LawforAll

advocatemmmohan

My photo
since 1985 practicing as advocate in both civil & criminal laws

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - SHARE THE KNOWLEDGE

Wednesday, February 20, 2013

The extra judicial confession was, according to the prosecution, reduced to writing by the VAO and found sufficient by the trial Court as also by the High Court to hold the appellant guilty of having committed the offence with which he was charged - the extra judicial confessional statement of the appellant in which the appellant has referred to some kind of suspicion and disagreement between him and his parents regarding the child because of which he threw the child into the well. Suffice it to say that it is not one of those cases where the confessional statement is made to a person whose credibility is suspected nor is it a case where there is no corroboration forthcoming from other evidence on record. - Congestion of lungs implies presence of excess fluids in the lungs, a sign suggesting that the child would have inhaled excess fluid while in water. In addition, there is a finding by the doctor that there was 200 MLs. of watery fluid even in the stomach of the deceased. According to Modi’s Jurisprudence and Toxicology, the presence in the stomach of a certain quantity of water is regarded as an important sign of death by drowning. It is almost impossible for water to get into the stomach, if a body is submerged after death.


Page 1
         REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1706 OF 2008
R. Kuppusamy …Appellant
Versus
State Rep. by Inspector of Police,
Ambeiligai …Respondent
J U D G M E N T
T.S. THAKUR, J.
1. The short question that falls for determination in this appeal
by  special  leave  is
whether  the  Courts  below  were  justified  in
convicting the appellant for the offence of murder punishable under
Section 302 IPC and in awarding imprisonment for life to him on the
basis of an extra-judicial confession that he is alleged to have made
before the Village Administrative Officer, Veriappur, (VAO for short).

The  extra  judicial  confession  was,  according  to  the  prosecution,
reduced to writing by the VAO and found sufficient by the trial Court as  also  by  the  High  Court  to  hold  the  appellant  guilty  of  having
Page 2
committed the offence with which he was charged.
That finding and
the  consequent  orders  recorded  by  the  Courts  below  have  been
assailed  by  learned  counsel  for  the  appellant  who  argued  that  the
making  of  the  confessional  statement  was,  in  the  facts  and
circumstances  of  the  case,  not  only  improbable  but  wholly
unsupported  and  uncorroborated  by  any  independent  evidence.
Relying upon several decisions of this Court, it was argued that the
extra  judicial  confession  was  by  its  very  nature  a  weak  type  of
evidence which ought to be corroborated by independent evidence in
order to support a conviction of the maker of the confession. No such
corroboration was, according to Ms. Mahalakshmi Pavani forthcoming
in  the  instant  case,  which  rendered  the  conviction  and  order  of
sentence passed by the Courts below unsustainable in law.
2. Before we refer to the evidence adduced by the prosecution at
the  trial  in  support  of  the  charge  framed  against  the  appellant  we
may  briefly  recapitulate  the  factual  matrix  in  which  the  offence  is
alleged to have been  committed.  According to the  prosecution the
appellant is a resident of Veriappur village of Annamalaiputhur village
within the police station limits of Oddanchatram.  He got married to
one Yuvarani nearly two years before the incident. Within about 10
months of the marriage, the couple was blessed with a female child
whom they named Savitha. The prosecution case is that the accused-
Page 3
appellant had developed some suspicion about the birth of the child
though  it  is  not  very  clear  whether  the  suspicion  was  about  the
paternity of the child or the child being unlucky for the family. Be that
as it may, around the time the incident occurred the appellant is said
to have visited  his village to  perform the  mundan  ceremony of the
child  who  was  just  about  10  months  old.  His  parents  were  not,
however, much excited about the mundan ceremony to be followed
by the  feast. They are  alleged to have told the  appellant that  ever
since  the  child  was  born,  the  family  was  facing  problems.   The
prosecution  version  further  is  that  since  the  appellant  had  already
developed a suspicion about the child, he at about 11.00 a.m. on 18th
March, 2005 picked up the child and threw her in a well resulting in
the child’s death by drowning. After throwing the child into the well
the  appellant  is  alleged  to  have  gone  to  PW-5  Sakthivel,  Vice
President  of  Veripur  Panchayat  Board,  and  told  him  that  he  had
thrown  his  daughter  into  the  well.  PW-5  Sakthivel  is  said  to  have
advised  the  appellant  to  go  to  PW-1  S.K.  Natarajan,  Village
Administrative Officer of Veriappur. The appellant accordingly went to
PW-1  S.K.  Natarajan  and  narrated  the  incident  to  him.  PW-1  S.K.
