Madras High Court
T.Kamalakkannan vs State By Inspector Of Police on 2 September, 2015
Author: V.S.Ravi
Bench: V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.09.2015
CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
AND
THE HONOURABLE MR.JUSTICE V.S.RAVI
CRL.A(MD).No.431 of 2010
1.T.Kamalakkannan
2.P.Siva
3.S.Suresh @ Suresh Kumar
4.K.Veeramani : Appellants
Vs.
State by Inspector of Police,
Dindigul Taluk Police Station,
Dindigul District, [in Crime No.128 of 2005]. : Respondent
PRAYER: Appeal is filed under Section 374 of the Code of Criminal Procedure
against the Judgment and conviction dated 28.10.2010 made in S.C.No.132 of
2010, on the file of the learned Additional District and Sessions Judge [FTC]
Dindigul.
!For Appellants : Mr.P.Andiraj
^For Respondent : Mr.A.Ramar
Additional Public Prosecutor
:JUDGMENT
[JUDGMENT of the Court was delivered by S.NAGAMUTHU, J] The appellants are the accused Nos.1 to 4 in S.C.No.132 of 2010, on the file of the learned Additional District and Sessions Judge [FTC] Dindigul. The Trial Court framed as many as three charges against the accused, as detailed below.
Charge Accused Penal Provisions 1 1 to 4 120(B) IPC 2 1 to 4 302 r/w 34 IPC 3 1 to 4 201 r/w302 IPC By Judgment dated 28.10.2010, the Trial Court convicted the accused Nos.1 to 4, as detailed below:-
Accused No. Convicted under Sections Sentence imposed Fine amount 1 to 4 120(B) IPC To undergo rigorous imprisonment for six months.
Rs.500/- each in default to undergo rigorous imprisonment for one month.
1 to 4 302 r/w 34 IPC To undergo imprisonment for life Rs.2,000/- each in default to undergo rigorous imprisonment for six months. 1 to 4 201 r/w 302 IPC To undergo rigorous imprisonment for seven years Rs.500/- in default to undergo rigorous imprisonment for six months The sentences have been ordered to run concurrently. As against the said conviction and sentence, the appellants have come up with this Criminal Appeal.
2. The case of the prosecution, in brief, is as follows:-
The deceased, in this case, was one Mr.T.Murugan. The father of the deceased had married one Mrs.Ponnammal as his second wife. But, he did not give share in the ancestral properties to the deceased as well as his daughter. The deceased filed a Civil Suit against his father for partition and to conduct the said Civil Suit, he borrowed money from various persons. The said Civil Suit was ultimately pending before the High Court. While so, the persons, who lent money to the deceased, started pressuring him to repay the said loan amount. Since the deceased had suffered a huge loss in agriculture and since the said Civil Case was still pending, he was not able to repay the loan amount. Therefore, approximately, 11/2 years before 04.02.2005, the deceased told his sister - Mrs.Nagalakshmi that he was going to some other place to do some job and earn money. The deceased did not inform PW-1 about the same. On 02.10.2003, at 10.00 AM, PW-1 was informed by him that he was staying in Thiruppur and working in a Lottery Shop. The deceased used to speak PW-1 over phone and during such talks, he told PW-1 that he was very safe in Jampuliampatti near Thiruppur. Thereafter, there was no contact by the deceased. PW-1, therefore, developed suspicion about his safety and therefore, she made a complaint to the police on 04.02.2005, at 12.00 Noon, complaining that her son was found missing.
2.1. PW-14, the then Head Constable, attached to the Dindigul Taluk Police Station, received the said complaint from PW-1 under EX-P1 and registered a case in Crime No.128 of 2005 for man missing. EX-P11 is the First Information Report. During the course of investigation, there was no clue gathered to find out the fate of the deceased. While so, according to PW-2, the brother-in-law of the deceased, on 21.04.2005, the fourth accused -
Mr.K.Veeramani, who was standing on the road near the house of the deceased, was shouting that he along with the others, had killed the deceased. Immediately, PW-2 caught him hold and took him to the office of the Village Administrative Officer of Balakrishnapuram.
