Chinna Pillai and Annamalai vs The State

P. Devadass, J.

APPELLANTS

A1 and A2, in the Sessions Case, in S.C. No. 8 of 2009, in the Court of Additional Sessions Judge, Krishnagiri are the appellants.

CONVICTION AND SENTENCE

On 11.11.2010, A1 and A2 were found guilty u/s 302 IPC and were sentenced to life and fined Rs.5000/-, in default, directed to undergo 10

months rigorous imprisonment.

PROSECUTION CASE

The case of the prosecution, in brief, is as follows:-

(i) A1, Chinnapillai is wife of deceased Rajendran. They were residing in Mettuparai village in Krishnagiri District. A2 Annamalai is known to them.

All the three used to have liquor together.

(ii) Illegal intimacy developed between A1 and A2. On 06.9.2008, at about 9 p.m., in his house, the deceased seen A1 and A2 in a compromising

position. The deceased tried to beat them. In this circumstances, A2 had indiscriminately assaulted the deceased with M.O. 6, axe on his head and

A2 assaulted her husband with M.O. 7, stick. The deceased died on the spot.

(iii) On 07.09.2008, at about 8 a.m., A1 appeared before P.W. 1, Madhu, V.A.O. Ettikal Agaram Village. She confessed to him her illegal

intimacy with A2 and their killing of her husband on the previous day. P.W. 1 reduced it into writing. It is Ex. P.1 extra-judicial confession.

(iv) At about 10 a.m., at the Krishnagiri Taluk Police Station, P.W. 1 produced A1 with Ex. P1 to P.W. 9, Kathirvel, Inspector. P.W. 1 also gave

him Ex. P.2, complaint. He registered this case in Cr. No. 725 of 2008 u/s 302 IPC. He sent Ex. P.19, Express FIR to Court and to his Superior

Officers. He arrested A1 in the presence of P.W. 1 and his Assistant, he recorded Ex. P4 confessional statement from her.

(v) P.W. 9 visited the scene place. On his instruction, P.W. 5 Stalin photographed the dead body. In the presence of P.W. 1 and his Assistant,

P.W. 9 prepared Ex. P.3, Observation Mahazar. Drew Ex. P.20, rough sketch. In the presence of Panchayathdars, he held inquest over the dead

body. Ex. P.21 is his inquest report. He had examined the witnesses and recorded their statements. In the presence of witnesses, he recovered

M.O. 1,bangle pieces, M.O. 2, blood stained plaster pieces, M.O. 3, plain plaster pieces, M.O. 4, blood stained earth and M.O. 5, sample earth

under Ex. P5 Mahazar. He sent the dead body with his requisition Ex. P.19 to the Govt. Hospital, Krishnagiri through P.W. 7 Ravi, Head

Constable for conducting post-mortem. In the presence of P.W. 1 and his Assistant in pursuance of her Ex. P4 confessional statement, A1

produced M.O. 6 and 7 axe and the stick. P.W. 9 seized them under Ex. P6 Mahazar. P.W. 9 produced her to Court for judicial custody. He

produced the seized case properties to the Court to send them to Lab for forensic examination.

(vi) On 07.09.2008, at about 5 p.m., at the Govt. Head Quarters Hospital, Krishnagiri, P.W. 8, Dr. Raja conducted post-mortem on the dead

body of deceased Rajendran and noticed the following injuries:

Lacerated injury right fronto-temporal region 6 x 2 x 3 cm exposing fractured bone and brown membrane.

Lacerated wound right parito-temporal region 7 x 3 x 3 cm exposing fracture bone.

Right Black eye.

Abrasion - contusion left molar region 4 x 3 x 3 cm

Abrasion left knee - contusion 6 x 3 cm

(vii) P.W. 8 opined that the deceased would have died of shock and hemorrhage due to injuries 20-22 hours prior to autopsy. He issued Ex. P.18,

post-mortem certificate.

(viii) On 08.09.2008, at about 2.30 p.m, near the Old pet in Krishnagiri, in the presence of P.W. 4, Nandhagopal V.A.O. and his Assistant, P.W.

