Velu @ Velusamy vs The State

P. Devadass, J.—The appellant is accused in S.C. No. 19 of 2009 on the file of Principal Sessions Judge, Namakkal. For convenience

sake, in this judgment, the appellant will be referred as accused. The accused stood charged for an offence u/s 302 IPC. The learned Sessions

Judge found him guilty u/s 302 IPC., and sentenced him to life and fined him Rs. 10,000/- in default to under go one year imprisonment.

To prove the charge, prosecution examined P.Ws.1 to 19, marked Exs.P1 to P18 and exhibited M.Os.1 to 11.

The prosecution case in brief is stated as follows:-

(i) P.W.1 Chinnammal is residing in Pommakkalpalayam in Tiruchengode Taluk in Namakkal District. Her daughter P.W.2 Palaniammal was

married to Palanisamy(deceased), who is brother of P.W.1. Poongodi(P.W.5), Sathiyapriya and Gowrishankar(P.W.3) were born to them. They

are living in Kutichipalayam. Accused married P.W.5. They have two sons. They are living in Varapalayam.

(ii) Illegal intimacy developed between the accused and P.W.2. The deceased reported this to the panchayat. P.Ws.4 & 6 Thimma Naicker and

Myilsamy, the panchayathars, warned the accused not to visit P.W.2''s house.

(iii) On 15.05.2008, P.Ws.2 & 3 came to Pommakkalpalayam to see the ailing P.W.1. Accused also came there. At about 5 p.m.,accused called

P.W.2. She refused. At that time, Palanisamy came. He scolded the accused. Quarrel arose between them. Accused threatened to kill him. P.W.3

witnessed this.

(iv) On the night, in P.W.1''s house, P.Ws.1 & 2 slept on the veranda. Out side the house, in a cot, Palanisamy and P.W.3 slept. At about 1 a.m.,

near the cot, P.W.3 seen the accused with a big stone. P.W.3 screamed. P.Ws.1 and 2 woke up. Accused scolding Palanisamy that he is an

hindrance to his affair with P.W.2 thrown the stone on his head. Palanisamy sustained severe head injury. P.Ws.1 to 3 witnessed this.

(v) In the ambulance driven by P.W.8 Ayyavoo, injured Palanisamy was taken to Government Hospital, Tiruchengode. P.W.9 Dr.Jayakumar gave

him first aid. (See Ex.P.4 Accident Register). On 16.05.2008, early morning, the injured was taken to Government Hospital, Erode.

(vi) At about 8 a.m., at the Tiruchengode Taluk Police Station, P.W.1 gave Ex.P1 complaint to P.W.18, Jothimani, Sub-Inspector of Police. He

registered a case in Crime No. 282 of 2008 u/s 307 IPC(Ex.P11 F.I.R). He sent the F.I.R. to the Court. He also sent the copies of same to his

Inspector P.W.19 Thangavel and to superior officers.

(vii) P.W.19 took up his investigation. At the scene place, in the presence of P.W.7 Thamaraiselvan and Murugan, P.W.19 prepared Ex.P2

observation Mahazar. Drew Ex.P12 Rought sketch. P.W.13 Selladurai photographed the scene place. P.W.19 seized bloodstained-earth

(M.O.1), plain-earth (M.O.2), bloodstained-stone (2 Nos _ M.O.3), bloodstained-Cot (M.O.4), bloodstained-turkey towel (M.O.5) and

bloodstained-cotton saree(M.O.6) under Ex.P3 mahazar. He examined the witnesses and recorded their statements.

(viii) At the Government Hospital, Erode, P.W.11 Dr.Parameswaran treated Palanisamy. On 19.05.2008, at about 10 a.m., Palanisamy passed

away. Ex.P7 Death Intimation was given to P.W.19. He altered the section of law to section 302 I.P.C. He sent Ex.P14 Alteration Report to the

Court through P.W.16 Ravichandran, Head Constable. P.W.14 Lakshmanan photographed the dead body.

