Venkatesan vs State

Janarthanam, J.—The appellant was the accused in S.C. No. 159 of 1986 on the file of Court of Session, Chengalpattu Division. He was

found guilty u/s 302 of the Indian Penal Code, convicted thereunder and sentenced to imprisonment for life. Aggrieved by the said conviction and

sentence, he had resorted to the present action.

Brief facts are:-

(a) The Accused is a resident of Sevilimedu Village, situate within the jurisdiction of Kancheepuram Taluk Police Station. He is a railway gateman.

One Amutha (since deceased) was his wife. Their marriage took place some ten years prior to the occurrence, which event happened on 3rd

March, 1986. The couple had been blessed with two issues -one male and the other female. The second male issue died sometime after its birth.

The first female issue had been alive. The spouses, despite having conjugal relationship, appeared to have had differences of opinion, which

resulted in skirmishes and quarrels very often between them. It was rather usual for the deceased to take shelter in her mother''s house situate

within the same village as and when there was a quarrel between her and her husband.

(b) P.W.2, is her sister and one Mahendran, is her brother. The house of the accused is situate 200 feet away on the back of the house of P.W.2.

In front of me house of the accused, the house of one Indirani is situate.

(c) On the day of the occurrence at about 8 A.M. P.W.2 and Indirani were plucking cabbage for making curry. At that time, they were able to

hear the agonising hue and cry of Amutha, emerging from her house. It transpired that mere was a quarrel between her and her husband and in the

meantime, Mahendran also came there. Seeing the pitiable plight of his sister, the deceased, Mahendran took her to his house.

(d) The deceased was complaining that she was feeling the pinch of agonising pain of her chest, as a result of the beatings, she received at the

hands of her husband. She entreated P.W.2. to take her to the hospital for the purpose of treatment. P.W.2 initially appeared to have told her that

it would be better for them to go to the hospital the next day. Consequently, the deceased had been pestering P.W.2. for herself being taken to the

hospital for the time being.

(e) However, at 4 P.M. excruciating pain developed on her chest and consequently, she requested P.W.2 to somehow or other to take her to the

hospital for the purpose of treatment. P.W.2 and the deceased thereafter went to the bus stand to board a bus to go to Government Hospital at

Kahcheepuram.

(f) At that time, the husband of the deceased, namely, the accused came there in a cycle and quarreled with P.W.2. as to how she dared to take

his wife to the hospital, when especially he/her husband, was alive, flesh and blood. So saying, he wanted to take his wife the deceased in his cycle

to the hospital for the purpose of treatment. The deceased was not amenable to such a course. However, P.W.4, a resident of that locality, who

came that way, advised the deceased to go along with her husband-the accused to the hospital. The deceased, heeding to the advice of P.W.4, got

perched on the pillion of the cycle, which the accused rode. Thereafter, the accused, along with his wife, went along Uthiramerur Road towards

Kancheepuram.

(g) P..W.5 was the then thalaiyari of Sevilimedu Village. At about 4:30 P.M. he was taking tea in a tea shop 1ocated at Mettu Street,

Kancheepuram. At that time, he happened to see the accused,, along with his wife, proceeding towards Kancheepuram in a bicycle.

(h) P.W.6 was the then thaliyari of Kalakkattur Village. On the evening of the day of the occurrence, he was available in the office of the Village

Administrative Officer of Kalakkattur Village situate at Kalakkattur Junction Road. At 4:30 P.M., he went to the tea shop there for procuring tea

for the Village Administrative Officer. At that time, he happened to see the accused, along with a lady seated in the pillion of the cycle proceeding

towards Magaral. Similarly, P.W.7, an agricultural labourer of Veechanathangal happened to see a person, looking like the accused, alone with a

lady, going in a bicycle, along Kancheepuram -Uthiramerur road.

(i) P.W.8. was the then thalaiyari of Kalakkattur Village. At 6:30 P.M. he has seen a cycle parked underneath a tamarind tree near Vedal Village.

Adjacent to that cycle, a man aged 35 and a woman, aged 25 were standing. Both of them were quarreling with each other. He again returned to

the same place after one hour and he was unable to see any of them.

(j) At about 7:30 or 8 P.M. the accused alone returned in his cycle. The lone return march of the accused in his cycle had been witnessed by

P.W.5 and 6.

