Annamalai vs State, by Inspector of Police, Uppiliapuram Police Station, Tiruchirapalli District

Janarthanam, J.—This appeal is directed against the judgment dated 19th November, 1982 of the Court of Session, Trichi in S.C. No. 86

of 1981.

It arises from these facts:

(i) The accused hails from Chinna Chithur village, which is situate within the jurisdiction of Uppiliapuram Police Station. P W.1 is his elder brother.

He has given his daughter born through his first wife to P.W 3 who is the son of P.W 2.P. Ws.1 and 2 are adjacent land-owners. P.W.1 became a

widower some time prior to the occurrence, which happened on 2-1-1981. Seethammal (since deceased) was originally married to the accused.

No issue was born to the deceased. So the accused, thinking that the deceased could not give birth to a child, decided to divorce her once and for

all. A Panchayat took place in the village. P.W.4 was one of the panchayatdars and in that panchayat, the divorce between the deceased and the

accused was effected. Thereafter, the deceased went to her parents'' home and resided there for some time.

(ii) P.W.1 decided to marry the deceased and, in fact, married her after paying Rs. 600/- to the accused, the amount spent by him for contracting

his marriage with the deceased, some five or six years prior to the occurrence. Though the accused divorced the deceased, yet he was having the

desire to have sexual connection with her. So, sometime prior to the occurrence, he expressed his desire to have sexual intercourse with the

deceased, to which course, the deceased was not amenable. She complained of the same to P.W.1. Subsequently want of cordiality came to

prevail between P.W.1 and the accused. The ill-will between P.W.1 and the accused further heightened, when the accused demanded more

properties towards his share from P.W.1. This apart, the accused gave a complaint to the police against P.W.1, his brother, as if he had committed

theft of some utensils from his house. The case was referred. However, the feelings of animosity between them on account of the vexatious

complaint got nurtured and developed further.

(iii) On the early morning of the day of occurrence, the deceased went to the nearby forest to collect firewood. P.W.5, who was available then in

the forest, saw the deceased cutting the wood for fuel purposes P.W.2 had been to his fields for turning out agricultural operations. P.W.1 also, for

a similar purpose, went to his fields, At about 9 a.m. P.W.2 saw the accused carrying a body on his shoulders and dropping the same into the well

situate in his lands. He raised a hue and cry. Attracted by such cries, P.W.1 and P.W.3 who were available in the adjacent fields came running and

in that process, they happened to see the accused running away from there. The body thrown was recovered from the well and it was found out to

be the body of the deceased.

(iv) P.W.1 went to Uppiliyapuram Police Station and gave Ex.P-1 complaint at 10.45 p.m. P.W.13, who was incharge of the station registered a

case in crime No. 1 of 1981 u/s 302 of the Indian Penal Code. He prepared express reports and sent the same to the concerned officials. He also

sent a V.H.F. message to the Inspector of Police P.W.14.

(v) P.W.14 the Inspector of Police, on receipt of the message at 3 a.m. on 3-1-1981 took up further investigation in this case. He reached the

scene at 6.30 a.m. He inspected the scene and prepared Ex.P-2 observation mahazar. He also drew a rough sketch of the scene of occurrence

Ex.P 13. Exs.P 2 was attested by P.W.6 and another. He caused photographs to be taken of the scene by P W.10. M.O.4 series are the

photographs and M.O 3 series are the negatives. Then he sent a requisition Ex.P-3 to to the doctor P.W.7 for conducting autopsy over the body

of the deceased in the scene itself. Between 8 am. and 11 30 a m , he held inquest over the body of the deceased. During the inquest he examined

P. Ws. 1 to 3 and 5 and others. Ex.P12 is the inquest report. He, thereafter, handed over the body to the constable P.W.11 along with Ex P-3

requisition for guarding the same till the autopsy was conducted.

