In the High Court of Judicature at Madras Dated: 04/12/2003 Coram The Honourable Mr. Justice P.SATHASIVAM and The Honourable Mr. Justice M.THANIKACHALAM Crl. Appeal No. 334 of 1995 Arumugam ... Appellant -Vs- State by Inspector of Police Namakkal Police Station. ... Respondent Appeal against the order of life imprisonment passed by the learned Principal District and Sessions Judge, Salem dated 27.4.93 in S.C. No.34/93. !For Appellant :: Mr.S.Ashokkumar ^For Respondent :: Mr.V.Jayaprakash Narayanan, Government Advocate (Crl.side) :JUDGMENT M.THANIKACHALAM, J. The accused in S.C. No.34/93 on the file of Principal Sessions Judge, Salem is the appellant. 2. The accused/appellant was directed to face the prosecution, for the offence under section 302 IPC on the ground that he had committed the murder of his brother's wife, by name Pushpa, on 29.9.91 with an intention to commit murder, by causing cut injuries, at about 12 noon. 3. Upon considering all the materials placed before him, the learned Principal Sessions Judge satisfied himself, to proceed further after framing the charge against the accused. The accused refused to plead guilty, when the charge was explained to him, thereby compelling the prosecution to make out a case, for his conviction. 4. On behalf of the prosecution, to prove the charge, 16 witnesses have been examined, seeking aid not only from 23 exhibits, but also from material objects. The scanning and the weighing of the above materials, in its proper perspective, revealed the fact that the accused had committed the murder of his brother's wife by using M.O.12, causing cut injuries. Thus, concluding the learned trial Judge, by his judgment dated 27.4.93, convicted and sentenced the accused under section 302, IPC to undergo life imprisonment, which is in challenge before us. 5. Facts in brief leading to the conviction:- The accused is the younger brother of Thiru Boomi Udaiyar (PW1). PW1 married one Pushpa, as his second wife after the demise of the first wife, by name Pappathi. PW1 has a son and a daughter through the first wife. The son's name is Kesavamurthi, and the daughter is Sasikala (PW2). They are all residing in the same house. 6. The accused had illicit intimacy with the wife of PW1 and the same was one day witnessed by PW1, when they were in a compromising mood. In order to solve the dispute, PW1 convened a panchayat which was presided by Murugesa Udayar (PW5) on 28.9.91. In the panchayat, PW4  Pachamuthu also participated since he was present when the dispute had arisen between the parties on 26.9.91. In the panchayat, the accused and Pushpa were called and after discussion, the accused was directed to pay a fine of Rs.300/-, with warning to discontinue their illegal activities, which caused irksome to the accused, resulting warning also, to Pushpa aiming her life. When this behaviour of the accused was noticed by PW5, he also warned him to behave properly, at least thereafter. The accused felt that he was put to shame, before the panchayatdars and decided to take vengeance. 7. On 29.9.91, PW1 went to the lands for his day-to-day work. PW2 and her step-mother namely, Pushpa were in their house, and it seems Pushpa was in the cattle shed. The accused came there, at about 12 noon in M.O.13 cycle, having koduval M.O.12 hanged in the handle bar. It was witnessed by Parvathi (PW3). The accused assaulted Pushpa, causing multiple cut injuries, which was witnessed by PW2. PW2 immediately informed the same to his father PW1. The accused after assaulting Pushpa returned in the same cycle (MO13) which was also witnessed by PW3. At about 12.30 pm on the same day, when PW8 was doing his agricultural work the accused went there. By seeing the blood stain in the dress, when PW8 questioned, the accused confessed about his act namely, cutting the wife of his brother. Thereafter, leaving the cycle with the custody of PW8, informing him, that he is proceeding to Kollimalai, the accused left the place of PW8. 8. On information by PW2, when PW1 went to the scene of crime he noticed the dead body of his wife, and therefore, in order to have redress he approached the police at about 2 pm. 9. Thiru Chinnathambi, the then Sub Inspector of Police, Erumapatti police station, on the basis of the information furnished by PW1, reduced the same into writing (Ex.P1) and on that basis he registered a case in Crime No.391/91 under section 302 IPC, for which he submitted the printed FIR Ex.P21 to the court concerned, marking a copy also to the Inspector of Police for investigation. 