IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.3.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN and THE HONOURABLE MR.JUSTICE R.REGUPATHI Criminal Appeal No.425 of 2007 Nagarajan .. Appellant/Accused vs. State, rep. by Inspector of Police Villupuram Taluk Police Station Villupuram District Crime No.963/2002. .. Respondent/Complainant Criminal Appeal filed under Section 374 of the Code of Criminal Procedure against the judgment of the learned Principal Sessions Judge, Villupuram District, dated 8.3.2007, in Sessions Case No.78 of 2004. ----- For Appellant : Mr.A.Sasidharan For Respondent : Mr.N.R.Elango Addl. Public Prosecutor ----- JUDGMENT (Delivered by P.D.DINAKARAN,J) The above appeal is directed against the judgment dated 8.3.2007 in S.C.No.78 of 2004 on the file of the learned Principal Sessions Judge, Villupuram, convicting and sentencing the appellant herein, to undergo life imprisonment and to pay a fine of Rs.2,000/-, in default, to undergo rigorous imprisonment for three months for the offence under Section 302, IPC and to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for two months under Section 201 I.P.C. 2. The charge against the appellant is that he, with an intention to commit the murder of his second wife Manimegalai, suspecting her fidelity, and his child Ezhilarasi, a five https://hcservices.ecourts.gov.in/hcservices/ months old baby, on 11.9.2002 at 6.00 p.m. took both of them to tapioca field situated near Azhangal channel and assaulted Manimegalai with stick on her head, face, right leg and stomach and also stamped Ezhilarasi and caused their death and further, the accused, in order to cause disappearance of evidence of an offence of committing murder, buried the dead bodies in the tapioca field, which are punishable under Sections 302 (2 counts) and 201 I.P.C. 3. When the appellant was initially questioned, he denied his complicity in the crime and pleaded innocence. Therefore, the trial of the case was taken up. 4. To prove its case, the prosecution examined 16 witnesses as P.Ws.1 to 16, marked Exhibits P1 to P32 as well as M.Os.1 to 8. 5.1. The case of the prosecution, as discerned from the evidence of prosecution witnesses, is as follows. 5.2. The deceased Manimegalai is the second wife of the accused. Their daughter is deceased Ezhilarasi, five months old baby. P.W.1 Dhasarathan is the elder brother of the deceased and younger brother of P.W.2 Moorthy. P.W.3 Dhanasundari is the neighbour of the accused, who turned hostile. P.W.4 Sankar, who is the cousin of the deceased and P.Ws.1 and 2, also turned hostile. 5.3. P.Ws.1 and 2 and their family, the accused and the deceased were living in Pillur. The deceased belonged to dhobi community. As the deceased married the accused, who belongs to some other community, P.Ws.1 and 2 and their family shifted to Marangiyur village. 5.4. Nearly five years prior to the occurrence, P.Ws.1 and 2 shifted to Marangiyur. Since the accused failed to maintain the deceased, she lodged a complaint before P.W.12, Pawlin, Sub Inspector of Police, All Women Police Station, Villupuram on 8.8.2002. P.W.12 enquired the accused and the accused promised that he would maintain his wife. The result of the enquiry is marked as Ex.P18. 5.5. P.W.5 Chandraleka, residing in Pillur village, deposed that both the deceased and the accused are known to her and she saw the deceased during festival time gave Rs.50/-, which was given by the accused to her, asking her to hand over the same to the deceased. The deceased refused to receive the same as it is not sufficient for her. 5.6. During September 2002, P.W.4 asked P.W.1 as to whether the deceased returned home and informed him that he saw the accused in the company of the deceased on 11.9.2002 at 5.00 https://hcservices.ecourts.gov.in/hcservices/ p.m. and the accused told her to come to tapioca field and he would give Rs.50/- and on the next day, the accused alone returned and the deceased and the child did not return. Hence, P.Ws.1 and 2 along with his sister Lakshmi and her husband Anandan came to P.W.6 Arumaikannu, Panchayat President, Pillur and informed about the missing of the deceased. 5.7. P.W.6 enquired the accused about the whereabouts of the deceased. The accused replied that he sent the deceased to the temple and he would bring her. But, the accused absconded from the village. P.W.6 also directed the parents of the accused to bring the deceased. They also promised to bring her, but they failed to do so. Hence, a suspicion was created on the accused. Thereafter, P.W.6 asked P.W.1 to give police complaint. Accordingly, P.W.1 lodged Ex.P1 complaint, before the Inspector of Police, Villupuram. 