Madras High Court
Madana Gopal vs State Represented By Deputy ... on 28 November, 2003
Author: P. Sathasivam
Bench: P. Sathasivam
JUDGMENT P. Sathasivam, J.
1. The appellant, in this judgement will be referred to as the accused for the sake of convenience, was tried before the learned Sessions Judge, Nagai Quaid-E-Milleth District in Sessions Case No.27 of 1994.
2. The allegation against the accused is that the accused and the deceased fell in love with each other and their marriage was conducted in a temple and later the same was registered. As the parents of the accused were against their marriage, they did not attend the same. Six months prior to the occurrence, both of them were living in a separate hut at Mela Theru, Udayadithamangalam Village. On 11.05.1993, at about 8.00 p.m., there was a wordy quarrel between the deceased and the accused, and the latter took M.O.1 - Towel, put it around the neck and strangulated her to death. The learned Sessions Judge finding the accused guilty under Section 302 IPC, convicted and sentenced him to undergo life imprisonment. The present appeal challenges the above conviction and sentence.
3. The case of the prosecution is this.
(a) Since the deceased, hailing from a poor family, did not bring jewels, the accused - husband, ill-treated her by demanding dowry and wanted to marry another girl, hence he wanted to do away the deceased. On 11.05.1993 at about 8.00 p.m., there was a wordy quarrel between the accused and his wife - the deceased, the accused took M.O.1 Towel, put it around her neck and strangulated her to death.
(b) One Dhanapal went to Mayiladuthurai and informed P.W.1 - father of the deceased. P.W.1 came to the place of occurrence. P.W.1, is a native of Udayadithamangalam Village and is presently residing at Thiruvilanthur. His first wife is Govindammal and he had two children through her. After the demise of his first wife, he married another lady, by name, Anjalai as second wife, through her, he had two children. He is a load-man by profession. The deceased is his daughter through his first wife and the accused is his son-in-law. The incident occurred about 2 " years prior to the date of his deposition before Court and the marriage between the accused and the deceased had taken place three years prior to the date of his giving evidence. Since they loved each other, their marriage was performed in a Temple and the same was registered. None attended the marriage on the side of the accused. However, after a period of six months, they joined with their parents. Some time after the marriage, the accused harassed the deceased by demanding dowry. However, his daughter never returned to his house and she was residing with the accused only.
(c) On 12.05.1993, around 11.00 a.m., when he was loading cement bags in Ramamurthy Iyer Godown at Mayiladuthurai, one Dhanapal of Udayadithamangalam Village came and informed him that on the previous day i.e., on 11.05.1993, at about 8.00 p.m. his son-in-law Madhanagopal - accused, strangulated his daughter, by using a Towel. On hearing the same, immediately, he proceeded to Udayadithamangalam Village and reached there around 2 p.m. on 12.05.1993. He saw the body of his daughter lying in a hut in Mela Theru. He noticed a Towel mark on her neck. In the place of occurrence, Village Headman - Uthrapathy was present at that time. He came to know that it was the accused, who strangulated his wife (daughter of P.W.1) and no complaint was made by the Village Headman to the Police, since temple festival was being performed on that date at Udiyaththimangalam Village. Accordingly, P.W.1 went and met the Village Administrative Officer, Puthagaram - P.W.8, around 3.30 p.m. He informed about the death of his daughter. The Village Administrative Officer - P.W.8, recorded his statement and obtained signature. Ex.P.1 is the complaint.
(d) One P. Maniyan, resident of Udayadithamangalam Village was examined as P.W.2. According to him, P.W.1 is his agnate (g';fhsp) He knows the deceased as well as the accused. The marriage between the accused and the deceased was performed three years ago despite the objection of the parents of the accused. On 11.05.1993, at about 8.00 p.m. when he was returning from the field after watering the sugar cane crops, from North to South and while crossing the hut of the deceased Senthamarai, he heard some noise (fh; fh;) and thinking that it is a sound of a bird like hen, he went to his house. After taking food, he went to Temple. When he was standing near the temple around 8.30 p.m., he saw the accused running from his hut in a restless manner. After spending some time at the temple, he returned home and slept. On the next day morning around 8.00 a.m., he heard that Senthamarai died in her hut. He went there and noticed a Towel mark in her neck and bloodstains on the floor of the hut. He saw Mani, S/o Natesan - P.W.3, Mani, S/o. Govindan - P.W.5 and others at the place of occurrence. After ascertaining that it was the accused, who strangulated the deceased, he sent his brother to Thiruvilanthur to inform the same to P.W.1 - father of the deceased. P.W.1 came to the hut around 2.00 p.m.
