http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 13  

CASE NO.: Appeal (crl.) 1000  of  1999 Appeal (crl.)   1001     of  1999 Appeal (crl.)   1146     of  1999

PETITIONER: DHANAJAYA REDDY

       Vs.

RESPONDENT: STATE OF KARNATAKA

DATE OF JUDGMENT:       14/03/2001

BENCH: K.T. Thomas & R.P. Sethi

JUDGMENT:

SETHI,J. L...I...T.......T.......T.......T.......T.......T.......T..J

   This  case speaks of the story of a despicable  betrayal of  connubial  trust by a wife against her husband.   Sexual lust  and extramarital relations between the unfaithful wife and  her  paramour,  put an end to the blooming life  of  an unfortunate  and innocent young husband, who at the relevant time  was serving the nation being in the employment of  the Armed  Forces.  In this process of committing the crime, the wife  became  a marionette of her paramour.  She  and  three killers,  in  order  to liquidate her husband,  displayed  a drama  in  her  bedroom  on the fateful  night.   After  her husband  was  heinously  murdered she played the role  of  a victim  of armed robbery and murder in her house and allowed herself  to be gagged and tethered down.  What the outsiders saw on the next morning was her being in the above condition and next to her was lying the beheaded body of her husband.

   The  prosecution case, as unfolded during the trial,  is that  the deceased Amar Nath who was in the Army service was married  to  Ms.Vanaja (hereinafter referred to as "A1")  on 11.3.1992  at  Naganakotai  in Chittoor District  of  Andhra Pradesh.  To the misfortune of the deceased, A1 prior to her marriage  with  the  deceased  was  having  illicit  marital relations  with Dhanajaya Reddy (hereinafter referred to  as "A2").   Both were serving together as teachers at Gnanodaya English   School  at   Madanappalli.   Nagaraj  (hereinafter referred  to as "A3") and Subramani (hereinafter referred to as  "A4")  were  the associates of A2 in the  commission  of crime  of murder of Amar Nath.  After her marriage A1 stayed with  the deceased for about four days.  She declined to  go with  him  to Delhi where the deceased was serving.  In  the absence  of the deceased A1 and A2 not only continued to  be serving  as teachers in the school but also freely  indulged in  quenching the sexual lust of each other.  A1 had written letters  to the deceased on his Delhi address  acknowledging therein  the factum of her having illicit relations with  A2 and  abusing the deceased in a filthy language.  To  resolve

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 13  

the  controversy  of marital relations between the  deceased and  A1,  a Panchayat was held in the parents house  of  the wife  in which besides others, Rajanna (PW3), the father  of the  deceased, Krishna Reddy (PW7), another relative of  the deceased  and Vama Reddy, (PW33), paternal uncle of A1  were present.   It  was resolved in the Panchayat that A1  should abandon  her job and join the deceased.  Thereafter, on  his transfer,  the deceased came down from Delhi to Bangalore in the month of March, 1993 to work as Technician in the Madras Engineering   Group  Centre,  a  Military  establishment  at Marutisevanagar,  Bangalore.   His  place of work was  at  a distance  of about 2 kilometers from the house which he took on  rent  in Bangalore bearing No.655,  at  Subbaiahanapalya Extension,  Banaswadi.  PWs 3 and 7 brought A1 to  Bangalore whereafter  she  started  living with the deceased.   It  is alleged  that  before  coming to Bangalore  A1  wrote  three incriminating  inland  letters dated 5.4.1993, 9.4.1993  and 19.4.1993  marked as M.O.s 21, 22 and 23 to her husband.  In those  letters  she not only used filthy language  but  even went  to the extent of disowning the deceased as her husband calling  him  as impotent.  In one of the letters  she  even threatened  the  deceased stating that she would be  joining his company only to take revenge.

