IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.04.2009 CORAM THE HONOURABLE MR. JUSTICE C.NAGAPPAN AND THE HONOURABLE MR. JUSTICE T.SUDANTHIRAM Crl.A.No. 13 of 2008 Velu .. Appellant/Accused Vs. State Rep. by The Inspector of Police, Kondalampatti Police Station. .. Respondent/Complainant Prayer : Appeal filed under section 374 (2)Cr.P.C against the Judgment, dated 7.12.2007, passed in S.C.No. 388 of 2006 on the file of I Additional Sessions Judge, Salem. For Appellant :: Mr. R.John Sathyan for Mr. K.Balakrishnan For Respondent :: Mr. V.R.Balasubramaniam, Additional Public Prosecutor J U D G M E N T (The Judgment of the Court was made by C. NAGAPPAN, J.) The appellant Velu is the sole accused in Sessions Case No.388 of 2006 on the file of I Additional Sessions Judge, Salem, and he has preferred this appeal challenging the conviction and sentence imposed on him in the case. For the sake of convenience, in this Judgment, the appellant will be referred to as accused. 2. The learned First Additional Sessions Judge found the accused guilty of the charges under Sections 302, 404 and 201 r/w 302 IPC and sentenced him to undergo Life Imprisonment and to pay a fine of Rs.10,000/-, in default to undergo one year Rigorous Imprisonment for the offence under Section 302 IPC; and sentenced him to undergo Rigorous Imprisonment for two years and to pay a fine of Rs.2,000/-, in default to undergo two months Rigorous Imprisonment for the offence under Section 404 IPC; and sentenced him to undergo https://hcservices.ecourts.gov.in/hcservices/ Rigorous Imprisonment for four years and to pay a fine of Rs.2,000/-, in default to undergo two months Rigorous Imprisonment for the offence under Section 201 r/w 302 IPC. 3. To prove the charges, the prosecution examined P.Ws.1 to 16 and marked Exs.P1 to P29 and M.Os.1 to 11. 4. The prosecution case is briefly summarised as follows. P.W.13 Lakshmi is the elder sister of deceased Kamatchi and P.W.12 Sumathi is her daughter and P.W.2 Shanthi is the daughter of another elder sister of the deceased. Accused Velu and P.W.4 Madesh were co-workers in Vijay Trading Company and Kamatchi was employed in Raja Mill and she used to advance loans for interest. Kamatchi gave loan to the accused and later, they developed illicit intimacy and were living as husband and wife. Kamatchi used to visit the work place of the accused for collecting interest and she threatened him to come and live with her or else pay back the money. Velu was disturbed by the conduct of Kamatchi and told P.W.4 Madesh that she has to be done away with for solving the problem. It is also the evidence of P.W.2 Shanthi and P.W.12 Sumathi that one day they accompanied Kamatchi and they met the accused and Kamatchi demanded repayment of the loan and the accused promised to pay back the loan and asked her not to further disturb him. On the occurrence day, P.W.4 Madesh along with his family went to his mother-in-law's house for attending death anniversary and at about 6.00 p.m. on the way he saw accused Velu in the cycle conversing with Kamatchi in front of Sooramangalam Keerthana Theatre and while returning from the mother-in-law's house at 10.30 pm, he saw accused Velu taking Kamatchi in his cycle towards Kollapatti. Thereafter, Velu did not report for work. On 25.5.2003, at 7.00 a.m., P.W.1 Ponnuvel switched on the motor in his well for irrigating his lands and at about 9.00 a.m., he peeped inside the well to see the water level and he found dead body of a female floating in the well and he went to Irumbalai Police Station and gave Ex.P1 Complaint. P.W.9 Sub-Inspector Palanisamy received the complaint and registered a case in Crime No.491/2003 under Section 302 r/w 201 IPC and prepared Ex.P13 First Information Report and despatched the same to the Higher Officers. P.W.15 Inspector M.Sureshkumar received the Express Report and took up the investigation on 25.5.2003 at 1.30 p.m. and went to the land owned by P.W.1 Ponnuvel and took out the body from the well and prepared Ex.P5 Observation mahazar in the presence of P.W.5 Munudasu. Ex.P23 is the Rough sketch. He took photographs of the body and the occurrence place through P.W.11-Photographer Sadiq Basha and Ex.P15 is the photo and Ex.P16 is the negative. He conducted inquest on the body of Kamatchi from 2.30 p.m. and 5.00 p.m. and examined P.W.1 Ponnuvel and some others and prepared Ex.P24 https://hcservices.ecourts.gov.in/hcservices/ Inquest Report. He seized M.O.2 White Towel, M.O.7-series Pair of Rubber Slippers and M.O.8 Sowri under Ex.P6 Mahazar in the presence of P.W.5 Munudasu and another. He sent the body