Case: Kadamanian Vs. State

As per the prosecution version, M.Jayalakshmi went missing at 7 a.m. on 6.9.2007, having left her residence to answer the call of nature. Since she did not return, a missing persons report was lodged on 7.9.2007 by her father P.Matheswaran at Namakkam Kumarapalayam Police Station. It is also relevant to mention, that in the first information report registered on 7.9.2007, the complainant had attached the photograph of M. Jayalakshmi, and had also indicated for her identification, that she was wearing a green colour jacket and saree. It was also expressly mentioned, that she was wearing a9.9.2007, a dead body of a female, was found by a sweeper, Natarajan – PW4. Based on the recovery of the dead body, another first information report came to be lodged. On 18.9.2007, the parents of the deceased – Jayalakshmi, identified the clothing and other artifacts, recovered with the dead body, as belonging to their daughter. It is also relevant to indiacate, that the aforesaid identification was affirmed by none other than the mother of the deceased, Vedammal – PW2. The mother identified her daughter from the photograph of the deadfirst needle of suspicion with reference to the appellant hereinKadamanian @ Manikandan emerged from the statement of the investigating officer, Arumugam – PW20 dated 21.01.2008, affirming with Shanmugam – PW6, that the appellant had been seen close to the place of occurrence. Consequent upon the needle of suspicion having been pointed at the appellant, the appellant allegedly made anconfession to R.V.Alagurajan – PW12. The aforesaidconfession can be extracted from his statement made by R.V. Alagurajan – PW12, to the police. A relevant portion thereof is being reproducedname is Manikandan. I am also addressed as Keda Manian. Name of my wife is Durgadevi. I have one son and a daughter. My native place is Karanthai near Tanjavur. I have come to Bavani many years back and settled here. I am engaged in the profession of driving autorikshaw. From 1.9.2007 onwards, I am running share autorikshaw bearing registration number T.N. 38 Q 1311 Annamalai of Krishnampalayam taking on hire basis along with I.T. Mani. One Mubarak take the collection from me every day and deposit with the owner on two installments. Myself and I.T. Manian have the habit enjoying the prostitutes who approach bus stand area. On the last 8.9.07 when myself and I.T. Manian were operating share autorikshaw, one woman boarded the share autorikshaw from the bus stand. She did not get down till the last even after other passengers got down from the autorikshaw. When asked her name, she innocently told that her name as Jayalakshmi and she was from Komarapalayam. She also told that she did not have any money. When myself and Mani told her that we will take her to her village for which she agreed. On the way, myself and Mani planned to enjoy that woman. We came to share autorikshaw stand near bus stand and handed over the collection to Mubarak and left that place. When Mubarak enquired, Mani told that woman was his relative lady. Then on the way, I along went to a brancy shop in Nachippa street and consumedall three of us consumed food in the nearby Amutham mess. When we came out, it was slightly drizzling. We told that lady that we can leave after the rain stops and after passing through public toilet and took her to old municipal ward office. We engaged discussion with that lady and told her to compromise to our desire and asked her to lay with us. She refused and started to shout and then we took her to the land on the southern side. There, we tried to remove her blouse and saree, she shouted. That lady was a strongcould not perform what we planned. I got annoyed and picked up a stick from nearby and inserted twice or thrice in her private part. Her shout mellowed down. Mani told thatom not to find further identification of the lady, I smashed her face with a stone. Mani also picked up another stone and threw it on the face of that woman. We stripped that womans saree and petty coat and threw them out. We came to know that she was dead. We thought that the nose pin worn by her would disclose her identity. I removed the nose pin and kept it with myself. Then both of us came and picked up the share autorikshaw and left it in the workshop of the owner at Moolapattarai. On the next day, I came and asked Mani whether police made any enquiry with him for which Mani replied in negative. I thought that Mubarak may suspect us and indirectly told Mani, if any one say anything, let us slit the throat. There after, we went to the vacant plot near the municipality Kalyana Mandapam and put the nose pin removed from that woman in a plastic bag and concealed it there and then for the next 5 days, I did not run the autorikshaw. Therefore, I went to jail in connection with two case in Bavani. I came to know that police were in search me suspecting me. I was scarred and have to you and surrenderR.V. Alagurajan – PW12 had allegedly effectuated the surrender of the accused – appellant before the Inspector of Police, Erode town, he had also submitted a letter dated 21.01.2008, at the police