10. Thiru Muthusamy (PW16) on information went to Erumapatti police station and obtaining a copy of the printed FIR, reached the scene of crime, inspected the premises, in the presence of the witnesses and prepared observation mahazar Ex.P2, as well as sketch Ex.P22 in addition to making arrangement for photos, being taken through PW10. Between 4.30 and 8.00 pm, PW16 conducted inquest in the presence of panchayatdars as well as examined the witnesses, and the result is Ex.P23 inquest report. To ascertain further, the actual cause of death, the body of Pushpa was sent for postmortem with a requisition Ex.P16, through PW14, from the place of crime. PW16 in continuation of the investigation seized M.Os.7, 9, 10 & 11 in the presence of the witnesses under the cover of mahazar Ex.P3. 10. On 30.9.91 at about 11 am as per the request made by the investigating officer under Ex.P14, PW12 conducted an autopsy over the body of Pushpa which revealed the following external injuries: (1) Incised injury of about 15 cm x 3 cm x bone deep over the right side of the face starting from the angle of the right eye running backwards to the back of the mastoid region, the muscles and the bone underneath are cut through on exploration clotted blood seen. (2) Incised injury of about 15 cm x 4 cm x bone deep about the left ear to the back of the neck. On exploration the muscles and the bone underneath are cut through, blood clots are also seen. (3) An incised injury of about 10 cms x 3 cms x bone deep starting from the chin running backwards to the right side of neck exposing the cut ends of muscles and vessels in the neck on exploration clotted blood seen. (4) Incised injury of about 15 cms x 7 cms x bone deep from the lateral end of injury No.3 running backwards to the left side and join with the injury No.2 the severed ends of muscles and bones all seen through clotted blood is seen on exploration. (5) A small abrasion of about 1 cm x 1 cm over the right side chest. The doctor analysing the above injuries and the damage caused by those injuries, internally, was of the opinion that the deceased died due to shock and haemorrhage caused by multiple injuries, which are incorporated in Ex.P15. 11. On 30.9.91 at about 6 am the Village Administrative Officer, PW7 was in his office with one Karunanidhi. At that time the accused came there and confessed, that he had committed the murder of his brother's wife, due to the previous enmity as well disclosing the concealment of the weapon etc. This was reduced into writing by PW7, as Ex.P4 in which Karunanidhi also signed. Thereafter he handed over the confession statement Ex.P4 to the Inspector of Police, along with the accused. 12. The investigating officer PW16, at about 8 pm on 30.9.91, on the surrender of the accused through the Village Administrative Officer, along with Ex.P4, arrested him and further enquired. The accused voluntarily gave a confession statement (Ex.P5), disclosing the place where the weapon is concealed, in the presence of PW7 and another witness. PW16 noticed the blood stain, in the shirt and dhoti worn by the accused (M.Os.15 and 14), which were recovered under Ex.P8. In pursuance of the confession statement, M.O.12 koduval was also recovered by PW16, under Ex.P6. Thereafter, he has also identified the cycle which was recovered from PW8, under Ex.P7. Examining the other witnesses recording their statements, concluding the investigation, the material objects seized were also sent for chemical examination. In addition, PW16, made arrangements for recording section 164 statements of the witnesses, through PW11 Judicial Magistrate, Rasipuram. The entire investigation so done by PW16, brought to surface the guilt of the accused and in this view he laid a final report before the appropriate court, leading to trial culminating in a conviction as stated above, giving a cause of action for the appellant, to prefer this appeal. In this way the judgment of conviction and sentence of the trial court is in challenge before us. 13. Heard Mr.S.Ashokkumar, learned counsel appearing for the appellant and Mr.V.Jayaprakash Narayanan, learned Government Advocate for the State, who took pain of taking us through the oral evidence as well as the documentary evidence, to dwell upon the matter, for deep consideration. 