Madras High Court
Kumar Alias Pushpakumar vs State Represented By on 13 September, 2017
Author: N.Sathish Kumar
Bench: M.M.Sundresh, N.Sathish Kumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 13.09.2017
CORAM
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH
AND
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
CRL.A.(MD).No.258 of 2013 and
M.P.(MD).No.2 of 2013
Kumar alias Pushpakumar .. Appellant/Sole accused
Vs.
State represented by
The Inspector of Police,
Karambakudi Police Station,
Karambakudi,
Pudukkottai District. .. Respondent/Complainant
Crime No.362 of 2008
PRAYER: Appeal filed under Section 374 (2) Cr.P.C. to call for the records
and set aside the judgment passed in S.C.No.87 of 2010 on the file of the
Additional District Judge, Mahila Court, Pudukkottai, dated 19.11.2010 and
allow the criminal appeal.
!For Appellant : Mr.P.Balasubramaniyan
^For Respondent : Mr.K.S.Duraipandian
Additional Public Prosecutor
Judgment Reserved on
01.09.2017
Judgment Pronounced on
13.09.2017
:JUDGMENT
(Judgment of the Court was delivered by N.SATHISH KUMAR,J.) Aggrieved over the judgment of the learned Additional Sessions Judge, Mahila Court, dated 19.11.2010, in S.C.No.87 of 2010, the present appeal has been filed, in and by which the appellant/accused has been convicted and sentenced as under:-
Conviction Sentence Section 302 IPC Life imprisonment + fine Rs.1,000/- in default 3 months S.I. Section 326 IPC
2 years. R.I. + fine Rs.500/- in default 3 months S.I.
2. The brief case of the prosecution is as follows:-
PW2 and PW3 are the minor children of the deceased and accused. The deceased is the wife of the accused. All them were residing together at Tirupur. Since the accused had doubted his wife's conduct, three months prior to the occurrence, the accused brought the children to Malaiyur Village, Pudukkottai District, and residing along with his children.
ii) On 18.09.2008, when the deceased came to Malaiyur Village to see her children, the same was objected by the accused. On the next day, the accused cut the deceased, PW2 and PW3 prevented him. In that process, they were also suffered injuries on the head and they were taken to the hospital.
iii) PW1/Village Administrative Officer, Malaiyur, while he was in office on 19.09.2008, at 8 a.m. PW7 informed about the occurrence and PW1 gave a report regarding the incident/Ex.P1 through PW7. PW6/Village Assistant also on hearing the occurrence went to the place of occurrence and found the deceased was found dead and PW2 and PW3 were grappling for their life with severe injuries. Thereafter on the same day at 4 p.m. accused appeared before PW1 and gave a extra judicial confession and PW7 reduced the same in writing and obtained the signature of the accused, which was marked as Ex.P2.
iv) PW10 head constable at the relevant time received Ex.P1 complaint from PW1 and registered a crime in Crime No.362 of 2008 for the offence punishable under Sections 302 and 307 IPC. Ex.P12 is the First Information Report and forwarded the First Information Report to the Inspector of Police and thereafter he sent the dead body of the deceased to the hospital at 3 p.m. Thereafter, he has also handed over the dead body to the relatives after postmortem and the material object like dresses to the Inspector.
v) PW11, Inspector of Police after receipt of a copy of the First Information Report took up the investigation and went to the place of occurrence in the accused house and prepared observation mahazar/EX.P3 in the presence of PW1 and PW6 and also drawn rough sketch/Ex.P13 and conducted inquest over the dead body and prepared inquest report/Ex.P14 and also seized blood stained earth and ordinary earth under Ex.P4 mahazar. Thereafter at 16.30 hours arrested the accused, who was handed over by PW1 and examined the accused in the presence of PW1 and PW6 and recorded his confession. The admissible portion of the confession is marked as Ex.P15. Thereafter, he also seized sickle/MO4 under Ex.P6 mahazar and thereafter remanded the accused.
vi) In the meanwhile, the Medical Officer/PW9 treated PW2 and PW3 and issued wound certificates/Ex.P9 and Ex.P10 respectively stating that injuries are grievous in nature. Thereafter, he also conducted autopsy over the dead body of the deceased Jeyanthi and found the following injuries:-
?1) Laceration of 10 x 5 x 4 cm in left side face extending upto left ear.