for post- mortem. P.W.10 Dr.Vallinayagam conducted post-mortem on the body of Kamatchi at 10.30 a.m. on 28.5.2003 and found the following: "Rigor Mortis passed off all over the body. Decomposed body of a female. Injuries - 1) A transversely placed ligature abrasion present surrounding the body 28 cm x 1 cm present in circle 3 times around the neck. Crescentic abrasions present above and below the ligature mark 4 on left side and 6 on right side. On Dissection, contusion on right side of neck 7 x 5 x 2 cm and over left side of neck 8 x 5 x 3 cm fracture of thyroid cartilage present, hyoid bone is intact. Rupture of muscles present below the ligature mark. 2) A contusion with laceration present on the occipital region of the scalp 9 x 6.0 x 5 cm 3) Abrasions - L Eyebrow 2 x 1 cm; below R Eye 3 x 1 cm; R Lumbar Region 7 x 3 cm; R Cheek 5 x 3 cm; L Knee 3 x 1 cm; Other Findings - Heart - Fluid Blood present. Myocardium - Normal. Coronaries - Patent. Liver, Spleen, Kidneys - Congested. Conjunctiva - Reddish in colour. Pelvis - Intact. Scalp, Bones membranes - Intact. Brain - Congested. Pelvis - Intact. Spinal column and cord - Intact. Uterus - Intact, Normal. Fingernails - Bluish in colour." He expressed opinion that the deceased died due to Asphyxia due to Ligature strangulation, 3 to 5 days prior to post-mortem examination. Ex.P14 is the Post-mortem certificate. P.W.15 Inspector Suresh Kumar took photographs of the body and sent them to the neighbouring police stations for identifying the body. He examined some witnesses on 1.6.2003, 3.6.2003 and 4.6.2003 and did not get any clue with regard to the identification of the deceased and the accused. He examined P.W.10 Post mortem Dr.Vallinayagam on 5.6.2003 and recorded his statement. He transferred the case to Kondalampatti police station. P.W.16 Inspector Vivekanandan of Kondalampatti Police Station on 6.6.2003 registered a case in Crime No.541/2003 on his file under Sections 302 and 201 IPC and prepared Ex.P26 First Information Report. On 7.6.2003, he examined P.W.2 Shanthi, P.W.3 Lakshmi, P.W.12 Sumathi and recorded their statements. He saw the accused coming on cycle in front of Thirumagal theatre in Sivathapuram Junction in Kondalampatti - Bangalore Main Road and arrested him on 10.6.2003, at 10.30 a.m., and examined him in the https://hcservices.ecourts.gov.in/hcservices/ presence of P.W.6 V.A.O. Kari and another and recorded the confession statement given by the accused in the presence of the above witnesses. Ex.P7 is the admissible portion of the confession statement. He recovered M.O.9 Cycle of the accused under Ex.P8 Mahazar in the presence of P.W.6 V.A.O. Kari and another at 12.00 noon. The accused took P.W.16 Inspector Vivekanandan and the witnesses to the house of P.W.3 Lakshmi and inside the house he took a money-purse containing M.O.4 Gold Thali with four balls, which was hidden under the brick over which there was a steel trunk box and the Investigation Officer seized the same under Ex.P9 Mahazar, in the presence of the same witnesses and he also recovered M.O.3 Gold gobichain produced by P.W.3 Lakshmi under Ex.P10 Mahazar in the presence of same witnesses. He examined P.W.3 Lakshmi and some other witnesses and recorded their statements. He produced the accused before P.W.7 Tahsildar Thangavel on 10.6.2003 and the Tahsildar recorded Ex.P11 Confession statement given by the accused. P.W.16 Inspector Vivekanandan sent the accused for judicial remand. He altered the case into one under Sections 302, 201 and 379 IPC and sent Ex.P27 Report. On the same day, he examined P.W.11 Photographer Sadiq Basha and some other witnesses and further examined P.W.2 Shanthi and P.W.12 Sumathi and recorded their statements. On 12.6.2003, he examined P.W.4 Madesh in Chevvapet and recorded his statement. On 13.6.2003 he gave Ex.P19 Requisition for sending the articles for chemical examination. Exs.P21 and P22 are the Chemical Examiner's Report and Serologist Report. He concluded the investigation and filed the Final Report on 27.6.2003. 6. The accused was examined under Section 313 CrPC and he denied complicity. No witness was examined and no document was marked on his side. 7. The learned Additional Sessions Judge convicted the accused for the offences under Sections 302, 404 and 201 r/w. 302 IPC and sentenced him as stated earlier and hence, the present appeal. 8. Mr.R.John Sathyan, learned counsel appearing for the appellant, submits that the prosecution has not clearly established the circumstances relied on by it and the chain is not complete. Per contra, Mr. V.R.Balasubramaniam, learned Additional Public Prosecutor, submits that prosecution has established the circumstances and proved the guilt of the accused beyond reasonable doubt. 