Madras High Court
Kaliyamurthy vs State By Inspector Of Police on 31 March, 2009
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reservation 06.03.2019
Date of Judgment 04.06.2019
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI
Crl.A.(MD)No.106 of 2009
Kaliyamurthy : Appellant/Accused
Vs.
State by Inspector of Police,
Taluk Police Station,
Kumbakonam,
Thanjavur District.
(Crime No.11 of 2008) : Respondent/Complainant
Prayer: Criminal Appeal filed under Section 374(2) of the
Criminal Procedure Code against the judgment made in S.C.No.368
of 2008, dated 31.03.2009 on the file of the Principal District and
Sessions Judge, Thanjavur.
For Appellant : Mr.M.Karunanithi
for Ms.S.Prabha
For Respondent : Mr.A.Robinson,
Government Advocate (Crl.side)
http://www.judis.nic.in
2
JUDGMENT
This Criminal Appeal is directed against the judgment made in S.C.No.368 of 2008, dated 31.03.2009 on the file of the Principal District and Sessions Judge, Thanjavur.
2.According to the prosecution, the deceased is the son of the accused and both were residing in the same house and the deceased Rajavelu was jobless and spend-thrift and he tortured the accused continuously demanding money and on 09.01.2008 morning, the deceased Rajavelu coerced the accused and fixed ultimatum by saying ''if Rs.30,000/- is not given before noon, I will murder you'' and the accused searched for money and he was not able to get and he was upset and on 09.01.2008 at about 10.45 am, while the deceased was sleeping, the accused beat the deceased with Cricket Bat and caused his murder. The Inspector of Police attached to Taluk Police Station, Kumbakonam, Thanjavur District has filed a final report against the accused by examining the witnesses.
3.In the trial court, 13 witnesses were examined and 16 Exhibits and 13 material objects were marked. When the accused http://www.judis.nic.in 3 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/accused for the offence under Section 304(I) IPC and sentenced him to undergo Rigorous Imprisonment for a period of 10 years and to pay a fine of Rs.10,000/-, in default to undergo Rigorous Imprisonment for a period of one year. Aggrieved by the judgment passed by the trial court, the appellant/accused is before this court.
4.The learned counsel for the appellant/accused submitted that in this case, absolutely there is no material against the accused excepting Ex.P1 the alleged extra-judicial confession said to have been given to PW1 Rajendran, the Village Administrative Officer; that PW1 Rajendran, the Village Administrative Officer has not followed the Village Manual, in which the procedure to record the extra-judicial confession is prescribed; that the alleged extra- judicial confession is very neat and clean without having even a single correction and it is unbelievable for a father, after the alleged murder of his own son, to give such a neat statement, that too to a stranger; that in this case recovery of MO1 to MO3 from an http://www.judis.nic.in 4 open place, which is not admissible under Section 27 of the Indian Evidence Act; that in this case, the alleged confession and recovery are highly doubtful; that in this case, the recovery is said to be on 09.01.2008, but the same was sent for chemical analysis only on 19.02.2008 and in this case, there is no evidence except Ex.P1 and the evidence of PW1, PW12 and PW13, who are all the official witnesses to convict the accused under Section 304(I) IPC and circumstantial evidence in this case does not inspire confidence. In view of the above circumstances, the appellant/accused is entitled to acquittal and prays that the criminal appeal has to be allowed. In support of his contention, the learned counsel appearing for the appellant submitted the following rulings:-
(1)(2011)1 MLJ (Crl) 609 (K.Dhanavel Vs. Inspector of Police);
(2)1996 SCC (Cri) 59 (Balwinder Singh Vs. State of Punjab);
(3)1995 CRL.L.J.248 (Niranjan Lal Vs. State of Haryana);
(4)1997 SCC (Cri) 1249 (Pakkirisamy Vs. State of Tamil Nadu);
http://www.judis.nic.in 5 (5)2012(6) SCC 403 (Sahadevan and another Vs. State of Tamil Nadu); and (6)(2016)3 SCC (Cri) 464 (Kala alias Chandrakala Vs. State through Inspector of Police).
5.On the other hand, the learned Government Advocate (Criminal side) appearing for the respondent/State submitted that trial court appreciated the evidence in a proper manner and believed the evidence of the eye witnesses and having regard to the nature of the offence, convicted the appellant and passed proper sentence, which do not require any interference by this court and the accused is not entitled for acquittal and prays that the criminal appeal may be dismissed. In support of his contention, the learned Government Advocate (Criminal side) submitted the following rulings:-
1.2018(2) MWN (Cr.) 215 (DB) (Kumar alias Pushpakumar Vs. State:
2.2001(2) SCC 205 (Gura Singh Vs. State of Rajasthan);
3.2014(6) SCC(Cri) 666 (State of Rajasthan Vs. Thakur Singh); and http://www.judis.nic.in 6 4.2006(1) SCC 714 (Sivakumar Vs. State by Inspector of Police)
6.Heard both sides and perused the materials available on record.
