Ganesan vs State

A.S. Venkatachalamoorthy, J.—The appellant/accused, who was charged in Crime No.108 of 1987 on the file of the Bommidi Police

Station for an offence u/s 302 IPC., for causing the death of his concubine by name Kannammal at about 9.30 P.M. on 2nd August, 1987, was

tried by the learned Sessions Judge in S.C. No.92 of 1995. The Sessions Judge found the appellant guilty u/s 302 IPC. as charged and sentenced

him to undergo life imprisonment. The aggrieved accused has preferred the above appeal.

The prosecution case can be set out in a nut-shell as under:-

The deceased is the concubine of the accused. PW.1 is the brother of the deceased while PW-2 is the aunt of the deceased.

The deceased was originally married to one Ratnam, who survived only for five years. Through Ratnam, the deceased had three children by name

Chandra, Sumathi and Velu. After the demise of Ratnam, the deceased and the accused became intimate and started living together. There used to

be frequent quarrels between the deceased and the accused. About six months prior to the occurrence, in a quarrel that ensued between the

accused and the deceased, the accused stabbed the deceased with a glass bottle, and in that regard, the deceased gave a complaint before the

police. The Police registered a case against the accused and that was pending. After that incident, the deceased and the accused were living

separately in the same village viz., Pillparithi. Even thereafter, there used to be quarrels between them. The accused used to threaten the deceased

that she should withdraw the criminal case, as otherwise, he would stab him.

PW-3 is a neighbour of the accused, living in the said village and a cooly by profession. PW-4 is the daughter of PW-3. About 10 years prior to

their examination, in the evening, at about 6 P.M., the deceased came to the house of PWs-3 and 4 and asked for fire. The accused then came

there and took the deceased. Again at about 8 P.M., the deceased came to their house and PW-3 enquired her as to whether the deceased had

finished her dinner for which she gave reply in the negative. Then PW-3 asked PW-4, her daughter to give some food to the deceased. PW-4

gave food to the deceased in a vessel. The accused who was there by then took the vessel from the deceased and ate. Then the accused told the

deceased to go and cook food in the house and thereafter both of them left.

PW-2 is the aunt of the deceased, residing in the same village. About 10 years prior to the examination of this witness, at about 9.30 P.M., the 2nd

daughter of the deceased viz., Sumathi asked for food. PW-2 then took Sumathi to the house of the deceased. Standing from outside, she shouted

Kannamma, Kannamma"", but however, there was no reply. PW-2 went inside the house and saw the deceased lying on a cot and by her side, the

accused was also lying. PW-2 then in an attempt to wake the deceased up, touched her feet and shaked her legs and called her by name. The

accused then told PW-2 not to wake up the deceased as she was in a deep sleep. PW-2 grew suspicious, brought a chimney lamp which was

available in the corner of the room near the deceased and found a green colour saree tied around the neck of the deceased and the face of the

deceased was covered. PW-2 shouted and hearing her noise, PW-3 came to the scene and thereafter, the deceased immediately ran away. PW-2

then informed about this to PW.1, who proceeded to the the house of the accused and in the house saw the deceased lying dead. The body of the

deceased was brought outside the house. As it was late night by then, he could not go out and only on the next day at about 10 A.M., PW-1 went

to Bommidi police station and gave the complaint Ex.P-1.

One Venkatachalam was the Sub Inspector of Bommidi Police Station at the relevant point of time. On 03-08-1987 at about 10-00 A.M. he

received the complaint Ex.P-1 from PW-1 and registered Cr. No.108/87 under Section-174 Cr.P.C. He prepared Ex.P-8 the Printed F.I.R. and

despatched the same to all the officials concerned.

PW-11, the then Inspector of Police went to the Police Station on 03-08-1987 at 11-00 A.M. and then proceeded to the scene of occurrence.

The Inspector prepared the observation mahazar Ex.P-4 and Sketch Ex.P-9 in the presence of witnesses. The Inspector also made arrangements

to secure the assistance of PW-7 Photographer for the purpose of taking photographs. Inquest over the body of the deceased was conducted

between 13.30 and 14.30 hours, and Ex.P-10 is the inquest report. During inquest, he examined PWs-1 to 4 and recorded their statements.