(e) N. Mani, Son of Natesan, resident of Udayadithamangalam Village, was examined as P.W.3. After narrating about the marriage between the deceased and the accused, he deposed that on 11.05.1993 around 7.30 p.m. when he was proceeding to his field, near Senthamarai's house, he saw the accused and the deceased quarrelling with each other. The accused beat the deceased, however, he left the place and after attending his field work, returned home at about 8.15 p.m. At that time he saw the accused running from the hut in a perturbed manner. Thereafter, P.W.3 spent some time in the temple, returned home and slept. Only on the next day, after hearing the death of Senthamarai, he visited her house and noticed a Towel mark in her neck and bloodstains on the floor of the hut. A message was sent through one Dhanapal - brother of P.W.2, to P.W.1. P.W.1 came to the place of occurrence around 2.00 p.m.
(f) The post-mortem Doctor was examined as P.W.4. She conducted the autopsy on the body of Senthamarai on 13.05.1993 and issued post-mortem certificate - Ex.P.2. She opined that due to strangulation the death has been occurred.
(g) One Selvamani, the then Village Administrative Officer, Pattavarthi Village was examined as P.W.8. It is, he, who recorded the statement - Ex.P.1 given by P.W.1 - father of the deceased on 12.05.1993 at 3.30 p.m. P.W.8 went to Manalmedu Police Station at 4.30 p.m. along with P.W.1 and gave Ex.P.1 to the Sub-Inspector of Police - P.W.10, who registered the same in Crime No.383 of 1993 under Section 302 IPC; prepared printed FIR Ex.P.9 and sent Exs.P.1, P.4 and P.9 to the Judicial Magistrate No. I, Mayiladuthurai through one Dhayalan, Police Constable - P.W.11. Since the death occurred within a period of three years from the date of marriage, he sent a copy of the FIR to the Deputy Superintendent of Police, Mayiladuthurai. He also informed about the incident to Deputy Superintendent of Police, Mayiladuthurai over phone, who reached the scene of occurrence at 5.00 p.m. And took up investigation.
(h) The then Deputy Collector, Mayiladuthurai was examined as P.W.14. It is stated by him that he conducted inquest on the body of Senthamarai in the presence of Panchayathars between 11.15 a.m. and 12.15 p.m. on 13.05.1993 and prepared an inquest report Ex.P.12. During the inquest, he inquired P.W.1, his wife Anjalai and other five panchayathars and recorded their statements. Those statements are Exs.P.13 and P.14. After the completion of inquest, P.W.14 sent the body for post-mortem.
(i) Thiru J. Baskaran, the then Deputy Superintendent of Police, Mayiladuthurai was examined as P.W.15. On information, he visited the scene of occurrence and prepared a observation mahazar Ex.P.7 in the presence of P.W.9 and one Ramasamy and also prepared a rough sketch Ex.P.15; recovered earth - M.O.3 and bloodstained earth - M.O.2 under mahazar Ex.P.8 in the presence of the same witnesses. He also inquired P.W.1, his wife Anajali, P.W.9 and Ramasamy and recorded their statements. On 13.05.1993, he recorded statements from P.Ws.6,7,2,3,8,12 and Dhanapal. He was informed about the arrest of the accused on 17.05.1993. He enquired P.W.4 and Dr. Govindarajulu and recorded their statement. After completing investigation, P.W.15 filed charge sheet on 20.12.1993 against the accused for the offence under Section 302 IPC.
4. When the accused was questioned under Section 313 Cr.P.C. with regard to the incriminating circumstances, he denied the complicity of the same.
5. Now, we shall consider whether the prosecution has established their case beyond doubt as alleged?
6. It is seen from the materials placed that the accused and the deceased fell in love with each other and their marriage was conducted in a temple it was registered later. As the parents of the accused were against the marriage, they did not attend the same. It is the case of the prosecution that, after the marriage, they resided separately for 3 months and then they joined with accused's parents home Mela Theru, Udayadithamangalam Village, which lies within Manalmedu Police Station limits.
