Madras High Court
S. Thiruppathi vs State on 20 January, 2012
Author: P.Devadass
Bench: N.Paul Vasanthakumar, P.Devadass
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/01/2012 CORAM THE HONOURABLE Mr.JUSTICE N.PAUL VASANTHAKUMAR and THE HONOURABLE Mr.JUSTICE P.DEVADASS Criminal Appeal(MD)No.464 of 2010 S. Thiruppathi ... Appellant/Accused Vs State, represented by The Inspector of Police, Mayanur Police Station, Karur District. ... Respondent/Complainant (Crime No:225/09) Prayer Appeal filed under Section 374 of Criminal Procedure Code to call for the entire records in pertaining to the judgment dated 23/11/2010 passed in S.C.No.28 of 2010 by the Sessions Judge, Karur and set aside the same and acquit the appellant/accused. !For Appellant ... Mr.RM.Sivakumar ^For respondent... Mr.K.S.Duraipandian,Additional Public Prosecutor :JUDGMENT
P.DEVADASS,J.
APPELLANT Accused in S.C.No.28 of 2010 before the learned Sessions Judge, Karur is the appellant herein.
2. CONVICTION AND SENTENCE On 23/11/2010, the learned Sessions Judge found him guilty under Section 302 IPC and sentenced him to life and also fined him Rs.1,000/- in default to undergo one month rigorous imprisonment.
3. PROSECUTION VERSION
(i). Saravanan and Thirupathi belongs to Sevaganoor in Krishnarayapuram Taluk in Karur District. Saravanan married Amudha (P.W.2). Appellant married Radha. There was illegal intimacy between Saravanan and Radha. In the Village, appellant was put to much ignominy. Appellant was waiting for an opportunity. On 22/6/2009, at about 9 p.m., appellant took Saravanan from his house in Saravanan's motor cycle (M.O.6). Shortly thereafter, near Muniyanur Mariamman temple, P.W.7 Balan seen Saravanan riding his motorcycle keeping appellant as his pillion-rider. Saravanan stopped the bike. From appellant's hip, a bill hook fallen down. Appellant picked it up and concealed it in his hip. P.W.7 seen this. On the next day, at about 7 a.m., near Kovilpatti road, P.W.1 Muthu, seen Saravanan's dead body with injuries on his neck. He informed this to Saravanan's parents. At about 9.30 a.m., at the Mayanoor Police Station, P.W.1 gave Ex.P.1 complaint. P.W.13 Anbalagan Sub-Inspector of Police registered a case in Crime No.225 of 2009 under Section 302 IPC (Ex.P.20 F.I.R). P.W.14 Sivaraman Inspector took up investigation. At the scene place, he prepared Ex.P.10 Observation Mahazar. Recovered M.O.6 Motor Cycle under Ex.P.12 Mahazar. Recovered M.Os.4 and 5 blood stained earth and plain earth under Ex.P.11 Mahazar. P.W.10 Elangovan, VAO and his Assistant Ramani Kumar witnessed these recoveries. P.W.14 examined P.Ws.1 and 2 and other material witnesses. Recorded their statement. In the presence of Panchayatdhars, he held inquest over the dead body (Ex.P.22 inquest report). Sent the dead body through P.W.11 Head Constable Ponnusamy with his requisition Ex.P.23 to the District Head Quarters Hospital, Karur for autopsy. In the meanwhile, appellant had absconded from the Village.
(ii). P.W.3 Dr.Natarajan conducted Post-mortem on the dead body. He found the following:-
a. A vertical cut injury over left frontal region 1 cm., above the left eyebrow- size 10 x 2 cm x bone depth and b. A cut injury present over right skull of neck extending upto the middle of neck anteriorly size 6 x 2 cm x muscle depth.
P.W.3 opined that the deceased would appear to have died of shock and injury to neck. (Ex.P.4 Post-mortem certificate).
(iii). On 29/6/2009, at about 4 p.m., at the VAO's Office in Tirukambuliyur, appellant surrendered before P.W.10 Elangovan, VAO, confessed to his killing of Saravanan on 22/6/2009. P.W.10 reduced it into writing.
