Madras High Court
Chandran vs State Rep. By on 18 January, 2007
Author: G.Rajasuria
Bench: D.Murugesan, G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 18/01/2007 CORAM: THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE G.RAJASURIA Criminal Appeal No.97 of 2005 1. Chandran 2. Saravanan 3. Soundaram ..Appellant Accused 1 to 3 Vs State rep. by The Inspector of Police, Melavalavu Police Station. ..Respondent Complainant Prayer The Criminal Appeal is filed under Section 374 of Cr.P.C. against the conviction and sentence passed by the learned Additional District & Sessions Judge, Fast Track Court No.II, Madurai in S.C.No.509/2004, dated 16.02.2005. For Appellants : Mr.K.Jegannathan for A.1 Mr.B.Murugan for A.2 Mr.S.Nagamuthu for A.3 For Respondent : Mr.P.N.Pandidurai, Additional Public Prosecutor. :JUDGMENT
G.RAJASURIA,J.
The Criminal appeal is directed against the Judgment of the learned Additional District & Sessions Judge, Fast Track Court No.II, Madurai in S.C.No.509 of 2004, dated 16.02.2005.
2. Broadly but briefly, the case of the prosecution as stood exposited from the records could be portrayed thus:-
Kesampatti village is a small village, within the Melavalavu Police Station limits. P.W.1, the Village Administrative Officer, Karuppaih came to know about the mortal remains of a human being so as to say, the pieces of bones precluding from the ground in S.No.554-1C-4 belonging to Periadaikan, whereupon, the Village Administrative Officer reported the matter on 21.02.2001 at about 8.00 a.m. to the Melavalavu Police, who registered a case in Crime No.99/2001 under Section 201 IPC and started investigation into the matter. Subsequently, on 28.02.2001 at about 12.30 hours, A1-Chandran and A2-Saravanan appeared before Palanivelu, the Village Administrative Officer of Kurakkottai Village, Velur Taluk and separately gave their extra judicial confessions, which were recorded by him. Thereafter, the Village Administrative Officer produced A1 and A2 before the Police along with the said confessions on the same day itself at 3.00 p.m. Consequently, the Police altered the First Information Report by adding Section 302 IPC in addition to Section 201 IPC under which, the F.I.R was initially registered.
3. The gist and kernel of the confessions, as per the prosecution case would run thus:-
A1-Chandran was living with his mother and brother at Door No.18/14, Thiruvalluvar Nagar, Movilpatti Burma Colony, Thondi. His father died already. A1 is running a shoe mart under the name and style of 'Bobby', which is managed by A.1, A1's brother and his mother. They are also owning 7.5 acres of garden land in Kooturavu patti village, Sivaganga District with coconut trees and a motor pump set. The deceased Patcha was working as electrician and used to visit a cycle shop nearby the A1's shop. The said Patcha helped A1 in repairing electrical defects in his shop as well as in his said garden. At one time, Patcha took away the A1's defective motor, as the coil of the motor was damaged and so saying he took away the motor, but he did not turn up for about two months. Subsequently, he came to A1, thereupon A1 shouted at him. However, A1 was pleased to appoint him as watchman in the said garden. A1's mother on seeing the sincerity of Patcha's work, reposed confidence in him, in entrusting the work of selling the agricultural produce of the said garden. However, A1 used to misappropriate part of the sale proceeds as commission, for which A1 took exceptions and scolded him. However, A1's mother chided A.1 and she also scolded A1 as a useless person, who was not helpful to her. Thereupon A1 developed animosity and aversion as against Patcha. Consequently, A1 in cahoot with A2 and A3, his friends hatched the conspiracy to murder Patcha. By way of carrying out their criminal conspiracy, A1 to A3 took Patcha by enticing him and went to the mangothope of Periadaikan at Kesmapatti on 26.01.2001 and dug a bit in the mango garden. The deceased Patcha asked the accused as to why such a bit was dug. For that, they had stated to him that it was for planting mango sapling. Then, on the same day at about 8.00 p.m. when there was moonlight, the accused caught hold of Patcha and sprinkled chilly powder on his eyes and murdered him with aruval by inflicting serious injuries and that after completely defacing him with aruval buried him in that pit. Subsequently, some of the animals meddled with that area and pulled out part of the dead body and thereby exposed it.
4. On receipt of the confessions recorded by the Village Administrative Officer, the police caused post mortem to be conducted on the dead body at the spot itself, by the Doctor. Police also collected the skull and other mortal remains for conducting super imposition test with the help of the photo of the deceased. The publications were effected for identifying the dead body and thereupon, the father and wife of the deceased came and identified the dead body with reference to the clothes found on it and also on seeing the electric tester of the deceased. The Police also got the body photographed and prepared observation Mahazar and rough sketch. The Investigating Officer collected the sample mud as well as the mud mixed with flesh of the deceased along with one rupee coin, one electric tester, one dark green colour terricotton lungi and one jatti.
