Valanjiya, Chinnammal vs State

Ratnavel Pandian, J.—A-1 in Sessions Case No. 65 of 1978 on the file of the Court of Sessions, Salem Division, Salem, by name Valanjiya

Chinnammal, aged about 30, has preferred this criminal appeal canvassing the correctness of the judgment made in the above case, convicting her

under S. 302, I.P.C., under charge No. 1, and sentencing her to suffer imprisonment for life, and also convicting her under S. 380, I.P.C., under

charge No. 2, and sentencing her to undergo rigorous imprisonment for five years, with a direction that the Sentences should run concurrently. Her

husband S.D. Chinnasami, who was tried as A2 for the offence under S. 314, I.P.C., under charge No. 3, has been acquitted.

The allegations on the basis of which these two accused took their trial, are that on 20.2.1978 at about 9 P.M., at Perumaampatti, A1 murdered

Kaliammal, the deceased, aged about 40, for gain by cutting her neck and severing it from the body with a koduval (M.O. 12) and also committed

theft of a chain with a pendant (M.Os. 1 and 2), and that A2 assisted A1 in pledging the jewels.

To substantiate the above allegations, the prosecution has examined P.Ws.1 to 16 filed Exts.P1 to P34 and marked M.Os. 1 to 23. The

accused examined one Chellappan as D.W.1.

The brief facts of the case, as disclosed from the oral and documentary evidence, can be stated as follows: P.W. 2 is the husband of the

deceased and P.W. 1. The deceased was issueless. P.W. 2 married P.W. 1 about seven years prior to the occurrence, and at the time of

occurrence, P.W. 1 was four months'' pregnant. The deceased, after picking up a quarrel with P.W. 1, left the company of her husband (P.W. 2),

and P.W. 1 and was residing alone in the shed put up in the garden land. P.W. 2, her husband, used to come to the garden shed, and he was

looking after both the deceased and P.W. 1. The deceased Kaliammal used to wear a chain (M.O.1) attached with a pendant (marked as

M.O.2). She was also wearing one pair of earrings studded with white stones (M.O.3 series) and one pair of nose-screws (M.O.4 series).

On the day previous to the occurrence, i.e., on 19.2.1978, the accused returned from the shandy and divided the house-hold provisions both to

the deceased and P.W. 1. On the next morning, P.W. 2 left his house with one Vadaman to Chemmedu which is at a distance of half a mile away

from the scene Village. As P.W. 2 had not returned by 8 A.M., P.W. 1 went to the garden land to feed the cattle. On the way, she met one

Karumi (P.W. 3), from whom she came to know that Kaliammal was lying in her house with her head completely severed. P.W. 1 rushed there

and found the front door of the house of the deceased open. She called ; but there was no response. Therefore, she went in and found Kaliammal

lying in a pool of blood, with her head completely severed. M.Os. 1 and 2 were not found on the dead body. She returned to her house, but her

husband had not returned even by that time. Taking one Raji with her, she went to Chemmedu in search of her husband, but he was not available.

She returned and gave a report to the Village Munsif, P.W. 9. Her report is Ex. P1. The carbon copy of the report is Ex. P2. Raji has attested the

report.

P.W. 9 states that at about 10-30 A.M., he recorded Ex. P1, went to the scene of occurrence and found the dead body of Kaliammal with her

head completely severed. He prepared the printed yadhast, Exts.P11 and P12, and sent Exts.P1 and P11 to Vazhavanthinadu Police Station and

Exts.P2 and P12 to the Judicial Second Class Magistrate, Namakkal, through his Talayari.

P.W. 15, the then Sub Inspector of Police, Vazhavanthinadu Police Station, received Exts.P1 and P11 on 21.2.1978 and registered a case in

Crime No. 27 of 1978 under Ss. 302 and 380, I.P.C., and sent the express reports to the concerned officials. He also sent a wireless message to

the Inspector of Police, Senthamangalam.