Obtained his signature (Ex.P.5). It was attested to by Ramani Kumar, Village Assistant. Thereafter, at the Mayanoor Police Station, P.W.10 handed over the appellant with Ex.P.5 Extra-Judicial Confession along with his letter Ex.P.6 to P.W.14. P.W.14 arrested him. Appellant gave him Ex.P.26 confessional statement. It was attested to by the said Revenue Staff. In pursuance of Ex.P.26, appellant produced M.O.1 bill-hook from his house. P.W.14 seized the same under Ex.P.8 Mahazar. Appellant also produced his blood stained shirt M.O.2 and M.O.3 money purse from another part of his house. P.W.14 seized them under Ex.P.9 Mahazar. These seizures were witnessed to and the mahazars were attested to by the said Revenue Staff. P.W.14 produced the appellant before the Magistrate for judicial custody. Sent the case-properties through Court to the Lab for analysis. P.W.14 further examined P.W.2 and other material witnesses. Recorded their further statement. Obtained Serology and Chemical Reports. Concluded his investigation. Filed the Final Report against the appellant for an offence under Section 302 IPC.
4. FINDINGS OF THE TRIAL COURT The learned Sessions Judge, on 23/11/2010, accepting the various circumstances, viz., motive, last seen theory, abscondence of the appellant, his extra -judicial confession, Section 27 Evidence Act Recovery, found the appellant guilty and sentenced him as stated already.
5. PROSECUTION EVIDENCE To sustain the charge under Section 302 IPC, prosecution examined P.Ws.1 to 14, marked Ex.P.1 to P.28 and exhibited M.Os.1 to 9.
6. EXAMINATION OF THE ACCUSED The learned Sessions Judge examined the appellant on the incriminating aspects in the prosecution evidence. He has denied his complicity in this case. He had retracted Ex.P.5 extra judicial confession and Ex.P.26 disclosure Statement.
7. DEFENCE EVIDENCE To probilise the defence version, appellant examined D.Ws.1 to 3. D.W.1 Chitra gave him good conduct and character certificate and denied that he had illegal intimacy with Radha. According to D.W.2 Muruganandham deceased wife Amudha was forcibly taken away by one Ganesan, at the Panchayat, Saravanan assaulted Ganesan. According to D.W.3 Loganathan, the marriage between the appellant and Radha was arranged by the deceased, on suspicion, on 27/6/2009, Police took away the appellant, promissing to send him away, however, did not do so, subsequently implicated him in this case.
8. TRIAL COURT'S FINDINGS ASSAILED Mr.RM.Sivakumar, learned counsel for the appellant submitted that none of the circumstances were established by the prosecution. The judgment of the trial Court is incorrect. He elaborated his submissions as under:-
(i). The motive not only must be stated, it must be proved. The alleged illegal intimacy between the deceased and appellant's wife Radha has not been established. On this account, the evidence of P.Ws.2 and 4 are hearsay.
P.W.9 spoken falsehood. Already, one Ganesan took away the wife of the deceased. At the Panchayat, Ganesan was reprimanded. He had animosity towards the deceased. On the aspect of motive, in this case, two views are possible.
(ii). When already there was risk to the life of her husband at the hands of the appellant, it is quite unacceptable that she would have sent him along with the appellant. The evidence of P.Ws.2 and 7 do not substantiate the last seen theory. The allegation in the F.I.R also advances this. Appellant is a wood cutter. He having been found with a bill-hook does not look odd. The time gap between the deceased seen lastly alive and his death must be too short to accept the last seen theory. The learned counsel cited STATE OF U.P Vs. RAM BALAK AND ANOTHER (2009) 3 SCC (Cri.) 1111.
(iii). Appellant had not absconded. He was very much available in his village. This is evident from the evidence of P.W.1. The inconsistant evidence of P.Ws.2 and 9 are to be discarded.
(iv). As on 25/6/2009 itself appellant was seen at the Police Station by P.W.2, the appellant having voluntarily surrendered on 29/6/2009 before P.W.10 VAO and given Ex.P.5 extra judicial confession is false. The evidence of D.W.3 also establishes this. The extra judicial confession is not voluntary. It is not genuine. It cannot be accepted.
