IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.04.2009 CORAM THE HONOURABLE MR.JUSTICE C.NAGAPPAN and THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM Criminal Appeal No.429 of 2008 Abdul Kareem ..Appellant/Single accused Versus The State represented by The Inspector of Police Sankarapuram Police Station Vadaponparrapi Police Station Villupuram, (Crime No.273/2001) ..Respondent/Complainant Criminal Appeal filed under Section 374(2) of Cr.P.C against the Judgment and Conviction passed by the learned Principal Sessions Judge, Villupuram, made in S.C.No.12 of 2003 dated 29.09.2003. For Appellant : Mr.V.Parthiban For Respondent : Mr.V.R.Balasubramaniam Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by T.SUDANTHIRAM,J.) The appellant herein is an accused in S.C.No.12 of 2003, on the file of the Principal Sessions Court, Villupuram stands convicted for offence under Section 302 and 201 IPC and sentenced to life imprisonment and to pay a fine of Rs.5000/- for each count in default to undergo one year rigorous imprisonment for the offence under Section 302 IPC (six counts) and sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs.5000/- in default to undergo one year rigorous imprisonment under Section 201 IPC and the sentence of imprisonment to run concurrently. Aggrieved by the said conviction and sentence, the appellant has preferred this appeal. 2. The charge against the accused is that on 27.07.2001 at about 10.00p.m., he caused the death of his wife/Badhuhunisha by strangulating her neck using the saree and placed the body into the pit and further brought his five daughters Nabeeza, Shakeetha, Nazirin, Zagira Banu and Yasmin one by one and tied their hands https://hcservices.ecourts.gov.in/hcservices/ back, closing their mouth by plaster made them to sit inside the pit alive and closed the pit thereby causing their death due to suffocation. The appellant was charged for offences under Section 302 IPC (for six counts) and under Section 201 IPC. 3. In order to establish the charge, the prosecution has examined 25 witnesses, marked 73 exhibits and produced 27 material objects. 4. The evidence let in by the prosecution in brief is as follows: P.W.1 and P.W.2 are the Village Assistants of the Pakkam Village. On 02.09.2001, both P.W.1 and P.W.2 were in the Revenue Inspector's office Vadaponparappi. The Village Administrative Officer one Madhuranayagam was also present. At about 7.00p.m., the accused Abdul Kareem came to that office and he voluntarily gave a confession to the Village Administrative Officer Madhuranayagam. The said Madhuranayagam has not been examined since he died before the commencement of trial. The Village Administrative Officer Madhuranayagam recorded the confession voluntarily given by the accused. Ex.P.1 is the confession. As the confession by the accused was given in the presence of P.Ws.1 and 2, both of them stood as witnesses and put their signatures in Ex.P.1. 5. In Ex.P.1, it is stated that the accused got married about 21 years back and he had six daughters. Two years after the marriage, he went abroad and used to come to the house once in three years. His wife had given all the money which he earned and the jewels to her mother. About a year back he came to his house. Then he came to know that his wife was having illicit intimacy with his brother Abdul Raheem and his daughter Zareena also was having illicit intimacy with a local Colony man. His wife and brother spread the rumour that the accused was having illicit intimacy with his own daughter Zareena. As it was questioned by the accused, his wife had gone to her mother's place with her daughters. After Panchayat was convened, he brought back her to his house. His brothers-in-law came and took his daughters to their house. Again he went and brought back his wife and daughters. His daughter Zareena committed suicide by hanging. The accused took up a decision since public were talking ill about him, his wife and his daughters. He dig up a pit in the place between two houses and as his wife questioned him, he told that he was to construct a water tank. On 27.07.2001, at about 11.00p.m., politely talking to his wife, he took her near the pit, then strangulated her with a saree and placed the body into the pit. He brought the daughters one by one, closed their mouth with plasters, tied the hands of the three daughters and made all five to sit in the pit alive. Then he spread the polythene bag and filled the pit with earth. On 28.07.2001, he left the place and went to Nagercoil. He felt very much about the murders committed by him. He informed his sister https://hcservices.ecourts.gov.in/hcservices/ Faizunnisa over phone and she scolded him and on the same day, he came to the Village Administrative Officer and gave the confession. 