Thereafter, he took steps to send the body to the Hospital with Ex.P-2 requisition for the purpose of conducting post-mortem. On the same day,

at about 4.45 P.M., he seized MO-4 lantern, MO-5 thatched coconut sheet, MO-6 Saree, MO7-Gunny Bag, MO-8 thatched coconut sheet

under Ex.P-5 mahazar attested by PW.9.

PW-7 is the Doctor at the Government Hospital, who, on receipt of the requisition Ex.P-2 from the Inspector of Police, commenced the post

mortem at 2 P.M. on 4-8-1987. Ex.P-3 is the post mortem certificate. In the said certificate, the Doctor has noted the following:-

External Injuries:-

No external injury has been made out since the body is highly decomposed. The whole body swollen, abdomen distended. Blebs all over the

body, face, upper and lower limbs and trunk, peeling of cuticles. On opening the thorax, All the organs are normal in position. Heart: 75 grams,

Lungs: Right 360 grams, left 320 grams. Hyoid: broken at the Centre into two pieces. Stomach: 300 grams with undigested chola coozh. Liver:

1000 grams. Spleen: weight 85 grams. Kidney: 75 grams, Bladder: empty. Uterus: Normal; Brain: 960 grams Normal. Cut section of all the

internal organs were congested.

The Doctor had opined therein that the deceased would have died about 39 to 40 hours prior to autopsy due to asphyxia due to throttling.

PW-6 is a business man and a resident of the same village viz., Pillparithi, who knew the accused well. On 07-08-1987 at about 7 P.M., he was

standing near Kadathur Bus Stop, when he saw the accused roaming about. When questioned, the accused told him that he had murdered his wife

and not knowing where to go, he is just roaming about. PW-6 advised him to go the Village Administrative Officer or to the Police and inform

them.

PW-10 is the Village Administrative Officer of Mallapuram at the relevant time. On 08.08.1987 at about 6 A.M., when he was in the office along

with one Venkatesan, the accused came there and gave Ex.P-7 which PW-10 reduced to writing. The accused signed that statement also. PW-10

then took the accused to Bommidi Police Station and handed over his custody. The complaint Ex.P-1 as well as Ex.P-7 were also delivered to the

officer in the police station.

PW-11, the then Inspector of Police, hearing about the arrest of the accused, went to the police station and enquired him. The Inspector thereafter

proceeded with further investigation and recorded the statements of other witnesses. After completing the investigation, he filed the final report on

31-03-1988.

3.When questioned u/s 313 Cr.P.C., the accused pleaded innocence.

PW-7 is Dr.Meena, working as Assistant Surgeon at the relevant time in the Government Hospital, Harur. On the basis of the requisition made

by the Inspector of Police, Ex.P-2, she conducted the post mortem on 4-8-1987. We have already extracted the notings of the Doctor made in

the Post Mortem Certificate Ex.P-3. In the said certificate, the Doctor has mentioned that the hyoid bone was broken at the Centre into two

pieces. The Doctor had categorically opined that the deceased would have died of asphyxia due to throttling. PW-7 has deposed before Court to

the same effect. In the cross examination, the Doctor has stated that in case of throttling, there may be nail marks and thumb marks, but that need

not necessarily be so in all cases. The medical evidence adduced by the prosecution would amply prove that the deceased died only by homicidal

violence.

This is a case of circumstantial evidence. The settled legal position is that all the circumstances from which conclusion of guilt is to be drawn must

be fully established and should be consistent only with the hypothesis of the guilt of the accused. Further, the proved circumstances should be of a

conclusive nature and definite tendency, unerringly pointing towards the guilt of the accused. The circumstances so established must bring home the

guilt of the accused beyond all reasonable doubts. The Chain of events furnished by the circumstances should be so complete as not to leave any

reasonable ground for the conclusion consistent with the innocence of the accused.

Let us proceed to consider the circumstances relied on by the prosecution and as to whether the prosecution has established the same.

(i)The evidence of Pws-3 and 4, who saw the accused and the deceased together at about 8 P.M. on the fateful day that was on 2nd August

1987.

(ii) The evidence of PW-1 who gave the Ex.P-1 complaint before the police on the next day at about 10 A.M.

(iii) The evidence of PW-6 to whom the accused made an extra judicial confession.

(iv)The evidence of PW-10, the Village Administrative Officer to whom the accused gave the Ex.P-6 statement, admitting his guilt.