(v). Section 27 Evidence Act recovery is based on Ex.P.26 disclosure statement. It is stage managed. According to Serologist there was no blood stains in M.O.1 bill-hook. Ex.P.5 Extra-Judicial Confession is to be rejected. Ex.P.6 Confession is also to be rejected.
9. TRIAL COURT'S FINDINGS SUPPORTED:
According to Mr.K.S.Duraipandian, learned Additional Public Prosecutor, there is clear cut evidence as to the ill-will nurtured towards the deceased. The illegal intimacy as between the deceased and appellant's wife has been clearly spoken to by P.Ws.2 and 9. Appellant's extra- judicial confession admitting his guilt has been established. The other incriminating circumstances also have been established by relevant evidence. Prosecution has proved its case beyond all reasonable doubts.
10. DEATH OF SARAVANAN On 23/6/2009, at about 7 a.m., near Kovilappati, on the road, P.W.2 Amuda's husband Saravanan was found dead. There were cut injuries on his neck and occipital region. P.W.3 Dr.Natarajan, who conducted autopsy on the dead body opined that he died due to shock and hemorrhage due to the injuries on his head and neck. So, it is a homicidal death.
11.ACCUSATIONS AGAINST THE APPELLANT Prosecution inculpate the appellant with the murder of the deceased. To pin him down prosecution pinpoint certain circumstances. According to prosecution, they are incriminating in nature. There is no eye witness to the occurrence. The case is based on circumstantial evidence.
12. CIRCUMSTANTIAL EVIDENCE It would be useful to note down the various requisites/tests propounded by the Honourable Apex Court in assessing and accepting circumstantial evidence.
(i). In Hanumant Govind Nargundkar v. State of M.P.(AIR 1952 SCC 343), it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
(ii). In Padala Veera Reddy v. State of A.P. (AIR 1990 SC - 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
(iii). In State of U.P. v. Ashok Kumar Srivastava {1992 SCC (Cri) 241} it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
(iv). In C. Chenga Reddy v. State of A.P. {(1996 SCC (Cri.) 1205}, it has been observed as under:
21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
(v). In STATE OF RAJASTHAN Vs. RAJA RAM (2003) 8 SCC - 180, it is observed as follows:-
"8. ......The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.
9. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan, Eradu v. State of Hyderabad, Earabhadrappa v. State of Karnataka, State of U.P. v. Sukhbasi, Balwinder Singh v. State of Punjab and Ashok Kumar Chatterjee v. State of M.P.). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
(vi). Sir Alfred Wills in his admirable book Wills' Circumstantial Evidence (Chapter VI) lays down the following rules to be observed in the case of circumstantial evidence:
"(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted."
(vii). Recently, in SK.YUSUF Vs. STATE OF WEST BENGAL reported in (2011) 3 SCC (Cri) 620, on the aspect of circumstantial evidence, Honourable Apex Court observed as under:-
"32. Undoubtedly, conviction can be based solely on circumstantial evidence. However, the Court must bear in mind while deciding the case involving the commission of serious offence based on circumstantial evidence that the prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence case. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability that the act must have been done by the accused."
13. CIRCUMSTANCES In this case, to substantiate the charge under Section 302 IPC as against the appellant, prosecution relied on the following circumstances.
(i). motive - illegal intimacy between the deceased and the appellant's wife;
(ii). The deceased was lastly seen alive with the appellant;
(iii). Immediately, after the occurrence, the appellant had absconded from his usual place.
(iv). Appellant's Ex.P.5 Extra Judicial Confession
(v). Section 27 Evidence Act recovery.
14. Let us proceed to see whether these circumstances have been proved by the prosecution beyond all reasonable doubt and if so proved, whether they form a complete chain unerringly proceeding towards the appellant as the killer of Saravanan, excluding any hypothesis of innocence in his favour.
15. MOTIVE
(i). It is stated that the deceased Saravanan had illegal intimacy with appellant's wife Radha and appellant had avenged to kill him.
(ii). Motive assumes signal importance in a case based on circumstantial evidence. In such type of cases, it will act as a guide to test the veracity of the prosecution case/evidence. But, motive is a double edged weapon. It could be either way. It may be for or against the accused. But if motive is alleged, it must be proved like any other fact.
(iii). It is stated that once appellant had seen Saravanan in his bed, that arosed his ill feeling towards him and he was waiting for an opportunity to eliminate him.