station, which read asvillage administrative officer of 35B Erode town was in my office today at about 12.30 OClock in the afternoon with my assistant Manikkam, Keda Manian alias Manikandan, resident of door number 47 Sreenivasapuram, Bavani appeared before and told that he was involved in the murder of a woman on the last 8th September near the Erode bus stand and gave a statement and I am producing him and the statement given by him to you for furtherupon the appellant, having been produced before the Inspector of Police, theKadamanian @ Manikandan made a confessional statement on the same day, i.e., on 22.01.2008, to the Inspector of Police, Erode, inter alia affirming asThat woman was a healthy and strong and she pushed me and started shouting. We got annoyed as we could not do anything as we planned and therefore, I picked up a stick which was lying there and stabbed her private part three times with that stick. Her shouts mellowed down and she became semi conscious. I.T. Mani told to leave at that stage. I told him that it would be dangerous if we leave her like that and she would identify us and her identity should not be known to any one and therefore, I picked up the stone which was laying nearby and threw it on her face and assaultedalso picked up another stone and threw it on her face. We came to know that she was dead. There was no movement of her. We removed her saree, petty coat, beads from her neck and kept it nearby and we thought with the nose pic worn by her, her identity would be known easily and there removed the nose pin also. Then we came out. At that time, Shanmugam who words as Kalasi saw us. We went to share autorikshaw stand and picked up the share authorikshaw and went to Moolapattaqrai and left the auto rikshaw in the work shop. I.T. Mani left for his house. On the next day, earlier morning, I boarded a bus from Moolapatrai reached home. On the next day after noon, I reached Erode share auto bus stand, as if I know nothing met Mani and asked him whether police made any enquiry. He answered in negative. I told him that some information may come out through Mubarak and if any information is leaked out through some one, we should slit throat of such person. However, we told him to assess the situation. I told him that I will not come for next five days and when I left there, I went to vacant plot on the south of municipality Kalyanamandapam and put the nose pin which I removed from that woman in a plastic bag and buried it near the transformer in that plot. Then I left for home. I was careful that no one should suspect me. In the meanwhile on one, there was a quarrel between me and my wife as regard to eating of mutton. Neighbor Gobi came and askedare you shouting? How can we live here? And a dispute arose between me and him and a case has been registered against me and I was in custody for 13 days. When I came out on bail, I was arrested on a Rowdy case and sent me to custody. When I came out on bail, when I reached to share auto rikshaw stand for running auto rikshaw, police however came to know that myself and I.T.Mani have committed the murder of that woman and the police is in search of us. I thought, if police arrest me, they would beat me and harass and therefore, surrendered before town VAO today. He has sent me to you. At that time, I have given this statement. If I am taken, I would identify and produce the nose pin where I have concealedis the version of the prosecution, that based on thestatement made by the appellant, awas recovered at the instance of the appellant on 22.01.2008. The fact, that the same belong to the deceased – Jayalakshmi was confirmed by various witnesses including PW2 – Vedammal, the mother of the deceased. After recording the statements of the prosecution witnesses, and also, the statement of the accused under Section 313 of the Criminal Procedure Code, the accused were afforded an opportunity to lead their evidence in defence. The accused availed off the above opportunity, and thereafter, the trial Court rendered its judgment dated 5.8.2009, convicting both the accused of the offences levelled againstwith the order passed by the trial Court dated 5.8.2009, both the appellants preferred Criminal Appeal No.528 of 2009, before the High Court of Judicature at Madras (hereinafter referred to as the. A Division Bench of the High Court, accepted the appeal preferred by accused no.2 – I.T. Manian @ Manikanda, and ordered his acquittal. The appeal preferred by the appellant herein was dismissed. Although, the sentences awarded by the trial Court, under various provisions of the IPC, were by and large maintained, the sentence awarded to the appellant (by the trial Court) under Section 376 of the Indian Penal Code was reduced from 10 years to 7 years. Insofar as the other sentences are concerned, the appellant was ordered to suffer imprisonment for three years for the offence under Section 201 of the Indian Penal Code, he was convicted under Section 302 of the Indian Penal Code to suffer life imprisonment, and for the offence under Section 404 of the Indian Penal Code, he was sentenced to suffer imprisonment for three years.

