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2006 DIGILAW 563 (MAD)

Sivakumar v. State by Inspector of Police

2006-03-01

A.R.RAMALINGAM, M.KARPAGAVINAYAGAM

body2006
Judgment :- (Criminal Appeal against the Judgment and conviction dated 1.3.2002 made in S.C.No.48 of 2001 on the file of the Additional Sessions Judge, Vellore District.) AR. Ramalingam, J. Appellant/A1 viz., Sivakumar has been convicted for the offence under section 302 IPC and sentenced to undergo life imprisonment and pay fine of Rs.5000/= by the Additional Sessions Judge, Vellore in S.C.No.48 of 2001. The said conviction and sentence is the subject matter of this appeal. 2. Brief facts leading to the conviction can be narrated as follows:- The appellant Sivakumar was having illicit intimacy with one Mala figuring as A2 (since acquitted) and they were residing in one and the same house. Whileso, the villagers as well as PW4 Mani brother of the appellant thought fit that the appellant Sivakumar can be married to the deceased Rajeswari and their marriage was celebrated on 10.2.2000. But, even after the marriage between the appellant and the deceased Rajeswari, the illicit intimacy between the appellant and Mala continued. The appellant also had gone to the extent of residing in the house of Mala along with the newly married wife Rajeswari for some time and thereafter misunderstanding arose between the appellant and Rajeswari and after panchayat and mediation, the deceased Rajeswari was residing at the house of her father PW12 viz., Selvaraj. However, the deceased Rajeswari and her husband the appellant were using to have their sleep in the night hours at the occurrence place viz., the incompleted house put up by the appellant without roof. 3. Whileso, on the night of 17.4.2000, as usual, both appellant and Rajewswari were sleeping in that incompleted house. At about 1 or 2 a.m. on 18.4.2000, the appellant with the active assistance and help of his concubine Mala, murdered Rajeswari by strangulating her by tying Thali tightly around her neck thereby causing her death. Thereafter, he managed to make it appear as if the said Rajeswari died due to collapse of the brick wall of the incompleted house and in that incident, he also sustained injuries. On the next morning, it came to the knowledge of the neighbours and the matter was informed to PW1 Munusamy the Village Administrative Officer. The Village Administrative Officer then came to the spot and after seeing the body of Rajeswari gave complaint marked as Ex.P1 to the police along with the accused. On the next morning, it came to the knowledge of the neighbours and the matter was informed to PW1 Munusamy the Village Administrative Officer. The Village Administrative Officer then came to the spot and after seeing the body of Rajeswari gave complaint marked as Ex.P1 to the police along with the accused. The Sub Inspector of Police attached to Bagayam Police Station received the complaint and registered a case in Crime No.269 of 2000 under section 174 Cr.P.C., prepared FIR and reported to the higher officials and also to the Deputy Collector PW10 viz., Pragalya. Then PW19 Inspector of Police, after receiving the FIR, proceeded to the occurrence place with his team and made arrangements for taking photographs and also prepared observation mahazar and rough sketch in the presence of witnesses and then recovered M.O.1 mat (Koraipai). In the meanwhile, the said Deputy Collector came to the spot and conducted inquest upon the dead body and also examined witnesses and furnished report with instructions that investigation can be proceeded by the police for finding out the truth in the line of suspected murder. Thereupon, the body was sent for post mortem. Subsequently, PW6 viz., Valarmathi conducted post mortem on 19.4.2000 at about 12.45 am and furnished post mortem report marked as Ex.P9 with opinion that the deceased should have died due to Asphyxia 36 hours before the time of post mortem and particularly the said Asphyxia would have been caused by making use of Thali rope. In the meanwhile, PW7 Doctor Beemaraj examined the appellant Sivakumar who came for treatment along with police memo and found two external injuries which were simple in nature and furnished Accident Register copy marked as Ex.P11 stating that the said accused had explained the injuries as if they were due to fall of walls upon him to the said Doctor. Thereafter, PW19 continued his investigation and in the meanwhile on 5.5.2000, the appellant Sivakumar approached PW18 viz., Ravi the driver cum Nattanmai and gave oral extra judicial confession that because of the reason that the