9 arrested A2 and produced him to the Court for judicial custody. Received Exs. P11 and P12 scientific reports. Concluding his investigation,

P.W. 9 filed the Final Report for offences u/s 302 and 201 IPC as against A1 and A2.

CHARGES

Prosecution framed charges u/s 302 and 201 IPC as against A1 and A2.

PROSECUTION EVIDENCE

To substantiate the charges, prosecution examined P.Ws.1 to 9, marked Ex. P.1 to P.22 and exhibited M.Os. 1 to 11.

EXAMINATION OF THE ACCUSED

When the Trial Court examined A1 and A2 u/s 313 Cr.P.C on the incriminating aspects appearing in the prosecution evidence, A1 and A2 have

denied their complicity in this case. They did not examine any witness nor file any document.

TRIAL COURT''S DECISION

Considering the evidence adduced, the trial Court held that the motive, extra-judicial confession, recovery evidence and the medical evidence

projected are proved and they completed the chain linking the accused with the death of Rajendran and convicted them u/s 302 IPC and

sentenced them as already stated. Due to paucity of evidence, the Trial Court acquitted them from the charges u/s 201 IPC.

TRIAL COURT''S DECISION ASSAILED

The learned counsel for the appellants contended that the prosecution case is entirely based on circumstantial evidence viz., motive, extra-

judicial confession and Section 27 Evidence Act Recovery. But, none of them has been established. There is no link in the chain of circumstances

projected by the prosecution. The learned counsel also contended that P.W. 1, V.A.O. is an utter stranger to A1. There is nothing to show that

she had reposed confidence in him to make the extra-judicial confession. Section 27 of Evidence Act recovery is also just stage managed. There is

nothing to show that A1 and A2 had intimacy. The learned counsel contended that the prosecution has not proved its case beyond all reasonable

doubts and thus, the decision of the Trial Court convicting the appellants is flawed.

TRIAL COURT DECISION SUPPORTED

Mr. V.M.R. Rajendran, learned Additional Public Prosecutor contended that P.W. 2 had spoken about the conviction between A1 and A2. A1

had confessed their killing of her husband to P.W. 1, V.A.O., who had no axe to grind as against them. It is genuine, voluntary and it can be acted

upon. Further, based on her disclosure statement, M.O. 6 and M.O. 7-weapons also have been recovered. All these proved circumstances

completed the chain pointing out towards A1 and A2 that they alone have killed the deceased. Thus, the decision of the Trial Court is not flawed.

CONSIDERATION

We have anxiously considered the rival submissions, meticulously perused the entire evidence on record and the impugned Judgment of the Trial

Court.

DEATH OF RAJENDRAN

On the early morning of 07.09.2008, near his house, the dead body of Rajendran was found with multiple injuries. The forensic examination of

his dead body by the autopsy conducted by P.W. 8 Dr. Raja revealed that his death was homicidal in nature.

PROSECUTION VERSION

According to prosecution, since the deceased had seen his wife/A1 and her paramour/A2, in his house, in a compromising position, A1 and

A2 have killed him.

CIRCUMSTANTIAL EVIDENCE

There is no eye witness in this case. This case is entirely based on circumstantial evidence. The Hon''ble Supreme Court had laid down certain

tests to assess and accept the circumstantial evidence. It is useful here to see them.

(i) In Padala Veera Reddy Vs. State of Andhra Pradesh and others, , it was laid down that when a case rests on 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.

(ii) [Also see State of Rajasthan Vs. Raja Ram, , Inspector of Police, Tamil Nadu Vs. John David,

THE CIRCUMSTANCES

In this case, to implicate A1 and A2 with the death of the deceased, prosecution relies on the following circumstances:-

(i) Motive-Illegal intimacy between A1 and A2.

(ii) Extra-Judicial confession of A1 to P.W. 1.

(iii) Section 27 Evidence Act Recovery.

ASSESSMENT OF THE CIRCUMSTANCES

Now, keeping the tests propounded by the Hon''ble Supreme Court seen above in our view, let us proceed to see the circumstances projected

by the prosecution one by one, whether they have been proved and whether the proved circumstances cumulatively taken, form a complete chain

without any missing link unerringly proceeding towards the only conclusion that A1 and A2 are the perpetrators of the killing of Rajendran and they

excludes any hypothesis of innocence in their favour.