7.The first contention raised on the appellant/accused is that at that time of occurrence, the accused and the deceased were not jointly residing in the house in which the accused stayed and six months prior to occurrence, the accused left with his wife and his another two sons to Mothilal Street at Kumbakonam and at the time of occurrence, the deceased only resided in the house in which the occurrence took place and hence there is no connection between the accused and the deceased at the time of the alleged occurrence and the deceased had the habit of bad character and due to it, he had so many enemies and only due to it, someone else caused his death and the accused has not caused the death of the deceased, since at the time of occurrence, he resided in Mothilal Street with his wife and another two sons and prays that the accused is entitled to acquittal.
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8.It is admitted on both sides that the place in which the occurrence taken place the deceased resided and due to the head injury, the deceased died. The version of the accused is that six months prior to the occurrence, he left along with his wife and another two sons from the house in which the accused stayed to Mothilal Street at Kumbakonam and to prove it, PW4 and PW5 the son and the wife of the accused were examined.
9.PW4 and PW5 deposed that six months prior to the occurrence, due to misbehaviour of the deceased, they and the accused left the house in which the accused stayed to Mothilal Street at Kumbakonam. To prove that at the time of alleged occurrence, the accused resided at Mothilal Street, no document was filed. Hence, it is the duty of the accused to prove that he is not residing in the place of occurrence at the time of the alleged occurrence.
10.On the side of the prosecution to prove that at the time of occurrence, the accused resided along with the deceased in the house in which the deceased resided, PW2 and Pw3 were examined. http://www.judis.nic.in 8
11.PW2 and PW3 deposed that at the time of occurrence, the accused resided opposite to their house along with the deceased. It is not denied on the side of the accused that PW2 and PW3 are not their neighbours. Further, the accused gave Ex.P1 extra-judicial confession to PW1.
12.On perusal of Ex.P1 wherein it is stated that the accused resided in Plot No.187, Annai Anjugam Nagar at the time of occurrence. If really the accused resided at Mothilal Street at the time of occurrence, he will definitely state that he stayed at Mothilal Street at the time of occurrence. Further, PW1 is the Village Administrative Officer of the village in which the accused resided. As a Village Administrative Officer, PW1 knows the residents of his village.
13.In this case, PW1 deposed that when he and his Assistant were in the office on 09.01.2008, the accused came and gave Ex.P1 extra-judicial confession and also stated that at the time of occurrence, he resided in the house in which the accused stayed. The accused plead that at the time of occurrence, he was not in the place of occurrence, hence it is the bounded duty of the http://www.judis.nic.in 9 accused to prove it. But no contra evidence was let in on the side of the accused to prove it that at the time of occurrence, he was not residing in the place of occurrence, but he resided at Mothilal Street.
14.PW2 and PW3 categorically stated that at the time of occurrence, the accused resided opposite to their house. Hence, from the evidence of PW1 to PW3, it reveals that at the time occurrence, the accused resided along with the deceased in the house in which the occurrence took place.
15.From the evidence of PW4 and PW5, it reveals that there was no cordial relationship between the accused and deceased. Hence, the argument put forth on the side of the accused stating that at the time of the occurrence, the accused resided with his wife and another two sons at Mothilal Street is not at all acceptable. Hence, it is held that at the time of occurrence, the accused resided along with the deceased in the house in which the occurrence took place.
