Marimuthu, Kaveriammal and Rathinammal vs State

M. Chockalingam, J.—Challenging the judgment of the Court of Sessions, Dharmapuri, made in S.C.No.111 of 1996, the appellants, who

were arrayed as A-1, A-2 and A-3, have brought forth this appeal.

A-1 stood charged u/s 302 IPC., while A-2 and A-3 stood charged u/s 302 read with 114 IPC. and A-1 also stood charged u/s 506(ii) IPC.

The learned Judge found A-1, A-2 and A-3 guilty under Sections 302 and 302 read with 114 IPC. and awarded life imprisonment on each of

them and in respect of the charge u/s 506(ii) IPC. imposed upon A-1, he was acquitted by the learned trial Judge,

The short facts necessary for disposal of this appeal are:-

(a) A-3 is the wife of the deceased and A-2 is their daughter. They were living at Echampatti village along with P.W.4, who is the brother of the

deceased. The deceased had some acres of land, over which, there was a dispute between himself and his neighbour, one Krishnan. A-1 was an

associate to the quarrel for a long time. P.W.1, who was doing coolie work in the same village, used to visit the house of the deceased and also

used to stay during night hours. There were often quarrels between the deceased and his wife, A-3, since the deceased used to come in a drunken

state. About 1 1/2 months prior to the date of occurrence, the deceased sold his lands. After the sale of the properties, out of the sale proceeds,

part of the amount was spent for the purpose of jewels and the rest of the amount, viz., Rs.25,000/-, was kept with the family. Prior to the

occurrence, due to a quarrel, it is his wife, A-3, who took the amount of Rs.25,000/- and went to the other daughter''s house. On coming to know

about the same, the deceased went to the house of his daughter and beat A-3. A-3 sent back the amount through the sister of the deceased and he

also received the amount. However, the quarrel between them was not over. Hence, A-2 and A-3 found it very difficult to carry on with the

deceased and they conspired to murder him. A-1 was also prepared to assist them and demanded Rs.2,000/- from them for finishing off the

deceased.

(b) On the date of occurrence, during night hours, A-1 accompanied by A-2 and A-3 went to the house of the deceased. They got inside the

house through the back door. On the same night, P.W.1, who after finishing his work, came to the house of the deceased to take his bed and was

lying by his side, and at that time, when the deceased and P.W.1 were sleeping, all the three accused got inside the house. A-1 armed with a

koduval, when A-2 and A-3 were standing by the side of the deceased. A-1 cut the deceased on his head and thus caused his death. P.W.1 stood

up to see all the three accused immediately. All of them went outside. A-1 advised A-2 and A-3 to go to the police station and give a complaint.

(c) Accordingly, on the next day morning, i.e., on 3.9.1995 at 5.00 a.m., when P.W.13, Inspector of Police, Dharmapuri Town Police Station,

was on duty, A-2 and A-3 went to the police station and gave a complaint, which was registered on the basis of the report given by A-3. The said

report is marked under Ex.P-3. A case in Crime No.871 of 1995 came to be registered u/s 302 IPC. The express first information report under

Ex.P-8 was sent to Court. P.W.13, the Inspector of Police, took up the investigation, proceeded to the spot and made an inspection of the scene

of occurrence in the presence of two witnesses and prepared and observation mahazar under Ex.P-19 and a rough sketch under Ex.P-20. He

conducted inquest on the dead body of the deceased in the presence of Panchayatdars and witnesses and prepared inquest report under Ex.P-21.

The blood-stained clothes, which were marked as M.Os.8 to 14, were recovered under mahazar in the presence of witnesses. The dead body

was sent to hospital with a requisition to conduct post-mortem.