2.2. PW-3, the then Village Administrative Officer of Balakrishnapuram enquired PW-2 and the fourth accused. PW-2 narrated him that the fourth accused was shouting that he along with other accused had committed murder of the deceased. PW-3 prepared a report of the same and obtained the signature of PW-2. Then, he took PW-2, the fourth accused to the Police Station and caused their appearance. He submitted a report under EX-P12.
2.3. One Mr.Ramadoss, the then Inspector of Police [not examined as a witness during trial], attached to the Dindigul Taluk Police Station, took up the case for investigation. Though he examined several persons until the fourth accused was produced by PW-3, he was not able to crack the crime. On 21.04.2005, as soon as the fourth accused was produced, Mr.Ramadoss, the Inspector of Police, interrogated him. The fourth accused gave a voluntary confession. He altered the case into one under Sections 364, 302 and 201 of the Indian Penal Code. EX-P13 is the alteration report. In the said confession, the fourth accused disclosed the place, where the dead body was lying. EX-P14 is the said disclosure statement made by the fourth accused. In pursuance of the same, he took the Inspector of Police, PW-3 and the witnesses to Sirumalai and identified the place on the west of the main road. The Inspector of Police searched for the dead body and finally found that at a distance of 105 metres down from the hill, a human skeleton was found hanging on the branch of a tree. A blue colour pant and a white colour shirt were found on the skeleton. The skull was not found out of the remaining skeleton. It was found lying on the ground, at a distance of one foot from the bottom of the tree. There was no flesh found anywhere near the place of occurrence or on the skeleton. A waist cord was found around the hip. The Inspector of Police prepared an Observation Mahazer and a Rough Sketch in the presence of the said witnesses. Then, he conducted inquest on the body of the deceased between 10.00 AM and 12.00 noon, on 22.04.2005, at the place where the skeleton was found. EX-P16 is the inquest report. Then, he forwarded the fourth accused to the Court for judicial remand. The Inspector of Police made a request to PW-15, Dr.P.Manoharan, a Civil Surgeon, Dindigul Government Hospital to conduct autopsy on the skeleton of the deceased on the spot.
2.4. PW-15, accordingly, conducted autopsy on the skeleton of the deceased, on 22.04.2005, at 03.30 PM. He found only the skeleton and the skull and noticed as follows:-
"The skull left parietal bone is missing only two teeth are present in the upper jaw. The chest and limb bones are covered in the clothes, shirt and pant. The bones are removed from the clothes and examined. Skull broken into two pieces. The limb bones sacrum pelvis, Femur, Tibia, Humerous, Scapula, Rib bones are seen separately. Left Tibia Fibula, Cerpel, Tarsal, Meta tarsal bones are missing. Starmum, Ribs bones are seen in a separated condition. Vertebral bones 22 numbers are seen. Collar bones both side seen".
EX-P8 is the postmortem certificate. He gave opinion under EX-P9 to the effect that the cause of death of the deceased could not be given.
2.5. The Inspector of Police arrested the accused Nos.1 to 3, on 24.04.2005, in the presence of PW-12 and another witness. On such arrest, the first accused gave a voluntary confession, in which he disclosed the person, to whom he sold away the car bearing Registration No.2N-TAK-2713. The third accused also gave a confession, in which he disclosed the place, where he had hidden the plastic wire. In pursuance of the said disclosure statements, the third accused took the Inspector of Police and the witnesses to his house and produced plastic wire, [MO-4], which was recovered under a mahazer. On the disclosure statement made by the accused, the number plate of the car bearing Registration No.2N-TAK-2713 was recovered under a mahazer from one Sri Karpaga Vinayaga Traders, situated at Dindigul - Palani Road.
2.6. The second accused had surrendered before the learned Judicial Magistrate, Nilakottai, on 21.04.2005. By the time, the investigation was taken over by yet another Inspector of Police - Mr.Baskaran [He was also not examined as a witness]. Mr.Baskaran took the custody of the second accused on the orders of the learned Judicial Magistrate, on 13.05.2005. While in custody, he made a disclosure statement, in which he disclosed that he had handed over a Wrist Watch to one Mr.Subramani, Balakrishnapuram Village and in pursuance of the said disclosure statement, the said Wrist Watch [MO-6] was recovered by Mr.Baskaran.