Natarajan  is  alleged  to  have  recorded  the  statement  made  by  the
appellant and taken the appellant along with him to the police station
where  the  former  lodged  the  first  information  report  regarding  thePage 4
incident  and  produced  the  extra  judicial  confession  made  by  the
appellant before the police.
3. A  case  was  in  the  above  backdrop  registered  in  the  police
station at Amblikkai under Section 302 IPC and investigation started
in the  course whereof the  dead body of the  child was subjected  to
post-mortem  which  revealed  that  the  child  had  died  because  of
drowning. A  charge  sheet  was eventually laid by the  police against
the  appellant  for  committing  the  murder  of  his  daughter  to  which
charge the appellant pleaded not guilty resulting in his trial before the
Court of Sessions at Dindigul.
4. At the trial the prosecution examined as many as 11 witnesses
in  support  of  its  case.  The  appellant  did  not  choose  to  lead  any
evidence in his defence but pleaded innocence and false implication in
the statement made by him under Section 313 Cr.P.C. The trial Court
eventually came to the conclusion that the charge framed against the
appellant stood proved on the  basis of the  extra judicial confession
made  by  him  before  PW-1  S.K.  Natarajan,  Village  Administrative
Officer of Veriappur. The Court accordingly pronounced him guilty and
sentenced him to undergo life imprisonment. Aggrieved by the order
passed  by  the  trial  Court,  the  appellant  preferred  Criminal  Appeal
No.224  of 2005  before  the  High  Court  of Madras.   The  High  Court
concurred with the view taken by the trial Court and dismissed thePage 5
appeal.  In the process, the High Court affirmed the finding recorded
by the trial Court that the appellant had indeed made an extra judicial
confession  which  was,  according  to  the  High  Court,  reliable  and
provided a safe basis for the  Court to hold him guilty. The  present
appeal assails the correctness of the aforementioned judgments and
orders as already noticed above.
5. It  is  common  ground  that  there  is  no  eye  witness  to  the
occurrence leading to the death of the unfortunate female child who
was just about ten months old.  The prosecution case rests entirely
on the extra judicial confession attributed to the appellant which has
been found by the trial Court as also the High Court to be voluntary
and truthful. That a truthful extra judicial confession made voluntarily
and  without  any  inducement  can  be  made  a  basis  for  recording  a
conviction  against  the  person  making  the  confessions  was  not
disputed  before  us  at  the  hearing.   What  was  argued  by  Ms.
Mahalakshmi Pavani, counsel appearing for the appellant, was that an
extra  judicial  confession  being  in  its  very  nature  an  evidence  of  a
weak type, the Courts would adopt a cautious approach while dealing
with such evidence and record a conviction only if the extra judicial
confession  is,  apart  from  being  found  truthful  and  voluntary,  also
corroborated by other evidence. There was, according to the learned
counsel, no such corroboration forthcoming in the present case whichPage 6
according  to  her  was  sufficient  by  itself  to  justify  rejection  of  the
confessional statement as a piece of evidence against the appellant.
Reliance, in support of the contention urged by the learned counsel,
was placed upon the decisions of this Court in Gura Singh v. State
of  Rajasthan  (2001)  2  SCC  205 and  Sahadevan  and  Anr.  v.
