Panchavarnam vs State

Govardhan, J.—The sole Appellant was the accused before the learned Sessions Judge, Ramanathapuram at Madurai in S.C. No. 196 of

1987.

The accused was charged for an offence u/s 302 of the Indian Penal Code of having committed the murder of his wife Chellammal on 25-4-

1986 at about 4.30 P.M. in his field due to family dispute, by cutting her with Aruval on her neck, and buried the dead body in the bank of the

channel and has also thereby committed an offence punishable u/s 201 of the Indian Penal Code. The learned Sessions Judge, on assessment of

the evidence in the trial, has found the accused guilty under Sections 302 and 201 of the Indian Penal Code, convicted him thereunder and

sentenced him to life imprisonment u/s 302 of the Indian Penal Code and also sentenced him to undergo rigorous imprisonment for two years for

the offence u/s 201 of the Indian Penal Code and has ordered the sentences to run concurrently.

The case of the prosecution may be stated briefly as follows: The wife of the accused had eloped with one Ramachandran leaving her husband

and children. She was brought back to the accused to live with him, by one Valavandhan. The accused was not willing to take her back. P.W.3

and one Muniyandi have advised him to take her back in the interest of the children. But, P.W.3 has stated in his evidence that he did not know

anything about the occurrence and therefore, he has been treated as hostile. According to the prosecution, the deceased was picking up quarrel

with her husband often and even ten days prior to the occurrence, she quarrelled with her husband and the prosecution has examined P.W.4 to

prove the same. But, P.W.4 has stated that except the fact Chellammal was dead, he does not know anything and therefore he was also treated as

a hostile witness. The prosecution contends that the accused was waiting for an opportunity to do away with her and on 25-4-1986 at about 3-30

P.M., he took his wife to his field where chillies were grown for the purpose of picking up Kotta Muthu and their children were in his house at that

time. According to the prosecution, in the field, the deceased was talking in a manner not expected of her and the accused who was waiting for an

opportunity to do away with her, cut her on the backside of the neck with the Aruval he was having and Chellammal died. It is also the prosecution

version that the accused dug a pit on the bank of the channel and buried her and went home at about 6.30 P.M. When he was asked by his

daughters as to where their mother is, the accused is said to have replied that she had gone somewhere after picking up a quarrel with him. The

prosecution further contends that the children were pressing to know about the whereabouts of their mother and the accused went out near the

statute of Thevar and his daughter asked the Thalayari of that village viz., P.W.2 to enquire the whereabouts of their mother with the accused,

P.W.2 took the accused aside and enquired him about the whereabouts of his wife. According to P.W.2, the accused gave an extra judicial

confession to him in which, he has stated that he had cut his wife and buried her in the chilli filed. P.W.2 took the accused to the house of P.W.1

the Village Administrative Officer at about 8 P.M. and informed him the information conveyed to him by the accused. P.W.1 in his turn enquired

the accused. According to P.W.1, the accused gave an extra judicial confession to him in the presence of P.W.2 to the effect that on that day at

about 4.30 P.M., he had murdered his wife by cutting her and buried her in the field itself. P.W.1 has recorded the same as narrated by the

accused, read over the same to him and after the accused acknowledged the correctness of the same, he had obtained the left thumb impression of

the accused in it and it is Ex.P-1. P.W.1 had also obtained a statement from P.W.2 under Ex.P-2 when he produced the accused to him P.W.1

prepared a report under Ex.P-3. P.W.1 took the statements under Exs.P-1 and P-2 and his report Ex.P-3 along with the accused and P.W.2 to

Kamuthi Police Station and handed over the same to the Inspector who was there, at about 11 P.M. According to P.W.1, after the 8''O clock

bus, from his village, the next bus to Kamuthi is only at 10.45 P.M. P.Ws.1 and 2 would say that the accused was examined by the Inspector and

the statement given by the accused was reduced to writing and in that statement both of them have attested.

P.W.8 the Sub-Inspector of Police of Kamuthi Police Station has stated that on 25-4-1986 at 11 P.M., P. Ws.1 and 2 brought the accused

and produced him before him with the reports under Exs.P-1 to P-3 and he had registered a case in Crime No. 60/1986 under Sections 302 and

201 of the Indian Penal Code on the basis of those reports, prepared an express first information report under Ex.P-12 and sent copies of the

same to his higher officials. P.W.8 has seized the towel M.O.13, the accused was wearing.

On receipt of the information regarding the occurrence, P.W.13 took up, investigation in this case and examined P. Ws.1 and 2. He had also

examined the accused and a statement was recorded by him, the admissible portion of which is Ex.P-9. According to P. Ws.1, 2 and 9, the

accused had offered to take them to the place where he has buried his wife and show it to them and this portion of the statement is Ex.P-9.

P.W.13 has sent information the next day morning to the Tahsildar to the effect that a body has to be exhumed and the Tahsildar has arrived at the

scene of occurrence at 7-30 A.M. on 26-4-1986. P.W.13, prepared an observation mahazar under Ex.P-4 attested by P. Ws.1 and 2. Ex.P-18

is the rough sketch drawn by P.W.13. P.W.12 the Tahsildar of Kamuthi would say that on 26-4-1986 at about 7.30 A.M., he went to the scene

of occurrence on a request made by the Inspector of Police, Kamuthi to be present in the place where they intend to exhume the body of the

deceased Chellammal who has been buried there and the Inspector prepared an observation mahazar and rough sketch in the scene of occurrence.

It is also stated by P.W.12 that when he examined the accused, he gave a statement and he recorded the same under Ex.P-17. P. Ws.1, 2, 12 and

13 and P.W.7 would say that the accused pointed out a place as the place where he had buried the body of Chellammal and it was dug by P.W.7.