P.W, 16, the Inspector of Police, on receipt of the wireless message sent by P.W. 18, came to the scene of occurrence by 2 P.M. on

21.2.1978, and took up investigation in this case. He inspected the scene place and prepared the observation mahazar Ex. P13 and also drew a

rough sketch of the scene, Ex. P33. He held inquest over the body between 3-15 P.M. and 6 P.M., examined P.Ws. 1 to 3 and others and

prepared the inquest report, Ex. P34. He entrusted the dead body with P.W. 14 with a requisition Ex. P17 to the Medical Officer to conduct

autopsy over the dead body. During the inquest, he seized M.Os.5 and 10 to 17 from the scene place under Ex. P14. At 3-30 P.M., he seized

M.Os. 18 and 19 under Ex. P15, Exts. P14 and P15 were arrested by P.W. 9 and another. Thereafter he examined P.W. 4 and others. On

22.2.1978, he sent a message to P.W. 12 and made arrangements to have the footprints found in the scene of occurrence to be taken for

comparison. Accordingly, P.W. 12, the Scientific Assistant attached to the District Police Office, Salem, came to the scene of occurrence and

found two foot prints, one of which was outside the house and the other was inside the house of the deceased P.W. 12 traced the right foot-print

which was bloodstained inside the house. He traced the same in a glass plate, M.O.20, and banded it over to the Sub Inspector of Police,

Vazhavanthinadu, to send it to the Forensic Science Laboratory, Madras. According to him, on 18.3.1978, at noon, in the Judicial Second Class

Magistrate''s Court, Namakkal, he took the right foot impression of A1 in the presence of the Magistrate for sending it for comparison. M.O. 21

series are the two prints that he took on that day.

Meanwhile, P.W. 10, the Woman Civil Assistant Surgeon attached to the Government Hospital, Senthamangalam, on receipt of the requisition

Ex. P17 from P.W. 16, commenced the post mortem examination at 10 A.M. on 22.2.1978 over the headless trunk severed by a cut across the

C1 and C2 vertebra from the body. The severed head correctly fitted with the cut edges of the neck of the trunk. She found the following injuries:

Head was cut from the trunk between C1 and C2 vertebra and was seen separate with the following injuries:

Pinna of the right ear is lacerated in the middle.

A lacerated injury of about 5 cm. x 2 cm. bone deep over the middle of the lower jaw on the right side with the bone underneath fractured.

A lacerated injury of about 2 cm. x 1 cm. x � cm. over the left side of the lower jaw.

A lacerated injury of about 3 cm. x � cm x � cm. over the right side of the lower jaw.

An incised injury of about 20 cm. x 5 cm. bone deep over the back of the right side of the chest extending from the right shoulder to the midline.

Right clavicle was cut transversely. Neck was cut across between C1 and C2 vertebra and the body was separated from the head exposing cut

ends of the wind pipe, food pipe and great blood vessels. The heart, liver, lung, spleen, kidney and brain were pale.

The Medical Officer was of the opinion that the deceased would appear to base died of shock and haemorrhage due to cut injuries to vital organs

like, heart, brain and great blood vessels, wind pipe, etc., that the cut injuries found on the body could have been caused by a sharp edged

weapon like a bill hook and that all the injuries could have been caused while the head was cut add removed from the trunk. P.W. 10 issued the

post mortem certificate, Ex. P18.

P.W. 16, in continuation of his investigation, sent M.Os. 6 and 10 to 19 to the Court on 23rd February, 1978. He also sent M.Os. 3, 4 and

23, handed over by P.W. 14, after the post mortem examination, to the Court. On 9th March, 1978, at about 11.45 a.m., A1 appeared before

him along with P.W. 4 and Exts. P3 and P4. P.W. 16 arrested A1 and examined her. A1 volunteered a confessional statement, the admissible

portion of which is Ex. P5. In pursuance of Ex. P5, A1 took P.W. 16 and his party to the shop of P.W. 5, who handed over M.O. 6 series

(currency notes for Rs. 600.), M.O. 7A, (a chit given by the Indian Bank, Vazhavandinadu, Kolli Hills to A1 for loan for Rs. 830 dated 27th

February, 1978), and M.O. 7B (Cash Certificate given to A1 by the Indian Bank, Vazhavandinadu, Kolli Hills). P.W. 16 seized the same under

Ex. P6 attested by P.Ws. 4 and 9. At about 3.30 p.m., A1 took P.W. 16 and his party to Chemmedu Indian Bank, where P.W. 6 was examined.

