Kannadhasan vs State by Inspector of Police

M. Chockalingam, J.—This appeal challenges the judgment of the Additional Sessions Division, Fast Track Court-II, Salem, made in S.C.

No. 216 of 2009 whereby the appellant shown as A2 in the said case was found guilty along with A1 and A3 under Sections 302 r/w 109 and

201 of I.P.C. and awarded life imprisonment along with fine of Rs. 1000/-, in default, to undergo six months rigorous imprisonment for the offence

u/s 302 r/w 109 IPC and three years rigorous imprisonment for the offence u/s 201 IPC.

The short facts necessary for the disposal of this appeal can be stated as follows:

(i) P.W.1 is the Village Administrative Officer of Annadhanapatti Village. On 18.8.200 at about 7.00 a.m. when he was in his office, he was

informed by the Village Assistant Kaveriappan that a dead body of a female was found burried. On receipt of the information, he proceeded to the

spot and after verification, he proceeded to the respondent Police Station and gave a report, Ex.P1.

(ii) On the basis of Ex.P1 report, P.W.12 Sub Inspector of respondent Police registered a case in Crime No. 1096/200 u/s 174 Cr.P.C. The

F.I.R. Ex.P15 was dispatched to the Court.

(iii) An intimation was given to P.W.7,Tahsildar of the said place and he went to the spot along with Assistant and the dead body was exhumed.

He conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared in the inquest report Ex.P7. The dead body

was actually identified by P.W.2, father of the deceased and also P.W.4. Thereafter, the dead body was sent for the purpose of post mortem.

(iv) P.W.8 doctor conducted autopsy on the dead body and found the following injuries:

Perioral swelling with underlying contusion (bluish black) 7 x 2 x 0.5 cms above upper lip and 6 x 3 x 0.5 cms below lower lip. Both lips

swollen and contused on cut section.

Fracture nasal bone with surrounding soft tissue contused (antemortem )

Bluish black contusion medial side of right upper thigh 4 x 2 x 0.5 cms and medial side of left upper thigh 3 x 2 x 0.5 cms. Swelling of labia

majora with haemorrhagic contusion on the cut section (antemortem)

Bluish black contusion frontal region of scalp 4 x 2 x 0.5 cms (antemortem).

The doctor gave his opinion that the deceased would appear to have died out of asphyxia due to smothering.

(v) Pending investigation, A1 appeared before P.W.1, Village Administrative Officer on 10.8.2009 at about 7.00 a.m. and gave extra judicial

confession. The same was recorded by P.W.1 which was marked as Ex.P3. P.W.1 produced A1 before the respondent Police. A1 came forward

to give confessional statement voluntarily and the same was recorded by P.W.12 Investigating officer and the admissible part of the same was

marked as Ex.P5. Thereafter, A1 produced M.O.1 pillow. The same was recovered under Ex.P6 mahazar. Following the same, it was brought to

the notice of the investigating officer about the involvement of A2 to A4. At 11.00 a.m. on 10.8.2009, A2 to A4 were arrested. A2 came forward

to give confessional statement. The admissible part of the same was marked as Ex.P11. A2 produced M.O.6 spade which was recovered under a

cover of mahazar. A3 also gave confessional statement and the admissible art was marked as Ex.P12. A4 produced M.O.7 which was recovered

under a cover of mahazar Ex.P14. All the accused were sent for judicial remand. On completion of the investigation, the investigating officer filed a

final report.

(vi) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges, the prosecution

examined 12 witnesses and relied on 17 exhibits and 8 material objects. On completion of the evidence on the side of the prosecution, the accused

were questioned u/s 313 Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses. They denied them as

false. No defence witness was examined. The trial Court heard the arguments advanced on either side and took the view that the prosecution has

proved the case beyond reasonable doubt insofar as A1 to A3 are concerned and awarded the punishments as referred to above. The trial Court

found that the prosecution has not brought home the guilt of A4 and recorded the order of acquittal.