(d) On receipt of the requisition under Ex.P-1, P.W.6, doctor, attached to Government Hospital, Dharmapuri District, conducted autopsy on the

dead body of Radhakrishnan and found the following external injuries:-

i. A lacerated stab injury 1/2"" x 1/2"" x 2"" below right nostril opening.

ii. Lacerated stab injury 1/2"" x 1/2"" x 2"" below right side nose just lateral to first injury.

iii. Lacerated stab injury 1/2"" x 1/2"" x 3"" below right eye brow.

iv. Lacerated stab injury 1/2"" x 1/2"" x 3"" below right eye.

v. Lacerated stab of right ear lobe 2"" size wound.

vi. Cut injury 3"" x 1/2"" x 1"" over right frontal region of scalp.

vii. Abrasion 1"" x 1"" over right elbow.

The doctor issued the post-mortem certificate under Ex.P-2 and gave his final opinion that the deceased died of shock and haemorrhage.

(e) During the course of investigation, A-2 and A-3 were arrested on 4.9.1995 and their statements were recorded by the investigating officer. A-

1 was arrested on the very day at 10.30 a.m. He volunteered to give a confession statement, which was recorded by the investigating officer, and

the admissible portion of the said statement is marked under Ex.P-15 and pursuant to which, M.O.6, koduval, and M.O.7, blood-stained shirt,

which were produced by him, were recovered by the investigating officer under a cover of mahazar. At the time of investigation, an application

under Ex.P-3 was filed before the Court of Chief Judicial Magistrate, Krishnagiri, in order to record the statement of A-2 before the Judicial

Magistrate.

(f) Thereafter, A-2 was produced by the police authorities on 14.9.1995 before P.W.7, Judicial Magistrate No.II, Dharmapuri, who, after

following the procedures or formalities and after giving caution, issued a direction to the police authorities to produce A-2 on 15.9.1995.

Accordingly, A-2 was produced before P.W.7 and after following the formalities, the Judicial Magistrate recorded the confession statement of A-

2, which is marked as Ex.P-6.

(g) In the meantime, the investigating officer sent all the material objects, which were recovered from the place of occurrence from the dead body

as well as from A-1, to the Court with a requisition to subject the same for chemical analysis and later, received both the chemical analysis report

and the serology report, which were placed before the Court. On completion of the investigation, the final report was filed against the appellants

and the case was committed to the Court of Sessions.

In order to substantiate the charges levelled against the appellants, the prosecution examined 13 witnesses and relied on 22 exhibits and 14

material objects. On completion of the evidence on the side of the prosecution, all the accused/appellants were questioned u/s 313 of the Cr.P.C.

as to the incriminating circumstances found in the evidence of the prosecution witnesses. The accused flatly denied them as false. Neither any

defence witness was examined nor any documents were marked on their side.

After hearing the arguments advanced by both sides, and after making a scrutiny of the materials available, the lower Court found A-1 guilty

under the charge of murder and awarded life imprisonment and also found A-2 and A-3 guilty for abetment of murder and awarded life

imprisonment referred to above, which is the subject matter of challenge before this Court.

The learned counsel appearing for the appellants inter alia raised the following points:-

The specific case of the prosecution case was that on the date of occurrence, i.e., on 2.9.1995, A-1 attacked the deceased with a koduval and

that A-2 and A-3 have abetted the offence and the only witness, according to the prosecution, was P.W.1. But, P.W.1, at the time of examination

before the Court, has given a go by to the prosecution case and subsequently, he has not implicated any one of the accused and thus, what was

available for the prosecution was Ex.P-6, the confessional statement, given by A-2 before the Judicial Magistrate, P.W.7, and the other piece of

evidence, according to the prosecution, was the recovery of M.Os.6 and 7, the koduval and the blood-stained shirt from A-1.

The learned counsel, attacking the judicial confession alleged to have been made by A-2 before P.W.7, would submit that it is not in

accordance with law, nor was it one after following the procedural formalities, which are mandate u/s 164 of the Cr.P.C. and so long as the

mandatory provisions of Section 164 Cr.P.C. are not strictly complied with, no evidentiary value can be attached to such confession.

In support of his contention, the learned counsel relied on the decisions reported in (1) Air 1978 Supreme Court page 1574 (Chandran -Vs-

The State of Madras); (2) 1995 Supreme Court (Crl.) page 323 (Shivappa -Vs- State of Karnataka); (3) 1996 Supreme Court Cases page 1118

(Tulsi Singh -Vs- State of Punjab); (4) 2001 Supreme Court Cases 652 (Dhanajaya Reddy -Vs- State of Karnataka) and (5) 2002 Supreme

Court Cases 673 (Ayyub -Vs- State of U.P.).

