IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29/01/2003 CORAM THE HONOURABLE MR JUSTICE N. DHINAKAR and THE HONOURABLE MR JUSTICE R.BALASUBRAMANIAN Criminal Appeal No.524 of 1999 1.Sivakumar 2.Sampoornam ... Appellants -Vs- State rep. by Inspector of Police, Nambiyur Circle, Varapalayam Police Station. ... Respondent Prayer: Appeal against the judgment passed by the learned Principal Sessions Judge, Erode, in S.C.No. 206 of 1998 dated :26.4.1999. !For Appellant : Mr. C.Krishnan for A.1 Mr.M.Jayabalan for A.2 ^For Respondent : Mr.M.K.Subramanian Govt. Advocate (Crl.side) :JUDGMENT (Judgment of the Court was delivered by N. DHINAKAR, J) The appellants, two in number, who were arrayed as "A.1 and A.2" before the learned Principal Sessions Judge in S.C.No. 206 of 1998, challenge their conviction and sentence and in the judgment, they will be referred to in the order as "A.1 and A.2". They were tried before the learned Sessions Judge on a charge of murder with an allegation that at 1.00 a.m. on 29.4.1997 they caused the death of the deceased, Muthu, by beating him on various parts of his body with aruval and sticks. The learned Sessions Judge, accepting the prosecution version as brought out through both oral and documentary evidence, convicted and sentenced each one of them to imprisonment for life. 2. The facts necessary to dispose of the appeal are as follows:- P.W.2 is a relative of the deceased and P.W.8 is the younger brother of the deceased. A.1 is the son of A.2. A.2 and the deceased were in illicit relationship with each other. A.2, after quarrelling with her husband, was living at Thirumuruganpoondi for about five years with the deceased and while they were so residing at Thirumuruganpoondi, the deceased was working in Asar mill. While they were living as husband and wife at Thirumuruganpoondi, the husband of A.2 died. After the death of her husband, the children born to her husband through the first wife, who were residing in a garden land belonging to her husband, were chased away by A.2 and the deceased. After the property came into possession of A.2, the deceased improved the property by digging a bore well. He also spent monies to develop the land. Later, the deceased was asking A.2 to return the amount so invested in the property; but A.2 refused to repay the amount and therefore quarrels ensued between the deceased and the accused, which is said to be the motive for the occurrence. 3. On 28.4.1997 at about 9.30 p.m. P.W.2 was requested by the deceased to go along with him to Periyachettipalayam and accordingly, P.W.2 and the deceased went in a TVS moped bearing registration No. TAP 6 377 to the house of A.2 at Periyachettipalayam. The moped was stopped in front of the house of A.2 and the deceased, after requesting P. W.2 to stay outside, entered the house. This was at 10.30 p.m. While P.W.2 was standing outside, he heard quarrels emanating from the house of A.2 and on hearing the quarrels, some of the villagers in the village also gathered. At about 11.30 p.m. the deceased came out of the house followed by A.1, who was having an aruval and A.2, who was having a stick. The deceased, on coming out of the house, ran towards south chased by A.1 and A.2. A.1 cut the deceased on the head with the aruval and blood gushed out. The deceased fell down. After he fell down, A.1 and A.2 threatened P.W.1. The deceased was also beaten by A.2. They threatened P.W.2, by telling him that if he informs others he will also meet the same fate. P.W.2 left the scene of occurrence and returned home. 4. P.W.13, the village menial, was on his rounds and he saw a dead body lying on the road. He went and informed P.W.1, the Village Administrative Officer, at about 11.00 a.m. about his finding the dead body. P.W.1 went to the place, where the dead body was lying and by the side of the dead body, he noticed a TVS moped bearing registration No. TAP 6377, which stands marked as M.O.1 in the case. He found cut injuries on the dead body. He, thereafter, proceeded to Perumanallur police station and gave a complaint, Ex.P.1 to P.W.16, the Sub Inspector of Police, at noon. P.W.16, on receipt of Ex.P.1, registered a case in Crime No. 231 of 1997 against the accused under Section 302 IPC. by preparing express reports, Ex.P.24. The express reports were despatched to the higher officials and to the Court. Investigation was taken up by P.W.19, the Inspector of Police. 