(ix) At the mortuary, in the presence of panchayatars, P.W.19 conducted inquest over the dead body of Palanisamy (Ex.P13 inquest report). He

gave Ex.P5 requisition to the hospital to conduct the post-mortem.

(x) On 19.05.2008, at about 4.30 p.m, at the said hospital, P.W.10 Dr.Radha Soundararajan conducted autopsy on the dead body. She found a

sutured wound 28 inches on the back of his left ear, underneath fracture of Temporal bone and parietal bone. There was fracture of base of skull

bone. Right parietal region was covered with blood clot. After post-mortem, P.W.17 Head Constable Ravikumar, recovered M.O.11 dhoti from

the dead body and handed over it to P.W.19.

(xi) P.W.10 opined that the deceased would appeared to have died of head injury. (See Ex.P6 Post-mortem certificate). She also opined that the

injuries on his head could be possible by stoning him on his head with stones like M.O.3.

(xii) On 21.05.2008, P.W.15 Kuppusubramaniam, Village Administrative Officer, Sirumolasee was in additional charge of Animoor Group. On

that day, at about 10 a.m., when P.W.15 and his Assistant were in their Office, the accused surrendered before P.W.15. He confessed that on the

night of 15.05.2008, he had thrown a big stone on the head of his father-in-law, later, he died of head injury and also told him other details of the

case. P.W.15 reduced them into writing. Accused signed it. It is Ex.P10 Extra-judicial confession.

(xiii) At about 11 a.m., at the Tirchengode Taluk Police Station, P.W.15 had handed over the accused to P.W.19. He arrested him. In their

presence, P.W.19, recorded the confessional statement(Ex.P.15) of the accused that he will show him the place of occurrence. Accordingly, he

took them to the said place.

(xiv) P.W.19 produced the accused to the Court for judicial custody. Under Ex.P17 letter, he sent the case-properties to the Court for being sent

to the Chemical Lab. After analysis, M.Os.1,3 to 6 were found containing ''A'' group human blood(Exs.P8 & 9 Biology and Serology reports).

Concluding his investigation, P.W.19 filed the Final Report for an offence u/s 302 I.P.C.

On the incriminating aspects in the prosecution evidence, the trial court examined the accused. He had denied his complicity in this case. He did

not examine any witness nor produce any document.

On appreciation of the evidence, the learned Sessions Judge came to the conclusion that though in their cross examination P.Ws.1 to 3 have not

supported the prosecution, their evidence cannot be rejected in toto, their positive evidence in their chief examination and other materials on record

establishes that on the occurrence day, the accused had thrown the stone on the head of his father-in-law, who died subsequently and thus, found

him guilty u/s 302 IPC and sentenced him as stated already.

According to the learned counsel for the accused, out of the three eye witnesses, P.W.3 was treated hostile. In their cross examination, P.Ws.1

and 2 have stated that they have deposed in the chief examination as tutored by the police. It is quite risky to place reliance on such witnesses. In

such circumstances, the benefit of doubt should be given to the accused and not to the prosecution. In support of his this submission, the learned

counsel cited Kunju Muhammed Alias Khumani and Another Vs. State of Kerala 2004 SCC (Cri) 1425. Ex.P.10 Extra-judicial confession stated

to have been given by the accused to P.W.15 is not genuine and voluntary, it was obtained at the behest of the police. P.W.15 is quite a stranger,

no reason has been given by the prosecution as to why the accused had chosen him to make in-culpatory statement to him. The cross examination

of P.W.15 shows that he cannot be believed and in the circumstances it is quite unsafe to act upon his evidence.

