Madras High Court
Abdul Kareem vs The State Represented By on 17 April, 2009
Author: C.Nagappan
Bench: C.Nagappan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.04.2009 CORAM THE HONOURABLE MR.JUSTICE C.NAGAPPAN and THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM Criminal Appeal No.429 of 2008 Abdul Kareem ..Appellant/Single accused Versus The State represented by The Inspector of Police Sankarapuram Police Station Vadaponparrapi Police Station Villupuram, (Crime No.273/2001) ..Respondent Criminal Appeal filed against the Judgment and Conviction passed by the learned Principal Sessions Judge, Villupuram, made in S.C.No.12 of 2003. For Appellant : Mr.V.Parthiban For Respondent : Mr.V.R.Balasubramaniam Additional Public Prosecutor JUDGMENT
(Judgment of the Court was delivered by T.SUDANTHIRAM,J.) The appellant herein is an accused in S.C.No.12 of 2003, on the file of the Principal Sessions Court, Villupuram stands convicted for offence under Section 302 and 201 IPC and sentenced to life imprisonment and to pay a fine of Rs.5000/- for each count in default to undergo one year rigorous imprisonment for the offence under Section 302 IPC (six counts) and sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs.5000/- in default to undergo one year rigorous imprisonment under Section 201 IPC and the sentence of imprisonment to run concurrently. Aggrieved by the said conviction and sentence, the appellant has preferred this appeal.
2. The charge against the accused is that on 27.07.2001 at about 10.00p.m., he caused the death of his wife/Badhuhunisha by strangulating her neck using the saree and placed the body into the pit and further brought his five daughters Nabeeza, Shakeetha, Nazirin, Zagira Banu and Yasmin one by one and tied their hands back, closing their mouth by plaster made them to sit inside the pit alive and closed the pit thereby causing their death due to suffocation. The appellant was charged for offences under Section 302 IPC (for six counts) and under Section 201 IPC.
3. In order to establish the charge, the prosecution has examined 25 witnesses, marked 73 exhibits and produced 27 material objects.
4. The evidence let in by the prosecution in brief is as follows:
P.W.1 and P.W.2 are the Village Assistants of the Pakkam Village. On 02.09.2001, both P.W.1 and P.W.2 were in the Revenue Inspector's office Vadaponparappi. The Village Administrative Officer one Madhuranayagam was also present. At about 7.00p.m., the accused Abdul Kareem came to that office and he voluntarily gave a confession to the Village Administrative Officer Madhuranayagam. The said Madhuranayagam has not been examined since he died before the commencement of trial. The Village Administrative Officer Madhuranayagam recorded the confession voluntarily given by the accused. Ex.P.1 is the confession. As the confession by the accused was given in the presence of P.Ws.1 and 2, both of them stood as witnesses and put their signatures in Ex.P.1.
5. In Ex.P.1, it is stated that the accused got married about 21 years back and he had six daughters. Two years after the marriage, he went abroad and used to come to the house once in three years. His wife had given all the money which he earned and the jewels to her mother. About a year back he came to his house. Then he came to know that his wife was having illicit intimacy with his brother Abdul Raheem and his daughter Zareena also was having illicit intimacy with a local Colony man. His wife and brother spread the rumour that the accused was having illicit intimacy with his own daughter Zareena. As it was questioned by the accused, his wife had gone to her mother's place with her daughters. After Panchayat was convened, he brought back her to his house. His brothers-in-law came and took his daughters to their house. Again he went and brought back his wife and daughters. His daughter Zareena committed suicide by hanging. The accused took up a decision since public were talking ill about him, his wife and his daughters. He dig up a pit in the place between two houses and as his wife questioned him, he told that he was to construct a water tank. On 27.07.2001, at about 11.00p.m., politely talking to his wife, he took her near the pit, then strangulated her with a saree and placed the body into the pit. He brought the daughters one by one, closed their mouth with plasters, tied the hands of the three daughters and made all five to sit in the pit alive. Then he spread the polythene bag and filled the pit with earth. On 28.07.2001, he left the place and went to Nagercoil. He felt very much about the murders committed by him. He informed his sister Faizunnisa over phone and she scolded him and on the same day, he came to the Village Administrative Officer and gave the confession.