5. P.W.19, on taking up investigation in the crime, reached the scene of occurrence at 1.30 p.m., where, in the presence of witnesses, prepared an observation mahazar, Ex.P.13, and drew a rough sketch, Ex.P.30. The inquest was conducted between 2.00 p.m. and 4.00 p.m. in the presence of Panchayatdars and at the time of inquest, P.Ws.1, 2, 8 and 13 were questioned and their statements were recorded. Ex.P.31 is the inquest report. After the inquest, the body was handed over to P.W.15, a Police Constable, with a requisition, Ex.P.9, to the doctor for conducting autopsy. 6. On receipt of the requisition, P.W.12, the Civil Assistant Surgeon attached to Government Hospital, Thirupur, conducted autopsy on the body of Muthu and found the following ante-mortem injuries:- 1.Skin peeled off in both shoulders, hip, gluteal region, both upper and lower limbs. Plebs seen over both upper limbs. 2.Lacerated injury over left parietal region 10 cm x 3 cm x bone deep. 3.Lacerated injury right parietal occipital region 4 cm x 2 cm x bone deep. 4.Lacerated injury on right side of fore head 4 cm x 2 cm x bone deep. 5.Lacerated wound over left forehead 3 cm x 1 cm x bone deep. 6.Fracture of tip of nose. 7.Cut injury right pinna in the upper part 4 cm in length. 8.Lacerated injury in the back of the right mastoid region 2 cm x 1 cm. 9.Abrasion over inner side of left thigh 5 cm x 5 cm. 10.Abrasion over back of left chest 4 cm x 1 cm. The doctor issued Ex.P.10, post-mortem certificate, and also gave Ex.P.12, the final opinion, opining that the deceased died on account of shock and haemorrhage due to multiple injuries about 24 to 48 hours prior to post-mortem. 7. In the meantime, P.W.19, continuing with his investigation, seized M.Os.1 and 6 to 11, which were at the scene of occurrence under a cover of mahazar, Ex.P.14. He, thereafter, went to Periyachettipalayam and prepared an observation mahazar, Ex.P.15 and drew a rough sketch, Ex.P.32 and from the place seized M.Os.15 and 16 under a cover of mahazar Ex.P.16 attested by witnesses. He questioned P.W.13 and recorded his statement. The material objects were sent to Court. M. Os.21 to 24, which were on the dead body and produced by P.W.15, were seized under Form 95, which is Ex.P.23 in the case. As the occurrence had taken place within the jurisdiction of Varappalayam police station, he transferred the file for further investigation to the said police station and further investigation was taken up by P.W.20, the Inspector of Police. P.W.20, on taking up investigation from P.W.19, verified the investigation conducted by P.W.19 and questioned P.Ws.1, 2, 7, 8 and 13 and recorded their statements. He also drew a rough sketch, Ex.P.19, regarding the scene of occurrence. He arrested A.1 in the presence of P.W.14 and he was questioned. In pursuance of the admissible portion of the statement, Ex.P.17, given by him, the accused took the police party and produced M.Os.2, 17 and 18, which were seized under a mahazar Ex.P.19 attested by witnesses. A.2 was, thereafter, arrested in front of Avinasilingeshwaran temple and she was questioned. The admissible portion of her statement is Ex.P.20. A.2 took the police party to her house and produced M.O.3, a stick, and the same was seized under a mahazar attested by witnesses. The material objects were later despatched to the Court with a request to forward them for analysis. He issued a requisition, Ex.P.2, to the Magistrate to record the statement of A.1. 8. On receipt of the requisition, P.W.11, Judicial Magistrate, Sathyamangalam, directed the police authorities to produce A.1 before him and accordingly, he was produced before the Magistrate on 7.5.1997. P.W.11 after taking all the precautions and after following the procedure, questioned A.1 to satisfy himself that the accused is in a mood to confess. Thereafter, A.1 was sent back to jail with a direction to the jail authorities to keep him in a separate cell, so that he could reflect and decide whether he should give a statement. The jail authorities were directed to produce A.1 on the next day and accordingly, A.1 was produced before the Magistrate, P.W.11, at 4.05 p.m. on 8.5.1997. On that day, the learned Magistrate, after following the formalities and after satisfying himself that the accused is in a mood to confess and it is voluntary, proceeded to record the statement given by A.1. The said statement given by A.1. is Ex.P.6. The first day proceedings of the Magistrate dated 7.5.1997 and the second day proceedings of the Magistrate dated 8.5.1997 are Exs.P.7 and P.8 respectively. 9. In the meantime, P.W.12, the medical officer and P.W.10, the photographer, as well as other two witnesses were questioned and their statements were recorded. After the completion of investigation, P. W.20 laid the final report against the accused. 