2) Laceration of 2 x 1 x 1 cm in left side mandible.
3) Laceration of 5 x 3 x 2 cm, 3 x 2 x 1 cm in right hand
4) Laceration of 5 x 4 x 3 cm in left wrist.
5) A laceration of 5 x 3 x 2 cm left elbow.
6) Fracture upper end of left ultra.
7) Fracture lower end of left humerus.
8) Fracture 8, 9, 10th ribs-left side.
9) Peritoneal cavity contains 1000 ml of blood.
10) Complete laceration of spleen found.
11) Liver, kidney, brain congested.
12) Stomach and intestine empty
13) Uterus empty.?
and opined that the deceased would appear to have died of shock due to spleen laceration. He issued Ex.P11/postmortem certificate.
vii) PW11 in continuation of the investigation examined the witnesses and recorded their statements and also forwarded the materials objects to the forensic lab. The Biological report is marked as Ex.P16 and the Serologist Report is marked as Ex.P17. He laid the charge sheet against the accused under Sections 302 and 307 (2 counts) IPC.
3. When the above incriminating materials were put to the accused under Section 313 Cr.P.C. the accused pleaded innocence. During trial, on the side of prosecution as many as 11 witnesses were examined and 17 documents were exhibited besides 7 material objects. On the side of the defence neither any witness was examined nor any document was marked.
4. Having considered the above materials, the trial Court found the accused guilty as detailed in the first paragraph of this judgment and accordingly, punished him and that is how the appellant is before this Court with the appeal.
5. Heard the learned Counsel for the appellant and the learned Additional Public Prosecutor for the State and also carefully perused the records.
6. The learned counsel appearing for the appellant vehemently contended that the entire prosecution is vitiated for the simple reason that the First Information Report has been sent to the Judicial Magistrate, instead of First Class Judicial Magistrate. According to the learned counsel only the Chief Judicial Magistrate alone can be considered as the First Class Magistrate. Therefore committal order passed by the Judicial Magistrate, Alangudi is against law. Hence, the prosecution cannot be sustained. It is the further contention of the learned counsel for the appellant that all the eyewitness turned hostile and PW2, who is a child witness, evidence is also not reliable as she has not specifically spoken about the accused. It is also submitted by the learned counsel that extra judicial confession relied upon by the prosecution is fabricated one and the evidence of PW1 clearly belies the extra judicial confession, namely Ex.P2. The evidence of PW1 is totally contradictory between chief examination and cross-examination. Therefore, the alleged extra judicial confession cannot be relied upon. It is the further contention of the learned counsel that the alleged complaint/Ex.P1 to the police station is also highly doubtful. Admittedly, there is a out-post police station near the place of occurrence, whereas the complaint has been given to the respondent police station, i.e. also one of the circumstances which creates serious doubt about the prosecution. Further, it is the contention of the learned counsel that the way in which the occurrence took place clearly give an indication that there was no motive or intention to murder the deceased. It is also the arguments of the learned counsel that the Court has to be presumed that the occurrence took place in a sudden quarrel. Hence, it is the contention of the learned counsel that the offence under Section 302 IPC has not been made out. Hence, prayed for allowing the appeal. In support of his arguments the learned counsel for the appellant relied on the following judgments:-
i)1989 LW (Cri) 86 (Suyambukkani v. State of Tamil Nadu, rep by Inspector of Police, I.C.F.Police Station, Madras), wherein it is stated as follows:-
?As pointed out earlier, ill-will and premeditation should be be both present in a case of murder. The absence of one of them coupled with an important excusing circumstance would transform the offence into a culpable homicide. In the present case, there is of course premeditation, but obviously no ill-will. The extreme course of family suicide, the mother along with her children, is clearly in our opinion an excusing circumstance equivalent to those enumerated in the Exceptions to Section 300 I.P.C. and will be therefore in the nature of an Exception, when the mother escapes and children die, bringing the offence to one punishable under Section 304, Part I, I.P.C.?