5. The Investigating Officer examined the witnesses and recorded their statements. The Investigating Officer arrested A1 and A2, on they having been produced before him along with the confession statements. Based on the confession given by the accused, the Police also recovered the weapons of offence viz., Aruval and in addition to the materials used for digging pit viz., spade and crowbar were also recovered. A.3 surrendered before the Corut after laying of the police report.
6. The Investigating Officer collected the post-mortem report from the Doctor, who had conducted the post-mortem that the death was caused due to shock and haemorrhage. The experts of the Forensic Department, the Government of Tamil Nadu, Madras could not give a positive opinion after conducting the super imposition test. The Professor of Forensic Medicine, Madurai Medical College furnished his report that the deceased was a male. But he could not furnish the time of death. He opined that the deceased's age might be 40 to 50 years. The Professor was not in a position to assess the cause of death. The finger print expert could not lift the finger print from the dead body, as it was in a highly decomposed state. The Investigating Officer ultimately laid the Police report as against A1 and A2 for the offences punishable under Sections 120-B, 302 and 201 IPC before the Magistrate Court concerned, who committed the case to the court of Sessions. The Sessions Court framed charges as against all the three accused under Sections 120(B), 302, 342 and 201 IPC.
7. During the trial on the side of the prosecution, P.Ws.1 to P.W.25 were examined and Exs.P1 to P30 were marked along with M.O's 1 to 9. No oral or documentary evidence were adduced by the defence.
8. Ultimately, the trial Court convicted all the three accused for the offence with which they were charged and imposed sentences as aforesaid. Being aggrieved by the convictions and sentences imposed by the trial Court, the appellant preferred this appeal on the following grounds among others:-
(i) The trial Court without adverting to the cross examination of the witnesses and the admissions made by the witnesses delivered the Judgment.
(ii) P.Ws.2 and 3, whom the prosecution relied on turned hostile.
(iii) The witnesses P.Ws.6 and 7 whom the prosecution relied on to prove the last seen theory also turned hostile.
(iv) P.W.9 whom the prosecution relied on to prove that the deceased Patacha was working under A1 also turned hostile.
(v) The trial Court failed to consider that as per the evidence of P.W.10, the deceased was 30 or 35 years old at the time of his death. But the medical evidence was to the effect that the deceased might have been between 40 and 50 years old. P.W.11, the wife of the deceased also would state that her husband was 35 years old at the time of his death. The evidence of P.W.10 that he enquired A1, could not be correct, because at the alleged time of enquiry by P.W.10, A1 was in judicial custody. There is no proof that Patcha died really.
(vi) The trial Court failed to note that Patcha was heavily indebted.
Hence, it is possible that the said Patcha is alive and residing somewhere else for the purpose of escaping from the clutches of his creditors.
(vii) The trial Court has not properly considered the post mortem report and other medical and chemical reports in proper perspective. The extra judicial confessions relied on by the prosecution are inadmissible in evidence.
(viii) Further more, the confessions made by A1 and A2 cannot be used as against A3 as per the well settled proposition of law. The evidence of P.W.12, Palanivelu, the V.A.O would go against the theory of extra judicial confession. There was absolutely no materials to identify that the deceased was P.W.10's son. Accordingly, the appellants prayed for acquitting them.
9. Points for consideration are:
(i) Whether the dead body recovered was that of Patcha, the son of P.W.10 and husband of P.W.11?
(ii) Whether the extra judicial confessions relied on by the prosecution are admissible as per law and if so whether the confessions made by A1 and A2 could be used as against A3?
(iii) Whether the trial Court had sufficient evidence before it to give a finding that the appellants are guilty of the offences with which they were charged?
10. Point Nos.(i) to (iii) are taken together for discussion in view of the reason that they are inter-linked and interwoven with one another.
Point Nos:(i) to (iii)
11. P.W.1 Karupiah, the Village Administrative Officer, is the one who set the criminal law in motion by lodging Ex.P.1, the complaint with the police on 20.02.2001 to the effect that in the land bearing S.No.554/1C4 in Kesampatti village belonging to Periadaikkan, the mortal remains of a human being are protruding from the ground. Thereupon only, the police registered a case in Cr.No.99 of 2001 under Section 201 I.P.C as per Ex.P.17 and took up the investigation. In fact, P.W.1 would narrate that it was the said owner of the land, Periadaikkan's son Periadaikkan informed P.W.1 on 20.02.2001 at about 08.00 a.m., that in their land such human bones were protruding and thereupon, the Village Administrative Officer went to the spot and observed the scene in addition to having obtained the statement of Periadaikkan S/o.Periadaikkan and thereafter only, on 20.02.2001 he lodged the complaint Ex.P.1 with the police. There is nothing to doubt the testimony of P.W.1.
