Periyannan vs State by Inspector of Police

S. Jagadeesan, J.—The appeal is against the judgment, conviction and sentence of the Sessions Judge, Dharmapuri Division at Krishnagiri in

S.C. No. 78 of 1988 wherein the Appellant herein was found guilty of the offence u/s 302 of the Indian Penal Code for causing the death of one

Unnamalai, W/o Murugan @ Pathali at about 10 p.m. on 2.11.1987 in the mango grove of one Annamalai at Periya Karadiyur and was sentenced

to undergo imprisonment for life.

The case of the prosecution is that in the morning of 3.11.1987, PW2 - the village maniyam, on his way back after taking tea, found a crowd

gathered in the mango grove of the said Annamalai. He saw the dead body of a woman and identified the same as that of the wife of the said

Murugan (a)Pathali. Some of the persons, who were present at the scene also identified the dead body as that of the wife of the said Murugan (a)

Pathali. Immediately, he went to the Village Administrative Officer PW1 and informed him about the lying of the dead body at about 8 a.m. PW1

prepared the report ExP1 and forwarded the same to Na-garasampatti Police Station.

PW11 - the Sub. Inspector of Police at Nagarasampatti Police Station received ExP1 at about 3 p.m. through PW2. On receipt of the same, he

registered the case as Crime No. 84 of 1987 for suspected death and prepared the express first information report Ex.P.13 and forwarded the

copies of the same to the higher authorities as well as to the Court. He has also given the wireless message to the Inspector of Police, Dharmapuri.

He went to the scene of occurrence and waited for the arrival of the higher authorities.

PW12- the Inspector of Police, who received the wireless intimation by 3.45 p.m. on 3.11.1987 reached the scene of occurrence at 5 p.m. He

received the copy of the express first information report from the Head Constable, who was present at the scene of occurrence. He prepared the

observation mahazar ExP2 attested by PW1, the Village Administrative Officer. He also prepared the rough sketch ExPl4, and arranged to take

the photographs through PW7. At about 6.30 p.m. he recovered MO1 the blood stained earth, and M02 the sample earth under mahazar ExP3

attested by PW1. He held inquest over the dead body between 7.30 p.m. and 9.30 p.m. During inquest, examined P Ws 1 to 4 and others.

Ex.P15 is the inquest report. He suspected that the death of the deceased could be a murder, altered the charge into one u/s 302 of the Indian

Penal Code and forwarded the express report ExPl6 to the higher authorities. Thereafter, he entrusted the dead body to PW8 the Constable for

post mortem with the requisition ExP6.

PW10 the doctor attached to the Government Hospital, Krishnagiri received the requisition ExP6 on 4.11.1987 at 6 a.m. to conduct autopsy.

He commenced autopsy at 11.45 a.m. He found the following injuries on the deceased:

i. There was an abrasion on the left side of the chest extending from 4 cm below the nipple line right down to the ileac crest. 21 cm x 10 cm.

ii. An abrasion on the medial side of the left knee joint 13x4 cm.

iii. An abrasion on the right of the public region 8 x 2 cm.

iv. An abrasion over the centre of the abdomen on either side of the centre of the abdomen on either side of the mid line 16 x 2 cm starting from 4

cm above the umbili-cas.

v. A small abrasion 1 x 1 cm on the lateral side of right knee.

vi. Post mortem lividity present on the front of the abdomen just before the ileac fossae.

There was a ligature mark 3 mm in diameter running horizontally on either side of the midline just above the thyroid cartilege encircling the neck,

mealing in the midline on the back of the neck. Cricoid cartilage was fractured.

Bloody froth was present at both the nostrils.

Bloody discharge was present from the right ear.

The face was congested and swollen. Petichical haemorrhages were present. Eye balls were bulging.

The post mortem certificate is ExP12 The opinion of the doctor is that the deceased would appear to have died of asphyxia due to strangulation.