   Though  the accused No.1 apparently started living  with the  deceased  at  Banswadi  at Bangalore, yet  she  was  in constant  contact  with  A2 at Madanapalli.  A1 and  A2  are stated  to have planned together to murder the deceased  and for  that  purpose,  as  already noticed,  A2  procured  the assistance and services of A3 and A4.  In furtherance of his plan,  A2  had sent A3 in advance to Bangalore on  28.8.1993 and  thereafter A2 and A4 engaged a car bearing Registration No.AP:03  B/2349,  which was driven by Narayan (PW20)  along with  his cleaner Shabir Basha (PW38).  Both A2 and A4 along with  PWs  20 and 38 left Madanapalli at about 5.30 or  6.00 p.m.   on  28.8.1993.   They   reached  Mukunda  Theatre  at Banswadi,  Bangalore  at about 9.30 or 10.00 p.m.  where  A3 joined  them as per pre-planned.  A2 and A4 along with PW20, driver of the car had their drinks and meals at Sambaram Bar located  near Banswadi, the place where the deceased,  along with  his  wife, A1 were living.  During that  period  PW38, Cleaner  of the car, stayed back in the car.  PW15 Chennappa served food and drinks to A2, A3 and A4.  After taking their drinks  and  meals, the trio visited the nearby  Beetle-leaf shop  of Vinayaka, PW45 wherefrom they purchased beetles and cigarettes.  Later the aforesaid accused persons joined PW38 in  the  car.  A2 to A4 told the driver of the Car PW20  and Cleaner  PW38  that  they were going to  attend  a  marriage function and would be joining the aforesaid witnesses later. From  Mukunda  Theatre  all the three accused  persons  went towards  the house of A1 wherefrom A2 fetched from A1 a  key of  the newly constructed house of Nagaraja (PW5) where they are alleged to have stayed till the commission of the crime. It  may  be noticed that PW5 who had constructed  the  house opposite the apartment where A1 and the deceased were living had handed-over the key to the A1 on the presentation to her that  if any prospective tenant desired to see the house  to take  on  lease in his absence, A1 might show the  house  to such  person.  During all this period, the deceased was away on  his duty on a night shift which was to end at 2.00  a.m. After  leaving A3 and A4 in the house of PW5, A2 stayed with A1  in her house.  He returned to A3 and A4 in the house  of PW5 at about 1.30 a.m.

   The  deceased returned from his duty on a cycle at about

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 13  

2.30 a.m.  After half an hour or so A1 came out of her house and  alerted the other accused persons that her husband, the deceased, had gone into sleep.  After her intimation all the three  accused persons entered the house of the deceased and committed his murder in a most heinous and barbarous manner. A1  flashed torch-light on the deceased while he was  asleep on  the  cot, upon which A2 closed his mouth.  A3  held  the legs of deceased Amar Nath.  A2 then stabbed the neck of the deceased.   Exhibiting their brutality A3 cut off the  penis of  the deceased into pieces and threw it away in the  room. A3  stabbed the back and all over the body of the  deceased. The neck part of the body of the deceased was pierced with a knife.   Amarnath,  the unfortunate husband of A1  immediate died  on the spot.  After accomplishing the intended  crime, the  accused  persons,  with leisure,  attempted  to  create evidence  for  their  safety.  A1 handed-over her  all  gold jewellery  including Mangalsutra to A2 and sat on the  floor of  the  kitchen facilitating A3 to tie her hands  and  legs with  a rope.  The jewellery was distributed by A2 to A4 and A1  was  tied down to show that the occurrence was  that  of murder  and robbery committed by some unknown persons.   All the accused persons kept the door of the house ajar and left the place of occurrence.

   After   washing  their  hands   and   destroying   other incriminating  evidence  they came back to the car at  about 3.30  a.m.,  where PWs20 and 38 were asked by them to  wait, apparently  by  assuring them that the accused  persons  had gone  to  attend  some marriage party.  They  left  Banswadi where  the  car was parked and reached back  Madanapalli  at about  6  a.m.  or 6.30 a.m.  on 29.8.1993.  After  reaching Madanapalli all the three accused dispersed.  A2 and A3 went to  their houses and A4 returned to his room in Hotel Picnic at Madanapalli.