(iv). Learned counsel for the appellant contended that already Saravanan's wife Amudha has been taken away by one Ganesan, on account of that, there was strong enmity between the deceased Saravanan and Ganesan. The motive alleged as against the appellant also has not been proved.
(v). It is the evidence of P.W.2 Amudha that as between her husband and Radha, there was illegal intimacy. She would say that she heard about this from others. She did not confirm the alleged illegal intimacy. So, her evidence as regards the motive is hearsay.
(vi). It is the evidence of Saravanan's mother P.W.4 Chellammal that there was talk in the Village that as between Saravanan and appellant's wife, there was illegal intimacy. In her cross-examination, she would say that she did not have any direct knowledge about this. Thus, like P.W.2, evidence of P.W.4 also hearsay.
(vii). P.W.9 Saravanan (different person) stated that once the deceased had told him that he was having illegal intimacy with appellant's wife. P.W.9 is known to both the families. Saravanan's death was known in the Village on 23/6/2009 itself. However, only on 30/6/2009 P.W.9 had stated to Police about the alleged revelation of the deceased to him. There is no acceptable evidence to establish the motive alleged.
(viii). D.W.2 Muruganandham is a common man. Few months prior to Saravanan's death, an incident involving Saravanan's wife Amudha took place. One Ganesan forcibly took her away. On the next day, at the Panchayat, Saravanan had beaten Ganesan. The villagers scolded Ganesan. P.W.2 also admits that Ganesan took her away. So, P.W.2 confirms the evidence of D.W.2.
(ix). Now, there are two views as to the motive alleged for the death of Saravanan. Further, the motive alleged also has not been clearly established.
16. LAST SEEN THEORY
(i).It is the evidence of P.W.2 Amudha that on 22/6/2009, at about 9 p.m., from her house, appellant took her husband along with him. Thereafter, he did not return home and on the next day, at about 7 a.m., he was seen dead.
(ii). She herself stated that two days prior to 22/6/2009, her husband and appellant quarreled. Appellant told him that since he is not heeding to his words, he is going to kill him. When such is the position, it would be quiet unlikely that she will allow her husband to go along with the appellant. Further, in his Ex.P.1 complaint P.W.1 Muthu had stated that on 23/6/2009, at about 7 a.m., he told P.W.2 that her husband has been murdered. But, she did not mention appellant's name to Police till 25/6/2009. If really her husband had left the house on 22/6/2009 at about 9 p.m along with the appellant, she would not have kept quite on coming to know that her husband has been murdered, she would have immediately informed the Police that the appellant is the person who has lastly took her husband alive from her house.
(iii). P.W.7 Balan is a close relative of deceased Saravanan. It is his evidence that on 22/6/2009, around 6 p.m., near Munianoor Mariamman temple, he had seen Saravanan driving his two wheeler, keeping the appellant as his pillion rider. On the next day morning, he heard that Saravanan was murdered. He did not tell the Police immediately that he had so seen Saravanan in the company of appellant. He did not tell this to others also. He told the Police only on 24/6/2011.
(iv). P.W.7 also stated that at that time, he had seen the appellant having a bill-hook and when it fallen down, appellant had picked it up. Appellant is a wood cutter. There is no surprise in he having a bill-hook. It is a routine instrument of wood cutters. In these circumstances, this will not be an incriminating circumstance.
(v). Thus, the last seen theory projected by the prosecution through P.Ws.2 and 7 has not been established.
17. ABSCONDENCE It is stated that immediately, after the death of Saravanan, appellant had absconded from the Village, thereafter, he was seen only on 29/6/2009 when the Police had arrested him. It is also the evidence of P.Ws.2 and 9. P.W.2 also stated that the appellant did not attend the funeral of her husband.
(ii). However, P.W.1 Muthu had stated that on the day when Saravanan died, appellant was in the Village and he had also attended his funeral. P.W.1 is not a stranger. His father and the father of the deceased are brothers. P.W.1 has not been treated as hostile. Thus, the alleged abscondence of the appellant has not been established.
