Karnataka High Court
Fellix-Joannas vs State By Doddapete Police Station, ... on 18 February, 1998
Equivalent citations: 1998(2)ALT(CRI)105, 1998CRILJ2479, ILR1998KAR2059, 1998(3)KARLJ218
Author: M.P. Chinnappa
Bench: M.P. Chinnappa
JUDGMENT Kumar Rajaratnam, J.
1. The appellant-accused has preferred this appeal against the judgment dated 25-2-1995 passed by the learned Additional Sessions Judge, Shimoga in S.C. No. 33 of 1993 convicting the appellant-accused of the offence under Section 302, IPC and sentenced to undergo imprisonment for life.
2. The prosecution case, briefly is, as follows.-
Marry alias Asha (deceased) was the younger sister of Francis Rodrigues-P.W. 2 of Sagar. Her father had expired and the family depended upon Francis Rodrigues, being the eldest son of the family. He performed the marriage of the deceased with the accused-Fellix-Joannas on 16-10-1991. The accused started telling the deceased that he wanted to search for a job abroad. In that regard the deceased and accused visited Bombay, some times in the early part of 1992. After coming back from Bombay, the accused asked the deceased to arrange through her brother Rs. 10,000/- for visa and passport. Marry was feeling very delicate to ask her brother Francis. However, she visited Sagar in the month of May, 1992. Marry requested Shamala, her close friend to give the money. Shamala gave Rs. 10,000/- to Marry in the month of July, 1992. The same amount was given by Marry to the accused. The accused went to Bombay and returned back by saying that he was cheated by an agent. Marry was shocked. In the month of November, 1992, Shamala visited Shimoga and asked the deceased Marry to return the amount of Rs. 10,000/-
because Shamala wanted to obtain a fair price shop licence. Marry assured her that she will make some arrangement in December, 1992. As demands of Shamala were increasing Marry asked her younger sister Leena Rodrigues, who was employed as a nurse in Manipal Hospital to arrange for money. Marry visited Sagar and met Shamala and paid her Rs. 3,000/- on 29-12-1992. For the balance amount, Marry requested for time. Whenever Marry demanded money, the accused become violent artd Marry suffered harassment at the hands of the accused. On 2-2-1993 Shamala met Marry in Shimoga, after attending interview in the Tahsildar Office. Shamala demanded the balance amount of Rs. 7,000/- from Marry. Marry requested time till 6th or 7th of February. Shamala was the last person, who met Marry just three days prior to her death.
3. On 6-2-1993 at 9.00 a.m. Francis received a telegram regarding the death of Marry. He rushed to Shimoga with his family members and noticed the dead body of Marry lying in the house of the accused. There was only one deep circular ligature mark around the neck. The body was lying in the centre room. Accused was present. But he did not give proper answer to the questions of Francis.
4. Francis rushed to the police station and gave a complaint to the C.P.I., Linga Reddy-P.W. 15. The complaint is at Ex. P-l. P.W. 15 visited the spot registered a case in Crime No. 34 of 1993 for an offence under Section 302, IPC and visited the spot and noticed the dead body. Inquest was conducted as per Ex. P-ll. All the witnesses stated that relationship between accused and the deceased was strained. They also stated that accused has borrowed Rs. 10,000/- from the deceased and the deceased was asking for the amount and therefore there was quarrel in the family. Investigation relevaled that the death of Marry occurred in the night of 5-2-1993 or early morning of 6-2-1993. Accused was arrested and he was interrogated by the Investigating Officer-P.W. 15. Accused gave a voluntary statement leading to recovery of shoes and one shoelace. The voluntary statement given by the accused is marked as Ex. P-44, which led to the recovery of shoelace M.O. 1. The dead body was sent to postmortem examination. The doctor at Mcc. Gann Hospital conducted autopsy. He was of the opinion that the death of Marry was due to manual strangulation using some material like rope. He opined that death was due to asphyxia resulting from strangulation. The post-mortem report is at Ex. P-7.