9. To prove the charges against the accused Velu, the prosecution has relied on the following circumstances. "1.The death is homicidal. 2. P.W.4-Madesh has last seen the accused Velu and Kamatchi together prior to occurrence. https://hcservices.ecourts.gov.in/hcservices/ 3. Motive as spoken to by Prosecution Witnesses 2, 4 and 12. 4. Statement of the accused leading to recovery of M.O.4-Gold Thali and four balls belonging to deceased. 5. The confession given by the accused Velu to P.W.7-Tahsildar Thangavel. 10. Kamatchi died of homicidal violence is established by the testimony of post-mortem Doctor. P.W.10-Dr.R.Vallinayagam has testified that he found a transversely placed ligature abrasion surrounding the body in circle three times around the neck with crescentic abrasions present above and below the ligature mark on both sides and on dissection, he found contusion on both sides of neck with fracture of thyroid cartilage and rupture of muscles below the ligature mark and he has expressed opinion that the deceased Kamatchi died due to asphyxia due to ligature strangulation 3 to 5 days before the post-mortem. Ex.P14 is the Post-Mortem Certificate issued by him. Accepting his testimony, i t becomes clear that Kamatchi suffered homicidal death due to strangulation. 11. P.W.4-Madesh is working as a loadman and he has testified that he and the accused Velu were working together in Vijay Trading Company and he knew Kamatchi well and she had advanced loan to the accused and to collect the same, she used to come and meet the accused Velu and it developed into an illicit intimacy and both of them were living as husband and wife and Kamatchi often visited their work place viz., godown and threatened the accused to come and live with her or otherwise to pay back the money and the accused Velu was very much disturbed by her conduct and he told P.W.4-Madesh that Kamatchi has to be done away with and then only the problem will get solved. P.W.4-Madesh has further testified that on the particular day, he went to his mother-in-law's house with his family members for annual death ceremony and on the way at 6 pm he saw accused Velu in cycle talking with Kamatchi in front of Keerthana theatre in Sooramangalam and while returning from the mother-in-law's house at 10.30 pm via Milk dairy, he saw accused Velu taking Kamatchi in his cycle towards Kollappatti and thereafter accused Velu did not report for work and after 20 days, he happened to know about the occurrence through newspaper and Police examined him in his godown. 12. The learned counsel for the appellant submits that the prosecution claimed that the accused was arrested on 10.6.2003 and P.W.4-Madesh was examined only on 12.6.2003 and P.W.2-Shanthi in her testimony has stated that she saw P.W.4-Madesh and accused Velu in Kondalampatti Police Station when she went there and she identified accused Velu in the Police Station and the learned counsel further submits that on suspicion, Police kept P.W.4-Madesh, accused Velu and one Ponnusamy in the Police Station and later, by way of https://hcservices.ecourts.gov.in/hcservices/ arrangement, P.W.4-Madesh was made as a witness to depose falsely and the Investigation Officer has not verified as to whether he is a co- worker along with the accused Velu and the integrity of P.W.4- Madesh is doubtful and no reliance can be placed on his testimony. It is true that P.W.2-Sumathi, in the cross-examination, has stated that she saw P.W.4-Madesh and the accused Velu in Kondalampatti Police Station but it is vague. P.W.2-Shanthi did not mention the date on which she saw them in the Police Station. No suggestion has been put by the defence to P.W.4-Madesh in this regard and nothing tangible was elicited to discredit his testimony. There is also no reason for him to depose falsely implicating the accused in the case. His testimony as having seen the accused taking Kamatchi with him in the cycle on the occurrence day is clear, cogent and credible and deserves acceptance. 