Ramadoss, Chinnaswami, Ramar and Chellammal vs State

A. Packiara, J.—Four accused were tried by the Court of Principal Sessions Judge, South Arcot at Cud-dalore in S.C. No. 55 of 1991 and convicted them as follows by his judgment dated 17.08.1993. A-1 was convicted for an offence u/s 302, A-2 and A-3 for an offence u/s 302 read with 34 and A-4 for an offence u/s 302 read with 109 and each one of them were sentenced to undergo rigorous imprisonemnt for life. In addition to the above said convictions, all the four accused were convicted for an offence u/s 2011.P.C. and sentenced to undergo imprisonment for five years. The sentences awarded were directed to run concurrently.

A-1, and A-2 and A-3 aggrieved by the said judgment, filed an appeal separately in C.A. No. 734 of 1993, while A4 filed an independent appeal numbered as C.A. No. 30 of 1994. Both the appeals were heard, together and hence a common judgment is being delivered. We may also state that for convenience sake, we address the Appellants in the order in which they were figured as accused in the court below.

The gist of the charge levelled against the accused is that on 19.9.89 at about 11.00 p.m. at Kanangadu, committed the murder of Palanisamy, by A-1 beating the deceased Palanisamy on his head and chest with a stick and thereby is said to have caused an offence punishable u/s 302 I.P.C. that A-2 and A-3 caught hold of the accused by their legs, thus enabling the first accused to attack him with the stick and thereby committed an offence punishable u/s 302 read with 34 I.P.C. while A-4 caught hold of the hands of the deceased, while A-1 beat him with the stick and committed an offence punishable u/s 302 read with 109 I.P.C. In addition to the above said charge, all the four accused were further charged for an offence u/s 201 I.P.C. for having packed and removed the dead body in a gunny bag and burned the same with an intention of screaning the offence.

When the charges were read over to the Appellants, they denied having committed any offence and hence the trial.

The prosecution case in brief is as follows-

a) A-4 is the wife of the deceased. However, she developed intimacy with A-1. This was resented to by the deceased and his family members. But. A-4 did not mend her ways. On 19.9.89 at about 5.00 p.m. when A-4 was siting in the pile of her house, it is stated that A-1 had come that side and told A-4 that he had come there to see her. as it was three days since he had seen her lastly. A-4, replied that she was not able to meet him because of the presence of her husband in the house and it is only after his death, she would be free to meet him. P.W.4, the brother of the deceased, who heard this found fault with A-4 and abused her. But A-4 replied that she had made only a sarcastic remark

b) The deceased and the accused arc all residents of Thensettiandal village. P.W.1 was constructing a building for the noon-meal scheme and the deceased was employed under him in the construction work. On 19.9.89. the deceased had worked under him and as usual after his work, he went home. At about 10.00 p.m. P.W.1 went to the house of the deceased and told the deceased that he needed some additional workers on the next day and so wanted him to bring an additional worker for work At that time, he saw the deceased going along with Raman. A-3. P.W.1 had asked them as to where they were going, for which the deceased replied that they were going to bring some firewood that were available near the lands of Kannan. But however, on the next day, the deceased did not turn up for work. Thereafter, the deceased, was not to be seen anywhere. There were also no attempts made by anybody to go in search of the deceased.

c) The further case of the prosecution is that, one Dhanapal examined as P.W.6 went to punipshed of Kannan Konar at 10.30 p.m. on 19.9.89 to wash the milk can, he saw the deceased proceeding followed by A-3; A-1 was standing there. As soon as the deceased was passing by A-1 beat the deceased on his head with a slick. The deceased Palanisamy fell down. A-3 and A-4 caught hold of the hands and legs. Then A-1 beat him repeatedly. The witness (P.W.6) was afraid and he went away. He did not inform about the incident till 16.10.89 when he was examined by the Talisildar.

d) On 15.10.89 at about 3.00 p.m. P.W.1 saw A-3 going along in front of P.W.1 "s house. P.W.1 asked him as to where the deceased was, Immediately thereon A-3 is said to have told him that A-1 to A-4 jointly committed the murder of Palanisamy. P.W.1 in turn asked him as to how they killed him, for which A-3 replied that after committing the murder, they had burried the body near the Govindasamy sand bund. A-3 is also said to have taken P.W.1 and showed him the place. Immediately, thereon, P.W.1 contacted the other accused and asked the whereabouts of the deceased. All the other accused also told htm that they had jointly committed the murder of Palanisamy. Then P.W.1 went to the Village Administrative Officer, examined as P.W.7 and gave a report Ex.P-1.