10. When the accused were questioned under Section 313 of the Cr.P.C. on the incriminating circumstances appearing against them, they denied all the incriminating circumstances. They examined one witness on their side to show that P.Ws.3 and 4 were his employees during the relevant period. They did not file any written statement. 11. The prosecution with a view to establish the cause of the death of Muthu, examined P.W.12, who has, in his evidence, stated that on conducting autopsy he found as many as ten injuries on the dead body. According to him, the deceased would have died on account of shock and haemorrhage about 24 to 48 hours prior to post-mortem and that all the injuries are cumulatively sufficient in the ordinary course of nature to cause his death. On the medical evidence, we hold that the deceased, Muthu, died on account of homicidal violence. 12. P.Ws.2, 3 and 4 were examined to prove that A.1 and A.2 inflicted injuries on the deceased, which resulted in his death. We will now take up the evidence let in by the prosecution to find out whether their evidence can be accepted. P.W.2 is a relative of the deceased and according to him, on the date of incident at about 9.30 p.m. the deceased requested him to go along with him t o Periyachettipalayam and accordingly, he travelled along with the deceased in a TVS moped bearing registration No. TAP 6377. He has further deposed that on reaching the house of A.2, the deceased requested him to stand outside and that the deceased entered the house. He has further stated that he heard quarrels emanating from the house and that the deceased came out of the house at about 11.30 p.m. According to him, on coming out of the house, the deceased ran towards south chased by A.1 and A.2 and that A.1 and A.2 cut and beat the deceased. He has further deposed that after the incident, he returned to the village and at about 9 .30 a.m. or 10.00 a.m. on 30.4.1997 he went to the house of the deceased with a view to inform the mother and sister-in-law of the deceased. When cross-examined, he has stated that while he was standing in front of the house of A.2, there were several others also standing along with him and that in the crowd, one was known to him. Though he claimed that the deceased was beaten and cut by A.2 and A.1 respectively, he did not go and inform anyone. He did not also inform the person known to him, who was standing in the crowd. On the contrary, his statement that he went home and later went to the house of the deceased at 10.00 a.m. on the next day to inform about the incident is too artificial to be believed. He is a relative of the deceased and any relative, if he had seen the occurrence, would have definitely gone to the house of the deceased to inform about the incident. In fact, in cross-examination, he has admitted that while returning home, he walked the distance from Periyachettipalayam to his village, which was at a distance of 5 kilometers, and we are unable to understand as to why he did not take any steps to go and inform the police authorities or anyone else in the village at Periyachettipalayam, though he admittedly knew at least one person in the said village. The conduct of P.W.2 in not informing about the incident though he claims to be the relative of the deceased, is highly artificial and we are unable to place any reliance upon his evidence. 13. In fact, the evidence of P.W.2 is also destroyed by the admission of P.W.3. P.Ws.3 and 4 claimed in their evidence that they were working as employees in a powerloom run by Ramasamy, D.W.1. They have, in their evidence, stated that while they were answering calls of nature, they saw the deceased coming out of the house and that A.1 and A.2 beat the deceased. Though they claimed that they saw the incident, they also did not go and inform anybody about the incident and the explanation given by P.Ws.3 and 4 is that their employer Ramasamy asked them not to divulge the said fact to anyone and that if they give the information to the police, they will land themselves in trouble and therefore, they did not give any information to any authorities. P.W.3, in cross-examination, has admitted that he knew P.W.2; but P.W.3 did not choose to go and inform either P.W.2 or any other person and the explanation offered by them for not giving the information to others is too tall a one for the Court to accept. In fact, P.W.3 was examined not at the time of inquest; but