Madras High Court
P.Vairamuthu vs The Inspector Of Police on 14 August, 2015
Author: V.S.Ravi
Bench: V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 14.08.2015
CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
AND
THE HONOURABLE MR.JUSTICE V.S.RAVI
CRL.A(MD).No.5 of 2015
and
M.P.(M).No.1 of 2015
P.Vairamuthu : Appellant
Vs.
The Inspector of Police,
Oomachikulam Police Station,
Crime No.460 of 2007,
Madurai District. : Respondent
PRAYER: Appeal is filed under Section 374 of the Code of Criminal Procedure
against the Judgment and conviction dated 27.10.2014 made in S.C.No.11 of
2012 on the file of the Fourth Additional District and Sessions Judge,
Madurai.
!For Appellant : Mr.N.Tamilmani
^For Respondent : Mr.R.Ramachandran
Additional Public Prosecutor
:JUDGMENT
[JUDGMENT of the Court was delivered by S.NAGAMUTHU, J] The appellant is the sole accused in S.C.No.11 of 2012, on the file of the Fourth Additional District and Sessions Judge, Madurai. He stood charged for the offences punishable under Sections 449, 302 and 392 of the Indian Penal Code. By Judgment dated 27.10.2014, the Trial Court has convicted the appellant under Sections 449, 302, 392 r/w Section 397 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for ten years and to a pay fine of Rs.2,000/- in default to undergo simple imprisonment for three months for the offence under Section 449 of the Indian Penal Code, to undergo imprisonment for life and to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for six months for the offence under Section 302 of the Indian Penal Code and to undergo rigorous imprisonment for ten years and to pay a fine of Rs.10,000/- in default to undergo simple imprisonment for six months for the offence under Section 392 r/w Section 397 of the Indian Penal Code. The sentences have been ordered to run concurrently. Challenging the said conviction and sentence, the appellant has come up with this Criminal Appeal.
2. The case of the prosecution, in brief, is as follows:-
The deceased, in this case, was one Mrs.Sasikala. She was hardly aged about 19 years. She was married to one Mr.Selvam, on 18.06.2007. PW-1 is the mother of the deceased. The husband of the deceased was working in a Workshop at Thallakulam, Madurai. The deceased and her husband were residing separately in a rented house at Third Car Street, Mayil Nagar, Thapal Thanthi Nagar, Madurai. Her husband used to go to his work spot every day at 09.00 AM and return back by around 03.00 PM for lunch. During such interregnum time, the deceased used to be alone at her house. The accused was a friend of the husband of the deceased. In a friendly manner, he visited the house of the deceased, on few occasions.
2.1. At the time of marriage, PW-1 and her family members presented around 15 sovereigns of gold jewels to the deceased. For attending any special function, the deceased used to come to the house of PW-1 and receive gold jewels. PW-1 was residing at Lakshmi Narayanapuram at Simmakkal in Madurai.
2.2. On 12.10.2007, in the usual course, Mr.Selvam, the husband of the deceased, [who died subsequently in an accident] had gone to his work spot and therefore, the deceased alone was at her home. By around 03.30 PM, Mr.Selvam, as usual, returned to his house for lunch. But, the house was found locked. The deceased was not found anywhere near the house. Therefore, he immediately, contacted PW-1 over phone and enquired as to whether the deceased had come to her house. He also told PW-1 that the house was found locked. Immediately, PW-1, along with her son, PW-3, rushed to the house of the deceased. They also confirmed that the house was locked. They made enquiries in the nearby places. But, the deceased was not seen. Fortunately, a duplicate key for the house of the deceased was kept at the house of PW-1.
Therefore, PW-1 wanted PW-3 to go and fetch the key. Accordingly, PW-3 went to his house and returned with the duplicate key.
2.3. By around 04.30 PM, with the use of the duplicate key, they opened the house. On entering into the house, they found that oil was found spilled in the hall near the almirah for the deities. Then, they went into the bedroom, where a wooden pestle was found lying broken into two pieces. Metal Kuthuvilakku also was also found lying broken into two pieces. Driven by anxiety, PW-1 entered into the bathroom. The deceased was not found in the bedroom. Then, she opened the door of the bathroom attached to the bedroom. To her shock, she found the deceased dead in the water tub. She noticed that there were injuries on the right side of the forehead, nose and the lips. There was a cable wire found tied around the neck indicating that she was constricted with the wire to death. PW-1 and PW-3 lifted the body and brought the same to the hall and laid it. They removed the cable wire. Then, PW-1 informed her husband about the same over phone. PW-2, the husband of PW-1, immediately rushed to the house of the deceased. Mr.Selvam, the husband of the deceased was also there. They found the bureau kept opened. PW-1 and Mr.Selvam verified the bureau for the articles. They found the cloth materials in disarray. They also found that a gold chain weighing 31/2 sovereigns, a gold bracelet weighing 21/2 sovereigns, two gold rings weighing about 11/2 sovereigns and a pair of bangles weighing about 3 sovereigns were missing. A gold chain worn by the deceased was also found missing. On hearing about the occurrence, a huge crowd gathered in front of the house of the deceased.
2.4. PW-1 to PW-3 went to the Oomachikulam Police Station along with Mr.Selvam. As dictated by PW-1, Mr.Selvam wrote the complaint. PW-2 signed the same as a witness. Then, PW-1 presented the complaint to PW-17, the then Inspector of Police, attached to the Oomachikulam Police Station, at 06.30 PM. PW-17 registered a case in Crime No.460 of 2007, under Sections 302 and 380 of the Indian Penal Code. EX-P1 is the complaint and EX-P19 is the First Information Report. Then, he forwarded both the documents to the jurisdictional Magistrate.