6. The Village Administrative Officer, Madhuranayagam after recording Ex.P.1, prepared the complaint Ex.P.2 addressed to the Sub Inspector of Police, Vadaponparrapi Police Station and went to the Police Station and gave the complaint Ex.P.2 along with Ex.P.1. P.W.1 also had accompanied the Village Administrative Officer to the police station. P.W.22, Sub Inspector of Police on receiving Ex.P.2 and Ex.P.1 registered the case in Crime No.273 of 2001 for offences under Sections 302 and 201 IPC and prepared the First Information Report Ex.P.45. He forwarded the copy of the FIR to the Judicial Magistrate, Kallakurichi and also forwarded a coy of the FIR to his Superior Officer. 7. P.W.25 Inspector of Police on receiving a VHF message went to the police station and received the copy of the FIR and arrested the accused at 9.30p.m., in the presence of the witnesses, Village Administrative Officer Madhuranayagam and his Assistant P.W.1. He also recorded the confession given by the accused. Ex.P.3 is the admissible portion of the confession recorded by P.W.25. P.W.25 went to the house of the accused and recovered M.Os.1 and 2 yellow cloth and yellow ribbon, M.O.3 roots , M.O.4 dried lemon, M.O.5 old cloth, M.O.6 copper plate which were produced by the accused under Ex.P.4 mahazar. He also gave a requisition to the Tahsildar for the exhumation of bodies. 8. P.W.14 Tahsildar of Sankarapuram on receiving the requisition, he informed the Chenglepet medical college medical team for holding autopsy. Next day he went to the scene of occurrence and the medical team also reached the spot. The accused pointed out the place. As per the order of P.W.14, P.W.10 and others dug up the place and took out six bodies. He prepared the observation mahazar Exs.P.5 and P.6. P.W.12 has taken the photos M.O.12 series and M.O.13 series. P.W.24 Doctor Parasakthi who had come to the place of exhumation commenced autopsy on all the six bodies at 3.50p.m.,. Exs.P.65 to 70 are the post mortem certificates relating to the body of the deceased viz., Badhuhunisha, Nabeeza, Shakeetha, Nazirin, Zagira Banu and Yasmin. Post mortem certificate of Yasmin (Ex.P.65): Signs of Decomposition: Body bloaded; Face – bloated. Abdomen- Distended. Both eyeballs softened; Loosening of Scalp hair seen; cuticular peeling seen all over the body; Tongue protruding out. Finger nails; Cyanosed; Mucous membrances of mouth, lips and tongue; cyanosed; Nil bony injuries seen. Neither external nor internal injuries seen anywhere on the body. Forth seen at and around mouth larynx and trachea. Sand, mud-particles, froth and mucous seen https://hcservices.ecourts.gov.in/hcservices/ on the inner surface of larynx and trachea. Respiratory tract decomposed is contained sand, mud particles, froth and mucous O/D Vault Base Dura; Intact, Brain: Liquified; Hyoid Bone: Intact; Lungs, Liver, Spleen, Kidneys, Pancreas, Bladder; Decomposed, NAD, Heart: Flabby, Empty decomposed; Stomach: Contained 100 grams of partly digested cooked materials No specific smell, Mucos: Decomposed small intestine, Yellowish chyme seen. No specific smell. Uterus: Infantile decomposed Viscera preserved for chemical analysis. Opinion: Died of conclusion of respiratory orifices and passages. Post mortem certificate of Zagira (Ex.P.66): Signs of Decomposition: Body bloaded; Face – bloated. Abdomen- Distended. Both eyeballs softened; Loosening of Scalp hair seen; cuticular peeling seen all over the body; Tongue protruding out. Finger nails; Cyanosed; Mucous membranes of mouth, lips and tongue; cyanosed; Nil