Selvakumar and Rajamani vs State by Inspector of Police

M. Chockalingam, J.—This judgment shall govern these two appeals, namely, Crl.A. Nos. 152 of 2009 and 629 of 2009.

Both the appeals challenge a judgment of the Additional Sessions Division (Fast Track Court No. I), Salem, made in S.C. No. 292 of 2008,

whereby both the appellants as A-1 and A-2 stood charged, tried and found guilty as follows:

Accused Charges Findings Sentence

A-1 Section 302 IPC Guilty Life imprisonment and to pay

a fine of Rs.1,000/-, i/d to

undergo six months R.I.

A-2 Section 302 read withGuilty Life imprisonment and to pay

34 IPC a fine of Rs.1,000/-, i/d to

undergo six months R.I.

The necessary facts for the disposal of both the appeals can be stated thus:

(a) A-2 is the wife of P.W.3. They married seven years before the date of Ex.P-1 and they have two children, a boy aged about 5 years and a girl

aged about 2-1/2 years. A-1 was an auto driver by profession. A-2 developed an illicit intimacy with A-1. Along with the children, A-2 left the

marital home accompanied by A-1. Pursuant to a complaint given by P.W.3 to Arumbavoor Police Station, they were secured after a period of six

months. On their advice, A-2 along with the children came back and was living with P.W.3 for a short time. Thereafter, again she continued her

intimacy with A-1.

(b) During the relevant time, both of them were employed in a rice mill at Ram Nagar, Ayodhyapattinam belonged to P.W.7. On 04.09.2006 at

about 5.00 PM, A-1 sent the child Rajesh to purchase Beedi from a nearby shop. After purchasing the same, Rajesh did not pay the balance.

When questioned by A-1, he answered that he purchased a chocolate for the balance. A-1 suddenly got wild, pressed his neck and strangulated

him and the said Rajesh fell down swooned.

(c) Immediately, A-2 took the child to a private clinic of P.W.13 doctor at Ayodhyapattinam and finding the condition serious, P.W.13 advised

her to take the child to the Government Hospital at Salem. When she took the child to the hospital, the child was declared dead.

(d) Immediately, she proceeded to Thondamanthurai. On 05.09.2006 at about 09.30 AM., she met P.W.1, the Village Administrative Officer of

Thondamanthurai and gave a statement narrating the entire incident. The same was recorded by P.W.1, which is marked as Ex.P-1. A-2, along

with Ex.P-1 and , was produced before the Sub Inspector of Police, Arumbavoor.

(e) On the strength of Ex.P-1, a case came to be registered in Crime No. 133/2006 u/s 302 IPC. P.W.15, the Inspector of Police, Arumbavoor,

took up the investigation on receipt of a copy of the first information report, marked as Ex.P-7, proceeded to the scene of occurrence, examined

the witnesses, prepared observation mahazar Ex.P-2 and also the rough sketch Ex.P-3. He caused the place of occurrence to be photographed

through P.W.10. M.O.4 series are the photographs. P.W.15 conducted the inquest on the dead body in the presence of witnesses and

panchayatdars and prepared Ex.P-8 report. He arrested A-2 and she came forward to give a confessional statement and the same was recorded.

Following the confession, on 06.09.2006, P.W.15 arrested A-1 and he came forward to give a confessional statement and the same was recorded

in the presence of witnesses. Then, he sent the dead body to the hospital for the purpose of post-mortem along with his requisition.

(f) On receipt of the said requisition, P.W.14, doctor attached to the Perambalur Government Hospital, conducted autopsy on the dead body of

Rajesh and gave a post-mortem certificate, Ex.P-6, wherein he opined that the deceased would appear to have died of Asphyxia due to

compression of neck, 20 to 24 hours prior to the autopsy.

(g) On 28.10.2006, the records of Crime No. 133 of 2006 of Arumbavoor Police Station, referred to above, were transferred to Karipatti Police

Station by an administrative order of the Superintendent of Police, since the occurrence had taken place within the police limits of Karipatti. The

same was re-registered as Karipatti Police Station Crime No. 537 2006 and P.W.17, the Inspector of Police, took up the further investigation,

verified the records and filed a final report u/s 302 read with 34 IPC.