(k) P.W. 1 is the Village Administrative Officer of Block No. 1 Sevilimedu Village. P.W.3. is his thalaiyari. At about 8:30 P.M. while P.W.I was in

his house, the accused appeared before him and made an extra judicial confession stating that he had murdered his wife, by getting her immersed in

a pond. P.W.I was stated to have reduced into writing what all ""the accused stated to him, which is getting reflected in Exhibit P.1. He dispatched

Exhibit P.1 through P.W.3 to Kancheepuram Taluk Police Station. He detained the. accused in his custody, waiting for the arrival of the police.

(1) P. W. 11 was the then Sub-Inspector of Police, Kancheepuram Taluk Police Station. While he was in charge of the Police Station at 10:30

P.M., he received Exhibit P.1 from P.W.I through P.W.3. He registered Exhibit P.1 as a case in Crime No. 89/86 for an alleged offence u/s 302.

I.P.C. Exhibit P.3. is the printed F.I.R. He dispatched Exhibit P.1 and P.3, through constable, PC 423 to the then Judicial Second Class

Magistrate, Kancheepuram and copies thereof to the concerned Officials.

(m) P.W.14 was the then Inspector of Police. At 11 P.M. he received copy of the express report and took up further investigation in this case. He

immediately rushed and reached Sevilimedu Village. He went to the house of P.W.I and arrested the accused. The time was then 11:30 P.M. He

interrogated the accused. The. accused gave a voluntary confessional statement u/s 27 of the Indian Evidence Act, the admissible portion of which

is Exhibit P.7.- Exhibit P-7 has been attested by P.Ws. 1 and 3. Exhibit P.2 is the signature of P.W.1 in Exhibit P.7. Thereafter, the accused took

P.W.14. to the pond near Vedal Village, where the body of the deceased was found floated.

(n) On 4.3.1986 between 5 and 8 A.M. P.W14. held inquest over the body of the deceased. During inquest, he examined P.Ws.2, 7 and others.

Exhibit P. 10 is the inquest report. In the meantime, at 7 A.M. he prepared observation mahazar, Exhibit P. 8. He also drew a rough sketch of the

scene, Exhibit P.9. He also caused the photographs of the body to be taken through P.W. 10. photographer. The pond with the floating body had

been taken photographs from two angles. No. 9 series are the photo copies and negatives. After the removal of the body from the pond,

photographs had been caused to be taken. M.O.10 series are the photo copies and negatives. After the inquest ''was over, the dead body had

been dispatched through Constable, P.W. 12. along with Exhibit P.S requisition for the purpose of autopsy.

(o) P.W. 13. was the then Assistant Surgeon, Government Head quarters Hospital, Kancheepuram. On receipt of Exhibit P.S, he commenced

autopsy over the body of the deceased at 11:30 A.M. Exhibit P.6 is the post mortem certificate she issued. She would opine that the deceased

would appear to have died of asphyxia, due to drowning 16 to 20 hours prior to postmortem examination. She would further opine that external

injuries 1 to 8, in the nature of abrasions found on the body of the deceased, could have been caused in the process of her being pushed into the

pond with water, as a consequence of her coming into contact with rough surface.

(p) After the autopsy was over P.W. 12 seized from the body M.O.I saree, M.O.2 skirt, M.O.3. Jacket, M.O.4, thali-thread with white metal

pendant, M.O.5. series metties - four in number; M.O. 6 yellow beads and M.O.7 ribbon and handed over them to P.W.4. under Exhibit PA.

Special report.

(q) P.W. 14 thereafter took the accused to the police station and then sent him to court for remand. He caused M.Os. 1 to 7 to be dispatched to

Court.

(r) P.W.9 was the then Superintendent of Sub Jail, Kancheepuram. the accused, when kept under detention in the said Sub Jail, wrote a letter

addressed to his mother-in-law Kamatchi, requesting her to safeguard and protect his daughter. The said letter dated 8.3.1986 is M.O.8, which

was recovered by P.W.14. from the said Kamatchi.

(s) After completing the investigation, P.W. 14 laid the final report under. Section 173 (2) Crl.P.C. before the then Judicial Second Class

Magistrate Kancheepuram on 31.7.1986 against the accused for the alleged offence u/s 302I.P.C.