18. EXTRA-JUDICIAL CONFESSION
(i). Extra Judicial Confession is a good piece of circumstantial evidence since it emanates from the accused himself as to the commission of the offence. It acts as an admission under Evidence Act, 1872. It deserve reliance. There are certain tests to be satisfied for the acceptance of Extra-Judicial Confession.
(ii). In RAJA RAM (2003) 8 SCC - 180 (supra), the Honourable Apex Court has observed as under:-
18. Confessions may be divided into two classes, i.e. judicial and extra-
judicial. Judicial confessions are those which are made before Magistrate or Court in the course of judicial proceedings. Extra-judicial confessions are those which are made by the party elsewhere than before a Magistrate or court. Extra judicial confessions are generally those made by a party to or before a private individual which includes even a judicial officer in his private capacity. It also includes a Magistrate who is not especially empowered to record confessions under Section 164 of the Code or a Magistrate so empowered but receiving the confession at a stage when Section 164 does not apply. As to extra-judicial confessions, two questions arise: (i) were they made voluntarily? And (ii) are they true? As the section enacts, a confession made by an accused person is irrelevant in a criminal proceedings, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, (1) having reference to the charge against the accused person, (2) proceeding from a person in authority, and (3) sufficient, in the opinion of the Court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. It follows that a confession would be voluntary if it is made by the accused in a fit state of mind, and if it is not caused by any inducement, threat or promise which has reference to the charge against him, proceeding from a person in authority. It would not be involuntary, if the inducement, (a) does not have reference to the charge against the accused person, or (b) it does not proceed from a person in authority; or (c) it is not sufficient, in the opinion of the Court to give the accused person grounds which would appear to him reasonable for supposing that, by making it, he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. Whether or not the confession was voluntary would depend upon the facts and circumstances of each case, judged in the light of Section 24. The law is clear that a confession cannot be used against an accused person unless the Court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the Court may refuse to act upon the confession, even if it is admissible in evidence One important question, in regard to which the Court has to be satisfied with is, whether when the accused made confession, he was a free man or his movements were controlled by the police either by themselves or through some other agency employed by them for the purpose of securing such a confession. The question whether a confession is voluntary or not is always a question of fact. All the factors and all the circumstances of the case, including the important factors of the time given for reflection, scope of the accused getting a feeling of threat, inducement or promise, must be considered before deciding whether the Court is satisfied that its opinion the impression caused by the inducement, threat or promise, if any, has been fully removed. A free and voluntary confession is deserving of highest credit, because it is presumed to flow from the highest sense of guilt. [See R. v. Warwickshall; (1783) Lesch 263)]. It is not to be conceived that a man would be induced to make a free and voluntary confession of guilt so contrary to the feelings and principles of human nature, if the facts confessed were not true. Deliberate and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in law. An involuntary confession is one which is not the result of the free will of the maker of it. So there the statement is made as a result of the harassment and continuous interrogation for several hours after the person is treated as an offender and accused, such statement must be regarded as involuntary.
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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 for 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.
20. If the evidence relating to extra judicial confession is found credible after being tested on the touchstone of credibility and acceptability, it can solely form the basis of conviction."
(iii). Recently, in SK.YUSUF Vs. STATE OF WEST BENGAL (2011) 3 SCC (Cri.) 620, as regards Extra Judicial Confession, at special page 627, para 28, the Honourable Supreme Court has observed as under:-
"..... The Court while dealing with a circumstance of extra-judicial confession must keep in mind that it is a very weak type of evidence and requires appreciation with great caution. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witness must be clear, unambiguous and clearly convey that the accused is the perpetrator of the crime. The "extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility".
(iv). It is the evidence of P.W.10 Elangovan VAO that on 29/6/2009, at about 4 p.m., in Thirukambuliyur, when he was in his office, appellant surrendered before him, gave him Ex.P.5 statement confessing to his killing of Saravanan on the night of 22/6/2009 and after recording it along with Ex.P.5, he has produced the appellant to P.W.14 Inspector Sivakumar together with his letter Ex.P.6.