12. P.W.2 Kumar and P.W.3 Chinnu whom the prosecution relied on as eyewitnesses to the occurrence turned hostile. In fact, the prosecution expected that they upheld depose about the actual occurrence and that owing to fear, they immediately did not disclose those facts to the police.
13. P.W.4 Veeran, the Village Assistant to P.W.1 in Kesampatti in addition to elucidating the facts in support of Ex.P.2 the Observation Mahazar relating to the scene of crime, would also speak about Ex.P.3 the recovery mahazar under which M.O.1 green colour lungi, M.O.2 jatti, M.O.3 electric tester, M.O.4 mud mixed muscles, M.O.5 sample mud and M.O.6 one rupee coin. P.W.4 withstood the cross-examination and there is nothing to doubt his testimony.
14. P.W.5, Periadaikkan would depose to the fact of P.W.1 having been informed about the dead body protruding from the ground in his father's land. As such his evidence supports the evidence of P.W.1 and P.W.4.
15. P.W.6 Kumar, the brother of A.1 whom the prosecution relied on to prove the fact of identifying the deceased, turned hostile.
16. P.W.7 Chinnazhaghu @ Karuvayan, P.W.8 Sivam, whom the prosecution relied on to press into service the last seen theory, turned hostile.
17. P.W.9, Ramaiah whom the prosecution relied on to prove the fact of the motive part of the crime and about the factum of the deceased having worked under A.1 and A.1's mother, turned hostile.
18. P.W.10, Sulthan Patcha and P.W.11 Jameena Begam, the wife of the deceased, would unconvincingly identify that the deceased was Patcha.
19. The trial Court in its judgment at paragraph Nos.27 and 28 relied on the evidence of P.W.10 and P.W.11 and gave a finding as though they properly identified the green colour lungi M.O.1 as that of the deceased Patcha. The trial Court also made reference to the photographs which were handed over by P.W.10 to the Investigating Officer and in that photograph, the deceased Patcha was found wearing green colour lungi. P.W.11 would also narrate about the fact that since her husband could not secure any fruitful job, he left P.W.11 in her mother's house and went to Melur in search of job; subsequently he informed her that he secured a job in the Shoe Mart of A.1 in Melur. He was also an electrician who knew agricultural operation also.
20. The core question arises as to whether the evidence of P.W.10 and P.W.11 relating to the identity of the deceased, could be taken as conclusive in this murder case. Corpus delicti i.e, the dead body should be found out and its identity should be proved beyond all reasonable doubts as otherwise, it might lead to gross violation of justice if for any reason, the so called dead man who was not actually died, is traced out subsequently.
21. The learned Counsel for the appellants would stress upon the fact that in this case, Patcha did not die at all and according to the defence theory, he in view of having heavily indebted to various persons fled away from that place and living somewhere so as to keep himself away from the clutches of his creditors. It is entirely different whether the defence theory is genuine one or not. The onus probandi is on the prosecution to prove the case beyond all reasonable doubts. The aforesaid green colour lungi and tester are common articles available in market. There is nothing to show that green colour lungi contained any peculiar 'dobi mark' or any name embroidered there as it could be seen in some cases peculiarly. There is nothing to show that the tester, had any peculiar marking to prove that only Patcha possessed it. Based on mere green colour lungi M.O.1 and tester M.O.3 only, if the identity is held to have been established, then that would lead to dangerous consequences.
22. There are catena of decisions on the point that if there is any doubt about the identity of the dead body, the benefit should be given in favour of the accused. The dictum in Sardar Hussain and another v. State of Uttar Pradesh reported in 1989 Supreme Court Cases (Cri) 45 would posit the aforesaid proposition. An excerpt from it, would run thus:
"8. As to identification of the dead body, the evidence on record is equally unsatisfactory. Shabbir (PW 1) has deposed that about 14 months before, Islam was taken by Sardar Hussain and Yasin. Yasin is the father-in-law of Sardar Hussain. He has also stated when Islam went with them, he was wearing a shirt of green check and a black striped tahmad. Islam was taken on the pretext that they would get him married. He has further stated that Mian Jan (PW 2) and Sadiq (PW 3) and one other person called Majid had seen Islam going with the Sardar Hussain and Yasin. But Mian Jan (PW 2) and Sadiq (PW 3) did not speak anything about the dress which Islam was wearing when he was taken by Sardar Hussain and Yasin. Secondly, how could Shabbir see all that he had stated. Islam and Shabbir were living separately. Islam was not taken after a meeting with Shabbir. It is not the case of Shabbir that Islam came to him and told him about the purpose of his going with the accused. If the purpose was to get Islam married, why did he allow Islam to go with the accused. Islam had by then parted company with them at the instance of Shabbir and mother, because they were of bad character. Is it understandable that such bad characters should arrange the marriage without the assistance or approval of Shabbir and mother? It is difficult to believe Shabbir in the circumstances."
