This Criminal Appeal is directed against the judgment passed by the Sessions Judge, Tiruchirapalli, in S.C.No.124 of 2008, dated 25.04.2009.
2.According to the prosecution, the accused was having suspicion over the fidelity of his wife Kumudavalli and the accused gave police complaint also alleging that she was having contact with one Arumugam and on 23.03.2008 at about 12.30 midnight, the accused quarrelled with his wife Kumudavalli and stabbed her wife with knife on her neck and backside of the neck indiscriminately and committed murder. The Inspector of Police attached to Palakarai Police Station has filed a final report against the accused examining the witnesses
3.In the trial court, 23 witnesses were examined and 28 Exhibits and 14 material objects were marked. When the accused was questioned about the incriminating circumstances, he denied the same. On the side of the accused, no witness was examined and no document was produced. The trial court convicted the appellant for the offence under
Section 304(II) IPC and sentenced him to http://www.judis.nic.in 3 undergo rigorous imprisonment for a period of 6 years and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for a further period of 3 months. Aggrieved by the judgement passed by the trial court, the appellant/sole accused is before this court.
4.Heard both sides and perused the materials available on record.
5.The contention raised on the appellant/accused is that the prosecution mainly relied on the evidence of PW4 and PW5 to prove the last seen theory. But both PW4 and PW5 turned hostile and they did not support the case of the prosecution. It is submitted by the learned counsel appearing for the appellant that time factor is more important and there is no evidence or record to show when the deceased and the appellant was seen together, since it is an admitted fact that the appellant was present in the house of PW2 on 23.03.2008, which is at Kalingapatti, whereas the occurrence took place at Mudaliar Chathiram.
6.It is further submitted that the appellant was present in the house of PW2 was admitted by PW2, PW3 and PW7. There is no evidence to prove that accused was present in Mudaliar Chathiram http://www.judis.nic.in 4 at the time of the occurrence. Further, the learned counsel for the appellant submitted that to prove the last seen theory, there should not be break in the chain of circumstances. But in this case, PW4 and PW5 were examined to prove the last seen theory, but they turned hostile and did not support the case of the prosecution and hence, the last seen theory fails and prays that Criminal Appeal has to be allowed. For that, the learned counsel for the appellant submitted the decision reported in (2018)6 SCC 610 (Satpal V State of Haryana), wherein it has been held as follows:-
' '6..We have considered the respective submissions and the evidence on record. There is no eyewitnesses to the occurrence but only circumstance coupled with the fact of the deceased having been last seen with the appellant. Criminal jurisprudence and the plethora of judicial precedents leave little room for reconsideration of the basic principles for invocation of the last seen theory as a facet of circumstantial evidence. Succinctly stated, it may be weak kind of evidence by itself to found conviction upon the same singularly. But, when it is coupled with other circumstances such as the time when the deceased was last seen with the accused and the recovery of the corpse being in very close proximity of time, http://www.judis.nic.in 5 the accused owes an explanation under
Section 106 of Evidence Act with regard to circumstances under which death may have taken place. If the accused offers no explanation or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances the benefit of doubt must go the accused. Each case will therefore have to be examined on its own facts for invocation of doctrine”.
7.On the other hand, the learned Government Advocate (Criminal side) appearing for the respondent/State submitted that the accused was seen by PW1 to PW3, PW6 and PW7 before the occurrence and he was also seen by Palakarai Police on the same day on 23.03.2008 at about 2.00 am and there was no break in the chain of circumstances to prove the last seen theory and prays that the Criminal Appeal has to be dismissed.
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8.It is stated on the side of the appellant/accused that he was not present at the place of occurrence and he is noway connected with the alleged offence and as per the prosecution case, the deceased had illegal connection with some other persons and the deceased might have been murdered by someone else and not by the accused.
9.The case of the appellant/accused is that the accused never came to the occurrence place and he had stayed at his mother-in-law's house. The learned counsel appearing for the appellant/accused mainly relied upon the evidence of the prosecution witnesses and they have not examined any witness to prove the alibi. The prosecution witnesses have stated that the accused was present at Kalingapatti on 23.03.2008. They have also stated that on the next day at about 5.00 am, they have seen the accused at Kalingapatti. On the basis of the above evidence, the learned counsel appearing for the appellant/accused argued that there is no possibility for the accused to come to the occurrence place at Tiruchirappalli.
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10.The learned Government Advocate (Criminal side) appearing for the respondent/State submitted that there is every possibility for the accused to come to the place of occurrence because bus facilities are available very often.