(h) The case was committed to the Court of Session, Salem and necessary charges were framed. In order to substantiate the charges, the

prosecution examined 17 witnesses and also relied on 13 exhibits and 4 material objects. On completion of the evidence on the side of the

prosecution, the accused were questioned u/s 313 of Cr.P.C. as to the incriminating circumstances found against them in the evidence of

prosecution witnesses, which they flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced and

scrutinized the materials. On doing so, the trial Judge took the view that the prosecution has proved the case beyond reasonable doubt and thus,

both of them guilty as per the charges and awarded the punishment referred to above. Hence these appeals at the instance of the appellants.

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

evidence to offer; that it mainly rests upon the extra-judicial confession alleged to have been given by A-2 to P.W.1, the Village Administrative

Officer; that this extra-judicial confession statement is a weak piece of evidence; that the prosecution has unable to show anything to convince the

Court as to why A-2 should go and give a confession to P.W.1, the Village Administrative Officer; that the extra-judicial confession alleged to

have been recorded by P.W.1, marked as Ex.P-1 and the report prepared by him are with discrepancies in material particulars and also found to

have been written in two different inks and this would indicate that both documents could not have been prepared by the same person; that apart

from that, the confession has not been recorded, as prescribed in the Rules for recording of confession by the Village Administrative Officer and

that the confession was given by A-2 and the same cannot be used as against A-1.

Added further the learned Counsel that it is well settled principal of law that the statement given by the one co-accused cannot be used against

another accused; that in the instant case, in so far as A-1 was concerned, there was absolutely no material at all; that from the evidence of the other

witnesses, it is clear that the deceased was suffering from epilepsy and that the abrasions and the other injuries could be possible, as per the

doctor''s evidence, by the child falling on the ground while attacked by epilepsy; that it is also clear from the evidence of the other witnesses that

A-1 and A-2 have taken all interest to save the child; that the trial Judge has failed to appreciate in his judgment the evidence recorded at the time

of cross examination; that in so far as A-2 was concerned, it is not the case of the prosecution at all that she has got anything to do or had any role

to play in the crime in question; that P.W.3 has got a strong motive to implicate the appellants since, according to him, A-1 and A-2 developed

illicit intimacy and thus, the prosecution has miserably failed to prove its case against either of the accused and hence, they are entitled for an

acquittal in the hands of the Court. In support of his contention, the learned Counsel relied on the decisions reported in Thangaraj v. State, By

Inspector Of Police, Kottampatti Police Station 1993-L.W.Crl. 34 and State Of Tamil Nadu v. Manmatharaj (2009) 3 MLJ (CRL.) 496 (SC).

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

made.

It is not in controversy that the boy of A-2, by name Rajesh, aged about 5, following an incident that had taken place at Ayodhyapattinam on

04.09.2006 at about 5.00 PM was taken to the private clinic of P.W.13 doctor and thereafter, taken to the Government Hospital, where he was

declared dead. On the strength of Ex.P-1, the confession made by A-2 to P.W.1, and on the report of P.W.1, a case came to be registered by

Arumbavoor Police Station in Crime No. 133 of 2006 u/s 302 I.P.C. for murder. Following the inquest made by the investigator, the dead body

was subjected to post-mortem and the doctor, P.W.14 has given a categorical opinion before the Court and also through the contents of the post-

mortem certificate marked as Ex.P-6 that the boy had died of asphyxia due to compression of neck. The fact that the boy died due to the said

cause, as put forth by the prosecution though disputed by the defence, was rightly accepted by the trial Judge. It is true, as contended by the

learned Counsel for the appellants, that the prosecution had no direct evidence to offer. But it mainly relied on the confession given by A-2. From

the evidence of P.W.3, the husband of A-2 and other witnesses, it is clear that when P.W.3 and A-2 were living together along with the two

children, she developed illicit intimacy with A-1 and they eloped from the place and on a police report by P.W.3, they were secured; that she was

living with her husband for a short time and thereafter, she continued the earlier intimacy with A-1 and she reunited him during the relevant time.