P.Ws.7, 12 and 13 would say that when the place shown by the accused was dug by P.W.7 in that place, a pair of chappals-M.O.1- series, and

one palmyrah palaimattai were there and they were recovered by the Inspector under a mahazar Ex.P-4 attested by P.Ws.1 and 7. P. Ws.7 and

13 would also say that the Inspector seized the bloodstained mud-M.O.3 and sample mud M.O.4 dried chilli plant with bloodstained M.O.5 and

sample chilli plant-M.O.6 under a mahazar and in that mahazar also P. Ws.1 and 7 attested. According to P.W.7, the accused took out M.O.7-

spade from the place adjacent to the place where the body of Chellammal was buried and it was also recovered under a mahazar Ex.P-7 attested

by P. Ws.1 and 7. P. Ws.7, 12 and 13 have stated that in the place where P.W.7 dug, is directed by the Tahsiidar, in pursuance of he pointing out

of the place by the accused, he dead body of Chellammal was found. According to P.W.12, the body was identified by he children of Chellammal

and the Village Administrative Officer. After the body was taken out from the pit and kept outside by P.W.7, P.W.13 held an inquest on the body

of the deceased and prepared an inquest report s(sic) is spoken by P. Ws.12 and 13. Subsequent to the inquest report, P.W.13 has handed over

the body to P.C. 792 Joseph with a requisition under Ex.P.-10 to the Medical Officer to conduct the post-mortem on the body of Chellammal.

P.W.5, the Medical Officer attached to the Government Hospital, Kamuthi, on receipt of the requisition from the Inspector of police to conduct

the post-mortem on the body of the deceased Chellammal in the place where has been exhumed, he went to the place here the body was exhumed

and conducted the post-mortem there itself between 12.05 noon and 1.10 P.M., and prepared the post-mortem report under Ex.P.-11. The

following injuries were found on the body of the deceased Chellammal:

A lacerated wide gap wound on the VIIth servical(ksic) vertebra starting from spine to right side of neck upto the level of right ear 6"" x 4"" x 1/4

(sic) cutting spinal cord.

A lacerated wide gap wound 6"" x 3"" x 1/4"" in the front side of neck starting from the lower border of first wound cutting muscles on right side of

neck. Cutting trachea, thyroid cartilage with fracture of hyoid bone, right carotid artery.

A lacerated wound 4"" x 2"" x 1"" in left side of neck upto the level of left ear.

Heart: Chamber empty. Stomach: partly digested food. Intestine: digested food. Bladder: Empty.

According to P.W.5, the injuries on the body could have been caused by a weapon like M.O.7 and injury Nos. 1 and 2 with the corresponding

internal injuries will definitely cause the death of the deceased.

P.Ws.12 and 13 would further say that the accused took them to his house and from the roof where he bad kept the Aruval took it out and

produce the same to the Inspector and it was seized by the Inspector under a mahazar Ex.P-8 attested by P. Ws.1 and 7. M.O.8 is the Aruval.

P.W.13 then sent the material objects seized by him, to the Court. On 16-5-1986, he gave a requisition under Ex.P-13 to send the material

objects seized, for Chemical examination.

P.W.10 the head Clerk attached to the Judicial Second Class Magistrate''s Court. Mudhukulathur would say that on 6-5-1986, the material

objects 1 to 8 and 13 were received and on 29-8-1986, M. Os. 9 to 12. were received. He would also say that P.W.13 gave a requisition under

Ex.P.13 to send the material objects for chemical examination and accordingly, M. Os.2 to 11 and 13 were sent to the Chemical Examiner with a

covering letter under Ex.P-14. The Chemical Examiner''s report is Ex.P-15 and the Serologist''s report is Ex.P-16.

P.W.6 had seized the jacket M.O.9, Saree-M.O.10, skirt-M.O.11 and two gold nose-screws-M.O.12 series from the body of the deceased

Chellammal after the post-mortem was over and handed over them in the Police Station on 26-4-1986.

The accused when questioned u/s 313 of the Code of Criminal Procedure, with regard to the circumstances appearing against him in evidence,

has denied the prosecution case. He did not examine any witness on his behalf.

On the materials placed before him, the learned Sessions Judge has found the accused guilty of the offences with which he has been charged,

convicted him thereunder and sentenced him to undergo the imprisonment as aforesaid.

The learned Counsel appearing for the Appellant Mr. G. Desinghu has argued that in this case of circumstantial evidence against the accused,

there are number of circumstances which are not properly explained by the prosecution and the Appellant is therefore entitled to the benefit of

doubt. He has also argued that at the most, the prosecution case may only show that the accused has committed the offence out of grave and

sudden provocation and therefore, the conviction u/s 302 of the Indian Penal Code will have to be set aside and the Appellant may be made liable

for an offence u/s 304 Part I, I.P.C. The learned Public Prosecutor Mr. Sriramulu would on the other hand argue that even though the case against

the Appellant is one based on circumstantial evidence, the circumstances appearing against the accused form a complete chain without any missing

link and they go to show that it is only the accused and nobody else except the accused has committed the murder of his wife Chellammal due to

family dispute and there is no room to hold that the accused is entitled to the benefit of doubt, or that he had committed the offence out of grave

and sudden provocation given to him by the deceased in order to bring the offence committed by him as one punishable u/s 304(Part I) of the

Indian Penal Code. Before proceeding further, I am of opinion that it is necessary to bear in mind that in a case of circumstantial evidence against

an accused person facing a criminal trial, it is for the prosecution to prove beyond all reasonable doubt that each of the circumstances relied by the

prosecution should be proved in such a way that there is no missing link between one circumstance and the other in such a way that the entire

circumstantial evidence forms one complete chain in such a way that it establishes that it is only the accused who is facing the trial who has

committed the offence with which he has been charged and nobody else.