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16.The next contention raised on the side of the appellant/accused is that in this case, absolutely there is no material against the appellant/accused, excepting Ex.P1 the alleged extra-judicial confession said to have been given to PW1 Rajendran, the Village Administrative Officer and PW1 Rajendran, the Village Administrative Officer has not followed the Village Manual, in which the procedure to record the extra-judicial confession is prescribed and admittedly, PW1 Rajendran is a Stranger to the appellant/accused and the prosecution story of giving extra-judicial confession to a Stranger, i.e, the Village Administrative Officer by the appellant/accused cannot be accepted as probable. Moreover, scribing of extra-judicial confession is one among the Official Duties of a Village Administrative Officer under the Village Manual. But, in this case, PW1 Rajendran has stated in his evidence that he has not written this in his Daily Diary. This improbalises the alleged extra-judicial confession and the alleged extra-judicial confession is very neat and clean, without having even a single correction. It is unbelievable for a father, after the alleged murder of his own son, to give such a neat statement, that too to a Stranger and the extra judicial confession is a very weak type of evidence and it requires support from other evidence. Further, in this case, recovery of http://www.judis.nic.in 11 MO1 to MO3 was from an open place, which is not admissible under Section 27 of the Indian Evidence Act and the recovery is based on Ex.P3 the admissible portion of the alleged confession said to have been given in the police station and in this case, there is contradiction as to whom the alleged confession was given and whether it was given to PW12 Murugavel the Sub-Inspector of Police or to PW13 Pazhanivel the Inspector of Police. Hence, alleged confession and alleged recovery are highly doubtful.
17.On the other hand, the learned Government Advocate (Criminal side) appearing for the respondent/State submitted that the Village Administrative Officer is not a stranger in the village and the Village Administrative Officer and the Revenue Officials are the first persons known to villagers and reposing confidants on them and giving confession 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), wherein it has been held as follows:-
http://www.judis.nic.in 12 ''Village Administrative Officer not a stranger in a Village set up – VAO and Revenue Officials are first persons known to villagers – Reposing confidence on them and giving confession cannot be doubted.''
18.It is not denied on the side of the appellant/accused that at the time of occurrence, PW1 is not the Village Administrative Officer of the village in which the accused resided. Hence, PW1 as a Village Administrative Officer known the accused likewise the accused also known PW1 as the Village Administrative Officer of the village.
19.PW1 deposed that on 09.01.2008 at 6.00 pm, when he and his Assistant were in the office, at that time the accused came to their office and gave Ex.P1 extra-judicial confession stating that he murdered his son and then he recorded the statement of the accused and further, he took the accused to Taluk Police Station at Kumbakonam and handed over the accused and his statement and complaint to the Inspector of Police and the Inspector of Police arrested the accused and the accused gave confession and on the basis of the confession, the weapon which was used for the alleged commission of offence was recovered.
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20.The learned counsel for the appellant/accused argued that PW1 is the stranger and hence, the extra judicial confession given to the stranger is not admissible in evidence and further the extra judicial confession was not corroborated by several proved circumstances and the extra judicial confession is surrounded by suspicious circumstances, hence, its creditability become doubtful and hence, on the basis of the extra judicial confession, the accused was convicted is not correct. Hence, the accused is entitled to acquittal. For that, the learned counsel for the appellant/accused submitted a decision reported in 1997 SCC (Cri) 1249 (Pakkirisamy Vs. State of Tamil Nadu), wherein it has been held in para 8 as follows:-
''We are unable to accept this broad proposition put forth on behalf of the appellant. It is well settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession. It is no doubt true that extra-judicial confession by its very nature is rather a weak type of evidence and it is for this reason that a duty is cast upon the court to look for corroboration from other reliable evidence on record. Such evidence requires appreciation with a http://www.judis.nic.in 14 great deal of care and caution. If such an extra- judicial confession is surrounded by suspicious circumstances, needless to state that its credibility becomes doubtful and consequently it loses its importance. The same principle has been enunciated by this Court in Balwinder Singh v. State of Punjab. In the facts and circumstances of this case, we hold that the courts below committed no error in relying upon Ex.P8 as the same is corroborated from several other proved circumstances.''
21.The appellant/accused is the retired Government servant. There is no denial on the side of the defence that PW1 is not the Village Administrative Officer of the village in which the accused resided. Hence, the accused known that PW1 is the Village Administrative Officer of his village.