7. Let us consider whether the motive has been established. It is the claim of the prosecution that both the accused and the deceased quarrelled with each other on many occasions and the same was witnessed by neighbours. It is also their case that since the accused did not properly maintain his wife, demanded dowry and wanted to marry another girl, he wanted to do away the deceased. In the earliest document, viz., Ex.P.1, P.W.1 has stated that when he was unloading cement bags at Mayavaram Ramamurthi Iyer Godown around 11.00 a.m. on 12.05.1993, one Dhanapal of Udiyaththimangalam Village informed him that his daughter was killed by the accused, by strangulating her . It is further stated that on hearing the same, P.W.1 went to the residence of his daughter at Udiyaththimangalam Village, there he saw the dead body of his daughter. He noticed ligature mark in her neck and also enquired others what had happened. Though the said information was first passed on to P.W.1 at Mayiladuthurai by Dhanapal, for the reasons best known to the prosecution, the said Dhanapal was not examined. In other words, the informer of the death of Muthulakshmi @ Senthamarai, who is alleged to have been strangulated by her husband was not examined. No explanation was offered by the prosecution for the non-examination of the said Dhanapal. It is stated that on the date of occurrence, i.e., on 11.05.1993, at about 8.00 p.m., due to wordy quarrel between the accused and the deceased, the latter strangulated the former to death by MO1. When it is stated that the occurrence had happened in a hut, and nobody witnessed the same, the best person to speak about the occurrence is Dhanapal, who informed the incident to P.W.1 - father of the deceased, but he was not examined.
8. Though P.W.1 has stated that after one year from the marriage, the accused and his parents started ill-treating his daughter, admittedly, neither the deceased nor P.W.1 made a complaint either to the police or atleast to the local Panchayathars at any point of time prior to the occurrence. However, it is the claim of P.W.1 that for the welfare and benefit of his daughter, he left Udayadithamangalam Village and settled at Thiruvilanthur along with his family members. In this regard, it is relevant to note that even in chief examination, P.W. 1 has admitted that even after ill-treatment, his daughter continued to live with her husband and never came to his house. In the context that the marriage between the accused and the deceased happened due to falling in love with each other, it is hard to believe that mere strained relationship between them would form a motive in the mind of the husband/accused to murder her wife. This, in our view, falsifies the motive to certain extent. Though motive need not be proved in all cases, the fact remains that the allegation of quarrel and misunderstanding between the accused and the deceased has not been substantiated by placing acceptable evidence.
9. The other witness heavily relied on by the prosecution is P.W.2. He is a resident of Udiyaththimangalam Village. It is his case that on 11.05.1993 at about 8.00 p.m. when he was returning from his farm after watering sugarcane field and while crossing the hut of the deceased Senthamarai, he noticed that the door (Xiyj; jl;L) of her house was closed. At that time he heard a noise (fh; fh;) from the house. It is not his evidence, that at that time, actually, both the husband and wife were inside the hut, on verification, or put on notice. Though he heard such noise, admittedly, he did not try to verify the noise in order to know what happened inside the hut, instead he went to his house, took dinner and went to temple around 8.30 p.m., where festival was going on. He also claims that around 8.30 p.m., when he was standing near the temple, he saw the accused running from his hut towards his father's house, which is on the western side. It is also not in evidence from the mouth of PW2, that when accused ran away, he saw his wife inside the hut, atleast to inform both would have been present, together at that time. After noticing the tempestuous accused, admittedly, P.W.2 did not inform this to anyone, however, he went to his house and slept. Only on the next day around 8.00 a.m., he heard the news of death of Senthamarai. He went there and noticed ligature mark in her neck. He also noticed bloodstains on the earth near the body of Senthamarai. Even then P.W.2 did not take any effective steps. According to him, he discussed the matter with persons standing there and arrived a conclusion that she might have been murdered by accused and thereafter he sent his brother Dhanapal to Thiruvilanthur to inform the news to P.W.1 - father of the deceased. This would suggest, by deliberation, the Villagers have fixed the culprit, as accused, without actually knowing who is the cause for death, which is carried out, latter on. In this view, we are not impressed with the evidence of P.W.2, since even on the fateful night i.e., on 11.05.1993, though he heard some noise from the hut, he did not try to verify the same, he went home and after taking food, went to the temple and after spending sometime there, he returned home and slept. As said earlier, when he was standing near the temple, according to him, he saw the accused running from the hut and even then he did not inform the same to the persons standing near the temple, nor made any attempt to catch hold of the accused, which are against human conduct. As rightly argued by the learned counsel for the appellant, it is not safe to rely on the evidence of P.W.2.