Now, let us consider the rival contentions of the learned Counsel appearing for the Appellant Mr. Desinghu and the learned Public Prosecutor

Mr. Sriramulu in the light of the evidence available before us. The learned Public Prosecutor Mr. Sriramulu has argued that in this case, the accused

has committed the offence of murder and also the offence of causing disappearance of evidence of the offence of murder is proved by the extra-

judicial confession given by the accused to P.W.2 at the first instance and then to P.W.1 and finally before the Tahsildar at the time of exhumation

of the body of Chellammal and this extra-judicial confession of the accused is corroborated by the fact of the exhumation of the body of

Chellammal on account of the pointing out of the place of burial, by the accused and this is a case in which the prosecution has established beyond

all reasonable doubt that the accused has committed the murder of his wife on account of her immoral character and there are no extenuating

circumstances to hold that the accused is entitled to benefit of doubt or the accused has committed any other offence which is lesser in gravity than

murder. According to the prosecution, the entire case rests upon the extra-judicial confession said to have been given by the accused to P. Ws.1,

2 and 12 and his statement to P.W.13 which lead to the recovery of the body of the deceased and the weapon, viz., M.O.8. The prosecution has

not examined any witness who had seen the occurrence. The entire case rests upon circumstantial evidence against the accused placed before the

Court. Before proceeding further. I am of opinion that it is expedient to recollect the decision reported in Kishore Chand Vs. State of Himachal

Pradesh, wherein Their Lordships have held as follows:

In a case of circumstantial evidence, all the circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently

established. All the facts so established should be consistent only with the hypothesis of the guilt of the accused. The proved circumstances should

be of a conclusive nature and definite tendency, unerringly pointing towards the guilt of the accused. They should be such as to exclude every

hypothesis but the one proposed to be proved. The circumstances must be satisfactorily established and the proved circumstances must bring

home the offences to the accused beyond all reasonable doubt. It is not necessary that each circumstance by itself be conclusive but cumulatively

must form unbroken chain of events leading to the proof of the guilt of the accused. If those circumstances or some of them can be explained by

any of the reasonable hypothesis then the accused must have the benefit of that hypothesis.

The circumstances appearing against the accused in the present case may be grouped under three categories viz., extra-judicial confession, motive,

and corroborating evidence to the extra-judicial confession. The learned Public Prosecutor has argued that as per the decision reported in Piara

Singh and Others Vs. State of Punjab, , law does not require that the evidence of an extra judicial confession was proved by an independent

witness who has a responsible officer and who bore no animus against the Appellant it has to be accepted. There cannot be any difference of

opinion with regard to the above proposition of law canvassed by the learned Public Prosecutor. If it is established that the extra judicial confession

is proved by independent witnesses who are responsible officers and who bore no animus against the Appellant, certainly it has to be accepted and

acted upon. Therefore, we have to see whether the extra-judicial confession of the accused was given by him to independent witnesses who are

responsible officers. It has been held in the decision reported in State of U.P. Vs. M.K. Anthony, as follows:

If the evidence about extra-judicial confession comes from the mouth of witness/witnesses who appear to be unbiassed, 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 for 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, then after subjecting the evidence of the witness to a rigorous test

on the touchstone of credibility, if it passes the test, the extra-judicial confession can be accepted and can be the basis of a conviction.

Therefore, before accepting the extra-judicial confession, we have to see whether the witnesses who speak about the extra-judicial confession of

the accused withstand the rigorous test on the touchstone of credibility and passes the said test.

According to P.W.2 to whom the accused is said to have given an extra-judicial confession, he saw the daughters of the accused crying and

one of the daughters viz., Karupayee informed him that his father took his wife to the chilli field and then came alone and he should make enquiry of

the same. It is only at the request of Karupayee the daughter of the accused, P.W.2 took the accused aside and questioned him as to why he did

so and it is only in reply to the same, the accused is said to have given an extra-judicial confession to the effect that he had cut his wife and buried

her in the field. The very statement of P.W.2 that he questioned the accused as to why he did so looks as if, P.W.2 was aware of the death of

Chellammal even before he questioned the accused. Otherwise, he would have asked the accused, where was Chellammal. When it is the

prosecution case that P.W.2 questioned the accused at the request of Karupayee to question her father, there is no reason as to why Karupayee

or her younger sister were not examined by the prosecution to say that their father took their mother in the afternoon to the field and he came home

alone in the evening and they questioned him. The non-examination of Karupayee or her sister by the prosecution is a missing link in this case

based on circumstantial evidence since it is their specific case that it is only at the request of Karupayee. P.W.2 questioned the accused and the

accused gave the extra judicial confession. It is not as if the accused went in search of P.W.2 and gave the confession statement. The genesis for

the questioning of the accused by P.W.2 itself is far from satisfactory. According to P.W.2, he had taken the accused to P.W.1 and asked him to

question the accused and the accused gave a statement which was recorded by P.W.1. According to P.W.1, when he was in his house at about 8

P.M., on 25-4-1986, P.W.2 brought the accused and he questioned the accused and the accused gave a statement in the presence of P.W.2

which was reduced to writing by him and it is Ex.P-1. During cross examination, P.W.1 states that there is a register called Crime Memo provided

to him to record the information received by him with regard to an offence and in that Crime Memo, he used to record the information received by

him with two copies and the original has to be sent to the Tahsildar, first copy to the Police and the third copy will be in the Register with him. It is

also stated by him that he has to affix his signature as well as his Official Seal in all the three copies. But, he would admit that in Exs.P-1 and P-2,

he had not affixed his Official Seal. He has prepared Ex.P-3 his report in a white paper and without the Official Seal in it, he has handed over the

same to the Police, is admitted by him. When the Village Administrative Officer has been provided with a Register called Crime Memo in which he

has to record the information received by him and send copies of the same to the authorities with his signature as well as his Official Seal, there is

no reason given by P.W.1 as to why he had chosen to record Exs.P-1 to P-3 in plain paper and deliver the same in the Police Station. It is not as

if P.W.1 met P.W.2 and the accused anywhere outside his house and therefore, he did not prepare the report in the Official Register viz., Crime

Memo. The recording of the alleged extra judicial confession of the accused, by P.W.1 in a white paper and entrusting it to the police with his

report throws some suspicion on the evidence of P. Ws.1 and 2 that the accused gave a voluntary confession statement to them. Coming to the

confession statement under Ex.P-1 recorded by P.W.1, a reading of the same would show that the accused is said to have given a detailed report

about his family, the separate living of his eldest son with his wife, the missing of his second son, the elopement of the deceased with

Ramachandran, the steps taken by Valavandhan to bring Chellammal to him, his refusal to take her back, the advice given to him by P.W.3

Mayazhagan and others and his taking back his wife as per the advice, in detail. In the statement under Ex.P-1, the accused has also stated in

detail the frequent quarrels between his wife and himself, his decision to cut his wife and his waiting for an opportunity for cutting her and taking

Chellammal to the field on that date at about 3.30 P.M. When a person gives a confession statement with regard to the offence which he had

committed, one would expect him to say that he has done it either by cutting or by stabbing etc. It is highly improbable and looks very artificial for

a person who is said to have committed the murder of his wife to give a detailed history of the family and other particulars in the above statement.

