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Judgment
M. Thanikachalam, J.—The accused in S.C. No. 34/93 on the file of Principal Sessions Judge, Salem is the Appellant.
The accused/Appellant was directed to face the prosecution, for the offence u/s 302 IPC on the ground that he had committed the murder of his
brother''s wife, by name Pushpa, on 29.9.91 with an intention to commit murder, by causing cut injuries, at about 12 noon.
Upon considering all the materials placed before him, the learned Principal Sessions Judge satisfied himself, to proceed further after framing the
charge against the accused. The accused refused to plead guilty, when the charge was explained to him, thereby compelling the prosecution to
make out a case, for his conviction.
On behalf of the prosecution, to prove the charge, 16 witnesses have been examined, seeking aid not only from 23 exhibits, but also from
material objects. The scanning and the weighing of the above materials, in its proper perspective, revealed the fact that the accused had committed
the murder of his brother''s wife by using M.O. 12, causing cut injuries. Thus, concluding the learned trial Judge, by his judgment dated 27.4.93,
convicted and sentenced the accused u/s 302, IPC to undergo life imprisonment, which is in challenge before us.
Facts in brief leading to the conviction: The accused is the younger brother of Thiru Boomi Udaiyar (PW 1). PW 1 married one Pushpa, as his
second wife after the demise of the first wife, by name Pappathi. PW 1 has a son and a daughter through the first wife. The son''s name is
Kesavamurthi, and the daughter is Sasikala (PW 2). They are all residing in the same house.
The accused had illicit intimacy with the wife of PW 1 and the same was one day witnessed by PW 1, when they were in a compromising
mood. In order to solve the dispute, PW 1 convened a panchayat which was presided by Murugesa Udayar (PW 5) on 28.9.91. In the
panchayat, PW 4- Pachamuthu also participated since he was present when the dispute had arisen between the parties on 26.9.91. In the
panchayat, the accused and Pushpa were called and after discussion, the accused was directed to pay a fine of Rs. 300/-, with warning to
discontinue their illegal activities, which caused irksome to the accused, resulting warning also, to Pushpa aiming her life. When this behavior of the
accused was noticed by PW 5, he also warned him to behave properly, at least thereafter. The accused felt that he was put to shame, before the
panchayatdars and decided to take vengeance.
On 29.9.91, PW 1 went to the lands for his day-to-day work. PW 2 and her stepmother namely, Pushpa were in their house, and it seems
Pushpa was in the cattle shed. The accused came there, at about 12 noon in M.0.13 cycle, having koduval M.0.12 hanged in the handle bar. It
was witnessed by Parvathi (PW 3). The accused assaulted Pushpa, causing multiple cut injuries, which was witnessed by PW 2. PW 2
immediately informed the same to his father PW 1. The accused after assaulting Pushpa returned in the same cycle (MO 13) which was also
witnessed by PW 3. At about 12.30 pm on the same day, when PW 8 was doing his agricultural work the accused went there. By seeing the
blood stain in the dress, when PW 8 questioned, the accused confessed about his act namely, cutting the wife of his brother. Thereafter, leaving the
cycle with the custody of PW 8, informing him, that he is proceeding to Kollimalai, the accused left the place of PW 8.
On information by PW 2, when PW 1 went to the scene of crime he noticed the dead body of his wife, and therefore, in order to have redress
he approached the police at about 2 pm.
Thiru Chinnathambi, the then Sub Inspector of Police, Erumapatti police station, on the basis of the information furnished by PW 1, reduced the
same into writing (Ex. P1) and on that basis he registered a case in Crime No. 391/91 u/s 302 IPC, for which he submitted the printed FIR Ex.P
21 to the court concerned, marking a copy also to the Inspector of Police for investigation.