10. The other witness relied on by the prosecution is P.W.3. He is a resident of Udiyaththimangalam Village. According to him, on 11.05.1993, around 7.30 p.m., he went to his land through the hut of Senthamarai. While crossing her hut, he noticed the accused beating the deceased and there was a wordy quarrel. Here again, he did not do anything to pacify them, however, he went to his land. It is his further case that while he was returning from his land at 8.15 p.m., he saw the accused running from the hut towards his father's residence. Even after seeing the accused, he did not take any step to inform anyone, but, he went to his house, took his food and slept. Only on the next day morning, he came to know the death of Senthamarai. He went to the hut and noticed ligature mark in the neck of the deceased and also blood stains on the earth. It is not clear whether any light was burning either at 7.30 or 8.15 p.m., when he saw the accused and the deceased quarrelling and the former beating the latter. Like P.W.1 and P.W.2, P.W.3 also did not take any step either to apprehend the accused or to inform the incident immediately to others. His evidence is also unreliable.
11. Another eye-witness examined on the side of the prosecution is P.W.5, who is also a resident of Udiyaththimangalam Village. He is residing at Mela Theru. According to him, both the accused and the deceased were living in a hut, which is opposite to his house. Like P.Ws.1 and 2, he also states that on 11.05.1993 at 8.15 p.m. he saw the accused running from the hut, however, without informing the same to anyone, he went to his house, and after taking food, he went sleep. Like P.Ws.1 and 2, he heard the death of Senthamarai only on the next day and noticed ligature mark in her neck and bloodstains on the earth.
12. On a careful analysis of the evidence of P.Ws.1, 2, 3 and 5, it does not impress us and we are of the view that they are not truthful witnesses.
13. Now, we shall consider the evidence of P.W.8 - Village Administrative Officer, since the entire case is sought to be proved by the extra judicial confession, said to have been given by the accused to him, though it is a weak piece of evidence. It is the case of P.W.8 that on 12.05.1993 at about 3.30 p.m. when he was in his office along with his menial Rajendran, P.W.1 - Kalimuthu, came and made a statement regarding the murder of his daughter Senthamarai. He recorded his statement and obtained his signature, which is Ex.P.1. He took P.W.1 to Manalmedu Police Station and deputed his menial Rajendran to the place of occurrence. At the police station, he presented Ex.P.1 to the Sub-Inspector of Police - P.W.10. Based on Ex.P.1, the Sub-Inspector of Police - P.W.10, registered a case around 4.30 p.m. in Crime No.383 of 1993 under Section 302 IPC and came to the place of occurrence at 5.30 p.m. It is also the claim of P.W.8 - Village Administrative Officer, that on 17.05.1993 at 11.00 a.m. when he was in his Office, the accused - Madhanagopal came and made a voluntary confession in the presence of two witnesses, admitting his guilt, i.e., it was he, who strangulated the deceased with M.O.1 - Towel and surrendered before him. Thereafter, P.W.8 sent the confessional statement of the accused - Ex.P.5 and M.O.1 - Towel to the Sub-Inspector of Police P.W.10 under his covering letter Ex.P.6. The learned counsel appearing for the appellant by drawing our attention to the "Subject" and "Reference" made in the letter - Ex.P.6 of P.W.8 - Village Administrative Officer to the Sub-Inspector of Police - P.W.10, would contend that in the absence of explanation as to how he mentioned the particulars of FIR, Crime Number and the Section of law in the letter Ex.P.6, the document was prepared only an after thought and created for this case. Since the said letter goes to the root of the case, the same is extracted hereunder:
"mDg;g[jy;
$p/ bry;ykzp fpuhk eph;thf mYtyh;
gl;lth;j;jp/ bgWdh;
cjtp Ma;thsh; (rl;lk; xG';F) kzy;nkL/ Iah.
