[2016] 3 S.C.R. 797

KALA @ CHANDRAKALA

STATE THROUGH INSPECTOR OF POLICE

(Criminal Appeal No. 1791 of2010)

AUGUST 12,2016

[JAGDISH SINGH KHEHAR AND ARUN MISHRA, JJ.]

Penal Code, 1860 - s.302 rlw s.34 and s.201 - Murder of appellants husband - Death allegedly caused by strangulation with a saree - Circumstantial evidence - Extra-judicial confession - Conviction of appellant and her father by trial court - High Court affirmed the conviction of appellant but acquitted her father extending him benefit of doubt - Extra-judicial confession allegedly made by appellant to PW4 - Recovery of a motor bike (moped) and nylon saree (allegedly used in the offence) - On appeal, held:· In cases based upon circumstantial evidence the chain of circumstances should be complete to fasten the guilt on the accused ..., However,

prosecution failed to complete the chain of circumstances and to prove commission of offence by the appellant beyond periphery of doubt - As regards extra-judicial confession, which is a weak kind of evidence, it is most unlikely that the appellant woiild have made confession to an inimical person like PW-./, with whom she did not share a good relationship - Same does not impire confidence in absence of corroboration - Recovery evideiice not proved to be related to commission of offence - Appellant entitled to benefit of doubt and thus acquitted - Evidence- Circumstantial evidence.

Evidence - Confession - Extra-judicial confession Appreciation of - Held: It is a weak piece of evidence - Before acting upon it, the Court must ensure that the same impires confidence and is corrohoraled by olher prosecution evidence - Confession made to an inimical person in absence of corroboration ll'ith other evidence 011 record, not .wife to act upon in the facts and circumstances of the present case.

Allowing the appeal, the Court

HELD: 1.1. The present case depends upon the

circumstantial evidence and the extra-judicial confession made by the appellant to PW-4, sister of the deceased. It is trite law that the chain of circumstances should be complete to fasten the guilt on the accused. [Para 5) [801-E)

1.2. Apparently the accused did not have good relationship with PW-4. Making confession to such an inimical 1>erson is most unlikely. When the witness had gone in search of the deceased to the house of the accused it is most unlikely that the confessional statement would be made to her readily. It is not that the appellant had gone to the house of PW-4 to make the confession. [Para 61 [802-B-C]

2. Extra-judicial confession is a weak piece of evidence.

Before acting upon it the Court must ensure that the same inspires confidenl'C and it is corroborated by other prosecution evidence. [Para 71 (802-0-EJ

Sahadel'a!l and Am: v. Stale of Tamil Nadu (2012) 6 SCC 403:2012 (4) SCR 366; Balll'inder SinKh i•. State of Punjab 1995 Supp (4) SCC 259: 1995 (5) Suppl.

SCR 10 ; Pakkirisa111y v. State of Ta111i! Nadu (1997) 8 SCC 158; Kavita '" State o{ Tamil Nadu (1998) 6 SCC 108: 1998 (3) SCR 902; State of Rajastha11 v. Raja

R11111 (2003) 8 sec 180:2003 (2) Suppl. SCR 445; Aloke Nath Dul/av. Stale of West Be11gal (2007) 12 SCC 230:2006 (10) Suppl. SCR 662; Sa11.1ar Cha11d i. State of Rqjasthan (2010) 10 SCC 604: 2010 (12) SCR 583; Rmneshbhai Clw11d11hhai Rat hod 1'. S!a/e of G11jarat

(2009) 5 SCC 740; Vijay Slumkar r. Stale of liarwma

(2015) 12 SCC 6-14: 2015 (9) SCR 977 - relied on.

3. In the circumstances of the case, the confession made to PW-4 docs not inspire confidence. She was not having good relationship with accused and confession made to her 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.

