006. He examined the doctors who treated the injured and who conducted post-mortem and recorded their statements. He also examined P.Ws.17, the Sub Inspector of Police and P.W.14, the Head Constable and recorded their statements. After completing investigation on 14.2.2006, he laid the final report against the accused for the offence under Sections 307 & 302 IPC before the Court.
9. To bring home the charges against the accused, the prosecution examined 21 witnesses, marked 27 exhibits and produced 6 material objects.
10. We have heard the learned counsel for the appellant as well as the learned Additional Public Prosecutor for the respondent.
11. Before the Court, P.W.1, the mother of the deceased, an eye-witness to the occurrence, has turned hostile. The other two witnesses namely, P.Ws.2 & 3, who have spoken about the circumstances, also have turned hostile. P.Ws.5,6 & 7 examined to speak about the sighting of the deceased as well as the injured in a pool of blood in the scene of occurrence have also turned hostile. The prosecution therefore was left only with the evidence of P.W.4 and P.W.8 apart from the official witnesses.
12. So far as P.W.1 is concerned, though she had turned hostile, we have carefully perused her evidence and we cannot find out any statement in favour of the prosecution, as she completely disowns her complaint given to P.W.17. In the absence of any statement in favour of the prosecution, her evidence cannot be of any use to support the prosecution version. Likewise the evidence of P.Ws.2 & 3 who have spoken about the circumstances namely, that the accused used to demand money from P.W.1 and the deceased have also turned hostile. Here again, we cannot find out any of their statement in favour of the prosecution and therefore they are of no assistance to the prosecution. Even so far as the examination of the witnesses P.Ws.5 to 7 to speak about the injured lying in a pool of blood in the place of occurrence, the prosecution has failed to establish its case, as all the above three witnesses have turned hostile. This left the prosecution to solely rely upon the evidence of P.Ws.4 & 8. P.W.4-Arunagiri is the younger brother of the accused. We have carefully gone through his evidence. He has only deposed that he came to know that the accused had attacked the deceased and the injured Reshma. In the absence of any other evidence of the witnesses who have actually seen the occurrence, a conviction cannot be made solely on the basis of hearsay evidence. Hence the evidence of P.W.4 is also of no assistance to the prosecution.
13. Likewise P.W.8, the father of the deceased, has also not spoken as to the witnessing of the occurrence by himself. His evidence is also hearsay and cannot be the basis for conviction.
14. This takes us to the evidence of the Village Administrative Officer, P.W.9 who was examined to speak about the confessional statement of the accused as well as the recovery of M.O.1 under the mahazar, Ex.P-5 on the basis of the admissible portion of his confessional statement, Ex.P-4. We have also perused the original copy of Ex.P-5. There is a correction in Ex.P-5 where the description of M.O.1 has been altered. Though the M.O.1 was stated to be one of Kadaparai, it is admitted by P.W.9, the Village Administrative Officer that there was a correction in Ex.P-5 giving suspicion as to the weapon used in the occurrence. Hence the evidence of the Village Administrative Officer as to the recovery also is of no use to the prosecution.
15. We have carefully perused the judgment of the trial Judge. On perusal of the same, we are of the considered view that the learned Judge has come to the conclusion as to the guilt of the accused solely on the basis of his statement under Section 313 of the Criminal Procedure Code, particularly, with reference to the answer given by the accused for question no.12. He was questioned as to what he would say as to P.W.4 stating that his daughter and his wife were attacked by the accused with a crow bar and his wife was killed on such hitting, the accused has answered to the effect that it is true that he made attempts to take the crow bar and even before he could attack the deceased, he found the body of the deceased lying down and the crow bar had lightly touched the injured Reshma. The learned Judge has relied upon the above answer given by the accused as admission of his guilt and consequently convicted him.
16. The question as to whether an accused could be found guilty and convicted solely on the basis of his statement under Section 313 of the Criminal Procedure Code came up for consideration before the Apex Court in the judgment in Sampat Singh v. State of Rajasthan (1969) 1 SCC 367. The said judgment was relied upon by the Apex Court in the subsequent judgment reported in 1998 SCC Crl.929, wherein in paragraph 10 the Apex Court has held as follows:-
“Time and again this Court has pointed out that such answers of the accused can well be taken into consideration in deciding whether the prosecution evidence can be relied on and whether the accused is liable to be convicted of the offences charged against him.”
