Judgment:
M. Jeyapaul, J.
1. The sole accused, who was convicted for the charge under Section 302 of the Indian Penal Code and was sentenced to undergo life imprisonment and also convicted for the charge under Section 397 of the Indian Penal Code and was sentenced to undergo seven years rigorous imprisonment, moves the present criminal appeal.
2. On the side of the prosecution, P.Ws.1 to 30 were examined and Exs.P1 to P24 and M.Os.1 to 9 were marked. There is neither oral nor documentary evidence on the side of the accused.
3. The brief summary of the case of the prosecution as spoken to by the witnesses reads as follows:
i) The deceased Alamelu is the wife of PW1 Selvaraj. PW2 Chandrasekaran and PW3 Rajendran are the brothers of PW1 Selvaraj. PW10 Vemban is the son of PW1. PW14 Suresh is the son of the other brother of PW1.
ii) PW1 Selvaraj had been to foreign country for about ten long years to eke out his livelihood. Just about eight months prior to the occurrence, he came down to his village Eramanoor.
iii) On 9.12.2006, PW17 Poomalai, brother-in-law of PW1 Selvaraj and brother of the deceased Alamelu, one Muthusamy and PW1 Selvaraj went by TVS XL vehicle to the fieled of PW3 Rajendran for the purpose of collecting plantain stem. Beforeever proceeding to the house of PW17 Poomalai, he contacted his wife from the petrol bunk located at Salem Road. After making a call to his wife, PW1 proceeded to Vepur after leaving PW11 Muthukrishnan at Adari. From Vepur, PW1 proceeded to Virudhachalam and having taken a cycle from the shop of Sekar, went to Virudhachalam Union Office. He arrived at No. 18 Deluxe Lodge in Virudhachalam to meet the Surveyor but, he was not found over there. Therefore, he came down to the shop of Sekar and left the cycle over there. Accompanied by Kalaiselvan, he went to the office of the Village Administrative Officer, who had received some deposit amount from him for the purpose of measuring the property belonging to PW1 Selvaraj and his brothers. The Village Administrative Officer, who received separately some deposit amount from PW1 did not return the said amount and therefore, the said amount was demanded back by PW1. At 4.30 pm, PW8 Arumugam came down to Virudhachalam and informed PW1 that Alamelu, the wife of PW1 was missing and cattles which strayed were tethered by him. PW1 alongwith his friends, having taken tiffin at Arcot Hotel, returned to his village at about 6.00 pm on the said day.
iv) He contacted PW9 Seetha, wife of PW2 Chandrasekaran and enquired about Alamelu. She informed PW1 that cattles alone returned to the house, but not Alamelu. PW1 and his close relatives went in search of Alamelu. The places where Alamelu used to graze the cattle were searched. One Muthusamy located a towel of the deceased in the field of PW8 Arumugam. At a distance of about two metres from there, PW1 found the dead body of his wife with the injury on her neck. There was a ligature mark around her neck. The blouse was torn off. Nail marks were found. There was also an injury on her cheek. The petticoat was found on the upper portion of the body. The gold ornaments worn by Alamelu were missing. Blood had oozed out from ear and nose. The dead body of Alamelu was shifted to the house of PW1.
v) PW1 Selvaraj, thereafter, proceeded to Virudhachalam Police Station and lodged the complaint, Ex.P1 to PW28 Nagarajan at about 0030 hours at 10.12.2006. PW28 registered a case in Crime No. 470/06 and prepared printed FIR, Ex.P18. He despatched the original to the learned Judicial Magistrate and the copies thereof to the higher officials concerned.
vi) PW29 Prasannakumar, Inspector of police attached to Virudhachalam Police Station received a copy of the FIR at about 1.00 am on 10.12.2006 and rushed to the scene of occurrence at about 2.30 am. He went to the field of PW8 Arumugam and inspected the same and prepared observation mahazar. He also drew rough sketch, Ex.P23 reflecting the scene of occurrence. At about 6.30 am on the said day, he recovered a pair of chappals, M.O.8 and cell phone, M.O.9 under relevant seizure mahazar, Ex.P19. He also inspected the verandah portion of the house of PW1 Selvaraj where the dead body was placed and prepared observation mahazar. He also drew rough sketch, Ex.P24 reflecting the location where the dead body was placed in front of the house of PW1 Selvaraj.