bghUs;: bfhiy tHf;F vjphp ruz; mile;J xg;g[jy; thf;FK:yk; bfhLj;J xg;gilj;j jlaj;ija[k;. vjphpiaa[k; xg;gilj;jy;
rk;ke;jkhf/ ghh;it: kzy;nkL fh/ep/ F/vz;/383-93 r-gp 302 ,jr/ //// ,d;W 17-5-93 njjp 11/00 kzpf;F g[j;jfuk; vd; mYtyfj;jpy; ghh;itapy; fz;l tHf;fpd; vjphp kjdnfhghy; taJ 23-93 j-bg/ g{nyhfk; nkyj; bjU cjahjpj;jk';fyk; vd;gth; M$uhfp rhl;rpfs; Kd;dpiyapy; jhnd kdKte;J bfhLj;j xg;g[jy; thf;FK:yj;ij gjpt[ bra;Jk;. mg;nghJ vd;dplk; xg;gilj;j nkw;goahhpd; kidtp bre;jhkiu vd;w Kj;Jyl;Rkpia rk;gtj;jpd;nghJ bfhiy bra;a gad;gLj;jpa Rkhh; 3 3-4 x 1 3-4 mo mst[s;s bts;is
14. The main thrust of the learned counsel for the appellant is that the extra judicial confession viz., Ex.P.5 could not be the voluntary confession of the accused and it should be the handy work of the police. In other words, the submission of the learned counsel for the appellant is that the hands of the Village Administrative Officer were used, to record Ex.P.5 and the brain behind for the information contained in Ex.P5, must be the police. In this view, he attacked Ex.P.5 on the ground of unreliability, as well as on the ground of inadmissibility of the document. It is the case of P.W.8 that P.W.1 informed about the murder on 12.5.1993 at about 3.30 p.m. and the same was recorded by him (Ex.P.1). Only on the basis of Ex.P.1, as aforementioned, the law was set in motion, by registering a case. Thus, it is evident, P.W.8 knew that a criminal case was registered against the accused and it is not the case of the prosecution also that P.W.8 did not participate in the process of investigation. Thus, we could safely conclude, P.W.8 knew about the case and the subsequent investigation also, because it is his further case that the Deputy Superintendent of Police, inspected the premises at about 5.30 p.m., prepared observation mahazar, etc. Having the above factual aspect, we have to see Ex.P.5 as well as Ex.P.6.
15. A confession statement is one recorded on the information furnished by the person, who conveyed the same, confessing his guilt or exposing the facts, which are within his knowledge. It could not be the case of the prosecution that the accused knew the crime number of the case, which is registered against him, the fact being that the accused was arrested only after the alleged handing over of the extra judicial confession statement to the Sub Inspector of Police, P.W.10 on 17.5.1993 at about 11.45 a.m. Therefore, if the alleged extra judicial confession had been recorded only on the basis of the information given by the accused, generally there is no possibility of mentioning the crime number even by PW.8. It is not the case of P.W.8 also that he knew the crime number, pending against the accused and therefore, he inserted the crime number, in order to have some reference or something like that. The accused is not a person legally qualified having knowledge under which provision his act of commission of offence would come. Therefore, generally if an ordinary villager had confessed his guilt, one could not expect that he would be furnishing the crime number and under which section, the case is registered, etc. But curiously, in the alleged extra judicial confession statement, we find the crime number 383/93 and Section 302 I.P.C. The above facts are noted in the preamble of Ex.P5. As said supra, there is no evidence, even from the mouth of P.W.8 that he knew the crime number. Therefore, the fact that Exs.P.5 and P.6 do contain the crime number and Section of I.P.C., would indicate that the man behind the scene, for recording this statement, must be the police. Otherwise, there would not have been any opportunity for P.W.8, to give the crime number and the penal provision also. In this view, in our considered opinion, Ex.P.5 came to be recorded after the arrest of the accused. Probably it would have been prepared only to have strength, for the case, since there is no direct evidence of any kind. In this view, we are of the further considered opinion that Ex.P5 is the statement recorded during the course of the investigation, thereby attracting Section 162 of Cr.P.C.