The aforesaid case dealt with almost similar set of facts in a different dimension, however on par with this case and hence, we have no hesitation in applying the said precedent suo moto in the facts and circumstances of the case.
23. The trial Court without any detailed analysis simply believed the version of P.W.10 and P.W.11 relating to the identity. The Court is expected to objectively see whether those witnesses had in the facts and circumstances any plausible reason to assess the identification with the available materials. As has been already highlighted above, the available materials were only the said green lungi M.O.1, and the tester M.O.3, for their identification. But by no stretch of imagination, it could be assumed or presumed, understood or inferred, believed or supposed, that such green colour lungi M.O.1 and tester M.O.3 could be sufficient to prove the identity of the dead body.
24. Ex.P.5, the photograph was marked, wherein one could see as many as five persons are figuring in that photograph. P.W.10 was sitting in the middle and he is flanked by the said Patcha and P.W.11. The said Patcha is found having a child in his arm and one other daughter is standing before P.W.10. In that photograph, the said Patcha is found wearing green colour lungi and there is no certainty that the said lungi which was found worn by him, was recovered from the dead body.
25. Ex.P.9 series 1 to 12 are photographs as many as 12 in number relating to the scene of crime and the dead body which was found at the place of occurrence. In fact, one of the photographs would show that the bones are found strewn at the place where the dead body was found. In one other photograph, the dead body was found in decomposed state, that the face itself could not be seen, one could see only the mortal remains there. Hence, in these circumstances, the trial Court was not right in simply arriving at the conclusion based on the evidence of P.W.10 and P.W.11. P.W.10 and P.W.11 had no objective reasons to arrive at such assessment. No opinion regarding the identity is possible from the mortal remains found in those photographs. The Investigating Agency also made arrangements for conducting the post-mortem at the spot itself on 21.02.2001 at 03.15 p.m., and the Doctor noted the following injuries:
"Identifications could not be found.
The body was first seen by the undersigned at 03.15 p.m, on 21.02.2001. Its condition then was ...........
Post-mortem commenced at 03.15 p.m., on 21.02.2001.
Appearances found at the post-mortem Skull bone intact. Lower jaw seen side of the cervical bones exposed from earth 5 teeth are scattered near the skull bones. Orbits are empty. Tissues of the abdomen and thorax converted into thick, semifluid mass black in colour may separated from bone and no larynx and Ttrachea. Stomach: dark, pultaceous mass.
Heart: Soft, flabby and dilated.
LungsL Soft reduced to a small black mass.
Diaphragm: Identified. Liver and spleen could not be identified. Pelvic bones separated from muscles. Identified as male pelvis, and lower limbs only bones. Femur, Tibia taken. No muscles.
Skull bones: Fracture mandible present. No brain mass. Opinion as to cause of death -
Reserved pending report of Chemical analysis.
FINAL OPINION AS TO THE CASES OF DEATH
1. Name of the deceased : Unknown.
2. Age/Sex :
3. Crime No : 99 of 2001, 1875 of the Melavalavu Station u/s 21.02.2001.
4. Post-mortem done by Dr.R.Ganesan.
5. Regional Forensic Sciences Lab. Madurai.
6. Report No.66 Lox.II dated 28.08.2001
7. Prof. Of Forensic Medicines Madurai Medical College, Madurai.
Ref. No.T.No.4783/Jud dated 09.11.2001
1) BASED ON THE REPORTS CITED, I AM OF THE OPINIONS:
The deceased would appear to have died of Shock and haemorrhage due to injuries on face, fracture mandible about ... hours prior to the commencements of autopsy."
26. As such the perusal of above excerpt from the post-mortem report extracted, would elucidate and evince, convey and clarify that skull bone was found intact. He would identify only from the pelvis bone that it was that of a male. In fact, no muscles were found in the leg portion and that could also be seen from the photographs referred to supra. The Doctor opined that fracture of mandible was present. The Doctor reserved his opinion for obtaining Chemical Analysis report and subsequently, the Doctor after seeing the Forensic report dated 27.02.2002 and the opinion of the Professor of Forensic Medicince, Madurai Medical College, Madurai-20, dated 08.06.2001, came to the conclusion that the deceased might have died due to shock and haemorrhage owing as a sequelae of the injuries sustained on his face and also the fracture sustained by him. The time of death, could not be assessed by the Doctor.
