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Ravi v. State - Crl. Appeal No.828 of 2005 [2007] RD-TN 536 (9 February 2007)

IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 09.02.2007.

CORAM

THE HONOURABLE MR.JUSTICE R.BALASUBRAMANIAN

and

THE HONOURABLE MR.JUSTICE M.JEYAPAUL

Criminal Appeal Nos.828 of 2005 and 722 of 2006

Ravi @ Ravichandran ..Appellant in Crl.A.Nos.828 of 2005 Subramaniam ..Appellant in Crl.A.Nos.722 of 2006 Vs

State

rep. by Inspector of Police

Steel Plant Police Station

Salem

(Cr.No.617/2001) ..Respondent in both cases Criminal Appeals against the Judgment dated 28.2.2005 made in S.C.No.130 of 2004 on the file of the I Additional Sessions Judge, Salem. For appellant in Crl.A.828/2005 : Mr.K.V.Sridharan For appellant in Crl.A.722/2006 : Mr.S.N.Narasimhulu

For respondent : Mr.N.R.Elango, Addl. Public Prosecutor COMMON JUDGMENT



(Judgment of the court was delivered by M.JEYAPAUL,J.) The first accused prefers Criminal Appeal No.828 of 2005 and the second accused prefers Criminal Appeal No.722 of 2006.

2. A1 was sentenced to undergo one month simple imprisonment for offence under section 341 IPC, five years rigorous imprisonment for offence under section 449 IPC and life imprisonment for offence under section 302 read with 114 IPC and A2 was sentenced to undergo five years rigorous imprisonment for offence under section 449 IPC and life imprisonment for offence under section 302 IPC. Though A1 was not charged with offence under section 449 IPC, the Trial Court has chosen to convict him thereunder and sentenced as stated supra.

3. The charge is that A1 and A2 had illicit intimacy with the deceased Arayee, having trespassed upon the house of Arayee. A2 with an intention to cause death, inserted forcibly a metal spoon inside the vagina of Arayee when A1 facilitated him by gagging the mouth of Arayee and thereby A1 committed offences punishable under sections 341 and 302 and A2 committed offence punishable under section 302 read with 114 IPC respectively.

4. On the side of the prosecution, 13 witnesses were examined besides marking 23 documents and 6 Material Objects.

5. The brief text of the prosecution story, as unfolded by the witnesses examined on their side, is as follows:- Kandasamy, PW1 is the son of the deceased Arayee. Arayee's husband died ten years prior to the occurrence. At the first instance, the said Arayee developed illicit intimacy with A1 Ravi for about five long years. She also had illicit intimacy with A2 Subramanian for quite some time. Kandasamy, PW1 was living separately from her mother Arayee. Arayee was living all alone in her house at Pethampatti.

6. Ayyar alias Ramalingam, PW4 is residing in front of the house of Arayee at Pethampatti. On 12.6.2001, at about 12.00 'O' clock, midnight, PW4 came out of his house to pass urine. He heard the distress call from the house of Arayee. When he peeped into the house of Arayee, he found a small lantern burning there. A1 was found gagging the mouth of the deceased Arayee and A2, on his part, with all force at his command, inserted a big iron spoon into the vagina of the said Arayee. PW4, having been gripped with fear, went to bed. After ten minutes, he went to the house of Siddan, PW7 and informed him of the occurrence he witnessed. PW7 did not show any interest about the occurrence. Therefore, PW4 came down to his house and took his bed. PW1, having been informed of the murder of his mother, went to Steel Plant Police Station at Salem at about 2.15 am on 13.6.2001 and gave a statement to the Sub Inspector of Police, PW12. PW12 recorded the statement, Ex.P1 from PW1 and registered a case in Crime No.617 of 2001 under section 174 Cr.P.C. He prepared printed FIR, Ex.P20 and despatched the same to the learned Judicial Magistrate.

7. The Inspector of Police, PW13, who took up the investigation, arrived at the scene of occurrence at about 12.30 noon on 13.6.2001 and prepared observation mahazar, Ex.P6 in the presence of PW8. He also drew rough sketch, Ex.P21 reflecting the scene of occurrence. He held inquest on the dead body of Arayee at about 1.30 pm on the same day and prepared inquest report, Ex.P22.

