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Judgment
Thangamani, J.—Appellants are accused 1 to 3 in S.C.137 of 87 in the Court of Session, Ramanathapuram Division, Madurai. Three charges were framed against them in the trial court on the allegation that at about 2:30 A.M., on 20-9-86 in the house of deceased Chittammal of Mullikundu street, Kalayarkoil, they committed her murder in furtherance of their common intention by A-1 Raju pressing a pillow on her face, while A-2 Gopal and A-3 Magudan caught-hold of her. The first charge against all the three accused was one u/s 302 read with S. 34, I.P.C. The second charge was against A-l Raju alone u/s 404 I.P.C, for dishonestly misappropriating gold "Mangalyam" of the deceased at the time of her death. The third and fourth charges were u/s 201 I.P.C, far causing disappearance of the evidence of the said offence and giving false information to screen the offenders.
The prosecution examined 12 witnesses, filed 16 Exhibits and marked 10 Material Objects to substantiate the abovesaid charges. Of the witnesses examined, P.W. 4 Baghavathy turned hostile. The evidence on record discloses these facts :-
A-l Raju, A-2 Gopal and one Bharathy are brothers of deceased Chittu alias Chittammal. P.W. 1 Ocha Thevar is the husband of deceased Chittu alias Chittammal. He suspected that P.W. 2 Pandi was having illicit relationship with his wife Chittu. P.W. 3 Chinnaponnu is the resident of the same street. Both Chittu and P.W. 2 Pandi used to visit her house occasionally. Whenever they come there, they would engage in conversation. P.W. 3 Chinnaponnu one day warned Chittu not to come to her house, since people are talking scandalously about her and P.W. 2 Pandi. P.W. 2 Ocha Thevar and Chittu used to quarrel on account of the suspicion entertained by P.W. 2. A-l Raju also chastised his sister Chittu for having illicit relationship with P.W. 2 Pandi.
On 19-9-86 Friday when P.W. 1 Ocha '' Thevar returned home, deceased Chittu complained to him that her brother Bharathy came there at 2 P.M. on that day and committed nuisance. Thereupon P.W. I went to Kalayarkoil Police Station and gave Ex. P-9 complaint against A-l Raju and his brother Bharathy. The Head Constable sent for the accused and enquired them. P.W. 11 Sub Inspector filed charge-sheet against them on the basis of the complaint in S.T.R.No.56 and 57 of 86 u/s 299 I.P.C. Ex. P-10 is the extract of this register. On that night, after 12 P.M., P.W. I Ocha Thevar was taking tea in Singaram''s tea stall. A-2 Gopal and A-3 Magudan came there and told them mat Chittu wanted a cup of tea. This witness purchased tea and gave it to them. Then he got into a lorry and went to Madurai. On the early hours of 20.9.86 P.W. 3 Chinna Ponnu came out of her house to attend calls of nature. A-2 Gopal and A-3 Magudan told her that Chitta had expired. In the meantime, when P.W. I Ocha Thevar was proceeding near Sivagangai, he saw one Eganathan carrying a dead body in his cycle near Sivagangai. A-3 Magudan was running behind the cycle. This witness got down from the bus and followed them. There, he was told that his wife had committed suicide by hanging. On the same night P.W. 7 had seen A-l Raju, A-2 Gopal and A-3 Magudan talking near a bridge.
On 20-9-86 at about 6:30 A.M., while P.W. 11 Sub-Inspector was in the station A-2 Gopal appeared there and gave Ex. P-11 complaint stating that at about 4 A.M. on that day, his sister was found hanging in her house. The Sub-Inspector registered the same as his station Crime No. 139 of 86 as suspicious death u/s 174 Cr.P.C. Ex. P- 12 is the printed First Information Report prepared and sent by him to the Tashildar. He took up investigation of the case, visited the scene of the crime and prepared Ex. P-1 observation mahazar and Ex. P-13 rough sketch. At 7-15 A.M., he seized M.O.3 to 5 cords under Ex. P-2 mahazar. P.W. 5 Mariappan attested the mahazars. From 7-30 A.M., to 10 A.M., he held inquest over the dead body of Chittu. At that time, he examined A-2, Gopal and A-3 Magudan. Ex. P-14 is the inquest report. Then he sent the body to postmortem.
On 26-9-86 at 11 a.m., P.W. 6 Doctor commenced the postmortem on the dead body of Chittu at Government Headquarters Hospital, Sivagangai. The Doctor noticed these features:-
Bintors over the upper arms, chest and upper part of abdomen. Skin peeled of over and neck and face. Rigor mortis passed off. No rope mark around the neck. Eye lids bulged and swollen. Frothy blood discharge from the nose and mouth, tongue protruded out and pendomatous. Abdomen distended. Internal Examinations:- Heart congested empty. Lungs congested trachea discolored. The sub cutaneous tissues of the front of neck, upto 4th intercostal space the tissues are the dark coloured and congested. Hyoid bone fractured at the angle of right horn. Stomach congested contains 30 ml of brown coloured liquid. Oesphagus congested, liver congested, spleen congested. Kidneys congested, bladder empty congested, uterus empty normal size congested, brain congested, spinal colour in tact. In the opinion of the Doctor, the deceased would appear to have died of asphyxia due to strangulation 30-36 hours prior to his autopsy. Ex. P-4 is the postmortem certificate issued by her. After the postmortem was over, P.W. 9 police constable removed M.O.8 Jacket, M.O.9 saree and M.O.10 skirt from the body and handed them over in the Police Station.