post mortem report discloses as if his wife died due to strangulation, he is prepared to confess that it is he who murdered his wife Rajeswari by strangulation with the help of Thali rope and pleaded for protection. Consequently, PW18 entrusted the appellant Sivakumar on the same day at about 12.00 noon to PW1 Munusamy the Village Administrative Officer and consequently, the said PW1 Village Administrative Officer examined the appellant Sivakumar and recorded his confessional statement marked as Ex.p2 in the presence of the said Ravi and his menial Krishnan and thereafter entrusted the appellant Sivakumar in the police station along with the confessional statement recorded by him. Thereafter, the Inspector of Police arrested the appellant Sivakumar and he also recorded the confessional statement given by the appellant Sivakumar and thereafter, examined PW11 Selvamani, PW12 Manickam and PW13 Rajavelu on 6.5.2000 and came to know that the appellant Sivakumar alone murdered his wife Rajeswari by using Thali rope and strangulation and finally he completed the investigation and filed charge sheet against the appellant Sivakumar as well as his concubine Mala under sections 302 and 302 read with 34 IPC. 4. The Trial Court, after examining P.Ws.1 to 19 besides marking Exs.P1 to P25 and M.Os.1 to 10 and after considering the statement under section 313 Cr.P.C. given by the appellant Sivakumar and Mala denying their complicity in the occurrence totally, came to the conclusion and found that the appellant Sivakumar alone is liable to be convicted under section 302 IPC and accordingly convicted him and sentenced him to undergo life imprisonment with fine of Rs.5000/= after acquitting the said Mala. Aggrieved against such conviction and sentence only the appellant Sivakumar has preferred this appeal. 5. Aggrieved against such conviction and sentence only the appellant Sivakumar has preferred this appeal. 5. After taking us through the entire evidence and materials available in this case, the learned counsel appearing for the appellant submitted that Ex.P2 marked as extra judicial confession given on 5.5.2000 recorded by PW1 Munusamy is not at all reliable inasmuch as the occurrence happened on 18.4.2000 i.e., nearly two weeks earlier than Ex.P2 and that the appellant Sivakumar has not absconded and particularly he has given statement before the Deputy Collector PW10 on 19.4.2000 itself that his wife died only because of the collapse of the wall besides injuries sustained by him and that the oral extra judicial confession given to PW18 Ravi preceding Ex.P2 also cannot be believed inasmuch as the same is a make belief one to suit the convenience of the investigating officer and that neither Ex.P2 nor the confessional statement recorded by the investigation officer on 5.5.2000 discloses about the contents of the post mortem report whereas PW18 viz., Ravi has gone to the extent of saying as if the appellant Sivakumar approached him at about 11.00 am on 5.5.2000 saying that he has to confess his guilt of murder since the post mortem report shows strangulation by Thali rope and that there is no reason as to why the investigation officer has not chosen to examine the named Councilors in the confessional statement recorded by him marked as Ex.P20 such as Ramaraj and Nataraj to whom the appellant Sivakumar has already confessed that it is he who murdered his wife and pleaded for protection while those two Councilors came to the hospital and enquired him while he was taking treatment and so there is no necessity for the appellant Sivakumar to give extra judicial confession again to PW18 or PW1 on 5.5.2000 and that therefore, examination of P.Ws.11, 12 and 13 on 6.5.2000 only as if they were the persons who happened to see the appellant Sivakumar and his concubine Mala in the midnight before the incompleted house of the appellant on 17.4.2000 while they were returning from cinema theatre and likewise, the extra judicial confession alleged to have been given to PW1 and another confession recorded by the investigation officer PW19 in the police station do not appear to be a genuine and reliable one and instead they should have been created to suit the convenience of the investigating agency to fix the responsibility upon the appellant Sivakumar and his concubine Mala and thereby in all there are no sufficient and acceptable materials for the prosecution to convict the appellant and thereby he is liable to be acquitted. On these aspects, we have heard the Additional Public Prosecutor. 