ii) 2005 (4) CTC 174 ( Ayyanar v. State of Tamil Nadu), wherein it is stated as follows:-
?33. As per Exception 1 to Section 300, I.P.C., culpable homicide is not murder, if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. In order to bring the case under Exception 1 to Section 300, I.P.C., it is necessary that the following facts should be established:
(1) The offender must have done the act whilst deprived of the power of self-control;
(2) He must have been so deprived by reason of the provocation; (3) The provocation must have been grave and sudden;
(4) The provocation must not have been sought for by the offender; (5) It must not have been voluntarily provoked by the offender as an excuse for killing or doing harm to any person.?
iii) 1996 SCC (Cri) 187 ( Bonda Devesu v. State of A.P.), wherein it is stated as follows;-
?When prosecution case itself is that the deceased used to misbehave with the wife of the appellant and on the date of occurrence he was actually taking her away by catching hold of her hand, in the normal course it was bound to cause grave provocation to the appellant, because of which the offence was committed. In this background, the appellant cannot be convicted for an offence under Section 302. His case is covered under Exception I to Section 300 of the Penal Code.?
7. On the contrary the learned Additional Public Prosecution has submitted that this is a brutal murder of wife by the husband. Not stopping that the accused also made an attempt to eliminate the two minor children and they were also severely injured by cut injuries. The deceased died on the spot. The two minor children were grappling for life and they were admitted in the hospital by the villagers. The evidence of the Medical Officer clearly shows that the nature of injury inflicted by the accused clearly show that he has no remorseful in his mind and indiscriminately cut the deceased and the minor children. It is the further contention of the learned Additional Public Prosecutor that admittedly, the accused came to the place of occurrence along with two children, and one day prior to the occurrence the deceased also came there and the occurrence also took place in front of the accused house. The injured minor children were struggling for life and accused immediately fled away from the scene. His conduct itself clearly go against him. If really some other person has attacked the deceased and the minor children, his conduct would have been otherwise. This aspect has not been explained by the accused. It is the further contention of the learned Additional Public Prosecutor that PW2, minor child at the time of evidence was aged about 9 years. Though she could not give minute details about the nature of injuries, her evidence clearly shows that only the accused attacked the deceased and the minor children. It is the further contention of the learned Additional Public Prosecutor that the accused also voluntarily appeared before the VAO/PW1 and gave extra judicial confession. PW1 has no motive whatsoever against the accused to falsely implicate him. Therefore, the extra judicial confession does not suffer from any infirmities and that itself sufficient to base a conviction. Though the eye witnesses have turned hostile, the evidence of PW1 and Ex.P2/extra judicial confession and evidence of PW2 clinchingly established the role of the accused with the complicity of the crime. Therefore, it is the contention of the learned Additional Public Prosecutor merely because there was some discrepancy found in the evidence of PW1 about the time of extra judicial confession that itself cannot be a ground to discard the entire prosecution case. Hence, submitted that the prosecution has proved the guilt of the accused beyond all reasonable doubt.
8. In the light of the above submissions, now it has to be analysed that whether the prosecution has proved the guilt of the accused beyond all reasonable doubt and whether the accused is entitled to benefit under Section 300 of the Indian Penal Code.
9. The case of the prosecution is that initially the accused was living with his wife, the deceased namely Jeyanthi and two minor children PW2 and PW3 in Tiruppur and he developed suspicion over his wife's conduct and left her at Tiruppur and came to Malaiyur Village along with PW2 and PW3, the minor children are aged about 7 and 2 years respectively at the relevant point of time. When the matter stood thus, on 18.09.2008, the deceased came to the house of the accused. However, the accused protested the same. On 19.08.2008 at 8 am the accused protested her wife being present in the house, as a result, a quarrel ensued between them and the accused cut the deceased indiscriminately, wherein she succumbed to injuries in his own house. In that process the accused also caused grievous attack on PW2 and PW3 minor children and fled away. Though the prosecution has examined as many as 11 witnesses, except PW2, the minor daughter, PW3, who could not give a proper evidence due to her age, other witnesses not supported the prosecution version. It is the case of the prosecution that after such murderous attack on the deceased, PW2 and PW3, the accused fled away from the house. Thereafter, he has voluntarily surrendered before PW1 and PW6, Village Administrative Officer and Village Assistant, respectively at 4 p.m. and gave extra judicial confession/Ex.P2. In pursuant to which, the accused was arrested by PW11.