16. Section 162 of Cr.P.C. prohibits the use of any statement, recorded or any statement made by any person to a police officer in the course of an investigation, thereby making it inadmissible. Only to circumvent Section 162 of Cr.P.C., an obliging Village Administrative Officer's aid was sought and Ex.P.5 was recorded. In Kaliram v. State of Himachal Pradesh, , the Apex Court of this land had an occasion to consider a letter containing narration of facts relating to the crime addressed to the police officer, during the course of investigation. While laying down the law, the Apex Court observed:
"The prohibition contained in Section 162 Cr.P.C. related to all statements made during the course of an investigation. The letter which was addressed by 'S' to Station House Officer was in the nature of narration of what, according to 'S' he had been told by the accused. Such a letter would constitute statement for the purpose of Section 162, Cr.P.C. The prohibition relating to the use of statement made to a police officer during the course of an investigation cannot be set at naught by the police officer not himself recording the statement of a person but having it in the form of a communication addressed by the person concerned to the police officer. If a statement made by a person to a police officer in the course of an investigation is inadmissible, except for the purposes mentioned in Section 162, the same would be true of a letter containing narration of facts addressed by a person to a police officer during the course of an investigation. It is not permissible to circumvent the prohibition contained in Section 162 by the investigating officer obtaining a written statement of a person instead of the investigating officer himself recording that statement."
It is also further held that-
"The restriction placed by Section 162 on the use of statement made during the course of investigation is in general terms. There is nothing in the Section to show that the investigation must relate to any particular accused before a statement to the police pertaining to that accused can be held to be inadmissible."
Admittedly, Ex.P.5 came into existence during the course of the investigation, that is after the investigation has begun. Therefore, it is not permissible to admit this extra judicial confession, as evidence, since it is aimed to circumvent the prohibition contained in Section 162 Cr.P.C. by a clever investigating officer, under the impression, that it may not be noticed by the Court.
17. A cursory reading of Ex.P.5 would make it abundantly clear, that this could not be the voluntary confession of the accused, since it contains the minute details regarding the investigation to be done, witnesses to be examined as if everything is known to the accused, which is expected in the investigation of the case. In this view of the matter, we conclude that even assuming Ex.P.5 is the confession, given by the accused, it is inadmissible in evidence and therefore, no reliance could be placed upon this document, to fix the culpability of the accused.
18. The second attack to invalidate this document, as per the submission of the learned counsel for the appellant is that it is hit by Rule 72 of the Criminal Rules of Practice. Rule 72 was framed by the High Court, in exercise of the powers conferred by Article 227 of the Constitution of India, with the previous approval of the Governor of Tamil Nadu and therefore, it should have the recognition of law. Rule 72 of Criminal Rules of Practice reads :
"The Village Magistrates are absolutely prohibited from reducing to writing any confession or statement whatever made by an accused person after the police investigation has begun."
19. In this case, admittedly, Ex.P.5 came into existence after the investigation has begun and therefore, we find no difficulty in coming to the conclusion that Ex.P.5 is hit by Rule 72 of Criminal Rules of Practice. Though, Rule 72 prohibits recording of a statement by the Village Administrative Officer, it does not say, that same is inadmissible in law or the statement, if so recorded, could not be used in evidence. It is held by this Court in Lakshmanan, In re 1971 MLJ Crl. 178 and in Sakthivel v. State (2003) M.L.J. (Crl.) 752, that there is no legal bar to the extra judicial confession made by the accused to the village Munsif during the investigation, being admitted in evidence and its evidentiary value is less or reduced. It is also further observed in the first ruling cited, that it is not safe to rely on such extra judicial confession. In Ganesan vs. State rep. By Inspector of Police ( 2002-2-L.W.(Crl.) 746) also, it is held that though it is not possible to state that it is illegal or inadmissible, the probative value would depend upon on the facts and circumstances of the case. However it is seen the safeguard provided under Rule 72 is breached, in this case, thereby making the value of this document NIL.
20. For the reasons assigned by us supra, in our considered opinion, an obliging Village Administrative Officer has recorded Ex.P.5, at the dictate of the investigating officer and in this view, on factual aspects as well as on legal aspects, Ex.P.5 could not be relied on and therefore, the same is to be eschewed. If this document is ignored, as not genuine and inadmissible, in law, then practically, there is nil evidence to implicate the accused, with the alleged crime. As there is a mention with regard to the particulars of F.I.R., Crime Number and Section of law under "Reference" column in letter Ex.P.6, we are of the view that the document is an after thought and it was created for this case; accordingly, the recovery is equally doubtful.
