Patchamuthu Udayar Vs. State rep. by The Inspector of Police, Pudukottai District - Court Judgment

Excerpt:
code of criminal procedure - section 313, section 374(2) - indian penal code - section 302 - indian evidence act - section 27 - appeal against conviction - respondent/state charged against appellant/accused for an offence punishable under section 302 ipc - by judgment, trial court convicted him under section 302 ipc and sentenced him - hence this appeal; court held - if only fact discovered was a relevant fact, then, disclosure statement would be admissible under section 27 of act - here, in this case, there was no evidence that lungi had any connection with accused - thus, court hold that disclosure statement made by accused itself was not relevant - apart from these two pieces of evidences, prosecution relies on evidence of p.w.3, who has stated that accused was found in his field with an aruval - in court considered view, it was not so incriminating - in villages, agriculturists, while doing agricultural work, use to have aruvals, spade and other agricultural implements - thus, this piece of evidence was also not incriminating - in a case based on circumstantial evidence, circumstances projected by prosecution should be proved beyond reasonable doubts and such proved circumstance should have close link with each other so as to form a complete chain unerringly pointing to guilt of accused and there should not be any other hypothesis, which would be inconsistent with guilt of accused - here, in this case, prosecution has not proved circumstances beyond reasonable doubts and thus, prosecution has failed to prove case against accused - therefore, accused was entitled for acquittal - conviction and sentence imposed on appellant was set aside and he was acquitted of all charges - in result, appeal was allowed. paras: (10, 11, 12) cases referred: rahim beg v. state of u.p.reported in air (1973) sc 343 heramba brahma and another v. state of assamreported in air 1982 sc 1595 kashmira singh vs. state of madhya pradheshreported in 1952 air 159 (prayer: appeal is filed under section 374(2) of the code of criminal procedure against the judgment passed by the learned principal district and sessions judge, pudukottai, in s.c.no.29 of 2009 dated 31.07.2009.) s. nagamuthu, j. 1. the appellant is the sole accused in s.c.no.29 of 2009 on the file of the principal sessions judge, pudukottai. he stood charged for offence under section 302 ipc. by judgment, dated 31.07.2009, the trial court convicted him under section 302 ipc and sentenced him to undergo imprisonment for life and to pay a fine of rs.1,000/-, in default, to undergo rigorous imprisonment for one year. challenging the same, the appellant is before this court with this appeal. 2. the case of the prosecution in brief is as follows: the deceased in this case was one mrs.vijayalakshmi. the accused is her husband. the accused is an agriculturist by profession. through the deceased, the accused has got children. due to some domestic quarrel between the deceased and the accused, there was no love lost between them. in the year 1984, a family arrangement was made between the accused, the deceased and their children, in which, the lands were allotted to the deceased and her children. the accused alone was residing in nochiyendhal village in his house. in the year 1983, he married one senthamarai as his 2nd wife. through the 2nd wife, he has got 3 children. he was enjoying 5 shops, which he owned. but, in the year 2001, it is alleged that his son shanmuganathan born to the 1st wife caused damage to the said shops. his 1st wife was also frequently interfering with the accused from enjoying the 10 acres of land, which the accused was cultivating. this is stated to be the motive for the occurrence. 2.1. it is further alleged that on 18.09.2008, at about 11.00 a.m., the deceased came to the place of occurrence in a tractor. after getting down from the tractor, she was proceeding into her field. at that time, she was alone. utilizing the said opportunity, the accused wanted to do away with her. therefore, he followed her. near a small channel by the side of the karkamalam lake, he mounted repeated attacks on her with aruval. having received the injuries, she fell into the channel and died. then, the accused fled away from the scene of occurrence. according to the case of the prosecution, the occurrence was not witnessed by anybody. p.w.1 the son of the deceased and p.w.2 the wife of p.w.1 went in search of the deceased. p.w.1 noticed the dead body at the place of occurrence at about 6.00 p.m. on 18.09.2008. then, he went to the police station and made a complaint about the occurrence. 2.2. p.w.14 - sub inspector of police, nagudi police station, received the said complaint under ex.p1 and registered a case in crime no.105 of 2008 under section 302 ipc. ex.p14 is the fir. he forwarded both the documents to the court and handed over the case diary to the inspector of police for investigation. 2.3. p.w.15 took up the case for investigation. he proceeded to the place of occurrence at 10.45 p.m. on 18.09.2008. he prepared an observation mahazar and a rough sketch in the presence of p.w.6 and another witness. then, he recovered bloodstained earth and sample earth from the place of occurrence under a mahazar. he conducted inquest on the body of the deceased in the presence of panchayatdars and prepared ex.p16 report and he sent the body for postmortem. 2.4. p.w.9 - dr.radhakrishnan conducted autopsy on the body of the deceased on 19.09.2008 at 11.15 a.m. he found the following injuries: injuries: 1. 2 x 1 x 1 cm incised wound left side face 2 cm below left eye. 2. 1 x 1 x cm incised wound just above the left eye brow. 3. 3 x x cm incised wound left side forehead. 