Thiru Muthusamy (PW 16) on information went to Erumapatti police station and obtaining a copy of the printed FIR, reached the scene of
crime, inspected the premises, in the presence of the witnesses and prepared observation mahazar Ex.P2, as well as sketch Ex.P22 in addition to
making arrangement for photos, being taken through PW 10. Between 4.30 and 8.00 pm, PW 16 conducted inquest in the presence of
panchayatdars as well as examined the witnesses, and the result is Ex.P23 inquest report. To ascertain further, the actual cause of death, the body
of Pushpa was sent for postmortem with a requisition Ex.P16, through PW 14, from the place of crime. PW 16 in continuation of the investigation
seized M.Os.7, 9, 10 and 11 in the presence of the witnesses under the cover of mahazar Ex.P3.
On 30.9.91 at about 11 am as per the request made by the investigating officer under Ex.P14, PW 12 conducted an autopsy over the body of
Pushpa which revealed the following external injuries:
(1) Incised injury of about 15 cm x 3 cm x bone deep over the right side of the face starting from the angle of the right eye running backwards to
the back of the mastoid region, the muscles and the bone underneath are cut through on exploration clotted blood seen.
(2) Incised injury of about 15 cm x 4 cm x bone deep about the left ear to the back of the neck. On exploration the muscles and the bone
underneath are cut through, blood clots are also seen.
(3) An incised injury of about 10 cms x 3 cms x bone deep starting from the chin running backwards to the right side of neck exposing the cut ends
of muscles and vessels in the neck on exploration clotted blood seen.
(4) Incised injury of about 15 cms x 7 cms x bone deep from the lateral end of injury No. 3 running backwards to the left side and join with the
injury No. 2 the severed ends of muscles and bones all seen through clotted blood is seen on exploration.
(5) A small abrasion of about 1 cm x 1 cm over the right side chest.
The doctor analyzing the above injuries and the damage caused by those injuries, internally, was of the opinion that the deceased died due to shock
and hemorrhage caused by multiple injuries, which are incorporated in Ex.P 15.
On 30.9.91 at about 6 am the Village Administrative Officer, PW 7 was in his office with one Karunanidhi. At that time the accused came
there and confessed, that he had committed the murder of his brother''s wife, due to the previous enmity as well disclosing the concealment of the
weapon etc. This was reduced into writing by PW 7, as Ex.P4 in which Karunanidhi also signed. Thereafter he handed over the confession
statement Ex.P4 to the Inspector of Police, along with the accused.
The investigating officer PW 16, at about 8 pm on 30.9.91, on the surrender of the accused through the Village Administrative Officer, along
with Ex.P4, arrested him and further enquired. The accused voluntarily gave a confession statement (Ex.P5), disclosing the place where the
weapon is concealed, in the presence of PW 7 and another witness. PW 16 noticed the blood stain, in the shirt and dhoti worn by the accused
(M.Os.15 and 14), which were recovered under Ex.P8. In pursuance of the confession statement, M.O.12 koduval was also recovered by PW
16, under Ex.P6. Thereafter, he has also identified the cycle which was recovered from PW 8, under Ex.P7. Examining the other witnesses
recording their statements, concluding the investigation, the material objects seized were also sent for chemical examination. In addition, PW 16,
made arrangements for recording Section 164 statements of the witnesses, through PW 11 Judicial Magistrate, Rasipuram. The entire investigation
so done by PW 16, brought to surface the guilt of the accused and in this view he laid a final report before the appropriate court, leading to trial
culminating in a conviction as stated above, giving a cause of action for the Appellant, to prefer this appeal. In this way the judgment of conviction
and sentence of the trial court is in challenge before us.
Heard Mr. S. Ashokkumar, learned Counsel appearing for the Appellant and Mr. V. Jayaprakash Narayanan, learned Government Advocate
for the State, who took pain of taking us through the oral evidence as well as the documentary evidence, to dwell upon the matter, for deep
consideration.
The learned Counsel for the Appellant attacked the trial court verdict mainly on the following grounds:
(1) The alleged motive is not at all proved and even if proved, that could not be the cause for the murder;
(2) that the only alleged eye witness PW 2 turned hostile, because of the fact she could not have seen the incident;
(3) that the alleged extrajudicial confession said to have been given by the accused to PW 7 is a myth and the alleged extrajudicial confession must
be the handy work of the police, which could not be the basis for conviction under law since inadmissible also; and
(4) that the accused was seen near the scene of crime sought to be introduced through PW 3 is an imagination. On these lines, the learned Counsel
urged that the trial court without properly appreciating the case, erroneously convicted the accused, failing to give at least the benefits of doubt,
which should be made available to him at least in this Court, thereby acquitting from the charges.