13. P.W.4-Madesh has categorically stated about the lending of loan by Kamatchi to the accused, their illicit relationship, the frequent threats made by Kamatchi to the accused and the accused being perturbed by it. P.W.2-Shanthi and P.W.12-Sumathi, who are nieces of deceased Kamatchi, have also testified that Kamatchi lent loan to the accused and they accompanied Kamatchi when she went to meet the accused and in their presence Kamatchi demanded the loan amount and the accused promised to repay the same and also told her not to disturb him. From the testimonies of P.Ws.2, 4 and 12, it is clear that there was motive for the occurrence. The submission of the learned counsel for the appellant that the motive spoken to is a weak one, cannot be accepted in the facts and circumstances of the case. 14. The next circumstance is the statement given by the accused leading to recovery of M.O.4-Gold Thali belonging to deceased Kamatchi. The Investigation Officer P.W.16-Inspector Vivekanandan has stated that he saw the accused coming in his cycle in front of Thirumagal theatre in Sivathapuram junction at Kondalampatti- Bangalore High Road at 10.30 am on 10.6.2003 and he arrested him and enquired him in the presence of P.W.6-Village Administrative Officer Kari and another and recorded the confession statement given by him and the accused gave Ex.P7-information in the confession and took him and the witnesses to the house of P.W.3-Lakshmi and inside the house, there was a steel trunk box and on removing the same, the accused took a money purse, containing M.O.4-Gold Thali with four balls, hidden under the brick and produced it and P.W.16-Inspector Vivekanandan recovered the same under Ex.P3-mahazar in the presence of same witnesses at 12.45 pm on the same day. P.W.6-Village Administrative Officer Kari has also testified that the accused Velu on his arrest gave information in his confession and took them to the house of P.W.3-Lakshmi and took and produced M.O.4-Gold Thali and four balls. 15. The learned counsel for the appellant submits that the testimony of P.W.2-Shanthi falsifies the arrest of the accused as https://hcservices.ecourts.gov.in/hcservices/ claimed by the prosecution and once the arrest is shown to be false, then the recovery is also false and the learned counsel further submits that P.W.6-Village Administrative Officer is a obliging witness and no reliance can be placed on his testimony. As already seen, P.W.2-Shanthi has not stated the date on which she saw the accused Velu in Kondalampatti Police Station and her testimony in this regard is vague and it does not affect the prosecution case with regard to the arrest and recovery. The prosecution has proved that the accused gave information leading to recovery of M.O.4-Gold Thali belonging to deceased Kamatchi. 16. The next circumstance relied on by the prosecution is Ex.P11-confession statement recorded by P.W.7-Tahsildar Thangavel. The Investigation Officer P.W.16-Inspector Vivekanandan has stated that he arrested the accused Velu at 10.30 am on 10.6.2003 and he produced him before P.W.7-Tahsildar Thangavel on the same day and after the Tahsildar recorded the confession, he sent the accused for judicial remand. P.W.7-Tahsildar Thangavel has testified that P.W.16-Inspector Vivekanandan produced the accused Velu before him on 10.6.2003 and on his request, he examined the accused Velu and recorded Ex.P11-confession statement given by him and he also gave Ex.P12-certificate in it for having recorded the same. 17. The learned counsel for the appellant submits that Ex.P11- confession statement is inadmissible as per Section 26 of the Indian Evidence Act. We find considerable merit in this submission. Section 26 of the Indian Evidence Act reads as follows: "26. Confession by accused while in custody of police not to be proved against him. - No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Explanation. - In this section "Magistrate" does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882 (10 of 1882). As already seen, the accused Velu was in the custody of Police on 10.6.2003 and no confession made by him while in the custody of Police is admissible unless it is made in the presence of a Judicial Magistrate. It is relevant to note that in the explanation to Section 26 of the Indian Evidence Act, it is clarified that "Magistrate" does not include Executive Magistrate unless Executive Magistrate exercises the powers of a Magistrate under the Code of Criminal Procedure. 18. In this context, Rules 72 and 73 of the Criminal Rules of https://hcservices.ecourts.gov.in/hcservices/ Practice and Circular Orders, 1958 are relevant and the same are extracted below: "72. Village Magistrates not to record confession. - Village Magistrates are absolutely prohibited from recording or writing any confession or statement whatever made by an accused person after the Police investigation has begun. 