27. P.W.22 deposed with reference to Ex.P.22, the post-mortem certificate about what he observed while conducting post-mortem examination and also his opinion, as found set out in Ex.P.22. During cross-examination, he would assert that the death might have been due to the fracture of the mandible. He would also furnish his opinion that the deceased might have been between 35 - 40 years old. However, the deposition of P.W.10 and P.W.11 would be to the effect that the said Patcha was around 30 - 34 years old. P.W.10 would assert that he was 30 years old and P.W.11 would state that the said Patcha was 34 years old. But, none of them furnished that the said Patcha was between 35 - 40 years. Ex.P.29, the opinion given by Doctor Meiyazhagan, M.D., Professor of Forensic Medicines, Madurai Medical College, Madurai-20, marked through P.W.25, the Inspector of Police, would reveal the following facts:
"OPINION:
1) ,we;jJ Mzh? Bgz;zh?
vYk;gpd; njhw;wk;> kw;Wk; jd;ikfspypUe;J ,we;jth; Mz; vd;W bjhpfpwJ.
2) mth; ,we;J vj;jid ehl;fs; ,Uf;Fk;?
nkw;fz;l vYk;gpypUe;J brhy;y ,ayhJ.
3) mtUf;F taJ vd;dthf ,Uf;Fk;?
bfhLf;fg;gl;l vYk;g[fspd; njhw;wk; kw;Wk; jd;ikfspypUe;J ,we;j eghpd; taJ 40- ypUe;J 50 taJ tiu ,Uf;fyhk;.
4) mth; ,we;jJ ,aw;if kuzkh? My;yJ bfhiyah?
bfhLf;fg;gl;l vYk;g[ Jz;LfspypUe;J ,wg;gpw;fhd fhuzj;ij Tw ,ayhJ."
28. According to Ex.P.29, the deceased was between 40 - 50 years. As such the evidence relating to age as furnished by P.W.10 and P.W.11, do not tally with the medical evidence. The Investigating Agency also took steps to get the photo superimposition test performed, but the test was not possible. Ex.P.25 is extracted hereunder for ready reference:
"The following articles were received here on 23.08.2001 through Police Constable No.1169 Thiru.Ravi, under unbroken seals which corresponded with the sample sent, viz:-
A paper envelope containing, Item 1. A 15.2 X 9.8 cm size colour group photograph in which the face of the one male individual is encircled and with an ' ' mark and on its rear with the rubber stamp of JUDICIAL MAGISTRATE COURT, MELUR -1 AUG 2001. A sealed cloth parcel labelled, "FM No.-14-55/01 Dt:8.06.2001 NOT KNOWN CR NO:99/2001 (Melavalavu PS) ... BONES..." enclosing a tin containing, Item 2. A skull vault with the right upper orbital rim. Item 3. Two innominate bones.
Item 4. Other bones numbering five (5).
OPINION:-
The item 2 described is found to be a vault of skull with the right upper orbital rim but without other facial bones. As such it is not possible to carry out skull-photo superimposition using the skull vault described as item 2 above."
29. As such the skull-photo superimposition did not bear fruitful result in this case. The net result is that absolutely there is no reliable evidence to identify that the dead body was that of the said Patcha. The trial Court without adverting to all these intricate points, jumped to the conclusion that the prosecution had proved the identity of the deceased Patcha.
30. No doubt, it is the duty of the Court to see whether from the available evidence on record, the identity could be understood. Admittedly, A.1's shoe Mart is at Melur and the field belonging to the family is situated at Kooturavupatti which is admittedly a few kilometres away from Melur. The place of occurrence is at Kesampatti which in turn is also several kilometres away from both Melur as well as Kooturavupatti. However, there is no evidence relating to the actual distance from one place to another and those details were not detailed and delineated, expressed and expatiated in this case.
31. Be that as it may, one fact is clear that Kesampatti village is the place of A.3. The confession of A.2 embodied in Ex.P.6 and the confession of A.1 as in Ex.P.7, would show as though twice the deceased was taken by them to that Kesampatti under the pretext of seeing mango grove there and for the second time, when Patcha was taken there, he was murdered and buried in the Thope of Periadaikkan. From the extra judicial confession alone, the Court cannot objectively come to the conclusion that the dead body was that of the said Patcha and the identity cannot be held to have been established. If the identity of the deceased is beyond doubt, then it would act as the basis to support the extra judicial confession. The extra judicial confessions by themselves cannot be the be all and end all to prove the prosecution case.