6. The Village Administrative Officer, Madhuranayagam after recording Ex.P.1, prepared the complaint Ex.P.2 addressed to the Sub Inspector of Police, Vadaponparrapi Police Station and went to the Police Station and gave the complaint Ex.P.2 along with Ex.P.1. P.W.1 also had accompanied the Village Administrative Officer to the police station. P.W.22, Sub Inspector of Police on receiving Ex.P.2 and Ex.P.1 registered the case in Crime No.273 of 2001 for offences under Sections 302 and 201 IPC and prepared the First Information Report Ex.P.45. He forwarded the copy of the FIR to the Judicial Magistrate, Kallakurichi and also forwarded a coy of the FIR to his Superior Officer.
7. P.W.25 Inspector of Police on receiving a VHF message went to the police station and received the copy of the FIR and arrested the accused at 9.30p.m., in the presence of the witnesses, Village Administrative Officer Madhuranayagam and his Assistant P.W.1. He also recorded the confession given by the accused. Ex.P.3 is the admissible portion of the confession recorded by P.W.25. P.W.25 went to the house of the accused and recovered M.Os.1 and 2 yellow cloth and yellow ribbon, M.O.3 roots , M.O.4 dried lemon, M.O.5 old cloth, M.O.6 copper plate which were produced by the accused under Ex.P.4 mahazar. He also gave a requisition to the Tahsildar for the exhumation of bodies.
8. P.W.14 Tahsildar of Sankarapuram on receiving the requisition, he informed the Chenglepet medical college medical team for holding autopsy. Next day he went to the scene of occurrence and the medical team also reached the spot. The accused pointed out the place. As per the order of P.W.14, P.W.10 and others dug up the place and took out six bodies. He prepared the observation mahazar Exs.P.5 and P.6. P.W.12 has taken the photos M.O.12 series and M.O.13 series. P.W.24 Doctor Parasakthi who had come to the place of exhumation commenced autopsy on all the six bodies at 3.50p.m.,. Exs.P.65 to 70 are the post mortem certificates relating to the body of the deceased viz., Badhuhunisha, Nabeeza, Shakeetha, Nazirin, Zagira Banu and Yasmin.
Post mortem certificate of Yasmin (Ex.P.65):
Signs of Decomposition:
Body bloaded; Face bloated. Abdomen-Distended. Both eyeballs softened; Loosening of Scalp hair seen; cuticular peeling seen all over the body; Tongue protruding out.
Finger nails; Cyanosed; Mucous membrances of mouth, lips and tongue; cyanosed; Nil bony injuries seen. Neither external nor internal injuries seen anywhere on the body.
Forth seen at and around mouth larynx and trachea. Sand, mud-particles, froth and mucous seen on the inner surface of larynx and trachea. Respiratory tract decomposed is contained sand, mud particles, froth and mucous O/D Vault Base Dura; Intact, Brain: Liquified;
Hyoid Bone: Intact; Lungs, Liver, Spleen, Kidneys, Pancreas, Bladder; Decomposed, NAD, Heart: Flabby, Empty decomposed; Stomach: Contained 100 grams of partly digested cooked materials No specific smell, Mucos: Decomposed small intestine, Yellowish chyme seen. No specific smell. Uterus: Infantile decomposed Viscera preserved for chemical analysis.
Opinion: Died of conclusion of respiratory orifices and passages.
Post mortem certificate of Zagira (Ex.P.66):
Signs of Decomposition:
Body bloaded; Face bloated. Abdomen-Distended. Both eyeballs softened; Loosening of Scalp hair seen; cuticular peeling seen all over the body; Tongue protruding out.
Finger nails; Cyanosed; Mucous membranes of mouth, lips and tongue; cyanosed; Nil bony injuries seen. Neither external nor internal injuries seen anywhere on the body.
Forth seen at and around mouth larynx and trachea. Sand, mud-particles, froth and mucous seen on the inner surface of larynx and trachea. Respiratory tract decomposed is contained sand, mud particles and froth.
