IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.07.2011 C O R A M THE HONOURABLE MR. JUSTICE C.NAGAPPAN AND THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN CRIMINAL APPEAL NO.583 OF 2009 Baskar @ Vijayabaskar .. Appellant/Accused Vs. State, rep. By the Inspector of Police Muthupettai Police Station Tiruvarur District. (Crime No.138/2007) .. Respondent/Complainant Criminal Appeal filed under section 374(2) of Criminal Procedure Code against the conviction and sentence imposed upon him by the learned Sessions Judge, Thiruvarur in S.C.No.27 of 2008 dated 31.07.2009. For Appellant : Mr.D.Veerasekaran For Respondent : Mr.V.M.R.Rajendran Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by C.NAGAPPAN, J.) The appellant Baskar @ Vijayabaskar is the sole accused in Sessions Case No.27 of 2008 on the file of the Sessions Judge, Thiruvarur, and he has preferred this appeal challenging the conviction and sentence imposed on him by the judgment dated 31.07.2009, in the case. For the sake of convenience, in this judgment, the appellant will be referred to as the accused. 2.The charge under Section 302 IPC was framed against the accused Baskar and the learned Sessions Judge, Thiruvarur found the accused guilty of the charge and convicted and sentenced him to undergo imprisonment for life and to pay a fine of Rs.30,000/- in default, to undergo rigorous imprisonment for one year and further directed to set off the period of imprisonment already undergone under Section 428 Cr.P.C. 3.To prove the occurrence, the prosecution examined P.Ws.1 to 12 and marked Exs.P1 to P13 and M.Os.1 to 6. 4.The case of the prosecution is briefly stated thus: (i) P.W.1 Anjammal is the mother of the deceased Susila and P.W.2 Priya is the daughter of the deceased. Susila was given https://hcservices.ecourts.gov.in/hcservices/ in marriage to Packirisamy and Nathiya and P.W.2 Priya were born to them. Packirisamy died and after a period of five years, Susila remarried Vedarathinam and a male child was born. Vadarathinam went to Dubai ten years prior to occurrence and he used to send cash and jewels to Susila. Accused Baskar was running a Travel Agency in Karayankadu and there was money transaction between him and Susila which ended in illicit intimacy between them. P.W.2 Priya joined Computer Course in 2006 and Susila along with the accused Baskar admitted her in the hostel named Bharathamatha Welfare Centre run by P.W.7 Manimaran. On 06.02.2007 at about 4.30 a.m., accused Baskar came to the hostel and sought for permission from P.W.7 Manimaran to meet P.W.2 Priya. Priya was not willing to meet him and P.W.7 Manimaran refused permission to the accused. Thereafter, when she was alone in the house of her grandmother, the accused threatened P.W.2 Priya that she should not marry anybody and in the event of doing so, he would kill her as well as the other person. P.W.1 Anjammal underwent eye operation on 09.05.2007 and to help her, Susila was staying with her along with P.W.2 Priya. On 22.05.2007, Susila left the house by informing P.W.1 Anjammal that the accused Baskar has promised to return cash and jewels and she is going to meet him and would return home in the night. At 4.00 p.m. Susila contacted P.W.2 Priya by phone and informed her that a Panchayat is going to be held in Thevar's house pertaining to return of cash and jewels by the accused Baskar and she would participate and return home in the night, but Susila never returned. On 23.05.2007 at about 8.00 a.m., P.W.1 Anjammal was informed by the Villagers that Susila is lying dead with the injuries near Karpaganatharsamy Temple and she went and saw the same. P.W.1 Anjammal gave an oral statement, which was reduced into writing by P.W.11 Inspector Gunaseelan. He registered a case in Crime No.138 of 2007 under Section 302 IPC and prepared Ex.P8 First Information Report and sent the same to the Court and higher Officers through P.W.9 Constable Paulraj. He went to the occurrence place at 11 O' clock and prepared Ex.P2 Mahazar in the presence of P.W.4 Gajendran and another. Ex.P9 is the Rough sketch prepared by him. He seized M.O.1 Blood stained earth, M.O.2 sample earth from the occurrence place under Ex.P3 Mahazar in the presence of same witnesses. He took M.O.4-series Photographs of the occurrence place and the body. He examined P.W.1 Anjammal, P.W.2 Priya, P.W.3 Narayanasamy and P.W.4 Gajendran and recorded their statements. He conducted inquest at 1.00 p.m. and prepared Ex.P10 Inquest Report. He sent the body for the post-mortem through P.W.9 Constable