Case: Kala @ Chandrakala Vs. State Tr.Insp.Of Police

to Susheela, PW.4 does not inspire evidence. She was not having good relationship with accused and is not corroborated by other evidence on record, hence, it would not be safe to act upon it in the facts and circumstances of the case. The extra-judicial confession made to police is admissible only with respect to the recoveries made of the moped as well as a piece of nylon saree, pursuant to the information, which articles are not proved to be connected with offence. 9. Firstly, we deal with the recovery of the Bajaj moped at the instance of the appellant. It is deposed by Soundarrajan, P.W.12 that he was running a cooking gas agency and the absconding accused Prakasam was using Bajaj M-80 motor cycle to deliver gas cylinders. The appellant accused was first brought by the police to his residence and later on to shop, and the vehicle was recovered by the police from his shop along with certificate of the registration. Prakasan had taken one week leave from him and thereafter did not turn up. Though the prosecution has alleged that Bajaj M-80 vehicle was used to carry the body of the deceased by Prakasam and the appellant and they were seen by two witnesses while going towards canal. But the said witnesses had not been examined in the court by the prosecution for the reasons known to it. Thus the prosecution has failed to establish that the vehicle in question was used for carrying the body of the deceased and it was so carried as alleged. The vehicle has been recovered from its owner with no blood stains. It was not in possession of the appellant and was recovered from the gas agency where it was supposed to be. Merely by the fact that the vehicle was used by Prakasan for distribution of the cooking gas cannot be a circumstance so as to fasten the guilt upon the appellant. It was a well known fact that vehicle was used by Prakasam for distribution of cooking gas. Use of the vehicle in the offence in question has not been proved and its recovery which is not from the possession of the appellant, the same cannot be used as a circumstance to fasten the guilt upon the appellant. 10. Now coming to the question of recovery of piece of nylon saree. The statement of Dr. Sivakumar, P.W.20 autopsy surgeon indicates that the body of the deceased was decomposed. As per chemical test report poison was not found. There was no wound caused to larynx before death. As the body of the deceased was highly decomposed the cause of death was not mentioned by the Doctor, P.W.20 in the post-mortem report. On query being made to him by the Inspector of Police regarding cause of death, he answered that that since the body was decomposed he was unable to say so, thus, the cause of death has not been established. No internal and external injury has been mentioned in the autopsy report. Thus, the prosecution has not been able to establish that the death was caused by strangulating the deceased and the piece of nylon saree was used to cause the death. Hence, recovery of the piece of nylon saree is of no value as the prosecution has not been able to link the same with the commission of the offence. 11. The appellant had not kept quiet for 15 days from 16.5.2005 to 31.5.2005. She had clearly stated in the statement under Section 313 that she had gone to the police station on 23.5.2005 along with photograph of the deceased and had also stated that the deceased frequently used to go outside for 2 to 5 days. This explains her conduct, nothing more can be attributed to her exclusive knowledge which she was required to explain within the purview of Section 106 of the Evidence Act. Knowledge of any other fact is not attributable to her in view of the evidence adduced in the case. Thus, the submission based upon the provisions contained in Section 106 is of no avail to the respondent. 12. The prosecution has also not led evidence that the appellant was ever required to identify the articles of the deceased. There is nothing on record indicating that they were shown to her for the purpose of identification and she had refused to identify them. There is contradiction in the version of Susheela P.W.4 as to when she identified the deceased. On one hand, she had stated that she did so on 31.5.2005, on the other hand, she has stated that she went to the police station with the photograph of the deceased after five days thereof. 13. In the instant case, which is based on the circumstantial evidence, particularly when the body has not been recovered at the instance of the accused, the recoveries of moped and piece of nylon saree which were made are not proved to be related to commission of offence, they are not proved to be incriminating materials. The extra-judicial confession made by the appellant to Susheela, P.W.4 is prima facie unusual and doubtful and is not corroborated by other evidence on record. Merely, the fact that the deceased had left the house on 16.5.2005, as per version of appellant, cannot be used as a circumstance against her so as to fasten guilt. The deceased used to drink alcohol and used to spend money recklessly. Due to his bad habits, there may be so many enemies of him. How the deceased spent the amount of Rs.1,30,000/- which he received on execution of agreement is not on record. The prosecution has not been able to complete the chain of circumstances so as to fasten the guilt and to prove the commission of offence by the appellant beyond periphery of doubt. The father of appellant has also been extended benefit of doubt. As such, the appellant is entitled for benefit of doubt in view of the evidence which has been adduced by the prosecution.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]13. In the instant case, which is based on the circumstantial evidence, particularly when the body has not been recovered at the instance of the accused, the recoveries of moped and piece of nylon saree which were made are not proved to be related to commission of offence, they are not proved to be incriminating materials. The extra-judicial confession made by the appellant to Susheela, P.W.4 is prima facie unusual and doubtful and is not corroborated by other evidence on record. Merely, the fact that the deceased had left the house on 16.5.2005, as per version of appellant, cannot be used as a circumstance against her so as to fasten guilt. The deceased used to drink alcohol and used to spend money recklessly. Due to his bad habits, there may be so many enemies of him. How the deceased spent the amount of Rs.1,30,000/- which he received on execution of agreement is not on record. The prosecution has not been able to complete the chain of circumstances so as to fasten the guilt and to prove the commission of offence by the appellant beyond periphery of doubt. The father of appellant has also been extended benefit of doubt. As such, the appellant is entitled for benefit of doubt in view of the evidence which has been adduced by the