Learned Government Advocate (Crl. Side) would contend that though PW 2 turned hostile there are unimpeachable circumstantial evidence,
encircling the accused in proving the crime, that there is no reason of any kind to discard the extrajudicial confession given by the accused before
the Village Administrative Officer which could form the basis for conviction, since corroboration is available in plenty from the other circumstances
also. In this view, he supports the reasoning, findings and conviction rendered by the trial court.
The accused is the younger brother of PW 1. PW 2 is the daughter of PW 1 and the deceased Pushpa. PW 4 and PW 5 are the neighbors. It
is also an admitted fact, that the accused and the deceased were living in the same house in different portion. The first wife of PW 1 by name
Pappathi and the wife of the accused are sisters. The second wife of PW 1, Pushpa, was murdered on 29.9.91 at about 12 noon, when she was in
her cattle shed. It is the case of the prosecution that the accused alone had committed the murder by cutting her with MO 12, which was witnessed
by PW 2. Unfortunately for the prosecution and we could say, fortunately for the accused, PW 2 failed to support the case of the prosecution. The
fact that Pushpa was murdered, informed by PW 2 to PW 1, is not in dispute. PW 2 would state that her stepmother was done to death by
Kesavamurthi, her brother, who was also present in the house on that day, though he was working elsewhere, as cleaner. Thus, PW 2 had tilted
the case, informing that Kesavamurthi is the cause for the death. Kesavamurthi being the son of the deceased, as well as PW 1, the prosecution
ought to have examined him, as a witness to rule out the possibility of himself, involving in this incident, that too, because of the evidence given by
PW 2 since circumstantial evidence is relied on. But, unfortunately Kesavamurthi is not examined. Be that as the case may be, the fact remains PW
2 turned hostile. The reason alleged by the prosecution, for not supporting the case also, appears to be unacceptable. Admittedly, P.W. 1 is the
father of P.W.2 and the deceased is the mother. The accused is the junior paternal uncle of P.W.2 i.e. the brother of P.W. 1. On the basis of the
relationship, question of choosing the relation comes for consideration, generally it should be in favour of the father and the mother. But, P.W.2
disowned the prosecution case, though the prosecution say that accused had committed the murder of the mother of P.W.2. This would indicate
P.W.2 had not witnessed the incident or if she had witnessed the incident as spoken by her, then the murder might have been committed by
Kesavamurthi. Unfortunately, ignoring this aspect, the trial Court has taken a contrary view and believed the extrajudicial confession, ignoring the
account of eye witness. Thus the prosecution case is weakened, we could say, at least to certain extent.
PW 11 had recorded the statements of witnesses u/s 164 Code of Criminal Procedure and they are also exhibited. But, unfortunately, after
PW 2 was treated hostile, the statement said to have been given by her, before the Judicial Magistrate, was not put to her, either for confirmation
or denial. Therefore, the statement said to have been given by PW 2, willingly, before the Judicial Magistrate became useless, the fact being the
same is not the substantial evidence. In this view, the entire oral evidence of PW 2 has been vanished. Therefore, the prosecution at present is
mainly depending upon the circumstantial evidence, to prove the offence, supported by the extrajudicial confession. Before scanning the above
materials, we will find out the cause, for the death of Pushpa.
At the request of the investigating officer under Ex.P 14, PW 12 conducted autopsy over the body of the deceased Pushpa. The doctor had
noticed five injuries, as narrated above. Out of five injuries, four injuries are incised wound and those injuries alone caused shock and
haemorrhage, resulting the termination of the life of Pushpa prematurely. When the doctor had spoken about the injuries and the cause of death of
Pushpa, as narrated in Ex.P 15 also, the same is not challenged. The doctor also opined, that the injuries noted by him would have been caused by
a weapon like MO 12, which is also not challenged. Therefore, if the prosecution proves to the satisfaction of the court, inspiring confidence in the
mind, that the injuries noted in Ex.P 15 were inflicted by the accused using MO 12, then there is no way for the accused, to escape from the
clutches of Section 302 IPC. On the other hand, failure to prove or if there is any possibility to infer, that the incident might have been taken
otherwise also, then spontaneously a doubt would arise and the accused would be entitled to his benefits under the criminal jurisprudence.