On the other hand, the learned Additional Public Prosecutor would submit that merely because P.Ws.1 to 3 have not supported the prosecution

in their cross examination, their evidence cannot be thrown out lock, stock and barrel. After a long gape, they were cross examined by the

defence, in between, they were gained over by the defence. There is no delay in lodging the F.I.R., the evidence of autopsy Doctor established that

the deceased suffered death due to homicidal violence. In the light of the above, the positive evidence of P.Ws.1 to 3 in their chief examination

cannot be brush aside. Their such evidence can be acted upon. The learned Additional Public Prosecutor cited Khujji alias Surendra Tiwari Vs.

State of Madhya Pradesh, and State of Gujarat Vs. Anirudhsing and Another 1997 SCC (Cri) 946. He also submitted that the accused had made

Ex.P10 Extra-judicial confession to P.W.15, V.A.O. recounting his commission of the offence and it can be acted upon. Thus, the prosecution has

established its case beyond all reasonable doubts. Thus, the trial Court has rightly convicted and sentenced the accused and in the circumstances

no interference is called for to the judgment of the trial Court.

We have perused the evidence recorded in the trial Court. Went through the findings of the trial Court. We have given our anxious consideration

to the arguments of both sides. Perused the decisions cited by them.

Accused married P.W.5 Poongodi, daughter of deceased Palanisamy and P.W.2 Palaniammal. The evidence of P.Ws.4 and 6 Thimma Naicker

and Mayilsamy discloses that there was illegal intimacy between the accused and P.W.2.

On the midnight of 15.05.2008, in front of the house of P.W.1 Chinnammal, grand mother of P.W.5, her brother Palanisamy was found with

head injury. On 19.05.2008, he died at the Government Hospital,Erode. Dissection of his dead body by P.W.10 Dr.Radhasoundhararajan

revealed that he died of head injury(See Ex.P6 Post-mortem certificate). There is no doubt that Palanisamy died of homicidal violence.

This case is based on the evidence of eye witnesses, namely, P.Ws.1 to 3 and Ex.P10 Extra-judicial confession of the accused. We shall

proceed to see them one by one.

P.Ws.1 to 3 Chinnammal, Palaniammal and Gowri Shankar are mother-in-law, wife and son respectively of deceased Palanisamy. They are

the eye-witnesses in this case. Palanisamy was residing with his family in Kutchipalayam. While his mother-in-law is residing in Pommakkalpalayam

in Tiruchengode Taluk in Namakkal District. His son-in-law(the accused) is living in Varadapalayam.

During May,2008, P.W.1 was ailing. Palanaisamy, his wife (P.W.2) and their son (P.W.3) came to Pommakkalpalayam to see P.W.1. The

accused also came there. During the night, all of them slept in P.W.1''s house.

In the trial Court, on 2.9.2009, P.Ws.1 to 3 were examined in chief. In her chief examination, P.W.1 had stated that on the night of 15.5.2008,

around 1 a.m., on the alarm of her grandson (P.W.3), she had woke up and seen the accused throwing a stone on the head of her son-in-law

Palanisamy. On the next day, at about 8 a.m., at the Tiruchengode Taluk Police Station, she gave Ex.P1 complaint to P.W.18 Jothimani, Sub-

Inspector of Police, who registered this case.(See Ex.P11 F.I.R).

In her chief examination, P.W.2 Palaniammal had stated that on that day night, the accused had thrown the stone on the head of her husband.

Then P.W.3 was 12 years old and was studying in VI standard in a school, when he was examined in the trial Court, he was 13 years old and was

studying VII standard. In his chief examination, he had stated that he had seen the accused throwing the stone on the head of his father.

Subsequently, on 16.12.2009, on 06.01.2010 and on 15.07.2010 P.Ws.1,2 and 3 respectively were cross examined by the defence. In her

cross examination, P.W.1 had stated that police had simply obtained her thump impression in a paper and she had deposed in her chief

examination as tutored by the police, she had completely resiled from her testimony given in her chief examination. In the cross examination, she

had not supported the prosecution. She was not treated hostile by the prosecution.

In her cross examination, P.W.2 had also stated that she had deposed in her chief examination as tutored by the police. Thus, in her cross

examination, she had also resiled from her testimony given in her chief examination. Prosecution has not treated her hostile.