O/D Vault Base Dura; Intact, Brain: Liquified; Hyoid Bone: Intact; Lungs, Liver, Spleen, Kidneys, Pancreas, Bladder; Decomposed, NAD, Heart: Flabby, Empty decomposed; Stomach: Contained 100 grams of partly digested cooked materials No specific smell, Mucos: Decomposed small intestine, Yellowish chyme seen. Mucosa Decomposed. Uterus: Infantile decomposed Viscera preserved for chemical analysis.
Opinion: Died of conclusion of respiratory orifices and passages.
Post mortem certificate of Nazirin (Ex.P.67) Signs of Decomposition:
Body bloaded; Face bloated. Abdomen-Distended. Both eyeballs softened; Loosening of Scalp hair seen; cuticular peeling seen all over the body; Tongue protruding out.
Finger nails; Cyanosed; Mucous membrances of mouth, lips and tongue; cyanosed; Nil bony injuries seen. Neither external nor internal injuries seen anywhere on the body.
Forth seen at and around mouth larynx and trachea. Sand, mud-particles with fluid seen on the inner mucosal surface of larynx and trachea. Respiratory tract decomposed; c/s. Contained sand, mud particles, froth and fluid; O/D Vault Base Dura; Intact, Brain: Liquified; Hyoid Bone: Intact; Heart: Flabby, empty, decomposed; lungs, liver, spleen, kidneys, Pancreas, Bladder, decomposed, Uterus: Infantile Decomposed. Stomach: Contained 50 grams of partly digested food materials No specific smell, Mucosa: Decomposed small intestine, Distended with gas, No specific smell, Mucosa: Decoposed. Viscera preserved for chemical analysis, Soil samples preserved and sent to TNFSC Lab, Chennai-4.
Opinion: Died of conclusion of respiratory orifices and passages.
Post Mortem certificate of Shakeetha (Ex.68):
Signs of Decomposition:
Body bloaded; Face bloated. Abdomen-Distended. Both eyeballs softened; Loosening of Scalp hair seen; cuticular peeling seen all over the body; Tongue protruding out.
Finger nails; Cyanosed; Mucous membrances of mouth, lips and tongue; cyanosed; Nil bony injuries seen. Neither external nor internal injuries seen anywhere on the body.
Forth seen at and around mouth larynx and trachea. Sand, mud-particles with fluid seen on the inner mucosal surface of larynx and trachea. Respiratory tract decomposed; Contained sand, mud forth and fluid; O/D Vault Base Dura; Intact, Brain: Liquified; Hyoid Bone: Intact; Heart: Flabby, empty, decomposed; lungs, liver, spleen, kidneys, Pancreas, Bladder, decomposed. Bladder: Decomposed. Uterus: Decomposed: Empty: Stomach: Contained 75 grams of partly digested food materials. No specific smell, Mucosa: Decomposed small intestine, Yellow chyme seen, No specific smell, Mucosa: Decoposed. Spinal Coloumn: Intact Atlas Axiz Intact: Viscera preserved: Soil preserved.
Opinion: Died of conclusion of respiratory orifices and passages.
Post mortem certificate of Nabeeza (Ex.P.69) Signs of Decomposition:
Body bloated ; Face bloated. Abdomen-Distended. Both eyeballs softened; Loosening of Scalp hair seen; cuticular peeling seen all over the body; Tongue protruding out.
Finger nails; Cyanosed; Mucous membrances of mouth, lips and tongue; cyanosed; Nil bony injuries seen. Neither external nor internal injuries seen anywhere on the body.
Forth seen at and around mouth larynx and trachea. Sand, mud-particles seen on the inner muscosal surface of Larynx and Trachea. Respiratory tract Decomposed. O/D Vault Base Dura; Intact, Brain: Liquified; lungs, liver, spleen, kidneys, Pancreas, decomposed.
Stomach: Contained 100 grams of partly digested food materials. No specific smell, Mucosa: Decomposed. Small Intestine; Yellowish Chyme decomposed. Bladder decomposed. Uterus Decomposed. Empty Hyoid Bone: Intact Viscera preserved: Soil preserved.
Opinion: Died of conclusion of respiratory orifices and passages.