was examined only on 3.5.1997. We are unable to understand as to the circumstances under which the police officer came to know that P.W.3 was an eye witness for him to trace P.W.3 and examine him and to record his statement under Section 161 Cr.P.C. Similarly, the evidence of P.W.4 stands on the same footing as that of P.W.3. P.W.4, contradicting the evidence of P.W.3, came out with an answer in cross-examination by stating that on the next day they informed all the villagers about the occurrence and also stated that they are eye witnesses. If that be the case, the officer would have certainly examined them on the date when he was in the village; but P.W.4 was examined only on 3.5.1997. If P.Ws.3 and 4 were really present and witnessed the incident and if P.W.4 informed the villagers that they were eye witnesses to the occurrence, then the officer would have examined them on 30.4.1997 when he reached the scene of occurrence. There is no explanation from the side of the prosecution as to why the three witnesses (P.Ws.2 to 4) were examined only on 3.5.1997, though the prosecution claims that they were present and witnessed the incident. We are unable to accept the evidence of the eye witnesses. 14. Similarly, we are unable to place reliance upon the evidence of P.W.5. According to him, at about 1.30 a.m. on 28/29.4.1997, when he was returning in a moped, he saw A.1 travelling in a moped with a gunny bag. Though he claimed that he saw A.1, he also did not inform any person. In cross-examination, he has admitted that he knew the brothers of the deceased but not P.W.2. If so, we are unable to understand as to why he did not go and inform the brothers of the deceased, who were known to him. He was also examined only on 3.5.1997. 15. We are also unable to accept the evidence of P.W.6, who, in his evidence, claimed that he saw A.1 riding a motor cycle with a gunny bag on the carrier. He has admitted in cross-examination that though he went to the scene of occurrence and saw the police officers, he did not inform them that he saw A.1 on the previous night travelling in a motor cycle with a gunny bag on the carrier. The other witnesses having turned hostile and the evidence of P.Ws.2 to 6 not being trustworthy, we find it difficult to accept the evidence of the witnesses. In this background we cannot, but, refer to the evidence of P.W.2, who has, in his evidence, stated that at about 9.00 or 10.00 a.m. on 29.4.1997 when he was at the place, police officers have arrived and later, P.W.1, the Village Administrative Officer, was brought to the scene and that the Village Administrative Officer was questioned as to the identity of the dead body. According to him, the police officer noted the name and address and other details of the dead man after questioning the Village Administrative Officer and thereafter, the dead body was removed. This admission of P.W.2, therefore, shows that Ex.P.1 also could not have come into existence at noon as claimed by P.W.1. The evidence of the eye witnesses and also the evidence of P.W.1, in our view, cannot be accepted for the reasons mentioned above. 16. Though we have rejected the evidence of the witnesses, we are unable to reject Ex.P.6, the confession given by the accused to P.W.11 , the Judicial Magistrate. P.W.11, during the relevant period, was serving as a Judicial Magistrate at Sathyamangalam and in his evidence, he has stated that on receipt of the requisition, he directed the police authorities to produce A.1 before him and accordingly, A.1 was produced before him on 7.5.1997. He has further stated that after satisfying himself that A.1 is in a mood to confess, he was sent back to jail with a direction to the police authorities to produce him on the next day and that accordingly, on 8.5.1997 A.1 was produced before him at 4.05 p.m. He has also deposed that he took all the precautions and followed the procedures and after satisfying himself that the statement to be given by A.1 is voluntary in nature, proceeded to record the statement. The said statement, so recorded by the Magistrate, stands marked as Ex.P.6 in the case and we have perused Ex.P.6, which contains several details, which could have been only in the knowledge of A.1. We are unable to reject the said statement as not voluntary. 17. The learned counsel appearing for A.1 contends that since A.1 has retracted the confession in the statement recorded under Section 3 13 of the Cr.P.C., it should not be acted upon as it is not voluntary in nature. 