In a case of circumstantial evidence, the circumstances relied on by the prosecution, should encircle the accused leaving no scope or possibility
for the accused to escape from the said circle. For this, there should be no crack or snap in the chain of events of circumstances. Even if one link is
broken, then the possibility comes, automatically, for the accused to escape through that gap. In this case the circumstances mainly relied on by the
prosecution are,
(1) there was enmity based upon motive between the deceased and the accused;
(2) that when the accused came to the scene of crime with M.0.12 in M.0.13, it was witnessed by PW 3 as well as when he left the scene of
crime, it was witnessed by him;
(3) that after the incident he confessed before PW 8, and left the place leaving the cycle in the custody of PW 8, which was later recovered on the
confession of the accused;
(4) that the accused had given a confession before the Village Administrative Officer, which is generally called ''extrajudicial confession'', wherein
he confessed the guilt;
(5) that in the dresses worn by the accused blood stains were noticed, immediately to the occurrence not only by PW 8 but also at the time of
arrest by the investigating officer; and
(6) that the weapon M.0.12 and the cycle M.0.13 were recovered, on the voluntary confession given by the accused. On the above
circumstances, the learned Government Advocate would submit that the case is proved beyond all reasonable doubts.
In a case of circumstantial evidence the motive should play prominent and predominant role though it may not be so essential, where ocular
evidence is available in plenty. It is the case of the prosecution, that the accused had illicit intimacy with the wife of PW 1, and the same was
noticed by him also. PW 1 would state that he suspected the fidelity of his wife, since his wife returned with his brother in the same bus, though he
left her at Ramuudayanur village for performing the ''nombu''. He would further state, that in the month of'' Adi'' he has seen the accused and
Pushpa lying together in a compromising mood. If this is the fact, what should be the natural reaction of a husband, is the question. The answer
should be, he ought to have reacted and assaulted the accused or attempted to assault the accused and the wife, also questioning their conduct.
Admittedly it is not happened, whereas a theory of panchayat is introduced, which appears to be highly unnatural. This theory was not disclosed to
the Investigating Officer also when P.W. 1 was examined, thereby showing that this must be an after thought. According to PW 1 he convened a
panchayat, which was attended to by PW 4 and PW 5. In the panchayat, it seems Pushpa has not supported the accused and therefore, it is the
case of the prosecution, the accused has been aggrieved and decided to commit murder. The reasoning given so, appears to be flimsy and
unnatural in our view. If the accused and the deceased had illicit intimacy, then Pushpa would not have disclosed the same before the panchayat
and she would have taken all possible steps generally to save her paramour. Even assuming that Pushpa failed to support the accused, the
grievance of the accused must be against his brother-PW 1, since he alone took the accused before the panchayatdars, thereby reducing his image
since it is said panchayatdars imposed fine. Therefore, the evidence given by PW s. 1, 4 and 5 that the accused warned Pushpa, even before the
panchayatdars, appears to be some what unnatural and unacceptable to us. In this view, we conclude that this motive part alleged by the
prosecution is flimsy and unacceptable. Assuming that the oral evidence of PW 1 could be accepted, supported by PW 4 and PW 5, in our
opinion, the motive is not connected with the subsequent events, and therefore, proof of motive alone will not take us to the irresistible conclusion,
that the accused would have committed the murder of Pushpa, since we find so many grey area in the case of the prosecution, unexplained and
unsupported by any acceptable evidence.