11.In this case, the police, who took the accused to the Palakkarai police station on suspicion on the early morning on 24.3.2008 was examined was PW21. PW21 deposed that on 24.03.2008 at 2.00 am, he took the accused to the police station on suspicion and PW18 took finger prints of the accused and thereafter, they released the accused at 2.45 am and they have recorded it in the general diary.
12.The learned Government Advocate (Criminal side) appearing for the respondent/State submitted that in this case, the general diary has been produced before the trial court, but it was not marked and in the general diary, it was stated that the accused was taken to the police station at 2.00 am and released at 2.45 am and at that time of arrest of the accused by the police, the finger prints of the accused were taken and the finger prints were compared with the finger prints already taken by the police and found that the finger prints tallied with each other. http://www.judis.nic.in 8
13.It is seen that in this case, finger prints were taken by the police on suspicion. The prosecution has not relied upon the finger prints to prove that the same was the finger prints of the accused. The prosecution has relied upon the evidence only to show that the accused was at the place of occurrence I.e, at Malapudur area. Even in the absence of finger prints, the evidence of PW18 can be accepted as an ordinary witness and not as a police witness.
14.It is seen from the records that on 24.03.2008 at about 2.00 am, the accused was seen at Melapudur area near Warehouse. PW2 has stated that the accused came to his house on 23.03.2009, but he had gone away at about 10.00 pm.
15.PW3 has stated that the accused came to his house at 7.00 pm on 23.03.2008 and thereafter at about 9.00 pm, he went away stating that he is going to Tiruchirappalli. Hence, it appears that the accused had gone to Kalingapatti and then he again gone to Tiruchirappalli. The accused was also seen by PW18 at about 2.00 am at Melapudur, which shows that the accused was present at Melappudur at the time of occurrence.
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16.As stated by the prosecution, there is every possibility for the accused to come to Kalingapatti and then to go to Tiruchirappalli thereafter. The learned counsel appearing for the appellant/accused has not produced any documentary evidence to prove the alibi.
17.On careful perusal of the evidence of PW1 to PW3, PW6 and PW7, it reveals that before the occurrence, the accused was seen by the above witnesses and further from the evidence of PW21, it reveals that the accused was seen by Palakarai Police on the same day at 2.00 am on 24.03.2008. Hence, it is held that there should not any break in the chain of circumstance to prove the last seen theory.
18.The next contention put forth on the appellant/accused is that the extra-judicial confession made by the appellant to PW1 is a weak type of evidence and there is no evidence to show that the Village Administrative Officer was known to A1 and unless a person trusts another, there is no question of unburdening his heart to such a person, hence the testimony of Village Administrative Officer that A1 voluntarily gave confession to him is not at all acceptable http://www.judis.nic.in 10 and prays that the accused is entitled to acquittal. For that the learned counsel for the appellant/accused submitted the decision reported in 2007 (1) L.W., (Cri) 555 (Ravi @ Ravichandran – Vs. - State by Inspector of Police, Salem).
19.Further, learned counsel for the appellant/accused submitted that the Village Administrative Officer has not followed the procedure before recording the extra-judicial confession and he has not followed the procedures as per the Village Manual and hence, the extra judicial confession cannot be relied upon. For that, the learned counsel for the appellant/accused submitted the decision reported in 1993-1-LW(Cri) 34 (Thangaraj Vs. State by Inspector of Police, Kottampatti P.S.) and in 2008 (2) MLJ (Cri) 1324 (Murugan Vs. State by Inspector of Police, Pennagaram Police Station).
20.Further, the learned counsel for the appellant/accused submitted that in Ex.P1, it was not stated where the confession statement was recorded and the exact place of recording Ex.P1 statement was not mentioned in Ex.P2 report. It is also submitted by the learned counsel for the appellant/accused that the signature http://www.judis.nic.in 11 found in the extra-judicial confession was forged by the police officials. The signature of the accused in Ex.P1 differs from the signature of the accused found in Ex.P18. In Ex.P1, the accused has signed as R.kUjKj;J. In Ex.P18, the accused signed as nu.kUjKj;J. On perusal of these two signatures, it is seen that there is no differentiation in the signatures. But the accused has put his initial in English in Ex.P1 and in Tamil in Ex.P18.