The particulars in Ex.P.1 regarding the separate living of the eldest son of the accused with his wife, the missing of the second son are unnecessary

except to show that the accused was living with his wife and daughters alone at the time of occurrence. A reading of this statement under Ex.P-1,

does not appear to be a confessional statement given by the accused after murdering his wife; but it appears to be a narration of the prosecution

version reduced to writing by P.W.1 at the instance of somebody else. It was suggested to P.W.1 during cross examination that the accused has

not given any statement but the documents under Exs. P-1 to P-8 were prepared in the Police Station and the case has been foisted on the

accused. This suggestion cannot be brushed aside holding that it is only a suggestion without any merit. Apart from giving the history of the family

and the details of the other members in the family, the accused is said to have stated in Ex.P-1 as well as Ex.P-17, the extra judicial confession said

to have been given by him to P.W.12, that he was waiting for ten days to cut his wife Chellammal. Exs. P-1 and P-17 read as if the accused has

determined the mode of killing his wife also. One would expect the accused to say that he wanted to kill his wife and was waiting for an

opportunity. But, the recitals in Exs. P-1 and P-17 as if that the accused was waiting to cut Chellammal also throws doubt on the genuineness of

these two documents. There are other modes of killing also like stabbing, poisoning or strangulation. If the intention of the accused was to kill

Chellammal, there appears to be no particular reason for him to state the mode of killing by cutting her even ten days prior to the occurrence. I am

of opinion that by writing in Exs. P-1 and P-17 that the accused has stated he was waiting for ten days to cut Chellammal, the prosecution has

given room for suspicion with regard to the genuineness of these two documents. P.W.2 says that the children of the accused had informed him

that their father was saying that he will cut his wife. The emphasis made on the mode of murdering Chellammal viz., cutting her, given by P. Ws.1

and 2 give room to hold that the version of the prosecution that the accused gave an extra judicial confession to them can only be the fertile

imagination of somebody else.

P.W.2 has stated that he had signed Ex.P-2 the report prepared by P.W.1. He has also stated that when the accused gave a confession

statement, the admissible portion of which is Ex.P-9, he had signed in that also. The signature of P.W.2 in Exs.P-2 and P-9 vary in such a way that

this witness has not come forward with true version. When P.W.2 says that he had signed Exs.P-2 and P-9 and his alleged signatures in these two

documents vary distinctly, it cannot be considered that P.W.2 is an uninterested independent witness and his evidence has to be given credence by

the Court. When it is admitted by P.W.1, that he had recorded the extra-judicial confession of the accused in plain paper and not in the crime

memo (Register) as expected of him, considerable doubt is created to the effect that the version of the accused that Ex.P-1 was prepared in the

Police Station at the instance of somebody else and it is not a voluntary statement given by the accused gains weight. It is thus seen that the

evidence of P. Ws.1 and 2 and the alleged report of P.W.1 under Ex.P-3 with the enclosures Exs.P-1 and P-2 are not free from doubt. I am of

opinion that the evidence of P.W.1 and P.W.2 have not passed the test of the touchstone of credibility.

The learned Public Prosecutor would argue that in this case, the accused has given an extra judicial confession of the offence he has committed

and it is corroborated by the fact of his pointing out the place of burial of Chellammal and there is no reason as to why this extra judicial confession

given by the accused to P.W.1 should not be believed and acted upon. We have already seen that if an extra judicial confession is proved by

independent witness, it can be acted upon and no corroboration is necessary. Therefore, the alleged pointing out of the place of burial of

Chellammal cannot be an additional factor to accept the alleged extra judicial confession of the accused to P.W.1. The accused is said to have

confessed in this statement that he had murdered his wife on account of her immoral character. In other words, the accused has given a motive for

the offence. It is no doubt true that motive is a double-edged weapon and failure to prove motive does not break in the circumstantial evidence

when clear facts and chain of circumstances prove the guilt of the accused as laid down in the decision reported in Mulakh Raj v. Satish Kumar

(1992 (Cri) S C C 482) . But, when a motive has been stated in the extra judicial confession said to have been given by the accused, we cannot

ignore the statement of the accused with regard to the motive part of the same and take that part of the confession in which he is said to have

stated that he had committed the murder of Chellammal by cutting her with Aruval and buried her in the channel. The learned Public Prosecutor

who relies on the various decisions which I have referred above in support of his version that the extra judicial confession has to be accepted, has

not argued that one portion of the extra judicial confession can be accepted leaving the other portion which has not been proved. No authority has

also been referred by him to hold that a portion of the extra judicial confession can be acted upon even though the other portion could not be acted

upon. In my opinion, an extra judicial confession has to be taken as a whole and it cannot be appreciated piecemeal to warrant a conviction. In the

present case, the portion of the extra judicial confession under Ex.P-1 as well as Ex.P-17 with regard to the motive part of the conduct of the

Appellant cannot be said to have been proved at all. It has to be noted that the eldest son of the accused was aged 23 years at the time of the

occurrence and therefore, we can infer that the marriage between Appellant and the deceased was celebrated 24 years ago and they were living as

husband and wife for such a long time. If the husband who had lived with his wife for 24 long years, is said to have committed the murder of his

wife, there must be some motive. In the present case, the motive alleged is the elopement of Chellammal with Ramachandran which has not been

proved at all. P.W.13 has stated during cross-examination that he did not examine Ramachandran who is said to have eloped with the deceased

since he was not available. There is more than a time gap of five months between the date of occurrence and the filing of the charge-sheet. If

P.W.13 could not trace Ramachandran, who was said to be the root cause for the dispute between the accused and the deceased during these five

months, considerable doubt is developed with regard to the portion of the extra judicial confession in which the accused is said to have stated that

his wife eloped with Ramachandran. In the confession statement under Exs.P-1 and P-17, the accused is said to have stated that one