P.W. 6 produced M.O.1, the gold chain. P.Ws. 1 and 2 were examined with reference to M.O.1. P.W. 16 gave a requisition, Ex. P10, to P.W.

16 to keep M.O. 1 and the connected records in safe custody. At about 4.30 p.m. A1 took the police party to her house, wherefrom she

produced M.O. 8 (the bedsheet) and M.O. 9 (the dhothi), which P.W. 16 seized under Ex. P7 attested by P.Ws. 4 and 9. On the same day A1

took P.W. 16 and his party to Namakkal, and at 7 p.m., at Namakkal, A1 pointed out P.W. 7, she produced M.O. 2 (pendant). P.W. 16 seized

M.O. 2 under Ex. P16 attested by P.Ws. 4 and 9. On the same day, P.W. 16 examined P.Ws. 5 to 9 and some others. He once again examined

P.Ws. 1 and 2. On 10th March, 1978, the accused was sent for remand. On 11th March, 1978, P.W. 16 sent a requisition Ex. P19 to P.W. 11,

the Judicial Second Class Magistrate, Paramathi, to record the statement of A1 under S. 164. Crl.P.C. On 13th March, 1978, he sent Exs. P24

and P25 for sending the material objects for chemical examination. On 18th March, 1978, he gave a requisition to the Magistrate to permit him to

take the footprints of A1. On 25th March, 1978, he seized M.O. 1 from P.W. 6.

P.W. 11, who was then the Judicial Second Class Magistrate, Paramathi, on receipt of the requisition, Ex. P19 from P.W. 16 on 11th March,

1978, after observing all the statutory formalities and administering the necessary warnings and also affording sufficient time for reflection, recorded

the judicial confession of A1 on 15th March, 1978. Exs. P20 and P21 are the preliminary and final warnings given to A1. Ex. P22 is the

confessional statement of A1 recorded under S. 164, Crl.P.C., Ex. P23 is the statutory certificate appended to Ex. P22.

P.W. 13, the then Head Clerk attached to the Court of the Judicial Second Class Magistrate, Namakkal, states that on receipt of Ex. P24,

M.Os. 2 to 5, 8 to 19 and 23 were sent to the Chemical Examiner for analysis and report, and thereafter on receipt of another requisition Ex. P25,

M.O. 1 was also sent for chemical examination. Ex. P26 is the office copy of the letter sent to the Chemical Examiner. Ex. P27 is the report of the

Chemical Examiner, and Ex. P28 is the report of the Serologist with reference to M.Os. 4, 5, 8 to 15, 19 and 23. Ex. P29 is the report of the

Chemical Examiner to the effect that M.O. 5 (which according to the prosecution was seized from the scene of occurrence) would have been

separated from M.O. 2. This witness further states that the Magistrate received Ex. P30 requisition on 27th March, 1978 to send M.Os. 20, 21

and 22, to the Chemical Examiner for comparison and report. Ex. P31 is the office copy of the letter sent by the Magistrate, and Ex. P32 is the

report of the Expert to the effect that the foot which made the impression in M.O. 21 series and M.O. 22 could have caused the impression on

M.O.20.

After completing the investigation, P.W. 16 laid the charge sheet against the accused on 8th May, 1978. After the charge-sheet was filed, A2

surrendered before Court on 26th May, 1978.

A1, when questioned under S. 313, Crl.P.C., with reference to the incriminating pieces of evidence appearing against her, would totally deny

the evidence and state that she was tortured by the police and tutored to give the confessional statement to the Magistrate under Ex. P22.

The learned trial Judge, for the reasons assigned in his judgment, has found A1 guilty, and convicted and sentenced her as aforementioned and

acquitted A2. Hence this appeal.