32. It is a trait proposition of law that convicting an accused merely based on the extra judicial confession without any supportive evidence, would be lead to disastrous consequences and miscarriage of justice.
33. Indubitably and undisputedly, incontrovertibly and undeniably, P.W.2 and P.W.3 whom the prosecution relied on as eyewitnesses turned turtle and they became hostile in toto. Hence, in such a case, there is no question of relying on their evidence even to modicum extent. Furthermore, the very case of the prosecution is that P.W.2 and P.W.3 even though before the police claimed to have witnessed the crime, they kept quite without informing the police for fear of their own safety and that only after the police started the investigation; they allegedly came forwarded with the version as though they were eyewitnesses to the occurrence. As such intrinsically their evidence, even if adduced would be defective legally, such witnesses, even if they depose in support of the prosecution, as though they had witnessed the crime, their evidence should be looked askance at. The same comment offered regarding to evidence of P.W.2 and P.W.3 shall also be applicable to the evidence of P.W.6, P.W.7 and P.W.8. In fact, the prosecution relied on those witnesses P.W.6, P.W.7 and P.W.8 for the purpose of pressing into service the last seen theory, but they during trial proved scourge to the interest of the prosecution.
34. The only evidence based on which the prosecution could advance its argument is the extra judicial confessions as in Exs.P.6 and P.7 namely, the alleged confessions of A.2 and A.1 respectively.
35. The learned Counsel for the appellants would try to torpedo the evidence of P.W.12, Palani Velu, the Village Administrative Officer who claimed to have recorded the said confession statements on the ground that those confessions are inadmissible in evidence in view of various catena of decisions and that even for argument sake, even if such extra judicial confession statements, are taken to constitute a piece of evidence, it is highly unreliable and unsafe to base the conviction on such weak piece of evidence.
36. Regarding admissibility of extra judicial confessions made by the accused after the registration of the first information report, before the Village Administrative Officer, the Honourable Apex Court in Sivakumar v. State reported in (2006) 1 Supreme Court Cases (Cri) 470 would lay down the law that such confessions are admissible in evidence. A few excerpts from it, would run thus:
"35. Criminal Rules of Practice and Orders, 1931 of the Madras High Court were issued by the High Court in exercise of its power conferred by Article 227 of the Constitution. Rule 72 of the Rules reads thus:
"72. Village Magistrates not to record confession.- Village Magistrates are absolutely prohibited from reducing or writing any confession or statement whatever made by an accused person after the police investigation has begun."
36. The said rule has lost all its significance in view of the fact that now under the Code of Criminal Procedure or any other statue or statutory regulations, the Village Headman is not a Village Magistrate. The post of a Village Magistrate since 1973 does not exist.
37. The Village Administrative Officer, it has shown, has been conferred with any power of a Magistrate by reason of the provisions of the Code of Criminal Procedure or otherwise. It has also not been shown that he exercises any judicial or quasi-judicial function. Indisputably, he has no role to play in the matter of an investigation in a criminal case.
38. The Village Magistrates evidently, under the new Code of Criminal Procedure, are not empowered to record any confession or statement either in terms of Section 162 or Section 164 of the Code of Criminal Procedure.
39. For all intent and purport, therefore, Rule 72 of the Criminal Rules of Practice has become redundant and nugatory, logical corollary whereof would be that there does not exist any embargo for an accused person to make an extra- judicial confession before a Village Administrative Officer.
40. We do not, thus, see any reason as to why such an extra-judicial confession could not be made before a Village Administrative Officer. With a view to exclude the admissibility of the confession made before a person, he must be a police officer. A Village Administrative Officer does not answer the description. While carrying out his duty to inform the police or the Magistrate in terms of Section 40 of the Code, the Village Headman does not act as a public servant removable only by or with the sanction of the local government nor does he act in his capacity as Magistrate.(See Pregadfa Balanagu v. Krosuru Kotayya.)
41. We, for the reasons stated hereinbefore, are of the opinion that the extra-judicial confession by the appellant before the Village Administrative officer was not inadmissible and, thus, could be relied upon."
37. It is therefore crystal clear that Exs.P.6 and P.7, confession statements recorded by P.W.12 cannot be thrown away as inadmissible. However, in the very same precedent of the Honourable Apex Court by relying on various other decisions, it is found highlighted that the extra-judicial confession is a weak piece of evidence and in that connection, the Honourable Apex Court at paragraph No.46, stated thus:
46. Yet again in State of Rajasthan v. Raja Ram it was stated: (SCC p.
192, para 19) "19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility."
[emphasis supplied.]
