NAGARAJAN Vs. STATE

JUDGEMENT

(1.) THIS appeal is against the conviction and sentence imposed by the learned Sessions Judge, Thanjavur in S. C. No. 84 of 1986 for the offence under Sec. 304, Part II, Indian Penal Code sentencing the appellants to undergo rigorous imprisonment for seven years to the first appellant and five years each to the appellants 2 and 3.

(2.) THE prosecution case is as follows: THE appellants 2 and 3 are the parents of the first appellant. THE deceased Kodimalar, sister of p. W. 1. and daughter of P. W. 2. , was married to the first appellant about five years prior to her death. At the time of the marriage the deceased Kodimalar was given some jewels and vessels and the first accused was given a Rallys cycle as marriage gift. About two years prior to this occurrence, the younger sister of Kodimalar was married to P. W. 4 and apart from the jewels to his wife, he was presented with a motorcycle. THE first accused, who was given only a cycle at the time of his marriage, was insisting his wife Kodimalar to get a motor-cycle for him also as was presented to P. W. 4. Quarrel arose between the husband and wife and the deceased came to her parents'house about 10 days prior to this occurrence on account of the misunderstanding between her and the first accused and on 17. 9. 1985, the second accused himself came to take back his daughter-in-law. P. W. 1, his mother P. W. 2 and their first son-in-law p. W. 3 advised the deceased Kodimalar to adjust herself with her husband and the second accused took her to his house. On 19. 9. 1985 at about 9. 00. p. m. P. Ws. 7 and 8, natives of Vaduvoor Pudukkottai, had been to a nearby village to purchase the seedlings for their lands and while they were passing through the occurrence village close to the house of the accused, they heard the voice of the deceased saying not to cut her. P. W. 7 and P. W. 8 paused for a while and saw these three accused and the deceased in their house but as they felt that it was a domestic quarrel in the family they did not interfere and proceeded on their way. Next day morning P. W. 3. , the first son-in-law to the family of P. Ws. 1 and 2 residing in Pudukkottai Village; 2 kilometres away from the occurrence village came to know from P. W. 5 that Kodimalar died. Immediately, he sent a message through P. W. 6 and another to the family of P. Ws. 1 and 2, who immediately rushed to the house of these accused. THEy found the body of the deceased kodimalar laid on the varandah and none of these accused were present in the house. THEy also found an injury on the head of the deceased and therefore suspecting foul-play in the death of Kodimalar P. W. 1 went to Vadalur Police station and launched the complaint Ex. P-1 to P. W. 12, Sub-Inspector of Police, who registered the same in Crime No. 193 of 1985 and prepared the F. I. R. which was sent to the Court stating suspicious death. P. W. 18, the Inspector of police, who received the F. I. R. took up the investigation and proceeded to the occurrence village Kattakudi. He inspected the place of occurrence and prepared the observation mahazar Ex. P-6 in the presence of the Village Officer P. W. 16 and prepared plan Ex. P-17. In the presence of the Panchayatars, he conducted the inquest and prepared the inquest report Ex. P-18. He arranged to send the body of the deceased for postmortem and seized the broomstick M. O. 5 under ex. P-7 mahazar. He also seized the saree and jacket M. O. 6 and 7 used by the deceased, under Ex. P-8 mahazar, P. W. 14, the Medical Officer attached to the government Hospital, Mannarkudi, conducted the post-mortem along with two other doctors, on 21. 9. 1985 and they found a lacerated wound of 6 cm x 2 cm upto bone depth, on the back of the head 1'cm above the occipital protuberance and correspondingly extravasation of blood beneath the scalp on the occipital region with irregual'v'shaped fracture on the occipital bone. THE intestine, liver and kidney were sent for chemical analysis and Ex. P.-4 report of the Forensic Laboratory proved the presence of Phosphomidon, which is a poisonous substance used as insecticide, in these organs. P. W. 14 and the other doctors were of the opinion that the death was only due to the injury on the head and the presence of the poisonous substance was only an associate factor though the same was not the cause for her death. Ex. P-5 is the post-mortem certificate prepared by the doctors. P. W. 18, the Inspector of police altered the first information report to one under Sec. 302, Indian Penal code and prepared the express first information report. On 17. 10. 1985, he arrested the third accused and recorded the statement which led to the recovery of M. O. 8 in the presence of P. W. 16 and another under the mahazar Ex. P.-10. THE admissible portion of her statement is Ex. P-9. THE other two appellants surrendered before the Court. P. W. 19 the Deputy Superintendent of Police recorded the statement of some of the witnesses on 21. 9. 1985. When the accused were questioned with regard to the incriminating circumstances found against them in the evidence of the witnesses, they denied their complicity in the crime. No witness was examined on their side.