MOTIVE:-

Motive is irrelevant in a case based on the evidence of ocular witnesses. But, it assumes signal importance in a case based on circumstantial

evidence, as it will lend assurance to the quality, reliability and acceptability of the evidence of witnesses examined to prove the circumstances.

Like any other fact, motive must also be proved. [Also see State Vs. Mahender Singh Dahiya, , J. Xavier Raj Vs. State by Inspector of Police,

Dindugul Taluk Police Station ( 2012 (1) TLNJ 51 Crl)] and C. Venkatesh Vs. Inspector of Police, Munneerpallam, Tirunelveli Dist. (2012 (2)

MLJ (Crl) 433)]

In the case before us, it is alleged that A2 had illegal intimacy with A1, the wife of the deceased. To prove this, P.W. 2, Chennappan, brother

of the deceased has been examined.

In his evidence, P.W. 2 had stated that A2 used to come to his brother''s house. The prosecution version is that the deceased was an ex-

service man, he frequently got rationed liquor from the Military Canteen and A2 used to frequent his house to have liquor with him. So, A2 is a

regular visitor to his house. Except that A2 used to visit his brother''s house, P.W. 2 did not say anything further. He did not say that there was any

connection or illegal intimacy between A2 and his brother''s wife. All the circumstances, may not be incriminating in nature. In the facts and

circumstances of this case, A2 having visited the house will not be an incriminating circumstance.

It is relevant here to note that in Varun Chaudhary Vs. State of Rajasthan (2012 (1) SCC 616), the Hon''ble Apex Court held that in cases

where there is no eye witness the prosecution should establish that there was motive behind the commission of the offence.

It is also relevant to note that in Babu Vs. State of Kerala (2010 (3) SCC 1179), the Hon''ble Apex Court held that in a case based on

circumstantial evidence, when motive is not established, it will be a factor in favour of the accused.

Now, evaluating the evidence of P.W. 2, we have no hesitation to hold that the motive attributed as against A1 and A2 for the death of the

deceased is not established. Thus, one of the link in the chain of circumstances projected by the prosecution has been disrupted.

EXTRA-JUDICIAL CONFESSION OF A1 TO P.W. 1:-

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 u/s 24 of the Evidence Act, 1872.

There are certain tests to be satisfied for the acceptance of extra-judicial confession. In a long line of judicial decisions certain principles were

evolved on this aspect. It is appropriate here to note them.

In State of Rajasthan Vs. Raja Ram, while explaining the dimensions of the principles governing the admissibility and evidentiary value of an

extra-judicial confession, the Hon''ble Supreme Court observed as under :-

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 of

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.

To consider the veracity of an extra-judicial confession, recently in Sahadevan and another Vs. State of Tamil Nadu, , the Hon''ble Supreme

Court laid down the following guidance:-

i. The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.

ii. It should be made voluntarily and should be truthful.

iii. It should inspire confidence.

iv. An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further

corroborated by other prosecution evidence.

v. For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

vi. Such statement essentially has to be proved like any other fact and in accordance with law.

In Pakkirisamy Vs. State of T.N., the Hon''ble Supreme Court held as under:

... it is well settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any

reliance upon such extra-judicial confession.

In Jaspal Singh alias Pali and others Vs. State of Punjab, the Hon''ble Apex court held that the prosecution has to show as to why and how the

accused had reposed confidence on a particular person to give the extra-judicial confession.

In Jaswant Gir v. State of Punjab [2006 (1) SCC 579, the Hon''ble Apex Court held as under :

The first and foremost aspect which needs to be taken note of is, that PW.9 is not a person who had intimate relations or friendship with the

appellant. PW.9 says that he knew the appellant to some extent meaning thereby that he had only acquaintance with him. In cross- examination, he

stated that he did not visit his house earlier and that he met the appellant once or twice at the bus-stand. There is no earthly reason why he should

go to PW.9 and confide to him as to what he had done.