4. 3 x 1 x cm incised wound left side forehead just above the wound no.3. 5. y shaped 4 x 2 x cm incised wound middle of forehead. 6. 10 x 3 x 1 cm incised wound middle of scalp exposing bone. 7. tear of upper part of left ear lobe about 3 cm. 8. tear of lower lobe left ear 2 cm. 9. 5 x 2 x 1 cm incised wound left side scalp in parietal region. 10. 2 x 1 cm dried abrasion right side foot in dorsal aspect. all wounds are dried. stomach undigested rice material 200 ml present. fracture of parietal bone left side about 7 cm in posterior aspect and 5 cm in anterior aspect and membranes intact. brain firm. ex.p7 is the postmortem certificate. he opined that the deceased would have died due to shock and hemorrhage due to multiple injuries. he further opined that the injuries would have been caused by a weapon like m.o.6 “ aruval. 2.5. on 20.09.2008, it is alleged that the accused appeared before p.w.8 the village administrative officer of nagudi village at 12 noon and on the same day, the accused wanted to give voluntary confession. as orally confessed by the accused, p.w.8 recorded the same in his own handwriting. in the said extra judicial confession, the accused confessed to his guilt that it is he, who cut the deceased and killed her. ex.p6 is the extra judicial confession. then, along with a report, p.w.8 produced the accused and the extra judicial confession to the investigating officer. p.w.15 arrested the accused at 12.45 p.m. on such arrest, he again gave a voluntary confession in the presence of p.w.7 and another witness, in which, he disclosed the place, where he had hidden an aruval and a bloodstained lungi. in pursuance of the same, he took p.w.7 and another witness to the house of the 2nd wife mrs.senthamarai and produced bloodstained lungi (m.o.7) and aruval (m.o.6). he recovered the same under a mahazar. then, he forwarded the accused to the court for judicial remand and handed over the material objects to the court. he made a request to the court for forwarding the material objects for chemical examination. the report revealed that there was human blood on all the material objects including the aruval and lungi. on completing the investigation, he laid charge sheet against the accused. 2.6. based on the above materials, the trial court framed a lone charge under section 302 ipc. the accused denied the same. in order to prove the case, on the side of the prosecution, as many as 15 witnesses were examined, 16 documents and 15 material objects were marked. 2.7. out of the said witnesses, p.w.1 is the son of the deceased. p.w.2 is the wife of p.w.1. they have stated about the motive and they have also stated that at 6.00 p.m. on the date of occurrence, the dead body was found. p.w.3 is a resident of the said village. he has stated that on 18.09.2008, at about 11.15 a.m., he found the accused with an aruval at his field. p.w.4 has stated that the deceased travelled in his tractor and get down near her field on 18.09.2008 at 11.00 a.m. p.w.5 has spoken about the previous motive and he has not stated anything incriminating against the accused. p.w.6 has spoken about the observation mahazar prepared and the material objects recovered from the place of occurrence. p.w.7 is the witness in whose presence, the accused gave a voluntary confession to the police, out of which, m.o.6 aruval and lungi m.o.7 were recovered. p.w.8 the village administrative officer has stated that the accused appeared before him on 20.09.2008 and made a voluntary confession. p.w.9 has spoken about the postmortem conducted and his final opinion regarding cause of death. p.w.10 has stated that he took photograph of the deceased at the place of occurrence. p.w.11 is the clerk of the court, who has stated that he forwarded the material objects for chemical examination on the orders of the learned magistrate. p.ws.12 and 13 are the police constables, who carried the fir to the court and the body for postmortem respectively. p.w.14 has spoken about the registration of the case. p.w.15 has spoken about the investigation done. 2.8. when the incriminating materials were put to the accused under section 313 cr.p.c., he denied the same as false. however, he did not choose to examine any witness nor to mark any documents. having considered all the above, the trial court convicted him under section 302 ipc and accordingly, punished him. that is how, he is before this court with this appeal. 3. we have heard the learned counsel for the appellant, the learned additional public prosecutor for the respondent state and we have also perused the records carefully. 4. this is a case based on circumstantial evidence. p.w.1 is, admittedly, the son of the deceased and p.w.2 is his wife. the deceased was living with them. the accused is the husband of the deceased. but he was living separately with the 2nd wife and the children born to the 2nd wife. according to p.ws.1 and 2, there was enmity on account of the enjoyment of a particular landed property. regarding this motive, p.ws.1 and 2 have stated categorically and from the same, according to us, the prosecution has proved the motive. at the same time, because there was some enmity between the parties, we cannot rush to the conclusion that the deceased would have been done to death by the accused. the motive is always a doubled edged weapon and therefore, from and out of the motive alone, we cannot conclude that the deceased would have been done to death by the accused. 