JPara 8.1 J803-BJ

4. 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 as the Doctor, did not

KALA @ CHANDRAKALA v. STAfE THROUGH INSPECTOR

OF POLICE

mention the cause of death in the post-mortem report. 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. [Para 10) [804-C]

5. In the instant case, particularly when the body has not been recovered at the instance of the accused and the recoveries of moped and piece of nylon sarec arc not proved to be 1elated to commission of offence, the extra-judicial confession made by the ap1>ellnnt to PW-4 being pri111aji1cie unusual and douhtful and not corrohonitcd by other evidence un record, the .prosecution has failed 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 donbt. As such, the appellant is entitled for benefit of doubt in view of the evidence which has been adduced by the prosecution. [Pnras 13 and 14) [804-H; 805-A-C]

Case Law Reference

2012 (4) SCR 366 relied on Para 7

1995 (5) Suppl. SCR 10 relied on Para 7

(1997) 8 sec 158 relied on Para 7

1998 (3) SCR 902 relied on Para 7

2003 (2) Suppl. SCR 445 relied on Para 7

2006 (IO) Su1lpl. SCR 662 relied on Para 7

2010 (12) SCR 583 relied on Para 7

(2009) 5 sec 140 relied on Para 7

2015 (9) SCR 977 relied on Pura 7

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 1791 of2010.

From the Judgment andOrdcr dated 24.06.2009 of the High Court of.Judicature at Madras, in Criminal App.:al No. l 022 of2007. ·

Sunil Fernandes. Puneeth K. G., Ms. Astha Sharma, P. Ramesh, Advs. for the AppeUant.

A M. Yogesh Kanna, Ms. Nithya, Advs. for the Respondent.

The Judgment of the Cou1i was delivered by

ARUN l\USHRA, J. I .The appellant is the wife of the deceased Murugesan. The prosecution has alleged that the appellant along with her father and nephe\~ committed murder of Murugesan on B . 17.5.2005 by strangulating him with a saree and placed his body under a bridge of canal. On 20.5.2005, on the basis of the information received from the Village Administrative Officer that a gunny bag is lying under LBP canal south near Sandhiyapurm, the complaint was registered.

1-1

The body was found in a highly decomposed condition as such initially the identification of the person could not beascertained. On 21.5.2005 Dr. Sivakumar P.W.20. performed the autopsy. Doctor was unable to ascertain the cause of death as the body was in a highly decomposed condition and it was opined by him that there was no antemortem injury to hyoid bone. On 31.5.2005 Susheela, P. W. 4, sister of the decased, lodged a complaint that her brother Murugesan was murdered by his wife, hi~ father-_in-la\v and nephew of wife.

2. The trial court convicted .the appellant and her fath-er for commission of offence under Section 302 read with Section 34 IPC and Section 20 I IPC and sentenced them to undergo imprisonment for life and imposed a fine of Rs.1,000/- and in default to undergo simple imprisonment for six moilths and also to undergo one year simple imprisonment under Section 201 IPC. The appeal, preferred before the High Court, was allowed in respect of the father of the accused, but the conviction and sentence of the appellant has been affirmed.

Aggrieved thereby the-appeal has been preferred.

3. It was submitted on behalf of the appellant that the chain of circumstances is not complete so as to fasten the guilt upon her. The confession made by the appellant to P.W.4 is not worthy of acceptance and made to police is inadmissible in evidence. There was no reason for the appellant to make a confession to Susheela, P.W.4 as she _was not having good relations with her. The recovery of the body is not at the instance of.the appellant and the recovery of the motor bike and nylon saree is of no value. The prosecution has failed to examine the material witnesses. It was submitted that the appellant has in statement under section 313 Cr.P.C. mentioned that she had gone to the police station along with photograph of the deceased on 23.5.2005 when

there was beat of drum in the village by which she came to know that a body was found below the bridge of the canal. It was submitted that the appellant is innocent and deserves to be acquitted.

4. It was contended by the learned counsel appearing on behalf of the State of Tamil Nadu that the accused and the deceased used . to quarrel frequently. lt was the habit o_f the deceased of drinking alcohol and indulge in gambling. 6nce the accused persons came to know of the deceased having entered into agreement of sale, they had dedded to get rid of him and thereby murdered him and threw the body below the bridge of the canal. The deceased was last seen in the company of the accused. it was submitted that the extra-judicial coilfessio1imade by the appellant to P. W.4 and recovery of motor bike and nylon saree which was used for committing murder show. that tlie chain of circumstances is complete. The appellant did not disclose the fact of . disappearance of the deceased from 16.5.2005 to 31.5.2005 to the police and she was not the person to identify the, artides belonging to the deceased. The deceased was identified by the articles i.e. chappal, shirt etc. by .Susheela, P. W.4. It was therefore submitted that the conviction recorded by the trial Court and affirmed by the High Court calls for no interference in the appeal. ·

5. The case depends upon the circumstantial evidence and the . extra-judicial confession made by th(! appellantto Susheela, P.W.4, sister of the deceased.· This is trite law that the chain of' circumstm:ices should be complete to fasten the guilt on the accused.