However, in the very same judgment, the Apex Court had made it clear that when the statement of the accused contain admission of circumstances put against him are not by themselves delinked from the evidence, such statement can be used for arriving at a finding that the accused had committed the offence. By the said finding, the Apex Court has held that the statement by themselves cannot be the sole basis for conviction.
17. In Mohan Singh v. Prem Singh and another (2003 SCC (Crl.) 1514), the Apex Court has held as paragraphs 27 & 30 follows:
“27. The statement made in defence by the accused under Section 313 CrPC can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under Section 313 of the Code of Criminal Procedure cannot be made the sole basis of his conviction. The law on the subject is almost settled that statement under Section 313 CrPC of the accused can neither be relied in whole or in part. It may also be possible to rely on the inculpatory part of his statement if the exculpatory part is found to be false on the basis of the evidence led by the prosecution. See Nishi Kant Jha v. State of Bihar (1969) 1 SCC 347: (Scc pp.357-58, para 23)
“23. In this case the exculpatory part of the statement in Exhibit 6 is not only inherently improbable but is contradicted by the other evidence. According to this statement, the injury which the appellant received was caused by the appellant’s attempt to catch hold of the hand of Lal Mohan Sharma to prevent the attack on the victim. This was contradicted by the statement of the accused himself under Section 342 CrPC to the effect that he had received the injury in a scuffle with a herdsman. The injury found on his body when he was examined by the doctor on 13.10.1961 negatives both these versions. Neither of these versions accounts for the profuse bleeding which led to his washing his clothes and having a bath in River Patro, the amount of bleeding and the washing of the bloodstains being so considerable as to attract the attention of Ram Kishore Pandey, PW17 and asking him about the cause thereof. The bleeding was not a simple one as his clothes all got stained with blood as also his books, his exercise book and his belt and shoes. More than that the knife which was discovered on his person was found to have been stained with blood according to the report of the Chemical Examiner. According to the post-mortem report this knife could have been the cause of the injuries on the victim. In circumstances like these there being enough evidence to reject the exculpatory part of the statement of the appellant in Exhibit 6 the High Court had acted rightly in accepting the inculpatory part and piercing the same with the other evidence to come to the conclusion that the appellant was the person responsible for the crime.”
30. The statement of the accused under Section 313 CrPC is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the prosecution. As held in the case of Nishi Kant by this Court, if the exculpatory part of his statement is found to be false and the evidence led by the prosecution is reliable, the inculpatory part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement under Section 313 CrPC cannot be made the sole basis of his conviction.”
18. As the statement under Section 313 of the Criminal Procedure Code cannot be made the sole basis for convicting and sentencing the accused as has been held by the Apex Court, we are not in agreement with the learned trial Judge in placing reliance on the said statement. Even a perusal of the statement under Section 313 of the Criminal Procedure Code, in our opinion, cannot by any stretch of imagination be taken as the statement of the accused pleading guilty or having admitted the commission of the offence, but only has stated that while he made attempts to take the crow bar and even before he could attack, he saw the deceased lying in a pool of blood and while he took the crow bar it had lightly touched the injured Reshma and not more than that. Hence the judgment of the learned trial Judge in convicting and sentencing the accused is unsustainable, as our analysis of the evidence does not indicate of any other evidence or incriminating material to implicate the accused for the commission of the offence. Except the statement of the accused under Section 313 of the Criminal Procedure Code and in view of our finding that the statement made under Section 313 of the Criminal Procedure Code cannot be the sole basis for conviction, the judgment of the learned trial Judge is liable to be set aside and the accused is entitled to acquittal.
19. Accordingly, the judgment of the learned trial Judge made in S.C.No.289 of 2006 is set aside and the criminal appeal is allowed. The appellant/accused shall be released forthwith, unless his custody is required in connection with any other case. Fine amount, if any, paid is ordered to be refunded.
Index : yes (D.M.,J.) (V.P.K.,J.) Internet: yes 05.02.2008 ss To 1. The Principal Sessions Judge, Cuddalore 2. The Superintendent, Central Prison, Cuddalore 3. The Public Prosecutor, High Court, Madras 4. The Inspector of Police, Annamalai Nagar Police Station, Chidambaram District 5. The District Collector, Cuddalore 6. The Director General of Police, Chennai D.MURUGESAN, J. & V.PERIYA KARUPPIAH, J. Crl.A.No.495 of 2007 05.02.2008