vii) PW29 conducted inquest on the dead body of Alamelu between 8.00 am and 10.00 am on the said day in the presence of witnesses and panchayatdars and prepared inquest report, Ex.P20. He examined the witnesses Ganapathy and Govindasamy and recorded their statements. He arranged to take photographs, Ex.P14 series and Ex.P15 series through the photographer, PW24 Dheepan.
viii) PW7 Kasthuri received a requisition from PW29 Prasannakumar for the purpose of conducting post mortem examination on the dead body of Alamelu. She commenced post mortem examination at 1.30 pm on 10.12.2006. She found that there was no rigor mortis in all the limbs of the dead body. She found the following injuries on the dead body of Alamelu:
The body lies on its back with extension of all limbs. Eyes closed. Bleeding from both nostrils face blackened. Eye balls swollen. Mouth opened. Tongue within the mouth. Bleeding from both ears. On wiping that bleeding no evidence of external injuries of ear pinna & middle ears.
Ligature Mark: In the neck about 5x1/2x1/2 cm over right side of the neck (anterior aspect) 2 Human Nail marks about each 2 cms in length. Ligature which runs transversely leaving free of ligature mark over throid prominence left side of the Anterior Aspect of the Ligature mark is transverse about 5x1x1/2 cm in size left side of the neck more blackened.
Blackening of the skin over the neck, upper chest, face shoulder and engorgement of vessels are seen. On exploration of the skin, sub cuticular tissue congested. Parchment was absent under the rope mark. Hyoid bone was found to be broken and sent for H.P.E. Thyroid Cartilage was also found to be broken. Neck muscles were bruised (congested). Breast: Normal. Thorax: All bones intact. Heart: Chambers empty lungs congested. Abdomen: All internal organs pale. Stomach: Contains undigested food particles. Uterus cavity empty. Viscera preserved & sent for chemical analysis. Skull: All bones intact. Brain: Pall & semisolid in consistency. External Genitalia: No evidence of external injury over vagina. Thigh, Public area. Vaginal introitus pale & dry. So Vaginal smear not taken.
She has opined in the post mortem report that the deceased appeared to have died about 18 to 24 hours prior to autopsy. She has opined that the deceased appeared to have died of asphyxia due to strangulation in the final report, Ex.P3 issued by her.
ix) PW12 Dr. Vijayalakshmi examined the hyoid bone sent for examination. On examination, she opined in the certificate, Ex.P4 that there was no ante mortem injury in the hyoid bone sent for examination except the post mortem dislocation of the right greater horn.
x) On 11.12.2006, PW29 examined the witnesses Chandrasekaran, Vemban, Sathya, Muthammal, Seetha, Deivasigamani, Varadarashan, Suresh and Ramalingam and recorded their statements. He examined the other witnesses on 12.12.2006, 17.12.2006 and 19.12.2006 and recorded their statements.
xi) On 20.12.2006, at about 6.00 am, PW29 arrested PW1 Selvaraj, the husband of the deceased Alamelu at Manalur Railway Gate. He voluntarily gave a confession statement in the presence of PW19 Kadhirvel and another witness by name Ezhaiselvan. He recorded his confession statement at 8.00 am. PW29 submitted a requisition to the learned Judicial Magistrate, Thittakudi to record the confession statement of the witnesses Muthusamy and Arumugam under Section 164 of the Code of Criminal Procedure.
xii) On 5.2.2007, PW29 received a communication from the Inspector of Police, Kallakurichi that the accused Ramesh involved in the case in Crime No. 45 of 2007 of Kallakurichi Police Station had given a judicial confession relating to the present occurrence also. On 6.2.2007, he submitted a requisition to the learned Judicial Magistrate seeking police custody. He took police custody of Ramesh on 16.2.2007. On 17.2.2007, at about 8.00 am, the accused Ramesh voluntarily gave confession statement in the presence of PW26 Subramanian and another witness by name Sivaperumal. On the basis of the admissible portion, Ex.P16 found in the confession statement of the accused Ramesh, M.O.1 thaali, M.O.2 one pair of ear ring and M.O.3 nose ring were recovered from the jewellery shop of PW21 Balakrishnan under relevant seizure mahazar, Ex.P17. PW29 despatched all the M.Os. recovered in this case to the learned Judicial Magistrate.