2.5. Taking up the case for investigation, PW-17 proceeded to the place of occurrence, prepared an Observation Mahazer and a Rough Sketch, showing the place of occurrence in the presence of PW-6 and another witness. With the help of a photographer, he took photograph of the dead body and the place of occurrence. From the place of occurrence, PW-17 recovered bloodstained earth and sample earth. He also recovered Kuthuvillakku in three pieces, pestle in two pieces, the broken bangles found at the place of occurrence, black colour cable wire, a black colour belt, unused beedi, rose colour towel, another biscuit colour towel, a heir found on the injury on the lips of the dead body and few heirs from the head of the deceased for the purpose of examination. All these articles were recovered under EX-P4, a mahazer.
2.6. Then, he conducted inquest on the body of the deceased between 07.30 AM and 09.30 AM and prepared EX-P21, the inquest report. He examined PW-1 to PW-6 and few more witnesses and recorded their statements. He forwarded all the recovered material objects to the Court. PW-17 as soon as the inquest was over, forwarded the dead body for postmortem.
2.7. PW-14, Dr.G.Natarajan, Reader in Forensic Medicine and Office of the District Police Surgeon, Madurai Medical College, Madurai, conducted autopsy on the body of the deceased, on 13.10.2007, at 10.40 AM. He found the following injuries:-
"1. Transverse ligature mark encircling the front, sides and back of upper part of the neck measuring 30 CM X 1.0 CM.
The anatomical location of the ligature mark are as follows:-
6 CM below the right mastoid; 6 CM below the left mastoid; 6 CM below the middle of chin.
On dissection of neck;
The base of the ligature mark is contused with surrounding bruising. The underlying neck structures like thyroid, cricoid cartilages, tracheal rings and hyoid bone are normal. There is extravasation of blood noted on superficial and deeper planes of neck.
2. Four cresentric nail marks present on the upper part of let side neck, the convexity facing outwards and concavity facing inwards each measuring 0.5 CM X linear, one below another, separated by 1 CM apart.
3. Laceration 1 X 0.5 CM x bone deep noted on the right forehead.
4. Laceration 3.5 X 0.5 CM X bone deep noted on just below the nose.
5. Laceration 1x 0.5 CM X muscle deep on right side of upper lip.
6.Abrasion 3 X 3 CMs noted below right eye.
7. On dissection of scalp, skull & dura;-
contusion scalp 4 X 3 CM noted on the right frontal region: 3 X 2 CM on mid occipital region; 3 X 2 CM on mid occipital region; 4 X 3 CM noted on left parietal region. Fissure fracture 4 CM in length noted on mid frontal bone. Diffused subdural hemorrhage, subarachnoid hemorrhage noted on both cerebral hemispheres. Fracture base of skull noted on anterior cranial fossa on right side".
He preserved the visceral organs and forwarded the same for chemical analysis. The analysis report stated that there was no poison in the internal organs. Finally, PW-14 gave opinion that the deceased would appear to have died of asphyxia due to compression of neck associated with cranio cerebral injuries 18-24 hours prior to autopsy.
2.8. During his investigation, PW-17 could not make any break through. Since he was transferred on 21.10.2007, the investigation was taken over by his successor, PW-18. PW-18 took up the case for investigation, on 23.10.2007. He examined few more witnesses including, Doctor G.Natarajan. He took sample finger prints of the inmates of the house and forwarded the same to the District Finger Print Bureau. He gave a request to the Court to forward the material objects for chemical examination. Then, the investigation was taken over by his successor, PW-19.
2.9. On 08.10.2008, PW-19 examined few more witnesses. But, he also could not make any break through in the investigation. While so, on 19.10.2008, at 06.00 PM, the accused, on his own, appeared before PW-10, the Village Administrative Officer, Kalikappan I pit. At that time, her Village Assistant was also present. According to PW-10, the accused told her that in connection with a murder case, he was chased by the police and therefore, in order to avoid any harassment, he surrendered before PW-10. Then, the accused gave a voluntarily oral confession to PW-10, in which he admitted that he only killed the deceased in this case and committed robbery. PW-10 reduced the same to writing. EX-P14 is the confession statement. She prepared a special report in respect of the same under EX-P15. Thereafter, she immediately took the accused along with PW-10, proceeded to the Police Station and produced him before PW-19, along with EX-P14 and her report EX- P15.
2.10. While in custody, the accused gave a voluntary confession before PW-19 in the presence of PW-10 and another witness, at 09.30 AM, on 20.10.2008. In the said confession, he disclosed that he had hidden the key of the house and one pair of gold bangles. He further disclosed that he had pledged the other jewels with the Lakshmi Vilas Bank and he was keeping the receipt for the same in his hands. In pursuance of the said disclosure statement, he took PW-19, PW-10 and another witness to his Saloon Shop at 09.30 AM, on 20.10.2008 and produced one pair of gold bangles [MO-4], a gold chain [MO-5], two CDs [MO-27] and two receipts for pledging the jewels with the Lakshmi Vilas Bank. They were all recovered by PW-19 under EX-P15 - mahazer in the presence of the witnesses. Then, the accused took PW-19 and another witnesses to the Lakshmi Vilas Bank, situated at Race Course Road, Madurai, at 11.30 AM. From the Manager of the Bank, [PW-8], PW-19 recovered Wheat Model gold chain weighing 16 grams, [MO-8], a gold ring weighing four grams [MO-6] and another gold chain weighing two grams [MO-7] with flower design. PW-19 recovered all the jewels under EX-P9, mahazer. Then, in pursuance of the said disclosure statement, he took PW-19, PW-10 and another witness at 01.00 PM, on 20.10.2008 to a place opposite to the house of the deceased and produced a tub, [MO-9], which was recovered under EX-P8, a mahazer. EX-P9 is the receipt for pledging of the jewels to the Lakshmi Vilas Bank, bearing date 08.05.2008. EX-P10 is the yet another receipt for pledging the jewels with the Lakshmi Vilas Bank, dated 30.08.2008.