(vi) The doctor P.W.7 reached the scene village and conducted autopsy over the body of the deceased at 11-30 a.m. on 3 1-1981. Ex P.4 is the

post-mortem certificate. The doctor opined that the deceased would appear to have died of shock and haemorrhage due to multiple injuries and

the injuries could have been caused by cutting with a weapon like M.O.1 aruval. He also opined that the external injury No. 4 with its

corresponding internal injuries is fatal in nature.

(vii) At 1 p.m. P.W.14 Inspector of Police seized from the land of one Sobanapuram Rengaraj M.O.7 series blood-stained withered leaves,

M.O.8 series bloodstained stones and M 0.9 bloodstained earth. He also noticed track of blood from there tilt upto the well, where the body was

dropped. Regarding this he prepared Ex.P-5 observation mahazar, which was attested by P.W.8 and another. He searched for the accused, but

he was absconding.

(viii) On 5-1-1981 at 9-15 a.m. he arrested the accused at the Mayilapallam Road in Chinna Chittur in the presence of P.W.9. The accused on

interrogation gave a confessional statement, the admissible portion of which is Ex.P-6 pursuant to the confession, the accused, took P.W.14 and

others to a mango tree situate on the west of his cattle shed and took out and produced M.O.1 aruval and M.O 2 bedsheet kept in between the

two branches of the mango tree, which was seized under Ex.P7 mahazar. Exs.P6 and P7 were attested by P.W.9. On 6-1-1981, he sent the

accused to the court for remand. On 20-1-1981, he gave Ex.P8 requisition to the Judicial Second Class Magistrate, Thuraiyur for sending the

incriminating objects to the Chemical Examiner for the purposes of analysis.

(ix) P.W.12, the Head Clerk attached to the court of the Judicial Second Class Magistrate, Thuraiyur sent the incriminating articles as per the

directions of the Magistrate to the Chemical Examiner under the original of Ex.P9 office copy of letter. Exs. P-10. and Ex. Pll are the reports of the

Chemical Examiner and Serologist respectively.

(x) After completing the formalities of the investigation, P.W.14 filed a report u/s 173 of the Code of Criminal Procedure before the Judicial

Second Class Magistrate, Thuraivur, on 24-4-1981 for offences under Ss.302 and 201 of the Indian Penal Code, appeared to have been

committed by the accused.

The learned Sessions Judge upon committal framed charges u/s 302 and 201 of the Indian Penal Code, against the accused.

The accused denied the same and claimed to be tried. The prosecution in proof of the charges, examined P. Ws.1 to 14, filed Exs.P1 to P13

and marked M. Os.1 to 9.

The accused when questioned u/s 3i3 of the Code of Criminal Procedure as regards the incriminating circumstances appearing in"" evidence

against him denied his complicity in the crime. The accused did not choose to examine any witness on his side.

Learned Sessions Judge, on a perusal of the materials placed before him and upon hearing the arguments of the learned Public.

Prosecutor and learned Counsel for the defence found the accused guilty under Ss.302 and 201 of the Indian Penal Code, convicted him

thereunder and sentenced him to imprisonment for life for the offence u/s 302 of the I.P.C., besides sentencing him to rigorous Imprisonment for

two years for the offence u/s 201 of the Indian Penal Code, with a direction that the sentences are to run concurrently.

The accused aggrieved by this conviction and sentence, has come forward with this appeal.

Learned Counsel appearing for the Appellant would assail the convictions and sentences imposed on the accused by the court below by

pressing the following points:

(1) The various facets of the motive aspect of the case of the prosecution, instead of improving or advancing the case of the prosecution to any

extent whatsoever, actually causes an irreparable dent in the sense of tilting the case in favour of the defence.