Pointing to the decisions of the Apex Court referred to above, the learned counsel would submit that what is required is a certificate, as one

contemplated under the provisions of Section 164(4) of the Cr.P.C., and the same has not been strictly complied with in this case, and it is in

violation of the mandatory provisions and hence, it cannot be called as a judicial confession, as it is bad in law. Added further, the learned counsel,

that M.Os.6 and 7 were recovered pursuant to the above said confessional statement alleged to have been given by A-2 and a perusal of the said

evidence would clearly indicate that it is only artificial and even planted to suit the prosecution case. In such circumstances, it should not be given

any significance at all and on this ground, the lower Court should have found the accused not guilty, as the prosecution has not proved the case.

But on the contrary, the lower Court has acted upon the above piece of evidence erroneously and found the accused guilty and hence, the

judgment of the lower Court has got to be set aside.

The Court heard the learned Additional Public Prosecutor appearing for the State on the above contentions.

It is not in controversy that the husband of A-3, the deceased, was attacked on the night of 2.9.1995 and the death was due to homicidal

violence. Following the inquest made by the investigating officer, a requisition was given to the doctor, P.W.6, attached to Government Hospital,

Dharmapuri, for conduct of autopsy, and the dead body was also subjected to post-mortem. The doctor has given his final opinion that the

deceased, Radhakrishnan, died out of shock and haemorrhage and a certificate has also been issued to that effect, which is marked by the

prosecution under Ex.P-2. Hence, there is sufficient evidence to hold that the deceased, Radhakrishnan, died out of homicidal violence. It is also

pertinent to point out that the appellants have never questioned this fact that Radhakrishnan, the deceased in this case, died out of homicidal

violence either before the trial Court or before this Court and thus, it could be safely concluded that Radhakrishnan, the deceased, died out of

homicidal violence.

Insofar as the evidence adduced by the prosecution, in order to substantiate the charges levelled against the appellants are concerned, the

Court is of the considered view that there was thorough lack of evidence in the instant case. The prosecution placed much reliance on the direct

evidence through P.W.1 by stating that P.W.1 was the person, who was lying by the side of the deceased at the time when A-1 attacked him and

A-2 and A-3 stood by their side. A perusal of the evidence would clearly indicate that P.W.1 has not implicated any one of the accused, but he

would rather say that three persons were standing, and he did not know whether they are male or female. Under such circumstances, the lower

Court should have rejected the said evidence.

The Court is also able to see sufficient force in the contention put forth by the learned counsel for the appellants that the mandatory provisions

u/s 164(2) and (4) of the Cr.P.C. have not been complied with. It would be more appropriate to refer to the provisions of Section 164(2) and (4)

of the Cr.P.C., which are as follows:

Recording of confessions and statements.-

(2)The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that,

if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the persons

making it, he has reason to believe that it is being made voluntarily.

(4) Any such confession shall be recorded in the manner provided in Section 281 for recording the examination of an accused person and shall be

signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:

I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as

evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the

person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.

(Signed) A.B.,

Magistrate"".

From a reading of the said provisions, it would clearly indicate that the object for introduction of these provisions is to ensure that the

confessional statement given by the accused before the Judicial Magistrate, was made voluntarily, and it was not tainted with any invalidating

factors namely undue influence or misrepresentation or false assurance, and in order to make it perfect, the Magistrate is expected to put all

cautions to the accused. In order to assure that the said confession was made voluntarily and can be acted upon, the said confession should contain

a certificate, what is one contemplated u/s 164(4) of the Cr.P.C.