2.11. PW-19, on returning to the Police Station, along with the accused, forwarded the accused to the Court for judicial remand and handed over the material objects to the Court. On completing the investigation, he laid charge sheet against the accused.
2.12. Based on the above materials, the Trial Court framed appropriate charges, as detailed in the first paragraph of this Judgment. When the accused was questioned in respect of the charges, he pleaded innocence. In order to prove the charges, the prosecution examined as many as 20 witnesses and marked 22 documents and 28 Material Objects. Out of the said 20 witnesses, PW-1, the mother of the deceased, has spoken about the fact that she received a phone call from the husband of the deceased on 12.10.2007, at about 03.30 PM, that the deceased was not seen and the house was found locked. She has further stated that she went to the house, along with her son, PW-3. She has further stated that the door was opened with the duplicate key. PW-3 has also spoken about the same facts. They have stated that the gold ornaments were stolen and they have identified the stolen articles in Court during trial.
2.13. PW-2, the father of the deceased, has stated that on 12.10.2007, at 04.30 PM, PW-1 informed him over phone about the above occurrence and he rushed to the house of the deceased. By the time, the husband of the deceased had also arrived there. He has further stated that on verification, they found that the jewels had been stolen away. He has also identified the stolen articles in Court during trial.
2.14. PW-4 is a resident of Villapuram and he was running an Auto Store. According to him, he knew the husband of the deceased - Mr.Selvam. He has further stated that the accused was running a Saloon Shop and he used to go to the said shop for hair cutting. He has also stated that the accused and the husband of the deceased were friends for sometime.
2.15. PW-5 is a resident of Tapalthanthi Nagar and he is an Auto Driver by profession. He was residing just behind the house of the deceased. According to him, on the date of occurrence, on hearing the alarm raised, when he went to the house of the deceased, he found PW-1 standing in front of the house of the deceased and the house was found locked. When he enquired, he came to know that PW-3 had gone to fetch the duplicate key of the house.
2.16. PW-6 has spoken about the Observation Mahazer prepared. PW-7 is the Head Constable attached to the Oomachikulam Police Station. According to him, on 19.08.2008, at 09.00 PM, the Village Administrative Officer produced the accused along with his confession statement. He has further stated that after the accused was arrested by PW-19, he gave a voluntary confession. He has also spoken about the recovery of the stolen articles.
2.17. PW-8 was the then Assistant Manager of Lakshmi Vilas Bank. According to him, on 20.10.2008, when he was in charge of the Lakshmi Vilas Bank, Tallakulam Branch, PW-19 came to the bank with the accused and the witnesses and produced two pawn receipts, EX-P9 and EX-P10. Then, based on the said receipts, he handed over the jewels concerned. They were all recovered by PW-19. As per the order of this Court passed earlier while considering the appeal, this witness was recalled and he was further examined by the prosecution. He has reiterated almost what he had earlier stated and there is nothing remarkable in his further examination.
2.18. PW-9 is the Scientific Assistant. According to him, no incriminating materials could be found in the vaginal smear taken from the dead body of the deceased and the finger nails. The hair found on the lips of the deceased could not be compared with the hairs of the deceased, as the quantity was not sufficient. PW-10 is the Village Administrative Officer, who has stated about the appearance of the accused before her, the confession made by him, the confession given to the police and the consequential recoveries of the materiel objects.
2.19. PW-11 is the Constable attached to the Othakadai Police Station. According to him, when he was working at Oomachikulam Police Station, on 12.10.2007, the First Information Report in Crime No.460 of 2007 was handed over to him, which he, in turn, handed over to the learned Judicial Magistrate. PW-12 is the constable, who carried the dead body to the hospital for postmortem. PW-13 is the photographer, who has spoken about the eight photographs taken by him at the scene of occurrence. PW-14 is the doctor, who has spoken about the postmortem conducted by him and his final opinion. PW-15 is the Assistant Surgeon, who has stated that on 12.10.2007, at 10.10 PM, the dead body was received by her, as requested by the police and she kept the same in the mortuary. PW-16 is the Head Clerk of the Court, who has spoken about the forwarding of the material objects for chemical examination as per the order of the learned Judicial Magistrate. PW-17 to PW-19 have spoken about their respective investigations done by them.
2.20. When the Trial Court examined the accused under Section 313 of the Code of Criminal Procedure in respect of the incriminating evidences available against him, he denied the same as false. On the side of the accused, two witnesses were examined. The accused examined himself as DW-1. According to him, he was taken by the police to the Oomachikulam Police Station, where he was kept in illegal custody, for a period of one week and he was tortured and forced to admit the offence. The jewels belonging to his wife were all taken by the police. According to him, his marriage was celebrated on 23.10.2007 and the jewels allegedly recovered from him belonged to him and these jewels [MO-4 and MO-5], could be seen in the photographs, marked as EX-D1. Similarly, the photograph showing MO-8 is EX-D2. Likewise, the photograph showing MO-6 and MO-7, is EX-D3. DW-2 is the father-in-law of the accused. He has stated that these jewels were presented by him to the accused at the time of his marriage. Having considered all the above materials, the Trial Court convicted the appellant, as detailed in the first paragraph of this Judgment and punished him accordingly. That is how, the appellant is now before this Court with this Criminal Appeal.
