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2005 DIGILAW 864 (MAD)

Madammal v. State

2005-06-15

M.KARPAGAVINAYAGAM, S.SARDAR ZACKRIA HUSSAIN

body2005
Judgment :- (Criminal Appeal against the conviction and sentence dated 9.11.1998 passed in S.C.No.21 of 1998 on the file of the III Additional District and Sessions Judge, Dharmapuri District at Krishnagiri.) M.Karpagavinayagam, J. This appeal has been filed challenging the conviction and sentence imposed by the learned III Additional District and Sessions Judge, Dharmapuri District at Krishnagiri. 2. Madammal, the appellant was convicted for the offence under Section 302 I.P.C. for having murdered one Devika, who was the paramour of her husband. Challenging the same, this appeal has been filed. 3. The short facts leading to the conviction are summarised as follows: (a) The accused Madammal is the wife of one Krishnan. The deceased Devika is the concubine kept by the said Krishnan. The houses of both these people are situated on the same road in the adjacent place. (b) When the said Krishnan developed illicit intimacy with Devika, who was a widow, this was objected to by the accused. P.W.1, the mother of the deceased also objected for the said Krishan visiting the house of Devika to have affairs. (c) One day prior to the date of occurrence, Krishan was reprimanded by P.W.1, the mother of Devika who warned him not to come again. The said Krishnan, on getting annoyed over the same, and thinking that his wife played mischief went to his house and scolded her, the accused for having created trouble in his way of having affairs with the deceased. (d) The fateful occurrence took place on 2.11.1996 at about 12 O'clock. The accused came to the house of the deceased. She went inside the house and at that time, Devika, the deceased, was inside the kitchen, cooking food. The accused scolded her as to why she continued to keep her husband and was spoiling her life. Then wordy quarrel ensued between the accused and the deceased. Having felt infuriated, the accused took out the Koduval-M.O.1, kept concealed in her saree and gave several cuts on the head, neck and other parts of the body of the deceased. Devika, the deceased fell down and died at the spot. (e) On seeing this horrible sight, P.W.1, the mother and other relatives of the deceased made a hue and cry. The accused ran away from the scene along with the weapon M.O.1. Devika, the deceased fell down and died at the spot. (e) On seeing this horrible sight, P.W.1, the mother and other relatives of the deceased made a hue and cry. The accused ran away from the scene along with the weapon M.O.1. After throwing out the weapon in the nearby bush, the accused came to Kamalapuram and met P.W.6, the Village Assistant(Uthari) and informed about her act of having committed murder of Devika. (f) P.W.6 took the deceased to P.W.7, the Village Administrative Officer. The Village Administrative Officer recorded her statement, which was marked as Ex.P1 and prepared the report Ex.P2. (g) Thereafter, all of them went to the police station and the accused was handed over by P.W.7 to P.W.13, the Inspector of Police. P.W.13, after arresting her, recorded her confession and in pursuance of the same, the weapon M.O.1-Koduval was recovered from the bush nearby the scene of occurrence. (h) Next day at about 6.30 a.m., P.W.13 and other witnesses went to the scene of occurrence. P.W.13 prepared observation mahazar and rough sketch. He also conducted inquest by examining P.W.1 to P.W.6 and others. He recovered bloodstained earth and sample earth. Thereafter, the body was sent for postmortem. (i) P.W.9, the Doctor, who conducted the postmortem, issued the post-mortem certificate-Ex.P7. The opinion in Ex.P7 post-mortem certificate is to the effect that the deceased would appear to have died of shock and haemorrhage due to head injury and would have died at about 20 to 24 hours prior to autopsy. (j) In the meantime, the accused was sent to the Court for judicial remand and the material objects were sent for chemical analysis through the Court. (k) After finishing the investigation, P.W.13, Inspector of Police filed the charge-sheet against the accused for the offence under Section 302 I.P.C. (l) During the course of trial, P.W.1 to P.W.13 were examined, Exs.P1 to P22 were filed and M.O.1 to M.O.9 were marked. (m) The case of the defence, when the accused was questioned under Section 313 Cr.P.C., was one of total denial she stated that when she was in her house, the police came and took her to the police station and foisted a false case against her. (m) The case of the defence, when the accused was questioned under Section 313 Cr.P.C., was one of total denial she stated that when she was in her house, the police came and took her to the police station and foisted a false case against her. (n) However, rejecting the defence case, the trial Court, on placing reliance on the materials brought on record by the prosecution, found the accused guilty of the offence under Section 302 I.P.C. and convicted her therefore. This judgment of conviction and sentence is the subject matter before this Court. 