xiii) The Superintendent of Police, having come to know that the accused Ramesh had confessed a spate of offences committed by him at various places in the confession statement he had given before the learned Judicial Magistrate under Section 164 of the Code of Criminal Procedure, he issued the proceedings in Na.Ka. No. K1/4413/07 dated 19.2.2007 forming a team to investigate the case. The said proceedings was marked as Ex.P21. PW30 Narayanasamy, Inspector of Police, as per the directions of the Superintendent of Police, took up this case for further investigation on 17.3.2007 as per the separate proceedings issued by him under Ex.P22. He proceeded to the occurrence village Erumanoor at about 2.30 pm on 17.3.2007, inspected the scene of occurrence in the presence of PW19 Kadhirvel and one Ezhaiselvan and prepared observation mahazar. He also drew rough sketch, Ex.P23. He came down to the house of PW1, inspected the same and prepared another observation mahazar. He also drew rough sketch, Ex.P24 in the presence of the very same witnesses. He again examined all the witnesses in this case on 17.3.2007 and 21.3.2007 to 24.3.2007, 9.4.2007, 10.4.2007, 17.4.2007, 18.4.2007 and 19.4.2007 and recorded their statements. He having completed the investigation, laid final report as against the accused before the learned Judicial Magistrate on 19.4.2007.
xiv) The incriminating portion found in the testimony of the witnesses examined on the side of the prosecution were put to the accused Ramesh during the proceedings under Section 313 of the Code of Criminal Procedure. He, having feigned ignorance of the incriminating circumstances spoken to by the witnesses, has stated that a false case was foisted on him after arresting him at Kallakurichi Bus Stand.
4. The prosecution has come out with a case of murder for gain punishable under Section 302 and 397 of the Indian Penal Code. There is no direct evidence either for the commission of murder or the robbery alleged to have been committed by the accused. The prosecution relies upon the following three circumstances to rope in the accused with respect to the aforesaid charges. The confession alleged to have been given by the accused under Section 164 of the Code of Criminal Procedure before the learned Judicial Magistrate is found to be one of the circumstances banked on by the prosecuting agency. The next circumstance is the discovery statement given by the accused which led to the recovery of M.O.1 to M.O.5 and the virtual recovery of M.O.1 to M.O.5 from PW21 Balakrishnan at the instance of the accused.
5. The Trial Court rejected the confession statement alleged to have been given by the accused under Section 164 of the Code of Criminal Procedure on the ground that Section 164(4) of the Code of Criminal Procedure which is found to be mandatory was not adhered to by the Judicial Magistrate at the time when the said confession was recorded. Of course, the Trial Court relied upon the disclosure statement given by the accused and the recovery of M.O.1 to M.O.3 from PW21 at the instance of the accused. Based on those two circumstances, the Trial Court returned a verdict of confession not only for offence under Section 302 of the Indian Penal Code but also for offence under Section 397 of the Indian Penal Code.
6. Learned Counsel appearing for the appellant/accused would submit that though the witness to the alleged voluntary confession given by the accused has spoken to the admissible portion of the confession statement alleged to have been given by the accused and the recovery of M.O.1 to M.O.3, PW21 Balakrishnan completely turned hostile to the version of the prosecution. Therefore, the alleged recovery of the Material Objects cannot be relied upon. He would also submit that the prosecuting agency has come out with two parallel versions, one against PW1 who was originally projected as the sole accused in this case and another against the present accused. Therefore, he would submit that the recovery part of the case of the prosecution projected by them falls short of credibility.
7. Learned Additional Public Prosecutor would vehemently submit that the recovery part of the case of the prosecution was spoken to not only by PW26 Subramanian but also by the investigating official, PW29 and the material objects M.O.1 to M.O.3 were identified by PW21 husband of the victim. No explanation was forthcoming from the accused as to the possession of those material objects in his custody. Therefore, the Trial Court has rightly relied upon those circumstances and rendered a verdict of conviction, he would submit.
8. It is the case of the prosecution that the present accused Ramesh voluntarily gave confession before the learned Judicial Magistrate under Section 164 of the Code of Criminal Procedure. It is only on that basis, it appears that the investigating agency woke up and directed its investigation as against the accused herein, having completely left in the lurch the original case of the prosecution launched very vehemently against PW1 who is none other than the husband of the deceased. On a close scrutiny of the confession statement alleged to have been recorded by the leaned Judicial Magistrate from the accused under Section 164 of the Code of Criminal Procedure, it is found that the mandatory provision under Section 164(4) of the Code of Criminal Procedure was not adhered to by the Judicial Magistrate while recording the said confession.