21.The learned Government Advocate (Criminal side) appearing for the respondent/State submitted that the extra judicial confession made to stranger cannot be eschewed from consideration and the same was not obtained by coercion, promise of favour or false hope and the Village Administrative Officer is not a stranger in a village setup and the Revenue Officials and the Village Administrative Officer are first persons known to villagers and reposing confidence on them and giving confession to the Village Administrative Officer cannot be doubted. For that, the learned Government Advocate (Criminal side) submitted the ruling reported in 2018 (2) MWN (Cr.) 215 (DB) (Kumar alias Pushpakumar Vs. State, rep by Inspector of Police, Karambakudi Police Station, Karambakudi, Pudukkottai District).
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22.It is true that in the Village Manual, some guidelines have been given to the Village Administrative Officer with regard to recording of extra-judicial confession. The guidelines have to be followed by the Village Administrative Officers. The learned counsel appearing for the appellant/accused has relied upon the rulings stated above that non-following of the procedures is fatal to the prosecution case. But the earlier judgment of the Hon'ble Apex Court has not stated that non-following of the procedures stated in the Village Manual with regard to recording of extra-judicial confession is fatal to the prosecution case.
23.In 2008(2)M.L.J 843 (Kuppusamy Vs. State), this court has held that extra-judicial confession can be relied upon when it is made voluntarily. Even in the above ruling, it has not been stated that the the extra-judicial confession given by the Village Administrative Officer can be admitted if it is reliable. Law does not say that the Village Administrative Officer has to follow the procedure. The extra judicial confession cannot always be treated as a tainted evidence.
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24.It is further held in the above decision that before relying upon the extra-judicial confession, the Court must see whether the extra-judicial confession is voluntary in nature. Under these circumstances, the evidence of PW1 is to be tested with reference to other evidences and not with reference to the single factor.
25.The learned counsel for the appearing for the appellant/accused argued that in the inquest report (Ex.P23), it was mentioned in Column 9 about the date and time and on which date the accused was brought to the police Station. The date and time was mentioned as 23.00 hours on 24.03.2008. The occurrence has taken place at 12.30 midnight on 23.03.2008/24.03.2008. In the inquest report in Column Nos.3, 9 and 15, it has been stated regarding the date and time. In Column 3 of the inquest report, it was stated that the accused was first seen by PW1 on 24.03.2008 at about 10.00 p.m. In Column No.9 of inquest report also, it has been stated regarding the date and time, when the accused was brought to the station. In Column No.9, it has been stated that on 24.03.2008 at 11.00 pm i.e, 23.00 hours, the accused was forwarded by the Village Administrative Officer (PW1) to the station.
23.03.2008 at 23.00 hours in Column 9 and the same is not correct. In Column 9, the date and time when the accused was taken to the police station was correctly stated initially. At the end of Column 9 alone, the date was wrongly mentioned as 23.03.2008. In the first information report, it has been stated that PW1 has given the complaint at about 11.00 pm and the first information report was registered. PW22 Mumtaj Begum registered the first information report. PW22 has stated that she registered the case on 24.03.2008 at about 11.00 pm, on receipt of Ex.P1 complaint. Hence, the extra-judicial confession is corroborated with the evidence of PW1. Hence, the argument put forth on the side of the appellant/accused stating that the extra-judicial confession cannot be relied upon is not at all acceptable.
27.The next contention raised on the side of the appellant/accused is that the accused was taken to police station by PW1 (Village Administrative Officer) at 23.00 hours on 24.03.2008 and FIR was registered. It is further submitted that accused was arrested on 25.03.2008 at 13.45 hours as per prosecution. But http://www.judis.nic.in 15 PW18 (Sathar) Head Constable had deposed tat the appellant was taken to the police station by Grade-I PC Rajkumar (PW21) and his thumb impression were recorded at 02.15 hours on 24.03.2008.
28.It is pertinent to mention that finger print of a person cannot be taken just like that. The finger print should be taken only by the order of Judicial Magistrate. This clearly shows that something was happened at the early hours of 24.03.2008 and it was suppressed by the police by creating story that the appellant was taken to the police station on suspicion. This indicates that the accused would have arrested by the police on 24.03.2008 at 02.15 hours itself. That is why, the general diary was not produced before the lower Court. The subsequent extra-judicial confession and the arrest were false and concocted stories created by the prosecution. From the above, it shows that the version of prosecution is self- contradictory and goes against their case.
29.PW21 deposed that the apprehension of the accused by the Police Officials on 23.3.2008 at 2.00 am, when he was wondering here and there at Melaputhur in Palakarai Police limit, the accused was brought to the station on mere suspicion and he http://www.judis.nic.in 16 was not arrested. PW21 and PW8 categorically stated that the accused was present at 24.03.2008 at 2.00 am, merely because PW8 and PW21 are the police officials, their evidence cannot be rejected. Further, there is no proof to show that the accused and the deceased got separated before 24.03.2008.