On 23-9-86 after perusing Ex. P-4 postmortem certificate, the Sub Inspector altered the crime into one u/s 302 I.P.C., prepared Express First Information Report and despatched it to the concerned authorities. Then P.W. 12 Inspector took up the investigation. On 24-9-86, he visited the scene of crime and examined P.W. s 1, 2, 3, 4 and 6.
On 6-10-86 at about 5:30 A.M., P.W. 8 Village Administrative Officer was in his house in Kalayarkoil. A-l Raju came there and told him that he had committed the murder of his sister Chittu. The Village Administrative Officer recorded Ex. P-5 confessional statement of A-l obtained his signature therein. Ex. P-6 is the report of the Village Administrative Officer. Then he produced A1, Raju before P.W. 12 Inspector at Kalayarkoil Police Station at 8 P.M., and handed over Exs.P-5 and P-6. A-l, Raju gave a confessional statement before the Investigating Officer, the admissible portion of which is Ex. P-7. After the arrest, A-l took them to his house and produced M.O.I ''Thali'', M.O.6 paper, M.O.7 cord kept concealed in the roof. The Inspector seized them under Ex. P-8 mahazar. P.W. 8 Village Administrative Office attested the same.
On 8-10-86 at 7 A.M., P.W. 12 Inspector arrested A-2 Gopal at Bus Stand, Thirubhuvanam. On 14-10-86 at 6:30 A.M., he arrested A-3 Magudan at Bus Stand, Kannivady. After completion of investigation, P.W. 12 laid charge-sheet on 24-12-86.
When examined u/s 313, Cr.P.C. the appellants denied the allegations against them. They did not examine any defence witness.
Learned Sessions Judge found the accused guilty on all the four charges. On the first charge he convicted A-l to A-3 u/s 302 read with 34 I.P.C., and sentenced each to undergo imprisonment for life. On the second charge he convicted A-l u/s 404 I.P.C., and sentenced him to undergo one year and six months'' Rigorous Imprisonment. On the third charge, he convicted A-l to A-3 u/s 201 I.P.C., and sentenced each to undergo Rigorous Imprisonment for one year and six months. On the fourth charge he convicted A-2 u/s 201 I.P.C. and sentenced him to undergo Rigorous Imprisonment for one year and six months. He also ordered that the sentences are to run concurrently. And this appeal is directed against the said conviction and sentence.
Instead of narrating the prosecution version of the incident in a chronological manner, learned Sessions Judge has simply summarised the evidence rendered by each witness allotting one paragraph for each witness. After formulating the point for determination, he has simply extracted what the arguments were on both sides. Instead of discussing the evidence in an analytical manner and giving convincing reasons for his conclusion, learned Sessions Judge has simply held that the prosecution version of A-l causing the death of Chittu alias Chittammal by pressing a pillow on her face, while the other two caught hold of her was true and that the theory of suicide propounded by the accused was unacceptable. He has also accepted the evidence regarding recovery of M.O.I ''Thali'' pursuant to the version of A-l as per Ex. P-7. Learned Counsel for the appellants submits that this case is based mainly on circumstantial evidence. There is no direct eye - witness to the occurrence and the said circumstances do not form a chain so complete as to come to the conclusion that the appellants alone could have committed the offence. Learned Counsel further points out that Chittu alias Chittammal met with her death on account of homicidal violence has not been established.
The scandalous illicit relationship between the deceased Chittu and P.W. 2 Pandi is stated to be the motive for the appellants to do away with her. In this connection, P.W. I, Ocha Thevar, the husband of the deceased states that he quarreled with his wife on account of the relationship. He states that even though he warned his wife, she did not pay heed to his words. And according to him, he had told A-l, Raju, his wife''s brother that he need not bother about this and that this witness would look after the same. The only other witness who speaks about the relationship between the deceased and P.W. 2 is P.W. 3 Chinnaponnu. Her evidence is to the effect that whenever P.W. 2. Pandi and deceased came to her house, they used to talk with each other. When P.W. 1 Ocha Thevar, the husband of the deceased, had kept quiet and asked A-l Raju not to care about this, it is highly doubtful whether A-l and his brother would have gone to the extent of doing away with their sister.