e) P.W.7 in turn after recording Ex.P-1, prepared a special report Ex.P-13 and took P.W.1, to Chinnasalem Police station and handed over Ex.P-1 and Ex.P-13 to the Sub Inspector of Police, who on receipt of the same registered it in Crime No. 361 of 1989 at 4.15 p.m. for an offence u/s 302 and 201 I.P.C. He prepared express F.I.R. Ex.P-36 and caused the originals to be sent to the Judicial Magistrate and the copies thereof to the Inspector of Police.

f) The Inspector of Police, P.W.14 on receipt of this information went to the scene of occurrence caused photos to be taken. He also sent an intimation through requisition. Ex.P-2 to P W.8. the Tahsildar to be present for exhumation proceedings. On 16.10.89, at about 10.30 a.m. after the arrival of the Tahsildar, the body was dug up from the said place. P.W.14 seized M.O.1 to 4 namely the gunny bag, apparels of the deceased and the rope used for tying the gunny bag under Ex.P-5. He prepared Rough Sketch Ex.P-37 and Ex.P-38. He examined P.W.5, P.W.7 and P.W.9. At about 4.20 p.m. on the same day, he arrested the accused. A-1 is said to have given a voluntary statement, the admissible portion of which is Ex.P-23 and in pursuance of the same, M.O.9 to M.O.11. the cycle belonging to A-1, a stick and a rope were seized from his house under Ex.P-24. Thereafter the accused was sent for remand. On 17.10.89, he sent a requisition Ex.P-2 to P.W.3 for recording statements u/s 164 from the accused.

g) Meantime, P.W.8 the Tahsildar in whose presence the exhumation was conducted, seized the sample earth M.O.8 series under Mahazar Ex.P-15. He also prepared an Observation Mahazar Ex.P-16. He conducted inquest from 11.15 to 1.15 p.m. and examined P.W.1 and P.W.4. Ex.P-17 is the inquest report. The statement recorded by him from P.W.1 has been marked as Ex.P-18 and that of P.W.4 has been marked as Ex.P-19. Ex.P- 20 is the statement recorded by him from P.W.6. He made arrangements for the post mortem to be conducted at the scene itself by way of requisition Ex.P-21. He sent the report to the Court through Ex.P-22.

h) P.W.14, while continuing his investigation, had examined the Doctor Thiru Natarajan on 19.10.89. Thereafter sent a requisition Ex.P-29 to the Magistrate to send the Material Objects for chemical analysis. He also examined P.W.1, P.W.4, P.W.6 and P.W.10 on 24.10.89. As the Doctor Thiru. Nagarjan was seriously ill and as he was admitted in the Government Hospital, he was not in a position to give evidence and consequently, the post mortem certificate Ex.P-39 has been marked by the Investigating Officer.

i) P.W.3 the Judicial Magistrate of Usi-lampatti on receipt of requisition, Ex.P-2 along with an order Ex.P-3 from the Chief Judicial Magistrate, directing him to record the confession statement of the accused, initiated the proceedings u/s 164 Code of Criminal Procedure He sent requisition Ex.P-4 to cause the production of the accused before him on 20.10.89. When the accused were brought to the Court, he took all the necessary precautions to see that the accused were not being threatened or induced to give any statements and on being satisfied about their voluntary desire to give statements and after giving them sufficient warning that they are not entitled to give such statements which may be used against them, gave them 24 hours time for reflection. The detailed proceedings held on the first day has been marked as Ex.P-5, in respect of A-1. Ex.P-7 is the proceedings in respect of A-2. Ex.P-9 and Ex.P-11 are the proceedings in respect of A-3 and A-4. These proceedings are dated 20.10.89. As per his directions, all the four accused were produced on the next and the learned Magistrate after repeating his preliminary questionaire had recorded the statements Ex.P-6 from A-1, Ex.P-8 from A-2, Ex.P-10 from A-3 and Ex.P-12 from A-4.

j) In pursuance of the requisition made by the Investigating officer, the Court in turn sent the Material Objects for chemical analysis. It received Ex.P-34 the chemical analysis report. The Investigating Officer after conclusion of the investigation filed the final report against all the accused.

k) The accused were examined u/s 313 Code of Criminal Procedure with reference to the incriminating materials found against them. They denied having committed any offence and their complicity in the crime.

l) To bring home the guilt of the accused the prosecution has examined P.W.1 to P.W.15 exhibited Ex.P-1 to Ex.P39 and produced M. Os.l to 15.

To unfold the prosecution case in so far as the motive aspect is concerned the prosecution has examined P.W.4. P.W.4 is the brother of the deceased It appears that he knew the fact that A-4 the wife of the deceased was having illicit intimacy with A-1. On 19.9.89, he had been to the house of the deceased, on which day at about 5.00 p.m.. it is staled that A-1 came in search of A-4 to the house of the deceased. A-4 questioned A-1 as to why he had come. He replied that since he had not seen her for the previous three days. A-4 appears to have stated that in view of the troubles given by A-1, she was not in a position to come and meet him. She further told that unless the deceased is done away with, she cannot come and go as she wishes. P.W.4 met the deceased and told him about the conversation that look place between A-1 and A-4 and then went away to his house.