Post mortem certificate of Badhurunisha (Ex.P.70) Signs of Decomposition:
Body bloated; Face bloated. Abdomen-Distended. Both eyeballs softened; Loosening of Scalp hair seen; cuticular peeling seen all over the body; Tongue protruding out.
Finger nails; Cyanosed; Mucous membrances of mouth, lips and tongue; cyanosed;
Anti mortem injury:
Saree was tightly tied on the entire completely, around the neck. After removal of the saree, horizontally placed, well-defined deeply-grooved, ligature mark, seen completely enarcling the neck. Circumference of the ligature mark; 35 cms and width 5 cms. It lies 7cms above the supra sternal notch on the front of neck. On the side, it lies 5 cms below the matoid prominence. On left side it lies 5.5cms below the left mastoid prominence. On the back of neck, it lies 6.5 cms above the 7 critical spine. O/D the underlying issues of the ligature mark found, braised. Petechial haemorrhages seen on the inner aspect of larynx and trachea.
Hyoid Bone: Intact: Thyroid and Cricoid Cartilages: Intact O/D. Of Thorax and Abdomen. All visceral organs namely lungs Liver, Spleen, Kidneys, Pancreas and Heart found decomposed. Uterus: Normal size Empty. Bladder: Empty Decomposed.
O/D. Head. Vault, Base, Dura Intact, Brain: Decomposed. Liquified; Viscera preserved for chemical analysis soil samples collected from the buried site. Sent to TNFSC Lab, Chennai -4 to detect poison if any.
Opinion: "Died of asphyxia due to Strangulation."
9. P.W.25 Inspector of Police examined the witnesses and sent the accused before the learned Judicial Magistrate I, Kallakurichi for remand. P.W.14 gave the report Ex.P.53 to the learned Judicial Magistrate-I, Kallakurichi on 04.09.2001. On 10.09.2001, the Inspector of Police gave requisition to the Judicial Magistrate for recording the statement under 164 Cr.P.C. On 29.01.2001 he recorded the statement of the witnesses Ikbal Basha and Thirumal under Section 164 Cr.P.C under Exs.P.10 and P.11 respectively. On 11.09.2001, he gave requisition to the Judicial Magistrate for the police custody of the accused. As per the order of the Court, he took the accused to his custody on 11.09.2001 and on 14.09.2001 he went to Thiruvannamalai and seized the ledger of the lodge under a mahazar Ex.P.72. P.W.8 is the Manager of the Arya Lodge at Thiruvannamalai. According to him, an entry was made in the ledger that Abdul Rahim had stayed in the lodge with a lady. Ex.P.12 is the entry. On 17.09.2001, the accused was produced before the Judicial Magistrate. On 24.01.2001, P.W.25 has given requisition to the learned Judicial Magistrate for comparing the skull with the photograph of the deceased by superimposition. P.W.21 the Assistant Director on comparing the six skulls with six photographs and by conducting the superimposition test concluded each of the skull belongs to each individual seen in the photographs and giving his opinion issued the certificate Ex.P.54 with reasons for the opinion.
10. P.W.23, Judicial Magistrate II, Kallakurichi on receiving the order of the learned Chief Judicial Magistrate, sent the notice to the prison to produce the accused on 20.03.2001 at 3.00p.m. The accused was produced at 4.45p.m., then sending the other persons outside the court and closing the windows and doors of the court, he questioned the accused as the accused was ready to give voluntary confession 24 hours time was given to him for reflection. But on 22.09.2001, as P.W.23 the learned Judicial magistrate was about to go Sessions Court for giving evidence, the accused was directed to be produced and the accused was produced on 24.09.2002 at 4.00p.m.,. The accused was questioned whether he was willing to give the confession and as he was willing, his confession was recorded from 4.10p.m., to 6.30p.m and his signature was obtained. Ex.P.58 is the proceedings and the Judicial confession given by the accused and recorded by the learned Magistrate. P.W.25 on examining the other witnesses Tahsildar, Head Constable and photographers and other witnesses and on completing the investigation, he filed a final report on 29.11.2001 for offences under sections 302 and 201 IPC.