8. P.Ws.1, 2 and 7 have spoken to the illicit intimacy of Arayee with A1 and A2 prior to the occurrence.

9. Dr.Vallinayagam, PW6 received requisition at about 5.25 pm on 13.6.2001 from the Inspector of Police, Steel Plant Police Station (PW13) and commenced postmortem examination on the dead body of Arayee at 5.30 pm on the said day. He found the following symptoms and injuries on the dead body of Arayee: "1) A lacerated injury on the vaginal wall on posterior aspect 3.5 cm x 2 cm x entering the neck of uterus through which entering the pelvic cavity. Blood clots present adherent to the injury (Ante mortem). A metallic piece (hand of fuz;o) (18 cm x 3 cm x 1 cm) present in peritoneal cavity and preserved. 2) Abrasion over left side of chest 2 x 1 cm d.b. Other Findings.

Pleural cavity Pericardium  empty.

Heart  fluid blood present. Myocardium  normal. Coronaries = present. Lungs, Liver, Spleen, Kidneys: Congested. Stomach: 250 gm partly digested. Chyme present. NO definite smell. Mucosa  pale. Larynx, trachea, hyoid bone  in tact. Spinal Column  in tact. Brain-normal, Scalp bones, membranes-intact." He has opined in the postmortem certificate, Ex.P5 that the deceased died of shock due to genital injury about 12 to 24 hours prior to the postmortem examination.

10. Mr.Chinnasamy, PW9, was working as Village Administrative Officer of Thirumalaigiri. When he was in the office on 18.6.2001, A1 Ravi came to his house and gave a confession statement, Ex.P8 to him. He prepared Special Report, Ex.P9 and surrendered A1 along with his confession statement, Ex.P8 to the Inspector of Police, PW13. PW13, having examined the postmortem Doctor, converted the case into one under section 302 IPC and prepared altered express report, Ex.P23 and despatched the same to the learned Judicial Magistrate. The accused, who was surrendered by the Village Administrative Officer, PW9, was remanded to judicial custody.

11. On the basis of the requisition given by PW13, learned Judicial Magistrate, N.Kannaian, PW5 recorded the statement of PW4 Ramalingam under section 164 Cr.P.C after complying with all the formalities.

12. On 19.6.2001, PW13 arrested A2 Subramaniam in the presence of PW9. On the basis of admissible portion, Ex.P10, in the confession statement given by A2, the metal spoon was recovered from a thorny bush behind the house of A2. PW13 sent all the Material Objects to the learned Judicial Magistrate I, Salem for the purpose of sending them for chemical examination.

13. Mohanambal, PW10 was the Head Clerk attached to the learned Judicial Magistrate I, Salem. She has spoken to the requisition, Ex.P15 emanated from the Inspector of Police, PW13, requesting to send the Material Objects for chemical examination. She also has spoken to the chemical reports and biology reports, Exs.P16, P17, P18 and P19 received from the examiner.

14. The Inspector of Police, PW13, having completed the investigation, laid final report as against A1 and A2 for offences under sections 341, 302 read with 114 IPC on 31.8.2001.

15. The incriminating portions found in the testimony of the aforesaid witnesses examined on the side of the prosecution were put to A1 and A2 to invite their response under section 313 Cr.P.C. They responded saying that they had not played any role in the crime alleged as against them.

16. Neither oral nor documentary evidence has been let in on the side of the defence.

17. The Trial Court, having adverted to the ocular testimony of Ayyar alias Ramalingam, PW4 in the background of circumstantial piece of evidence spoken to by Siddan, PW7 and the extra judicial confession alleged to have been given by A1 to the Village Administrative Officer, PW9, has come to the conclusion that A1 and A2 have committed the offences as detailed above.

18. Learned counsel appearing for the appellants would submit that the testimony of Ramalingam, PW4 to the effect that he witnessed the occurrence is found to be totally untrustworthy. Inasmuch as the Village Administrative Officer, PW9 has not spoken to the confession of the accused verbatim before him, the alleged extra judicial confession cannot be relied upon by this court. It is quite artificial to say that P.Ws.4 and 7, who are eyewitnesses to the occurrence have kept calm without disclosing anything to the investigating officer who came down to the scene of occurrence during the mid day following the day of occurrence. Further, he would point out that PW4, the important star witness in this case, was examined only on 16.6.2001 and the statement recorded from him reached the learned Judicial Magistrate only on 18.6.2001. Therefore, no reliance can be placed on the ocular testimony of P.Ws.4 and 7. In view of the above, he prays that the judgment of conviction passed by the Trial Court may be set aside.