Thereafter, it is the evidence of P.W.1, the employer of the deceased that he went to the house of the deceased on 19.9.89 and asked him to bring another person for construction work on the next day. Accordingly, the deceased assured him that he would do so. But thereafter, the deceased never turned forever. It is also the evidence of P.W.1 that at or about the same time, namely at about 10.00 p.m. on 19.9.89, he found the deceased in the company of A-3. The deceased was not to be seen thereafter and there were also no attempts being taken by anybody to trace his whereabouts. However, on 15.10.89. it is said that P.W. 1 met A-3 and asked him where the deceased was. Whereupon. A-3 is alleged to have made a statement to the effect that he along with three other accused committed the murder of the deceased and put the body in gunny bag and burned it near the tank bund P.W.1 in turn contacted A-1. A-2 and A-4, who also repeated what A-3 had told him. Then a report has been given to the village Administrative Officer, who in turn took him to the police station, and the subsequent investigation was made by P.W.13 and P.W.14 after registration of the case.

Apart from the Extra Judicial Confession alleged to have been made by the accused to P.W.1, the prosecution relies on the evidence of P.W.6 who claims to be an eye witness and who has been examined for the first time by the Tahsildar on 16.10.89 and again on 24.10.89 by the Investigating Officer and the confession statements given by all the accused before the Judicial Magistrate, examined as P.W.3 in the case. Before analysing the evidence of P.W.6 and the confession statements, let us consider the evidence of P.W.1.

Admittedly, the deceased was under the employment of P.W.1. On 19.9.89 at about 10.00 p.m., he had asked the deceased to bring another person for work on the next day. It is curious to note that P.W.1 went all the way to the house of the deceased on the night at 10.00 p.m only for the purpose of asking him to bring an additional worker on the next morning. But when the said deceased did not turn up. P.W.1 had not cared to go in search of the deceased or tried to find out the whereabouts of the deceased. But however, it is strange that on 15.10.89. at about 5.00 p.m. when he causally met A-3. had asked him where the deceased was. It was at that time, A-3 is alleged to have slated that he along with the other three accused committed the murder of Palanisamy on 19.9.89 at 11.00 a.m. and put the body in a gunny bag and burned it. He also took P.W.1 to the spot and showed him the place. This in our opinion is unbelievable and strange. It is not the case that A-3 or the other accused were afraid of the police or of any other circumstances that would incriminate them, so as to voluntarily give a statement to P.W.1 and take shelter or guidance. But the evidence of P.W.1 makes a strange reading that the moment he asked the whereabouts, of the deceased. A-3 without any hesitation whatsoever A-3 confessed the matter. What is more surprising is that after hearing, the confession of A-3, he contacted A-1. A-2 and A-4, who also told him about this incident as narrated by A-3. Yet another circumstance which throws considerable doubt on his conduct is that the moment he heard about the incident, instead of going to the police. P.W.1 had sought the help of the Village Administrative Officer, examined as P.W.7 in the case, who in turn recorded the statement of P.W.1 and after making a special report Ex.P-13. went to the Chinnasalem Police Station and handed over Ex.P-1 and Ex.P-13 to the Sub Inspector of Police P.W.13. who registered the same in Crime No. 361 of 1989 for an offence u/s 302 and 201 I.P.C.

It is the specific evidence of P.W.4 who is none other than the brother of the deceased that he came to know about the incident only at 3.00 p.m. on 15.10.89 through the statement of A-3 and later from A-1, A-2 and A-4. But. however, in cross examination, he admits that on 15.10.89 at about 8.00 a.m. itself, he had been to the Chinnnasalem Police Station. He went along with A-4 to the police station and at that time all the other accused were also present in the police station. It is only after he went to the police station, P.W.1 is said to have given a statement to the police. Therefore, this clearly establishes that all the accused were in the police station in the morning itself on 15.10.89. Consequently, they could not have been at the village at 3.00 p.m. which would enable them to give a statement confessing the guilt to P.W.1. In such circumstances, we have no hesitation to hold that the evidence of P.W.1 is unacceptable.