5.8. On 7.11.2002 at about 8.00 a.m. P.W.10 Madasamy, Inspector of Police, Villupuram, based on Ex.P1 complaint, registered a case in Crime No.963 of 2002 for 'woman missing' and prepared Ex.P13 First Information Report. He took up the case for investigation, proceeded to the scene of crime and prepared Ex.P2 Observation Mahazar and Ex.P14 Rough Sketch in the presence of P.W.8 Allimuthu, Village Administrative Officer, Pillur, and Office Menial Sivaji. He examined the witnesses and recorded their statements. Since he had been transferred to another place, P.W.16 Hari, Inspector of Police continued the investigation. 5.9. P.W.8, Village Administrative Officer deposed that when he was in his office on 26.11.2002, the accused came there and gave Ex.P3 extra judicial confession stating that he murdered his wife. P.W.8 recorded his statement and prepared Ex.P4 Special Report. Thereafter, he produced the accused before P.W.16 along with Exs.P3 and P4. P.W.16, on the same day at 6.00 p.m., altered the case into one under Sections 302 and 201 I.P.C. and prepared Ex.P20 altered FIR. P.W.14 Ramesh, Head Constable delivered altered FIR to the Judicial Magistrate No.I, Villupuram. Thereafter, P.W.16 arrested the accused and enquired him. The accused gave a confession statement voluntarily. Ex.P5 is the admissible portion of the confession statement. Pursuant to the confession, the accused took the police and P.W.8 to the place of occurrence, where he buried the dead bodies. P.W.16 inspected the place and prepared Ex.P6 Observation Mahazar and Ex.P23 Rough Sketch. He also recovered M.O.5 tin sheet under Ex.P7 Mahazar. Thereafter, P.W.16 recovered M.O.6 stick from the house of the accused under Ex.P8 Mahazar. 5.10. On receipt of requisition from P.W.16 for exhumation of the dead bodies, P.W.9 Natarajan, Tahsildar, Villupuram proceeded to Anangoor on 30.11.2002. P.W.15 Dr.Murugesan, https://hcservices.ecourts.gov.in/hcservices/ attached to Chengleput Medical College, on receipt of Exs.P9 and P10 requisition for conducting autopsy over the dead bodies, proceeded to the place where the dead bodies were exhumed. The accused identified the place where the dead bodies were buried and the said place is situated in R.S.No.683. On 30.11.2002, in the presence of police officials and medical officers, the skeleton alone was exhumed. P.W.9 conducted inquest over the dead bodies in the presence of panchayatdars and prepared Exs.P11 and P12 inquest reports. P.W.13, is the Police Head Constable, who identified the dead bodies to the Medical Officers. 5.11. P.W.15 conducted post-mortem on the body of the deceased Manimegalai and noticed the following features: Highly decomposed body of a female, foul smelling odour were emanating from the body. The body was covered with blue coloured synthetic silk saree, grey coloured blouse and purple with violet coloured petticoat. The body was identified by Moorthy and Dasarathan, who were brothers of the deceased Manimegalai. Hairs from the scalp, eye brows and pubic hairs were loosened and fallen away. The scalp hairs were black in colour, 35 cm in length the soft tissues were highly decomposed and found attached to the bones and emanating foul smelling odour. The height of the body was 140 cm, breadth was 30 cm with following ante-mortem injuries: 1) 10x4x1cm bruising seen in the left side frontal, parietal and occipital area of the scalp. 2) 5x3x1cm contusion on the left side cheek. Multiple comminuted fracture on the left side zygomatic bone. 3) Comminuted fracture on the right zygomatic bone. 4) 9 cm oblique fissured fracture on the left side temporal parietal bone. 5) 6cm oblique fissured fracture on the right side middle cranial fossa of the base of the skull bone. The doctor was of the opinion that the deceased Manimegalai would appear to have died of head injuries and issued Ex.P21 post-mortem certificate. 5.12. Thereafter, P.W.15 conducted autopsy over the dead body of child Ezhilarasi and found the following features: "One advanced decomposed body of a female child, the body was worn by orange coloured jatti, red coloured waist thread and orange coloured plastic bangles two in number. The body https://hcservices.ecourts.gov.in/hcservices/ and clothes were identified by Moorthy and Dasarathan, brothers of the deceased Manimegalai, the height of the body was 62 cm in length. Hairs from the scalp were loosened and fallen away. Soft tissues of the body, face, nose and limbs were decomposed and expose emanating foul smelling odour. The bones of the body, skull, humerus bones, radius, ulna, rib bones, femur bones, tibia and vertebral were recovered. Decomposed soft tissues were attached to the bones. All the internal organs were highly decomposed beyond their recognition. Nil fractures seen on the bones. All the neck structure of the body were on advanced decomposition beyond their recognition." The Doctor opined that no definite opinion regarding cause of death could be given in view of negative report of chemical examiners and due to advanced decomposing changes and issued Ex.P22 post-mortem certificate. 