Paulraj. (ii) P.W.10 Dr.Athiyaman conducted post-mortem examination on the body at 12.00 noon on 24.05.2007 and found the following injuries: EXTERNAL INJURIES: I (i) Site : Left Mastoid Region (ii) Size : 10 cms x 4 cms x Bone Exposed lacerated Injury. (iii) Shape : 'C' shaped with convexity directed backwards. https://hcservices.ecourts.gov.in/hcservices/ iv) Margins : Margins are lacerated with contusions in the adjacent areas. II (i) Site : Left Pinna (ii) Size : 3 cms x 2 cms x whole thickness of the Pinna. (iii) Nature of injury: Cut injury. III (i) Site : Left Hip joint region in the anterior aspect (ii) Size : 5cms x 3 cms x 5cms depth. (iii) Nature of Injury: Stab injury IV (i) Site : Interscapular Region (ii) Size : 5 cms x 2 cms x 3 cms (iii) Nature of injury: Cut injury. V (i) Site : Lower Lip (ii) Size : 3 cms x 2 cms x whole thickness of the lower Lip with mandible exposed. (iii) Nature of injury: Lacerated. INTERNAL EXAMINATION: I Head (i) Left Mastoid and adjacent cranial bones are injured. (ii) Membranes and Brain materials are injured in the left side corresponding to the injury No.1. II Neck (i) Muscles, Neuro Muscular Bundles are intact. (ii) Hyoid bone intact. III Thorax (i) Bony cages are intact (ii) Both the lungs pale in colour and found intact. (iii) Heart and great vessels are intact and all the four chambers of the heart found empty. (iv) Part of the thoracic vertebra injured in the interscapular region. IV ABDOMEN (i) No Haemoperitoneum (ii) All the intraabdominal visceras are intact. (iii) Liver, spleen and both kidneys are found intact and pale in colour. https://hcservices.ecourts.gov.in/hcservices/ V PELVIS (i) Pelvic bones are intact. (ii) Urinary Bladder intact and empty. (iii) Uterus intact and the uterine cavity found empty. VI (i) Femoral vessels injured in the left lower limb. (ii) Bony Parts are intact. The above injuries Ante-mortem in nature. Autopsy concluded at 1.30 p.m., on 24.05.07." He expressed opinion that the deceased would appear to have died of injury to the brain and femoral vessels about 30 to 36 hours prior to autopsy. Ex.P7 is the post-mortem certificate issued by him. P.W.9 Paulraj took M.O.6-blood stained Saree from the body and P.W.11 Inspector Gunaseelan seized the same. (iii) On 26.05.2007 at about 1.00 p.m., Village Administrative Officer P.W.5 Mathivanan was in his office and accused Baskar appeared before him and confessed that he committed the murder of Susila and P.W.5 Mathivanan produced him before P.W.11 Inspector Gunaseelan at 3.00 p.m. Ex.P11 is the Report of Village Administrative Officer. P.W.11 Inspector Gunaseelan enquired the accused Baskar in the presence of P.W.5 Mathivanan and another and recorded the confession statement given by him, of which Ex.P4 is the admissible portion. The accused took them to Palmyra Tree near Karayankadu Muneeswaran Temple and took and produced M.O.3 Aruval hidden in the ground under the tree and he recovered it under Ex.P5 Mahazar in the presence of same witnesses. He examined P.W.10 Dr.Athiyaman on 27.05.2007 and recorded the statement. He examined some more witnesses on 28.05.2007 and gave requisition to the Court to send the properties to examination and accordingly, they were sent. Ex.P12 Chemical Examiner Report and Ex.P13 Serology Report were received in Court. He was transferred and P.W.12 Inspector Chinnasamy continued the investigation and examined P.W.7 Manimaran and P.W.9 Paulraj on 16.11.2007 and recorded their statements. He completed the investigation and filed Final Report in the case on 24.11.2007. 5. The accused Baskar was questioned under Section 313 Cr.P.C., and he denied complicity and he filed written statement. No witness was examined and no document was marked on his side. 6. The trial Court found the accused guilty and held that the charge against the accused is proved and sentenced him as stated earlier. Challenging the conviction and sentence, the accused Baskar has preferred the present appeal. 