In Ravi @ Ravichandran and another v. State, through the Inspector of Police, Steel Plant Police Station, Salem [2007 (1) MLJ (Crl.) 1002],

it was observed as under:

But, in this case, it is found that there is no evidence to show that the Village Administrative Officer was known to A.1. Unless a person trusts

another, there is no question of unburdening his heart to such a person. Therefore, we straight away reject the untrustworthy testimony of the

Village Administrative Officer, PW.9 that A.1 voluntarily confessed the crime to him.

In the case before us, during his examination u/s 313 Cr.P.C., when A1 was questioned with reference to Ex. P1 extra-judicial confession, she

had denied it. So, she had retracted it.

Dealing with a situation of retraction from the extra-judicial confession made by the accused, in Rameshbhai Chandubhai Rathod Vs. State of

Gujarat, , the Hon''ble Supreme Court held as under:-

It appears therefore, that the appellant has retracted his confession. When an extra-judicial confession is retracted by an accused, there is no

inflexible rule that the court must invariably accept the retraction. But at the same time it is unsafe for the court to rely on the retracted confession,

unless, the court on a consideration of the entire evidence comes to a definite conclusion that the retracted confession is true.

Now keeping the above settled principles in our mind let us proceed to evaluate the evidence of witness examined to speak about the extra-

judicial confession pressed into service in this case.

In this case, it is stated that on 07.09.2008, at about 8 a.m., A1 had given Ex. P.1, extra-judicial confession to P.W. 1, Village Administrative

Officer.

P.W. 1, Madhu, is V.A.O. of Ettikal Agaram Village. According to him, on 07.09.2008, at about 8 a.m., A1 confessed to him her killing of

her husband in association with A2 since her husband had seen her having sex with A2. P.W. 1 had stated that he had reduced her said confession

into writing and that is Ex. P.1 and his Assistant was also then present.

There is no indication in the evidence of P.W. 1 that whether P.W. 1 had obtained signature or thumb impression of A1 in Ex. P.1. There is no

attestation of his Assistant in Ex. P.1. To corroborate P.W. 1, his Assistant also has not been examined.

According to P.W. 9, Kathirvel, Inspector, on 07.09.2008, at about 10 a.m., at the Krishnagiri Taluk Police Station, P.W. 1 had produced

him A1 with Ex. P.2, complaint. However, the cross-examination of P.W. 2, Chennappan, brother of the deceased reveals that when on

07.09.2008, at about 10 a.m., when police visited the scene place, A1 was there only. P.W. 2 also stated that only after the police came to the

scene place, P.W. 1 came there. It is to be noted that from the scene place, the police station is at a distance of 15 kms. (see Ex. P3 Observation

Mahazar). Thus, from the evidence of P.Ws.2 and 9, it is seen that on 07.09.2008, at about 10 a.m., at the police station, P.W. 1 could not have

produced A1 with the extra-judicial confession.

P.W. 1, is residing in Krishnagiri. There is nothing to show that A1 had already known him. She had never before seen him. She had never

visited his office. P.W. 1 is an utter stranger to her. There is nothing to show that she had any earthly reason or occasion to repose confidence in

him to make extra-judicial confession implicating herself in a serious murder charge. In the facts and circumstances, P.W. 1 appears to be an

obliging witness of the police.

There is no corroboration for her alleged Ex. P.1, extra-judicial confession to P.W. 1. A2 has been implicated in this case only based on the

alleged A1''s extra-judicial confession to P.W. 1. Apart from that, there is nothing incriminating to link A2 with this case.

Now, evaluating the evidence of P.W. 1 and scrutinising Ex. P1, extra-judicial confession, it is crystal clear that it is too dangerous to rely on

the evidence of P.W. 1 and believe his statement that A1 has gave him Ex. P1 extra-judicial confession.

We have no hesitation to hold that the extra-judicial confession is not voluntary and genuine. It has not satisfied the twin tests to accept an

extra-judicial confession. So, we reject it. So, it is eschewed from our zone of consideration. Thus, in the chain of circumstances sketched by the

prosecution there is one more disconnection.