As the appellant A1 has not engaged any Counsel of her own, Mr. G. Sugumaran, one of the members of the Bar, is defending her at the

instance of the High Court Legal Aid centre. Learned Counsel, after taking us through the recorded evidence, contended that the evidence

adduced on the side of the prosecution is quite unsatisfactory and insufficient to base a conviction on the serious charge of murder. According to

him, since the first accused has retracted from the judicial confession, it should have been thrown overboard. He would further attack the evidence

given by P.W. 4 that the first accused made an extra judicial confession before him, which he has recorded under Ex. P3, as totally inadmissible.

This is a case of murder accompanied by theft. There is ample evidence to show that the deceased was living alone in a shed put up in the

garden land belonging to P.W. 2 and she was wearing M.O. 1, M.O. 2, M.O.3 series and M.O. 4 series. Though M.O. 3 series and M.O. 4

series were found on the dead body of the deceased, M.Os. 1 and 2 were missing from the dead body. The dead body was found inside the shed

in the garden land, and the head was completely severed from the trunk. Therefore, it is clear that whoever is the assailant, the deceased was

hacked to death by cutting her head and severing it, and M.Os. 1 and 2 were removed from the body of the deceased.

Now, the question is, whether the prosecution has established charges 1 and 2 as against the appellant A1 by letting in acceptable, reliable and

satisfactory evidence. The totality of the evidence adduced by the prosecution as against the appellant can be brought under the following heads:

The judicial confession given by A1 before P.W. 11 under Ex. P22.

The extra judicial confession given by A1 before P.W. 4 under Ex. P3.

The recovery of M.Os. I and 2 from P.Ws. 6 and 7 in pursuance of the admissible portion of the confession, Ex. P5.

The recovery of M.O. 6 series, M.0.7A and M.O. 7B from P.W. 5.

The report of the Scientific Assistant, Gr. I, and Foot Print Expert, Tamil Nadu Forensic Science Laboratory, Madras (marked as Ex. P 32),

saying that the footprints taken from the scene of occurrence tallied with the right footprints of A1, viz., M.Os. 21 and 22, taken in the Court of the

Judicial Second Class Magistrate, Namakkal.

First of all, we will deal with the extra judicial confession made by the appellant to P.W. 4. It is the evidence of P.W. 4 that A1 came to his

house at about 6. 30 a.m. on 9th March, 1978 and gave an extrajudicial confession, which be recorded under Ex. P3, that he prepared his report,

Ex. P4, that he took A1 along with Exs. P3 and P4 to the police station and produced her before P.W. 16. This extra judicial confession said to

have been recorded by P.W. 4 from the accused was after the investigation had begun in this case. The question is, whether such a confession is

admissible and can be relied upon. A similar question arose before a Bench of this Court in Lakshmanan, In re 1971 L.W. (Crl.) 9 : 1971 M.L.J.

Crl. 178. It was held in that case that there was no real legal bar to the extra-judicial confessional statement made by the accused to the Village

Munsif during the investigation, being admitted in evidence. The Bench observed:

Having regard to the practice which is embodied in R. 72 of the Criminal Rules of Practice and the likelihood of the misuse of such extra judicial

confessions in actual practice, if admitted, it is not safe to rely on such extra judicial confession.

Another Division Bench of this Court in R.D. Bagavandas alias Bagavandas and others, In re 1979 L.W. Crl. 4 (S.N.), again reiterated the

principles following the dictum laid down in Lakshmanan, In re 1971 L.W. (Crl.) 9 : 1971 M.L.J. Crl. 178, and held that such a confession is

admissible in evidence, but it would be a very weak piece of evidence even against the accused.

Another Bench of this Court in an unreported case Sankayyan alias Sengodan In re Crl. App. No. 640 of 1980 Judgment dated 17th March,

1982, following the earlier two cases, took the view that:

On a careful examination of R. 72 of the Criminal Rules of Practice, it is not possible to state a confessional statement recorded by a Village

Magistrate after investigation has begun 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.