Reasoning: We have given our thoughtful consideration to the two submissions advanced at the hands of the learned counsel for the appellant. Insofar as theconfession is concerned, it is necessary to emphasize, that theial confession over a span of time, in the facts of the present case, was inconsequential. We say so, because the appellant was not a suspect till 21.1.2008. The appellant feared his arrest with reference to the allegations pertaining to the deceased – Jayalakshmi, only when the investigating officer, Arumugam – PW20 affirmed with Shanmugam – PW6 on 21.01.2008, that the appellant had been seen, close to the place of occurrence. It is immediately thereafter, and on the immediately following day, that the appellant made anconfession to R.V. Alagurajan –as the submissions advanced at the hands of the learned counsel for the appellant with reference to theare concerned, we are of the view, that none of the contentions advanced on behalf of the appellant, can be accepted as a valid justification, for exculpating the appellant from the charges levelled against him. In this behalf, it would be relevant to mention, that a missing persons report was registered by the father of the deceased – P. Matheswaran, on 7.9.2007. In the missing persons report, it was clearly mentioned, that the deceased was wearing awhen she had gone missing. The reason for indicating, that the deceased was wearing awas with the clear purpose of aiding the identification of his missing daughter – Jayalakshmi. This was obviously for the reason, that the deceased – Jayalakshmi, was mentally unstable, and would not have been in a position to express her identification, or the identification of her parents, or the place of her residence, by herself. In the recovery mahazar dated 22.1.2008, the recoveredwas depicted as being imbedded with four white stones. It is therefore apparent, that theworn by the deceased – Jayalakshmi when she had gone missing, was not any ordinary unidentifiable artifact, but was clearly different from the usualNot only that, the photograph of the deceased submitted along with the missing persons report dated 7.9.2007 shows a clear picture of theand therefore, to say that the involvement of the accused on the basis of thewas improper, is not acceptable. Insofar as the absence of blood, skin tissue and bone tissue on theis concerned, it is clear to us, that the submissions were made by the learned counsel, without having viewed the photograph of the deceased, as is available on the record of the trial Court. As already noticed hereinabove, thewas worn by the deceased – Jayalakshmi, in the photograph attached to the missing persons report dated 7.9.2007. The same was missing from the photograph of the deceased, after her body was recovered. The nose itself was not mutilated, and wasNo injury whatsoever was found on the nose, in the photograph of the deceased. It was therefore wholly unjustified, for the learned counsel for the appellant to have raised the submission, that the absence of any human tissue on thewould lead to the inference, that thein question, was not the one belonging to the deceased. For the reasons recorded hereinabove, we find no merit in the instant contentions, advanced on behalf of thegiven our thoughtful consideration on the above contention, we are of the view, that the judgment relied upon by learned counsel, is wholly inapplicable in the facts and circumstances of this case, for two distinguishing features in the present case, namely, that the extra judicial confession in the instant case was made to the Village Administrative Officer R.V. Alagurajan – PW12, who was totally unbiased and unconnected with the controversy in hand. He could also not to be stated to be inimical to the appellant. He is not shown to have any relationship with either the complainant or the accused. Moreover, insofar as the extra judicial confession made in the judgment relied upon by the appellant is concerned, the same had been made by the accused, to the sister of the deceased, which by itself made the extra judicial confession extremely doubtful. We are therefore not impressed with the submission advanced by the learned counsel for the appellant, based on the citedthe above view of the matter, it was the contention of the learned counsel