Vazhavandhan brought the deceased from Thiruthangal and left her with the accused. In the memo of evidence and the list filed along with the

charge-sheet, this Vazhavandhan is cited as seventh witness for the prosecution. But, for reasons best known to them, the prosecution has not

examined this Vazhavandhan. So also, Muniyandi and Mayazhagan viz., P.W.3 were said to have advised the accused to take back Chellammal

saying that the children will be spoiled. Mayazhagan who has been examined as P.W.3, has not supported the version of the prosecution and he

has been treated as hostile. Muniyandi the other person who is said to have advised the accused to take back Chellammal has been cited as the

sixth witness in the memo of evidence and P.W.13 had also examined him, But he was not examined before the Court to prove the prosecution

version that he advised the accused to take back the deceased in the interest of the children. Similarly, in the memo of evidence, the prosecution

has cited one Ramu, one Krishan who has been examined as P.W.4 and one Thamburatti as witnesses who have seen the accused and the

deceased quarrelling with each other on account of her conduct. Of these three, P.W.4 alone has been examined and on account of his failure to

support the prosecution, he has been treated as hostile. Ramu and Thamburatti who are expected to speak about the dispute between the

deceased and the accused, have not been examined in Court. It was suggested to P.W.13 that he did not examine any witness for the prosecution

and it has been, no doubt, denied by him. Even assuming that the prosecution has failed to examine these witnesses on the ground that they may

not support the prosecution, it cannot be a ground for the non-examination of these witnesses since they are expected to speak to the motive part

of the occurrence. It is not as if the names of Vazhavandhan, Muniyandi, and Mayazhagan apart from the others have been cited in the memo of

evidence without any purpose. According to the prosecution, a role is said to have been played by Vazhavandhan, Muniyandi and Mayazhagan in

the dispute between himself and his wife and it is said to have been stated by the accused in Exs.P-1 and P-17. Therefore, the non-examination of

these witnesses about whom references are said to have been made by the accused in the extra judicial confessions throws considerable doubt on

the genuineness of the extra judicial confession.

The learned Public Prosecutor has argued that P.W.1 and P.W.2 are Village Officials and P.W.12 is the Tahsildar of that taluk and there is no

reason as to why they should depose falsely, if really the accused had not given any extra judicial confession to them. Nobody can explain as to

why witnesses come and depose falsely against an accused person in criminal cases. Therefore, simply because they are officials, it does not

necessarily follow that their evidence should be accepted without subjecting it to the test on the touch-stone of credibility. P.W.12 was the

Tahsildar of Kamuthi during 1986. In chief examination, he has stated that on 25-4-1986 night, the Inspector had sent a requisition to him to be

present during exhumation of Chellammal. During cross examination he has stated that on 26-4-1986, he received the information from Village

Administrative Officer and he did not receive any information with regard to the occurrence from the Sub-Inspector. The Sub-Inspector who has

been examined as P.W.8 has stated that he had sent the copies of the first information report to Officials. He has not specifically stated as to

whether he had sent it to the Tahsildar. P.W.9 P.C.583 Ramakrishnan has stated that on 26-4-1986 at 6 A.M., he got the letter from the Station

and delivered it to Tahsildar and returned to Mandalamanickam at 7.30 A.M. According to P.W.13, he sent a requisition to the Tahsildar to come

to the scene of occurrence for exhumation. When it was pointed out that the Tahsildar has stated that he did not receive requisition from the Police,

the learned Public Prosecutor has shown the copy of the requisition sent by the Inspector to the Tahsildar, which is in page 65 of Part II of the

records and which has not been marked, to this Court and this requisition is said to have been sent by the Inspector on 26-4-1986. The date seal

of the Court in it shows as if it was received on 3rd March. (Year not legible). P.W.12 would say in Chief examination that when he questioned the

accused, the accused gave a statement and he recorded the same and it is Ex.P-17. During cross-examination, he would say that he recorded the

statement given by the accused and the accused affixed his thumb impression in it and it is Ex.P-17. At a later stage of his cross-examination, he

would say that Ex.P-17 was written by Village Administrative Officer -P.W.1 by name Muniyasami to his dictation. A cursory glance of Ex.P-17

would reveal that it was not written by P.W.1 the Village Administrative Officer Muniyasami, but by somebody else. A perusal of Exs.P-1 to P-3

and Ex.P-17 would reveal that Ex.P-17 could not have been written by the person who wrote Exs.P-1 to P-3. But, Exs.P-1 to P-3 has been

written by P.W.1 is admitted by him. It may be noted that this Ex.P-17, the alleged extra-judicial confession of the accused to a responsible

Officer viz., Tahsildar of Kamuthi bears the seal of the Judicial Second Class Magistrate, Mudhukulathur dated 3rd March. Year not legible. We

have already seen that the office copy of the requisition of the Inspector to the Tahsildar also bears the date 3rd March. The alleged extra judicial

confession of the accused said to have been recorded by P.W.12, the Tahsildar, also bears the same date seal viz., 3rd March. It can be inferred

that both the documents have been received by the Court on the same date. There is no explanation given by the prosecution as to why an

important document like the extra judicial confession of an accused in a murder case to a responsible person like the Tahsildar of the Taluk has not

been sent to Court within a reasonable time if not immediately. The occurrence having taken place in April, 1986, the seal of the Court showing

3rd March, year not legible, an inference has to be necessarily drawn that it was sent nearly after 11 months. The evidence of P.W.12 that Ex.P-

17 was written by him has been given a go-bye, by him subsequently when he was confronted with some corrections and additions in it and it

shows that the evidence of P.W.12 is unworthy of acceptance.

P.W.12 in chief examination has stated that he conducted the inquest and after the completion of the inquest, the Medical Officer conducted

the post-mortem. At one stage of the cross-examination P.W.12 says that he called for the panchayatdars and examined them during inquest. But,

at a later stage of cross-examination, he would say that he did not conduct the inquest and it was the Inspector who had conducted the inquest and

he did not examine any witness separately. There is no reason as to why such contradictory statements should be given by a responsible Officer

like the Tahsildar. P.W.12 is not a rustic who can be said to have blabbered something unable to withstand the rigour of an elite cross examiner.