State of Tamil Nadu (2012) 6 SCC 403.  In  Gura Singh’s  case
(supra)  a  two-Judge  Bench  of  this  Court  was  also  dealing  with  an
extra judicial confession and the question whether the same could be
made a basis for recording the conviction against the accused.  This
Court  held  that  despite  the  inherent  weakness  of  an  extra  judicial
confession as a piece of evidence, the same cannot be ignored if it is
otherwise  shown to  be  voluntary  and  truthful. This Court  also held
that  extra  judicial  confession  cannot  always  be  termed  as  tainted
evidence and that corroboration of such evidence is required only as a
measure of abundant caution. If the Court found the witness to whom
confession was made to be trustworthy and that the confession was
true  and  voluntary,  a  conviction  can  be  founded  on  such  evidence
alone. More importantly, the Court declared that Courts cannot start
with the presumption that extra judicial confession is always suspect
or a weak type of evidence but it would depend on the nature of the
circumstances,  the  time  when  the  confession  is  made  and  the
credibility of the  witnesses who speak about such a confession andPage 7
whether the confession is voluntary and truthful.
6. In Sahadevan’s case (supra) a two-Judge Bench of this Court
comprehensively reviewed the case law on the subject and concluded
that  an  extra  judicial confession  is an  admissible  piece  of evidence
capable of supporting the conviction of an accused provided the same
is made voluntarily and is otherwise found to be truthful. This Court
also  reiterated  the  principle  that  if  an  extra  judicial  confession  is
supported by a chain of cogent circumstances and is corroborated by
other  evidence,  it  acquires  credibility.  To  the  same  effect  are  the
decisions of this Court in Balbir Singh and Anr. V. State of Punjab
1996  (SCC)  Crl.  1158  and Jaspal  Singh  @  Pali  v.  State  of
Punjab (1997) 1 SCC 510.
7. It  is unnecessary,  in  the  light  of  above  pronouncements,  to
embark upon any further review of the decisions of this Court on the
subject. The legal position is fairly well-settled that an extra judicial
confession is capable of sustaining a conviction provided the same is
not made under any inducement, is voluntary and truthful. Whether
or not these attributes of an extra judicial confession are satisfied in a
given case will, however, depend upon the facts and circumstances of
each  case.  It  is  eventually  the  satisfaction  of  the  Court  as  to  the
reliability  of  the  confession,  keeping  in  view  the  circumstances  in
which the  same is made, the  person to whom it is alleged to havePage 8
been made and the corroboration, if any, available as to the truth of
such  a  confession  that  will  determine  whether  the  extra  judicial
confession ought to be made a basis for holding the accused guilty.
8. In the case at hand the trial Court as also the first Appellate
Court have both found the extra judicial confession attributed to the
appellant to be voluntary, truthful and unaffected by any inducement
that could render it unreliable or unworthy of credence. Having heard
learned  counsel  for  the  parties  at  considerable  length  and  having
gone through the evidence adduced at the trial, we are of the view
that the conclusion drawn by the Courts below is not vitiated by any
error of fact or law.  The confessional statement in the case at hand
has  been  made  by  the  appellant  almost  immediately  after  the
commission of the crime. The appellant is alleged to have gone over
to PW-1 S.K. Natarajan, Village Administrative Officer, who was the
concerned Village Administrative Officer of Veriappur and narrated to
the witness the genesis of the incident leading to his throwing baby
Savitha into the well at a short distance from his house. PW-1 S.K.
Natarajan  recorded  the  confessional  statement  of  the  appellant,
which  was  marked  Exh.  P-1  at  the  trial,  and  got  the  same  signed
from  the  appellant  and  took  the  appellant  with  him  to  the
jurisdictional police station.  At the police station PW-1 S.K. Natarajan
got the  first information report regarding the  incident registered  asPage 9
Crime  No.61/05  setting  legal  process  into  motion  in  the  course
whereof Investigating Officer was taken to the well by the appellant in
which he  had thrown the  child. At  the  well, the  Inspector  of police
prepared the Mahazar which was signed by the witness including PW-
1  S.K.  Natarajan  himself and  took charge  of the  dead  body of the
child which had, by that time, been brought out of the well.  A towel
lying about 20 ft. from the well was also seized.