On committal, learned Sessions Judge framed a charge u/s 302 I.P.C. against the accused. The accused when questioned as respects the

charge so framed, denied the same and claimed to be tried.

The prosecution, in proof of the charge so framed, examined P.Ws.1 to 14, filed Exhibits P.1 to P. 10 and marked M.Os.1 to 10.

The accused, when questioned u/s 313 Crl.P.C. as respects the incriminating circumstances appearing in evidence against him, denied his

complicity in the crime. He particularly denied his having made any extra judicial confession to P.W.1. He would further state that his wife-the

deceased was a mentally deranged person and she was ailing from such malady for quite some time. She had been treated for such a malady. On

the day of the occurrence, she was found missing from the house. Subsequently, he and his mother-in-law went and complained to the Village

Administrative Officer, about the missing of his wife-the deceased. P.W.I forwarded the said complaint to Kancheepuram Taluk Police Station. He

did not, however, examine any witness on his behalf. He had filed, during the course of his examination u/s 313 Crl.P.C. certain prescriptions and

medical bills, which the lower Court marked as defence exhibits, namely, Exhibits D.1 to D.4. He also filed a carbon copy of the application given

to the permanent Way Inspector at Kancheepuram for his transfer., and also a certificate issued by the said authority for his transfer and both the

documents had been marked by the Court below, as defence exhibits, namely, Exhibits D.5 and D.6.

Learned Sessions Judge, on consideration of the materials placed and after hearing the arguments of Learned Counsel for the accused and

learned Public Prosecutor, rendered the verdict, as stated above.

Mr.T.Suthanthiram, Learned Counsel appearing for the appellant, accused would with all vehemence and force, submit that the materials

available on record, in the shape of evidence - oral and documentary are not adequate, but grossly insufficient, to molt or faten Criminal liability u/s

302 I.P.C., as had been done by the Court below and therefore, he would say that the conviction and sentence, as recorded by the Court below,

are not at all sustainable in the eye of law, to which course, learned Public Prosecutor would strike a discordant note.

We may now enter into the arena of discussion, as respects the rival submissions of either Counsel.

There is no pale of controversy that the case of the prosecution hinges solely on the circumstantial evidence. Various pieces of circumstantial

evidence consist of the followings:-

Extra - Judicial confession stated to have been made by the accused to P.W.I

The existence of want of cordial atmosphere between the deceased and her husband the accused prior to her being found dead in a pond near

Vedal Village.

The incriminating circumstances of the deceased complaining chest plain to her sister, P.W.2. and requesting her to take her to Government

Hospital, Kancheepuram for the purpose of treatment.

When the deceased was found in the company of P.W.2 at the bus stand for boarding a bus to go to Kancheepuram for the purpose of

treatment, the accused came there and remonstrated that if at all anyone has to take his wife to the hospital, he and none-else could take her;

The initial remonstrance shown by the deceased to accompany her husband the accused and later her going alone with her husband - the

accused, as per the advice tendered by P.W.4.

The incriminating circumstances of the accused going along Uthiramerur Road towards Kancheepuram in his bicycle, along with a lady seated in

the pillion at 5 P.M. along Uthiramerur road towards Kancheepuram, as deposed to by P.W.7.

A person, aged 35 and a woman, aged 25, stated to have been seen by P.W.8. near a parked cycle under a tamarind tree near Vedal Village at

about 6:30 p.m. on 3.3.1986 and their disappearance within an hour therefrom.

The so-called confession u/s 27 of the Indian Evidence Act. Exhibit P.7 pursuant to which the accused taking P.W.14 to a pond near Vedal

Village where the body of the deceased was found floating; and

Medical testimony, in the shape of the evidence of P.W.13, coupled with the post mortem Certificate, Exhibit P.6

The foundation of the prosecution case mainly hinges upon the extra judicial confession Exhibit P.1, stated to have been given by the accused

to P.W.I. There is no pale of controversy that the accused had retracted the confession, during the course of his statement u/s 313 Crl.P.C.