   On  29.8.1993  at  about 8 a.m.   PW1  Nanjundappa,  ASI received  a phone message from the Police Control Room  with regard to the incident of murder where he reached along with police  constable  No.3172  and  found a  number  of  people collected  in  front  of  the house  of  the  deceased.   On entering  the house, they found the neck of the deceased cut which was lying with his face downward in the mid of pool of blood.   They  also found his legs tied with the rope and  a towel.  A1 was found tied in the kitchen.  When her legs and hands  were untied and towel removed from the mouth she  did not give any of the reply to the queries made by PW1.

   On  the  complaint  lodged by PW1 FIR Exhibit  P-61  was registered   and  investigation  commenced   by  PW48,   the Investigating  Officer.   The IO visited the  spot  together with  dog squad and photographer.  He conducted the  inquest Panchanama  Exhibit P2 and recorded the statements of  PWs3, 4,  6,  29,  30 and other witnesses.  On the  spot,  the  IO collected  Mos 1 to 20 which were seized vide mahzar Exhibit P-62.   On 31.8.1993 the relatives of the deceased including PWs3  and 7 reached Bangalore after knowing about the  death of  Amarnath  through news item which was published  in  the local  newspaper at Madanapalli.  During investigation,  the extra-marital  relations of A1 and A2 came to light.  A2 was apprehended on 5.9.1993.  During his interrogation A2 made a voluntary statement Exhibit P-64 in consequence of which the police  seized  gold  Thali and Thali Gundus and  his  blood stained  clothes besides inland letters M.O.s 42 to 48  vide Panchanama  Exhibit P-17.  A2 led the police party to Picnic Hotel  where  A4  was  arrested.   In  the  course  of   his

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 13  

interrogation  A4 made his voluntary statement Exhibit P- 65 and  produced  gold ring, M.O.50, his blood stained  clothes M.O.s  52  and  53 and Cigarette M.O.51.  A  pair  of  shoes M.O.49  belonging to A4 were also seized.  Both the  accused thereafter  led the police to Katirangana Kotai to the house of  A3 where he was also arrested.  A3 too made a  voluntary statement  Exhibit  P-66 and produced M.O.54, a gold  chain. He  further  led the police party to his brother’s house  at Madanapalli  where  he  produced his blood  stained  clothes M.O.s55  and  56  and a torch M.O.54 which was  seized  vide Panchanama Exhibit P-20.  Immediately thereafter A1 was also taken  into  custody.  She also gave a  voluntary  statement Exhibit  P-67  but no incriminating article  connecting  the accused  with  the commission of the crime was recovered  in consequence thereof.

   When  the  investigation was pending, A4 volunteered  to make   a  confessional  statement   which  was  recorded  by Shambulingappa  (PW50),  a Judicial Magistrate on  20.9.1993 after  ensuring that A4 was free from any influence and that he  was  produced before him from judicial custody where  he was sent by the Magistrate on 16.9.1993.

   On  completion of the detailed investigation, the police filed a charge-sheet against all the accused persons for the commission  of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code.  On committal, the Sessions  Judge, after examining 50 witnesses, convicted  A1 and  A2  under  Section 302 IPC and taking  their  age  into consideration,  awarded  them life imprisonment.  A3 and  A4 were acquitted by giving them the benefit of doubt.

   Not  satisfied with the conviction and sentence  awarded to  them, A1 and A2 filed Criminal Appeal No.159 of 1998  in the  High Court of Karnataka.  Being aggrieved by the  order of  acquittal relating to A3 and A4, the State of  Karnataka filed Criminal Appeal No.430 of 1998.  Both the appeals were heard together and disposed of by a common judgment which is impugned  in  these  appeals.   The High  Court  upheld  the conviction  and sentence awarded to A1 and A2 and  dismissed their  appeal.   However, the appeal filed by the State  was allowed and A3 and A4 were held guilty of offence punishable under  Section  302  read  with  Section  34  IPC.   As  the principal  accused being A1 and A2 were awarded imprisonment for  life  by  the  trial  court,  the  High  Court  in  its discretion   sentenced   A3  and  A4   also  to   the   life imprisonment.