18. In SANKARIA -vs- STATE OF RAJASTHAN (AIR 1978 SUPREME COURT 124 8, the Supreme Court held that when the prosecution demands a conviction of the accused primarily on the basis of his confession recorded under Section 164 Cr.P.C., the Court must apply a double test: (1)Whether the confession was perfectly voluntary? (2)If so, whether it is true and trustworthy?. Satisfaction of the first test is a sine qua non for its admissibility in evidence. If the confession appears to the Court to have been caused by any inducement, threat or promise such as is mentioned in S.24, Evidence Act, it must be excluded and rejected brevi manu. In such a case, the question of proceeding further to apply the second test, does not arise. If the first test is satisfied, the Court must, before acting upon the confession reach the finding that what is stated therein is true and reliable. For judging the reliability of such a confession, or for that matter of any substantive piece of evidence, there is no rigid canon of universal application. Even so, one broad method which may be useful in most cases for evaluating a confession may be indicated. The Court should carefully examine the confession and compare it with the rest of the evidence, in the light of the surrounding circumstances and probabilities of the case. If on such examination and comparison, the confession appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the second test. 19. The above principles enunciated by the Supreme Court apply with all force to the case on hand and we do not find any reason to reject the said confession given by A.1 to the Magistrate. The Magistrate has also taken all the precautions and after satisfying himself that the statement to be given by A.1 is voluntary in nature, proceeded to record the said statement. 20. In this connection we should also refer to the judgment of the Supreme Court in SARKARIA -vs- STATE OF RAJASTHAN (AIR 1978 SUPREME COURT 1398. In the judgment second cited supra, the statement of confession of the accused was recorded on 14.6.1974 and the trial commenced on 10.1.1975 when the charges were framed and read over to the accused. On that day the accused did not retract the confession though he pleaded not guilty to the charges and he was questioned after the trial on 14.6.1975 when he was examined under Section 313 Cr.P.C. On that day he retracted the confession given b y him to the Magistrate and in the above circumstances the Supreme Court held that the confession, which was not retracted at the earliest opportunity militated to some extent against the contention of the accused that the confession was recorded under pressure of the police. When we apply the principles enunciated by the Supreme Court in the above case to the present case, it could be seen that charges were framed and read over to the accused on 18.1.1999. A.1 did not retract the said confession on that day; but he retracted the same only when he was questioned under Section 313 of the Cr.P.C. on 9.4.1999. A.1 not having retracted the confession on 18.1.1999 and having retracted it only at the time of recording of his statement under Section 313 Cr.P.C., we are of the view that the said contention of the counsel that the confession of the accused is not voluntary in nature cannot be accepted. We, in view of the discussion made above, accept the confession made by A.1 to the Magistrate, P.W.11. 21. The only question that is to be decided by us is the nature of the offence committed by the accused. As we stated earlier, we have accepted the confession of A.1 and a perusal of the confession would show that the deceased was ill-treating A who is the mother of A.1. It would also show that the deceased not only was in illicit relationship with his mother; but also forced his sister to have relationship with him. A.1 has further stated that on coming to know of this conduct of the deceased, he has advised the deceased not to visit his house; but the deceased without heeding to his advice, was visiting the house and was ill-treating A.2 and other family members. He has alleged that on a day when he returned home, he found his sister and mother at home and his sister was found sitting without saree and that he questioned them and his mother informed him that the deceased is giving them trouble and is making their life miserable. He has further alleged in the confession that on the date of incident, the deceased came to the house and demanded repayment of Rs.4.00 crores saying that he has spent the amount for the improvement of the property and on account of that there was a quarrel between