38. Adhering to the aforesaid caution reiterated and posited by the Honourable Apex Court, we also could start with the presumption that Exs.P.6 and P.7 are weak type of evidence. We have to search for other circumstances in support of the extra-judicial confession, from the evidence available on record. But, out discussions supra, would show that except the extra-judicial confession, nothing is available in this case. Furthermore, the absence of identity of the deceased worsens the case of the prosecution. As has been already highlighted above, if the identity of the deceased is beyond all reasonable doubts, then in such an event, we could think of relying on Exs.P.6 and P.7 as the basis for conviction. But, it is not so in this case.
39. As per Section 30 of Indian Evidence Act, the confession made by one accused could be used as against the other accused not as a substantive piece of evidence, but it could only be considered in the light of other evidence available. In the famous treatise "Sarkar on Evidence, 15th Edition Reprint 2004", the law relating to 'retracted confession' is given and it is extracted hereunder for ready reference:
"Upon a review of the cases cited before, the position appears to be as follows:- The opinion once held (eg, R v. Rangi, 10 M 295; R v. Bharmappa, 12 M 124 & c) that there can be no conviction solely on a retracted confession without independent corroboration is not now adhered to. A retracted confession is always open to great suspicion, but a confession cannot be regarded as involuntary merely because it has been retracted afterwards. Every case must be judged by its peculiar and special circumstances.
As against the maker, there can be legal conviction solely on a retracted confession if the unhesitating conclusion is that it is voluntary and true; but as a rule of practice and prudence, it has been held in numerous cases that it is unsafe and unwise to act on a retracted confession alone without independent corroboration.
As against the co-accused the value of a retracted confession is almost nil and it has been firmly established that as a matter of prudence and practice there can ordinarily be no conviction without the fullest corroboration both as to the crime and the criminal.
[emphasis supplied] Mere statement of the accused before the court that he was innocent would not amount to retraction of extra-judicial confession [Pakkirisamy v. State of T.N., 1998 Cri LJ 89 (SC)] The true rule appears to have been stated in a case where it has been held that if a judge believes that a confession made by a prisoner, although subsequently withdrawn, contains a true account of that prisoner's crime, the judge is bound to act so far as the prisoner is concerned, on that confession, which he believes to be true. When a confession is not supported by the evidence of witnesses, a judge must examine carefully to see whether it gives details which indicate that it is a natural narrative of what took place in the presence of the man making it, and it is not a variance with any evidence in the case which is believed, and is not merely a parrot-like repetition of a story put into the man's mouth. The amount of credibility of a retracted confession depends on the circumstances of each particular case.[R v. Maiku Lal, 20 A 133; see also R v. Bhagwandans, A 1941 B 50 : 1941 Bom 27; Ram Parkash v. S, A 1959 SC 1 : 1959 SCR 1219]"
40. The learned Counsel for the appellants also brought to out notice that certain discordant notes during cross-examination, P.W.12 Village Administrative Officer, even though set out concordant notes in favour of the prosecution during his chief examination by narrating cogently and copiously the versions in favour of the prosecution to the effect that on 28.02.2001 at 12.30 hours while he was in his office, A.1 and A.2 voluntarily and volitionally approached of their own accord and offered to give their confession statements; thereupon, the Village Administrative Officer got recorded those confession statements, Exs.P.6 and P.7, yet, during cross-examination, he would state, of course truthfully that the hand-writing in Ex.P.6 did not tally with Ex.P.7 in recording the confession. The Court cannot be oblivious of the realities. Those confessions were recorded on 28.02.2001 whereas he deposed before the Court on 15.12.2004 almost three years after such recording. P.W.12 would expound and explain that Ex.P.6 was got written by him with the help of his assistant Murugesan and Ex.P.7 was got written by him with the help of his one other assistant whose name, he could not recollect while deposing before the Court.
41. It is common knowledge that the Village Administrative Officer might have got such statements recorded in his presence by his assistants or somebody. Simply because, the hand-writing differs from Ex.P.6 to Ex.P.7, we cannot hold that Exs.P.6 and P.7 are out and out fabricated documents. Had really P.W.12 wanted to fabricate such documents, he would have in a much better manner without giving room for any such criticism and such fabricator would be knowing as to how and with the help of whom it was fabricated. P.W.12 Village Administrative Officer during cross-examination in all fairness deposed what was in his mind.
42. The core question arises as to why Exs.P.6 and P.7 should not be relied on for recorded conviction at least as against A.1 and A.2. The basic question still remains whether such confessions were made voluntarily before him. The first information report itself was registered on 21.02.2001 and a week afterwards, they confessed before the Village Administrative Officer.