11. P.W.3 mother-in-law of the accused and mother of the deceased Badhurunisha stated in her evidence that the second daughter of the accused Zareena had committed suicide by hanging and the accused had taken his second daughter Nabeeza to a lodge at Thiruvannamalai and it was informed by his daughter. P.W.4 mother of the accused had stated in her evidence that the daughter of the accused Zareena had committed suicide, since she was scolded by the accused. She further stated that the accused took the children from her custody and when she went and asked the accused, she was informed that the daughters have been sent to Goa. As she insisted that she had to see the Children, the accused told that he would go and bring them. P.W.5 brother of the deceased Badhurunisha stated in his evidence that the accused took his daughter Nabeeza to a lodge at Thiruvannamalai and misbehaved with her. P.W.6 another brother of the deceased Badhurunisha had deposed that Nabeeza told him that the accused had taken her to a lodge at Thiruvannamalai and told her that if she gets married, he would murder her husband. PW.7 who is he neighbour of the accused had stated that the accused left the house saying that he was going to Goa to bring his wife and daughters, but he was not seen thereafter for a period of one month. PW.9 had deposed that he was engaged by the accused for digging a pit. He and other two persons were given a wage of Rs.70 each.
12. After completion of the prosecution case on examining the witnesses, the accused was questioned under Section 313 Cr.P.C., on the incriminating materials, and he had denied his complicity and he filed a written statement. In his written statement, he had stated that on 02.09.2001, he was taken to Thiruvannamalai police station and then sent to Vadaponparrapi Police station and thereafter only he came to know about the death of his children. He had further stated that he had not given the confession before the learned magistrate voluntarily, but he was induced and threatened by the police and what is stated in the confession is not true.
13. Mr.V.Parthiban learned counsel appearing for the appellant submitted that the Judicial confession Ex.P.58 is not admissible in evidence, since P.W.23 learned Magistrate who recorded has not followed the procedures contemplated under Section 164 Cr.P.C and placed reliance on the following decisions of the Honourable Supreme Court:
a) 2001 SCC (Crl.) 652 (Dhananjaya Reddy v. State of Karnataka)
b) 2006 Crl.L.J 1085 (Murugan and Ravikumar alias Kundu Ravi v. State represented by Inspector of Police)
14. The learned counsel appearing for the appellant further submitted that if the judicial confession is eschewed, the remaining circumstances let in by the prosecution are not sufficient to convict the accused. Though Ex.P.1, extra judicial confession is said to have been given by the accused to one Marudhanayagam, as the said Marudhanayagam could not be examined being dead, marking Ex.P.1 through the attestators P.Ws.1 and 2 would render Ex.P.1 valueless. The learned counsel also drew the attention of this Court to the statement given by Marudhanayagam to P.W.14 Tahsildar which is filed along with the inquest report records Ex.P.41. On the basis of the statement of Marudhanayagam, the learned counsel attempted to advance an argument that the accused was arrested by different police even before recording Ex.P.1, the alleged extra judicial confession of the accused/appellant. The learned counsel also submitted that the motive is not established and the evidence let in through the witnesses are only hearsay and again for this purpose, the learned counsel relied on the earlier statements given by some of the witnesses before the Tahsildar P.W.14.
15. Per contra, Mr.V.R.Balasubramaniam, learned Additional Public Prosecutor submitted that a conviction can be made on the accused, solely based on the judicial confession given by him and in this case, even if the judicial confession is not considered, merely for the sole reason that the learned Magistrate not appended the certificate as required under Section 164(4) Cr.P.C; other ample materials are available against the accused to prove that the accused/appellant had committed the offence of murder of his wife and children.
16. The learned Additional Public Prosecutor further added that though the said Marudhanayagam could not be examined due to his death, the extra judicial confession Ex.P.1 being given by the accused in the presence of P.Ws.1 and 2, it is admissible in evidence. The evidence of P.Ws.2 to 6 establish that the accused had motive to murder his wife. The clinching circumstances against the accused is that the bodies of the deceased were exhumated only on the information given by the accused by pointing out the place. As the accused was absconding, his conduct is also another added circumstance to implicate the accused with the crime. The learned Additional Public Prosecutor relied on the following decisions of the Honourable Supreme Court:
i) 2000 SCC(Crl.) 263 (State of Maharashtra v. Suresh).
ii) 2008) 2 MLJ (Crl.) 482 (SC) (Liyakat vs. State of Uttaranchal).
