IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 6-11-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRL.A.No.662 of 2007 Viji @ Vijayaraja .. Appellant/Accused vs State represented by: Inspector of Police Tiruppur South Police Station Coimbatore District .. Respondent/Complainant Crime No.1457 of 2005 Criminal appeal preferred under Sec.374(2) of Code of Criminal Procedure against the judgment of the Additional Sessions Judge, Fast Track Court No.IV, Coimbatore @ Tiruppur, in S.C.No.314 of 2006 dated 31.5.2007. For Appellant : Mr.R.John Sathyan For Respondent : Mr.P.Kumaresan Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the Additional Sessions Division, Fast Track Court No.IV, Coimbatore at Tiruppur, in S.C.No.314 of 2006 whereby the sole accused/appellant stood charged under Sections 392, 394 read with 397, 302 and 309 of IPC. 2.On trial, the appellant/accused was found guilty under Sections 309, 392 read with 397 and 302 of IPC and awarded six months Simple Imprisonment, seven years Rigorous Imprisonment and life imprisonment with a fine of Rs.1000/- and default sentence respectively. 3.The short facts necessary for the disposal of this appeal can be stated thus: (a) P.W.1 is a resident of II Street, Kurinji Nagar, Tiruppur. The deceased Dhanabagyam was his wife. P.Ws.2 and 9 are the daughters of P.W.1. P.W.9 was living along with her husband P.W.10. P.W.10 was carrying on his export business in the name of Royal Classic Mill. The accused was employed originally as a Driver in that company for a period of two years, and thereafter, he was working in the house of P.W.10. https://hcservices.ecourts.gov.in/hcservices/ Thus, he was acquainted to all the members of P.W.10's family. P.W.10 used to go for his business in the early hours and used to return in the night. P.W.2 used to be with her mother, and she was also absent on the date of occurrence. On 2.9.2005, P.W.9 was to Coimbatore along with her sister-in-law, and at that time, the accused took the vehicle in the wrong side, and he was also fined. On that day, he was not found in the usual way. (b) On the date of occurrence i.e., 3.9.2005, P.W.11, the Assistant Manager of the company of P.W.10, went to the canteen for taking lunch. At that time, the accused came there and asked his moped. At first, he refused. The accused told him that he was directed by his boss to do certain things, and thus, he was requesting so. In view of the same, P.W.11 handed over his moped. At about 1.30 P.M., he just left the place, but he did not return. At about 4.00 P.M., P.W.11 reported the matter to P.W.19, the Manager, that he did not return the moped. P.W.6 was doing ironing work along with her son in the same street where P.W.1 was living. P.W.5 is residing in the first house in the same street. (c) At about 2.00 P.M., P.W.6 heard the distressing cry from inside the house of the deceased. Immediately, she called her son, and P.W.5 immediately came out of the house. All of them went nearby; but, the house was kept locked. They also informed to P.W.1. P.W.1 immediately rushed to the place; but, the house was bolted inside. They broke open the lock and got inside. P.W.1 found his wife in a pool of blood. P.W.1 was suspecting that somebody was running in the upstairs. Then, immediately they went to the upstairs where the bathroom was bolted inside. They broke open the doors, and at that time, they found the accused with injuries in the toilet. All of them went nearby and took him. He was actually sent to the hospital, and immediately, P.W.1 was able to see 11 sovereigns of gold jewels worn by the wife, was also missing, apart from other jewels. Immediately, a phone call was given to the police. (d) On receipt of the phone call at 3.05 P.M., P.W.23, the Inspector of Police of the said circle, rushed to the place of occurrence and recorded the statement of P.W.1 which is marked as Ex.P1, on the strength of which a case came to be registered in Crime No.1457 of 2005 under Sections 392, 394 read with 397 and 302 of IPC. The printed FIR, Ex.P10, was despatched to the Court. Then, the sniffer dog was also brought. (e) P.W.23 took up investigation and prepared an observation mahazar, Ex.P2, and a rough sketch, Ex.P11. Thereafter, the inquest was conducted on the dead body in the presence of witnesses and panchayatdars, and an inquest report, Ex.P12, was prepared. M.O.1, knife, M.O.2, window screen, M.O.3, scissors, M.O.4. Hip coir, M.O.5, bulb, M.O.6, bloodstained mosaic stones, M.O.7, sample mosaic stones, M.O.8, sample blood, M.O.9, sample blood, M.O.10, gold chain with mangala suthra, and M.O.11, bangles, were recovered by him under mahazars, Exs.P3 and P4 respectively. Thereafter, the dead body was sent to the Government Hospital along with a requisition, Ex.P7, for the purpose of autopsy. https://hcservices.ecourts.gov.in/hcservices/ (f) P.W.21, the Tutor in Forensic Medicine, Coimbatore Medical College Hospital, on receipt of the said requisition, conducted autopsy on the dead body of Dhanabagyam and has issued a postmortem certificate, Ex.P8, with his opinion that the deceased would appear to have died of shock and haemorrhage due to multiple injuries sustained by her. (g) The accused was actually under treatment, and arrest was shown on 23.9.2005. Then, he was sent for judicial remand. All other witnesses were examined, and their statements were recorded by the Investigator. All the material objects were sent for chemical analysis which brought forth a report, Ex.P13 series. On completion of investigation, the Investigating Officer filed the final report. 