43. In the last portion of their confessions, it is alleged to have been stated as though they voluntarily approached the Village Administrative Officer, because they found the innocent people were tortured by the police and that thereupon only, they approached the Village Administrative Officer for making confession and they never stated that they had not feared for police that they were tortured, then if they surrendered directly before the police. To say the least that much portion of the confession appears to be quite artificial.
44. In this connection, the decision of the Honourable Apex Court in Kali Ram v. State of Himachal Pradesh reported in 1973 Supreme Court Cases (Cri) 1048 could rightly be referred for the proposition that witness professing to know about a gravely incriminating circumstance against the person accused of murder but keeping silent for two months, are unreliable.
45. Not to put too fine a point on it, we may by striking the nail on the head of it, without circumlocuting or dilating on this point, would express our opinion that in view of the over all circumstances of this case, elucidated before us, we are not convinced that Exs.P.6 and P.7 could be the basis for conviction in the absence of any other material on record in support of such confessions.
46. P.W.21, Rajaram, the Inspector of Police, who conducted the major part of the investigation in this case would narrate as though A.1 and A.2 were produced by P.W.12 along with Exs.P.6 and P.7 and that in pursuance of those confessions with the help of A.1 and A.2, he recovered M.O.7 aruval, M.O.8 crowbar and M.O.9 spade.
47. In the wake of the view taken by us relating to these M.Os.7,8 and 9 such recovery cannot be taken as evidence buttressing the case of the prosecution. Through P.W.13, Palani, the police photographer, M.O.9 series of photographs 1 to 12 and the corresponding negative M.O.10 were marked and there is nothing to doubt his testimony.
48. The evidence of P.W.14 Kannan, who is the person in charge of Sniffer- dog would highlight that with the help of the dog, nothing fruitful was culled out. P.W.15, the police official is the one through whom the Express F.I.R was sent to the Court and it is a formal piece of evidence in this case. P.W.16, the Head Constable would speak about the fact that he assisted the Investigating Officer.
49. P.W.17, Krishnasamy, the Court official would speak about the fact of material objects having been sent to experts for obtaining the opinion. P.W.18, Jegannathan, the then Sub Inspector of Police would speak about the initial registration of the F.I.R as per Ex.P.17 which is a formal piece of evidence.
50. P.W.19, Gomathi, assistant in Forensic Department visited the scene of crime at the request of the police and noted the scene and helped the Investigating Officer scientifically.
51. The evidence of P.Ws.21, 23 and 25, the Inspectors of Police in this case, would not be in any way taken as special evidence to drive home the guilt of the accused.
52. P.W.24, Mahalakshmi, is the assistant in Forensic Department through whom Exs.P.26, P.27 and P.28 were marked and those exhibits in the facts and circumstances of the case do not in any way throw light upon the case. As many as 10 items collected from the scene of crime were sent for chemical examination and even though blood was deducted on item Nos.6 and 7, so as to say M.O.1 lungi and M.O.2 jatti. Serologist could not give any opinion as they stated that the blood got disintegrated. Ex.P.13 would show that the finger print expert tried his level best to lift the finger print, but he could not do so for the reason that the dead body was in a highly decomposed stage.
53. The learned Counsel for the appellants would cite the decision in State of Punjab v. Bhajan Singh reported in AIR 1975 SUPREME cOURT 258 to drive home the point that the dead body even though in a decomposed state could have been sent to an anatomy expert. Here, the post-mortem was conducted at the spot itself as the body, as found in the photograph, was not even in the shape of a body, but only in the shape of skeleton relating to lower body and the face also was not visible. Here, the police also took steps to send, the mortal remains, as has been already highlighted to the Professor of Forensic Department, but there was no break through medically.
54. The maxim "Omnia Praesumuntur Contra Spoliatorem (Every presumption is made against a wrong-doer), cannot be pressed into service in this case. The prosecution cannot be found fault with, in view of the steps they already taken in this case and discussed supra. However, owing to insufficiency of evidence alone, we have to reverse the convictions recorded and sentences imposed by the trial Court. Accordingly, Point Nos.(i) to (iii) are decided as against the prosecution.
55. Since A.3 Soundaram surrendered before the Court, the police could not arrest him till they could file the police report before the Magistrate in terms of Section 173 of Code of Criminal Procedure.
56. In view of the ratiocination adhered to, for deciding the aforesaid points, the convictions recorded and sentences imposed cannot be upheld.
57. In the result, the appeal is allowed setting aside the convictions recorded and sentences imposed by the learned Additional District & Sessions Judge, Fast Track Court No.II, Madurai in S.C.No.509/2004, dated 16.02.2005. The accused shall be set at liberty and released forthwith unless they are not required to be detained for any other case. Fine amount, if any, collected shall be refunded to them.
To
1. The Inspector of Police, Melavalavu Police Station.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.