2.21. When this Criminal Appeal came up for hearing before a Division Bench of this Court, on 14.07.2015, during the course of arguments, it was brought to the notice that the ledgers maintained in the Lakshmi Vilas Bank, showing the description of the jewels as well as the signature of the accused had not been exhibited. Therefore, this Court issued a direction to the Trial Court to recall PW-8, record additional evidence and mark the above ledgers.
2.22. In pursuance of the said direction, the Trial Court recalled PW-8 and further examined him on 02.08.2015. During such examination, PW-8 had reiterated the pledging of the jewels by the accused and recovery of the same by the police during the course of investigation. One Mr.Swaminatha Sharma, was examined as additional witness, as PW-20. He was the then Manager of Lakshmi Vilas Bank at Tallakulam Branch. EX-P23 is the ledger of jewel loan. At page No.192 of EX-P23, under loan No.399/08-09, the accused had pledged three gold rings, two gold chains, one necklace and one chain, totally seven items, for a sum of Rs.75,000/-. Out of the said seven items, according to him, during the course of investigation, the Inspector of Police recovered two gold rings, weighing four grams and two grams respectively. In another ledger, EX-P24, as per Page No.335, under loan No.54/08-09, the accused had pledged one chain for a sum of Rs.7,700/-, which was also recovered by PW-19 in connection with the present case. The loan applications are also found with the ledger, in which the signature of the accused is also found.
2.23. After the above additional evidences were recorded by the Trial Court, on a direction issued by this Court, the accused was produced before this Court on 11.08.2015. In respect of the additional evidence let in, the accused was questioned under Section 313 of the Code of Criminal Procedure. He admitted the pledging of the jewels. But, he claimed that these jewels belong to him.
3. We have heard the learned counsel for the appellant, the learned Additional Public Prosecutor for the respondent and also perused the records carefully.
4. The learned counsel for the appellant would submit that this being a case based on circumstantial evidence, the prosecution, though bound to prove the circumstances beyond reasonable doubts, has failed to prove any of the circumstances against the accused. The foremost contention of the learned counsel for the appellant is that though it is alleged that the accused gave a voluntary confession to the Village Administrative Officer, [PW-10], the same cannot be believed at all. According to him, the confession is alleged to have been made on 19.10.2008, whereas the occurrence was on 12.10.2007. Thus, the confession is alleged to have been made after a lapse of one year of the occurrence. He would further submit that after such a long period, there was no need or compulsion for the accused to go to PW-10 and to give a voluntary confession. He would further submit that there was no reason for PW-10 to repose confidence in her and to give confession to her. Thus, according to the learned counsel, the said confession was not at all given by the accused and therefore, the same is liable to be rejected.
5. Next, the learned counsel for the appellant would submit that according to PW-10, the accused was produced before the police, where also the accused gave confession, in which he made a statement disclosing the place, where he had pledged the jewels. Since the appearance of the accused on 19.10.2008 before PW-10 itself is not believable, as a corollary, the confession said to have been given to the police, which allegedly led to the discovery of the material objects, also cannot be believed, he contended. The learned counsel would further submit that there are lot of contradictions between the jewels pledged with the Lakshmi Vilas Bank, the jewels allegedly recovered from the bank at the instance of the accused and the jewels, which were stolen away from the house of the deceased. The learned counsel has taken us through the evidence of PW-1 and PW-10 to highlight the above material contradictions. Thus, according to the learned counsel, the prosecution has failed to prove that MO-2 to MO-8 are the stolen articles. The learned counsel would further submit that the father of the deceased has stated that only seven and half sovereigns of gold jewels were presented to the deceased at the time of marriage, whereas the recovered articles account for 10 sovereigns. The learned counsel would further submit that in the alleged confession given by the accused, it is stated that he pushed the face of the deceased into the water in the tub. But in the photograph taken at the place of occurrence, the tub is full of water, whereas according to the case of the prosecution, it was recovered at the instance of the accused in front of the house of the deceased. MO-9 is the tub, which is found to be damaged, he contended.
6. The learned counsel would further submit that there is variation in the signature of PW-10 in the confession allegedly recorded by her and in the deposition. He would further submit that PW-10 has stated that the confession statement is not in the handwriting of PW-10, but it is in the handwriting of one Anna. The said Anna has not been examined. The learned counsel would, next, contend that though PW-19 has stated that finger print was taken from the scene of occurrence, no effort was taken by the police to compare the same with the finger print of the accused.
7. Thus, according to the learned counsel, none of the circumstances pleaded by the prosecution has been proved beyond reasonable doubts and so, the appellant is entitled for acquittal. The learned counsel would rely on few Judgments of this Court as well as the Hon'ble Supreme Court, about which we would make reference at the appropriate stages of this Judgment.
8. The learned Additional Public Prosecutor would, however, oppose this Criminal Appeal. According to him, there is no reason to reject the confession given by the accused to PW-10. After recording of the confession, the same was not retracted. However, for the first time, it was retracted only at the time of trial. Thus, according to the learned Additional Public Prosecutor, the belated retraction of the confession itself would go to show that the retraction is an afterthought. Thus, according to the learned Additional Public Prosecutor, there are no reasons to disbelieve the said confession. He would further submit that there are overwhelming evidences to come to the conclusion the said confession [EX-P14] is a voluntary statement made by the accused. He would further submit that in his confession, the accused has given a detailed narration of the entire occurrence as to how he entered into the house of the deceased and as to how he killed the deceased. The learned Additional Public Prosecutor would further submit that the extra judicial confession is clearly corroborated by the medical evidence.