2.7. In order to ascertain the identity of the deceased, the skull was forwarded for superimposition examination. The photograph of the deceased tallied with the skull. EX-P34 is the report given by the Assistant Director, Anthropology Division, Forensic Sciences Department, Chennai. Similarly, DNA examination was conducted. The blood of PW-1 was taken for the said purpose. According to EX-P31, the report of the Assistant Chemical Examiner to Government, and the Assistant Director of Forensic Sciences Lab, the cumulative probability of maternity of PW-1 for being the mother of the person to whom the above femur bone piece belongs to was found to be 99.9999999%. Thus, the identity of the deceased also ascertained. Finally, on completing the investigation, he laid charge sheet against all the accused.
2.8. Based on the above materials, the Trial Court framed appropriate charges, as detailed in the first paragraph of this Judgment. When the accused were questioned in respect of the charges, they pleaded innocence. In order to prove the charges, 17 witnesses were examined, 35 documents and 6 material objects were marked. Out of the said 17 witnesses, PW-1, the mother of the deceased, has spoken about the disappearance of the deceased. She has identified MO-1 to MO-3 as that of the deceased. She has further stated that she gave blood for DNA examination and also gave the photograph of the deceased for superimposition examination. PW-2, the brother-in-law of the deceased, has spoken about the fact that the fourth accused was shouting that he along with the other accused committed the murder of the deceased. He has further stated that he produced the fourth accused to PW-3.
2.9. PW-3 has stated that the fourth accused gave a voluntary confession. He prepared a report and forwarded the same to the police. PW-4 is the brother of the deceased, who has spoken about the missing of the deceased. PW-5 to PW-7, PW-10 and PW-13 have turned hostile and they have not supported the case of the prosecution in any manner. PW-8 has stated that one Mr.Kather Mohideen, belongs to Manapparai, came to him to purchase a Fiat Car. According to him, he made arrangements for purchasing Fiat Car, bearing Registration No.2N-TAK-2713. PW-9 has stated that one Mr.Kather Mohideen sold a old Fiat Car bearing Registration No. 2N-TAK-2713, six to seven years before 2010 and he dismantled the said car. PW-11 has not stated anything incriminating against the accused. PW-12 is the person, in whose presence, according to the case of the prosecution, the accused Nos.1 and 2 were arrested and the discovery of the material objects were made. PW-14 is the Head Constable, who carried the First Information Report to the Court. PW-15
- Dr.P.Manoharan, has spoken about the autopsy conducted by him and he has stated that the cause of death could not be found out. PW-16 has spoken about the registration of the case and PW-17 has spoken about the investigation done by him and the filing of the final report.
2.10. When the Trial Court examined the accused under Section 313 of the Code of Criminal Procedure in respect of the incriminating evidences available against them, they denied the same as false. They did not choose to examine any witness. However, on the side of the defence, the statement of one Mrs.Nagalakshmi, made under Section 161(3) of the Code of Criminal Procedure, on 08.02.2005 was marked as EX-D1. Having considered all the above materials, the Trial Court convicted the appellants, as detailed in the first paragraph of this Judgment and punished them accordingly. That is how, the appellants are now before this Court with this Criminal Appeal.
3. We have heard the learned counsel appearing for the appellants, the learned Additional Public Prosecutor appearing for the respondent and also perused the records carefully.
4. This is a case based on circumstantial evidence. The prosecution has clearly established that the deceased was found missing for about 11/2 years. There can be no reason to doubt the said fact. The dead body was found on the west of the road at Sirumalai. The superimposition examination conducted has established that the dead body was that of the deceased. Similarly, the DNA examination conducted also has proved that the dead body was that of the deceased. Thus, the prosecution has clearly proved that the dead body, which was found at Sirumalai, was that of the deceased.
5. Now, the immediate question is regarding the cause of death. Admittedly, the dead body was found 105 metres down from the hill. It was hanging on the branch of a tree. The skull was found one foot away from the bottom of the said tree. The doctor, who conducted autopsy, has stated that the cause of death could not be found out. There are three possibilities, as stated by the learned counsel appearing for the appellants. The deceased would have accidentally fallen from the hill; the deceased would have committed suicide by jumping from the hill and the deceased would have been killed and the dead body would have been thrown. These are the three possibilities.