Ex.P1 -complaint, given by PW 1 set the law in motion. Admittedly PW 1 is not the eye witness. Therefore, the statement recorded on the
information furnished by PW 1 could not be taken as true unless corroborated. It is the case of PW 1 also, that on the information furnished by
PW 2, he came to know the involvement of the accused, in murdering his wife Pushpa. The person, who is said to have informed the actual
incident, as aforementioned, turned hostile and thereby the chain is snapped. In this view, the averments in Ex. P1 would not support the case of
the prosecution, except if at all the motive. In this view, though there is no delay in preferring the complaint, we are unable to accept the contents
therein as correct and the averments in the complaint could not be treated as substantive evidence also.
Learned Counsel for the Appellant submits, that the case spoken to by PW 3 that she had seen the accused just prior to the occurrence must
be incorrect, appears to be correct, by going through her evidence. The incident took place on 29.9.91 Sunday. But PW 3 would state that she
had seen the accused 1 1/2 years ago, in the month of ''Purattasi'' on the second Saturday at about 12 noon. If the evidence is to be accepted as
such it would indicate that PW 3 might have seen the accused, not on the date of the occurrence, but previous to the date of the occurrence, which
would not be sufficient to conclude, that he would have committed the murder of the deceased, on 29.9.91 Sunday at 12 noon. Even by way of
re-examination, it is not clarified how PW 3 has given the day as Saturday, the admitted fact being, the incident took place only on Sunday. She
would state further, that the accused went in a cycle, having the koduval in the handle bar. She has neither identified the cycle, nor the koduval at
the time of examination in chief. Only after-the cross examination, when she was examined with the permission of the court, she had identified
M.O. 13, where also she failed to identify the koduval. She would state, that the accused, who crossed her, returned within 5 or 10 minutes. It is
the case of the prosecution that M.O. 12 was used, to cause cut injuries to the deceased Pushpa. Hence, if really PW 3 had witnessed the
incident, then she ought to have noticed the weapon with blood, which she has not spoken. Therefore, the evidence given by PW 3, failed to
substantiate the ''last seen'' theory just prior to the incident, in order to indict the accused with the crime. Even assuming that PW 3 has given the
day, due to failure in memory as Saturday, instead of Sunday, in our opinion, in the absence of identification of the weapon, it is not possible to
conclude that the accused alone should have committed the murder of Pushpa that too, in the face of the statement given by PW 2, that her brother
Kesavamurthi had committed the murder. Further, she has also not identified the shirt and dhoti, worn by the accused at the time of the incident,
which is sought to be introduced by the investigating officer, as if recovered with blood stains. In this view also the last seen theory automatically
vanishes and on the basis of this circumstance connecting or roping the accused, with the crime is an impossibility.
On the basis of the extrajudicial confession said to have been given by the accused to PW 8 a case is sought to be made out. Learned Counsel
for the Appellant submits that the oral evidence of PW 8 is highly artificial and believing his evidence is unsafe. According to PW 8, on 29.9.91 at
about 12.30 pm the accused came to his land in the cycle and his dresses were seen with blood. On enquiry, according to PW 8, the accused
confessed to him, about the murder committed by him. If it is so, what should be the reaction of PW 8 is the question. He also belongs to the same
village and he is known to PW 1 also. Therefore, his immediate reaction would have been to inform at least PW 1 about the crime committed by
his brother. But PW 8 has not acted as a reasonable man expected to be, which would show the case spoken by PW 8, that the accused had
confessed about his guilt, must be the imagination of the investigating officer, through PW 8. The inaction and the absence of immediate reaction on
the part of PW 8, prompt us to say that the accused would not have confessed to him, about the murder said to have been committed and that is
why he had not acted as a prudent man, in not even reporting the matter, either to the police or to PW 1 and our view is supported by the decision
in Kali Ram Vs. State of Himachal Pradesh, wherein the Supreme Court ruled that ""if another witness came to know of the murder, his failure to
make a statement to the police regarding the confession made by the accused to the witness would deprive his evidence of much of its value.
The strong piece of evidence relied upon by the prosecution is the extrajudicial confession given by the accused to PW 7 that is, Ex.P4. It is an
admitted position, that extrajudicial confession is a weak piece of evidence and unless it is corroborated by other unimpeachable circumstances;
relying upon the extrajudicial confession alone, convicting the accused would be unsafe. In this view, we have to see, when the extrajudicial
confession was given, what is the evidentiary value of the said extrajudicial confession, whether it is corroborated and confirmed by other attending
circumstances to have the sanctity.