9. Section 164(4) of the Code of Criminal Procedure mandates that the learned Judicial Magistrate shall make a memorandum at the foot of the record of proceedings that he did explain to the accused that he was not bound to make a confession and that if he did so, any such confession he made would be used as evidence against him. Further, the learned Judicial Magistrate should also record that he, in fact, believed that such a confession was voluntarily made and that it was taken in his presence and hearing. He should also scrupulously record at the foot of the proceedings that he, in fact, read over to the accused and he having admitted the confession recorded by him as correct. The learned Judicial Magistrate is also supposed to vouch safe that his proceedings contain a full and true account of the statement made by the accused.
10. Quite unfortunately, the learned Judicial Magistrate did not follow the aforesaid mandatory prescription found under Section 164(4) of the Code of Criminal Procedure. Further, the learned Judicial Magistrate has observed that in spite of the time offered to the accused to reflect upon his proposal to give confession, he proceeded to record the confession statement of the accused as he did not choose to avail such an opportunity and he came out with a firm conviction to disclose his heart by way of confession statement.
11. The learned Judicial Magistrate, in spite of such a response from the accused, should have, in all fairness, given atleast a few hours to the accused to reflect upon as he had come directly from the police custody. The Bench of this Court had an occasion to deal with the very same confession statement in connection with Criminal Appeal Nos. 249 and 247 of 2008. In the said case also, the Bench of this Court chose to reject the very same confession recorded under Section 164 of the Code of Criminal Procedure from the very same accused for the aforesaid reasons.
12. In view of the above, we find that the confession given by the accused under Section 164 of the Code of Criminal Procedure cannot be relied upon as one of the material piece of circumstances to rope in the accused for the offence under Section 397 and 302 of the Indian Penal Code.
13. Coming to the disclosure statement alleged to have been given in the presence of PW26 Subramanian, it is of course, found that PW26 Subramanian has spoken to the disclosure statement given by the accused which led to the recovery. But the case of the prosecution that the recovery was effected from the shop of PW21 Balakrishnan was completely disowned by PW21 Balakrishnan. He has turned wholesale hostile to the case of the prosecution. He has come out with the version that on account of the pressure mounted by PW29 Prasannakumar, he gave M.Os.1 to 3. It is not a case where PW21 Balakrishnan was rest content with such statement before the court. It is found on record that he had pursued the matter and gave a complaint as against PW29 Prasannakumar alleging that under threat the aforesaid Material Objects were retrieved from him.
14. In this context, we will have to refer to the other parallel case originally projected by the investigating officer. Very strangely, PW1 Selvaraj husband of the deceased was hauled up immediately after the occurrence for the offence of murder of his wife. The investigating official has also projected a voluntary confession statement alleged to have been given before PW19 Kadhirvel which led to the arrest of the accused and recovery of thaali thread M.O.5 at the instance of the accused. In fact, M.O.5 thaali thread was projected as weapon of offence by the prosecuting agency at the initial stage. The aforesaid facts and circumstances also convince us to disbelieve the latter story of the recovery of the material objects M.O.1 to M.O.3 from the present accused. Suffice it to say that the entire investigation done by the investigating agency is completely tainted.
15. Of course, the prosecuting agency could establish through medical evidence that the unfortunate victim Alamelu the wife of PW1 Selvaraj died violent death on account of strangulation. PW1 Selvaraj has suffered for about two long months at the hands of the investigating agency and thereafter the investigation has taken a different route under which the present accused was roped in. On a careful analysis of the entire case of the prosecution , we find that doubt writ large on each and every circumstance projected by the prosecuting agency against the present accused. Further, none of the circumstances also has been clinchingly established by the investigating agency.
16. In view of the above, we find that the charges under Section 302 and 397 of the Indian Penal Code stood not established by the prosecution beyond reasonable doubt against the accused and as a result of which, the judgment of conviction and sentence recorded by the Trial Court will have to be upset.
17. In the result, we set aside the judgment of conviction recorded by the Trial Court under Section 397 and 302 of the Indian Penal Code as against the accused and the sentences imposed thereunder in S.C. No. 302 of 2007 on the file of the Additional District Sessions Court (FTC 3), Virudhachalam and the accused is acquitted of both the charges. He is set at liberty forthwith unless he is required in connection with any other case. The appeal stands allowed.