73. Confession must be before a salaried Magistrate. - An accused person desiring to make a confession shall ordinarily be produced by the Police before a salaried Magistrate of the First or Second Class." The above Rules make it clear that the Police, during investigation, has to produce the accused before the salaried Magistrate of the First or Second Class for recording the confession. 19. As per Section 3(3)(a) and (b) of the Code of Criminal Procedure, any reference in any enactment to a Magistrate of the first class or second class, shall be construed as a reference to the Judicial Magistrate of the first class or second class. Under Section 164 of Code of Criminal Procedure, Metropolitan Magistrate or Judicial Magistrate alone can record the confession of the accused. 20. Punjab and Haryana High Court, in the decision in STATE OF HARYANA v.. PARMANAND, SON OF RATI RAM [1995 CRI.L.J. 396], has held that the provision of Section 164 of Criminal Procedure Code absolutely leave no scope of doubt that the recording of a confession of the accused during investigation of the case has been exclusively left to the Metropolitan Magistrate or Judicial Magistrate not to any Executive Magistrate. For better appreciation, the relevant portion in the above decision is extracted below: "11. The provisions of S.164 of the Code, reproduced above absolutely leave no scope of doubt that the recording of a confession of the accused person during investigation of the case, has been left exclusively to the Judicial Magistrate or Metropolitan Magistrate and not to any Executive Magistrate. Thus, there is no force in the contention of Mr. Gaur that the confessional statement of the accused recorded by Executive Magistrate-cum-Tehsildar should be relied upon as it is not admissible in evidence. It cannot be said to be a mere irregularity, especially when it has certainly resulted in prejudice to the accused because the Legislature itself had kept the Judicial Magistrate on better footing than Executive Magistrate qua the recording of such statement." 21. Madhya Pradesh High Court in the decision in PHUNDI v.. STATE OF M.P. [1993 CRI.L.J. 1881] has held as follows: "2............ It was, therefore, if at all, a 'judicial', as https://hcservices.ecourts.gov.in/hcservices/ distinguished from 'extra-judicial confession'. But even as a judicial confession, it was absolutely inadmissible in evidence. The simple reason for that was that it was not recorded by a Magistrate empowered to do so. Reading of S.164 of Code of Criminal Procedure, 1973 would show that only a Metropolitan Magistrate or a Judicial Magistrate is empowered to record a confession under that provision. Shri Purshottam Gupta (P.W.9), who recorded it, was an Executive Magistrate, who had also not observed the safeguards described in S.164 ibid. When a confession is recorded by a Magistrate who is not empowered, it is absolutely inadmissible. Even oral evidence about it by the Magistrate is inadmissible." We are in entire agreement with the view expressed in the above decisions. 22. The confession statement of the accused has to be recorded only by a Metropolitan Magistrate or Judicial Magistrate as provided under Section 164 of the Code of Criminal Procedure and no confession can be recorded by any other Authority while the accused is in custody of Police. Ex.P11-Confession Statement recorded by P.W.7- Tahsildar Thangavel while the accused was in the Police custody is inadmissible and no reliance is placed on it. 23. Even eschewing Ex.P11-Confession statement, the prosecution has established by acceptable evidence that the accused Velu was last seen with Kamatchi prior to occurrence by P.W.4-Madesh and the accused gave information in his confession leading to recovery of the ornaments belonging to the deceased and there was also motive for the occurrence and all the links in the chain of circumstances are proved through cogent evidence. The conclusion of the Trial Court that the prosecution has proved the charges against the accused, does not suffer from any infirmity to warrant interference. 24. There are no merits in the appeal and the same is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vks https://hcservices.ecourts.gov.in/hcservices/ To 1. The I Additional sessions Judge, Salem. 2. - Do - Through, the Principal Sessions Judge, Salem. 3.The Judl. Magistrate No.5, Salem. 4.-Do- Thro' the Chief Judl.Magistrate, Salem. 5. The Superintendent, Central Prison, Coimbatore. 6. The Inspector of Police, Kondalampatti Police Station, Salem. 7. The Public Prosecutor, High Court, Madras. 8. The Section Officer, Criminal Section, High Court, Madras 104. 1 CC To Mr.Balasubramaniam,, Advocate, SR NO.12721 Crl.A.No. 13 of 2008 gv(co) pmk.18.4.2009. https://hcservices.ecourts.gov.in/hcservices/