for the appellant, that there was no material evidence available on the record of the case, to return a clear finding of guilt, against the appellant. It was submitted, that the circumstantial evidence projected through the prosecution witnesses, did not complete the chain of circumstances, as would establish the guilt of thehave given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the appellant. As noticed hereinabove, there was a clear and categoricconfession made by the appellant to R.V. Alagurajan – PW12 on 22.1.2008. During the course of recording his testimony, R.V. Alagurajan – PW12 was subjected to vigorousHis testimony however remained unshaken. Resultantly, the trial Court, as also, the High Court, concluded that theconfession was genuine. We endorse the above determination at the hands of the trial Court and the High Court. Consequent upon thel confession, the appellant was taken to the police station by R.V. Alagurajan – PW12, and produced before Inspector Arumugam – PW20. It is therefore apparent, that the arrest of the appellant at the behest of R.V. Alagurajan – PW12, has also been clearly established. The next chain in the circumstantial evidence projected at the hands of the prosecution, was the recovery of theon 22.1.2008, based on the statement of the appellant, to Inspector Arumugam – PW20. Then has been identified by the members of the family of the deceased, as the one that was actually worn by the deceased, when she went missing. Since thewas recovered at the instance of the appellant, from a remote place under an electric transformer, no one but the appellant could have been aware of its location. Its recovery was therefore suffient, along with the other evidence referred to above, to clearly implicate the appellant. It is also necessary for us to mention, that there is yet another aspect of the matter, which furthers the cause of the prosecution, namely, the statement of M.Abdul Khader – PW8. In this behalf, it would be relevant to mention, that the appellant used to hire afor earning his livelihood. The aforesaid autorikshaw was hired from the garrage of Annamalai – PW9. M.Abdul Khader – PW8 was engaged as an accountant at the garrage of Annamalai – PW9. It was pointed out in the deposition of M.Abdul Khader – PW8, that on a daily basis thehired by thesed used to be returned to the garrage of Annamalai – PW9 between 8.30 p.m to 9.30 p.m.. However, on the date of occurrence, i.e., the relevant date when the alleged crime was committed, thewas returned on the following day, at 1.30 a.m. The case of the prosecution is, that the autorikshaw was used by the appellant and thein commission of the crime. It was imperative for the appellant to have expressly indicated the reasons and justification for not returning the autorikshaw to the garrage of Annamalai – PW9 between 8.30 p.m. to 9.30 p.m., on the relevant date. Not having done so, by itself, is a cause of suspicion, specially when there is other material evidence, projected by the prosecution, to demonstrate the involvement of the appellant, in the commission of the crime. We are of the view, that the aforesaid evidence recorded by the prosecution was sufficient, even in the absence of last seen evidence, to return a finding of guilt against theis imperative for us to record, that in addition to thesubmissions advanced at the hands of the learned counsel for the appellant, learned counsel had also contended, that thewas acquitted by the High Court, and that, his acquittal was based on the same evidence, produced through the same witnesses. It was contended, that it was improper and unjustified, for the High Court, to have convicted the appellant, and acquitted theon the same evidence. We find no justification in the instant contention advanced at the hands of the learned counsel. We have already recorded hereinabove, that the extra judicial confession made to R.V. Alagurajan – PW12, was by the appellant herein, and not by theWe have also recorded hereinabove, that the recovery of thefound missing from the nose of the deceased, was at the instance of the appellant, and not at the hands of theTherefore, the case of thewas on a clearly different footing, and there was sufficient justification for the High Court, to have taken a different view, SW in the case of the