17. This Court considered the submissions made by both parties and perused the records. There is no eye-witness to the occurrence. According to the prosecution the deceased had murdered his wife and five children. The bodies of all the six deceased were exhumated in the presence of P.W.14 Tahsildar and autopsy of the bodies was conducted at the spot by the Doctor P.W.24. The post mortem Doctor P.W.24 has issued the post mortem certificates Exs.P.65 to P.70. The Doctor has opined that as far as Badhurunisha is concerned, she died due to asphyxia due to strangulation and as far as the death of other five persons, they have died to conclusion of respiratory orifices and passages. P.W.21 Assistant Director of Forensic Science Department, Anthropology Division, Chennai, had conducted the superimposition test on the skull of all the deceased comparing with the photographs of the respective deceased and he had given his positive opinion in Ex.P.54 with the reasons for his conclusions.
18. The circumstances relied on by the prosecution are as follows:
(i)The judicial confession Ex.P.58 recorded by P.W.23.
(ii) The extra judicial confession Ex.P.1 given by the accused to one Marudhanayagam, Village Administrative Officer and P.Ws.1 and 2 who are his assistants.
(iii) The confession given by the accused and pointing the place of deceased being buried.
(iv) The deceased wife and children of the accused who were in the company of the accused were missing and subsequently the accused also was absconding.
(v) The motive for the occurrence, i.e., the dispute between the accused and his wife and the misbehaviour of the accused with his own daughter Nabeeza. The body of the deceased were exhumated only on the information given by the accused.
19. With regard to the first circumstance (i) judicial confession Ex.P.58 given by the accused to the learned Magistrate P.W.23; The accused was produced before P.W.23 on 20.09.2001 for recording his confession and he was given 24 hours time and he was again produced on 21.09.2001. Questioning the accused whether he was willing to give confession, as he answered yes, his confession was recorded.
Section 164(4) Cr.P.C is as follows:
164.Recording of Confessions and statements:
(1)............
(2)............
(3)............
(4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:-
"I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. (signed) A.B Magistrate."
Admittedly in Ex.P.58, no such certificate has been appended by the learned Magistrate.
In the decision reported in 2001 SCC (Crl.) 652 (Dhananjaya Reddy v. State of Karnataka, it has been observed in paragraph-20 as follows:
"20. The function of the Magistrate in recording confession under Section 164 of the Code is a very solemn act which he is obliged to perform by taking due care to ensure that all the requirements of Section 164 are fully satisfied. The Magistrate recording such a statement should not adopt a casual approach as appears to have been shown by Shambulingappa (PW.50) in this case. Besides ensuring that the confessional statement being made before him is voluntary and without pressure, the Magistrate must record the confession in the manner laid down by the section. Omission to comply with the mandatory provisions, one of such being as incorporated in sub-section (4) of Section 164 is likely to render the confessional statement inadmissible. The words "shall be signed by the person making the confession", are mandatory in nature and the Magistrate recording the confession has no option. Mere failure to get the signature of the person making the confession may not be very material if the making of such statement is not disputed by the accused but in cases where the making of the statement itself is in controversy, the omission to get the signature is fatal."
In a similar situation, the decision of the Honourable High Court in Murugan and Ravikumar alias Kundu Ravi v. State represented by Inspector of Police (2006 Crl.L.J 1085), it has been observed as follows:
"A reading of sub-clause (4) of Section 164 Cr.P.C and as interpreted in various decisions, we are of the view that the Magistrate while recording confession under Section 164 Cr.P.C must follow the procedural formalities and ensure that all the requirements of the provisions are complied with properly. Inasmuch as the certificate memorandum as one required under Section 164(4) Cr.P.C is mandatory, we are of the opinion that the learned Magistrate (P.W.9) has not strictly followed all the requirements of the provisions contemplated in order to ensure that the confession statement given by the accused was voluntary in nature. Accordingly, the document Ex.P.6 fall short of judicial confession as contemplated under Section 164(4) of the Code. In such circumstances, it (Ex.P.6) has no legal significance in the light of the law. As said earlier, though certain recoveries were made, it is not in dispute that the root cause for the same is the statement of A.4 to P.W.8 and P.W.9. In view of our conclusion and the infirmities pointed out above, it would be unsafe to sustain the conviction."