10. It is the evidence of PW1/Village Administrative Officer, PW6/Village Assistant and PW7/Village Menial that on hearing the death of the deceased Jeyanthi in the accused house and the children also suffered injury, PW1 and PW6 went to the spot. Thereafter, PW1 sent Ex.P1 complaint to the police. Pursuant to which, a First Information Report/Ex.P12 came to be registered by PW10 Head Constable at the relevant time at 10 am. Thereafter, PW11 rushed to the place of occurrence and started his investigation. It is the evidence of PW1, PW6 and PW7 that prior to the reaching of the place of occurrence, seriously injured minor children PW2 and PW3 were rushed to the Government Hospital, Pudukkottai District by the neighbours in the village. The evidence of Medical Officer PW9 when carefully seen, in fact, PW2 and PW3 after first aid referred to Thanjavur Medical College and hospital and issued Ex.P9/wound certificate and Ex.P10/wound certificate of the minor children respectively. Wound certificates issued by PW9, which were exhibited by the prosecution shows that PW3, minor child was aged about 2 years at the relevant point of time and she has suffered lacerated injury measuring 7 x 5 x 3 cm in occipital region, cut injuries measuring 3 x 3 x 2 cm in both side jaw and fracture is also found on the skull and Mandible. Similarly, PW2, minor child aged about 7 years at the relevant point of time also suffered lacerated injury measuring 7 x 5 x 2 cm on the scalp with fracture on the skull. The above injuries are grievous in nature. It is to be noted that the accident register of two minor children, though available on record, have not been exhibited by the prosecution. Of course, if that has been exhibited, the same would clearly show that at the time of attack, the minors have given a statement to the medical officer to the effect that they have assaulted by her father. But, these documents have not been exhibited by the Public Prosecutor before the Court. Since Accident Register copies were not been marked by the prosecution, this Court cannot attached any evidenciary value to the same. Similarly during the sessions trial, the Trial Judge in fact has not proceeded properly to bring on record, the material documents and such conduct of the Trial Judge is also highly deprecated, besides the conduct of the Public Prosecutor. The above fact makes it clear that the Public Prosecutors are appointed casually without even verifying whether the persons sought to be appointed has relevant knowledge in criminal trial. Such a state of affairs is noticed by this Court not only in this case, but also in several cases. The State Government in fact clearly least bother about the serious crime perpetrated against the society. Therefore, we are constrained to hold that the conduct of the Public Prosecutor in this case is highly deprecated.
11. Be that as it may. The evidence of PW9 clearly proves the fact that PW2 and PW3, minor daughters of the accused and deceased, were suffered serious injuries on 19.09.2008. Of course, PW3 evidence has not been recorded, since the Trial Court found satisfied with that she is not able to give evidence. PW3 was only about 4 years old at the time of examination before the Court. At the time of occurrence, i.e. 19.09.2008, she was aged about 2 years as per wound certificate issued by PW9. Therefore, the Trial Judge rightly held that she is not capable of giving evidence. PW2, one of the minor daughters, who was aged about 7 years at the time of occurrence as per the wound certificate, was examined as PW2 by the prosecution. It is relevant to note that even during trial before the court, PW2 was under the care and custody of the accused and the same can be seen from the evidence of PW2. Despite such influence on her by the father, she could tell about the occurrence to some extent before the Court of law. The above fact leads to the only inference that despite influence of her father and tutoring by him, she came out with the truth before the Court. She was examined by the Trial Court after satisfying itself that she was capable of understanding the nature. PW2 in her evidence has stated that she, her father and mother and PW 3 were living at Tiruppur. Thereafter, her father left the mother at Tiruppur and came to Malaiyur Village along with the children. While her mother came to Malaiyur, her father protested the presence of her mother and cut her, when they tried to prevent the same, they also received injuries on the head. In the cross-examination, the above fact has not even denied by the accused. The only answer so elicited to the effect was she did not know how she has suffered injury. Except the above cross- examination, PW2 evidence remains intact and her evidence clearly indicate that at the relevant point of time, PW2, PW3, and her parents were present and when the accused cut her mother, they also suffered injuries. It is further to be noted that as already stated her evidence clearly indicate that even at the time of trial, PW2 was under