Now considering the evidence of P.W.6 the only eye-witness in this case, we feel that his evidence also appears to be unacceptable. Though he claims to be an eye-witness, he has not whispered about this incident to anybody till he was examined cither b\\ the Tahsildar or by the Police Officer on 24.10.89 It is not the case of the prosecution that he was ever threatened by any of the accused or that he was afraid of the accused that would enable him to keep quiet without informing about the matter to anybody. But on the other hand, he has admitted in cross-examination that the deceased is very well known to him and is also interested in his welfare. In such circumstances, we are unable to accept his evidence straightaway when he says that he has not informed the matter to anybody Secondly, he states in his evidence that he was examined by the Tahsildar who has been examined as P.W.8 in this case. But however, P.W.8 in his evidence has not staled that he was examined on 16.10.89. It is pertinent to note that Tahsildar had not examined him in the inquest either, but only subsequently. The statement along with 161 statement have reached the Court on 30.01.1990. Therefore, there is considerable doubt that whether this witness was examined at all as alleged. Admittedly the accused was arrested even according to the prosecution on 15.10.89 and if it is the case that P.W.6 being a witness to the occurrence has been made known only on examining the accused on 15.10.89, then the question that follows is as to why P.W.6 has been examined only on 24.10.89. The prosecution has not come forward with any explanation whatsoever as to why he was examined so belatedly. Therefore, in our opinion, the conduct of this witness throws considerable doubt to the veracity of this evidence. Consequently, we are not in a position to accept his evidence.

We are now left with the evidence of the confessions recorded u/s 164 Code of Criminal Procedure by P.W.3, the learned Judicial Magistrate No. 1, Usilampatti. The proceedings in relation to these four accused on the first day. have been marked as Ex.P-5, Ex.P-7, Ex.P-9 and Ex.P11 respectively. The proceedings and the confessions recorded on the second day namely on 20.l0.89 have been marked as Ex.P-6. Ex.P-8, Ex.P-10 and Ex.P-12 respectively.

But on going through these confessions, one glaring error that has been committed by the Magistrate has been revealed when we see that the Magistrate has not appended his certificate, that the confessional statement is true and voluntary as contemplated u/s 164(4) Code of Criminal Procedure The learned Magistrate has been cross examined with reference to the same. But however, she is not in a position to give a plausible explanation. It is important to incorporate the provision at this juncture. "(4)Any such confession shall be recorded in the maimer 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.

None of the statements of the accused contain the certificate that are contemplated under the above said provision.

In this context, the learned Counsel for the defence relied on three decisions of the Supreme Court. Firstly, he relied on the judgment reported in Chandran Vs. The State of Tamil Nadu, , where the learned Magistrate in that particular case while appending a certificate as contemplated u/s 164(4) has stated that

I hope that this statement was made by him voluntarily and secondly he omitted to certify that this confession was taken in his presence and hearing and was read over to the person making it and it is admitted by him to be correct and it contains a full and true account of the statement made by him.

The Supreme Court has observed that the Magistrate instead of stating that he believed the statement to be voluntarily made, he has only stated that he hope and consequently the entire confession was held to be inadmissible.

A similar view was taken in a judgment reported in Shivappa v. State of Kar-nataka (AIR SCW 956) wherein it has observed as follows:

The Magistrate who is entrusted with the duty of recording confession of an accused coming from police custody to jail custody must appreciate his function in that behalf as one of a judicial officer and he must apply his judicial mind to ascertain and satisfy his conscience that the statement the accused makes is not on account of any extraneous influence on him. That indeed is the essence of a voluntary statement within the meaning of the provisions of Section 164, Code of Criminal Procedure and the Rules framed by the High Court for the guidance of the subordinate Courts. Moreover, the Magistrate must not only be satisfied as to the voluntary character of the statement, he should also make and leave such material on the record in proof of the compliance with the imperative requirements of the statutory provisions, as would satisfy the Court that sits in judgment in the case, that the confessional statement was made by the accused voluntarily and the statutory provisions were strictly complied with.

The latest decision on this aspect is reported in Dhananjaya Reddy etc v. State of Karnataka (2001 (2) Cri 18)

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 as appears to have been shown by Shambulingappa (P.W.50) in this case. 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. Omission to comply the mandatory provisions, one of such being as incorporated in Sub-section (4) of Section 164 is likely to render the confessional statement inadmissible.

In view of the above said decision, we have to necessarily hold that all the four confessions recorded by P.W.3 from the accused are inadmissible in law and consequently they cannot be acted upon.

The only other piece of evidence relied on by the prosecution is the alleged arrest of A-1 on 16.10.89 and the recovery of sticks and rope in pursuance of his statement. There again we are not able to accept this version in view of the specific admission of P.W.4, the brother of the deceased, when he states on 15.10.89 in the morning itself all the accused were in the Chinnasalem Police Station. Nothing has been clarified by the prosecution in re-examination. Therefore, we have no hesitation to hold that the arrest and subsequent recoveries are false.

In the above said circumstances, we hold that the prosecution has not satisfactorily proved the case beyond all reasonable doubt against the Appellants. Consequently, we set aside the conviction and sentence passed by the Court below and acquit the Appellants and allow the appeals. The bail bonds if any executed by the accused shall stands cancelled. In result, the appeals are allowed.