P.W.12 is a person who is in charge of a taluk and therefore his evidence deserves high credence. But the evidence of P.W.12 with regard to the

person who wrote the alleged extra judicial confession of the accused and the person who conducted the inquest would show that his evidence has

to be totally rejected as unworthy of acceptance. In Ex.P.-17, the accused is said to have stated that he cut Chellammal on the back of her neck

and when she fell down, cut on her throat portion twice. This detail is not in Ex.P-1. Ex.P-17 has been received in Court only on 3rd March, long

after the post-mortem. The number of cut injuries in Ex.P-17 can be only to explain the injuries found on the dead body and P.W.12 is a

consenting party to this development since he claims that the accused gave this statement to him. Therefore, the prosecution cannot rely upon

Ex.P-17 the alleged extra judicial confession said to have been given by the accused to P.W.12, the Tahsildar.

The learned Public Prosecutor stresses much on the corroborating evidence of the extra judicial confession viz., recovery of the dead body of

Chellammal in pursuance of the accused pointing out the place of burial. We have seen how the extra judicial confession of the accused to P.W.1,

P.W.2 and P.W.12 cannot be relied. As regards the pointing out of the place of burial, it is stated by P. Ws.1, 2, 12 and 13. We have already

seen that the signature of P.W.2 in Ex.P-9, the admissible portion of the confession statement of the accused to P.W.13 does not tally with the

signature of P.W.2 in the report under Ex.P-2 when he produced the accused to P.W.1. We have also seen the evidence of P.W.12 as to how it

cannot be relied upon and acted. P.W.13 had signed the confession statement and below his signature, he had put the date also. It is seen even by

naked eye, that the date bears a correction from 26 to 25. The Village Administrative Officer also has signed it and put the date as 25.4.1986.

P.W.1 has stated that the confession statement of the accused was recorded by P.W. 13 when he produced him, before P.W.13. If it is so, why

the Inspector should write the date as 26-4-1986 and then correct it as 25-4-1986 is not known. The correction in the date under the signature of

the Inspector gives room to hold that Ex.P-9 would not have been prepared in the manner the prosecution says. Therefore, it cannot be used

against the accused as a corroborating piece of evidence. In Ex.P-17, the accused is said to have stated that he pointed out the place where the

body was buried at 12 Noon, to the Tahsildar and the body was exhumed and post-mortem was conducted. The time when the accused is said to

have pointed out the place of burial is stated as 12 noon in Ex.P-17, whereas the evidence of P.W.12 is, it was at 7-30 A.M. This piece of

evidence also goes to show that the evidence of P.W.12 is far from satisfactory.

According to the prosecution, the towel of the accused M.O.13 was seized by the Inspector when he was produced in the Police Station by

P.W.1. The chappal, the palmyrah piece, bloodstained mud, sample mud and all other material objects including spade - M.O.7 and Aruval -

M.O.8 were seized on 26-4-1986. P.W.13 has sent them to the Court under Form 95 with the date specifically mentioned as 26-4-1986. But, all

these material objects viz., M. Os. 1 to 13 have been received in Court only on 6-5-1986. There is no explanation as to why the properties

despatched under Form 95 on 26-5-1986 reached the concerned Magistrate Court only on 6-5-1986. The presumption is that the material

objects have not been sent on 26.4.1986 as claimed by the prosecution. The possibility of their seizure also before 26-4-1986 becomes

suspicious. At this juncture, it may be noted that P.W.13 has stated in his requisition under Ex.P-7 to the Magistrate to send the spade M.O.7 and

Aruval M.O.8 for Chemical examination with a description that they are bloodstained. But, none of the witnesses who were said to have been

present at the time of the seizure of these two weapons, have stated that there is bloodstain in these material objects. The Form 95 under which

they were sent to Court and the Chemical Examiner''s report under Ex.P-15 also do not say that there is bloodstain. Yet the Inspector has chosen

to describe them as bloodstained. This description given by the Inspector to the weapon of offence viz., M.O.8 contained bloodstain would only

show that the prosecution wants to foist a case on the accused somehow or other. The learned Public Prosecutor has argued that much importance

should not be given to minor discrepancies and technical errors while appreciating the evidence of a witness. No doubt it is a recognised rule of

law that minor discrepancies and technical errors should not be given importance. But, when the prosecution case is full of improbabilities,

discrepancies and technical errors which I have referred above in detail, it cannot be stated that those things have to be ignored and the accused

must be found guilty on the ground that he has given extra judicial confessions and his confession'' is corroborated by the discovery of the body of

Chellammal. When the extra-judicial confession is to be rejected as unworthy of acceptance, the recovery of the body of Chellammal can be

considered as a piece of evidence against the accused upon which alone it cannot be stated that the prosecution has proved its case. The entire

prosecution being one on circumstantial evidence when the various circumstances viz., extra judicial confession of the accused to P. Ws.1, 2 and

12, the motive for the crime, the unworthy evidence of the prosecution witnesses, the absence of any independent evidence, the delay in the receipt

of the material objects by the Court would show that the prosecution has not proved its case. This conclusion is also supported by one other

aspect. P.W.8 the Sub Inspector of Police has stated in chief examination that he has recovered M.O.13. But, in the cross examination, he has

stated that M.O.13 was recovered by the Inspector. In his evidence P.W.8 has stated that since the time when he received information, was night,

he did not send information to the Executive Magistrate. He would state during cross examination that he has sent the copy of the first information

to the Court through P.C.583. But, P.C.583 who has been examined as P.W.9 would say that on 26-4-1986 morning, he handed over the tapal

to the Tahsildar and returned to Mandala-manickam at 7.30 A.M. and then he went to the Medical Officer at 10 A.M., and delivered the letter at

10.45 A.M. to the Medical Officer and returned to Mandalamanickam. This evidence of P.W.9 in chief examination would show that he had not

taken any letter to the Court either from P.W.8 or from P.W.9 on the forenoon of 26-4-1986. During cross-examination, he would say that he

took the letter on 26-4-1986 but he did not take any letter to the Judicial Magistrate on that date itself indicating that on 25-4-1986 also he did not

take any letter to the Court. When P.W.9 has not stated that he took the copy of the first information report to the Court on 25th or 26th April,

1986. P.W.8 says that it was sent on the 26th. There is no explanation when and through whom the tapal has been sent to the Court. The seal of

the Court in Ex.P-12, the express first information report bears time of receipt of the same by the Magistrate is 12.50 and the date is 26-4-1986.