PW5, who is the resident of Chellampatti village, took the accused to the Nagarasampatti police station at 8 p.m. on 4.11.1987 and produced

him before PW11 the Sub-Inspector of Police and informed that the accused confessed at about 6 or 6.30 p.m. on the same day that he has

murdered the wife of Murugan about two days back by strangulating her neck with the rope. PW11 arrested the accused at 9 p.m. and sent the

intimation to PW12. At about 8.15 p.m., PW12. on receipt of the information about the presence of the accused at Nagarasampatti Police Station,

immediately reached there and enquired the accused. Further, he recorded the confessional statement and the admissible portion of the same is

Ex.P4, which was attested by PW1 and PW5. Pursuant to the said confessional statement, the accused took PW12 and others to the mango

grove of Annamalai at Periya Karadiyur and took MO3 the rope from a distance of about 50 feet from where the body of the deceased was

found. MO3 as recovered under mahazar ExP5 attested by P Ws 1 and 5 at about 11.15 p.m. On 5.11.1987, the accused was produced before

the Judicial Magistrate for remand. After the investigation was over, on 9.12.1987. the final charge sheet was filed against the accused.

The Committal Magistrate, having found that the case was exclusively triable by the Sessions Court, committed the case to the Sessions Court.

Before the trial Court, the prosecution has examined 12 witnesses, marked 16 exhibits and produced 12 material objects. After considering the

oral and documentary evidence available on record, the learned Sessions Judge, found the Appellant guilty of the offence u/s 302 of the Indian

Penal Code and sentenced him to undergo life imprisonment.

It may be noted that there is no eyewitness to the occurrence. The prosecution rests upon only the circumstantial evidence.

Learned Counsel for the Appellant contended that the circumstantial evidence relied upon by the prosecution is too feeble to find the Appellant

guilty of the offence u/s 302 of the Indian Penal Code. The two circumstances relied upon by the prosecution are:

i. The evidence of PW3, who deposed that she saw the deceased last in the company of the accused on the night of 3.11.1987 and

ii. The evidence of PW5, to whom, it is said that the accused had made the extra judicial confession.

It is the further contention of the learned Counsel for the Appellant that the evidence of PW3 cannot at all be relied upon, for the simple reason

that she herself was engaged in the selling of illicit arrack and was also arrested by the police on many occasions. Hence, there cannot be any

doubt that she will be a stock witness for the police. So far as PW5 is concerned,in the cross examination, he ad-milted that he does not know

about the family particulars of the accused. In that case, both PW5 and the accused cannot be said to be so close or intimate. When there is no

such intimacy between PW5 and the accused, the accused could not be expected to make an extra judicial confession to him, that too relating to

the commission of murder involving himself. If these two pieces evidence arc excluded there is no other material to connect the accused with the

alleged crime. Moreover, there is absolutely no link between the evidence of PW3 and PW5 to connect the accused with the crime and as there is

no connecting link from the last seen company of both till the murder, the prosecution case has to be disbelieved or it has to be held that the

prosecution has miserably failed to establish the case.

On the contrary, the learned Government Advocate on the Criminal Side contended that there are sufficient circumstances to connect the

accused with the crime.P Ws 3 and 4 speak about the illicit intimacy between the deceased and the accused PW5 speaks about the extra judicial

confession of the accused. It is his further evidence that he took the accused to the police station. This evidence is corroborated by the evidence of

P Ws11 and 12, which was later corroborated by the confessional statement of the accused and the recovery of MO3 thereon. Apart from this,

the doctor''s evidence also corroborates the confessional statement of the accused. If all these arc taken together or collectively the entire link had

been established by the prosecution with regard to the connection of the accused with the alleged offence. The lower Court has rightly found the

Appellant guilty of the offence.

We have carefully considered the entire case of the prosecution. It is necessary, at the outset to state the circumstances relied upon by the

prosecution to establish the guilt of the accused, which are as follows:

i. The illicit intimacy of the accused with the deceased spoken to by P Ws3 and 4.

ii. The evidence of PW3 that the accused took the deceased while the deceased was with her and so her seeing the deceased last in the company

of the accused.

iii. The extra judicial confession of the accused to PW5, who took the accused to the Nagarasampatti Police Station.

iv. PW11 the Sub Inspector of Police arrested the accused.

v. PW12 the Inspector of Police and the Investigating Office, on information about the presence of the accused at Nagarasampatti Police Station,

went there and recorded the confessional statement from the accused and also pursuant to the confessional statement recovered MO3.

vi. The evidence of PW10 the doctor, who conducted the post mortem, reveals that the death of the deceased is only due to strangulation, which is

admitted before PW5.