the care and custody of the accused herein. Though it is well settled that the evidence of the child witness has to be subjected to close scrutiny and can be accepted only if the Court comes to the conclusion that the child understand the question put to him and he is capable of giving answer. The child witness at this tender age is pliable witness, he/she can be tutored easily either way by through coercion or inducement etc., Therefore, the Court must satisfy that child was acting not under influence of some one or under threat or coercion. In this case though PW2 child was under the care and custody of the accused, she has come out with the truth. The facts narrated by PW2 about the manner in which the murder was done and they also suffered injuries in the same incident is not been seriously attacked by the accused. Despite the fact that she was under the care and custody of the accused and taking into other circumstances available in this case, this Court has no other option except to hold that PW2 evidence cannot be discarded merely on the ground that she was a child witnesses. PW2 herself sustained injuries in the course of the very same incident. Her evidence was in fact truthful and not polluted from any extraneous influence. Therefore, this Court has no reason to reject the evidence of PW2, merely because she is aged about 9 years at the time of giving evidence. The reason for believing the child witness evidence is also supported by the attending circumstance available in this case. It is to be noted that admittedly, the occurrence took place within the house of the accused. It is not the case of the accused that PW2 and PW3 were not not with him at the relevant time. Similarly it is not the case of the accused that his wife has not come to his house at the relevant time to the place of occurrence, where the accused residing along with the children. The observation mahazar and rough sketch and evidence of Investigation Officer/PW11 and PW1 clearly prove the fact that the occurrence took place in the centre of the house. Ex.P3/ observation mahazar and recovery of the bloodstained earth from the house clearly established the fact that the occurrence took place in the house of the accused. As stated above it is not the case of the accused that the minor children and wife were not with him at the relevant time in the house. Therefore, it is for the accused to come out with the explanation about the nature of the occurrence. Absolutely there is no explanation whatsoever forthcoming from the accused. What has transpired inside the house and how his wife and children suffered injuries are the facts which are of the exclusive knowledge of the accused. Therefore, the accused has to bring some explanation about the incident. Section 106 of the Indian Evidence Act shifts the burden on the person in proving a fact which is especially within the knowledge of him. No explanation whatsoever offered by the accused in this regard.
12. It is further to be noted that the evidence of PW1/Village Administrative Officer and PW6/Village Assistant, clearly shows that the injured minors were admitted in the hospital by the neighbours. It is not the case of the accused that he had took the injured to the hospital. Whereas the evidence adduced on the side of the prosecution clearly shows immediately after the occurrence, the accused fled away and he surrendered before PW1 and PW6 at 4 p.m. The conduct of the accused fleeing from the place of occurrence and appeared before the Village Administrative Officer also assumes significance under Section 8 of the Indian Evidence Act. If really the accused is not a perpetrator of crime, his natural conduct would have been otherwise, to rush the minor children to the hospital. But, in this regard, absolutely there is no evidence to suggest the fact that his conduct was otherwise to save the minor children. These facts is also one of the circumstances which force this court to presume certain facts under Section 114 of the Indian Evidence Act, taking into consideration of the common natural events and human conduct, if really the accused is no way connected with the crime, his conduct as discussed above would be otherwise and he would have made some attempt to rush the deceased and the minor children to the hospital. On the contrary he fled away from the scene of occurrence. This circumstances also forced this Court to presume the facts and circumstances that he is only the accused who committed the said act. The prosecution also relied upon extra judicial confession /Ex.P2 said to have been given before PW1 by the accused. Though the counsel appearing for the appellant vehemently argued that the extra judicial confession cannot be believable, in view of evidence of PW1. On a careful perusal of the evidence of PW1, in chief examination though it appears to strengthen the arguments of the appellant counsel that immediately after the occurrence the accused appeared before the police station in the morning hours and therefore, the alleged extra judicial confession projected by the prosecution in the evening at 4 p.m. is not reliable, when PW1s evidence in entirety scanned, PW1's evidence stated in the Ex.P1 complaint cannot be discarded. The evidence of PW6/Village Assistant, also clearly shows that the accused appeared before the Village Administrative Office only at 4 p.m. in the evening and gave extra judicial confession and also handed over the sickle (MO4), material object and Village Administrative Officer has also recorded the confession of the accused under Ex.P2 and handed over the accused along with the material objects to police.