Since P.W.8 has stated that because it was night, he did not send the copy of the first information report to the Executive Magistrate who was

nearby, we can safely hold that the express first information report could not have been received by the Judicial Magistrate on the midnight of 25-

4-1986 and 26-4-1986. It has been received only on the noon of 26-4-1986. The distance between Kamuthi and Mudhukulathur is said to be 30

kilometres. There is no reason as to why there is a delay of more than 12 hours after the recording of the express first information report and the

receipt of the same by the magistrate. The suggestion to P.W. 13 that the documents were prepared in his desk subsequently cannot be rejected as

unworthy of acceptance in view of this inordinate delay. The learned Public Prosecutor would only argue that the accused has given an extra-

judicial confession and pointed out the place of burial of his wife and the extra judicial confession has to be accepted by the Court and a conviction

has to follow. But the evidence of the persons to whom the extra judicial confessions were said to have been given by the accused, has not stood

the rigour of cross examination and test to verify their veracity. I am of opinion that even though there may be a suspicion against the accused with

regard to the offences with which he has been charged on account of his conduct in pointing out the place of burial of Chellammal that suspicion

alone is not sufficient to take the place of proof against the accused to convict him of the offences with which he has been charged. In that view. I

am of opinion that the accused is entitled to the benefit of doubt and he has to be acquitted.

In the result, the appeal is allowed setting aside the conviction and sentence imposed upon the accused by the trial Court on the ground that the

prosecution has failed to prove its case against the accused beyond all reasonable doubt and the accused is entitled to the benefit of doubt.

Arunachalam, J.

I have had the advantage of perusing with care the judgment made ready for pronouncement by my learned brother. Though I am in agreement

with the ultimate verdict that, on the peculiar facts and circumstances of this case, the Appellant will be entitled to the benefit of doubt, I am unable

to concur with a major part of the reasoning adopted by him.

I do not deem it necessary to state the facts in detail, for they have been narrated succinctly. In this case of murder of his wife by the Appellant,

on the evidence available, there is nothing to indicate that any one was interested in foisting a false case against the Appellant. However, I am

aware that it will not be the duty of the Appellant to project any cause as to why the prosecution had thought it fit to implicate him in a grave crime

of his nature. Courts have consistently held, that an extra-judicial confession of an accused, if can be accepted as natural, true and credible, after

applying litmus tests, can form the sole foundation to record a conviction on the concerned accused. As a matter of fact, certain pronouncements

even go further and indicate that seeking corroboration for a credible extra-judicial confession may not even be necessary, though, as a rule of

prudence, such corroboration, in a general way, is looked for. Initially, the case of the prosecution, of the Appellant having made an oral extra-

judicial confession before P.W.2, did not create any reasonable suspicion, for P.W.2 was the Thalayari of the same village in which the Appellant

was residing and he had known the Appellant as well. That P.W.2 must have known the family of the Appellant is also evident, for the children of

the Appellant had requested P.W.2 to find out from the Appellant about their missing mother, since she was in the company of their father last. The

reasoning of my learned brother that the extra-judicial confession recorded in writing from the Appellant by P.W.1 and marked as Ex.P.1, will

have to be rejected since it contains meticulous details, not only about the crime, but also the family background and the life of the Appellant, does

not make any impact on me. A perusal of Ex.P.1 will clearly show that the Appellant had come out with many details, which were exclusively

within his knowledge and which could not have been prompted by a Village Administrative Officer and that too prior to the first information report

being registered, and the policemen getting into the arena of investigation. Equally, I am unable to agree with the observation that the non-

examination of the daughters of the Appellant, would put an end to the extra-judicial confession, since there was lack of corroboration. There can

be no dispute, that if the Court looks for corroboration of a judicial confession or an extra-judicial confession, such corroboration need not be in

material particulars, as one would expect of the evidence of an approver or accomplice to be corroborated, but it can be and will have to be only

corroboration in general. Each and every piece of information mentioned in the extra-judicial confession need not have to be corroborated by

independent evidence. If the Appellant had stated in his confession about his frequent quarrels, with his wife, it only gives out the cause for his

having attacked his wife, leading to her death. Merely because the Appellant had stated in his confession that he was waiting for an opportunity to

cut his wife, in my opinion, it cannot be suggested that there is artificiality in the extra-judicial confession, for one would not normally reveal the

manner in which he had intended to cause the death of the victim. It has to be reasonably accepted that the mental make-up of every individual will

work itself while narrating details and hence a hard and fast rule of what an extra-judicial confession should contain, cannot be predicated on the

expectation of uniformity. As long as the averments in the extra-judicial confession do not evoke an impression of impossibility of such statement

having been made, that would be the end. Quite often, judicial pronouncements underline, that lack of motive alone, cannot lead to a prosecution

being thrown out lock, stock and barrel, for, if other evidence, inclusive of ocular version, creates an impact of credibility, the motive aspect will

recede to the background. Even in case of circumstantial evidence, it need not have to be a rigid rule, that if motive for the crime does not stand

established strictly, though evidence in general does surface, that alone cannot be taken as a ground to reject the prosecution case. I am unable to

agree that non-examination of Vazhavendan to speak about elopement of the deceased with Ramachandran would affect the sanctity of the extra-

judicial confession. In the usual course, there could not have been any impediment for safe acceptance of Ex.P.17, another extra-judicial

confession made by the Appellant before P.W.12, the Tahsildar. But, certain infirmities referred to by my learned brother, on the timing and

scribing of Ex.P.1 and Ex.P.17, the extra-judicial confessions allegedly made by the Appellant to P.W.1 and P.W.12, must have to be strictly

scrutinised and appreciated.

It is the definite case of the prosecution that soon after the Appellant had made his confession before P.W.1, which it stood reduced into

writing, he was taken to the police station by P. Ws.1 and 2. Ex.P.1 was written down to the narration of the Appellant at or about 8.00 p.m.