Axiomatice a proposition of law it is that once an extra -judicial confession is made, it has to be corroborated in material particulars by evidence

aliunde, before ever the same is acted upon, provided such a confession is found to be true and voluntary. The question of seeking independent

corroboration in material particulars will be there only if there is a finding that the confession so made is voluntary, true and genuine, To put it

otherwise, if such a confession turns out to be not true, genuine and voluntary, the question of seeking corroboration in material particulars by

evidence aliunde will not at all arise for consideration. The moot question that crops up for consideration, on the facts and in the circumstances of

the case, is as to whether the extra-judicial confession, Exhibit PI. stated to have been made by the accused to P.W.I is true, voluntary and

genuine. If the answer to such a question is in the negative, then there is no need at all, as stated earlier, for us to look forward to independent

corroboration in material particulars.

It is not as if P.W.I the Village Administrative Officer is very well acquainted with the accused. It transpires from the evidence of P.W.I that he

had been appointed as Village Administrative Officer some three years prior to the occurrence and that he knew the accused some two years prior

to the occurrence. Further, nothing is getting revealed from his evidence that he is having an intimate contact with the accused or that he knew the

family affairs of the accused. Normally, a person like the accused would go to a person in whom he reposes confidence to unload his mind, after

the commission of a heinous crime out of remorse and penitence. There is nothing to choose for the accused between P.W. 1 and the police

person to unload his mind. In such a situation, we rather feel that it is nothing but a stage managed show to make to appear that the accused

voluntarily gave an extra-judicial confession to a person like P.W.I with whom there could not have been any sort of an enmity for the accused so

as to give a colour or reality to the making of such a confession. The view of ours is getting reinforced and further strengthened by the in-built

materials available in the evidence of P.W.I himself. He would state during the course of chief examination that the accused came to his house at

8:30 P.M. and deciphered the entire mystery of the murder of his wife to him by stating that he had caused her death by immersing her in a pond

and the statement so made by him, he would say, was reduced to writing as Exhibit P. 1. and the same had been dispatched to P.W.I 1, the Sub

Inspector of Police through P.W.3 his thalaiyari. Having stated so, he would have the guts and temerity to depose to, during the course of cross

examination that he never sent any complaint, excepting Exhibit P.1 to P.W. 11, Sub Inspector of Police. What all he would say is that the accused

gave something in writing to him in his own handwriting stating that he himself had murdered his wife and the same had been dispatched to the

police station. Agonising it is to note that what was given to him by the accused and despatched to the police station has not seen the light of the

day, in the sense of the same not having been produced before Court. What is further words is P.W.3, thalaiyari would state that he did not take

Exhibit P.1, at all and hand over the same P.W. 11. No doubt true it is, he had been treated as hostile, wholesale. What is further intriguing to note

is that P.W.I during the course of cross-examination, would categorically state that Exhibit P. 1. had been reduced into writing at the behest of the

police at the police station.

The dismal factors, as stated above, surrounding the making of the extra-judicial confession also prohibits the defence theory of the accused

u/s 313 Crl.P.C. What he would state therein was that his wife was a mentally deranged person and was given treatment for some years and on

the day of the occurrence, she was found missing from his house. This sort of a theory, as trotted out by the accused, is getting the seal of approval

from the sister of the deceased, namely P.W.2 and she would candidly admit, during the course of her cross examination, that her sister, the

deceased became mentally upset, after the birth of the second male child and she had been treated for her mental illness with one Dr.Syed

Rahimudeen, residing at Railway Station Road, Kancheepuram. This aspect of the matter had also been stated by the accused in his transfer

application, marked as Exhibit P.5 and the ground on which the transfer was sought for by the accused was the malady from which his wife was

suffering. He also got a favourable order of transfer, as revealed by Exhibit D.6. In such state of affairs, the defence theory, trotted out, cannot at

all be ruled out of consideration.

In such state of affairs, we are unable to affix our seal of approval to the extra - judicial confession, as is getting reflected by Exhibit P.1 as

having been made by the accused to P.W.I as being true, voluntary and genuine.