6. The above submissions were deeply considered by us and on going through the evidence and materials available, we are also to point out the following material aspects. Admittedly, there is no eyewitness for the occurrence. In the same way, in pursuance of mediation and instruction of the panchayatdars and well-wishers, the appellant agreed to have separate residence for himself and the deceased Rajeswari and has gone to the extent of constructing a house and the said house is in incomplete stage. When that being so, it is too much to expect that the appellant decided or was having an idea to murder his wife by making use of the incomplete house on the fateful day. On the other hand, it is quite probable to believe that the said construction of incompleted house could be only in good intention to have a separate living. It is more so when even according to PW1 father of the deceased the appellant and the deceased Rajeswari were using the incompleted house for their sleep at night hours. 7. As a matter of fact, post mortem report and particularly final opinion thereof has been furnished only on 31.7.2000 as revealed from the TOX.H report marked as Exs.P9 and P10. When that being so, it is too much on the part of PW18 Ravi to depose as if the appellant approached him to give confessional statement because of the reason that the post mortem report shows as if death was due to strangulation. Therefore, it appears that the said extra judicial confession marked as Ex.P2 as well as confession recorded by the investigation officer at the police station should be at one and the same time at the active assistance and instructions of the investigation officer to suit his convenience. So, the extra judicial confession marked as Ex.P2 cannot be safely relied as if it is a genuine and voluntary one. 8. So, the extra judicial confession marked as Ex.P2 cannot be safely relied as if it is a genuine and voluntary one. 8. Likewise, the evidence of P.Ws.11, 12 and 13 who were examined by the Inspector of Police on 6.5.2000 also appear to be artificial and prepared to suit the convenience of the investigation officer as if those three witnesses happened to see the appellant and Mala together in front of the occurrence place on the previous night at about 1 or 2 a.m. while they were returning from cinema theatre and that is why Ex.P2 has been recorded in such a way to indicate as if some two or three persons were available at the occurrence place while murder was being committed. Therefore, this aspect also adds strength to say as if Ex.P2, as such, cannot be relied upon and believed. 9. The fact remains that the appellant was available during the inquest conducted by the Deputy Collector and he has chosen to give statement marked as Ex.P16 to the effect that death of Rajeswari occurred only due to the collapse of the walls of the incomplete house and if really the appellant had murdered his wife on the previous night with the help of Mala, certainly, in normal prudence, the appellant would not be available during the inquest conducted by the Deputy Collector and it is more so when the appellant himself has been referred through police memo for treatment for the injuries said to have been caused due to the collapse of the walls. Further, there is no necessity for the appellant to give extra judicial confession before PW1 in the presence of PW18 for second time when his confession before the investigation officer discloses his past conduct that he had already confessed his guilt of murder before the Councilors viz., Ramaraj and Nataraj at the time when those two persons came to see him in the hospital and that there is no reason as to why those two persons have not been examined as witnesses by the investigation officer. 10. 10. The cumulative effect of the above observed aspects clearly indicates that due to the suspicion that the death of Rajeswari could not be due to collapse of wall, the investigation agency as an after thought has chosen to fix the responsibility upon the appellant and for that P.Ws.11 to 13 appear to have been set up and that the medical evidence also does not conclusively show that death of Rajeswari would be only due to strangulation by making use of Thali rope and instead there is every doubt that the death could be also due to various other reasons like collapse of wall, suicide, etc. Therefore, in all, we are not convinced that the prosecution has proved the guilt of the accused beyond reasonable doubt and as such, benefit of doubt has to be given to the appellant/accused and the appeal is liable to be allowed. 11. Accordingly, the appeal is allowed. The conviction and sentence is set aside. The bail bond executed by the accused, if any, shall stand cancelled.