We would like to add that S. 26 or the Indian Evidence Act reads that no confession made by any person white he is in the custody of a police

officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. The Explanation to that Section is that

the expression ""Magistrate"" does not include the head of a village discharging magisterial functions in the presidency of Fort St. George or

elsewhere, unless such headman is a Magistrate, exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882. The Village

Headman is not exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882. A careful reading of R. 72 of the Criminal

Rules of Practice in conjunction with S. 26 of the Indian Evidence Act would show that the confession made by the accused before he comes into

the custody of a police officer, if made to a Village Munsif, is admissible, but that piece of evidence is a very weak piece of evidence as against the

accused, and the weight to be attached to such a confession depends on the facts of each and every case. In the present case, P.W. 4 does not

speak about the extra judicial confession said to have been made by A1 to him, but only Ex. P3 is marked, which document cams into existence

after the investigation in this case had begun. Under these circumstances, even though Ex. P1 could be admitted in evidence, that piece of evidence

is a very weak piece of evidence as against A1, and, therefore, we are not very much relying on the same.

Now we shall come to the judicial confession said to have been made by A1 before P.W. 11 under Ex. P22. Exts.P20 and P21 are the

preliminary and final warnings given by the Magistrate to A1 as required by the statute. Ex. P23 is the statutory certificate appended to Ex. P22.

Of course, A1 has retracted from her judicial confession. It is settled law that a conviction can be based on the strength of a retracted judicial

confession provided that retracted confession receives corroboration in its general particulars. This extra judicial confession, in our view, is not only

corroborated by the oral testimony of the witnesses, P.Ws.5, 6 and 7, but also by the recovery of M.Os.1 and 2 and M.Os.6, 7A and 7B. The

recovery of M.O. 2 from P.W. 7 and the recovery of a sum of Rs. 600. (M.O.6 series) from P.W. 5 are also factors proving the judicial

confession. Thus, we find that the judicial confession, now retracted, receives corroboration from independent sources of evidence, both oral and

documentary, in its general particulars, and as such we can place reliance on this judicial confession, Ex P22. In Ex. P22, A1 has implicated herself

with the offence in question, stating that she had cut the neck of the deceased in order to remove the chain which she could not snatch immediately

after the occurrence. She also gives the circumstances under which she resorted to putting an end to the life of the deceased.

The next piece of evidence is the recovery of M.Os.1 and 2. In pursuance of Ex. P5, P.W16 seized M.O. 1 from P.W. 6, the Manager of the

Indian Bank on 9.3.1978. It is in the evidence of P.W. 16 that after the recovery he handed over M.O.I to P.W. 6 for safe custody, with a

requisition Ex. P11 directing P.W. 6 to send M.O.1 and the connected records to the Court.

M.O.2 was recovered from P.W. 7 on 9.3.1978. It is in the evidence of P.W. 7 that M.O.2 was pledged with him for a sum of Rs. 200 by

A1, and that 11 days thereafter, P.W. 16 came to his shop with A1, and that he handed over M.O.2 to the police. P.W. 5 has deposed that A1

and her husband (acquitted accused) came to his shop and handed over M.O.6 series, M.O. 7-A and M.O. 7-B and that 9 days thereafter, i.e.,

on 9.3.1978, he handed over these exhibits to P.W. 16. M.Os. 1 and 2 are identified by P.Ws. 1 and 2 as jewels belonging to the deceased and

as jewels which the deceased was wearing in her neck all through. It is not the case of A1 that these two M.Os. 1 belonged to her. P.W. 6, the

Bank Manager, states that A1 came along with A2 and gave an application for loan pledging M.O. 1 with him and that he gave Rs. 800. P.W. 6

has no motive as against A1. Thus, the evidence let in by the prosecution as against A1 is very clinching and satisfactory in proving the offence

against A1.

There is yet another piece of evidence, viz., the foot prints. As per the report, Ex. P32, the foot prints found in M.O.21 series and M.O. 22

which were taken in Court before the Magistrate, tallied with the foot impression found in M.O. 20. The report, Ex. P32, incriminates A1 with the

offence in question proving that the foot print of the assailant found inside the house is the foot print of A1. Thus, in the present case, we have got

overwhelming evidence to prove the guilt of A1 beyond all reasonable doubt. Consequently, we are in full agreement with the finding of the learned

trial Judge.

In the result, the convictions under both the charges and the sentences imposed therefore are confirmed, and the appeal is dismissed.