6. In a case, based on circumstantial evidence, the prosecution should exclude all the other possibilities, except the only irresistible conclusion that it was a homicide. In this case, the prosecution has not ruled out the possibility of either accidental fall or suicide. Though it is also possible that the deceased would have been killed and the dead body would have been thrown, it is not the only irresistible conclusion, which could be arrived at. For a moment, we are not prepared to say that in every case, the cause of death could be proved only by means of medical evidence. There are cases, where even in the absence of the discovery of corpus delicti, the Courts have concluded that the death was homicide. In the absence of corpus delicti or in the absence of any positive medical records, regarding the cause of death, the prosecution has to prove from the other circumstances that the death was homicide.
7. In this case, we have to examine as to whether the prosecution has proved the case by means of other evidences that the death of the deceased was homicide. In order to prove the said fact, the prosecution relies only on two circumstances. The first one is the extra judicial confession said to have been given by the fourth accused to PW-2 and PW-3. The second circumstance is that the dead body was discovered on the disclosure statement made by the fourth accused. So far as MO-4 is concerned, [plastic wire], there is no evidence that it had anything to do with the commission of the crime. Similarly, the recovery of number plate of the car bearing Registration No. 2N-TAK-2713 also has not been, in any way, connected to the crime.
8. It is the law that it is not as though every discovery of a fact is relevant for the purpose of Section 27 of the Indian Evidence Act, 1872. To make such a discovery admissible in evidence under Section 27 of the Indian Evidence Act, 1872, the link between the discovered fact and the crime or the accused should be established by the prosecution. Here, in this case, the prosecution has not established the connection between MO-4, MO-5 and the crime. Therefore, the disclosure statements said to have been made by the accused 1 to 3 are not relevant and they are not admissible in evidence.
9. So far as the second accused is concerned, a quartz Watch [MO-6] was recovered on his disclosure statement. But, PW-1 has not identified the said watch as the one belonging to the deceased. Absolutely, there is no other evidence to show that MO-6 belonged to the deceased. Thus, so far as MO-6 is concerned, there is no link established between the said material object and the deceased. Thus, the disclosure statement made by the second accused is also not admissible in evidence.
10. So far as the accused Nos.1 to 3 are concerned, absolutely, there is no other evidence, except the so-called extra judicial confession said to have been made by the fourth accused to PW-2 and PW-3. It is too well settled that under Section 30 of the Indian Evidence Act, 1872, the extra judicial confession of a co-accused cannot be the foundation for convicting the other accused. In Kashmira Singh Vs. State of M.P, reported in AIR 1952 SC 159 :
1952 Crl LJ 839, the Hon'ble Supreme Court has elaborately dealt with the scope of Section 30 of the Indian Evidence Act, 1872 and has held as follows:-
"The confession of an accused person is not evidence in the ordinary sense of the term as defined in Section 3. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first, to marshall the evidence against the accused excluding the altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then, of course, it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event, the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept".
Subsequently, a Constitution Bench of the Hon'ble Supreme Court in Haricharan Kurmi v. State of Bihar, reported in (1964) 6 SCR 623, again examined the said legal issue and has approved the law laid down in Kashmira Singh's case in the following words:-
" Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved the case; it can be put into the scale and weighed with the other evidence?. It would be noticed that as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in Section 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh, where the decision of the Privy Council in Bhuboni Sahu case has been cited with approval.
14. In appreciating the full effect of the provisions contained in Section 30, it may be useful to refer to the position of the evidence given by an accomplice under Section 133 of the Act. Section 133 provides that an accomplice shall be a competent witness against an accused person; and that a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Illustration (b) to Section 114 of the Act brings out the legal position that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Reading these two provisions together, it follows that though an accomplice is a competent witness, prudence requires that his evidence should not be acted upon unless it is materially corroborated; and that is the effect of judicial decisions dealing with this point. The point of significance is that when the court deals with the evidence by an accomplice, the court may treat the said evidence as substantive evidence and enquire whether it is materially corroborated or not. The testimony of the accomplice is evidence under Section 3 of the Act and has to be dealt with as such. It is no doubt evidence of a tainted character and as such, is very weak; but, nevertheless, it is evidence and may be acted upon, subject to the requirement which has now become virtually a part of the law that it is corroborated in material particulars.