7. The prosecution case is that the accused Baskar @ Vijayabaskar at the time of occurrence indiscriminately cut Susila with Aruval resulting in her death. Nobody has witnessed the occurrence and the prosecution relies on circumstantial evidence to prove the guilt of the accused. The circumstances projected by the prosecution are as follows: https://hcservices.ecourts.gov.in/hcservices/ (1) Motive; (2) Deceased Susila was last seen along with the accused Baskar; (3) Homicidal death of Susila; (4) Extra-judicial confession made by the accused to P.W.5 Mathivanan; and (5) Arrest of the accused and recovery of M.O.3 Aruval on the information furnished by him. 8. P.W.1 Anjammal is the mother of the deceased Susila. P.W.2 Priya is the daughter of the deceased and grand daughter of P.W.1 Anjammal. According to P.W.1 Anjammal, Susila got married to Packirisamy and Nathiya and P.W.2 Priya are their daughters Packirisamy died and after few years, Susila remarried Vedarathinam and Vadarathinam went to Dubai ten years prior to the occurrence and was sending cash and jewels to Susila. It is the further testimony of P.W.1 Anjammal that accused Baskar was running a Travel Agency in Karayankadu and there was money transaction between Susila and the accused Baskar, which culminated in illicit intimacy between them and a few months prior to the occurrence, the accused Baskar compelled Susila to give P.W.2 Priya in marriage to him and Susila refused the same. According to P.W.1 Anjammal, she underwent eye operation on 09.05.2007 and Susila along with P.W.2 Priya came and stayed in her house to help her and on 22.5.2007, Susila received a phone call from the accused Baskar and she left the house by informing P.W.1 Anjammal that accused has promised to return cash and jewels and she is going to meet him and would return home in the night, but she never returned and on the next day at about 8.00 a.m., the villagers informed P.W.1 Anjammal that her daughter Susila was lying dead with injuries near Karpaganatharsamy Temple and she went and saw the same. 9. It is the testimony of P.W.2 Priya that she joined Computer Course at Thiruthuraipoondi in the year 2006 and her mother Susila along with the accused Baskar put her in the hostel at Thiruthuraipoondi run by P.W.7 Manimaran and one day in the early morning at about 4.00 a.m., the accused Baskar came to the hostel and wanted to meet her and the hostel Warden P.W.7 Manimaran did not permit him though the accused threatened him and thereafter, while she was alone in the house of her grandmother, the accused Baskar threatened P.W.2 Priya not to marry anybody and in the event of doing so, he would kill her as well as the other person. P.W.7 Manimaran has also testified that on 01.07.2006, Susila along with the accused Baskar brought P.W.2 Priya to the hostel run by him and put her there and on 06.02.2007 at about 4.30 a.m., accused Baskar came to the hostel and wanted to meet P.W.2 Priya and he refused permission. Accepting the testimony of the above witnesses, it is clear that the accused Basker wanted to marry P.W.2 Priya and the same was resisted and refused by the deceased Susila and that was the motive for the occurrence. 10. The prosecution examined P.W.3 Narayanasamy as having seen the accused Basker along with a lady at 7.00 p.m., on 22.05.2007 near the temple. But the said witness did not state so https://hcservices.ecourts.gov.in/hcservices/ and he was declared hostile by the prosecution. The prosecution further examined P.W.6 Annadurai as having seen the accused along with the deceased Susila at 6.00 p.m., on 22.05.2007 at pumpset irrigation channel near Karpaganathar Temple, but he did not state so in the trial and he was declared hostile. The prosecution has thus failed to prove the circumstance of last seen together. 11. To prove that Susila died of injuries, the prosecution has examined the Doctor, who conducted autopsy on her body. According to P.W.10 Dr.Athiyaman, he found a lacerated injury in the left mastoid region; a cut injury in left pinna; a stab injury in left hip joint region; a cut injury in interscapular region and another lacerated injury in lower lip. It is his further testimony that on internal examination of head, he found left Mastoid and adjacent cranial bones injured and membranes and brain materials injured in the left side. He has expressed opinion that the deceased would appear to have died of injury to the brain and femoral vessels about 30 to 36 hours prior to autopsy. Ex.P7 is the post-mortem certificate issued by him. Accepting the medical evidence, it is clear that Susila died of homicidal violence. 