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Sunday, August 14, 2016

Benefit of Doubt = As per chemical test report poison was not found. There was no wound caused to larynx before death. As the body of the deceased was highly decomposed the cause of death was not mentioned by the Doctor, P.W.20 in the post-mortem report he answered that that since the body was decomposed he was unable to say so, thus, the cause of death has not been established.. No internal and external injury has been mentioned in the autopsy report. Thus, the prosecution has not been able to establish that the death was caused by strangulating the deceased and the piece of nylon saree was used to cause the death. Hence, recovery of the piece of nylon saree is of no value as the prosecution has not been able to link the same with the commission of the offence.The appellant had clearly stated in the statement under Section 313 that she had gone to the police station on 23.5.2005 along with photograph of the deceased and had also stated that the deceased frequently used to go outside for 2 to 5 days. This explains her conduct, nothing more can be attributed to her exclusive knowledge which she was required to explain within the purview of Section 106 of the Evidence Act. Knowledge of any other fact is not attributable to her in view of the evidence adduced in the case. Thus, the submission based upon the provisions contained in Section 106 is of no avail to the respondent.The prosecution has also not led evidence that the appellant was ever required to identify the articles of the deceased. There is nothing on record indicating that they were shown to her for the purpose of identification and she had refused to identify them. In the instant case, which is based on the circumstantial evidence, particularly when the body has not been recovered at the instance of the accused, the recoveries of moped and piece of nylon saree which were made are not proved to be related to commission of offence, they are not proved to be incriminating materials. The extra-judicial confession made by the appellant to Susheela, P.W.4 is prima facie unusual and doubtful and is not corroborated by other evidence on record. Merely, the fact that the deceased had left the house on 16.5.2005, as per version of appellant, cannot be used as a circumstance against her so as to fasten guilt. The deceased used to drink alcohol and used to spend money recklessly. Due to his bad habits, there may be so many enemies of him. How the deceased spent the amount of Rs.1,30,000/- which he received on execution of agreement is not on record. The prosecution has not been able to complete the chain of circumstances so as to fasten the guilt and to prove the commission of offence by the appellant beyond periphery of doubt. The father of appellant has also been extended benefit of doubt. As such, the appellant is entitled for benefit of doubt in view of the evidence which has been adduced by the prosecution. Resultantly, the appeal is allowed. The appellant is acquitted giving her the benefit of doubt.

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1791 OF 2010


KALA @ CHANDRAKALA                                 .. APPELLANT

                                   VERSUS

STATE THROUGH INSPECTOR OF POLICE            .. RESPONDENT



                               J U D G M E N T


ARUN MISHRA, J.