22.It is admitted on the side of the defence that the accused gave extra judicial confession to PW1, but his contention is that PW1 is the stranger to the accused and hence, the extra judicial confession given to PW1 is not admissible in evidence. http://www.judis.nic.in 15
23.At this juncture, it is necessary to refer the decision reported in (2007) 3 SCC 1 (Ram Singh Vs. Sonia and others), wherein the Hon'ble Apex Court in para 48 held as follows:-
''48.......it is well settled by a catena of decisions rendered by this Court that extra judicial confession made even to a stranger cannot be eschewed from consideration if it is found to have been truthful and voluntarily made before a person, who has no reason to state falsely. In Gura Singh v. State of Rajasthan the evidentiary value to be attached to the extra- judicial confession has been explained at SCC p. 212-13 para 6 thus:-
''6.It is settled position of law that extra- judicial confession, if true and voluntary, it can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra-judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. Relying upon an earlier judgment in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1954 SC 322, this Court again in Maghar Singh v. State of Punjab, (1975) 4 SCC http://www.judis.nic.in 16 234, held that the evidence in the form of extra- judicial confession made by the accused to witnesses cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. In Narayan Singh v. State of M.P., (1985) 4 SCC 26, this Court cautioned that it is not open to the court trying the criminal case to start with a presumption that extra-judicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. The retraction of extra-judicial confession which is a usual phenomenon in criminal cases would by itself not weaken the case of the prosecution based upon such a confession. In Kishore Chand v. State of H.P., (1991) 1 SCC 286, this Court held that an unambiguous extra-judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion, and suggestion of any falsity. However, before relying on the alleged confession, the court has to be satisfied http://www.judis.nic.in 17 that it is voluntary and is not the result of inducement, threat or promise envisaged under Section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Sections 25 and 26. The Court is required to look into the surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made have to be scrutinized. To the same effect is the judgment in Baldev Raj v. State of Haryana, AIR 1991 SC 37. After referring to the judgment in Piara Singh v. State of Punjab, (1977) 4 SCC 452 this Court in Madan Gopal Kakkad v.
Naval Dubey(1992) 3 SCC 204 held that the extra- judicial confession which is not obtained by coercion, promise of favour or false hope and is plenary in character and voluntary in nature can be made the basis for conviction even without corroboration."
24.In this case, the accused was arrested by PW13 and the accused gave confession in the presence of PW1 and his Assistant and PW13 recorded the confession and on the basis of the http://www.judis.nic.in 18 confession, the cricket bat, which was used for the commission of the offence was recovered. After recovering the cricket bat which was used for the alleged occurrence was sent for chemical analysis and in the chemical analysis report, blood was found in the bat and the dress of the deceased and the blood found in the cricket bat tallied with the blood found in the Lungi (Yq;fp) of the deceased.
25.In this case, the Doctor, who conducted postmortem on the body of the deceased was examined PW7. On perusal of the evidence of PW7, it reveals that the deceased sustained injury on the centre and back side of his scalp and the right side parietal and the occipital bone on the back side of the scalp found fractured and only due to it, the death will be caused to the deceased. Hence, it is held that the deceased died only due to the injury sustained on the brain of the deceased. Hence, the extra judicial confession is corroborated with the evidence of Doctor (PW7) and the confession given by the accused. Hence, the extra judicial confession given by the accused to PW1 is admissible in evidence.
26.The contention of the appellant/accused is that at the time of occurrence, the deceased is a man of bad character and he http://www.judis.nic.in 19 had several enemies and only due to it, he was murdered and there is no connection between the accused and the occurrence.
27.The appellant/accused stated that he has not committed the murder, but someone committed murder of his son. It is to be noted here that the accused has not chosen to give any complaint to the police stating that his son was murdered by someone else. But, the accused surrendered before PW1 and gave extra judicial confession. Hence, the argument put forth on the side of the appellant/accused stating that his son was murdered by someone else is not at all acceptable.
28.As per the prosecution case, at the time of the alleged occurrence, the accused was residing with the deceased. Hence, it is the bounden duty of the appellant/accused to explain how the death of the son was happened. But, the accused failed to prove that how the deceased, who was in the same room along with the accused was dead.
29.Further, it is already held that the extra-judicial confession given by the accused was corroborated with the evidence of PW1 to PW5 and PW7 and PW13. Hence, it is held that the prosecution has proved the case beyond reasonable doubt. http://www.judis.nic.in 20
30.On careful perusal of the evidence of witnesses and documents available on record, the trial court came to the conclusion that the appellant/accused is found guilty under Section 304(I) IPC. Hence, there is no necessity to interfere into the findings of the trial Court. But the trial Court judgment requires some modification. Hence it is held that the punishment imposed by the trial Court as against appellant/Accused for the offence under Section 304(I) IPC is reduced to 7 years from 10 years. In other aspects, the findings of the trial court are confirmed.
31.In the result, the Criminal Appeal is partly allowed. The punishment imposed on the appellant/accused for the offence under Section 304(I) IPC is reduced and he is directed to undergo 7 years RI for the said offence. The period of sentence, if any, already undergone by the appellant/accused is 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.
04.06.2019 Index:Yes/No Internet:Yes/No er http://www.judis.nic.in 21 T.KRISHNAVALLI,J vsd/er To,
1.The Principal District and Sessions Judge, Thanjavur.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
Crl.A.(MD)No.106 of 2009
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