4.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 23 witnesses and also relied on 13 exhibits and 15 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which he flatly denied as false. No defence witness was examined. Then, the Court below heard the arguments advanced, took the view that the prosecution has proved the case beyond reasonable doubt in respect of all the charges and awarded the punishment as referred to above. Hence, this appeal at the instance of the appellant. 5.Advancing arguments on behalf of the appellant, the learned Counsel Mr.R.John Sathyan made the following submissions: (i) The prosecution has miserably failed to prove its case. The occurrence, according to the prosecution, has taken place at 2.00 P.M. on 3.9.2005. No one of the witnesses though examined 19 in number, has spoken about the occurrence. But, the prosecution would claim that the accused was actually found and caught red handed which is thoroughly unbelievable. If it is true, the prosecution could have produced the accident register of the accused, the earliest document; but, it has been suppressed. It would go to the root of the matter to disbelieve the prosecution case. (ii) Ex.P6 is the dying declaration which is alleged to have been given by the accused to P.W.18, the Judicial Magistrate. Since the accused was alive, the document had no significance in law; but, the lower Court has treated it as a judicial confession. 6.The learned Counsel would further add that if a statement is to be recorded by the Judicial Magistrate under Sec.164 of Cr.P.C., certain procedural formalities have got to be followed; that apart from that, a certificate has got to be appended, but in the instant case, it is not done, and hence it cannot be called as a judicial confession at all; and that if it is neither a dying declaration nor a judicial confession, then the said document has no legal significance or cannot be taken as evidence at all. 7.Added further the learned Counsel that in the instant case, the earliest complaint which was given through phone and which reached https://hcservices.ecourts.gov.in/hcservices/ P.W.23, the Inspector of Police, has been suppressed; that had it been produced, it would have spoken the entire truth of the prosecution case; that further the prosecution story itself is thoroughly unbelievable; that there is no motive for him; but, the lower Court has been carried away by the theory put forth by the prosecution as if the accused was caught red handed and also with jewels and hence, he was the culprit, but it was not so; that under the circumstances, the prosecution has miserably failed to prove its case, and hence he is entitled for acquittal in the hands of this Court. 8.The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 9.It is not a fact in controversy that one Dhanabagyam wife of P.W.1, was done to death in an incident that took place at 2.00 P.M. on 3.9.2005 in her residence. Following the inquest made by P.W.23, the Inspector of Police, the dead body was subjected to postmortem by P.W.21, the Doctor. As a witness, he deposed before the Court, and the postmortem certificate issued by him was also marked as Ex.P8 whereby it could be seen that she died out of shock and haemorrhage. The said fact was never disputed by the appellant/accused at any stage of the proceedings. Hence it could be recorded so. 10.The gist of the case of the prosecution as could be seen from the above narration, was that the accused was actually employed in the company of P.W.10; that on the day of occurrence at about 1.30 P.M., he took the two-wheeler of P.W.11, the Assistant Manager, went to the place where Dhanabagyam was alone, caused her death by stabbing her and also robbed her jewels. From the evidence of P.W.6, it would be quite clear that at about 2.00 P.M., she heard the distressing cry from inside the house of Dhanabagyam; that immediately she shouted and went over along with her son P.W.5, and they found the house locked. According to the witnesses, they phoned over to P.W.1, and all went over there, and when it was found locked, they broke open the lock and got inside; but, they were able to find the dead body of Dhanabagyam in a pool of blood. At that time, P.W.1 was able to see 11 sovereigns of jewels which were worn by deceased on the neck, were found missing, and they were able to hear the noise at the time when somebody was running in the first floor. They immediately had a suspicion and went to the first floor where they found the both room of the first floor was bolted inside, and even after knocking, it was not opened. Then, they broke open the same, and at that time, the accused was found in the toilet with injuries. They immediately caught him, and he was taken to the hospital where he was actually under treatment. He was shown arrest and was also produced. All the above narration of the witnesses would clearly indicate that the accused has been caught red handed at the time of the occurrence. It is pertinent to point out that except Dhanabagyam nobody else was there, and the house was also locked inside. When it was broke open and they got entry, they were able to see the accused who also sustained injuries, and he was also in possession of the jewels. All would go to show that except the accused, no one could have committed the offence. 