(v) Failure on the part of the accused to come forward before Court as to what happened on the night of 2nd August 1987.

6.PW-3 is the mother of PW-4, both residing in the same house. PW-4, in his evidence, has categorically stated that on the fateful day, the

deceased came at about 6 P.M. and asked for fire. Shortly thereafter, the accused came there and questioned the deceased as to whether she had

finished cooking, and took her with him. It is the further evidence of PW-4 that again the deceased came at about 8 P.M. to their house, when

PW-3 asked the deceased whether she had finished her dinner. The deceased gave reply in the negative and as instructed by PW-3, PW-4 gave

food in a vessel to the deceased. The deceased, who came there at that time took the food provided and both of them left that place. It has to be

pointed out that even though PW-4 was subjected to cross examination, the claim of PW-4 that the accused and the deceased left her house at

about 8 P.M. has not been challenged.

Of course, the mother of PW-4 viz., PW-3 has been treated as hostile. A perusal of the testimony of this witness would clearly show that in the

chief examination, she has categorically stated that at 8 P.M., the deceased came to the house and she questioned the deceased as to whether she

had finished her dinner and when reply came in negative, she asked her daughter to give her food. This witness has also deposed that the accused,

who came there took the food so given to the deceased and thereafter the accused told the deceased to go and cook food in their house and that

thereafter, both of them left. In fact, it has to be pointed out that this witness has not been cross examined by the accused. The evidence of PWs-3

and 4 would clearly show that at about 8 P.M., on the day in question, the accused after taking food provided by Pws-3 and 4, left along with the

deceased.

The prosecution relies on the evidence of PW.1. According to him, PW-2 came and informed him on the fateful day at about 9.30 P.M. to the

effect that when PW-2 went to the house of the deceased and called her by name from outside. As there was no reply, she entered the house and

found the deceased dead. The accused who was present inside the house, left that place. According to this witness, when he received this

information from PW.2, he went to the house of the deceased and found the deceased lying dead. Thereafter, he went and gave complaint on the

next day morning as by that time it was late in the night. Inasmuch as PW-2 has been treated as hostile, this circumstance cannot in any way

advance the case of the prosecution and point towards the guilt of the accused.

8.PW-6 is a resident of the same village. He has categorically deposed before Court that on 7.8.87 at about 8 P.M., when he was in Kadathur

Bus Stand, he saw the accused roaming about there and when questioned, he replied that he murdered his wife. According to PW-6, he suggested

to the accused to go and inform the Village Administrative Officer or to the Police. Learned counsel appearing for the accused would contend that

inasmuch as PW-6 was not a close friend or a close relative, it would be rather impossible to accept that the accused would have made the extra

judicial confession after five days. The counsel would further submit that if really the accused made such a confession to PW-6, one would expect

PW-6 to inform about the same to the Police immediately, but that not having been done by PW-6, it would be rather unsafe to rely on the

testimony of PW-6. Time and again, the Supreme Court has pointed out that sometimes even civilized people are insensitive when a crime is

committed even in their presence. They withdraw both from the victim and the vigilante. Such persons keep themselves away unless it is inevitable

since they think that crime like civil dispute is between two individuals or parties and they should not involve themselves. The Supreme Court also

pointed out that instead of doubting the prosecution case for want of independent witness, the Court must consider the broad spectrum of the

prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. The Supreme Court

also made it clear that the Court should bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react

uniformly and their course of conduct may not be of ordinary type in the normal circumstances. In fact, nothing has been elicited in the cross

examination which would persuade this Court to reject his testimony. It is not as if that this witness had any grudge against the accused or in any

way ill disposed of towards the accused. There is not even a suggestion that he has deposed falsely at the instance of police. A bald suggestion put

to this witness to the effect that there is some money dispute, has been emphatically denied. We do not find any reason to reject this testimony of

PW-6. We hold that the accused did make an extra judicial confession to PW.6.