6. Firstly, _we will examine whether the extra-judicial confession _ which is a weak kind of evidence, inspire the confidence. Susheela, P. W.4 has stated that Murugesan was marrie.d to the ppellant 14 years before the incident. She came in search of his brother Murugesan to the'ltouse of the deceased. Murugesan has told her on 12.5.2005 that appellant had threatened to kill him as he was habitual ofConsuming alcohol. When she did not receive any telephone call for 15 days from the deceased, she went to his village. On enquiry she was informed by the appellant that she, her netJbew Prakasam and father murdered the deceased and threw his body under the bridge.

Susheela, P:W.4 - further stated that the appellant touched her legs and stated that she. would give properties of her father to two children and that she should not inform the police.

Thereaftei:, -P..:W.4 went to the police station on the same day and . lodged the complaint - Ex.P2. The

, ...

D .

police showed her the photograph, shirt and slippers and asked her to identify the same. She identified them to be of her brother. She has further stated to have gone to pol ice station after 5 days with photograph of deceased. In the cross-examination, she has also stated that she had signed the agreement for sale of land executed by the accused. It is apparent that accused was not having good relationship with Susheela, PW.4. Making confession to such an inimical person is most unJikely. When the witness had gone in search of the deceased to the house of the accused it is most unlikely that the confessional statement would be made to hei readily. It is not that the appellant had gone to the house of P.W.4 to make the confession. On the other hand query was made by the daughter of the deceased to Susheela, P. W.4 as to the whereabouts of the deceased, meaning thereby the whereabouts of the deceased were not known even to his daughter. In case the deceased had been killed in the house, perhaps the daughter would have known about the offence having been committed by the accused.

7. In Sahadevan and Am: v. Staie of Tamil Nadu (2012) 6 SCC 403, it has been observed that extra-judicial confession is weak piece of evidence. Before acting upon it the Com1 must ensure that the same inspires confidence and it is corroborated by other prosecution evidence. In Ba/winder Singh i: State of Punjab l 995 Supp ( 4) SCC 259, it has been observed that extra-judicial confession requires great deal of care and caution before acceptance. There should be no suspicious circumstances surrounding it. In Pakkirisamy v. State of Tamil Nadu (1997) 8 SCC 158 it has been observed that there has to be "independent corroboration for placing any reliance upon cxtrajudicial confession. In Kavita v. State of Tamil Nadu ( 1998) 6 SCC

I 08 it has been observed that reliability of the same depends upon the veracity of the witnesses to whom it is made. Similar. view has been expressed in State of Rajasthan v. Raja Ram (2003) 8 SCC 180, in which this Court has further observed that witness must be unbiased and not even remotely inimical to the accused. In Aloke 11ath Dutta

v. State of West Bengal (2007) 12 SCC 230 it has been observed that G ' the main features of confession are required to be verified. In Sansar

Chand v. State of Rajas than (20 l 0) l 0 SCC 604 it has been observed that extra-judicial confession should be corroborated by some other material on record. In Rameshbhai Chandubhai Rathod v. State of Gujarat (2009) 5 SCC 740 it has been observed that in the case of H retracted confession it is unsafe for the Cou11 to rely on it.

In Vl}ay

Shankar v. State of Haryana (2015) 12 SCC 644 this Court has followed the decision in Sahadevan (supra).

8. In the circumstances of the case, the confession made to Susheela, PW.4 does not inspire confidence. 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 !Vl-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 circurnstancc to fasten the guilt upon the appellant.

I 0. 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-111011em 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 prnsecution 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 sa.ree 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 I 5 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 r_equired to explain within the purview of Section I 06 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 submissio'n based upon the provisions contained in Section I 06 is ofno 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 ofSusheela 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.s..tated 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 1i.ot proved-to be incrimi1iating materials. Tbe 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.

14. Resultantly, the appeal is allowed. The appellant is acquitted giving her the benefit of doubt. The judgments and orders of the courts below of conviction and sentence are quashed and set aside.

Divya Pandey Appeal allowed.