5. Mr. Raja Kalifulla learned counsel for the appellant would take us through the entire evidence and contend that the evidence available on record would not be sufficient to fasten the criminal liability for the offence of murder on the accused, especially when the evidence available on record would suffer from various infirmities. He has cited several authorities to substantiate his plea. To support his argument, the learned counsel has placed reliance upon the judgments in Ganesan vs. State rep.by Inspector of Police,Harur Police Station( 2002 (2) CTC 766 ), 1.Murugan, 2.Rasan alias Idumban and 3.Sarasal vs. Satate, rep. by Inspector of Police (2000(2) LW (Crl.)725), Arumugam vs. The State by Inspector of Police, Namakkal Police Station(2004 (2) LW (Crl.) 830) and L.Ramachandran Vs. The State, rep.by Inspector of Police (Central Crime Station), Trichy(2001 (2) LW (Crl) 513). 6. On the other hand, in support of the conviction imposed by the trial Court, the learned Additional Public Prosecutor, on the strength of the decisions rendered in Chinnasamy alias Chinnapaiyan, vs. The State, rep.by Inspector of Police, Poochamballi, NorthArcot Ambedkar District(2004 MLJ (Crl) 935) and Sakthivel vs.State by Inspector of Police, Eriodu Police Station, Dindigul, Dindugul District (2003) MLJ (Crl) 752), would submit that the evidence available on record, which is cogent and convincing, would be sufficient to hold the accused guilty of the offence of murder and as such, the judgment of conviction is justified. 7. We have given our anxious consideration to the rival contentions urged by the counsel for both the parties and also gone through the records. 8. The prosecution has produced P.W.1 to P.W.3 and P.W.5, the eye witnesses, who are the relatives of the deceased, apart from the other eyewitnesses. 7. We have given our anxious consideration to the rival contentions urged by the counsel for both the parties and also gone through the records. 8. The prosecution has produced P.W.1 to P.W.3 and P.W.5, the eye witnesses, who are the relatives of the deceased, apart from the other eyewitnesses. The prosecution has projected the extra-judicial confession-Ex.P1 given by the accused to P.W.7 V.A.O. However, during the course of trial, P.W.2 to P.W.6, the eye-witnesses turned hostile and consequently, the only evidence available on record is the evidence of P.W.1, the eyewitness and Ex.P1 the extra- judicial confession, as referred to by P.W.7 Village Administrative Officer. 9. It is settled law that the extra-judicial confession, which was recorded by a person who is competent to record it, is admissible, provided it must have been done prior to commencement of the investigation. 10. There is no dispute in the fact that as per the evidence of P.W.7 V.A.O. and P.W.13 Inspector of Police, the extra-judicial confession was made by the accused at about 3.00 p.m. on 2.11.1996 to P.W.7, which was reduced into writing as Ex.P1. Ex.P2 is the report prepared by P.W.7 V.A.O. which would indicate that it was prepared on the basis of the extra-judicial confession-Ex.P1 made by the accused. So, there is no difficulty in holding that this extra-judicial confession is not only admissible, but also has some probative value. 11. When once the extra-judicial confession is taken to be a reliable evidence, there is no difficulty in placing reliance on the extra-judicial confession alone to base the conviction. But, in this case, there is not only the extra-judicial confession available on record, but also the evidence of eyewitness P.W.1. In such circumstance, we have to see whether P.W.1 is a reliable witness and her reliability could be acted upon by virtue of corroboration through the other available evidence, namely Ex.P1. 12. As held by this Court in "1.Murugan, 2.Rasan alias Idumban and 3.Sarasal vs. Satate, rep. by Inspector of Police" 2000 (2) Law Weekly 725, there are three classes of witnesses, namely (a) wholly reliable (b) wholly unreliable and (c) neither wholly reliable nor wholly unreliable. When the Court finds that the witness is wholly reliable, the question of corroboration does not arise. If the witness is wholly unreliable, availability of the corroboration evidence would not be of any help to the prosecution. When the Court finds that the witness is wholly reliable, the question of corroboration does not arise. If the witness is wholly unreliable, availability of the corroboration evidence would not be of any help to the prosecution. The question of corroboration arises only in cases of witnesses of the last category. 13. So, the observation made by this Court in paragraph 13 of the above said decision would indicate that if P.W.1 is wholly reliable, it is not necessary to consider the corroboration. If it is wholly unreliable, the case could be easily rejected discarding the other corroboration. On the other hand, if the Court finds that the witness is neither wholly reliable nor wholly unreliable, then it has to consider whether P.W.1's evidence could be accepted in the light of the adequate and sufficient materials in the form of corroboration. 14. Bearing this principle in mind, if we look at the evidence of P.W.1, we are of the view that her evidence is not in consonance with that of Ex.P1 extra-judicial confession. On the other hand, the narration of the event that has been given in the evidence of P.W.1 is completely different from the contents of Ex.P1 extra-judicial confession. 