The next piece of evidence available regarding the incident is extra judicial confession Ex. P-5 stated to have been given by A-l, Raju to P.W. 8, Village Administrative Officer on 6-10-86. Ex. P-5 no doubt reads that at 1 2:30 A.M., on 20-9-86 A-l to A-3 discussed about the scandal in the village regarding the relationship between P.W. 2, Pandi and Chittu and that at 2 A.M., they went to the house of the deceased and while A-2, Gopal and A3, Magudan caught hold of the legs and hands respectively of the deceased, A-l pressed a pillow on her face and killed her. But, as rightly, pointed out by Thiru M. Vinayagam learned defence counsel, the narration in Ex. P.5, appears to be inherently improbable. It gives in detail, the bio-data of A-l and his family members and proceeds to unfold how the event was accomplished. It is unlikely that a rustic person like A-l Raju would have given such a lengthy statement taking care of minor details. And we also find that the narration in Ex. P-5 is the verbatim copy of the confession statement given by him before P.W. 12, Inspector which contains the admissible portion Ex. P-7. We are also to bear in mind that the extra judicial confession before the Village Administrative Officer has been made on 6-10-86 which is nearly two weeks after the occurrence and the commencement of the investigation. Further, P.W. 8, Village Administrative Officer admits in his cross-examination that even though A-l, Raju was available in his house for about 1 1/2 house on the morning of 6-10-86 he did not send word to the Police Station. The Police Station at Kalayarkoil is located next to the house of Village Administrative Officer. The rear portion of the Police Station building is visible from the house of Village Administrative Officer. A-l, Raju does not own either land or house within the jurisdiction of P.W. 8 Village Administrative Officer. There is no special reason for A-l, Raju approaching the Village Administrative Officer to make a confession. And as per the evidence of P.W. 11 Sub Inspector, A-l, Raju was available with other witnesses during investigation till 21-9-86. While so, it is evident that this confession is only a make belief thought of during the investigation with the assistance of an obliging Village Administrative Officer and it is unsafe to place any reliance on the same. Further, a Division Bench of this Court has pointed out In re Lakshmanan (1971 M.L.J., Criminal 178)
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 extra judicial confessions 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.
Yet another factor which improbablises the prosecution version of the incident is Ex. P-11, the complaint given by A-2, Gopal at Kalayarkoil Police Station at 6:30 A.M., on 20-9-86. This has been recorded by P.W. 11, Sub Inspector and registered as his Police Station Crime No. 139 of 1986 u/s 174, Cr.P.C. In this A-2, Gopal states that on 19.9.86 at about 2.00 P.M., his brother Bharathy scolded his sister deceased Chittu making mention of the scandal prevalent in the village. When P.W. I, Ocha Thevar returned home at 2.30 P.M., on that day, deceased complained to him of what had happened. Thereupon P.W. 1, Ocha Thevar went to the Police Station to give a complaint. At about 8-30 P.M. Ocha Thevar told his wife that he would go and bring her sister Pechi and her husband Marichamy, since the entire village scandalously talk about Chittu. After P.W. I left the house A-2, Gopal and deceased were sleeping in the house. At about 4 A.M., Chittu woke up A-2, Gopal and asked him to bring P.W. 3 Chinnaponnu. Both A-2, Gopal and A.3, Magudan went to the house of P.W. 3 Chinnaponnu and came back with her. When they returned home at about 5:30 A.M., they found the house was locked inside. They saw through the door and found Chittu was hanging. All the three pushed the door, and went inside. Chittu was lingering for life. She told A-2, to look after her children and passed away. On hearing the noise, neighbours gathered there. And P.W. 3 admits in his cross-examination that when she reached the house of Chittu people had already gathered there. There is no reason to suspect the version given in Ex. P-11 regarding the cause of death of Chittu. Further, A-l, Raju has signed as a witness in this statement. While so, it is inconceivable that he would have opted to make a different statement before P.W. 8, Village Administrative Officer as in Ex. P-5. Learned Public Prosecutor submitted that the conduct of A-2, Gopal giving a false complaint as in Ex. P-11 at 6:30 a.m., on 20-9-86 is a factor which goes in support of the prosecution theory. However, we are unable to accept the contention. Ex. P-11 only supports the contention of the accused that they are in no way responsible for the death of Chittu.
We have already seen that no importance could be attached to Ex. P- 5 statement stated to have been given by A-l Raju before P.W. 8 Village Administrative Officer. While so, the arrest of A-l, his confession as per Ex. P-7, and the consequential recovery of M.O.I also fail to the ground.
And above all, the testimony of P.W. 6; Doctor who has conducted the autopsy over the dead body of Chittu and Ex. P-4 the postmortem certificate do not positively indicate that Chittu met with her death on account of homicidal violence. P.W. 6, Doctor states in her evidence that Chittu appears to have died of asphyxia due to strangulation. The postmortem certificate reads that no rope mark was found around the neck. However, P.W. 6 Doctor admits in cross-examination that ligature mark will not be visible in case the skin is peeled of on the neck portion. And Ex. P-4 postmortem certificate discloses that skin was peeled of over the neck and face. And so the possibility of the deceased having committed suicide cannot be excluded. So, it cannot be said that the prosecution has brought home the guilt of the accused beyond all reasonable doubt.
In the result, the appeal is allowed and the conviction and sentence passed by the trial court are set aside and the appellants are acquitted of the charges framed against them. The bail bonds shall stand cancelled.