   The  present  appeals  have been preferred by A1  to  A3 only.  A4 Subramani, who was convicted under Section 302 IPC and sentenced to life imprisonment has opted not to file any appeal.

   The  conviction  and sentences awarded to A1 to A3  have been  assailed  on  various grounds canvassed before  us  by learned  counsel  who appeared for them.  It  was  contended that the judgment of conviction and sentence was against law and  facts.   As the case of the prosecution is  based  upon circumstantial   evidence,   it   was    argued   that   the circumstances  were insufficient to connect the accused with the  commission  of  the crime.  The  circumstances  alleged against the appellants are stated to have not been proved on facts  and  even  if proved, did not connect them  with  the commission of crime as, according to the learned counsel for the  accused, important links in the chain of  circumstances

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 13  

are missing.

   The  substance  of the circumstances relied upon by  the prosecution  against all or some of the accused persons  can be summarised as under:

   (1) Existence of illicit sexual relations between A1 and A2.

   (2)  After  her  marriage A1 wanted to get  rid  of  her deceased  husband  as she did not acknowledge the factum  of marriage  with him and considered herself to be the wife  of A2.

   (3) On the date of occurrence A2 and A4 left Madanapalli for  Bangalore  in  a car which was driven by  PW20  in  the company  of  PW38, who was the cleaner.  A-3 joined them  at Bangalore as per their plan.

   (4) On the date of occurrence A2, A3 and A4 were seen in Bangalore near the house of the deceased.

   (5)  The deceased was killed on the intervening night of 28th and 29th August, 1993 between 2 a.m.  and 2.30 a.m.

   (6)  A2, A3 and A4 altogether reached the car parked  at some  distance from the house of the deceased, at about 3.30 a.m.   on 29.8.1993 and left Bangalore for Madanapalli where they reached at about 5.30 or 6.30 a.m..

   (7) Confessional statement Exhibit P-77 made by A4.

   (8)  A1  was last seen with the deceased in their  house when he was alive.

   (9)  Voluntary disclosure statements made by A2, A3  and A4  and consequent recoveries of the incriminating  articles thereafter.

   A1, the betrayer wife of the deceased has been convicted mainly  on  the  ground  of her being  last  seen  with  the deceased  and her involvement in the commission of the crime on  the basis of the confessional statement made by A4.  The circumstance of A1 being last seen with the deceased, though proved, yet cannot lead to the irresistible inference of her being guilty of the crime, because being legally wedded wife of  the  deceased,  she was supposed to be with him  in  his house  where the crime was committed.  This circumstance can be   used   against  her  only  if  there   is   any   other circumstantial  evidence linking her with the ghastly action committed in murdering the deceased.

   In the absence of the confessional statement it could be inferred that she was also subjected to the crime of robbery and her husband was murdered.  It cannot be totally excluded that  A2,  after  realising that his concubine  has  started living  with her husband, got enraged and resolved to finish her  husband  to facilitate his enjoying the extra-  marital relations  with A1.  It appears that the prosecution  itself was  not sure about the involvement of A1 in the  commission of  the crime for which they got herself medically  examined to  ascertain  the possibility of any sexual offence  having been  committed upon her.  It is unfortunate that in a  case like  this,  the investigating agency did not even think  it proper  to  allege  the existence of a  criminal  conspiracy

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 13  

which,  if  proved  against the other  accused,  would  have proved  the commission of offence of murder by A1 also.   In the  absence of a charge for criminal conspiracy we are left only  with  the confessional statement Exhibit P-77 made  by A4.   If  the aforesaid confessional statement is  held  not made  properly or legally admissible in evidence, A1 has  to be  given the benefit of the legal flaws and investigational lapses.