P.W.3 has also resiled from his testimony given during his chief examination. He had also stated that he had deposed in his chief examination as

told by the prosecution. In the circumstances, prosecution has treated him hostile and with the permission of the Court, when he was cross

examined by the prosecution, he had reiterated what he had stated during the cross examination by the defence.

Now, in the facts and circumstances, question arises what is the evidenciary value of their evidence given in their chief examination.

It is not the law or rule that whenever prosecution witnesses turns hostile, their entire evidence has to be rejected. Their such evidence cannot

be treated as effaced or washed off the records altogether. It can be accepted to the extent their version is found to be dependable on a careful

scrutiny thereof. {See KHUJJI (supra) and NIRUDHSING (supra)}.

In Kunju Muhammed 2004 SCC (Cri) 1425 one of the prosecution witness, in his chief examination, deposed in support of the prosecution.

After a gape of time, when he was cross examined by the defence, he had not supported the prosecution and the prosecution has not treated him

hostile. Under such circumstances, the Hon''ble Apex Court held that his evidence helps the defence and benefit of such evidence should go to the

accused and not to the prosecution and no credence be placed on the evidence of such an unreliable witness.

P.Ws.1 to 3 are closely related to the deceased as well as to the accused. Each will be a sufferer as against the other. Although they have

deposed positively in their chief examination, when cross examined by the defence they have stated that in their chief examination they have

deposed so due to the influence of the police and that they have not supported the prosecution. M.O.6 bloodstained-saree recovered from the

scene place has not been accounted for. P.W.1 had completely disowned Ex.P1 complaint. In other part of evidence, there is no positive evidence

as to the basic fact, namely, that the accused had assaulted the deceased with a stone. In the circumstances, their evidence in their chief

examination cannot be accepted as Gospel truth 2004 SCC (Cri) 1425. They are unworthy of credence.

Ex.P10 Extra-Judicial Confession is stated to have been given by the accused voluntarily to P.W.15, Kuppusubramanian, V.A.O.

The concept of Extra-Judicial Confession emanated from Section 24 of the Indian Evidence Act, 1872. If it is voluntary and truthful and made

in a fit state of mind, it can be relied on. Extra-judicial confession must also be proved like any other fact. It depends upon the veracity of the

witness to whom it has been made.(See State of Rajasthan Vs. Raja Ram, and Sk. Yusuf Vs. State of West Bengal, . Unambiguous extra-judicial

confession posses high probative value. All the relevant circumstances, such as the person to whom the confession was made, time and place of

making it and the circumstances in which it was made have to be scrutinized.

In this case, the occurrence was on the mid -night of 15.05.2008. During May,2008, P.W.15 Kuppu Subramaniam was Village Administrative

Officer, Sirumolasee group of villages. According to him, on 21.05.2008, he was holding additional charge of Animoor group of villages, on that

day, at about 10 a.m., when he and his Assistant were in their Office, the accused surrendered before him and confessed that he having aggrieved

over the objection of his father-in-law in his having illegal intimacy with his mother-in-law, on the night of 15.05.2008, in Pommakkalpalayam, he

had thrown a stone on the head of his father-in-law. P.W.15 further stated that he had reduced his confession into writing, obtained his signature

and that is Ex.P10 Extra-judicial confession.

P.W.15 further stated that on the same day, at about 11 a.m., at the Tiruchengode Taluk Police Station, he had produced the accused to

P.W.19, Thangavel, Inspector, who had arrested him and recorded his confessional statement Ex.P15.

Admittedly, based upon Ex.P15 no recovery was effected. During the cross examination, it was suggested to P.W.15 by the defence that on

19.05.2008 itself the accused was arrested by the police at Pallapatty and a confession was obtained from him and he was shown as surrendered

on 21.05.2008.

Ex.P10 contains A to Z, namely, the entire details of the prosecution case, family history, history of the accused and history of each witness.