5.13. P.W.13 recovered M.Os.1 to 4, 7 and 8 from the dead bodies and handed over the same with Ex.P19 Special Report to P.W.16. P.W.16 sent the material objects to the Court for subjecting the same for chemical examination through Exs.P24 and P28 requisitions. The Judicial Magistrate forwarded the material objects to the laboratory under Exs.P25 and P29 covering letters and received Exs.P26 and 30 Chemical Examiner's Reports and Ex.P27 Serologist's Report. 5.14. P.W.16 gave Ex.P31 requisition to record a statement under Section 167(3) of the Code of Criminal Procedure. When the Judicial Magistrate examined the accused, he said that he was not willing to give statement. Ex.P32 is the report of the Judicial Magistrate. P.W.16 gave Ex.P15 requisition to send the skull bone for conducting superimposition examination and the same was sent to the Forensic Department under Ex.P16 covering letter. 5.15. P.W.11 Alamelumankai, Biology Assistant, Forensic Science Department, conducted superimposition test and issued Ex.P17 report opining that the skull could possibly have belonged to the female individual seen in the photograph. 5.16. P.W.16, Inspector of Police, completed the investigation and after following all the legal formalities, filed the final report in the court against the accused under Section 302 (2 counts) and 201 IPC on 17.11.2003. 6. When the accused was questioned under Section 313 of the Code of Criminal Procedure about the incriminating circumstances found in the evidence of prosecution witnesses, https://hcservices.ecourts.gov.in/hcservices/ the accused denied the same. No oral or documentary evidence was brought forth by the accused before the court. 7. The trial court, on consideration of the oral and documentary evidence placed before it, found the accused guilty and convicted and sentenced him as referred to earlier. 8. Heard both sides. 9. The question that arises for our consideration in this appeal is whether the prosecution has proved the guilt of the accused beyond all reasonable doubt. 10. The case of the prosecution that the deceased Manimegalai and Ezhilarasi died due to homicidal violence stands proved by the evidence of P.W.15, the doctor who conducted autopsy over the dead bodies, coupled with Exs.P21 and 22 post-mortem certificates. 11. Now, let us analyse the contentions made on behalf of the appellant and the prosecution. 12.1. Firstly, the learned counsel for the appellant contends that the extra judicial confession (Ex.P3) alleged to have been made by the accused to the Village Administrative Officer (P.W.8), who had not known the accused prior to the occurrence, cannot be relied upon. In this regard, he relies upon two decisions of the Apex Court in Kishore Chand vs. State of Himachal Pradesh (AIR 1990 SC 2140) and Balbir Singh and another vs. State of Punjab (1996 SCC (Cri) 1158). 12.2. On the other hand, learned Additional Public Prosecutor, placing reliance on the decision of the Apex Court in Sivakumar vs. State by Inspector of Police (2006 (1) SCC (Cri) 470), contends that extra judicial confession alleged to have been made to P.W.8, Village Administrative Officer can be relied upon. 12.3. In Kishore Chand vs. State of Himachal Pradesh (AIR 1990 SC 2140), the prosecution relied upon the extra judicial confession alleged to have been made by the accused to the Village Pradhan accompanying the Police Officer, after latter (police officer) got accused identified as one last seen with the deceased and after the accused left the spot. The Supreme Court held that the extra judicial confession alleged to have been made by the accused to the Village Pradhan is hit by Sections 25 and 26 of the Evidence Act, because the Village Pradhan was accompanying Police Officer. 12.4. In Balbir Singh and another vs. State of Punjab (1996 SCC (Cri) 1158), where the prosecution relied upon the extra judicial confession alleged to have been made by the https://hcservices.ecourts.gov.in/hcservices/ accused to the Municipal Commissioner, the Apex Court held that the alleged extra judicial confession made to the Municipal Commissioner cannot be trustworthy because he had no special friendship with the accused. 12.5. The extra judicial confession made to the Village Administrative Officer cannot be held as untrustworthy in view of the law settled by the Apex Court in Sivakumar vs. State by Inspector of Police (2006 (1) SCC (Cri) 470), where the question of admissibility of the confession made before the Village Administrative Officer was considered and held as follows: "30. A Village Administrative Officer may have the power to report an offence committed within the jurisdiction of the police station where he is posted but the same would not make him a person in authority. Even under certain circumstances, Section 40 of the Code of Criminal Procedure (for short “the 1973 Code”) enjoins a duty upon every officer employed in connection with the affairs of a village and every person residing in a village to communicate to the nearest Magistrate or to the officer in charge of the nearest police station, whichever is nearer, any information which he may possess respecting the matters enumerated therein. Sub-section (2)(iii) of Section 40 defines “officers employed in connection with the affairs of a village” to mean a member of the Panchayat of the village and includes the Headman and every officer or other person appointed to perform any function connected with the administration of the village. 