The evidence of PW6 that accused appeared before the Village Administrative Officer at 4 p.m. and voluntarily gave extra judicial confession not even denied in the entire cross-examination. Therefore, once the fact spoken in the chief examination has not been denied in entirety, it can be safely concluded that the said fact is admitted by the other side. Therefore, taking into consideration of the undisputed evidence of PW6 and PW11/Investigation officer and PW5 and PW1's evidence in entirety, we are constrained to hold that extra judicial confession was given at 4 p.m. only. Therefore, merely because PW1, who was examined before the Court after a gap of two years give some contradictory version to his earlier part of his evidence, the same cannot be a ground to disbelieve his evidence to reject the extra judicial confession. At any event, even part of his evidence his unreliable. The same cannot be a ground to disbelieve his entire evidence since the doctrine of Falsus in uno, and falsus in omnibus cannot be applied in India. Therefore, we constrained to hold that the accused has in fact appeared before PW1 and PW6 and gave extra judicial confession which was also rightly reduced in writing by PW7. It is to be noted that PW1 and PW6 have no axe to grind against the accused. There was no motive or reason for them to implicate the accused in a crime. Therefore, it cannot be stated that their evidence have to be thrown out merely because they are revenue officials.
13. The other contention that PW1 is a stranger and therefore the extra judicial confession cannot be relied upon also cannot be sustained for the simple reason that in the village set up, only the Village Administrative Officer and other Revenue officials are the first persons known by the villagers. Therefore, reposing confidence on them and giving a confession is also possible and the same cannot be doubted at all. In this case it is useful to extract the judgment of the Honourable Supreme Court reported in 2007 3 SCC (1) (Ram Singh v. Sonia), wherein the Hon'ble Supreme Court at paragraph 48 held as follows:-
?48. Learned counsel appearing on behalf of the accused has submitted that PW.48 being a stranger to A-2 and Brahm Singh, who was not examined by the prosecution on the pretext of having been won over, having been remotely connected to PW.48 no reliance should be placed on the confession made by A-2 before PW.48. In our view, the submission has been made only to be rejected for the reason that in his testimony PW.48 has stated that he had attended the betrothal ceremony and marriage of A-2. Therefore, question of his being stranger to A-2 does not arise. However, it is well settled by a catena of decisions rendered by this Court that extra-judicial confession made even to a stranger cannot be eschewed from consideration if it is found to have been truthful and voluntarily made before a person who has no reason to state falsely. In the case of Gura Singh vs. State of Rajasthan, (2001) 2 SCC 205, the evidentiary value to be attached to the extra-judicial confession has been explained at page 212 thus:-
"It is settled position of law that extra-judicial confession, if true and voluntary, it can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra-judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. Relying upon an earlier judgment in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1954 SC 322, this Court again in Maghar Singh v. State of Punjab, (1975) 4 SCC 234, held that the evidence in the form of extra- judicial confession made by the accused to witnesses cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. In Narayan Singh v. State of M.P., (1985) 4 SCC 26, this Court cautioned that it is not open to the court trying the criminal case to start with a presumption that extra-judicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. The retraction of extra-judicial confession which is a usual phenomenon in criminal cases would by itself not weaken the case of the prosecution based upon such a confession. In Kishore Chand v. State of H.P., (1991) 1 SCC 286, this Court held that an unambiguous extra-judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion, and suggestion of any falsity. However, before relying on the alleged confession, the court has to be satisfied that it is voluntary and is not the result of inducement, threat or promise envisaged under Section 24of the Evidence Act or was brought about in suspicious circumstances to circumvent Sections 25 and 26. The Court is required to look into the surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made have to be scrutinized. To the same effect is the judgment in Baldev Raj v. State of Haryana, AIR 1991 SC 37.
After referring to the judgment in Piara Singh v. State of Punjab, (1977) 4 SCC 452 this Court in Madan Gopal Kakkad v. Naval Dubey(1992) 3 SCC 204 held that the extra-judicial confession which is not obtained by coercion, promise of favour or false hope and is plenary in character and voluntary in nature can be made the basis for conviction even without corroboration."