(2) There is practically dearth of evidence to connect the accused with the offence of murder, or even if the arrest, confession and consequent

recovery effected thereby coupled with the Serologist''s report disclosing M.O.1, the weapon said to have been used in the commission of the

crime containing the group of human blood as that of the deceased are taken for granted to have been proved in the manner allowed by law which

stare at the face of the accused as incriminating circumstances, even then, those incriminating factors could not form the foundation of the case of

the prosecution for proving the offence of murder against the accused, in view of the fact that excepting in cases where the gist of the offence is

possession of concealment of and object the information u/s 27 of the Evidence Act and recovery effected thereby cannot form the foundation of

the prosecution case; and

(3) In case the court comes to the conclusion that there is no evidence at all against the accused for the commission of the offence of murder, then,

by no stretch of imagination, he could be mulcted or fastened with criminal liability for the offence u/s 201, I.P.C., as such a course is not legally

permissible.

(4) There is undue delay in lodging the first information report before the Police, which is fatal to the case of the prosecution.

The motive part of the case of the prosecution consists of three parts. The first part consists of the complaint made by the deceased to P.W.1

sometime prior to the occurrence that the accused entreated her for sexual intercourse with him to which course she was not amenable at all. The

statement of the deceased to P.W.1 can, by no stretch of imagination, be construed as an admissible piece of evidence unless the statement falls

within the ambit of Section 32(1) of the Evidence Act as a circumstance of the transaction resulting in her death. This statement of the deceased on

the face of it cannot be said to be one which resulted in her death, Therefore, it is practically an inadmissible piece of evidence, which has to be

eschewed out of consideration for any purpose whatever.

This apart, the statement of the deceased stated to have been made by P.W 1 is as vague as vagueness could be in the sense of P.W.1 not

furnishing any detail as to when the accused entreated the deceased for intercourse, at what place this had happened etc. Further, P.W.1 kept

mum and silent all along without taking any action whatever. The fact that such an incident happened at all is a matter not above reproach and

beyond suspicion. As such, this part of the motive facet of the case of the prosecution has to fall to the ground.

The next facet of the motive part is that the accused had been demanding more properties towards his share from P.W.1. In such an

eventuality, the motive for the accused is to rise in revolt against P.W.1 and not against the deceased, who was married to P.W.1 for the second

time with his permission, after he had received Rs 600 the amount which he expended in contracting his marriage with the deceased on an earlier

occasion. As such, this part of the motive also fails.

Coming to the third facet of the motive that the accused was said to have given a complaint to the police that P.W.1 had committed theft of

some utensils from his house, the case, admittedly, was referred. In such a situation, the person aggrieved could have been only P.W.1 in the sense

of himself being dragged on to a police Station for facing a false charge of theft. As such, the motive projected by the prosecution, as a whole, is of

no consequence in the sense of advancing its case to any extent further.

Regarding the murder of the deceased, in fact, there is no direct evidence at all. The two pieces of evidence available are that the accused was

found carrying the body and dropping it in the well situate in the land belonging to P.W.2. and recovery of M.O.1 aruval at the instance of the

accused pursuant to the confession Ex.P-6 made by him to the Inspector of Police (P.W. 14), which was found to contain the group of human

blood as that group of the deceased.

On the aspect of carrying of the dead body, there is only the evidence of P.W.2, coupled with the evidence of P. Ws.1 and 3, who had seen

the accused run away from there. The evidence of P. Ws.1 to 3, even taken for granted to be true, even then it cannot be stated that their evidence

would point out the culpability of the accused in committing the murder of the deceased. It may of course point out that the accused was having a

hand in the disposal of the dead body by dropping the same into the well.

So far as the other circumstance viz, the recovery of M.O.1 Aruval stained with the group of human blood as that group of deceased is

concerned, it may connect the weapon with the crime but not the accused as the perpetrator or participant in the commission of the murder of the

deceased. The confession under S 27 of the Evidence Act can never form the foundation of the case of the prosecution, excepting in cases where

the gist of the offence is possession or concealment of an object as in the case of possession of stolen articles punishable u/s 411 of the Indian

Penal Code and such other analogous offences. In other cases, the confession under S 27 of the Evidence Act is only a circumstance of

incriminating nature serving as a lending assurance factor if there is any evidence ali unde pointing out clinchingly the hand of the person in

committing the offence of which, he was accused of. As I have already stated, so far as the case on hand is concerned, there is no evidence ali

unde at all to connect the accused in the commission of the murder of the deceased. In the absence of such evidence, he incriminating circumstance

of recovery of the weapon M.O.1 containing the group of human blood as that of the deceased is of no consequence, in the sense of the same not

being sufficient to fasten criminal liability upon the accused for the offence of murder u/s 302 of the Indian Penal Code. As such, the conviction of

the accused by the court below for the offence u/s 302 of the Indian Penal Code and the sentence imposed thereunder are not sustainable in law

and they deserve to be set aside.