bony injuries seen. Neither external nor internal injuries seen anywhere on the body. Forth seen at and around mouth larynx and trachea. Sand, mud-particles, froth and mucous seen on the inner surface of larynx and trachea. Respiratory tract decomposed is contained sand, mud particles and froth. O/D Vault Base Dura; Intact, Brain: Liquified; Hyoid Bone: Intact; Lungs, Liver, Spleen, Kidneys, Pancreas, Bladder; Decomposed, NAD, Heart: Flabby, Empty decomposed; Stomach: Contained 100 grams of partly digested cooked materials No specific smell, Mucos: Decomposed small intestine, Yellowish chyme seen. Mucosa Decomposed. Uterus: Infantile decomposed Viscera preserved for chemical analysis. Opinion: Died of conclusion of respiratory orifices and passages. Post mortem certificate of Nazirin (Ex.P.67) Signs of Decomposition: Body bloaded; Face – bloated. Abdomen- Distended. Both eyeballs softened; Loosening of Scalp hair seen; cuticular peeling seen all over the body; Tongue protruding out. Finger nails; Cyanosed; Mucous membrances of mouth, lips and tongue; cyanosed; Nil bony injuries seen. Neither external nor internal injuries seen anywhere on the body. https://hcservices.ecourts.gov.in/hcservices/ Forth seen at and around mouth larynx and trachea. Sand, mud-particles with fluid seen on the inner mucosal surface of larynx and trachea. Respiratory tract decomposed; c/s. Contained sand, mud particles, froth and fluid; O/D Vault Base Dura; Intact, Brain: Liquified; Hyoid Bone: Intact; Heart: Flabby, empty, decomposed; lungs, liver, spleen, kidneys, Pancreas, Bladder, decomposed, Uterus: Infantile Decomposed. Stomach: Contained 50 grams of partly digested food materials No specific smell, Mucosa: Decomposed small intestine, Distended with gas, No specific smell, Mucosa: Decoposed. Viscera preserved for chemical analysis, Soil samples preserved and sent to TNFSC Lab, Chennai-4. Opinion: Died of conclusion of respiratory orifices and passages. Post Mortem certificate of Shakeetha (Ex.68): Signs of Decomposition: Body bloaded; Face – bloated. Abdomen- Distended. Both eyeballs softened; Loosening of Scalp hair seen; cuticular peeling seen all over the body; Tongue protruding out. Finger nails; Cyanosed; Mucous membrances of mouth, lips and tongue; cyanosed; Nil bony injuries seen. Neither external nor internal injuries seen anywhere on the body. Forth seen at and around mouth larynx and trachea. Sand, mud-particles with fluid seen on the inner mucosal surface of larynx and trachea. Respiratory tract decomposed; Contained sand, mud forth and fluid; O/D Vault Base Dura; Intact, Brain: Liquified; Hyoid Bone: Intact; Heart: Flabby, empty, decomposed; lungs, liver, spleen, kidneys, Pancreas, Bladder, decomposed. Bladder: Decomposed. Uterus: Decomposed: Empty: Stomach: Contained 75 grams of partly digested food materials. No specific smell, Mucosa: Decomposed small intestine, Yellow chyme seen, No specific smell, Mucosa: Decoposed. Spinal Coloumn: Intact Atlas Axiz – Intact: Viscera preserved: Soil preserved. Opinion: Died of conclusion of respiratory orifices and passages. Post mortem certificate of Nabeeza (Ex.P.69) Signs of Decomposition: Body bloated ; Face – bloated. Abdomen-Distended. Both eyeballs softened; Loosening of Scalp hair seen; cuticular peeling seen all over the body; Tongue protruding out. https://hcservices.ecourts.gov.in/hcservices/ Finger nails; Cyanosed; Mucous membrances of mouth, lips and tongue; cyanosed; Nil bony injuries seen. Neither external nor internal injuries seen anywhere on the body. Forth seen at and around mouth larynx and trachea. Sand, mud-particles seen on the inner muscosal surface of Larynx and Trachea. Respiratory tract Decomposed. O/D Vault Base Dura; Intact, Brain: Liquified; lungs, liver, spleen, kidneys, Pancreas, decomposed. Stomach: Contained 100 grams of partly digested food materials. No specific smell, Mucosa: Decomposed. Small Intestine; Yellowish Chyme decomposed. Bladder decomposed. Uterus Decomposed. Empty Hyoid Bone: Intact Viscera preserved: Soil preserved. Opinion: Died of conclusion of respiratory orifices and passages. Post mortem certificate of Badhurunisha (Ex.P.70) Signs of Decomposition: Body bloated; Face – bloated. Abdomen-Distended. Both eyeballs softened; Loosening of Scalp hair seen; cuticular peeling seen all over the body; Tongue protruding out. Finger nails; Cyanosed; Mucous membrances of mouth, lips and tongue; cyanosed; Anti mortem injury: Saree was tightly tied on the entire completely, around the neck. After removal of the saree, horizontally placed, well-defined deeply- grooved, ligature mark, seen completely enarcling the neck. Circumference of the ligature mark; 35 cms and width 5 cms. It lies 7cms above the supra sternal notch on the front of neck. On the side, it lies 5 cms below the matoid prominence. On left side it lies 5.5cms below the left mastoid prominence. On the back of neck, it lies 6.5 cms above the 7 critical spine. O/D the underlying issues of the ligature mark found, braised. Petechial haemorrhages seen on the inner aspect of larynx and trachea. Hyoid Bone: Intact: Thyroid and Cricoid Cartilages: Intact O/D. Of Thorax and Abdomen. All visceral organs namely lungs Liver, Spleen, Kidneys, Pancreas and Heart found decomposed. Uterus: Normal size Empty. Bladder: Empty Decomposed. O/D. Head. Vault, Base, Dura – Intact, Brain: Decomposed. Liquified; Viscera preserved for chemical analysis soil samples collected from the https://hcservices.ecourts.gov.in/hcservices/ buried site. Sent to TNFSC Lab, Chennai -4 to detect poison if any. Opinion: "Died of asphyxia due to Strangulation." 9. P.W.25 Inspector of Police examined the witnesses and sent the accused before the learned Judicial Magistrate I, Kallakurichi for remand. P.W.14 gave the report Ex.P.53 to the learned Judicial Magistrate-I, Kallakurichi on 04.09.2001. On 10.09.2001, the Inspector of Police gave requisition to the Judicial Magistrate for recording the statement under 164 Cr.P.C. On 29.01.2001 he recorded the statement of the witnesses Ikbal Basha and Thirumal under Section 164 Cr.P.C under Exs.P.10 and P.11 respectively. On 11.09.2001, he gave requisition to the Judicial Magistrate for the police custody of the accused. As per the order of the Court, he took the accused to his custody on 11.09.2001 and on 14.09.2001 he went to Thiruvannamalai and seized the ledger of the lodge under a mahazar Ex.P.72. P.W.8 is the Manager of the Arya Lodge at Thiruvannamalai. According to him, an entry was made in the ledger that Abdul Rahim had stayed in the lodge with a lady. Ex.P.12 is the entry. On 17.09.2001, the accused was produced before the Judicial Magistrate. On 24.01.2001, P.W.25 has given requisition to the learned Judicial Magistrate for comparing the skull with the photograph of the deceased by superimposition. P.W.21 the Assistant Director on comparing the six skulls with six photographs and by conducting the superimposition test concluded each of the skull belongs to each individual seen in the photographs and giving his opinion issued the certificate Ex.P.54 with reasons for the opinion. 10. P.W.23, Judicial Magistrate II, Kallakurichi on receiving the order of the learned Chief Judicial Magistrate, sent the notice to the prison to produce the accused on 20.03.2001 at 3.00p.m. The accused was produced at 4.45p.m., then sending the other persons outside the court and closing the windows and doors of the court, he questioned the accused as the accused was ready to give voluntary confession 24 hours time was given to him for reflection. But on 22.09.2001, as P.W.23 the learned Judicial magistrate was about to go Sessions Court for giving evidence, the accused was directed to be produced and the accused was produced on 24.09.2002 at 4.00p.m.,. The accused was questioned whether he was willing to give the confession and as he was willing, his confession was recorded from 4.10p.m., to 6.30p.m and his signature was obtained. Ex.P.58 is the proceedings and the Judicial confession given by the accused and recorded by the learned Magistrate. P.W.25 on examining the other witnesses Tahsildar, Head Constable and photographers and other witnesses and on completing the investigation, he filed a final report on 29.11.2001 for offences under sections 302 and 201 IPC. 11. P.W.3 