14. The learned counsel for the appellant attacked the trial court verdict mainly on the following grounds: (1) The alleged motive is not at all proved and even if proved, that could not be the cause for the murder; (2) that the only alleged eye witness PW2 turned hostile, because of the fact she could not have seen the incident; (3) that the alleged extra judicial confession said to have been given by the accused to PW7 is a myth and the alleged extra judicial confession must be the handy work of the police, which could not be the basis for conviction under law since inadmissible also; and (4) that the accused was seen near the scene of crime sought to be introduced through PW3 is an imagination. On these lines, the learned counsel urged that the trial court without properly appreciating the case, erroneously convicted the accused, failing to give at least the benefits of doubt, which should be made available to him at least in this court, thereby acquitting from the charges. 15. Learned Government Advocate (Crl. Side) would contend that though PW2 turned hostile there are unimpeachable circumstantial evidence, encircling the accused in proving the crime, that there is no reason of any kind to discard the extra judicial confession given by the accused before the Village Administrative Officer which could form the basis for conviction, since corroboration is available in plenty from the other circumstances also. In this view, he supports the reasonings, findings and conviction rendered by the trial court. 16. The accused is the younger brother of PW1. PW2 is the daughter of PW1 and the deceased Pushpa. PW4 and PW5 are the neighbours. It is also an admitted fact, that the accused and the deceased were living in the same house in different portion. The first wife of PW1 by name Pappathi and the wife of the accused are sisters. The second wife of PW1, Pushpa, was murdered on 29.9.91 at about 12 noon, when she was in her cattle shed. It is the case of the prosecution that the accused alone had committed the murder by cutting her with MO12, which was witnessed by PW2. Unfortunately for the prosecution and we could say, fortunately for the accused, PW2 failed to support the case of the prosecution. The fact that Pushpa was murdered, informed by PW2 to PW1, is not in dispute. PW2 would state that her stepmother was done to death by Kesavamurthi, her brother, who was also present in the house on that day, though he was working elsewhere, as cleaner. Thus, PW2 had tilted the case, informing that Kesavamurthi is the cause for the death. Kesavamurthi being the son of the deceased, as well as PW1, the prosecution ought to have examined him, as a witness to rule out the possibility of himself, involving in this incident, that too, because of the evidence given by PW2 since circumstantial evidence is relied on. But, unfortunately Kesavamurthi is not examined. Be that as the case may be, the fact remains PW2 turned hostile. The reason alleged by the prosecution, for not supporting the case also, appears to be unacceptable. Admittedly, P.W.1 is the father of P.W.2 and the deceased is the mother. The accused is the junior paternal uncle of P.W.2 i.e. the brother of P.W.1. On the basis of the relationship, question of choosing the relation comes for consideration, generally it should be in favour of the father and the mother. But, P.W.2 disowned the prosecution case, though the prosecution say that accused had committed the murder of the mother of P.W.2. This would indicate P.W.2 had not witnessed the incident or if she had witnessed the incident as spoken by her, then the murder might have been committed by Kesavamurthi. Unfortunately, ignoring this aspect, the trial Court has taken a contrary view and believed the extra judicial confession, ignoring the account of eye witness. Thus the prosecution case is weakened, we could say, at least to certain extent. 17. PW11 had recorded the statements of witnesses under section 164 Cr.P.C. and they are also exhibited. But, unfortunately, after PW2 was treated hostile, the statement said to have been given by her, before the Judicial Magistrate, was not put to her, either for confirmation or denial. Therefore, the statement said to have been given by PW2, willingly, before the Judicial Magistrate became useless, the fact being the same is not the substantial evidence. In this view, the entire oral evidence of PW2 has been vanished. Therefore, the prosecution at present is mainly depending upon the circumstantial evidence, to prove the offence, supported by the extra judicial confession. Before scanning the above materials, we will find out the cause, for the death of Pushpa. 