20. In view of the decision of the Honourable Apex Court and also in view of the decision of this Honourable High Court, it is only to be held after finding that the learned Magistrate has not given to the confession recorded by him a certificate as one required under Section 164(4) Cr.P.C., which is mandatory, the judicial confession therein is of no legal significance in the eye of the Courts. Further as provided under Section 463 Cr.P.C., to cure the defect no evidence has been recorded with regard to the non-compliance with the provisions as required under Section 164(4) Cr.P.C., so as to satisfy that such non-compliance has not injured the accused in his defence on merits. Therefore, Ex.P.58 judicial confession is not taken into consideration against the accused.
21. With regard to circumstance (ii), according to the prosecution, on 02.09.2001, while P.Ws.1 and 2 were in the office of Revenue Inspector, Vadaponparappi, accused appeared and gave confession before the Village Administrative Officer, Marudhanayagam that he had murdered his wife and five daughters. The said confession was recorded into writing under Ex.P.1 by the Village Administrative Officer Marudhanayagam. In the said confession, both P.Ws.1 and 2 have signed as witnesses. Both P.Ws.1 and 2 had been present at the time of accused giving his confession and recording it. In the said circumstances, it is to be held that the extra judicial confession was given in the presence of P.Ws.1 and 2 also. Ex.P.1 contains the signatures of both P.Ws.1 and 2. The accused had narrated in Ex.P.1 as to how he murdered his wife and also how he made his five daughters to sit in the pit alive and closed the pit with the earth. There is no reason to reject the evidence of P.Ws.1 and 2 and Ex.P.1 extra judicial confession given by the accused. The contention of the learned counsel for the appellant that even before giving Ex.P.1 extra judicial confession, that the accused was arrested by Thiruvannamalai Police and handed over to Vadaponparappi police is only to be rejected, since there is no evidence to that effect. The reliance placed by the learned counsel for the appellant and the statement of Marudhanayagam recorded by the Tahsildar P.W.14 cannot be taken into consideration, since there is no provision to make any earlier statement of a person who had died admissible except as provided under Section 32 of the Indian Evidence Act. Therefore, it is unnecessary to deal with the earlier statement of Marudhanayagam though it is marked.
22. With regard to circumstance (iii); After the arrest of the accused, a requisition was given to P.W.14 Tahsildar and according to P.W.14, the accused had pointed out the place where the bodies were buried and on digging up the place pointed out by the accused, six bodies were seen. It is also mentioned in the inquest reports prepared by P.W.14 that the accused had admitted that he had buried the bodies. The established fact is that it was known only to the accused, the bodies of six persons were available at that place and those bodies were recovered only in pursuance of the confession given by the accused.
23. Section 106 of the Indian Evidence Act is as follows:
"106. Burden of proving fact especially within knowledge.
When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustrations:
a)When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."
In the decision reported in 2000 SCC(Crl.) 263 (State of Maharashtra v. Suresh), the Honourable supreme Court has observed as follows:
"26. We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by himself. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well justified course to be adopted by the criminal court that the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act."
The Honourable Supreme Court in the case reported in (2008) 2 MLJ (Crl.) 482 (SC) Liyakat vs. State of Uttaranchal, has observed as follows:
"23.It has been rightly noted by the trial Court and the High Court that the accused persons were absolutely silent and no explanation was offered as to how the body came to be buried in their hut which was in their exclusive user.
24. Similarly the non-explanation of this vital circumstance adds to the chain of circumstances. It is now settled law that if the deceased was in the custody or in the company of the accused, then the accused must supply some explanation regarding the disappearance of the deceased."
In this case, the accused not only offered any explanation but totally denied the circumstance of recovering the bodies of the deceased from the side of his house from a pit at his instance. Therefore the said circumstance stands proved and also a strong corroboration for the extra judicial confession given by the accused.
