MADESH Vs. STATE

JUDGEMENT

(1.) THE sole accused-Madesh has come forward with this appeal challenging the judgment of the learned Principal Sessions Judge, Salem, dated 01.02.2005 made in S.C.No.269 of 2004 convicting the appellant for the offence under Section 302 I.P.C. and sentencing him to life imprisonment and also to pay a fine of Rs.1,000/-, in default, to undergo six months rigorous imprisonment and also convicting him for the offence under Section 201 IPC. and sentencing him to three years rigorous imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo six months rigorous imprisonment. THE sentences are ordered to run concurrently.

(2.) THE prosecution version in a nutshell is as follows:-

(3.) MRS.Jayasri Baskar, learned counsel appearing for the appellant, contended vehemently that the prosecution has miserably failed to prove its case by adducing clear and convincing evidence. It is contended that the entire prosecution case rests on the circumstantial evidence and the prosecution has not put forward any clinching circumstances implicating the accused with the crime and there are several missing links in the chain of circumstances put forward by the prosecution. It is submitted that the last seen theory was spoken by P.W.1, the wife of the deceased, to the effect that she along with her husband, the deceased, went to the factory of P.W.4 for their work and she alone returned back to her house, as the deceased informed her that he would return after finishing his work. It is submitted that strangely, P.W.1, the wife of the deceased, kept quiet for more than two weeks and the report, Ex.P-1, was given only on 12.01.2003 at 10.00 p.m. It is contended that there is absolutely no materials available on record to show that the deceased was lastly seen with the accused. It is further contended that the only piece of circumstance relied on by the prosecution is the alleged extra-judicial confession, Ex.P-6, said to have been given by the accused to P.W.7, the Village Administrative Officer. It is contended that it is improbable for the accused to repose confidence on P.W.7, the Village Administrative Officer, to give such an extra-judicial confession, Ex.P-6, as he was not having any close acquaintance with P.W.7. The learned counsel pointed out that P.W.1 stated even in the Chief-examination that she gave the report on 12.01.2003 and on the next day, i.e., on 13.01.2003 afternoon, the police along with the Tahsildar, P.W.11 and the Village Administrative Officer, P.W.7, came to the place, where the skull was found and at that time, the police also brought the accused to the spot. Therefore, it is contended that the version of P.W.7, the Village Administrative Officer, to the effect that the accused appeared before him on 14.01.2003 at 8.00 a.m. and thereafter, he recorded the extra-judicial confession, Ex.P-6, and produced the accused along with the extra-judicial confession, Ex.P-6, to the police is proved to be false. It is submitted that as per the version of P.W.1, the accused was in the custody of the police even before the extra-judicial confession, Ex.P-6, is said to have been recorded by P.W.7, the Village Administrative Officer. It is also contended that excluding the extra-judicial confession, Ex.P-6, there is no other incriminating circumstance available on record to implicate the accused with the crime. The learned counsel would contend that the skull or the bones are not proved to be that of the deceased. The learned counsel would also contend that P.W.1, has not stated, in the statement recorded under Section 164 Cr.P.C., that after seeing the clothes, viz., the lungi, the underwear and the shirt, she has identified the body of the deceased as that of her husband. It is pointed out that even in the report, Ex.P-1, P.W.1 has not stated that after seeing the clothes, viz., lungi and underwear, she has confirmed that the body was that of her husband.