16 The argument of learned Counsel for the Appellant that in the event of the accused being acquitted of the charge of the commission of the

offence of murder, it is not legally permissible to convict him under S 201, I.P.C., for causing disappearance of the evidence of the commission of

murder cannot be expected to commend acceptance at the hands of the court.

A similar situation arose before us in (Poonkavanam v. State Criminal Appeal No. 668 of 1984.), where we happened to deal with the

question and held that offences under Ss.302 and 201, I.P.C., are distinct offences and on proof forthcoming of any of these two offences, in

respect of which the accused was charged, criminal liability can be fastened upon him for the proved offence, Following the decision of the

Supreme Court in Ram Dahin Singh and Others Vs. State of U.P., .

As such, there is no legal impediment to convict the accused for the offence under S 201, I.P.C., provided there is evidence for commission of

such offence, but dearth of evidence for the commission of the offence of murder by the accused and what is required for fastening or mulcting

criminal liability upon the accused for the offence u/s 201, I.P.C., is that the accused knowing or having reason to believe that the offence of

murder has been committed, causes evidence of the commission of the offence of murder to disappear with the intention of screening himself from

legal punishment, then criminal liability can be fastened upon him for such an offence There is no manner of doubt whatever so far as this case is

concerned that the deceased died of homicidal violence as disclosed by the testimony of the doctor P.W.7, who conducted the autopsy and the

post-mortem certificate Ex.P4, which he issued.

The accused must be having knowledge or at least reason to believe while he was carrying her body for the purpose of dropping it into the well

that the deceased died of homicidal violence, in the circumstances of the case. As such, the conviction and sentence imposed on the accused for

the offence under S 201, I.P.C , is perfectly justifiable and do not call for interference.

20 The act of dropping of the body of the deceased was first noticed by P.W 2 at 9 a.m. and the same had come to the knowledge of P.W.1 after

a shortwhile when the body was recovered from the well. It is P.W.1, who lodged the first information report Ex. P1 before the Police at 10.45

p.m. Of course, there is a delay of 13 hours and 45 minutes in lodging the first information report before the police. The delay so caused in the

circumstances of the case, we feel, is of no consequence. Admittedly, the place where the occurrence had happened is a mountainous hilly track

and enormous time is consumed for one to reach the plains. It is also not in dispute that the scene of occurrence is situate sixteen miles away from

the Uppiliapuram Police Station. In such a circumstance, the lodging of the first information by P.W.1 at 10. 45 p.m. on the date of the occurrence

cannot be stated to have been done after a long delay with any ulterior motive, in the sense of painting an embellished version before the police.

Such an ulterior motive in the circumstances of the case cannot be spelt out for the simple reason that if P.W.1 wanted, he could have filed the first

information report before the police implicating the accused in the heinous crime of murder of the deceased by incorporating necessary recitals in

the first information report. Pertinent it is to mention here that Ex. P1 contains only a bare recital as stated by P.W.2, as regards the carrying of the

dead body of the deceased by the accused and dropping of the same into his well, situate in his land.

The sentence imposed by the court below for the offence u/s 201, I.P.C., does appear to be severe calling for interference.

In the result, the conviction of the accused under S 302, I.P.C., and the sentence of imprisonment for life imposed upon him by the court

below are set aside, but the conviction and sentence imposed upon him by the court below for the offence u/s 201, I.P.C., are confirmed.

Accordingly, the Criminal Appeal shall stand allowed in part.