9. He would further submit that before the police, he gave yet another confession, under EX-P14, in which he disclosed that the stolen articles had been pledged with the bank. In pursuance of the same, the jewels were recovered from the bank. Thus, according to the learned Additional Public Prosecutor, the presumption under Section 114(a) of the Indian Evidence Act, 1872, needs to be raised against the accused. He would further submit that though the accused had offered an explanation that the jewels belong to him, absolutely, there is no proof for the same. He would further submit that the so-called inconsistencies in respect of the weight of the gold jewels between the evidence of PW-1 and the recovered articles, are immaterial, because PW-1 had mentioned in her deposition about the weight of the jewels only approximately. He would further submit that no finger print was virtually lifted from the place of occurrence, as there was nothing available. He would further submit that from these evidences, the prosecution has clearly established that it was this accused, who committed the murder of the deceased and committed robbery of the jewels. Therefore, according to the learned Additional Public Prosecutor, the conviction and sentence imposed by the Trial Court on the appellant does not require any interference at the hands of this Court.
10. We have considered the above submissions.
11. The first and foremost circumstance raised by the prosecution is that on the crucial date, namely, on 12.10.2007, the deceased alone was at her home. PW-1 has stated that the husband of the deceased was employed in a Workshop elsewhere and it was his practise to go to his work spot every day at 09.00 AM and return back by around 03.00 PM for lunch. Indisputably, there was nobody else at the house of the deceased. Thus, the prosecution has clearly established that the deceased was found alive lastly at 09.00 AM, on 12.10.2007. Mr.Selvem, the husband of the deceased, had returned to his house in the usual course at 03.00 PM. [Mr.Selvam could not be examined, as he expired even before the trial could commence]. The husband of the deceased had called PW-1 over phone and informed her that the house was found locked and the deceased was not found anywhere. Immediately, PW-1 rushed to the place of occurrence along with PW-3, her son. On reaching the house, they made enquires, but the deceased was not found anywhere. Thereafter, PW-3 returned to his house, took duplicate key and rushed to the place of occurrence. The door was opened with duplicate key. They found the deceased dead with injuries. Thus, it is crystal clear that the deceased would have been done to death in a brutal manner somewhere between 09.00 AM and 03.00 PM.
12. The next circumstance is that when PW-1, PW-2 and the husband of the deceased entered into the house of the deceased, they found the bureau opened and the dress materials in disarray. They also found that the jewels in the bureau and the jewels worn by the deceased were missing. This has been spoken to by PW-1 to PW-3. In their evidences, they have spoken about the particulars of the stolen articles. From their evidences, it has been clearly established that the murder of the deceased and the robbery of the gold jewels had taken place in one and the same occurrence. Thus, it is inferable that the person, who committed the robbery, had caused the death of the deceased.
13. Now, the next question is as to who is the person, who caused the death of the deceased and committed robbery of the gold jewels. On this issue, the Investigating Officer did not make any break through for about one year. Though several witnesses were examined, no clue was obtained for about one year. It is in evidence that the husband of the deceased had stated something about the accused. It is also in evidence that when the police started suspecting him, the accused volunteered to go to PW-10 to give confession. PW-10 has stated that on 19.10.2008, at 06.00 PM, when she was in her office, the accused came to her and told that he had come to surrender before her and to give confession voluntarily. The accused gave a oral confession, which was reduced to writing by PW-10 with the help of one Anna. The said confession has been proved as EX-P14.
14. The next immediate question is as to whether EX-P14 could be believed as a voluntary confession given by the accused. The main attack of the learned counsel for the appellant is that there was no necessity or compulsion for the accused to choose to go to PW-10 to make such a voluntary confession. In this regard, the learned counsel for the appellant relies on the Judgment of this Court in Ravi @ Ravichandran, reported in 2007 1 LW [Crl] 555. That was a case, where also an extra judicial confession was given by the accused to the Village Administrative Officer. In Paragraph No.28 of the said Judgment, the Division Bench has held as follows:-
"28. But, in this case, it is found that there is no evidence to show that the Village Administrative Office was known to A1. Unless a person trusts another, there is no question of unburdening his heart to such a person. Therefore, we straightaway reject the untrustworthy testimony of the Village Administrative Officer, PW9 that A1 voluntarily confessed the crime to him".
15. Referring to the said Judgment, the learned counsel would submit that in the instant case, it is not in evidence that PW-10 was known to the accused so as to trust her to give evidence. He would further submit that there was no necessity or compulsion for the accused to go to PW-10 to give confession. Though this argument appears to be attractive, we do not find any substance in the same. In the said Judgment, the Division Bench, while appreciating the evidence of the Village Administrative Officer, found that the said witness was untrustworthy. But, the facts of the present case are totally different. In this case, in the confession itself, the accused has stated that he had chosen to go to the Village Administrative Officer to give voluntary confession, because, the police had started suspecting him as the assailant. The accused has further stated that if he is straightaway taken by the police, he would be tortured. It is for these reasons, he had chosen the Village Administrative Officer to surrender. Therefore, in our considered view, in the instant case, there was every reason for the accused to go to PW-10, trust her and to give her confession. Thus, we hold that the confession of the accused is voluntary, which squarely satisfies the requirements of Section 24 of the Indian Evidence Act, 1872.
16. The learned counsel for the appellant would further submit that one Anna, who actually reduced to writing the confession of the accused, has not been examined. It is true that during cross-examination, PW-10 has stated that the confession was written by one Anna, as it was narrated by the accused. In our considered view, since the confession was orally said by the accused to PW-10 and since it was reduced to writing under her supervision, the non-examination of Anna has not affected the case of the prosecution in any manner.