12. The next circumstance relied on by the prosecution is the extra judicial confession alleged to have been made by the accused Baskar to Village Administrative Officer P.W.5 Mathivanan. It is the testimony of P.W.5 Mathivanan that he was in his office at 1.00 p.m., on 26.05.2007 and the accused Baskar himself appeared before him and told that he murdered Susila by inflicting cut injuries and he may be taken to the Police Station and P.W.5 Mathivanan wrote the same and produced the accused before the Police Station. For better appreciation, the relevant portion of the testimony of P.W.5 in this regard is extracted below: "26/05/2007e; njjp[ kjpak; 1/00 kzp mstpy; ehd; vd; mYtyfj;jpy; ,Ue;njd;/ mg;nghJ vjpuhsp vd; mYtyfj;jpw;F te;J vd;dplk; RrPyh vd;gtiu mth; btl;o bfhiy bra;Jtpl;ljhf vd;dplk; brhy;yp jd;id fhty; epiyaj;jpy; M$h;gLj;Jk;go nfl;Lf;bfhz;lhh;/ mth; Twpaij ehd; vGjp mtiu fhty; epiyaj;jpy; bfhz;Lngha; M$h; bra;njd;/" It reveals that P.W.5 Mathivanan has hand written the confession given by the accused in his office. The said confession, which was reduced into writing, has not been produced in the case. Except the above extracted portion, P.W.5 Mathivanan has not stated anything about the alleged extra-judicial confession made by the accused Baskar. The Investigating Officer, P.W.11 Gunaseelan, in his chief examination has stated that P.W.5 Mathivanan produced accused Basker before him at 3.00 p.m., on 26.05.2007 in the police station and he also produced Ex.P11 Report to him and consequently, he arrested the accused Baskar. Ex.P11 is the Report dated 26.05.2007 in the form of letter written by P.W.5 Mathivanan, the Village Administrative Officer to the Inspector of Police, Muthupettai Police Station. In the said report, P.W.5 Mathivanan has stated that the accused came to his office on 26.05.2007 at 1.00 p.m., and told him that he wanted to marry P.W.2 Priya and expressed the same but Susila did not agree for it and he got infuriated and attacked Susila with Aruval indiscriminately, resulting in her death and he may be produced before the police. In Ex.P11 Report, https://hcservices.ecourts.gov.in/hcservices/ the signature of P.W.5 Mathivanan alone is found. Neither the signature nor LTI of the accused Baskar is found in it. While giving evidence before Court, P.W.5 Mathivanan has not stated anything about Ex.P11 Report. On the contrary, it is his testimony that he wrote what the accused told him in his office and produced the accused Baskar alone before the Police Station. At this juncture, it is also relevant to point out that the accused in his written statement, filed during the questioning under Section 313 Cr.P.C., has categorically stated that he did not surrender before Village Administrative Officer P.W.5 Mathivanan and he did not give any confession statement to him. 13. The learned Additional Public Prosecutor submits that the evidence in the form of extra judicial confession made by the accused to the witnesses cannot be always termed to be a tainted evidence and corroboration of such evidence is required only by way of abundant caution and if the confession is true and voluntary, conviction can be founded on such evidence alone and in support of his submission, he relied on the decision of the Supreme Court in STATE OF ANDHRA PRADESH V. KANDA GOPALUDU [(2005) 13 Supreme Court Cases 116]. In the facts of the case, in which, the above decision arose, the accused had come to the house of P.W.1 Anjammal where P.Ws.2 Priya and 3 Narayanasamy were sitting together and chatting and he had made extra-judicial confession before them voluntarily and though the witnesses were subjected to lengthy cross-examination, not even a suggestion was put to the witnesses that the confession was tainted and non-voluntary or that it was obtained by coercion, inducement or promise of favour and in those circumstances, the Supreme Court held that the testimonies of P.Ws.1 to 3 was consistent and credible and extra-judicial confession was held to be voluntary in nature. 14. In the present case, as already seen, though Village Administrative Officer P.W.5 Mathivanan claimed to have reduced into writing the confession made by the accused to him in his office, the said statement in writing was not produced in the case. In this context, the latter decision of the Supreme Court in KUSUMA ANKAMA RAO V. STATE OF ANDHRA PRADESH [2008 AIR SCW 4669] is relevant, wherein Their Lordships have held that conviction on the basis of the extra-judicial confession is permissible only after subjecting witness to whom it is made, to a rigorous test of credibility. For better appreciation, the relevant observations made in para 18 are extracted below: "18. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the https://hcservices.ecourts.gov.in/hcservices/ circumstances, the time when the confession was made and the credibility of the witnesses who speak of such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility.” 