30.The learned counsel for the appellant/accused argued that the wife of the accused had developed illegal intimacy with some other persons, hence the accused gave a complaint before the police and after that, he has not jointly lived with his wife. Hence, it is not necessary on the part of the accused to explain how his wife was murdered.
31.In this case, PW6 deposed that after the previous incident at Edamalaipattiputhur, the accused and the deceased lived together at Melaputhur. Hence, it appears that till the date of occurrence, the accused and the deceased lived together. Therefore, it is the bounden duty of the accused to explain how his wife was murdered in the house. But, in this case, the accused failed to explain how his wife was murdered, since he and his wife living together.
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32.The learned counsel for the appellant/accused submitted that any intruder would have committed the offence and the learned counsel has relied upon the prior incidents. The learned counsel appearing for the appellant/accused has not established through the evidence that there was some motive between one Arumugam and other paramours of the deceased. There is no possibility for the said Arumugam to commit the offence, since it was not established that the deceased had grievance against the said Arumugam and it was also not established that the said Arumugam had grievance against the accused. In the absence of any grievance, inference cannot be drawn that any intruder might have committed the offence.
33.The learned counsel for the appellant/accused submitted that the arrest and recovery of the material objects cannot be believed, since no independent witnesses were examined. The Village Administrative Officer, who was present at the time of arrest and recovery has already passed away and the Village Assistant (PW11) Viswanathan, who was present at the time of arrest and recovery along with the deceased and the Village Administrative Officer speaks about the arrest and recovery. http://www.judis.nic.in 18
34.According to PW11, the accused gave information and on the basis of information, MO6, MO7 and MO8 were recovered under Ex.P8 Mahazar. PW23 (Investigating Officer) has also stated about the arrest and recovery. PW23 in his evidence has stated that he arrested the accused at about 1.45 am, on 25.03.2008. PW23 on receipt of first information report on 25.03.2008 at 00.10 hours, immediately proceeded to the occurrence place and prepared Ex.P5 Observation Mahazar and Ex.P22 Rough Sketch. He also arranged for taking photographs of the dead body. MO9 series are the photos and Ex.P19 are the negatives. PW19 Durairaj speaks about the photos. Thereafter, PW23 in continuation of his investigation has conducted inquest and prepared Ex.P23 inquest report. Thereafter, at about 1.45 am, he arrested the accused in the presence of the Village Administrative Officer and Village Assistant. Hence, the evidence of PW23 corroborated with the evidence of PW11 Viswanathan. Hence, this court is of the considered view that the arrest of the accused and the recovery cannot be doubted.
35.The learned counsel appearing for the appellant/accused submitted that the time of death was not http://www.judis.nic.in 19 correctly stated and the injuries found on the body of the deceased were incised wounds and incised wounds can be caused by sharp edged weapon on both sides and MO6 (Knife) could not have been used for the commission of the offence. The categorical opinion of the Doctor is that the injuries would have been caused by weapon like MO6. Hence, MO6 can cause injuries found on the dead body. Injuries like incised wounds are stab wounds and it depends upon the manner of attack.
36.PW15 has stated that the first injury is a stab wound and the second injury is also a stab wound. The Doctor has opined that the deceased would have died due to stab wounds. The learned counsel for the appellant/accused submitted that the deceased would have died 42 hours prior to postmortem and hence, the death would not have been occurred at 12.30 midnight on 23.3.2008/24.3.2008. The time of death as spoken to by the Doctor is only a opinial evidence. The Doctor has given the opinion only on the basis of the injuries found on the dead body. Hence, the opinion regarding time of death by the Doctor cannot be taken as a final one, when other circumstances pointed to the guilt of the accused. http://www.judis.nic.in 20
37.MO6 is the knife. MO6 was also sent for chemical examination. It was found that the blood found in MO6 is human blood and it was further found that the Blood was 'A' group blood. PW8 (Bhavani) has examined the blood on the material objects and issued Exs.P3 and Ex.P4 Serological reports.
38.PW10 Simon Arockiaraj speaks about the preparation of Observation Mahazar (Ex.P5) and recovery of MO1 to MO5 under Ex.P6 Mahazar. MO10 to MO13 were recovered from the dead body of the deceased. PW21 handed over the same to the Investigating Officer. Ex.P11 is the Viscera Report. Ex.P12 is the Serological Report. Ex.P27 is the chemical report. Ex.P26 is the biological report. In Ex.P12 report, it has been mentioned that the blood group found on the material objects is “A' group. Ex.P4 is the Serological Report.