17. The learned counsel for the appellant, in an attempt to assail EX- P14, would rely on the Judgment of the Hon'ble Supreme Court in Thangavelu Vs. State of Tamil Nadu, reported in 2002 SCC [Crl] 1382, wherein, while dealing with the extra judicial confession, the Hon'ble Supreme Court, on facts, found that the said confession would not have been made voluntarily by the accused to the Village Administrative Officer. In the said case, the confession ran to four full pages, which spoke of the motive of the accused to kill the deceased and also gave graphic details of the nature of the attack on the deceased and also mentioned in details of the persons whom he saw during and after the incident. From these facts, the Hon'ble Supreme Court doubted the confession on the ground that if the said confession was true, it would go as if the appellant had the foresight to guess as to who prosecution witnesses were going to be and gave impression, therefore, he was seeking to corroborate their future evidences. The Hon'ble Supreme Court, therefore, concluded that this would hardly be the natural conduct of an accused if he was voluntarily making a confession. Further, the Hon'ble Supreme Court found unimaginable similarities between the extra judicial confession and the complaint, which, according to the Hon'ble Supreme Court, supported the doubt that the extra judicial confession was a creation by the prosecution.
18. The learned counsel for the appellant would submit that in the instant case, EX-P14 contains the minute details and therefore, the same is doubtful. But, in our considered view, it is not so. Though EX-P14 gives all the details of the occurrence, we do not find any unnatural conduct of the accused in disclosing these facts in the confession. Apart from his conduct before the occurrence, he has only narrated about the occurrence in the said confession. Thus, we do not find anything unnatural on the part of the accused in giving the said details in the confession so as to doubt the same.
19. The learned counsel for the appellant would, next, make reliance on the Judgment of a Division Bench of this Court in Panchavarnam Vs. State, reported in 1995 [3] Crimes 710. In the said case, though it was claimed that an extra judicial confession was given to the Village Administrative Officer, on verification of facts, it was found that it was not given voluntarily. The author of the said document was not examined. That was the reason why, the Division Bench rejected the extra judicial confession. In the case on hand, though it is true that Mr.Anna, who recorded the confession, has not been examined, the fact remains that the confession was given in the immediate presence of PW-10. In Panchavarnam's case, apart from the non-examination of the Village Administrative Officer, who reduced the confession to writing, there are number of other circumstances taken note of by the Division Bench to hold that the extra judicial confession would not have been made by the accused to the Village Administrative Officer voluntarily. But, in the case on hand, we do not find nay such circumstance raising doubt about the genuineness of EX-P14. Thus, there are no other reasons to doubt EX-P14.
20. The learned counsel would, next, place reliance on the Judgment of the Hon'ble Supreme Court in Teijinder Singh @ Kaka Vs. State of Punjab, reported in 2013 (1) CLT [Crl] 332, wherein the Hon'ble Supreme Court has rejected the case of the prosecution holding that the extra judicial confession is a weak piece of evidence. Such conclusion was arrived at based on the facts of the said case. The Hon'ble Supreme Court has not laid down that under all circumstances, an extra judicial confession is a weak piece of evidence. In this regard, we may refer to the Judgment of the Hon'ble Supreme Court in Gura Singh Vs. State of Rajasthan, reported in 2001 (2) SCC 205, wherein the Hon'ble Supreme Court has held that it is the settled position of law that an extra judicial confession if true and voluntary, inspiring the confidence of the Court, even in the absence of any other evidence to corroborate the same, the Court can act upon the same and convict the accused. Thus, in a given case, whether the extra judicial confession can be the sole foundation for conviction or not is a matter to be decided on the basis of the facts and circumstances of each case. But, there cannot be any straight jacket formula. Expecting corroboration from independent sources to corroborate the extra judicial confession is only a rule of caution. Thus, it is not the law that an extra judicial confession invariably requires corroboration from independent sources.
21. In the instant case, as we have already pointed out, we have no hesitation to hold that EX-P14 is not doubtful and the same inspires the confidence of this Court and therefore, the said extra judicial confession, by itself, in our considered view, in this case, is sufficient to hold the accused guilty. But, fortunately, for the prosecution, there are other evidences, which duly corroborate the said confession under EX-P14. PW-10 took the accused to the Police Station, where the accused gave yet another confession to PW-19. In the said confession, what were not disclosed in EX- P14, were, for the first time, disclosed. In EX-P14, he did not disclose as to where he had pledged the jewels and as to where he had kept the key. These disclosures were made for the first time only to PW-19 in the presence of PW-
10. In the said statement, he disclosed that he had hidden the key of the house of the deceased in his Saloon Shop. In pursuance of the same, he took PW-19 and PW-10 to the Saloon Shop and took out the key from his shop and handed over the same to PW-19. The said key was recovered by PW-19 in the presence of PW-10 and another witness. This key has been identified by PW-1 and PW-3 as the key of the house of the deceased. Absolutely, there is no explanation offered by the accused as to how he came to possess the said key with him. The defence taken is that he did not make any such disclosure statement and the key was not recovered from his Saloon Shop. In this regard, we do not find any reason to reject the evidence of PW-19 and PW-10, who have, very vividly, cogently and convincingly stated that in pursuance of the confession, the accused took the police to the Saloon Shop and took out the key. If once this fact is believed by the Court, then, for want of any plausible explanation from the accused, the Court is bound to draw adverse presumption against the accused under Section 114 Illustration (a) of the Indian Evidence Act, 1872, that it was he, who locked the house of the deceased and took away the key. At the earliest point of time, on the date of occurrence itself, when the complaint was made, PW-1 narrated that the house of the deceased was found locked and the key was not found. She has reiterated the same in her evidence also. She has further stated that the duplicate key was brought and thereafter only, the house was opened with duplicate key. Thus, the missing of the key of the house of the deceased is not an innovation made by the police subsequent to the arrest of the accused. The missing of the key was brought to light by PW-1 on the date of occurrence and there is evidence to prove the same. We do not find any reason to reject the evidences of PW-1 and PW-2 that the key of the house of the deceased was found missing on the date of occurrence. The said key was found in the possession of the accused, after his arrest. The key was taken out by the accused from his Saloon Shop and thereafter, it was recovered by PW-19. This piece of evidence duly corroborates EX-P14.