31. Section 528 of the Code of Criminal Procedure, 1898 empowered the Sessions Judge, District or Sub-Divisional Magistrate to withdraw cases from the courts specified therein. Sub-section (6) of Section 528 of the Code of Criminal Procedure, 1898 is similar to that of sub-section (6) of Section 528 of the Code of Criminal Procedure, 1882. 32. In Madavarayachar v. Subba Rau3 it was opined: (ILR p. 94) “Village Magistrates are not Magistrates under the Code of Criminal Procedure, and, therefore, we do not think that the Joint Magistrate had power under Section 528 to withdraw the case and transfer it for disposal to the Second Class Magistrate.” 33. However, in Sevakolandai v. Ammayan4 it was https://hcservices.ecourts.gov.in/hcservices/ held that it is permissible for a District Magistrate or a Sub-Divisional Magistrate to transfer a criminal case from the file of a Village Magistrate in respect of cases involving petty thefts which a Village Magistrate is empowered to try by Regulation 4 of 1821. 34. The 1973 Code was brought about to give effect to the constitutional mandate to separate the judiciary from the executive. The entire control and supervision of the Magistrates in terms of the 1973 Code now vests in the Sessions Judge and the High Court. Transfer of criminal cases is now dealt in Chapter 31 of the 1973 Code. Section 406 confers power upon the Supreme Court to transfer cases and appeals from one State to another. Section 407 empowers the High Court to transfer cases and appeals from one court to another situate within the State. Section 408 confers power upon the Sessions Judge to transfer cases from one criminal court to another criminal court within his sessions division. Section 409 confers power upon the Sessions Judge to withdraw cases and appeals from the other Sessions Court. Section 410 empowers the Chief Judicial Magistrate to recall any case from any Magistrate subordinate to him either to himself or to transfer it to any other Magistrate. Section 411 empowers the District Magistrate or Sub-Divisional Magistrate to make over for disposal or withdrawal any case from or recall any case or refer it for disposal to any other Magistrate. Sub-section (6) of Section 528 of the 1898 Code, therefore, has not been retained by the 1973 Code. 35. Criminal Rules of Practice and Orders, 1931 of the Madras High Court were issued by the High Court in exercise of its power conferred by Article 227 of the Constitution. Rule 72 of the Rules reads thus: “72. Village Magistrates not to record confession.— Village Magistrates are absolutely prohibited from reducing or writing any confession or statement whatever made by an accused person after the police investigation has begun.” 36. The said rule has lost all its significance in view of the fact that now under the Code of Criminal Procedure or any other statute or statutory regulations, the Village Headman is not a Village Magistrate. The post of a Village Magistrate since 1973 does not exist. https://hcservices.ecourts.gov.in/hcservices/ 37. The Village Administrative Officer, it has not been shown, has been conferred with any power of a Magistrate by reason of the provisions of the Code of Criminal Procedure or otherwise. It has also not been shown that he exercises any judicial or quasi- judicial function. Indisputably, he has no role to play in the matter of an investigation in a criminal case. 38. The Village Magistrates evidently, under the new Code of Criminal Procedure, are not empowered to record any confession or statement either in terms of Section 162 or Section 164 of the Code of Criminal Procedure. 39. For all intent and purport, therefore, Rule 72 of the Criminal Rules of Practice has become redundant and nugatory, logical corollary whereof would be that there does not exist any embargo for an accused person to make an extra-judicial confession before a Village Administrative Officer. 40. We do not, thus, see any reason as to why such an extra-judicial confession could not be made before a Village Administrative Officer. With a view to exclude the admissibility of the confession made before a person, he must be a police officer. A Village Administrative Officer does not answer the description. While carrying out his duty to inform the police or the Magistrate in terms of Section 40 of the Code, the Village Headman does not act as a public servant removable only by or with the sanction of the local government nor does he act in his capacity as Magistrate. (See Pregada Balanagu v. Krosuru Kotayya5.) 