   Before  ascertaining  the legality and admissibility  of Exhibit  P-  77  it  has  to  be  borne  in  mind  that  the confessional   statement  of  A4   which  was  recorded   by Shambulingappa  (PW50), the then CJM, Bangalore has not been signed by the said accused.  The High Court also found that: "we  do hold that the same was not recorded by him in strict compliance  of  Section 164".  It has further to be  noticed that  the  confessional  statement was made by A4  in  Tamil language  which was recorded in Kannada script by PW50  with the  assistance of his Stenographer who knew both Tamil  and Kannada languages.  The aforesaid Stenographer, however, has not  been  examined  as  a witness.   Before  recording  his statement, the Magistrate appears to have put some questions to him to satisfy as to whether the statement being made was voluntary or not.  After being satisfied about the voluntary nature  of  the  confessional statement, PW50  recorded  the statement  which  was  admittedly  not  got  signed  by  A4. Learned  counsel,  appearing for the accused  persons,  have admitted the compliance of all the provisions of Section 164 of  the Cr.P.C.  except the alleged violation of not getting the  signature of the accused on his confessional statement. It  is  worth noticing that in the statement recorded  under Section  313  of the Cr.P.C., A4 denied of having  made  the confessional statement Exhibit P- 77.

   Sub-section (4) of Section 164 of the Cr.P.C.  mandates: "Section 164(4):  Any such confessional shall be recorded in the  manner  provided  in  section  281  for  recording  the examination  of an accused person and shall be signed by the person making the confession;  and the Magistrate shall make a  memorandum  at the foot of such record to  the  following effect:

   I  have explained to (name) that he is not bound to make a  confession and that, if he does so, any confession he may make  may be used as evidence against him and I believe that this  confession  was voluntarily made.  It was taken in  my presence  and hearing and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him."

   Section  281 of the said Code prescribes the mode of the examination  of  accused.  Sub-section (5) thereof  provides "....it shall thereafter be signed by the accused and by the Magistrate or Presiding Judge......".

   The  function of the Magistrate in recording  confession under  Section 164 of the Code is a very solemn act which he is  obliged to perform by taking due care to ensure that all the  requirements  of Section 164 are fully satisfied.   The Magistrate  recording  such a statement should not  adopt  a casual   approach  as  appears  to   have  been   shown   by Shambulingappa  (PW50) in this case.  Besides ensuring  that the   confessional  statement  being   made  before  him  is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 13  

voluntary  and without pressure, the Magistrate must  record the  confession  in  the manner laid down  by  the  section. Omission  to  comply the mandatory provisions, one  of  such being  as incorporated in sub-section (4) of Section 164  is likely  to  render the confessional statement  inadmissible. The  words  "shall  be  signed  by  the  person  making  the confession",  are  mandatory  in nature and  the  Magistrate recording the confession has no option.  Mere failure to get the signature of the person making the confession may not be very  material  if  the  making of  such  statement  is  not disputed by the accused but in cases where the making of the statement  itself is in controversy, the omission to get the signature is fatal.

   Dealing  with  a case where the Magistrate was found  to have  not  complied with the mandate of sub-section  (2)  of Section  164  of the Code, this Court in Kehar Singh &  Ors. v.   State  (Delhi Admn.) [AIR 1988 SC 1883] held  that  the compliance   of   the  sub-section   being   mandatory   and imperative,  its  non  compliance   renders  the  confession inadmissible  in  evidence.  Such a defect cannot  be  cured under  Section 463 of the Cr.P.C.  We have no hesitation  to hold  that  compliance of sub-section (4) of Section 164  of the  Code  is mandatory and its non- compliance renders  the confession  not  admissible  or  reliable.   It  is  settled position  of  law that if a part of confession  is  excluded under   any  provision  of   law,  the  entire  confessional statement in all its parts, including the admission of minor incriminating  facts must be excluded unless proof of it  as permitted  by some other section, such as Section 27 of  the Evidence  Act.   After  referring to a judgment  in  Neharoo Mangtu  Satnami  v.  Emperor [AIR 1937 Nag.220], a  Division Bench  of  the  Bombay High Court in Abdul Razak  Shaikh  v. State of Maharashtra [1988 Crl.Law Journal 382] held:

   "It  is  to  be   considered  whether  non-obtaining  of signature  of  the  accused on  the  confessional  statement recorded  by  the  Magistrate under S.164,  Cr.P.C.   is  an irregularity  which can be cured by invoking the  provisions of  S.463, Cr.P.C.  reproduced above.  The language used  in sub-clause  (4) of S.164 and sub-sec.  (5) of S.281, Cr.P.C. reproduced  above indicates that it is mandatory on the part of  the Magistrate recording confession to obtain  signature of  the  person  whose  confession  he  has  recorded.   The omission  in  that behalf cannot be cured by  examining  the Magistrate under S.463 Cr.P.C.  The Magistrate when examined touching  the confession he has recorded the confession, but by  such  examination the omission to obtain  his  signature cannot  be  supplied.  It appears to us that  the  provision that the Magistrate after recording confession should obtain the signature of the accused thereon is a salutary provision and  has  been specially provided for, for safeguarding  the interest of the accused and, therefore, it is mandatory."

   To the same effect is the judgment in Shamla Hardeo Teli v.   Emperor  [AIR  1941 Nagpur 17] with a rider  that  mere inadvertent  omission to obtain signature of the accused  to statement  under  Section 164 would not  vitiate  confession where  the  accused himself has admitted that he  made  that particular statement.

   It  is  settled principle of law that where a  power  is given  to do a certain thing in a certain manner, the  thing must be done in that way or not at all.  This Court in State of  Uttar Pradesh v.  Singhara Singh [AIR 1964 SC 358]  held

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 13  

"a   Magistrate,  therefore,  cannot,  in  the   course   of investigation, record a confession except in the manner laid down in Section 164.  The power to record the confession had obviously  been given so that the confession might be proved by the record of it made in the manner laid down".

   Looking to the facts of the case we are at pains to note that  Shambulingappa (PW50) failed in the performance of his statutory  obligations  which has resulted in excluding  the otherwise voluntary confessional statement Exhibit P-77 made by  A4.  Had the said Magistrate taken due care and  applied his  mind by referring to the bare provisions of Section 164 of  the  Code,  such a glaring illegality in  recording  the confessional  statement would have been avoided.  In view of this  finding,  no reliance can be placed upon the  judicial confession  Exhibit P-77, allegedly made by A4, particularly against A1.

   We examined the matter with a different angle as well by considering  to  see the admissibility of said  confessional statement not as a judicial confession but as extra judicial confession  made  to PW50.  We found it difficult  to  treat Exhibit  P-77  as  extra-judicial confession of A4  made  to PW50.   Confessions in criminal law have been categorised to be  either  judicial or extra-judicial.  The prosecution  is obliged  to refer and rely on the alleged confession of  the accused  in  any  one  of   the  aforesaid  categories.   As extra-judicial  confession  cannot  be treated  as  judicial confession,  similarly an alleged judicial confession proved to  have  not  been  legally  recorded  cannot  be  used  as extra-judicial  confession.  Otherwise also such an approach would result in dragging the judicial officers into uncalled for  and  unnecessary  controversies.   In  Nazir  Ahmad  v. Emperor [AIR 1936 PC 253] it was observed, which we approve, that:

   "....it would be particularly unfortunate if Magistrates were asked at all generally to act rather as police officers than as judicial persons;  to be by reason of their position freed  from the disability that attaches to police  officers under  S.162 of the Code;  and to be at the same time freed, notwithstanding  their  position  as Magistrates,  from  any obligation  to make records under S.164.  In the result they would  indeed  be  relegated  to the  position  of  ordinary citizens  as witnesses and then would be required to  depose to  matters  transacted by them in their  official  capacity unregulated  by any statutory rules of procedure or  conduct whatever."