22. The next corroboration comes from the recovery of the jewels on the disclosure statement made by the accused to PW-19 in the presence of PW-10. Regarding the missing of the jewels, it cannot be stated that it was again an innovation made out of the imagination by the prosecution after the arrest of the accused. The missing of the jewels were clearly mentioned in the First Information Report itself. PW-1 has stated about the same in her evidence. After recovery of the jewels, PW-1 has also identified the jewels. Thus, the prosecution has clearly established that the jewels mentioned in EX-P1 were all missing. The jewels, which were found missing, were all recovered out of the disclosure statement made by the accused to PW-19 in the presence of PW-
10. According to the disclosure statement, the jewels were pledged by him with the Lakshmi Vilas Bank, at Madurai. During the additional questioning under Section 313 of the Code of Criminal Procedure, the accused has admitted the pledging of the jewels. EX-P23 is the Jewel Loan Register, which shows that on 30.08.2008, he had pledged four items of gold jewels, which has been spoken to by the Bank Manager also. The jewels so pledged are three gold rings, two gold chains, one gold necklace and yet another gold chain. Thus, as many as seven items were pledged by the accused. Out of these items, two rings, weighing four grams [MO-6] and two grams [MO-7] were found to be the stolen properties from the body of the deceased.
23. According to the learned counsel for the appellant, as per the complaint, the total weight of two rings found missing was 11/2 sovereigns, viz., 12 grams, but the total weight of two rings recovered was only six grams. The learned counsel would submit that, thus, these two rings pledged by the accused are not the alleged stolen articles.
24. Though attractive, in our considered view, this argument also deserves rejection, for the simple reason that PW-1 has deposed about the weight of the two gold rings only approximately. Therefore, no much weightage could be given for this contradiction. PW-1 has identified these two recovered gold rings [MO-6 and MO-7] as that of the deceased. We find no reason to reject the same. We hold that the two gold rings, which were found to be the stolen articles, were found in the possession of the accused and he had pledged the same with the Lakshmi Vilas Bank Limited, Madurai.
25. Similarly, on 08.05.2008, the deceased had pledged a gold chain weighing 16 grams [MO-8]. It is the contention of the learned counsel for the appellant that PW-1 had not stated that it is a wheat model gold chain and instead, in EX-P1, she has stated bluntly that it is a gold chain. Though it is true that in EX-P1, PW-1 has not given the details of the chain, she has identified the said jewel as that of the deceased. Thus, the recovery of the said gold chain weighing 16 grams [MO-8] also goes to prove that it was stolen by the accused from the house of the deceased and it was in his hands.
26. From the Saloon Shop of the accused, the gold bangles were recovered, which have been duly identified by PW-1. Similarly, a gold chain was also recovered. These two jewels have been duly identified by PW-1 as that of her daughter. From the Saloon Shop of the accused, two pawn receipts were recovered and based on the same only, the jewels pledged by the accused with the Lakshmi Vilas Bank were all recovered. Though there is some discrepancy in respect of the weight of the said gold jewels, since we find reasons to hold that the weight of the jewels were all given approximately by PW-1 in EX-P1, much weightage for this discrepancy cannot be given. We, thus, hold that these jewels, namely, MO-4 to MO-8 were all stolen properties and they were in the possession of the accused soon after the commission of the theft and the recovery of these stolen articles would clearly go to corroborate the extra judicial confession given by the accused under EX-P14.
27. The learned counsel would, next, rely on the Judgment of a Division Bench of this Court in Balu @ Balamurugan Vs. State by the Inspector of Police, reported in 2013 (2) MLJ [Crl] 502, wherein the Division Bench has rejected the recovery of the stolen articles on the basis of a disclosure statement made by the accused on the ground that no independent witness was taken to attest the confession. But, in the instant case, PW-10 is an independent witness in whose presence, the confession was recorded in which the accused disclosed about the stolen articles. Apart from the above, a perusal of the said Judgment in Balu @ Balamurugan's case, would go to show that the Division Bench did not reject the disclosure statement made by the accused solely on the ground that no independent witness was taken for attesting the confession, but on the ground that there were contradictions regarding the place from where the material objects were recovered. In those circumstances, going by the facts, the Division Bench has rejected the story of the prosecution relating to the confession of the accused and the consequential discoveries made out of the disclosure statements made by him. In the instant case, we find no reason to doubt the disclosure statement made by the accused and the consequential recoveries of the stolen articles.
28. In respect of MO-4 to MO-8, it is contended by the learned counsel for the appellant that the said jewels belong to the accused. He has also deposed so as DW-1. DW-2, the father-in-law of the deceased, has stated that the said jewels were presented by him at the time of his marriage. In our considered view, this defence taken is only by way of an afterthought to come out with the clutches of law. Except the ipse dixit oral evidence of DW-1 and DW-2, there is no other evidence to prove that these jewels belong to the accused. Further, the retraction of the confession was not made immediately and the same was made only at the time of trial. Therefore, the Trial Court was right in rejecting the claim of the accused that MO-4 to MO-8 belong to him.