Learned Counsel for the Appellant attacks the validity of Ex.P4, mainly on two grounds namely; (1) that Ex.P4 would not have come into
existence as indicated in the document, and it must be the handy work of the investigating officer, (2) that the extra judicial confession is hit by not
only under Rule 72 of the Criminal Rules of Practice, but also u/s 162 Code of Criminal Procedure In this case F.I.R. was registered on 29.9.91
itself, thereby indicating investigation commenced on the same day, and it is the case of the prosecution also. The Criminal Rules of Practice are
framed by the High Court, in exercise of the powers conferred by Article 227 of the Constitution of India, with the previous approval of the
Governor and therefore, generally it should have the enforcing effect. Rule 78 says ""Village Magistrates are absolutely prohibited from reducing to
writing any confession or statement whatever made by an accused person after the police investigation has begun."" Thus it is seen, a prohibition is
imposed upon the Village Magistrates from recording any statement that too, confession also. Admittedly in this case as spoken by PW 7 the
extrajudicial confession was recorded on 30.9.91 at about 6 am, that is, after the investigation has begun. Therefore, Ex.P4 is hit by Rule 72. On
this basis, the learned Counsel for the Appellant submits, that no reliance could be placed upon Ex.P4. On the other hand, learned Government
Advocate relying upon a decision in Sakthivel v. State (2003) M.L.J. (Cri.) 752) would contend, that the extrajudicial confession is admissible in
evidence and in this view, it is not possible to ignore the same in toto. In the above ruling, a Division Bench of this Court had taken a view, seeking
support from the previous decisions also as under:
The extra-judicial confession given by the accused to P.W.9, though was subsequent to the beginning of investigation, is not inadmissible in
evidence, only its evidentiary value is reduced. Therefore, Ex.P-3 is admissible in evidence.
Here, the admissibility of the extrajudicial confession namely, Ex.P4 alone is not in question and its genesis also questioned, in the sense the
accused has not given the extrajudicial confession and even if it is given, it is hit by Section 162. Therefore, if at all it could be said on the basis of
the above decision Ex.P4 is admissible in evidence and it is still open to test the evidentiary value of Ex.P4 subject io other conditions regarding
admissibility u/s 162 Code of Criminal Procedure In this view relying on Ex.P4 as such is not possible to sustain the conviction.
In re Lakshmanan (1971 M.L.J. Cri 178: 1972 L.W.(Cri) 160 (D.B.)) a Division Bench of this Court, had an occasion to consider Rule 72 of
the Criminal Rules of Practice. It is held, the rule was intended to prevent false extrajudicial confession being secured with the help of village
munsif, after the commencement of the investigation. This safeguard provided under Rule 72, must be strictly construed, otherwise there is every
possibility for the investigating officer to take this kind of extra judicial confession, from an obliging Village Administrative Officer, diverting the
facts to certain extent, creating false evidence or twisted particulars to suit the case, according to the whims and fancies of the investigating officer,
causing injustice. In the above ruling it is held by the Division Bench as follows:
Under Rule 72 of the Criminal Rules of Practice, the ""Village Magistrates are absolutely prohibited from reducing to writing any confession or
statement whatever made by an accused person after the police investigation has begun"". It was intended to prevent false extrajudicial confession
being secured through the help of the village munsif, after the commencement of the investigation. The extra-judicial confession itself is a weak
evidence, and its value becomes less when it is obtained by a person, in the position of the village munsif after investigation of the case by the police
has started. But on a careful examination of the relevant provisions relating to the matter, it is not possible to state it is illegal or inadmissible in
evidence, though the weight to be attached to the same may be a relevant question for consideration on the facts and circumstances of each case.
In Raju and 2 others v. State, etc. (1995 2 L.W. (Cri.) 513) a Division Bench of this Court had ruled, that confession made to Village
Administrative Officer, two weeks after the occurrence is unreliable. But, in our case the confession statement was said to have been recorded on
the very next day, and therefore, if the confession statement is proved to be true, and genuine relying upon that statement may be permissible, to
certain extent.