Advancing the arguments on behalf of the appellant the learned Counsel would submit that in the instant case, the prosecution has no direct

evidence to offer but relied on the circumstantial evidence. The circumstances placed by the prosecution were not proved. Apart from that, the

proved circumstances did not indicate the nexus of the crime with A2 in the alleged occurrence. According to the prosecution, the occurrence has

taken place at about 11.00 p.m. on 1.8.2009. Before the trial Court, the prosecution relied on the extra judicial confession alleged to have been

given by A1 to P.W.1 Village Administrative Officer on 10.8.2009 at about 7.00 a.m. where he has spoken about the involvement of A2 and A3.

The learned Counsel would submit that it is well settled principle of law that the extra judicial confession given by one accused is to be acted upon

against the co-accused, there must be other corroborative piece of evidence, otherwise, it cannot be looked into and it cannot be given any

evidentiary value.

The learned Counsel would further submit that in the instant case, no corroborative piece of evidence is available to the prosecution while relying

on the extra judicial confession. According to the prosecution, three witnesses were examined to speak about the last seen theory. P.W.4, eatable

vendor at the bus stand was examined. According to him, the deceased was a prostitute by provision. Under such circumstances, there could be

so many ill wills and she could have been murdered by somebody. According to P.W.4, he saw A1 and A2 in the company of the deceased at

6.00 p.m. on the day of occurrence. The occurrence has taken place at 11.00 p.m. in the house of A1. Therefore, the statement that A1 and A2

were found in the company of the deceased at 6.00 p.m. cannot be taken as the last seen theory, as there was sufficient interval.

Added further learned Counsel, according to P.W.5, he saw A2 and A3 coming near the place of occurrence where the dead body was burried

at 10.30 p.m. This cannot be taken as a piece of evidence to implicate A2 in the instant case. The trial Judge was not ready to believe the evidence

of P.W.6 since he did not know the identity of A4 and A4 was acquitted. If to be so, the same parameter would be applicable to A1 to A3.

Insofar as A2 is concerned, neither there is direct evidence nor circumstantial evidence.

Added further learned Counsel, in the instant case, the prosecution has not proved the cause of death. According to the post mortem doctor,

the death has been caused by asphyxia due to smothering. There are injuries and abrasions found on the dead body at the time of post mortem.

Thus, the prosecution has no reason to offer how the injuries have been caused. Added further learned Counsel, even according to P.W.5, A1

was found on 9.8.2004 itself. If to be so, according to the prosecution, he appeared before the Village Administrative Officer on 10.8.2004 and

gave such a report could not be believed. The extra judicial confession alleged to have been made by A1 could not be believed. There is no truth

in the prosecution case. Under such circumstances, the recovery of the alleged weapon M.O.6 spade was also nothing but subsequently invented

in order to strengthen the prosecution case. The prosecution has miserably failed to prove its case. Hence, the appellant/A2 is entitled for acquittal

but the trial Court has erroneously found A2 guilty of the offence. Hence, the judgment of the trial Court has got to be set aside.

The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.

It is not in controversy that the dead body of Selvi, daughter of P.W.2 was found burried on 8.8.2009 at 7.00 a.m and the same was informed

to P.W.1 Village Administrative Officer of Annadhanapatti who went to the spot and verified the same and proceeded to the respondent police

and gave a report. On the strength of the said report, a case came to be registered in Crime No. 1096/2009 u/s 174 Cr.P.C and on receipt of the

copy of the F.I.R., P.W.7 Tahsildar has caused excavation and conducted inquest on the dead body of Selvi and subjected the dead body of the

deceased Selvi to post mortem. The doctor who conducted post mortem has categorically opined that she died out of asphyxia due to smothering.

The Court is unable to find any reason why the opinion given by the medical person has got to be looked into with suspicion. Hence, the trial Court

is perfectly correct in recording that the deceased Selvi died out of asphyxia due to smothering and this Court has no impediment in recording so.