29. From the recovery of these gold jewels in pursuance of the disclosure statements made by the accused, we are inclined to raise a presumption under Section 114 of the Indian Evidence Act, 1872, as per the illustration (a) that the accused is the one, who had committed the theft of these jewels. As we have already pointed out, since the murder and robbery had taken place in one and the same occurrence, the further presumption is that the person, who had committed the robbery, is the one, who committed the murder. In this case, by virtue of the presumption under Section 114(a) of the Indian Evidence Act, 1872, we have no option, but to presume that the accused is the one, who had committed robbery of the jewels and that he is the one, who had committed the murder of the deceased.
30. The next contention of the learned counsel for the appellant is that though chance finger print would have been available at the scene of occurrence, nothing was lifted by the police so as to compare the same with that of the accused. He would take us through the evidence of PW-19, wherein he has stated that Finger Print Expert was summoned to examine the place of occurrence. By referring to this part of the evidence of PW-19, the learned counsel for the appellant would submit that chance finger print was lifted from the place of occurrence. But, a close reading of the evidence of PW-19 would go to show that no such chance finger print was seen anywhere at the place of occurrence and thus, there was no occasion to lift any chance finger print. Therefore, this argument of the learned counsel is rejected.
31. The learned counsel would, next, contend that the tub as seen in the photograph is full of water, whereas according to the case of the prosecution, it was damaged. We do not find any ground in favour of the accused in this submission. According to the confession, the accused pushed the face of the deceased into the tub, but she did not die. Thereafter only, according to the confession, he constricted her neck with cable wire and killed her. Thus, we do not find any force in this submission.
32. The learned counsel would further submit that there is an alternative hypothesis, which will be inconsistent with the guilt of the accused. According to him, the husband of the deceased would have committed the murder of the deceased, locked the door of the house and disappeared for some time to make it appear that it was a murder for gain. In our considered view, it is not every alternative hypothesis, which is suggested by the defence, that would create doubt in the case of the prosecution. An alternative hypothesis, which is atleast probable, alone would create doubt in the case of the prosecution. Thus, the alternative theory projected by the accused that the husband of the deceased would have committed the murder of the deceased has got no basis at all even to probabilize the said theory. Therefore, this argument is also rejected.
33. From the foregoing discussion, in our considered view, the prosecution has proved the following circumstances:-
On the date of occurrence, the deceased alone was at her home. The deceased was done to death sometime between 09.00 AM and 03.30 PM and it was a murder.
The gold jewels [MO-4 to MO-8] were all stolen by the culprit in the very same occurrence.
The accused surrendered before PW-10 on his own and made a voluntary confession, under EX-P14, on 19.10.2008, where he has admitted his guilt. Before PW-19, in his confession, the accused made a disclosure statement that he had pledged MO-5 to MO-7 in the Lakshmi Vilas Bank Limited, Madurai and kept MO-4 and MO-8 in his Saloon Shop.
In pursuance of the said disclosure statement made by the accused, the stolen articles were recovered.
The key of the house of the deceased was found missing, her house was found locked and the key was found in the possession of the accused in his Saloon Shop, which was recovered on the disclosure statement made by the accused.
34. These proved circumstances, in our considered view, form a close link with each other, thereby forming a complete chain unerringly pointing to the guilt of the accused. The alternative hypothesis projected by the accused is baseless. As per Section 114 of the Indian Evidence Act, 1872, it is to be presumed that the accused was the one, who had committed the murder of the deceased and robbery in the course of the same transaction and the said presumption has not been rebutted by the accused at all. Thus, we hold that the prosecution has clearly proved that the accused committed the offence punishable under Sections 449, 302 and 392 of the Indian Penal Code and accordingly, he is liable to be punished. The Trial Court has rightly done so.
35. Now, turning to the quantum of punishment, in our considered view, the offences said to have been committed by the accused are grave in nature. An young woman, at the age of 19 years, has been killed in a brutal manner by the accused, as she had not agreed to satisfy his lust. Being a friend of the husband of the deceased, instead of protecting her modesty, the accused had, obviously, no control over his sense so as to keep his desire for sex under discipline and he had attempted to ravage the deceased in order to satisfy his lust. Since she resisted, in order to cover up his misdeed, the accused had brutally murdered her and had stolen away the properties of the deceased also.
36. Now, turning to the mitigating circumstances, he is a poor man, running a Saloon Shop and he has got a family to look after. He has not committed any crime either prior or subsequent to this occurrence. When these aggravating circumstances as well as the mitigating circumstances are taken into consideration, in our considered view, the quantum of punishment imposed by the Trial Court on the appellant is very reasonable and just, which does not require any interference at the hands of this Court.
37. In the result, the Criminal Appeal is dismissed and the conviction and sentence, dated 27.10.2014, made in S.C.No.11 of 2012, passed by the Fourth Additional District and Sessions Judge, Madurai, is confirmed. Consequently, connected Miscellaneous Petition is also dismissed.
[S.N.J.,] & [V.S.R.J]
14.08.2015
Index : Yes/No
Internet : Yes/No
NB
1.The Inspector of Police,
Oomachikulam Police Station,
Madurai District.
2.The Fourth Additional District and Sessions Judge, Madurai.
3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
S.NAGAMUTHU, J.
AND V.S.RAVI, J.
NB JUDGMENT MADE IN CRL.A[MD].No.5 of 2015 14.08.2015 .