24. With regard to circumstances (iv) and (v); It is the evidence of P.Ws.3 to 6 that when the accused was enquired about his wife and children, he had informed that they have been sent to Goa. P.W.4 who is the mother of the accused himself had stated in her evidence that the accused took the children along with him and on the next day, as she went and enquired, she was informed that children were sent to Goa. This part of the evidence shows that the accused had admitted that the wife and children were with him and they had been missing and subsequently their bodies were recovered at the instance of the accused. All these clinching materials lead to show only that the accused is responsible for the burying all the six persons in the pit. Why the accused had gone to the extent of murdering his wife and children is also known from the evidence of P.Ws.3 to 6. The accused was suspecting the fidelity of his wife and that the daughter of the accused Zareena had already committed suicide. The accused stayed in a lodge along with his daughter Nabeeza and he had misbehaved with his daughter and it was informed by the deceased Nabeeza herself to P.W.5, her maternal uncle. Even the accused himself has mentioned in Ex.P.1 that there was a rumour that he was having some illicit relationship with his daughter Nabeeza.
25. This Court finds that though the judicial confession given by the accused in this case is not taken into consideration, the other circumstances let in by the prosecution has established that the accused had buried the deceased into the pit from where six bodies were recovered and the guilt of the accused is established beyond reasonable doubt.
26. Though the accused had committed the murder of six persons, who are his wife and daughters, the trial Court has not resorted to give the maximum sentence of death, but imposed a minimum sentence of life imprisonment. The trial Court has not given any reasons for imposing minimum sentence of life imprisonment and for not awarding the maximum sentence of death.
Section 354(3) Cr.P.C is as follows:
Language and contents of judgment.
"354. (1)......
(2)......
(3) When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence. (4)............
(5)...........
(6).........................."
From the above provision, it is true that for conviction under Section 302 IPC, ordinarily a life imprisonment must be given and for giving death sentence, special reasons must be stated. The trial Court failed in this case to look into and consider whether special reasons could be given for imposing the maximum sentence. Even for awarding the life sentence, the court is required to state the reasons. Sentencing an accused person is the sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. Though the manner in which the sentence is awarded to the accused is disturbing the conscious of this Court, as no appeal has been preferred by the State under Section 377 Cr.P.C against the sentence on the ground of inadequacy, this Court now confirms the sentence already imposed by the trial Court. At the same time, considering the magnitude of the crime, manner of commission of multiple murder of all the members of the family, this Court feels that the imprisonment for life given in this case should be with its normal meaning for life as defined under Section 45 of IPC which reads as follows:
45. "Life":- The word "life" denotes the life of a human being, unless the contrary appears from the context.
The Honourable Supreme Court in the decision in Swamy Shraddandanda @ Murali Manohar Mishra v. State of Karnataka (2008(10) SCALE 669), has laid down as follows:
"66. The matter may be looked at from a slightly different angle. This issue of sentencing has two aspects. A sentence may be excessive and unduly harsh or it may be highly disproportionately inadequate. When an appellant comes to this court carrying a death sentence awarded by the trial court and confirmed by the High Court, this Court may find, as in the present appeal, that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence. But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment that subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate. What then the Court should do? If the Court's option is limited only to two punishments, one a sentence of imprisonment, for all intends and purposes, of not more than 14 years and the other death, the court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Court, i.e., the vast hiatus between 14 years' imprisonment and death. It needs to be emphasized that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years imprisonment would amount to no punishment at all.
67.............................
68. In the light of the discussions made above, we are clearly of the view that there is a good and strong basis for the Court to substitute a death sentence by life imprisonment or by a term in excess of fourteen years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order, as the case may be."
27. In the result, the appeal is dismissed, confirming the conviction and sentence imposed on the accused, with a direction that the appellant/accused shall not be released from prison till the rest of his life.
ksr To
1. The Principal District and Sessions Judge, Villupuram.
2. The Inspector of Police, Sankarapuram Police Station, Vadaponparrapi, Villupuram.
3. The Superintendent of Prisons, Central Prison, Cuddalore- 607 004.
4. The Public Prosecutor, High Court, Madras 600104.
5. The Section Officer, Criminal Section, High Court, Chennai