15. According to P.W.1, she was sitting on the pial of the house and at that time, the accused came wearing red saree, concealing with a Koduval in the saree and went inside the house and immediately, began to cut on the head, neck and other parts of the deceased. When P.W.1 saw this, she cried. But, the reading of Ex.P1 extra-judicial confession would indicate that the accused came with Koduval and there was a wordy quarrel between the deceased and the accused and when the accused asked the deceased as to why she continued to have sexual affairs with her husband, the deceased challenged her that she would continue to have such affairs with her husband and if the accused wanted, she could commit suicide along with her children and when this was objected to by the accused, the deceased immediately took out the 'soorikathi', which was found nearby and attempted to attack the accused, who in turn took out the Koduval kept concealed in her saree and inflicted injuries on the deceased. Unfortunately, this is not the case of the prosecution as projected by P.W.1. 16. Another contradiction could be noticed in this case. Unfortunately, this is not the case of the prosecution as projected by P.W.1. 16. Another contradiction could be noticed in this case. According to P.W.1, immediately after the occurrence was over, P.W.6, the Village Assistant (Uthari) and one Samundy (not examined), came to the scene of occurrence and saw the dead body in the house and then the Village Assistant, P.W.6, took the accused, who was present then in the house and informed P.W.1 that he would make arrangements for handing over of the accused to the Village Administrative Officer. But if we look into Ex.P1, it is clear that immediately after the occurrence was over, the accused escaped from the scene and threw the Koduval in the nearby bush and had concealed herself in the whole night and next day, and thereupon, she went to Kamalapuram and gave the information about the murder to P.W.6, who in turn took her to P.W.7 and thereafter, P.W.7 handed over to the police. Thus, the different version has been projected by the prosecution through Ex.P1. So, we are at a loss to understand as to how we could believe the evidence of P.W.1, which is not supported by Ex.P1, which is not in consonance with the evidence of P.W.1. 17. Further, it is noticed that the statement made by P.W.1 during the course of cross-examination would in our view, cut at the root of the case of the prosecution. According to P.W.1, on the same day evening, the police came and took her and other witnesses. P.W.13 Inspector of Police would assert that the police went to the village next day and conducted the inquest at 6.45 a.m., and only during the course of inquest, P.W.1 and others were examined. On the other hand, as indicated above, P.W.1 was taken to the police station on the same evening and she was interrogated. 18. It is the case of the prosecution that there are four eyewitnesses. Immediately, when the deceased made a hue and cry, the witnesses came rushing to the scene and saw the accused running away from the place. If those eyewitnesses were present at the scene at the time of occurrence, there is no reason as to why no attempt has been made either to report to the Village Administrative Officer or to the police. 19. If those eyewitnesses were present at the scene at the time of occurrence, there is no reason as to why no attempt has been made either to report to the Village Administrative Officer or to the police. 19. As noted above, the police came in the evening itself and took P.W.1 to the police station. If that was so, there was no necessity for P.W.6, the Village Assistant to tell P.W.1 that he would make arrangements for handing over of the accused to the Village Administrative Officer. So, a perusal of the entire materials would indicate that the police initially, must have felt diffident in getting the eye-witnesses and that was why the arrangements had been made to get the extra-judicial confession from the accused through P.W.7, VAO. 20. Admittedly, P.W.7 is not the concerned Village Administrative Officer on that day. Since the police was not able to get the concerned Village Administrative Officer-P.W.8, it was arranged to get the extra judicial confession of the accused by P.W.7, who is a Village Administrative Officer of different jurisdiction. 21. According to P.W.7, on that day, P.W.8 was on leave and he was in charge of the village concerned. Of course, this has been supported by P.W.8 also. Even according to P.W.8, he was on leave on that day. When all the witnesses, viz., P.W.2 to P.W.4, who are the close relatives of the deceased turned hostile, we feel that it is very difficult for us to believe P.W.1, who is none else than the mother of the deceased to speak about the occurrence, especially when her evidence, as indicated above, would completely contradict Ex.P1 extra-judicial confession, which is the earliest document in this case. 22. In such circumstances, we are of the view that the prosecution has failed to establish its case beyond reasonable doubt and consequently, the appellant is entitled to be acquitted of the charge. 23. Thus, the appeal is allowed. The conviction and sentence imposed on the appellant/accused by the trial Court are set aside. The fine amount, if paid, shall be refunded to the accused. The bail bond, if any, shall stand cancelled.