15. The statements contained in the confessions of the co-accused persons stand on a different footing. In cases where such confessions are relied upon by the prosecution against and accused person, the court cannot begin with the examination of the said statements. The stage to consider the said confessional statements arrives only after the other evidence is considered and found to be satisfactory. The difference in the approach which the court has to adopt in dealing with these two types of evidence is thus clear, well understood and well-established."
Applying the above dictum, if we marahsll the entire evidences let in by the prosecution and on such marshalling, if the Court comes to the conclusion that the accused has committed the crime, in order to lend assurance to the said conclusion, as a last resort, the extra judicial confession of a co- accused could be taken into account. Thus, as held by the Hon'ble Supreme Court, in the absence of any other evidence, the extra judicial confession of a co-accused cannot be treated as a substantive evidence so as to convict the accused. In the instant case, assuming that the fourth accused made extra judicial confession to PW-2 and PW-3, the same cannot be the foundation to convict the accused Nos.1 to 3. Thus, the accused Nos.1 to 3 are entitled for acquittal.
11. Now, turning to the case against the fourth accused, the prosecution relies on the extra judicial confession said to have been made by him to PW-2 and PW-3. According to PW-2, the accused No.4 was shouting that he along with the other accused had committed the murder of the deceased, 11/2 years before. PW-2 is none other than the brother-in-law of the deceased. It is highly doubtful as to whether after a gap of 11/2 years of the alleged crime, the fourth accused would have disclosed about the occurrence to him.
12. Then, comes the evidence of PW-3. PW-3 has also stated that the accused confessed to him. But, a perusal of EX-P12 would go to show that it is nothing but his report. A reading of the same would go to show that PW-2 told PW-3 that the fourth accused shouted that he along with the other accused had killed the deceased. What was said by PW-2 to PW-3 was reduced to writing. There is no word in EX-P12 that EX-P12 was the one, as spoken to by the fourth accused. To repeat, we have to say that EX-P12 is nothing but the statement made by PW-2 to PW-3 and not the statement of the fourth accused. Such a statement, being the former statement, could be used either to corroborate PW-2 or to contradict him and the same cannot be treated as a substantive evidence. Thus, EX-P12 is not the extra judicial confession of the fourth accused at all.
13. Now, what remains is only the oral evidence of PW-3. It is not explained to the Court as to why PW-3 did not reduce to writing the statement of the fourth accused. Curiously, EX-P12 contains the signatures of PW-2 and PW-3. Had it been true that any statement was made by the fourth accused, PW- 3, being an experienced Village Administrative Officer, would not have omitted to reduce the same to writing and to get the same signed by the fourth accused. But, there was no such statement recorded and even EX-P12 does not contain the signature of the fourth accused.
14. If once it is doubtful that the fourth accused had made such an extra judicial confession, then, the discovery of the skeleton at his instance also becomes doubtful. The extra judicial confession, being a weak piece of evidence, cannot be the foundation for the conviction unless the same inspires the confidence of the Court or it draws corroboration from independent sources. In this case, the extra judicial confession said to have been made orally by the fourth accused is highly doubtful and there is no corroboration for the same. In such view of the matter, as against the fourth accused also, the prosecution has not proved the case beyond reasonable doubts. In nutshell, the prosecution has failed to prove the case against all the four accused and thus, they are entitled for acquittal.
15. In the result, this Criminal Appeal is allowed; the conviction and sentence imposed on the appellants, by Judgment dated 28.10.2010, made in S.C.No.132 of 2010, on the file of the learned Additional District and Sessions Judge [FTC] Dindigul, is set aside and the appellants are acquitted. Fine amount, if any, paid by the appellants shall be refunded to them. Bail bond executed by the appellants and the sureties shall stand terminated.
To
1.The Inspector of Police, Dindigul Taluk Police Station, Dindigul District.
2.The learned Additional District and Sessions Judge [FTC] Dindigul.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.