Kamuthi Police Station, where the Appellant was taken by P. Ws.1 and 2, was distanced by 7 kms. from the scene village. On production of the

Appellant before Kamuthi Police Station, it is the definite case of the prosecution that P.W.13, the Inspector of Police, examined the Appellant and

recorded his statement, the admissible portion of which has been marked as Ex.P.9. Ex.P.9 indicates that it was recorded at 11.30 p.m. on

25.4.1986 at Kamuthi Police Station. If it was so recorded, as claimed by the prosecution, at 11.30 p.m. on 25.4.1986, it appears rather odd,

that in Ex.P.9, P.W.13 had initially put down the date as 26.4.1986 and later had it corrected as 25.4.1986. The correction is so evident even to a

casual onlooker. It is quite possible to visualise any person putting in an earlier date on the next date and have it then corrected. But, it is rather

unusual that even on the earlier day, the next date is put in, in record. This correction in date casts an indelible impression that, in all probability,

Ex.P-9 had come into existence only on 26.4.1986 and not on 25.4.1986. If that be so, then the evidence of P. Ws.1 and 2 that they had taken

the Appellant even on 25.4.1986 to Kamuthi Police Station is open to doubt. Ex.P.9 is an important document, for it is on the basis of the

statement made therein by the Appellant, that the dead body was traced. If a reasonable doubt can be entertained about the genesis of this

document, all that follows as a logical consequence, may have to be taken serious note of. If Ex.P.9 had come into existence on 25.4.1986, and it

did not open up any scope for doubt, we could have easily accepted the genuineness of Ex.P.1, which must have been earlier in point of time to

Ex.P.9. If we were impelled to hold that Ex.P.9 must have come into existence only on 26.4.1986, it appears probable that Ex.P.l also had its birth

in different circumstances at a different places and not in the residence of P.W.1, as claimed by him. Ex.P.1, along with Exs.P.2 and P.3, which are

the statements of P.W.2 and the yadast of P.W.1, have been written in white paper and not in the usual printed forms supplied to village officials.

P.W.1, when cross-examined, has admitted that he has been provided with a register for entering the crimes, from which copies will be taken out

and forwarded to the Tahsildar and the concerned police station. He is further certain that any document issued by him would be affixed with

rubber seal, which was admittedly available with him. Exs.P.1 to P.3 had not been written in the printed forms provided for that purpose and they

also do not contain the seals of the Village Administrative Officer. If, as claimed by P.W.1, the Appellant stood brought before him by P.W.2 at

his residence, there is no reason why the record was not made in the usual printed form. Further, no explanation had been offered as to why the

official rubber seals had not been impressed on Exs.P.1 to P.3 before they were forwarded to, or handed over at, the police station. If the

Appellant had been produced by P.W.2 at any other place and not in the office or residence of P.W.1, it would have been possible to view this

infirmity in a different pattern. When admittedly the whole episode of an extra-judicial confession had its initiation at the residence of P.W.1, this

infirmity does appear very serious, for it is quite possible to comprehend, that in pieces of white paper, these confessions were recorded at the

police station on the next day and thereafter Ex.P.9 was recorded, as the document itself exposes its coming into being on 26.4.1986 and not on

25.4.1986. This doubt is rather grave to put an end to the safe acceptability of Ex.P.1, which appears to be the sheet anchor of the prosecution.

Though my learned brother has pointed out that the signature of P.W.2 has conspicuous difference, referable to Ex.P.2 and Ex.P.9, it may

probably require greater scrutiny. In Ex.P.2, the signature seems to be elongated, while in Ex.P.9, it is in a shorter form. The manner of writing

appears to be the same, but these details need not have to detain us in this case, for, a grave doubt does exist about the genesis of Ex.P.9, which in

turn casts substantial doubt about the worth of Ex.P.1.

Then, we have Ex.P.17, another extra-judicial confession allegedly made before P.W.12, a responsible officer, namely, the Tahsildar. Of

course, in his chief-examination, P.W.12 has stated that he had recorded Ex.P.17, but in cross-examination he had chosen to state that the record

was not made by him, but by a Village Officer. This divergence, in my opinion, cannot by itself erase Ex.P.17, for P.W.12 was examined on oath,

on 8.1.1988 in respect of the statement recorded by him on 26.4.1986. After such a long interval, it may not be possible for any individual to

correctly spell out, without noticing the document, as to the person who had scribed it. All these depend upon the retentive capacity of a particular

individual. However, when the document. Ex.P.17, was shown to P.W.12, he stated, that it was written down by P.W.1, the Village

Administrative Officer. If we accept this substantive evidence of P.W.12, we have to necessarily reject Ex.P.17, for, we find that Ex.P.17 could

not have been written by P.W.1, who claims to have written Ex.P.1. The type of letters and manner of writing, are so different that by any stretch

of imagination, it cannot even be remotely held that the scribe of Ex.P.1 and the scribe of Ex.P.17, must be one and the same. This obvious lacuna

throws a considerable doubt about the coming into being of Ex.P.17. Further Ex.P.17, has reached the Magistrate, very belatedly and that further

lessens its'' sanctity. The time and date of receipt by P.W.12 of communication sent to him by the investigating officer can have no serious

relevance, for discrepancies pointed out by my learned brother are in the fringes and, to my mind, totally immaterial. Similar will be the position

about conduct of inquest by P.W.12 by himself or by P.W.13, the investigating officer, in the presence of P.W.12. We have supporting documents

like inquest report, which do furnish a safe base. If, as stated earlier, both Exs.P.1 and P.17 cannot be accepted and the coming into being of

Ex.P.9 is shrouded in mystery, the prosecution cannot claim, that the dead body was traced on the statement of the Appellant in the manner

projected by it, and that would be a strong piece of corroboration to the extra-judicial confessions, which, as stated earlier, cannot be credibly

accepted.

Though there is a very strong suspicion that, in all probability, the Appellant must have been the author of this crime, on moral grounds, or on

suspicion, however strong, in criminal jurisprudence, a conviction cannot be recorded. The doubts I have pointed out, are doubts, which a

reasonable man of ordinary common sense will entertain. That is the test to be adopted while considering the benefit of doubt theory under criminal

law.

For my own reasons, I set aside the convictions and the sentences imposed on the Appellant and direct his acquittal. I agree with my learned

brother that this appeal will have to be allowed, but, of course, on my own grounds, listed above.