5. P.W. 1 is the doctor who was examined in Court to mark the post-mortem report. He conducted the post-mortem on the deceased Marry. He noticed the following external injuries.-
"No external injuries on the surface of the body except the legature mark on the front side of the neck, conjession above and below the legature present. Legature mark on either side of the neck above hycid bone, starts from the midline, leaving 2 cm free area, extending to the back measuring 7 cms. on either side. Skin below the legature mark is groved by 0.3 cm. which is dry on descting the skin. Tissue under knee is dry. Above and below area conjested. Hyoid bone intact".
He was of the opinion that the death was due to asphyxia as a result of strangulation. He has also stated that the M.O. 1 shoelace could have been used for strangulating the deceased.
6. In this case, apart from the recovery of the shoelace on the voluntary statement given by the accused, there are no materials to connect the accused with the crime.
7. The learned Counsel for the appellant Mr. Hashmath Pasha submitted that in the report sent to the doctor it was stated that a jute rope was used for throttling the deceased. P.W. 15 is the police officer. He admitted in his evidence that in his report to the doctor he has mentioned that a jute rope was used and there was no mention of a shoelace.
8. It was further submitted by the learned Counsel that in the voluntary statement of the accused marked as Ex. P-44 the statement was as follows.-
"The shoelace was taken out from one of the shoe belonging to the (accused). He told me that he will give me the said shoelace if I accompany him to the place guided by him".
It was further submitted that the Investigating Officer stated that the accused offered to take out the shoelace from the shoe belonging to him. By this it was submitted that the shoelace is very much there for everybody to see and therefore the shoelace, M.O. 1 cannot be a discovery of a fact pursuant to the statement made by the accused. In other words it was submitted that the shoelace, M.O. 1 was not recovered pursuant to a statement made by the accused since the shoelace was not concealed by the accused. It was submitted that apart from this incriminating material there was no other piece of evidence to connect the accused with the crime. However, the discovery of the shoelace cannot be rejected as a material object consequent to the voluntary statement made by the accused. The shoe was kept on the right side of the wall of the passage and the shoelace was kept hidden inside the shoe. The accused took out the shoelace from inside the shoe and gave it to the Investigating Officer. Therefore, we hold that the seizure of M.O. 1 will fall squarely within the purview of recovery of evidence under Section 27 of the Evidence Act.
9. We are, however, not unimpressed by the conduct of the accused immediately after seeing the dead body of his wife. The accused informed the neighbours and other relations at the earliest opportunity. He also informed the relations that the deceased was found dead when he returned home. It was submitted that such a conduct in a case of circumstantial evidence would be inconsistent with the guilt of the accused. However, it cannot be ruled out that the accused may have tried to screen his guilt by informing the neighbours. The conduct of the accused does not advance either the case of the prosecution or the case of the accused. The only clinching and circumstantial evidence is the recovery of the shoelace, M.O. 1 by the police. If we accept that the recovery is in accordance with law, then we will have no hesitation in coming to the conclusion that it is the accused and the accused alone was responsible for the murder of the deceased.
10. In that view of the matter, we perused the voluntary statement of the accused. We found to our utter shock that the confession of the accused was not signed by the accused. We asked ourselves the question what reliance can be placed on the confession of the accused which is not signed by the accused. In this regard the Supreme Court has pronounced that a confession which is not signed by the accused or which does not bear the thumb impression of the accused on that statement renders such statement unreliable. The Supreme Court in the case of Jackaran Singk v State of Punjab, at Para 8 has held that the absence of the signature or thumb impression of the accused on the disclosure statement recorded under Section 27 of the Evidence Act detracts materially from the authenticity and the reliability of the disclosure statement.
11. The learned Public Prosecutor fairly conceded that apart from M.O. 1, the shoelace there is no other material to incriminate the accused.
12. In these circumstances, the appeal preferred by the accused-appellant is allowed. It is stated that the accused has been in custody for the last six years. He shall be set at liberty forthwith and he is acquitted of the offence under Section 302 of the IPC.