(v). Ex.P.5 Extra-Judicial Confession runs to five full scape pages and one quarter page and the entire family history of the appellant, minute details of the prosecution case have been stated in Ex.P.5. It contains a photographic details of the whole case of the prosecution. It is also stated that after committing murder, appellant wandered in many places and on 28/6/2009 at Mayanor bus-stop, he robbed a person of his money, at knife point. So, appellant is a hardened criminal. A person of wicked mentality. However, through Ex.P.5, it is sought to be stated that on the next day, such a person got sudden realisation of his criminal activity and made revelation of his crimes to P.W.10 Elangovan. It does not stand to reason.
(vi). It is the evidence of P.W.2 Amudha that four days after the occurrence, when she had been to Mayanoor Police Station, she had seen the appellant there. It probablise the evidence of D.W.3 Loganathan that on 27/6/2009 itself, on suspicion, Police picked up the appellant from his house, assuring to send him away. P.W.14 Inspector Sivaraman confirms that he had re- examined P.W.2 on 25/6/2009 and recorded her further statement. So, P.W.2 had visited the Police Station second time. Even as per the version of P.W.14, on 25/6/2009, P.W.2 had seen the appellant at the Police Station. That being so, appellant having surrendered before P.W.10 on 25/6/2009 at 4 p.m in his office at Tirukambuliyur is far from truth.
(vii). Thus, the appellant was already in Police custody. Police made make-belief Extra-Judicial Confession, shown him as accused on 29/6/2009 with the assistance of P.W.10 as though appellant had confessed his crime to him. Thus, P.W.10 appears to be an obliging witness to Police. Thus, Ex.P.5 Extra Judicial Confession is not genuine. It is not voluntary. It cannot be acted upon. It deserves to be excluded from our consideration.
19. RECOVERY EVIDENCE Based on Ex.P.26 Disclosure Statement of the appellant recorded by P.W.14, on 29/6/2009, at about 6 p.m., in the presence of P.W.10 and his Assistant Ramani Kumar, from appellant's house M.O.1 bill-hook, M.O.2 money purse were stated to have been recovered by P.W.14.
(ii). In Ex.P.8 Seizure Mahazar, it is stated that M.O.1 bill-hook was seized with blood stains. Under Ex.P.15 letter, the Court sent it to the Lab. On analysis, it was found not containing blood (Ex.P.16 Serology report).
(iii). The information for the recovery evidence is in Ex.P.26 disclosure statement. It was stated to have been recorded by P.W.14 after the appellant was handed over to Police by P.W.10 with Ex.P.5 Extra- Judicial Confession of the appellant. Thus, Ex.P.26 immediately follows Ex.P.5. We have already seen that Ex.P.5 Extra-Judicial Confession is false. Consequently, Ex.P.26 Confessional Statement is also false. It is not voluntary and genuine. It is required to be discarded.
20. CONCLUSION:
(i). Thus, none of the circumstances projected by the prosecution has been established. They do not form a complete chain linking the accused with the charge framed as against him. The circumstances woven in this case are not connecting, but disconnecting one another. Excluding the so called circumstances which are totally innocuous or suspicious from our zone of consideration, the charge remains unsubstantiated.
(ii). Suspicion, however, strong may not take the place of legal proof.
In this respect, it is apposite here to notice the following observations of the Honourable Apex Court made in Ashish Batham Vs. State of M.P {(2002) 7 SCC - 317}.
"Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between 'may be true' and 'must be true' and this basic and golden rule only helps to maintain the vital distinction between 'conjectures' and 'sure conclusions' to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record."
(iii). In the light of the above, we are coming to the irresistible conclusion that the prosecution has not proved its case beyond all reasonable doubts. The findings of the trial Court are required to be unseated. The appellant is not guilty under Section 302 IPC. He is entitled to be acquitted.
21. NET OUTCOME The Criminal Appeal is allowed. Conviction recorded and the sentence imposed upon the appellant by the learned Sessions Judge, Karur in S.C.No.28 of 2010 on 23/11/2010 are set aside. The appellant shall be released forthwith, if he is not required in any other case. Fine amount, if already paid shall be refunded to him.
mvs.
To:
1.The Judicial Magistrate No.II, Karur.
2.Do- Thro' The Chief Judicial Magistrate, Karur.
3. The Sessions Judge, Karur
4. The District Collector, Karur
5. The Superintendent of Police, Karur.
6. The Superintendent Central Prison, Trichy
7. The Inspector of Police, Mayanoor Karur District.
8.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.