RECOVERY EVIDENCE

It is stated that on 07.09.2008, at about 10 a.m., in the police station, P.W. 9 had recorded Ex. P.4, confessional statement from A1 and in

pursuance of that recovered M.O. 6, axe and M.O. 7, stick under Ex. P.6, mahazar in the presence of P.W. 1 and his Assistant. This is the

Section 27 Evidence Act Recovery pressed into service in this case.

In connection with recovery evidence in Geejaganda Somaiah Vs. State of Karnataka, , the Hon''ble Supreme Court held as under:-

Section 25 of the Evidence Act mandates that no confession made to a police officer shall be proved as against a person accused of an

offence. Similarly Section 26 of the Evidence Act provides that confession by the accused person while in custody of police cannot be proved

against him. However, to the aforesaid rule of Sections 25 to 26 of the Evidence Act, there is an exception carved out by Section 27 of the

Evidence Act providing that when any fact is deposed to as discovered in consequence of information received from a person accused of any

offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact

thereby discovered, may be proved. Section 27 is a proviso to Sections 25 and 26. Such statements are generally termed as disclosure statements

leading to the discovery of facts which are presumably in the exclusive knowledge of the maker. Section 27 appears to be based on the view that if

a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly

it can be safely allowed to be given in evidence.

As the section is alleged to be frequently misused by the police, the courts are required to be vigilant about its application. The court must

ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in

terms of the aforesaid section should be seen with suspicion and it cannot be discarded only on the ground that it was made to a police officer

during investigation. The court has to be cautious that no effort is made by the prosecution to make out a statement of the accused with a simple

case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 of the Evidence Act.

[Also see Ebenezar Vs. State,

Either in Ex. P.4 or in Ex. P.6 or in the evidence of P.Ws.1 and 9, the place at which the weapons were hidden, the place from where they

were produced by A1 has been very clearly stated. On this aspect, the said exhibits and the evidence of the said witness are vague. For the

purpose of Section 27 Evidence Act Recovery, specifying of the place of recovery is very important and that is completely lacking in this case.

From the prosecution version, it is seen that on 07.09.2008, at about 10 a.m., at the Krishnagiri Taluk Police Station, when P.W. 1 had

produced A1 with Ex. P.1, extra-judicial confession to P.W. 9, P.W. 9 had recorded her Ex. P.4, confessional statement. So, Ex. P.4 is after Ex.

P.1. When Ex. P.1 goes, Ex. P.4 must also go. In this case, we have already seen elaborately that we cannot rely on Ex. P.1. We have also seen

that P.W. 1 could not have produced A1 to P.W. 9 on 07.09.2008 at 10 a.m., at the police station. So, we cannot rely on the Section 27

Evidence Act Recovery i.e, recovery of M.Os. 6 and 7 spoken to by P.Ws.1 and 9. It is nothing but a make-belief affair. In the facts and

circumstances, no reliance could be placed on it. Thus, the last circumstance projected by the prosecution had also fallen to the ground.

CONCLUSION:

Thus, none of the circumstances projected by the prosecution has been established. They do not form a complete chain linking the accused

with the charges framed as against them. The circumstances woven in this case are not connecting, but disconnecting. Excluding the so called

circumstances from our zone of consideration, the charges remain without any acceptable evidence.

Presumption of one''s innocence is his basic human right. (see Kailash Gour and Others Vs. State of Assam, . As a necessary corollary,

prosecution must prove the guilt alleged against a person beyond all reasonable doubts. Thus, suspicion, however strong may not take the place of

legal proof.[Also see Ashish Batham Vs. State of M.P. ( 2002 (7) SCC 377 and Rathinam @ Rathinan Vs. State of Tamilnadu and Another, .

In winding up our discussion on the evidence adduced, we are coming to the irresistible conclusion that the prosecution has not proved its case

beyond all reasonable doubts. Thus, the findings of the Trial Court are required to be unseated.

NET OUTCOME:

The Criminal Appeal is allowed. The appellants are acquitted. The conviction recorded and the sentences imposed upon them by the learned

Additional Sessions Judge, Krishnagiri in S.C. No. 8 of 2009, on 11/11/2010 are set aside. The appellants shall be released forthwith, if their

further custody is no longer required in connection with any other case. Fine amount, if already paid shall be refunded.