True it is, the prosecution had no direct evidence to offer. The prosecution relied on three circumstances to bring home the guilty of A2. Firstly,

the extra judicial confession given by A1 to P.W.1 on 10.8.2009. Secondly, the evidence of P.W.4 to the effect that he saw A1 and A2 in the

company of the deceased at 6.00 p.m. on the date of occurrence. Apart from that, the evidence of P.W.5 that he saw A2 and A3 coming nearby

the house of the A1, the place of occurrence on the day of occurrence. Thirdly, pursuant to the confessional statement given by A2 M.O.6 spade

has been recovered from him in the presence of witnesses.

The learned Counsel would submit that all the circumstances would not constitute any evidence to sustain the conviction. The Court has to

necessary disagree with him. Insofar as the first circumstance, viz., the extra judicial confession alleged to have been given by A1 to P.W.1 Village

Administrative officer is concerned, the Court is mindful of the caution made by the Apex court and the settled principle of law that the confessional

statement given by one accused against the co-accused, in the absence of any corroborative piece of evidence on the material aspects, should not

be relied on to sustain the conviction. In the instant case, the extra judicial confession was admittedly given by A1 where the involvement of A2 and

A3 were spoken about. Hence, in the said circumstances, the Court has to look into the other corroborative piece of evidence. On scrutiny of the

available material, the Court is satisfied that the other corroborative piece of evidence to accept the said evidence of A1 is available in the instant

case. According to P.W.4, who was an eatable vendor in the platform of the Central bus stand, the deceased was a prostitute by profession and

she had close association with A3 during the relevant time and A1 and A2 were also already known to him. According to P.W.4 at about 6.00

p.m. he found A1 and A2 in the company of the deceased. Further, according to P.W.5, he saw both A2 and A3 nearby the house of A1 where

the occurrence has taken place. Thus, from the evidence of P.W.4 and P.W.5, the deceased was found in the company of A1 and A2, 4 or 5

hours prior to the occurrence and she was taken by them. The occurrence has taken place in the house of A1 and nearby the occurrence place,

A2 and A3 were noticed by P.W.4. Hence, both the evidence were strong in favour of the prosecution, one speaking about the last seen theory

and the other speaking about the presence of A2 and A3 nearby the place of occurrence. Therefore, it is for them to explain how they happen to

be there, but A2 has no explanation to offer.

Following the confessional statement, M.O.6 spade has also been recovered from A2. According to the prosecution, it was the weapon used

to dig the pit where the dead body of Selvi was burried subsequent to the occurrence to screen the offence. It was actually the weapon which was

used by the accused. This piece of evidence projected by the prosecution before the trial Court stood in full corroboration with the extra judicial

confession given by A1. Therefore, the contention put forth by the learned Counsel for the appellant that the evidence of P.W.6 was not believed

by the trial court and A4 was acquitted and the same parameter should be applied to the appellant also, cannot be accepted. The Court is unable

to see any reason to look with suspicious the evidence of P.Ws. 4 and 5. They are actually vendors and they have no grudge or in inimical terms

with the accused. It is true that Selvi was a prostitute by profession. She has got close association with A3 during the relevant time. According to

the learned Counsel, there is no motive attributed on A2. The Court is unable to see any merit in this contention. Once it was shown that she was a

prostitute by profession and was in close association with A3, what was the reason for A1 and A2 being in her company at the relevant time

should be well within their knowledge. Therefore, this contention cannot be accepted. The prosecution has placed and proved necessary

circumstances to prove its case which in the considered opinion of the Court, would be suffice to indicate the involvement of A2. Thus, the trial

Court is perfectly correct in finding A2 guilty of the charge of murder and also for screening the murder as the one warranted in law. There is

nothing to interfere with the judgment passed by the trial Court, either factually or legally.

Accordingly, the criminal appeal fails and the same is dismissed confirming the judgment of conviction and sentence passed by the trial Court.