(3.) P. W. 10 is a resident of some other village known as neivasal and according to him on 20. 9. 1985 morning when he met the first appellant in the Neivasal Bus Stand, as he was in a mood of despair he questioned him and the first appellant told him that there was a quarrel in his house on the previous night in which his wife attempted to beat his father with a broomstick, which infuriated him and he cut her with aruval causing her death and therefore he was proceeding to consult an advocate in Thanjavur. On the basis of this extra-judicial confession revealed by P. W. 10, the prosecution has directed the investigation seized the broom stick M. O. 5 under Ex. P-7 mahazar. As held by the Courts that extrajudicial confession is a very weak piece of evidence and that itself cannot be a basis for conviction unless it is sufficiently corroborated by the other evidence, in material particulars. On a careful scrutiny of the evidence of P. W. 10, I find that his evidence does not come unscathed and his evidence appears to be more artificial in nature. He is not related to the accused or closely associated with him except his version that the first appellant came to his house once to purchase cattle. He also says that prior to this incident, the first appellant did not reveal anything about his family affairs. It must be borne in mind that the offence alleged to have been committed by the first appellant is not a minor one to treat it leniently but a grave offence of murder from which the first appellant also was trying to extricate. When such was the circumstance, we have to think whether it would be possible for the first appellant to divulge a secret of his implication in the grave offence of murder to a person with whom he was not closely associated. It is not the case of the prosecution that the first appellant sought for any aid from P. W. 10 like protection, shelter etc. Therefore, even if P. W. 10 had the occasion of meeting the first appellant in the bus stand, the first appellant would not have so foolishly confessed to him that he had murdered his wife on the previous night and he was on his way to meet his advocate to escape from the prosecution. Further P. W. 10 after hearing this news from the first appellant, did not respond in any manner favourably. After hearing that from him, he casually walked away from there. Therefore, the confession of the first appellant has not served any purpose to him. This is a suspicious circumstances portraying the improbability of this extra-judicial confession. There is one other important circumstance connected to this and that is P. W. 10 himself volunteered before P. W. 19 the Deputy Superintendent of Police to give a statement before him in respect of the extra-judicial confession, on 21. 9. 1985. But in Sec. 161, Code of Criminal Procedure statement of P. W. 10, he has stated that on 20. 9. 1985 itself he had been to the occurrence village. On 20. 9. 1985, the police officers had flooded the village with the examination of the witnesses and seizure of the articles. Therefore, when P. W. 10 had known about the commission of the offence by the first appellant from his extrajudicial confession, he could have revealed this fact to the Inspector of Police on 20. 9. 1985 itself when he had been to the occurrence village but without divulging to anyone, only on 21. 9. 1985, this witness says that he informed the deputy Superintendent of Police in the village. This creates a serious suspicion as to the truth of his version because when he was in the occurrence village on 20. 9. 1985 itself, nothing prevented him from divulging the extra-judicial confession on that day itself when he himself had voluntarily chosen to give a statement to the police on the next day. Another aspect connected with this is that even though for the first time the investigating agency came to know about the extra-judicial confession through P. W. 10 on 21. 9. 1985 and the commission of the offence by the first appellant by cutting his wife due to the sudden provocation on account of his wife's attempting to beat her father-in-law with a broomstick, the Inspector of Police had seized the broomstick M. O. 5 under Ex. P-7 mahazar even on 20. 9. 1985 itself. The Inspector of Police, P. W. 18 has not stated what made him to seize this broomstick even on 20. 9. 1985 when there was nothing incriminating with the broomstick M. O. 5 on 20. 9. 1985. Therefore, all these circumstances expose that this evidence of p. W. 10 is a make-belief affair, which cannot be given weight to, when especially the conduct of P. W. 10 is uninspiring to attach any credence to this testimony. Therefore, the evidence of P. W. 10 is worth for nothing and has to be totally discarded.