In Ganesan v. State rep. by Inspector of Police, Harur Police Station (2002 2 L.W.(Cri.) 746) a Division Bench of this Court has once again,
ruled that though it is not possible to state that the confession statement recorded by the Village Administrative Officer is illegal or inadmissible, the
probative value would depend on the facts and circumstances of the case. Thus making it clear a confession statement even could be recorded
after the investigation has begun, despite the prohibition contained in Rule 72 and its probative value has to be tested, depending upon the facts and
circumstances of the case.
The main thrust of the learned Counsel for the Appellant is, that even assuming that the Village Administrative Officers are not totally barred
from recording an extrajudicial confession by Rule 72, if the statements are recorded, after the investigation has begun, then it should be hit by
Section 162 Code of Criminal Procedure Section 162 Code of Criminal Procedure prohibits, totally the use of any such statements or any record
thereof, whether any police diary or otherwise or any part of such statement or record to be used fur any purpose save as provided under the
proviso. Certainly Ex.P4 would not come under the proviso to Section 162. It is the specific submission of the learned Counsel for the Appellant
that Ex.P4 comes within the four walls of Section 162 Code of Criminal Procedure and for that purpose, much reliance is placed upon the decision
in Kali Ram Vs. State of Himachal Pradesh, . In the case involved in the above decision, a letter containing narration of facts relating to the crime
addressed to a police officer, during the course of investigation was sought to be relied upon, to prove the guilt of the accused, where it seems he
had confessed the crime. The letter was not obtained by the police, whereas it seems it was addressed from elsewhere to police officer but during
the course of investigation. The Apex Court considering the effect of Section 162 Code of Criminal Procedure laid down the law, which reads
thus:
The prohibition contained in Section 162 related to all statements made during the course of an investigation. The letter which was addressed by''s
to Station House Officer was in the nature of narration of what, according to ''S'' he had been told by the accused. Such a letter would constitute
statement for the purpose of Section 162, Code of Criminal Procedure The prohibition relating to the use of statement made to a police officer
during the course of an investigation cannot be set at naught by the police officer not himself recording the statement of a person but having it in the
form of a communication addressed by the person concerned to the police officer. If a statement made by a person to a police officer in the course
of an investigation is inadmissible, except for the purposes mentioned in Section 162, the same would be true of a letter containing narration of
facts addressed by a person to a police officer during the course of an investigation. It is not permissible to circumvent the prohibition contained in
Section 162 by the investigating officer obtaining a written statement of a person instead of the investigating officer himself recording that statement.
According to the submission of the learned senior counsel for the Appellant, the same analogy is applicable to the statement recorded by the
Village Administrative Officer also, since Ex.P4 was recorded during the course of investigation. This view is to be taken, in order to prevent the
investigating agency to circumvent the prohibition contained in Section 162 Code of Criminal Procedure In this view, though Ex.P4 was not
recorded by the police officer, since the extrajudicial confession is said to have been recorded during the course of investigation, we are of the
opinion, Ex.P4 is hit by Section 162 Code of Criminal Procedure and in this view it is inadmissible in evidence which should follow, this could not
be the strong piece of evidence, to inflict a conviction or to sustain the same.
It is pointed out by the learned Counsel for the Appellant that Ex.P4 extrajudicial confession has not reflected the natural conduct of the
accused and in this view also, the same should be ignored, placing reliance in a decision in Thangavelu v. State of T.N. (2002 SCC (Cri) 1382) in
which the Apex Court has ruled as follows:
A perusal of this confession Ext.P-14 gives us an indication of the attempt of the prosecution to build a case against this Appellant. This
extrajudicial confession is so full of facts starting from about 25 years prior to the date of the incident and graphically details what happened over
these years to his sister and his family which actually is the motive suggested by the prosecution for the crime. Ext.P-14 is recorded in nearly 4 full
pages, it not only speaks of his motive to kill D-1 and D-2 but also gives graphic details of the nature of the attack on the deceased and also
mentions in detail the persons whom he saw during and after the incident. In a manner of speaking, if this confession is true the Appellant had the
foresight to guess as to who the prosecution witnesses are going to be and gives an impression, therefore, he was seeking to corroborate their
future evidence. In our opinion, this would hardly be the natural conduct of an accused if he was voluntarily making a confession. We further notice
the unimaginable similarity in Exts.P-14 and P-1 as also in the evidence of PW 1 which supports the theory of the defense that there was an
attempt by the prosecution to create evidence in this case.