9. PW-1 S.K. Natarajan was cross-examined at length but there
is nothing in the  cross-examination  that could possibly discredit his
deposition. No enmity has ever existed between the witness and the
appellant  to  suggest  a  false  implication  of  the  appellant.  The  only
significant suggestion made in the course of the cross-examination, is
that the confessional statement was not recorded by the witness in
his  office  as  stated  by  him  but  at  the  police  station  and  in  the
presence of the sub-inspector concerned.  This suggestion has been
denied  by  the  witness  including  the  suggestion  that  the  statement
ought to have been recorded in the prescribed form under the rules
and  the  reason  why  it  was  not  so  recorded  was  because  the
statement had been put in black and white at the police station using
an ordinary white paper.  The witness stated that the statement was
recorded  on  a  plain  paper  because  the  prescribed  forms  were  not
readily available in his office.Page 10
10. The deposition of PW-1 S.K. Natarajan inspires confidence in
the absence of any material deficiency in the same either in terms of
what  has  been  recorded  by  him or  the  procedure  that  he  followed
while  doing  so.  More  importantly,  there  is  no  suggestion  that  this
witness had any animosity or other reason which would impel him to
go  so  far  as  to  involve  the  appellant  in  a  case  of  murder.  Courts
below  have,  in  our  opinion,  correctly  appreciated  the  deposition  of
this witness and found him to be reliable. The concurrent finding of
fact returned by the two Courts, has not, in our opinion caused any
miscarriage of justice to warrant our taking a different view.
11. Coming  to  the  question
 whether  the  statement  was
corroborated  by  other  evidence,  we  find  that  such  corroboration  is
indeed  forthcoming  in  the  form  of  medical  evidence  and  the
deposition of other witnesses. 
The medical evidence adduced in the
case suggests that the death of the deceased child was homicidal and
that the same was caused by drowning.  
The deposition of PW-10 Dr.
A. Muthusamy, in our opinion, is clear on this aspect, although it was
vehemently contended  by Ms. Mahalakshmi Pavani, that  the  doctor
had  not  mentioned  the  presence  of water  in  the  lungs of the  child
which, according to her, showed that the story of the child dying by
drowning was unsupported by medical evidence. 
The fact, however,
remains that the doctor has reported the lungs of the deceased to be
Page 11
congested.  
Congestion  of lungs implies presence  of excess  fluids in
the lungs, a sign suggesting that the child would have inhaled excess
fluid while in water. In addition, there is a finding by the doctor that
there  was  200  MLs.  of  watery  fluid  even  in  the  stomach  of  the
deceased. According to Modi’s Jurisprudence and Toxicology, the
presence in the stomach of a certain quantity of water is regarded as
an  important sign of death  by drowning. It is almost impossible for
water to get into the stomach, if a body is submerged after death.
12. All this suggests that the death was caused by taking in water
which  one  usually  does  while  struggling  in  a  drowning  situation.
Absence of any other marks on the body of the child also supports
the prosecution case that the deceased had indeed died of drowning.
The  confessional  statement  thus  gets  sufficient  corroboration  as  to
the cause of the death of the child.  
13. That apart the depositions of other witnesses examined before
the trial Court also lend corroboration to the prosecution version. For
instance PW-2 Kanakaran deposed that he was plucking chilly in his
field  near  the  field  of  the  appellant  on  the  fateful  day.  At  around
12.00  noon  the  witness  heard  someone  crying  at  Chelimedu.  The
witness and other persons in the vicinity rushed and looked into the
well  only  to  find  the  dead  body  of  the  child  floating.   The  witness
descended into the well and picked up the child and brought her out.Page 12
The child was dead. The wife of the appellant was crying and saying
that the child had been thrown into the well and that the appellant
had killed her.