1.     The  appellant  is  the  wife  of  the  deceased   Murugesan.     The
prosecution has alleged that the appellant along with her father and  nephew
committed murder of Murugesan on  17.5.2005  by  strangulating  him  with  a
saree and placed his body under a bridge of canal.   On  20.5.2005,  on  the
basis of the information received from the  Village  Administrative  Officer
that a gunny bag is lying under  LBP  canal  south  near  Sandhiyapurm,  the
complaint was registered.   The  body  was  found  in  a  highly  decomposed
condition as such initially the identification of the person  could  not  be
ascertained.   On 21.5.2005 Dr.  Sivakumar  P.W.20  performed  the  autopsy.
Doctor was unable to ascertain the cause of death  as  the  body  was  in  a
highly decomposed condition and it was opined  by  him  that  there  was  no
antemortem injury to hyoid bone.   On 31.5.2005 Susheela, P.W. 4, sister  of
the deceased, lodged a complaint that her brother Murugesan was murdered  by
his wife, his father-in-law and nephew of wife.
2.    The trial court convicted the appellant and her father for  commission
of offence under Section 302 read with Section 34 IPC and  Section  201  IPC
and sentenced them to undergo imprisonment for life and imposed  a  fine  of
Rs.1,000/- and in default to undergo simple imprisonment for six months  and
also to undergo one year simple imprisonment under  Section  201  IPC.   The
appeal, preferred before the High Court,  was  allowed  in  respect  of  the
father of the accused, but the conviction and sentence of the appellant  has
been affirmed.  Aggrieved thereby the appeal has been preferred.
3.    It was submitted  on  behalf  of  the  appellant  that  the  chain  of
circumstances is not complete so as  to  fasten  the  guilt  upon  her.  The
confession made by the appellant to P.W.4 is not worthy  of  acceptance  and
made to police is inadmissible in evidence.   There was no  reason  for  the
appellant to make a confession to Susheela, P.W.4  as  she  was  not  having
good relations with her.  The recovery of the body is not  at  the  instance
of the appellant and the recovery of the motor bike and nylon  saree  is  of
no value.   The prosecution has failed to examine  the  material  witnesses.
It was submitted that the appellant  has  in  statement  under  section  313
Cr.P.C. mentioned that she  had  gone  to  the  police  station  along  with
photograph of the deceased on 23.5.2005 when there was beat of drum  in  the
village by which she came to know that a body was found below the bridge  of
the canal. It was submitted that the appellant is innocent and  deserves  to
be acquitted.
4.    It was contended by the learned counsel appearing  on  behalf  of  the
State of Tamil Nadu that the  accused  and  the  deceased  used  to  quarrel
frequently.  It was the habit  of  the  deceased  of  drinking  alcohol  and
indulge in gambling.    Once  the  accused  persons  came  to  know  of  the
deceased having entered into agreement of sale, they had decided to get  rid
of him and thereby murdered him and threw the body below the bridge  of  the
canal.   The deceased was last seen in the company of the accused.   It  was
submitted that the extra-judicial confession made by the appellant to  P.W.4
and recovery of motor bike and nylon saree which  was  used  for  committing
murder show that the chain of circumstances is complete.  The appellant  did
not disclose the fact of disappearance of the  deceased  from  16.5.2005  to
31.5.2005 to the police and she was not the person to identify the  articles
belonging to the deceased.   The deceased was  identified  by  the  articles
i.e. chappal, shirt etc. by Susheela, P.W.4.   It  was  therefore  submitted
that the conviction recorded by the trial Court and  affirmed  by  the  High
Court calls for no interference in the appeal.
5.    The case depends upon  the  circumstantial  evidence  and  the  extra-
judicial confession made by the appellant to Susheela, P.W.4, sister of  the
deceased.  This is trite law that  the  chain  of  circumstances  should  be
complete to fasten the guilt on the accused.
6.    Firstly, we will examine whether the extra-judicial  confession  which
is a weak kind of evidence, inspire the  confidence.   Susheela,  P.W.4  has
stated that Murugesan was married to  the  appellant  14  years  before  the
incident.   She came in search of his brother Murugesan to the house of  the
deceased.    Murugesan  has  told  her  on  12.5.2005  that  appellant   had
threatened to kill him as he was habitual of consuming  alcohol.   When  she
did not receive any telephone call for 15 days from the deceased,  she  went
to his village. On enquiry she was informed by the appellant that  she,  her
nephew Prakasam and father murdered the deceased and threw  his  body  under