41. We, for the reasons stated hereinbefore, are of the opinion that the extra-judicial confession by the appellant before the Village Administrative Officer was not inadmissible and, thus, could be relied upon. 12.6. It is settled law that the confession made by an accused person to a police officer is irrelevant by operation of Section 25 of the Indian Evidence Act and it shall not be proved against him. It is for the same reason the confession made to the Village Pradhan when he is accompanying Police Officer also cannot be relied upon, as held in Kishore Chand https://hcservices.ecourts.gov.in/hcservices/ vs. State of Himachal Pradesh (AIR 1990 SC 2140). 12.7. But, in the instant case, the accused himself went to the office of the Village Administrative Officer and gave Ex.P3 extra judicial confession and no police officer was present while giving confession. Hence, the decision in Kishore Chand vs. State of Himachal Pradesh (AIR 1990 SC 2140) is not applicable to the facts of the present case. 12.8. Similarly, the ratio laid down in Balbir Singh and another vs. State of Punjab (1996 SCC (Cri) 1158) is also not applicable to the case on hand, because in the said decision, the accused gave extra judicial confession to the Municipal Commissioner who had no special friendship with the accused and therefore, the same is not trustworthy. But, in the instant case, the extra judicial confession has been made to the Village Administrative Officer who maintains close acquaintance with the Villagers. 12.9. The Apex Court in Sivakumar vs. State by Inspector of Police (2006 (1) SCC (Cri) 470) had elaborately considered and held that the extra judicial confession made to the Village Administrative Officer is admissible and can be relied upon. The decision of the Apex Court is squarely applicable to the facts of the instant case. Hence, the extra judicial confession alleged to have been given by the accused to P.W.8, Village Administrative Officer can be relied upon to convict him. 13.1. The second contention of the learned counsel for the appellant is that there is no eye witness to the occurrence and the circumstantial evidence relied on by the prosecution is not at all sufficient to prove the guilt of the accused and the chain of circumstances is also not complete to connect the accused with the crime. 13.2. Admittedly there is no direct evidence to the occurrence proper. The prosecution therefore relies upon only circumstantial evidence to connect the accused with the crime. The accused is the husband of the deceased. P.Ws.1 and 2 are brothers of the deceased Manimegalai. They deposed that the accused married his sister Manimegalai as second wife and they were living at Pillur. Later, there was family dispute and the accused did not pay any money for maintenance of their sister. As the accused was not maintaining the deceased properly, the deceased lodged a complaint before All Women Police Station. The accused promised to maintain her properly, but even thereafter, he failed to do so. P.W.4, a relative of the deceased and P.Ws.1 and 2, deposed in his cross examination that on 11.9.2002 at about 5.00 p.m. he saw the accused with Manimegalai and Ezhilarasi and the accused promised her to pay money and took them to the motor pump-set and on the next day, he saw the accused alone and not the deceased. He informed https://hcservices.ecourts.gov.in/hcservices/ this fact to P.W.1. As the deceased was found missing, P.W.1 enquired P.W.6, Panchayat President about the deceased. P.W.6 also deposed that the accused was not maintaining the deceased properly and that he also directed the accused to pay some amount to the deceased and that he enquired the accused about the deceased and the accused told him that he had sent the deceased to the temple for paying Rs.50/- and he would bring the deceased. But, thereafter, the accused absconded from the village. If there is no fault on his part, the accused would have brought the deceased or at least informed the whereabouts of the deceased. The absence of the accused from the village would show that the accused is the cause for the missing of the deceased. Though there is no eye witness to the occurrence, the evidence of P.W.4 shows that on the date of occurrence, he saw the deceased along with the accused and on the next day, the accused alone returned. Therefore, the last seen theory established by the prosecution unerringly points out to the guilt of the accused and the accused alone and not to any other hypothesis. 13.3. One of the incriminating circumstances against the accused is that the dead bodies and the weapons used for commission of the crime were recovered on the basis of the confession of the accused. The statement of the accused which led to the recovery of the dead bodies has been incorporated in Ex.P5 and the admissible portion of it reads that he would show