5. next, comes the evidence of p.w.4, who has stated that the deceased travelled in his tractor and got down near her field at 11 a.m. from this evidence, it can be concluded that the deceased was lastly seen alive at 11.00 a.m. on the date of occurrence, in her field. thereafter, nobody had seen her alive. but the dead body was seen by p.w.1 at 6.00 p.m. therefore, it is clear that the deceased was done to death between 11 a.m. and 6 p.m. on the date of occurrence. the medical evidence has revealed that the death was due to the injuries found on the dead body. therefore, there can be no doubt that the deceased died of homicidal violence between 11 a.m. and 6 p.m. on the date of occurrence. now, the immediate question is as to who was the culprit, who committed the murder. 6. in order to prove this fact, the prosecution mainly relies on the extra judicial confession said to have been given by the accused to p.w.8 the village administrative officer on 20.09.2008 at 12 noon. the learned counsel for the appellant would submit that the said confession would not have been given by the accused voluntarily. as pointed out by the learned counsel, it is not as though the accused had any acquaintance with p.w.8. p.w.8 was a total stranger to the accused. it has also been held by the hon'ble supreme court in rahim beg v. state of u.p. reported in air (1973) sc 343 as follows: there was no history of previous association between the witness and the two accused as may justify the inference that the accused could repose confidence in him. in the circumstances, it seems highly improbable that the two accused would go to mohmed nasim khan and blurt out a confession. ? this judgment was later on considered by the yet another division bench of the hon'ble supreme court in heramba brahma and another v. state of assam reported in air 1982 sc 1595, wherein also the hon'ble supreme court has taken a similar view. 7. in the instant case also, there would have been no occasion or reason for the accused to repose confidence in p.w.8 so as to confess. it is also not in evidence that the accused was absconding from the date of occurrence until 20.09.2008. it is in evidence that he was found in the village. further, the narration of the facts in the confession would go to show that it contains all the minor details. thus, it is highly doubtful, whether the accused would have given such a confession. assuming that the said confession would have been made by the accused, by its very nature, it is a very weak piece of evidence. 8. it is the settled law that an extra judicial confession may be the sole foundation for conviction, provided, it inspires the confidence of the court. regarding the weightage to be given for an extra judicial confession, the hon'ble supreme court had an occasion to deal with the same in kashmira singh vs. state of madhya pradhesh reported in 1952 air 159. subsequently, the same issue came up for consideration before the constitution bench of the hon'ble supreme court in haricharan kurmi v. state of bihar reported in (1964) 6 scr 623, wherein also, it is held that if the extra judicial confession is surrounded by doubts, then, as a rule of caution, the court should look for corroboration from independent sources. in the absence of any such independent evidence corroborating the extra judicial confession, it is not possible to make reliance, solely, on such weak extra judicial confession. 9. applying the same yardstick to the facts of the present case, we have no hesitation to hold that the said extra judicial confession said to have been made to p.w.8 is highly doubtful and it is not safe to sustain the conviction based on the extra judicial confession, more so, because, there is no corroboration from any other source. 10. apart from that the learned additional public prosecutor would submit that the lungi, which was recovered at the instance of the accused, on his confession under section 27 of the indian evidence act, contained bloodstains of the blood group of the deceased. this argument does not persuade us at all. it is too well settled that it is not the discovery of every fact, made out of a disclosure statement, that makes the disclosure statement admissible under section 27 of the indian evidence act. in order to make a disclosure statement relevant, under section 27 of the indian evidence act, the prosecution should prove the relevancy of the fact discovered. in other words, the link between the discovered fact and the crime should be established by the prosecution. if only the fact discovered is a relevant fact, then, the disclosure statement would be admissible under section 27 of the indian evidence act. here, in this case, there is no evidence that the lungi had any connection with the accused. thus, we hold that the disclosure statement made by the accused itself is not relevant. 11. apart from these two pieces of evidences, the prosecution relies on the evidence of p.w.3, who has stated that the accused was found in his field with an aruval. in our considered view, it is not so incriminating. in villages, agriculturists, while doing agricultural work, use to have aruvals, spade and other agricultural implements. thus, this piece of evidence is also not incriminating. 12. in a case based on circumstantial evidence, the circumstances projected by the prosecution should be proved beyond reasonable doubts and such proved circumstance should have close link with each other so as to form a complete chain unerringly pointing to the guilt of the accused and there should not be any other hypothesis, which would be inconsistent with the guilt of the accused. here, in this case, the prosecution has not proved the circumstances beyond reasonable doubts and thus, the prosecution has failed to prove the case against the accused. therefore, the accused is entitled for acquittal. 13. in the result, the criminal appeal is allowed, the conviction and sentence imposed on the appellant is set aside and he is acquitted of all the charges. fine amount, if any paid by him, shall be refunded to him.