The Apex Court had an occasion to consider the aspect of the matter. It has been held in 1995 SCC (Crl.) 323 (Shivappa v. State of

Karnataka), that the Inquiring Magistrate has to ascertain necessarily the voluntary character of the confession and he must comply not only in the

form, but also in essence, with the provisions of Section 164 Cr.P.C. and the Rules and guidelines framed by the High Court and non compliance

thereof renders the confession unworthy of credence. Apart from that the Magistrate must also leave such material on record as would show that

the confession was voluntary and statutory provisions were complied with.

In 1996 SCC (Crl.) 1118 (Tulsi Singh -vs- State Of Punjab), it has been held that if the confession is not voluntary, then, it cannot be acted

upon and mere endorsement in accordance with Sub Section (4) after recording it would not fulfil the requirement of Sub Section (4).

In 2002 SCC (Crl.) 673 (Ayyub -vs- Abdul Jabbar), it has been held so.

Even as regards the confession made u/s 164 Cr.P.C., the Court has held that in order to make the confession statement under the Act, it must

be proved that the same was voluntarily made by the maker. It would, of course, be necessary in every case to put the questions prescribed by the

High Court circulars but the questions intended to be put under Sub section(2) of Section 164 Cr.P.C. should not be allowed to become a matter

of a mere mechanical enquiry. No element of casualness should be allowed to creep in and the Magistrate should be fully satisfied that the

confessional statement which the accused wants is in fact and in substance voluntary.

In 2001 SCC (Crl.) 652 (Dhanajaya Reddy v. State of Karnataka) a Bench of the Supreme Court had an occasion to consider the nature of

the act to be performed by a Magistrate, where it has been held, the function of the Magistrate in recording confession u/s 164 of the Code is a

very solemn act which he is obliged to perform by taking due care to ensure that all the requirements of Section 164 are fully satisfied. The

Magistrate recording such a statement should not adopt a casual approach. Besides ensuring that the confessional statement being made before

him is voluntary and without pressure, the Magistrate must record the confession in the manner laid down by the Section.

From the very reading of all the decisions referred to above, it would be quite clear that the function of the Magistrate in recording confession

u/s 164 of the Cr.P.C. is a solemn Act and he must follow the procedural formalities and to ensure that all the requirements of the provisions are

complied with properly. In the instant case, a perusal of Ex.P-6 would clearly indicate that initially when A-2 was produced before the Court on

14.9.1995, the Magistrate cautioned the accused and has put forth all that is required u/s 164(2) and then has given sufficient time to think about

and also given a direction to the police authorities to produce the accused on the next day. Accordingly, on 15.9.1995, after following the

procedural formalities, the Magistrate has recorded the confessional statement given by the accused, but he has not given a certificate as one

required under Sec. 164(4) of the Code, which, as could be well seen from the decisions above mentioned, was mandatory. Under such

circumstances, the Court is of the considered opinion that the Magistrate has not strictly followed all the requirements of the provisions

contemplated in order to ensure that the confessional statement given by the accused was voluntary in nature. In such circumstances, the document,

Ex.P-6, which according to the prosecution, is the judicial confession, falls short off a judicial confession, as contemplated u/s 164(4) of the Code.

Therefore, it is of no legal significance in the hands of the Court.

Leaving all these things referred to above, what was available for the prosecution was the recovery of M.Os.6 and 7 pursuant to the

confessional statement made by A-1. A perusal of the evidence available in respect of the alleged confession and the subsequent recovery would

clearly indicate that they are artificial. Under such circumstances, the contention put forth by the counsel for the State that the Lower Court has

acted on the confessional statement rightly cannot be accepted. It is needless to say that in a given case, where there is a genuine confession made

by an accused, it would be suffice to base a conviction on the same, but, before following the same, and sustaining the conviction, the Court has to

look into and take care, whether all the provisions as contemplated under 164 have been strictly complied with. In the absence of the same, it

would be unsafe to sustain the conviction. In the instant case, the only material available for the prosecution was the judicial confession made by the

accused, which, in the opinion of the Court, is not in accordance with law.

In the above circumstances, the Court has to necessarily set aside the judgment of the trial Court by upsetting the same. Accordingly, the

judgment of the trial Court is set aside. The appeal is allowed. It is reported that the appellants are on bail. Their bail bonds shall stand cancelled.