18. At the request of the investigating officer under Ex.P14, PW12 conducted autopsy over the body of the deceased Pushpa. The doctor had noticed five injuries, as narrated above. Out of five injuries, four injuries are incised wound and those injuries alone caused shock and haemorrhage, resulting the termination of the life of Pushpa prematurely. When the doctor had spoken about the injuries and the cause of death of Pushpa, as narrated in Ex.P15 also, the same is not challenged. The doctor also opined, that the injuries noted by him would have been caused by a weapon like MO12, which is also not challenged. Therefore, if the prosecution proves to the satisfaction of the court, inspiring confidence in the mind, that the injuries noted in Ex.P15 were inflicted by the accused using MO12, then there is no way for the accused, to escape from the clutches of section 302 IPC. On the other hand, failure to prove or if there is any possibility to infer, that the incident might have been taken otherwise also, then spontaneously a doubt would arise and the accused would be entitled to his benefits under the criminal jurisprudence. 19. In a case of circumstantial evidence, the circumstances relied on by the prosecution, should encircle the accused leaving no scope or possibility for the accused to escape from the said circle. For this, there should be no crack or snap in the chain of events of circumstances. Even if one link is broken, then the possibility comes, automatically, for the accused to escape through that gap. In this case the circumstances mainly relied on by the prosecution are, (1) there was enmity based upon motive between the deceased and the accused; (2) that when the accused came to the scene of crime with M.O.12 in M.O.13, it was witnessed by PW3 as well as when he left the scene of crime, it was witnessed by him; (3) that after the incident he confessed before PW8, and left the place leaving the cycle in the custody of PW8, which was later recovered on the confession of the accused; (4) that the accused had given a confession before the Village Administrative Officer, which is generally called 'extra judicial confession', wherein he confessed the guilt; (5) that in the dresses worn by the accused blood stains were noticed, immediately to the occurrence not only by PW8 but also at the time of arrest by the investigating officer; and (6) that the weapon M.O.12 and the cycle M.O.13 were recovered, on the voluntary confession given by the accused. On the above circumstances, the learned Government Advocate would submit that the case is proved beyond all reasonable doubts. 20. In a case of circumstantial evidence the motive should play prominent and predominant role though it may not be so essential, where ocular evidence is available in plenty. It is the case of the prosecution, that the accused had illicit intimacy with the wife of PW1, and the same was noticed by him also. PW1 would state that he suspected the fidelity of his wife, since his wife returned with his brother in the same bus, though he left her at Ramuudayanur village for performing the 'nombu'. He would further state, that in the month of 'Adi' he has seen the accused and Pushpa lying together in a compromising mood. If this is the fact, what should be the natural reaction of a husband, is the question. The answer should be, he ought to have reacted and assaulted the accused or attempted to assault the accused and the wife, also questioning their conduct. Admittedly it is not happened, whereas a theory of panchayat is introduced, which appears to be highly unnatural. This theory was not disclosed to the Investigating Officer also when P.W.1 was examined, thereby showing that this must be an after thought. According to PW1 he convened a panchayat, which was attended to by PW4 and PW5. In the panchayat, it seems Pushpa has not supported the accused and therefore, it is the case of the prosecution, the accused has been aggrieved and decided to commit murder. The reasoning given so, appears to be flimsy and unnatural in our view. If the accused and the deceased had illicit intimacy, then Pushpa would not have disclosed the same before the panchayat and she would have taken all possible steps generally to save her paramour. Even assuming that Pushpa failed to support the accused, the grievance of the accused must be against his brother-PW1, since he alone took the accused before the panchayatdars, thereby reducing his image since it is said panchayatdars imposed fine. Therefore, the evidence given by PWs.1, 4 and 5 that the accused warned Pushpa, even before the panchayatdars, appears to be some what unnatural and unacceptable to us. In this view, we conclude that this motive part alleged by the prosecution is flimsy and unacceptable. Assuming that the oral evidence of PW1 could be accepted, supported by PW4 and PW5, in our opinion, the motive is not connected with the subsequent events, and therefore, proof of motive alone will not take us to the irresistible conclusion, that the accused would have committed the murder of Pushpa, since we find so many grey area in the case of the prosecution, unexplained and unsupported by any acceptable evidence. 