19. We heard the submissions made by the learned Additional Public Prosecutor on the aforesaid points.

20. PW1 is the son of the deceased Arayee. Madhu, PW2 is a neighbour of Arayee. Siddan, PW7 resides close to the house of Arayee. All of them have spoken in one voice that not only A1 but A2 also had illicit intimacy with the deceased Arayee who is none other than the mother of Kandasamy, PW1. The incongruity found in the testimony of Kandasamy, PW1 is that his mother Arayee informed him that A1 had already parted with Rs.20,000/= to A2 with an understanding that A2 would not come to the house of Arayee. But, quite unfortunately, the prosecution has ultimately come out with a version that both A1 and A2 who had illicit intimacy with Arayee joined together and did away with the life of Arayee. It is not at all the case of the prosecution that A1 and A2 decided to kill Arayee as the deceased Arayee had developed some illicit intimacy with a third party. Therefore, the motive part of the prosecution is found to be totally artificial.

21. Ramalingam, PW4 would categorically state that at 12.00 'O' clock, on the fateful night, he came out of his house to pass urine. The distress voice emanated from the house of Arayee persuaded him to peep into the house of Arayee. It is his version that a lantern was burning inside the house of Arayee at the time when she was done to death by A1 and A2. The accused, who had decided to do away with the life of Arayee, would not have committed the offence when the oil lamp was burning in the house. Further, it is found that PW4 has come out with a totally different version before the court as to how he witnessed the occurrence. It is quite surprising to note that the neighbour, PW4 had not even made hue and cry on seeing the accused who were strangers to him attacking the unarmed Arayee.

22. The investigating officer has chosen to examine P.Ws.4 and 7 only on 16.6.2001. The occurrence had taken place during the midnight of 12.6.2001. But, after a gap of about four long days, P.Ws.4 and 7 have chosen to open their mouth about the occurrence to the investigating officer. It is the categorical version of PW7 that he was also present at the time when the police came down to the scene of occurrence during mid day following the day of occurrence. The statements recorded from P.Ws.4 and 7 had reached the court only on 18.6.2001. The delay in examination of the star witnesses, P.Ws.4 and 7 convinces us that P.Ws.4 and 7 are brought up witnesses by the prosecution. It is quite unbelievable that the neighbours, who had witnessed the ghastly crime, did not whisper to anyone for about four long days. Therefore, we are inclined to discard the star testimony of P.Ws.4 and 7.

23. Coming to the extra judicial confession alleged to have been given by A1 to the Village Administrative Officer, PW9, we find that the Village Administrative Officer has not verbatim spoken to the statement given by A1 to him. He has simply stated that what all has been informed to him by A1 has been reduced into writing (Ex.P8).

24. The learned counsel for the appellants would argue that the confessional statement alleged to have been given by the accused to the Village Administrative Officer, PW9 cannot be relied upon by this court as the Village Administrative Officer has not spoken to verbatim the confession of A1 before the court. He cited an authority reported in HERAMBA BRAHMA v. STATE OF ASSAM (1983 SCC (CRI.) 40) wherein it has been held, "This extra-judicial confession is vague and ambiguous because it is not clear whether each one spoke separately and what were the words used by each of the accused. Witness speaks of an extra-judicial confession by three accused persons having simultaneously made and when reproduced in his language, it makes no sense. It is dangerous to rely upon such extra-judicial confession even if the witness's credentials are not in question. The question that agitates our mind is what language was used by each accused, in what words confession was made and whether each used the same language? Evidence of the witness does not reproduce the words used by each accused. d It is the witness's ipse dixit that is being deposed to. And examine the credibility of the witness. And who is that witness? Here is an under-trial prisoner awaiting trial for dacoity. We fail to see how these young boys should confide in this person suspected of dacoity. But, the most objectionable part of this concocted evidence is as to how the Investigating Officer came to know that the three accused persons made an extra-judicial confession to another under-trial in jail. What led the Investigating Officer of the present case to question an under-trial? Or did the witness of his won accord approach the Investigating Officer? Was this witness trying to please the Investigating Officer by approaching him that he would speak about the confession? Was there any quid pro quo? We put searching questions and waited for the answer in vain.