The next circumstance relied on by the prosecution is the evidence of PW-10, the Village Administrative Officer of that place. This witness has

deposed that on 8-8-1987 at about 6 A.M. when he was in his office along with one Venkatesan, the accused came and gave Ex.P-6 statement

and thereafter, he forwarded it along with his Note Ex.P-7. As far as this circumstance is concerned, it has to be pointed out that the occurrence

was on 02.08.1987 and the complaint was given before the police on the next day at about 10 A.M. The Inspector of Police took over the

investigation and visited the scene of occurrence and proceeded with the investigation in a full swing. According to him, even on the very same day,

he went in search of the accused. PW-10, the Village Administrative Officer, who resides just 1 K.M. away from the scene of occurrence,

certainly would have come to know that police has been in search of the accused in connection with the murder of the deceased. In this case, in the

cross examination, PW-10 has categorically stated that he has passed the test prescribed for the Village Administrative Officer and that he knew

very well the Rules and procedure. He would further admit that he had the printed Forms with him, but however, he did not prepare the said Form

and for which he had no reason. The witness has also admitted that he ought to have sent one copy to the Judicial Magistrate, but however, he did

not send it and again for which he had no reason. Under Rule-72 of the Criminal Rules of Practice, ""the Village Magistrates are prohibited from

reducing to writing any confession or statement whatever made by an accused person after the police investigation has begun"". This provision has

been intended to prevent false extra judicial confessions being secured through the help of the village munsif after the commencement of the

investigation. The value of the extra judicial confession becomes less when it is obtained by a person in the position of the Village Munsif after

investigation of the case by the police has started. On a careful examination of the relevant provisions relating to the matter, it is not possible to

state it is illegal or inadmissible in evidence, but what would be the probative value of such confession depends upon facts and circumstances of

each case.

{Also see: [i] Criminal Appeal Nos.304 to 311

of 1991 dated 28th August, 1992 - The Janata

Dal vs. H.S. Chowdhary etc.

[ii] 1995 2 L.W.513 - Raju &

2 others v. State Etc.}

Coming to the present case, as already referred above, PW-10, the Village Administrative Officer, even though knew very well about the

procedure to be adopted, did not do so and for which he had no reason to offer. A suggestion was put to this witness in the cross examination to

the effect that the accused did not appear on 8th August, 1987 as claimed by him and also gave a statement, which has been denied. In the facts

and circumstances of the case, on a careful consideration, this Court is of the view that no reliance can be placed to the alleged extra judicial

confession.

According to the prosecution, the accused and the deceased left the house of PWs-3 and 4 at 8 P.M. In fact, PW-3 has categorically stated

that just before leaving, the accused told the deceased to go home and cook food and that thereafter, both of them left. This part of the

prosecution case has not been challenged by the accused. In the observation mahazar, it is stated that the body of the deceased was found in the

house of the accused and this has not been challenged. This incriminating circumstance certainly points the finger only towards the guilt of the

appellant/accused. However, the accused at the time of questioning u/s 313 Cr.P.C., instead of making an attempt to explain or clarify the

incriminating circumstances inculpating him and connecting him with the crime, by his adamant attitude of total denial of everything, not only lost the

opportunity but stood self condemned. The appellant/accused should have informed the court as to what happened on the night of the fateful day.

It has to be further pointed out, as to where he was on that night and as to what happened on the night of the fateful day in his house were

exclusively within his personal knowledge. The missing link to connect the accused/appellant in this case has been provided by the flat and blunt

denial by the accused and failure to come forward with a statement before court as to what happened on the night of the fateful day. (Please refer:

(i) 2000 SCC 926 - Joseph vs. State of Kerala; (ii) 2000 SCC 1088 - State of Maharashtra vs. Damu)

To sum up, the accused and the deceased left the house of PWs-3 and 4 at 8 P.M. on the fateful day that was on 2nd August, 1987 and that

thereafter the body of the deceased was found in the house of the accused and that on 7th August, the accused made an extra judicial confession

to PW-6. Yet another important aspect of the matter is that the accused when examined u/s 313 Cr.P.C. has not come forward with any statement

as to what happened after 8 P.M. on the fateful day or atleast as to where was he on the night of 2/3-8-1987. We are of the considered view that

the above circumstances proved by the prosecution would form a chain and the failure on the part of the accused to come forward with a plausible

explanation would provide a missing link in the chain and that all the above circumstances would lead to the only irresistible and inescapable

conclusion that it was the accused who caused the murder of the deceased on the night of 2/3.8.1987. We are in entire agreement with the findings

of the learned Sessions Judge.

In the result, the appeal is dismissed. The conviction and sentence imposed on the accused u/s 302 IPC. shall stand confirmed.