21. Ex.P1-complaint, given by PW1 set the law in motion. Admittedly PW1 is not the eye witness. Therefore, the statement recorded on the information furnished by PW1 could not be taken as true unless corroborated. It is the case of PW1 also, that on the information furnished by PW2, he came to know the involvement of the accused, in murdering his wife Pushpa. The person, who is said to have informed the actual incident, as aforementioned, turned hostile and thereby the chain is snapped. In this view, the averments in Ex.P1 would not support the case of the prosecution, except if at all the motive. In this view, though there is no delay in preferring the complaint, we are unable to accept the contents therein as correct and the averments in the complaint could not be treated as substantive evidence also. 22. Learned counsel for the appellant submits, that the case spoken to by PW3 that she had seen the accused just prior to the occurrence must be incorrect, appears to be correct, by going through her evidence. The incident took place on 29.9.91 Sunday. But PW3 would state that she had seen the accused 1 = years ago, in the month of ' Purattasi' on the second Saturday at about 12 noon. If the evidence is to be accepted as such it would indicate that PW3 might have seen the accused, not on the date of the occurrence, but previous to the date of the occurrence, which would not be sufficient to conclude, that he would have committed the murder of the deceased, on 29.9.91 Sunday at 12 noon. Even by way of re-examination, it is not clarified how PW3 has given the day as Saturday, the admitted fact being, the incident took place only on Sunday. She would state further, that the accused went in a cycle, having the koduval in the handle bar. She has neither identified the cycle, nor the koduval at the time of examination in chief. Only after the cross examination, when she was examined with the permission of the court, she had identified M.O.13, where also she failed to identify the koduval. She would state, that the accused, who crossed her, returned within 5 or 10 minutes. It is the case of the prosecution that M.O.12 was used, to cause cut injuries to the deceased Pushpa. Hence, if really PW3 had witnessed the incident, then she ought to have noticed the weapon with blood, which she has not spoken. Therefore, the evidence given by PW3, failed to substantiate the ' last seen' theory just prior to the incident, in order to indict the accused with the crime. Even assuming that PW3 has given the day, due to failure in memory as Saturday, instead of Sunday, in our opinion, in the absence of identification of the weapon, it is not possible to conclude that the accused alone should have committed the murder of Pushpa that too, in the face of the statement given by PW2, that her brother Kesavamurthi had committed the murder. Further, she has also not identified the shirt and dhoti, worn by the accused at the time of the incident, which is sought to be introduced by the investigating officer, as if recovered with blood stains. In this view also the last seen theory automatically vanishes and on the basis of this circumstance connecting or roping the accused, with the crime is an impossibility. 23. On the basis of the extra judicial confession said to have been given by the accused to PW8 a case is sought to be made out. Learned counsel for the appellant submits that the oral evidence of PW8 is highly artificial and believing his evidence is unsafe. According to PW8, on 29.9.91 at about 12.30 pm the accused came to his land in the cycle and his dresses were seen with blood. On enquiry, according to PW8, the accused confessed to him, about the murder committed by him. If it is so, what should be the reaction of P W8 is the question. He also belongs to the same village and he is known to PW1 also. Therefore, his immediate reaction would have been to inform at least PW1 about the crime committed by his brother. But PW8 has not acted as a reasonable man expected to be, which would show the case spoken by PW8, that the accused had confessed about his guilt, must be the imagination of the investigating officer, through PW8. The inaction and the absence of immediate reaction on the part of PW8, prompt us to say that the accused would not have confessed to him, about the murder said to have been committed and that is why he had not acted as a prudent man, in not even reporting the matter, either to the police or to PW1 and our view is supported by the decision in Kali Ram v. State of Himachal Pradesh {(1973) 2 SCC