18. We are at a loss to understand how the High Court accepted the evidence of this extra-judicial confession without examining the credentials of PW2 Bistiram; without ascertaining the words used; without referring to the decision of this Court to be presently mentioned wherein it is succinctly stated that extra-judicial confession to afford a piece of reliable evidence must pass the test of reproduction of exact words, the reason or motive for confession and person selected in whom confidence is reposed." That was a case where the accused had allegedly confessed the crime to his remand mate while in prison. Further, the witness to whom the confession was allegedly made in that case had a doubtful integrity as he was involved in a case of dacoity. Nothing was reduced into writing by the person who entertained such confession of the accused. Further, three accused had allegedly confessed the crime to him. He could not distinctly speak to the role of each and every person divulged to him by the accused. In such circumstances, the Honourable Supreme Court has observed that in the absence of the deposition as to the actual words used by each of the accused, it is quite impossible to rely upon such a confessional statement alleged to have been given by the accused to the said witness.

25. The Honourable Supreme Court in ALOKE NATH DUTTA AND OTHERS v. STATE OF WEST BENGAL (2006(13) SCALE 467), has categorically held specifically, referring to the observation found in HERAMBA BRAHMA'S case, that the decision in the said case was rendered on its own facts and the observation in the said case is not an authority for the proposition that extra judicial confession must pass the test of reproduction of the exact words.

26. The Honourable Supreme Court in BALDEV RAJ V. STATE OF HARYANA (AIR 1991 SC 37) has held as follows: "An extra judicial confession, if voluntary, can be relied upon by the Court along with other evidence in convicting the accused. The value of the evidence as to the confession depends upon the veracity of the witnesses to whom it is made. It is true that the Court requires the witness to give the actual words used by the accused as nearly as possible but it is not an invariable rule that the Court should not accept the evidence, if not the actual words but the substance were given. It is for the Court having regard to the credibility of the witness to accept the evidence or not. When the Court believes the witness before whom the confession is made and it is satisfied that the confession was voluntary, conviction can be founded on such evidence." In the subsequent case reported in KAVITA v. TAMIL NADU (1998(4) SCALE 246), the Honourable Supreme Court reiterates the stand taken in the aforesaid authority pronounced in BALDEV RAJ'S case.

27. It is the settled position that the confessional statement given by the accused need not be detailed before the court verbatim. Further, in this case, it is found that the Village Administrative Officer had reduced into writing the confessional statement of the accused. He, having referred to the confessional statement reduced into writing, would state that the statement recorded by him was the confession given by the accused. When a confessional statement is reduced into writing and the same is marked before the court, there is no necessity for such a witness to speak word by word the confession given to him. After all, an opportunity is unfolded to the defence to subject the confessional statement which has been reduced into writing for cross-examination.

28. But, in this case, it is found that there is no evidence to show that the Village Administrative Officer was known to A1. Unless a person trusts another, there is no question of unburdening his heart to such a person. Therefore, we straightway reject the untrustworthy testimony of the Village Administrative Officer, PW9 that A1 voluntarily confessed the crime to him.

29. Of course, the testimony of postmortem Doctor, PW6 in the background of postmortem certificate, Ex.P5, would go to establish that Arayee died due to homicidal violence. We find that there is no legal evidence on record to establish that A1 and A2, having trespassed upon the house of Arayee, attacked her and caused her death.

30. The Trial Court has wrongly placed reliance upon the testimony of P.Ws.4, 7 and 9 and recorded the judgment of conviction and sentence on A1 and A2. The judgment is liable to be set aside for the infirmities pointed out by us hereinabove.

31. The judgment under challenge in S.C.No.130 of 2004 on the file of the I Additional Sessions Judge, Salem is set aside and the appeals are allowed. Both the accused are acquitted of the offences for which they were charged, tried and convicted. Fine amount, if any, paid by them is directed to be refunded to them. It is stated that both the accused are in jail. They are directed to be released forthwith unless their detention is required in connection with any other case. Ssk.

To

1. The I Additional Sessions Judge,

Salem.

2. The I Additional Sessions Judge,

Salem through the Principal Sessions Judge,

Salem.

3. The District Collector,

Salem.

4. The Director General of Police,

Chennai.

5. The Public Prosecutor,

High Court,

Chennai.

6. The Superintendent,

Central Prison,

Coimbatore.

7. The Inspector of Police,

Steel Plant Police Station,

Salem.

[PRV/9698]


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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