11.Now the contentions put forth by the learned Counsel for the https://hcservices.ecourts.gov.in/hcservices/ appellant have got to be taken up for consideration. The first contention that there was a phone call which was received by P.W.23, the Inspector of Police, and that is the first information which reached the police, and the same has been suppressed though attractive, cannot be accepted for the simple reason that all the information received by the police in respect of the offence, cannot constitute the first information as contemplated under Sec.154 of Cr.P.C. Even as per the prosecution case, on receipt of the information, P.W.23 proceeded to the the spot. What was the information given cannot be the first information regarding a cognizable offence; but, the information is relating to a murder that has taken place in a particular place which, in the considered opinion of the Court, would not constitute the first information as envisaged under Sec.154 of Cr.P.C. 12.As far as the second contention that the accident register of the accused has been suppressed, it is true that the accident register of the accused has not been produced by the prosecution. The non- production of the said document, in the considered opinion of the Court, will not in any way affect the truth of the prosecution case since it is a case where the accused was immediately caught red handed, and he was also given treatment. The fact that treatment was given to him from 3.9.2005 till he was discharged was not a fact disputed by him. 13.As far as the contention regarding Ex.P6 was concerned, according to the prosecution, P.W.18, the Judicial Magistrate, recorded the dying declaration of the accused since his condition was found to be serious. Since he was alive, the document cannot be termed as a dying declaration. Ordinarily it can be taken only as a statement recorded under Sec.161 of Cr.P.C. But, the trial Court has given treatment to the said document, Ex.P6, as one of dying declaration. As rightly pointed out by the learned Counsel for the appellant, if it has got to be treated as a judicial confession under Sec.164 of Cr.P.C., not only procedural formalities to be adopted, but also a certificate to be appended by the Magistrate. Both have not been done in the case on hand, and hence Ex.P6 cannot be considered as a judicial confession. It is true that it is neither a dying declaration nor a judicial confession under Sec.164. But, in the considered opinion of the Court, there cannot be any impediment in law to treat the document as an extra- judicial confession. In the instant case, the fact that the accused has given a statement to P.W.18, the Judicial Magistrate, cannot be disputed. Now, the Magistrate has spoken to the fact that it was the accused who gave the statement. The statement has also been recorded. Merely because of the reason P.W.18 happened to be a Judicial Magistrate, it cannot be stated that the document Ex.P6 cannot be treated even as an extra-judicial confession. Before accepting the extra-judicial confession, the Court has to apply two tests. Firstly, the Court has to look into the circumstances under which the statement was given. Secondly, whether the evidence of the person to whom such a statement was given, has inspired the confidence of the Court. In the instant case, both the tests if applied, would satisfy the circumstances. Under the circumstances, Ex.P6 can be considered as an extra-judicial confession made by the accused to P.W.18, and hence that has got to be accepted. https://hcservices.ecourts.gov.in/hcservices/ 14.Apart from all the above, the jewels belonging to Dhanabagyam have been recovered from the accused immediately, and they have been identified. The medical evidence also stood in corroboration of the prosecution case. All put together would clearly show that it was the accused who actually committed the murder for gain and also robbed the jewels. He has also made an attempt to commit suicide. The lower Court was perfectly correct in recording a finding that he is guilty of those charges. There is nothing to interfere in the judgment either legally or factually. 15.In the result this criminal appeal fails, and the same is dismissed. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar nsv/ To: 1.The Judicial Magistrate No.2,Tiruppur. 2.-Do- Thro' The Chief Judicial Magistrate, Coimbatore. 3.The Additional Sessions Judge Fast Track Court No.IV Coimbatore at Tiruppur 4.The Principal Sessions Judge, Coimbatore. 5.The District Collector,Coimbatore District. 6.The Director General Of Police,Chennai-4. 7.The Inspector of Police Tiruppur South Police Station Crime No.1457 of 2005 Coimbatore District 8.The Public Prosecutor,High Court, Madras 9.The Section Officer, Criminal Section, Madras High court, Chennai. CC to Mrs.Vijayakumar Natarajan, Advocate, Sr.No.61737 CRL.A.No.662 of 2007 VM(CO) EM/14.11.08 https://hcservices.ecourts.gov.in/hcservices/