If we take the above circumstances for discussion, PW3, in her evidence, clearly stated that herself and the deceased on the date of

occurrence went together. The accused came behind them and pulled the hands of the deceased. The deceased went along with him to the mango

grove of the said Annamalai. She also deposed that there was illicit intimacy between the accused and the deceased. The wife of the accused made

a complaint and a panchayat was held wherein the accused was fined a sum of Rs. 100/- and the deceased was fined a sum of Rs. 50/- and

directed that both of them should not have contact thereafter. So far as this portion of the evidence of PW3 is concerned, the same was not

challenged in the cross examination by the defence. This evidence of PW3 with regard to the illicit intimacy of the accused and the deceased was

corroborated by PW4, who is none other than the sister of the deceased. She also deposed that in the morning of 4.11.1987, she came to know

that the deceased did not return to her house. Thereafter, on enquiry, she also came to know that the deceased was lying dead in the mango grove.

The evidence of PW3 clearly reveals that the accused took the deceased in the night of 3.11.1987 and hence, it can safely be concluded that the

deceased was seen last in the company of the accused.

The next link of circumstantial evidence is the extra judicial confession of the accused to PW5. As per the evidence of PW5, the accused came

to his house at about 6 or 6.30 p.m. on 4.11.1987, which is about three miles away from the village of the accused and made a confessional

statement that he had developed illicit intimacy with the wife of one Murugan of Periya Karadiyur village for the past three years. Because of the

illicit intimacy, there was frequent quarrel between himself and his wife and a panchayat was also convened where the accused was fined Rs. 100/-

and the deceased was fined Rs. 50/-. About two days prior to the incident, when he was proceeding to get the cattle, the deceased came in the

opposite direction and stopped him. The accused told her that because of her, there is a misunderstanding in his family and so, he does not want to

have any connection with her. The deceased used filthy language. So, he took her to the mango grove and thereafter, murdered her with the rope

he was having in his hand Thereafter, he tried to lift her in order to tie the body in the tree. As he could not succeed in his attempt, he left the dead

body there and left the place. Having heard the said confession of the accused. PW5 immediately took him to the police station at Nagarasampatti

where PW11 the Sub Inspector of Police arrested him. So far as the evidence of PW5 in this regard is concerned, we have no hesitation in

believing the same, mainly for the reason that the deposition of PW5 in his chief examination was not at all challenged in the cross examination.

There is not even a suggestion in the cross examination of the witness in this regard.

PW5''s evidence with regard to the extra judicial confession can be believed as it followed the arrest of the accused by PW11 and the further

investigation took up by PW12, to whom, the accused has made a confessional statement, and the admissible portion of which is ExP4 and

pursuant to which, MO3 was recovered. It is pertinent to note that the accused took PW12 and others to the mango grove and digged a place,

near a tree and produced MO3. Hence, as per the confessional statement fo the accused, the murder was committed by him by strangulating the

neck of the deceased. This portion of the statement of the accused that he murdered the deceased by strangulation is much corroborated by the

evidence of the doctor PW10, who conducted the autopsy over the dead body. Hence, we have no hesitation in finding that the circumstantial

evidence relied upon by the prosecution clearly establishes the guilt of the accused.

One other circumstance is with regard to the conduct of the accused in replying to the questions u/s 313 of the Code of Criminal Procedure.

When he was able to understand the questions and gave the answers ""yes or no"" for some of the questions, he also answered that he does not

know in respect of the other questions. One such question is question No. 26 where a specific question was put to him with regard to his illicit

intimacy with the deceased and the convening of the panchayat where he was fined and also with regard to this confession made to PW5 regarding

his causing the death of the deceased. He bluntly gave an answer that he did not know (sic)""Qp>!�!uiira)i"")(sic). When he was able to

understand the other questions and gave the answers ""yes or no"", depending upon the questions, so far as this question is concerned, he ought to

have definitely denied of giving any such confession. The evasive answer given by him also raises a doubt with regard to the conduct of his

involvement in the crime. Hence, the lower Court has rightly found the Appellant guilty of the offence u/s 302 of the Indian Penal Code on the basis

of the circumstantial evidence relied upon by the prosecution.

In the result, the appeal is dismissed confirming the judgment, conviction and sentence imposed by the trial Court. Since the Appellant is on

bail, the bail bonds executed by him are directed to be cancelled and the trial Court is directed to secure his presence to serve the remaining period

of sentence.