15. The prosecution, in the present case, has not proved the extra-judicial confession as a fact. The testimony of Village Administrative Officer P.W.5 Mathivanan, if tested on the touchstone of credibility, it miserably failed to pass the test of credibility. The prosecution has thus failed to prove this circumstance. 16. The last circumstance relied on by the prosecution is the arrest of the accused and recovery of weapon pursuant to the information furnished by him. P.W.11 Gunaseelan, Inspector of Police, has stated that he arrested the accused when he was produced by P.W.5 Mathivanan in the Police Station and he enquired the accused in the presence of P.W.5 Mathivanan and another and recorded the confession statement given by him of which, Ex.P4 is the admissible portion and the accused took them to Palmyra Tree near Karayankadu Muneeswaran Temple and took M.O.3 Aruval hidden in the ground under the tree covered by dry leaves and produced the same and he recovered it under Ex.P5 Mahazar in the presence of the same witnesses. The mahazar witness P.W.5 Mathivanan also has stated that the accused gave information in his presence and took and produced M.O.3 Aruval from the said place in his presence. The learned counsel for the appellant submits that there is discrepancy in the place from where M.O.3 Aruval was taken out and produced by the accused between Ex.P5 Recovery mahazer and Form-95 and the same was put to the Investigating Officer in the cross-examination and the said discrepancy would make the recovery doubtful. 17. Per contra, the learned Additional Public Prosecutor submits that the Investigating Officer has clarified it in his testimony by saying that both the places mentioned in the said documents are one and the same and hence, there is no discrepancy. It is true that in Ex.P5 Mahazar, the place where M.O.3 Aruval was hidden and recovered is mentioned as eastern side of the temple, underneath the Palmyra tree, whereas in Form-95 it is stated that the said M.O.3 Aruval was hidden in the field just opposite to the temple. There is a discrepancy as to the place from where the said weapon came to be recovered. M.O.3 Aruval was sent for Chemical Examination and human 'B' group blood was detected on it as per https://hcservices.ecourts.gov.in/hcservices/ Ex.P12 Chemical Examiner's Report and P.W.13 Serology Report. After post-mortem, M.O.6 Saree was taken from the body of the deceased and was sent to the Chemical Examination and human 'B' group blood was detected on it. The blood group found in M.O.3 Aruval tallies with the blood group of the deceased, but there is no acceptable evidence to show that accused Baskar used it to attack Susila during the occurrence. 18. The conditions precedent before conviction could be based on circumstantial evidence are as follows: (1) The circumstances from which the conclusion of the guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established; (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3)The circumstances should be of a conclusive nature and tendency; (4) They should exclude every possible hypothesis except the one to be proved; and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused." 19. In the present case, except the circumstances of motive and homicidal death, the other circumstances projected by the prosecution were not established and chain of evidence is not complete. The conclusion of the trial Court that the prosecution has proved the guilt of the accused beyond reasonable doubt is erroneous and unsustainable in law and the benefit of doubt has to be given to the accused. 20. In the result, this criminal appeal is allowed, and the conviction and sentence imposed on the appellant/accused Baskar @ Vijayabaskar in Sessions Case No.27 of 2008 on the file of the Sessions Judge, Thiruvarur, are set aside, and the appellant/accused Baskar @ Vijayabaskar is acquitted of the charge under Section 302 IPC and the fine amount if any paid, shall be refunded to him. The appellant/accused Baskar @ Vijayabaskar is directed to be released forthwith, unless his custody is required in connection with any other case. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar raa https://hcservices.ecourts.gov.in/hcservices/ To: 1.The District and Sessions Judge , Tiruvarur. 2.The Judicial Magistrate, Thiruthuraipoondi. 3. The Chief Judicial Magistrate, Tiruvarur. 4. The Inspector of Police Muthupettai Police Station Muthupettai, Thiruvarur District. 5.The Superintendent of Prison, Central Prison, Trichy. 6.The District Collector, Tiruvarur, Tiruvarur District. 7.The Director General