The existence of want of cordial atmosphere between the accused and the deceased sometime prior to the occurrence was sought to be

projected by the prosecution through P.W.2, sister of the deceased. She would, of course, state that at about 8 A.M. on the morning of the day of

the occurrence, while she, in the company of one Indirani residing opposite to the house of the accused was plucking cabbage for the purpose of

making curry, she heard a cry from the house of the deceased, which is situate nearly. Subsequently, she would say that her brother, Mahendran,

also came there and he took the deceased to his house. To them, it appears, the deceased complained of chest pain, as a result of the beatings she

received at the hands of her husband and entreated P.W.2 to take her to the hospital for treatment to the chest pain she had. The evidence of

P.W.2 as respects want of cordial atmosphere between the deceased and her husband on the day of the occurrence cannot at all be disbelieved.

The next incriminating circumstance to be considered is the accused being found in the company of the deceased, at or about the time of the

occurrence, and himself alone returning without the deceased - his wife. On these aspects of the matter, the prosecution relies upon the testimony

of P.Ws.5, 6, and 7. Of them, P.W.5 turned hostile wholesale and though, his earlier statements made during the course of investigation, had been

brought on record in the manner allowed by law, yet, no reliance could be attached to such testimony inasmuch as the beneficial value of such

testimony is practically ''nil''. Consequently, the testimony of P.W.5 has to be eschewed out of consideration..

There remains the testimony of P.Ws.6 and 7. P.W.6 would state that he had seen the accused proceeding in his bicycle at about 4:30 p.m.

towards Kancheepuram along Uthiramerur Road, along with a woman and he returned all alone, after sometime. He did not at all state that the

woman who got perched in the pillion of the cycle ridden by the accused, was the deceased. Worthy it is to note at this juncture that he did not

even state, after seeing the dead body of the deceased that the women, who travelled along with the accused in his bicycle, was the assessed. In

such state of affairs, no credence and weight could be attached to the testimony of P.W.6.

The evidence of P.W.7 is still worse. He would not even depose that the accused went along Uthiramerur Road towards Kancheepuram at 5

P.M. on the day of the occurrence and what he would state was that a person like the accused who was travelling on the cycle at the relevant point

of time, along with a woman perched on the pillion of his cycle. He did not at all state that the women who got perched on the cycle of the person,

like the accused, was the deceased. Such a testimony of a witness like P.W.7 is of no consequence, in the sense of the same, not advancing the

case of the prosecution to any extent whatever.

D.W.8, had been cited by the prosecution to depose to the effect that he saw a man aged 35 and woman aged 25 standing near a cycle

parked under a tamarind tree near Vedal Village and he found them disappeared, when he returned there an hour later. Of course, this aspect of

the matter, he would not depose to, whilst being examined in Court and consequently, he was treated as hostile, wholesale to the prosecution. The

previous statement made earlier had been brought on record by the prosecution in the manner allowed by law. Even if P.W.8 has deposed to

exactly what he had stated during trial, we rather feel that such a testimony can, by no stretch of imagination, be stated to be advancing the case of

the prosecution in any respect. As such, the testimony of P.W.8 is practically useless and no safe reliance can be placed upon the same.

The confession - Statement, Exhibit P. 7 stated to have been made by the accused to P.W.14 pursuant to which a floating dead body in the

pond near Vedal Village having been traced, even if construed to be an incriminating circumstance, it can, by no stretch of imagination, from the

foundation of the case of the prosecution in mulcting criminal liability upon the accused to any extent whatever and if at all, the same can serve as a

lending assurance factor. If there is any evidence aliunde implicating the accused with the crime, with which he had been charged.

We have already accepted the testimony of P.W.2 as respects the existence of want of cordial atmosphere between the accused and the

deceased sometime prior to the occurrence. Such want of cordial atmosphere by itself is rather inadequate and insufficient to find that the accused

was responsible for causing the murder of his wife the deceased.

The fact that the medical evidence, in the shape of the testimony of the doctor, P.W.13. coupled with the postmortem Certificate, Exhibit P. 6

points out that the death of the deceased was due to homicidal violence, is of no consequence, especially when there is no evidence available on

record to point out that the hand that was responsible for causing such homicidal violence was the hand of the accused.

For the reasons as above, the conviction and sentence for an offence u/s 302 I.P.C., as had been imposed upon the appellent-accused by the

Court below, are not sustainable and the accused deserves to be acquitted by giving him the benefit of reasonable doubt.

In the result, the appeal is allowed, the conviction and sentence, as had been imposed upon the appellent-accused by the Court below are set

aside and he is acquitted. The bail bond, if any, executed by him, shall stand cancelled.