This ruling is the answer for the observation in Sakthivel case {(2003) M.L.J. (Cri.) 752}. In Sakthivel case a Bench of this Court observed that
minute details had been given by the accused which were only to the exclusive knowledge of the accused and in this view it cannot be said that the
same would have been written by the Village Administrative Officer himself. The Apex Court considering the minute details in the extrajudicial
confession, has taken the view that there was an attempt by the prosecution to create evidence in this case, is probable. In this view also Ex.P4 is
clouded with shadow and requires eradication of the same, for its approval and its reliability, to act upon.
The learned Counsel would contend that since the extrajudicial confession viz., Ex.P.4 itself is not reliable or inadmissible, as the case may be,
then the alleged recovery said to have been made on the basis of the extrajudicial confession or on the basis of the disclosure statement, also
should be held unacceptable, for which we have to subscribe our view. It is the case of the prosecution that in Ex.P.4 itself, the accused had
disclosed about the whereabouts of the cycle, M.0.13 and the weapon M.0.12. But unfortunately, the investigating officer would state that he had
examined the accused, recorded Ex.P.5 leading to the recovery of M. Os.12 and 13 under Exs.P6 and P. 17. If Ex.P.4 is not available, question
of Ex.P.5 also would not have come into existence. Our finding is that Ex.P.4 is inadmissible in evidence and therefore, the case projected on
behalf of the prosecution that on the basis of extrajudicial confession, another confession was obtained from the accused, leading to the recovery,
is also not acceptable legally. Further, if the accused had disclosed about the whereabouts of cycle and weapon in Ex.P.4, subsequent, alleged
confession also would be inadmissible. In this view, we conclude, the recovery spoken by P.W.I6, though supported by P. Ws.7 and 8 is not
acceptable to us and they are the documents prepared for the occasion having no evidentiary value.
The learned Public Prosecutor would contend that in the dress worn by the accused, Forensic Department have detected ''O"" Group human
blood as that of the deceased and therefore, it should be taken as strong circumstantial piece of evidence. This contention could be accepted if it is
true that the shirt and dothi, M. Os. 14 and 15 belonged to the accused and the accused was wearing these dresses at the time of the incident,
otherwise it may not be possible to draw a presumption. P.W.3, who claims that she had seen the accused, going to the deceased cattle shed, has
not identified these dresses, and P.W.8 who deposed that he had seen the blood stain in the dresses of the accused also, failed to identify these
dresses and no attempt is made on behalf of the prosecution even to show these material objects, to these witnesses to identify the same. Here, it is
not the admitted position that these dresses were recovered from the accused though claimed so. Though it is the case of the prosecution that bill
hook was recovered on the basis of the confession given by the accused, it does not contain human ''O'' Group blood, as seen from Ex.P. 19,
though it does contain human blood. Therefore, on the basis of presumption also, fixing this accused as the murderer is beyond our comprehension.
The trial Court in our considered opinion has not properly approached the case of the prosecution, taking into consideration the probability
and other attending circumstances pointed out supra, whereas drawn a presumption on its own which is not warranted on the basis of the materials
available. Because of the improper approach, the trial Court has committed an error, in convicting the accused and in this view, we are constrained
to set aside the conviction.
For the foregoing reasons, the accused/Appellant succeeds in establishing that the prosecution has not made out a case beyond all reasonable
doubt, thereby making him fit for acquittal, at least on the basis of the benefits of doubt.
In the result, the appeal is allowed and the judgment of conviction and sentence is set aside and the accused is acquitted of the charge framed
against him. The bail bond, if any, executed by the accused at the time of coming out on bail shall stand discharged.