21. It is also relevant to note that the accused was present at the scene of occurrence, which is clear from the inquest report - Ex.P.12, prepared by P.W.14, Deputy Collector, who in his cross examination has admitted that in his inquest report, he made a note that in the forenoon of 12.05.1993, the accused admitted his guilt in the presence of police officers and the villagers. In the cross examination, P.W.14 has stated, "gpnuj tprhuiz mwpf;if gf;fk; 6 y; 12/5/93 fhiyapnyna nghyPrhh; kj;jpapYk;. Ch; kf;fs; midth; kj;jpapYk; vjphp Fw;wj;ij xg;g[f;bfhz;ljhf Fwpg;gpl;Ls;nsd;/ ////// "
whereas the complaint - Ex.P.1 was made and registered in Crime No.383 of 1993 under Section 302 IPC on 12.05.1993 at 16.30 hours i.e., in the afternoon of 12.05.1993. All these materials clearly support the defence taken by the accused and raise doubt regarding the prosecution case.
22. The learned counsel for the appellant has also contended that there is inordinate and unexplained delay in registering the FIR, which is fatal to the prosecution case. He further contended that there was delay both in recording the statements of witnesses and sending the same to the Court. In support of his contention, he has very much relied on a Division Bench decision of this Court in the case of Muthu etc., vs. State etc., reported in 1999-2-Law Weekly (Criminal) 123 Short Notes, wherein the Division Bench held, "13. The Sessions Judge was not right in simply placing reliance on the evidence of these eye witnesses without carefully scrutinising their evidence as mentioned above. There was delay in recording the statements of these witnesses and a further delay in sending inquest to the court and inordinate delay in sending the statement of the eye witnesses to the court. All these circumstances taken together will lead to conclusion that these witnesses were not the eye witnesses to the incident. They came forward with a false case much later. "
23. In the case before us, admittedly, there is a delay of 40 days in sending S.161 statements to the Court. Though P.W.1 has stated that because there was a festival in their Village, they did not complain to the Police immediately after the occurrence, in the light of the fact that the Village Administrative Officer - P.W.8 was very well available, we are of the view that the explanation offered by P.W.1 cannot be accepted and nothing prevented the Village Administrative Officer - P.W.8, from taking cognisance of the offence and complaining to the police immediately. Though the distance between the place of occurrence and the Police Station is only 4 Kms., the complaint has been made only on 12.05.1993 at 4.30 p.m. and it reached the Court on 13.05.1993. There is no sufficient explanation for the delay on the part of the prosecution. Admittedly, the M.Os., particularly, M.Os.1 to 6 were not sent for serological examination. Here again, there is no explanation on the side of the prosecution. The above facts also would suggest, all the documents might have been prepared, including the alleged extra judicial confession, fixing the accused first, thereby showing, investigation has not led to the conclusion, that the accused is the culprit, which should be ordinarily construed.
24. It is true that even in the absence of direct eye witnesses, the prosecution can establish their case by circumstantial evidence. In the case on hand, we have already referred to the fact that the marriage between the accused and the deceased is one of love marriage and at no point of time the deceased made a complaint to her father about the ill-treatment made by the accused. As rightly argued, if she had actually been ill-treated by her husband - accused, she would not have kept quiet and continued to live with him. We also referred to the fact that the evidence of P.Ws.2 and 3 are un-reliable and cannot be accepted. Their conduct in not informing the crime immediately to the police or the Village Administrative Officer does not impress us to accept their statements. We have already stated that in view of Rule 72 of the Rules, P.W.8 - Village Administrative Officer has no jurisdiction to record the confessional statement of the accused, since by that time the investigation was commenced by the Police. In the absence of reliable and cogent evidence, it is unsafe to sustain the conviction. It is settled law that circumstances loaded with suspicion are not sufficient to establish the charge levelled against the accused. Likewise, when two views are possible, the view in favour of the accused should be taken and he is entitled for benefit of doubt. We are satisfied that several links are missing in the chain in respect of circumstantial evidence and we have no other option, except to award the benefit of doubt in favour of the accused.
In the result, the appeal succeeds and is allowed. The order of conviction recorded against the appellant/accused under Section 302 IPC and the sentence passed against him thereunder are set aside and the appellant is acquitted. Since the appellant is on bail, his bail bond shall stand cancelled.