Ex.P10 is entire prosecution case in a capsule. In his cross examination, P.W.15 had admitted that prior to 21.05.2008, he did not know the

accused and he is quite a stranger to him. It is not stated by the prosecution why and for what reason the accused had chosen P.W.15 to make

inculpatory statement implicating himself in a murder case. Actually P.W.15 is V.A.O. of some other village. He is not the V.A.O. of the village to

which the accused belongs. He is not a friend nor a relative or a known person or a person to whom in normal circumstances, the accused would

repose confidence in him and make confession to save him.

In his cross examination, P.W.15 admits that he has no evidence to show that on 21.05.2008, he held additional charge of Animoor group of

Villages. In Ex.P10, P.W.15 signed as V.A.O, Animoor group. He did not mention that he had signed in it as incharge V.A.O. He has no written

proof to show that on that day, he held additional charge of V.A.O., Animoor group of villages. He also admits that he did not inform his superior

officers as to he having recorded Ex.P.10 Extra-judicial confession from the accused.

In his evidence, P.W.15 had stated that when the accused appeared before him in his office, when Ex.P10 was recorded and when the

accused was taken to the police station and produced before P.W.19 his Assistant was with him. But, in Ex.P10, P.W.15 did not obtain his

signature or atleast he was examined to corroborate him.

During his examination u/s 313 Cr.P.C., the accused had retracted the extra-judicial confession. The retracted confession requires careful

scrutiny.{See State of A.P Vs. S. Swarnalatha and Others CDJ 2009SC 1599}. In K.N. Narendranath Vs. State of Karnataka, CDJ 2009 SC

1074, when the conviction of the appellant u/s 302 IPC was primarily based on the extra-judicial confession, the Apex Court refused to uphold the

conviction. Recently, in Ranjit Singh Vs. State of Punjab, CDJ 2011 SC 437, the Hon''ble Apex Court held that an extra-judicial confession is an

extremely weak kind of evidence and conviction on its basis alone is rarely recorded when there is no other evidence. Very recently, in Sunil Rai

Alias Pauya and Others Vs. Union Territory, Chandigarh 2012 (1) SCC (Cri) 543, Hon''ble Apex Court after referring to S. Arul Raja Vs. State

of Tamil Nadu, , popularly known as Aladi Aruna murder case held that extra-judicial confession can only be used for corroboration.

In this case, we have already seen that the evidence of P.Ws.1 to 3 is unworthy of credence. In the facts and circumstances, we cannot place

reliance on their testimony in the chief examination as Gospel truth. Now what remains is the alleged voluntary extra-judicial confession (Ex.P10)

by the accused to P.W.15, The occurrence was on the mid-night of 15.05.2008, only after a gape of 6 days, on 21.05.2008, to an unknown

person, utter stranger, with whom he has no reason or occasion to repose confidence to make incriminating statement implicating him in a murder

case and within one hour of Extra-judicial confession, the accused was in the custody of police and thus the evidence of P.W.15 and Ex.P10

suffers from many inherent improbability. In the said circumstances, Ex.P10 cannot be believed to have been made by the accused voluntarily and

it is genuine. In the circumstances, it is quite unsafe to record a conviction u/s 302 IPC., primarily and solely based on Ex.P10 extra-judicial

confession pressed into service in this case.

In view of the foregoings, we are of the view that the prosecution has not established its case beyond all reasonable doubts. Thus, we are not

upholding the findings recorded by the trial Court. Thus, giving him the benefit of doubt, the accused is entitled to be acquitted. In the result, this

Criminal Appeal is allowed. The conviction recorded and the sentence awarded to the appellant by the learned Principal Sessions Judge,

Namakkal in Sessions case No. 19 of 2009 on 20.04.2011 are set aside and the accused is acquitted of the charge. The appellant shall be

released from jail, if he is no longer required for any other case, proceeding or order. Fine amount, if already paid shall be refunded to him.