From the evidence and other witnesses, it is also quite clear that during the relevant time, A-1 and A-2 were working in a rice mill, which was

owned by P.W.7, and were staying within the premises of the rice mill along with the children. The occurrence was taken place on 04.09.2006. A-

2 appeared before P.W.1, the Village Administrative Officer of Thondamanthurai and has given a statement and the same was recorded by him,

which was marked as Ex.P-1.

The first contention put forward by the learned Counsel for the appellants that the extra-judicial confession statement was a weak piece of

evidence, has got to be rejected since now it is well settled proposition of law that a conviction could be sustained on the extra-judicial confession,

if accepted by Court. Before accepting the extra-judicial confession, the Court has to comply two tests, firstly, to whom and under what

circumstances, the extra-judicial confession was given; and secondly, whether the evidence of the person, to whom the extra-judicial confession

was given, inspires a confidence of the Court.

In the instant case, the occurrence was taken place on 04.09.2006 at 5.00 PM. According to the statement of A-2, she took the child to the

private clinic of P.W.14 and thereafter, the child was taken to the Government Hospital where he was declared dead and on the next morning, she

took the child to her native place and has given confessional statement to P.W.1 of that place and thus, it will be quite clear that P.W.1 was not a

stranger, but already known to A-2. No reason is noticed by the Court as to why the evidence of P.W.1 has to be disbelieved. The contention put

forward by the learned Counsel for the appellants that from the evidence of P.Ws.1 and 3, the confession was given to the police early and thus,

the investigation process has been started, but the extra-judicial confession was given later and, hence, it cannot be given any evidentiary value, has

got to be rejected. What could be seen from the available evidence is that there was only the information to the police, but no material was

available to indicate that the investigation process has been commenced. Even assuming that the investigation process has been commenced, the

extra-judicial confession recorded by P.W.1 will not be hit in view of the judgment of the Apex Court reported in Sivakumar v. State By Inspector

Of Police (2006)1 SCC (Cri) 470, wherein it has been held as follows:

With a view to exclude the admissibility of the confession made before a person, he must be a police officer. A Village Administrative Officer does

not answer the description. While carrying out his duty to inform the police or the Magistrate in terms of Section 40 of the Code, the Village

Headman does not act as a public servant removable only by or with the sanction of the local government nor does he act in his capacity as

Magistrate.

In the instant case, the evidence of P.W.1 coupled with the other circumstances, makes it clear that there was a voluntary extra-judicial

confession made by A-2 before P.W.1. It is well settled that conviction can be recorded solely on the basis of the extra-judicial confession if it was

found to be credible and worthy of acceptance, as found in the instant case. There cannot be any dispute on the contention that ordinarily a

statement given by the co-accused cannot be used against other accused. But in a given case like this, the Court can act on the confessional

statement of the co-accused against other accused if there are other corroborative piece of evidence to accept the same. In the instant case, the

confessional statement given by A-2 stood fully corroborated in all material particulars by all other circumstances, which are proved by other

evidence and hence, no impediment could be felt in accepting and using the same against A-1. As could be seen from the medical evidence spoken

through the doctor P.W.14, the death was caused by Asphyxia due to compression of neck and thus, it was the act of the A-1, who has

strangulated and caused the death by asphyxia. But A-2 had no role to play. Under such circumstances, it cannot be said either A-2 has got

common intention or A-2 has shared the same. But the available materials clearly indicate that it was the first accused, without any reason

whatsoever, has caused the death of the boy by causing asphyxia and hence, the act of A-1 would attract the penal provision of murder and hence,

the judgment of the trial court in so far as the first accused/ the appellant in C.A.152 of 2009 awarding the punishment of life imprisonment as well

as the fine amount, is confirmed and the appeal has got to be dismissed.

For the reasons stated above,

Crl.A. No. 152 of 2009 is dismissed.

Crl.A. No. 629 Of 2009 is allowed and the conviction and sentence imposed by the trial court are set aside and the appellant/A-2 is acquitted of

the charge against her. The appellant is directed to be released forthwith unless her presence is required in connection with any other case. The fine

amount, if any, paid by her will be refunded to her.