mother-in-law of the accused and mother of the deceased Badhurunisha stated in her evidence that the second daughter of the accused Zareena had committed suicide by hanging https://hcservices.ecourts.gov.in/hcservices/ and the accused had taken his second daughter Nabeeza to a lodge at Thiruvannamalai and it was informed by his daughter. P.W.4 mother of the accused had stated in her evidence that the daughter of the accused Zareena had committed suicide, since she was scolded by the accused. She further stated that the accused took the children from her custody and when she went and asked the accused, she was informed that the daughters have been sent to Goa. As she insisted that she had to see the Children, the accused told that he would go and bring them. P.W.5 brother of the deceased Badhurunisha stated in his evidence that the accused took his daughter Nabeeza to a lodge at Thiruvannamalai and misbehaved with her. P.W.6 another brother of the deceased Badhurunisha had deposed that Nabeeza told him that the accused had taken her to a lodge at Thiruvannamalai and told her that if she gets married, he would murder her husband. PW.7 who is he neighbour of the accused had stated that the accused left the house saying that he was going to Goa to bring his wife and daughters, but he was not seen thereafter for a period of one month. PW.9 had deposed that he was engaged by the accused for digging a pit. He and other two persons were given a wage of Rs.70 each. 12. After completion of the prosecution case on examining the witnesses, the accused was questioned under Section 313 Cr.P.C., on the incriminating materials, and he had denied his complicity and he filed a written statement. In his written statement, he had stated that on 02.09.2001, he was taken to Thiruvannamalai police station and then sent to Vadaponparrapi Police station and thereafter only he came to know about the death of his children. He had further stated that he had not given the confession before the learned magistrate voluntarily, but he was induced and threatened by the police and what is stated in the confession is not true. 13. Mr.V.Parthiban learned counsel appearing for the appellant submitted that the Judicial confession Ex.P.58 is not admissible in evidence, since P.W.23 learned Magistrate who recorded has not followed the procedures contemplated under Section 164 Cr.P.C and placed reliance on the following decisions of the Honourable Supreme Court: a) 2001 SCC (Crl.) 652 (Dhananjaya Reddy v. State of Karnataka) b) 2006 Crl.L.J 1085 (Murugan and Ravikumar alias Kundu Ravi v. State represented by Inspector of Police) 14. The learned counsel appearing for the appellant further submitted that if the judicial confession is eschewed, the remaining circumstances let in by the prosecution are not sufficient to convict the accused. Though Ex.P.1, extra judicial confession is said to have been given by the accused to one Marudhanayagam, as the said Marudhanayagam could not be examined being dead, marking Ex.P.1 through the attestators P.Ws.1 and 2 would render Ex.P.1 valueless. The learned counsel also drew the https://hcservices.ecourts.gov.in/hcservices/ attention of this Court to the statement given by Marudhanayagam to P.W.14 Tahsildar which is filed along with the inquest report records Ex.P.41. On the basis of the statement of Marudhanayagam, the learned counsel attempted to advance an argument that the accused was arrested by different police even before recording Ex.P.1, the alleged extra judicial confession of the accused/appellant. The learned counsel also submitted that the motive is not established and the evidence let in through the witnesses are only hearsay and again for this purpose, the learned counsel relied on the earlier statements given by some of the witnesses before the Tahsildar P.W.14. 15. Per contra, Mr.V.R.Balasubramaniam, learned Additional Public Prosecutor submitted that a conviction can be made on the accused, solely based on the judicial confession given by him and in this case, even if the judicial confession is not considered, merely for the sole reason that the learned Magistrate not appended the certificate as required under Section 164(4) Cr.P.C; other ample materials are available against the accused to prove that the accused/appellant had committed the offence of murder of his wife and children. 