14. In  cross-examination the  witness expressed  ignorance  about
any ‘mundan’ ceremony or arrangements for the same having been
made  by  the  appellant  and  that  he  had  no  invitation  for  any  such
ceremony. The  wife of the  appellant was, according to the  witness,
saying that the appellant ‘suspected the birth’ of the child meaning
thereby that the appellant was either suspicious about the paternity
of the child or her being unlucky for the family.
15. To  the  same  effect  is  the  statement  of  PW-3  Palanisamy
according  to  whom  the  wife  of  the  appellant  was  crying  aloud.
Persons from the nearby fields came running to the well and so did
this witness. The appellant’s wife was heard saying that the child had
been killed. Kanakaran PW-2 climbed down the well and brought the
body of the child out and kept the same on the western side of the
well.  Inspector of police reached in due course and interrogated him.
16. PW-4 Manoharan was declared hostile but was cross-examined
and confronted with the statement made before the police regarding
the appellant having been seen by him walking away from the place
of  occurrence  under  tension.   PW-5  Sakthivel,  President  of  Veripur
Panchayat Board, stated that the appellant had come to him and toldPage 13
him that the child had fallen into the well and asked him as to what
he should do in the matter. He had told him to go to Maniakarar. This
witness was also declared hostile and confronted with the statement
made before the police under Section 161 of the Cr.P.C.
17. Statement  of  PW-6  Palaniammal  who  happened  to  be  the
grandmother  of  the  deceased  child  is  also  significant.  This  witness
stated that the child was born 10 months after the marriage of the
appellant. The wife of the appellant had stayed on with her parents’
for seven months after the child was born. She was finally brought to
her  matrimonial  house  by  the  witness  and  the  appellant.  Three
months  later,  on  18 th March,  2005  the  appellant  returned  from
Pondicherry  where  he  worked  and  told  her  that  he  had  come  for
performing  the  ‘mundan’  ceremony  of  his  daughter  and  asked  the
witness why she was going to the field when such a ceremony was
being  held.   The  witness  stated  that  if  the  ceremony  had  to  be
organised he should have informed them ten days earlier so that they
could have  arranged  to  perform the  ceremony  in  a  grand  manner.
The  witness  told  him  that  since  she  had  engaged  two  persons  for
picking  groundnuts,  he  should  take  his  father  and  perform  the
mundan. In due course, the father of the appellant also reached the
field and while picking up groundnuts along with the labourers, they
received the information that the child was missing. They rushed back
Page 14
only  to  find  the  child  floating  in  the  well.   The  presence  of  the
appellant in the village on the date of the occurrence is established by
the deposition of this witness and so is the fact that the parents of
the appellant were not much concerned or happy to join the proposed
mundan ceremony.  The prosecution case, it is important to  note, is
that  ever  since  the  child’s birth,  there  were  problems between  the
appellant  and his parents regarding the  child being unlucky for the
family  which  resulted  in  the  unfortunate  incident  of  the  appellant
throwing the child into the well.
18. It  is  manifest  from  the  above  that  there  is  considerable
corroborative  evidence  on  record  to  support  the  extra  judicial
confessional  statement  of  the  appellant  in  which  the  appellant  has
referred  to  some  kind  of  suspicion  and  disagreement  between  him
and his parents regarding the  child because  of which he  threw  the
child into the well.
Suffice it to say that it is not one of those cases
where  the  confessional  statement  is  made  to  a  person  whose
credibility is suspected nor is it a case where there is no corroboration
forthcoming from other evidence on record.  
On both counts the view
taken by the Courts below appears to us to be perfectly justified. The
same, therefore, warrants no interference from us under Article 136
of the Constitution.
19. In the result this appeal fails and is hereby dismissed.Page 15
……………………...…………..………....…J.
(T.S. THAKUR)
……………………...……………………...…J.
(SUDHANSU JYOTI
MUKHOPADHAYA)
New Delhi
February 19, 2013