The Hon'ble Supreme Court referring to catena of judgments of the Supreme Courts and held that even the extra judicial confession given to stranger cannot be eschewed from consideration, if the extra judicial confession is not obtained by coercion, promise of favour or false hope. In view of the above settled proposition of law, we are constrained to hold that extra judicial confession given to PW1 in the presence of PW6 cannot be disbelieved.
14. One another contention of the learned counsel for the appellant is that the Village Administrative Officer cannot record extra judicial confession after the commencement of the investigation as per Rule 72 of the Criminal Rules of Practice. Admittedly, the investigation was already commenced in the morning at 10.00 a.m. whereas the extra judicial confession are recorded at 4 p.m. after commencement of the investigation. Whether the Village Administrative Officers are barred from recording any confession after the commencement of investigation? This aspect was considered by the Hon'ble Supreme Court in a judgment reported in 2006 1 CTC 150, (Sivakumar vs. State by Inspector of Police) and held that Rule 72 of the Criminal Rules of Practice become redundant since there was no Village Magistrate system is in existence. Accordingly, the Honurable Supreme Court held that there is no bar for the Village Administrative Officer to record the extra judicial confession. In view of the same, contention of the counsel cannot be sustained. Though the contention of the learned counsel for the appellant that Ex.P12, First Information Report, is not a first information report and even prior to Ex.P1 complaint Out post police people were very much present in the place of occurrence, evidence of PW1 and PW6 in cross examination also clearly proves the fact that even prior to Ex.P1 came to be filed, Out Post police were already present. Therefore, Ex.P1 and Ex.P12 cannot be treated as First Information Report and hit by Section 162 Cr.P.C. However, the eyewitnesses version and extra judicial confession itself proves the fact in issue in this case. Admittedly the fact in issue is that whether the accused has murdered his wife and caused injuries to minor children? The circumstances as discussed above not only proves the above fact in issue and also conclusively established the fact that only the accused has done the said act. The evidence of the Medical Officer/PW9, who issued Ex.P11/Postmortem certificate shows that several laceration injuries are caused on the face, left side mandible right hand, left writ, left elbow and all over the body. The injuries on the left hand would clearly shows that there are defensive injuries. Several injuries are inflicted from face to spleen and spleen also ruptured. The entire injuries inflicted on the deceased, as per the evidence of PW9, clearly established the homicidal violence on the deceased. It is not the single injury caused on the deceased. Repeated multiple injuries caused on the body of the deceased. Number of injuries inflicted on the deceased is also corroborated the evidence of PW2 that only when they intervened to stop their father from attacking her mother they also sustained injuries. Therefore, this Court is constrained to hold that only the accused has committed an offence inside his house. Accordingly, because some defective investigation and callous attitude of the prosecution agency in not placing the accident register copy of two minors and others, the same cannot be a ground to disbelieve the version of PW2 and also to discard the extra judicial confession given by the accused.
15. The contention of the learned counsel for the appellant that the committal order passed by the learned Judicial Magistrate itself vitiated the prosecution as the Judicial Magistrate is the Second Class Magistrate is nothing but absurdity. There is no Second Class Magistrate in the State. All the Judicial Magistrates are the First Class Judicial Magistrates. Therefore, such contention of the learned counsel for the appellant is without any basis. More over, the judgments relied on by the learned counsel for the appellant would no way connected to the facts of the present case.
16. Further there is no materials whatsoever on record, even to suggest that the act of the accused comes within any of the exception of Section 300 IPC. In fact the accused has totally denied his complicity with the crime. Even extra judicial confession of the accused when entirety seen, we are of the view that the act of the accused would not certainly come under exception IV of Section 300 IPC.
17. In the result the criminal appeal is dismissed. The judgment of the learned Additional District Judge, Mahila Court, Pudukkottai, in S.C.No.87 of 2010, dated 19.11.2010, is confirmed. Consequently, connected miscellaneous petition is closed.
To 1 The Additional District Judge, Mahila Court, Pudukkottai.
2.The Inspector of Police, Karambakudi Police Station, Karambakudi, Pudukkottai District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.