16. The learned Additional Public Prosecutor further added that though the said Marudhanayagam could not be examined due to his death, the extra judicial confession Ex.P.1 being given by the accused in the presence of P.Ws.1 and 2, it is admissible in evidence. The evidence of P.Ws.2 to 6 establish that the accused had motive to murder his wife. The clinching circumstances against the accused is that the bodies of the deceased were exhumated only on the information given by the accused by pointing out the place. As the accused was absconding, his conduct is also another added circumstance to implicate the accused with the crime. The learned Additional Public Prosecutor relied on the following decisions of the Honourable Supreme Court: i) 2000 SCC(Crl.) 263 (State of Maharashtra v. Suresh). ii) 2008) 2 MLJ (Crl.) 482 (SC) (Liyakat vs. State of Uttaranchal). 17. This Court considered the submissions made by both parties and perused the records. There is no eye-witness to the occurrence. According to the prosecution the deceased had murdered his wife and five children. The bodies of all the six deceased were exhumated in the presence of P.W.14 Tahsildar and autopsy of the bodies was conducted at the spot by the Doctor P.W.24. The post mortem Doctor P.W.24 has issued the post mortem certificates Exs.P.65 to P.70. The Doctor has opined that as far as Badhurunisha is concerned, she died due to asphyxia due to strangulation and as far as the death of other five persons, they have died to conclusion of respiratory orifices and passages. P.W.21 Assistant Director of Forensic Science Department, Anthropology Division, Chennai, had conducted the superimposition test on the skull of all the deceased comparing with the https://hcservices.ecourts.gov.in/hcservices/ photographs of the respective deceased and he had given his positive opinion in Ex.P.54 with the reasons for his conclusions. 18. The circumstances relied on by the prosecution are as follows: (i)The judicial confession Ex.P.58 recorded by P.W.23. (ii) The extra judicial confession Ex.P.1 given by the accused to one Marudhanayagam, Village Administrative Officer and P.Ws.1 and 2 who are his assistants. (iii) The confession given by the accused and pointing the place of deceased being buried. (iv) The deceased wife and children of the accused who were in the company of the accused were missing and subsequently the accused also was absconding. (v) The motive for the occurrence, i.e., the dispute between the accused and his wife and the misbehaviour of the accused with his own daughter Nabeeza. The body of the deceased were exhumated only on the information given by the accused. 19. With regard to the first circumstance (i) judicial confession Ex.P.58 given by the accused to the learned Magistrate P.W.23; The accused was produced before P.W.23 on 20.09.2001 for recording his confession and he was given 24 hours time and he was again produced on 21.09.2001. Questioning the accused whether he was willing to give confession, as he answered yes, his confession was recorded. Section 164(4) Cr.P.C is as follows: 164.Recording of Confessions and statements: (1)............ (2)............ (3)............ (4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:- "I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. (signed) A.B Magistrate." https://hcservices.ecourts.gov.in/hcservices/ Admittedly in Ex.P.58, no such certificate has been appended by the learned Magistrate. In the decision reported in 2001 SCC (Crl.) 652 (Dhananjaya Reddy v. State of Karnataka, it has been observed in paragraph-20 as follows: "20. The function of the Magistrate in recording confession under Section 164 of the Code is a very solemn act which he is obliged to perform by taking due care to ensure that all the requirements of Section 164 are fully satisfied. The Magistrate recording such a statement should not adopt a casual approach as appears to have been shown by Shambulingappa (PW.50) in this