39.In this case, items 1 to 11 were sent for chemical examination and it was mentioned in the report that 'A' group blood is found in the material objects. In the shirt, Lungi and knife 'A' group human blood was found. In other material objects belonging to the deceased I.e, Saree, blouse, bra and in-skirt , 'A' group http://www.judis.nic.in 21 human blood was found. The blood group found on the shirt, Lungi and knife tallied with the blood group found on the wearing apparels of the deceased. Ex.P3 is the Serological Report. In Ex.P3 also, it was noted as 'A' group blood. It is seen from the above records that the blood group of the deceased is 'A' group and 'A' group blood was found in the knife. Hence, MO3 knife has been used for the commission of the offence and the knife was also recovered at the instance of the accused. Ex.P26 is the biological report. The chemical analyst examined items 1 to 11 and found that blood was found in the material objects, except MO2.
40.PW15 the Doctor, who conducted postmortem over the dead body. After postmortem, she issued Ex.P10 postmortem certificate and the final opinion Ex.P13. PW15 Doctor has stated that she found all the injuries on neck portion. The final opinion of PW15 is that the deceased would appear to have died of stab wounds. Injuries all on the vital parts of the body of the deceased. The Doctor has stated that the injuries are sufficient to cause the death of the deceased. She has also stated that these injuries would have been caused by weapon like MO6.
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41.PW14 Mohammed Ali is an employee of Classic Food Shop. He has stated that the deceased did not come to work after 23.03.2008. PW13 Savarimuthu is running a rice shop. He was treated as a hostile. But in his evidence, he has stated that Pandian came to his shop and asked about rental house and he gave information to him. PW5 is the owner of the house where the deceased and accused were residing. In this case, PW5 turned hostile. The extra-judicial confession of the accused is corroborated by other circumstantial evidence. Under these circumstances, even-though the Village Administrative Officer has not recorded the statement in triplicate as per Village Manual, the evidence of PW1 can be accepted since the other circumstantial evidence corroborated with the evidence of PW1.
42.It is true that PW1 was not known to the accused earlier and PW1 has not gone to the occurrence place to verify the occurrence according to the statement of the accused. It was argued on the side of the appellant/accused that there were some corrections in Ex.P1 statement of the accused regarding the time. Hence, the prosecution case regarding the extra-judicial confession cannot be relied upon.
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43.PW1 speaks about the corrections in Ex.P1 statement. PW1 has given explanation that he alone made corrections while recording the statement. But no initial was affixed for the corrections made by PW1. This single version will not falsify the entire case. Considering the other circumstances, these circumstances will not falsify the evidence of PW1. When PW1 was already known to the accused, he might have allowed the accused to escape. It is not necessary that there must be some necessity for the accused to give statement before PW1, Village Administrative Officer about this crime.
44.It appears from the evidence that at the time of occurrence, there was dispute between the accused and deceased. Prior to occurrence, the accused went to Kalingapatti and left Kalingapatti at 10.00 pm on 23.03.2008 and again he came to Kalingapatti at 5.00 am on 24.03.2008. At the time of occurrence, there was problem between the accused and the deceased. The accused asked the deceased about the conduct of the deceased. For that, the deceased told him that 'vd; tpUg;gk;Nghy; ahUld; Ntz;LkhdhYk; NghNtd;.” The said statement provoked the accused and he took the knife and caused her death.
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45.Considering all these aspects, the trial court has correctly come to the conclusion and found the appellant/accused guilty, which does not require any interference by this court. However, considering the family circumstances of the appellant, the punishment imposed on the appellant/accused requires modification.
46.In the result, the Criminal Appeal is partly allowed. The punishment imposed on the appellant for the offence under
Section 304(II) IPC is reduced to 4 years RI and the appellant is directed to undergo 4 years RI for the said offence. In other aspects, the findings of the trial court is confirmed. The period of sentence, if any already undergone by the appellant shall be given set off under Section 428 of Cr.P.C. The appellant, after adjusting the period of imprisonment already undergone shall undergo imprisonment for the remaining period.
24.06.2019 Index:Yes/No Internet:Yes/No vsd/er http://www.judis.nic.in 25 To,
1.The Sessions Judge, Tiruchirappalli.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 26 T.KRISHNAVALLI, J.
vsd/er Crl.A(MD)No.130 of 2009 24.06.2019 http://www.judis.nic.in