the bridge.   Susheela, P.W.4 further stated that the appellant touched  her
legs and stated that  she  would  give  properties  of  her  father  to  two
children and that she should not  inform  the  police.    Thereafter,  P.W.4
went to the police station on the  same  day  and  lodged  the  complaint  –
Ex.P2.   The police showed her the photograph, shirt and slippers and  asked
her to identify the same.  She identified them to be of  her  brother.   She
has further stated to  have  gone  to  police  station  after  5  days  with
photograph of deceased. In the cross-examination, she has also  stated  that
she had signed the agreement for sale of land executed by  the  accused.  It
is apparent that accused was not having  good  relationship  with  Susheela,
PW.4.  Making confession to such an inimical person is most unlikely.   When
the witness had gone in search of the deceased to the house of  the  accused
it is most unlikely that the confessional statement would  be  made  to  her
readily.  It is not that the appellant had gone to the  house  of  P.W.4  to
make the confession. On the other hand query was made  by  the  daughter  of
the deceased to Susheela, P.W.4 as  to  the  whereabouts  of  the  deceased,
meaning thereby the whereabouts of the deceased were not known even  to  his
daughter.    In case the deceased had been killed in the house, perhaps  the
daughter would have known about the offence having  been  committed  by  the
accused.
7.    In Sahadevan and Anr. v. State of Tamil Nadu (2012) 6 SCC 403, it  has
been observed that extra-judicial confession  is  weak  piece  of  evidence.
Before acting  upon  it  the  Court  must  ensure  that  the  same  inspires
confidence and  it  is  corroborated  by  other  prosecution  evidence.   In
Balwinder Singh v. State of Punjab 1995  Supp  (4)  SCC  259,  it  has  been
observed that extra-judicial confession requires  great  deal  of  care  and
caution before acceptance.  There  should  be  no  suspicious  circumstances
surrounding it.  In Pakkirisamy v. State of Tamil Nadu (1997) 8 SCC  158  it
has been observed  that  there  has  to  be  independent  corroboration  for
placing any reliance upon extra-judicial confession.  In Kavita v. State  of
Tamil Nadu (1998) 6 SCC 108 it has been observed  that  reliability  of  the
same depends upon the  veracity  of  the  witnesses  to  whom  it  is  made.
Similar view has been expressed in State of Rajasthan v. Raja Ram  (2003)  8
SCC 180, in which this Court has  further  observed  that  witness  must  be
unbiased and not even remotely inimical  to  the  accused.   In  Aloke  nath
Dutta v. State of West Bengal (2007) 12 SCC 230 it has  been  observed  that
the main features of confession are required  to  be  verified.   In  Sansar
Chand v. State of Rajasthan (2010) 10 SCC 604  it  has  been  observed  that
extra-judicial confession should be corroborated by some other  material  on
record.  In Rameshbhai Chandubhai Rathod v. State of Gujarat  (2009)  5  SCC
740 it has been observed that in the case  of  retracted  confession  it  is
unsafe for the Court to rely on it.   In Vijay Shankar v. State  of  Haryana
(2015) 12 SCC  644  this  Court  has  followed  the  decision  in  Sahadevan
(supra).
8.    In the circumstances of the case, the  confession  made  to  Susheela,
PW.4 does not inspire evidence.  She was not having good  relationship  with
accused and is not corroborated by  other  evidence  on  record,  hence,  it
would not be safe to act upon it in  the  facts  and  circumstances  of  the
case. The extra-judicial confession made to police is admissible  only  with
respect to the recoveries made of the moped as well  as  a  piece  of  nylon
saree, pursuant to the information, which articles  are  not  proved  to  be
connected with offence.
9.    Firstly, we deal with the recovery of the Bajaj moped at the  instance
of the appellant.  It  is  deposed  by  Soundarrajan,  P.W.12  that  he  was
running a cooking gas agency and the absconding accused Prakasam  was  using
Bajaj M-80 motor cycle to deliver gas cylinders.  The appellant accused  was
first brought by the police to his residence and later on to shop,  and  the
vehicle was recovered by the police from his shop along with certificate  of
the  registration.    Prakasan  had  taken  one  week  leave  from  him  and
thereafter did not turn up.
      Though the prosecution has alleged that Bajaj M-80  vehicle  was  used
to carry the body of the deceased by Prakasam and  the  appellant  and  they
were seen by two  witnesses  while  going  towards  canal.    But  the  said
witnesses had not been examined in the court  by  the  prosecution  for  the
reasons known to it.   Thus the prosecution has  failed  to  establish  that
the vehicle in question was used for carrying the body of the  deceased  and
it was so carried as alleged.   The vehicle  has  been  recovered  from  its
owner with no blood stains.  It was not in possession of the  appellant  and
was recovered from the gas agency where it was supposed to  be.   Merely  by
the fact that the vehicle was used  by  Prakasan  for  distribution  of  the
cooking gas cannot be a circumstance so as to  fasten  the  guilt  upon  the
appellant. It was a well known fact that vehicle was used  by  Prakasam  for
distribution of cooking gas. Use of the vehicle in the offence  in  question
has not been proved and its recovery which is not  from  the  possession  of
the appellant, the same cannot be used  as  a  circumstance  to  fasten  the
guilt upon the appellant.
10.   Now coming to the question of recovery of piece of  nylon  saree.  The
statement of Dr. Sivakumar, P.W.20 autopsy surgeon indicates that  the  body
of the deceased was decomposed.  As per chemical test report poison was  not
found.  There was no wound caused to larynx before death.   As the  body  of
the deceased was highly decomposed the cause of death was not  mentioned  by
the Doctor, P.W.20 in the post-mortem report.   On query being made  to  him
by the Inspector of Police regarding cause of death, he answered  that  that
since the body was decomposed he was unable to say so, thus,  the  cause  of
death has not been established.  No internal and external  injury  has  been
mentioned in the autopsy report.  Thus, the prosecution has  not  been  able
to establish that the death was caused by  strangulating  the  deceased  and
the piece of nylon saree was used to cause the death.   Hence,  recovery  of
the piece of nylon saree is of no value as  the  prosecution  has  not  been
able to link the same with the commission of the offence.
11.   The appellant had not  kept  quiet  for  15  days  from  16.5.2005  to
31.5.2005.  She had clearly stated in the statement under Section  313  that
she had gone to the police station on 23.5.2005  along  with  photograph  of
the deceased and had also stated that the deceased  frequently  used  to  go
outside for 2 to 5 days.  This explains her conduct,  nothing  more  can  be
attributed to her exclusive knowledge which  she  was  required  to  explain
within the purview of Section 106 of the Evidence  Act.   Knowledge  of  any
other fact is not attributable to her in view of  the  evidence  adduced  in
the case.  Thus, the submission  based  upon  the  provisions  contained  in
Section 106 is of no avail to the respondent.
12.   The prosecution has also not led evidence that the appellant was  ever
required to identify the articles of the  deceased.   There  is  nothing  on
record  indicating  that  they  were  shown  to  her  for  the  purpose   of
identification  and  she  had  refused   to   identify   them.    There   is
contradiction in the version of Susheela P.W.4 as  to  when  she  identified
the deceased.  On one hand, she had stated that she did so on 31.5.2005,  on
the other hand, she has stated that she went to the police station with  the
photograph of the deceased after five days thereof.
13.   In the instant case, which is based on  the  circumstantial  evidence,
particularly when the body has not been recovered at  the  instance  of  the
accused, the recoveries of moped and piece of nylon saree  which  were  made
are not proved to be related to commission of offence, they are  not  proved
to be incriminating materials.  The extra-judicial confession  made  by  the
appellant to Susheela, P.W.4 is prima facie unusual and doubtful and is  not
corroborated by other evidence  on  record.    Merely,  the  fact  that  the
deceased had left the house on  16.5.2005,  as  per  version  of  appellant,
cannot be used as a circumstance against her so as  to  fasten  guilt.   The
deceased used to drink alcohol and used to spend money recklessly.   Due  to
his bad habits, there may be so many  enemies  of  him.   How  the  deceased
spent the  amount  of  Rs.1,30,000/-  which  he  received  on  execution  of
agreement is not on record.  The prosecution has not been able  to  complete
the chain of circumstances so as to  fasten  the  guilt  and  to  prove  the
commission of offence by the  appellant  beyond  periphery  of  doubt.   The
father of appellant has also been extended benefit of doubt.  As  such,  the
appellant is entitled for benefit of doubt in view  of  the  evidence  which
has been adduced by the prosecution.
14.   Resultantly, the  appeal  is  allowed.   The  appellant  is  acquitted
giving her the benefit of doubt.  The judgments and  orders  of  the  courts
below of conviction and sentence are quashed and set aside.

………………………………J.
[Jagdish Singh Khehar]



…………………………….J.
[Arun Mishra]
New Delhi,
August 12, 2016.

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