   Relying  upon  Nazir  Ahmad’s   case  and  applying  the principles  laid  down in Taylor v.  Taylor [(1876)  1  Ch.D 426] this Court in Singhara Singh’s case (supra) held:

   "The  rule  adopted in Taylor v.  Taylor [(1876) 1  Ch.D 426]  is well recognised and is founded on sound  principle. Its  result is that if a statute has conferred a power to do an  act and has laid down the method in which that power has to  be exercised, it necessarily prohibits the doing of  the act in any other manner than that which has been prescribed. The  principle behind the rule is that if this were not  so, the statutory provision might as well not have been enacted. A   magistrate,   therefore,  cannot  in   the   course   of investigation  record a confession except in the manner laid down  in  S.164.   The power to record  the  confession  had obviously  been given so that the confession might be proved

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 13  

by  the record of it made in the manner laid down.  If proof of  the confession by other means was permissible, the whole provision  of S.164 including the safeguards contained in it for  the  protection  of accused persons would  be  rendered nugatory.    The  section,  therefore,   by  conferring   on magistrates  the power to record statements or  confessions, by  necessary  implication,  prohibited  a  magistrate  from giving oral evidence of the statements or confession made to him."

   In  the  absence  of the legal proof  of  Exhibit  P-77, inadmissibility of the statement of A4 before Shambulingappa (PW50)   to  prove  the  contents   of  that   document   as extra-judicial  confession and the circumstance of A1  being last  seen with the deceased not being incriminatory,  there is no evidence to hold that she has been proved to be guilty beyond  any  reasonable doubt.  Doubt and suspicion  of  her involvement  in  the ghastly crime cannot be ruled  out  but suspicion,  however, strong it may be, cannot take the place of  proof.  Lapses in investigation, failure of the judicial officer  to record the confessional statement in  accordance with  law  and absence of corroborative evidence  leaves  us with  no option but to give A1 the benefit of doubt.   Moral conviction  regarding  the involvement of an accused in  the commission  of  crime  cannot be a substitute  for  a  legal verdict  based upon facts and law.  Though with regret,  but bound  by  law,  we  have no option but  to  set  aside  the judgments  of the trial as well as High Court to the  extent by  which  A1  has  been convicted  and  sentenced  for  the commission  of  the  offence  of  murder  of  Amarnath,  her husband.

   Upon  critical analysis of the evidence led in the  case we  find that the prosecution has succeeded in  establishing the  circumstances Nos.1,2,3,4,5,6 and 9, noted by us in the earlier  part of this judgment.  Those circumstances form  a complete  chain  to  connect  the  other  accused  with  the commission  of  the  crime and are inconsistent  with  their innocence.

   Learned  counsel appearing for Accused Nos.2 and 3 have, however,   vehemently   submitted     that   the   aforesaid circumstances;    firstly  are  not   proved  on  facts  and secondly,  even if held proved, are not sufficient to entail conviction and sentence for their clients.

   So far as Circumstance No.1 is concerned, it has come in evidence  that  A1 and A2 were teachers, working as such  in Ganaondaya  School during the year 1992-93.  Subsequently A2 left  that  school  and  went to  Vidhya  Bharti  School  in Madanapalli.   It  is in the evidence of PWs 23, 33  and  34 that  A1  was  working  as a teacher  at  Madanapalli.   PW9 Ramakrishna  Reddy deposed in the trial court that while  A1 and  A2 were working as teachers at Madanapalli, he had seen them  going together to Cinema Theatre and other places.  He informed  of  their illegal relations to PW3, the father  of the  deceased.  There was a Panchyat between their relatives which  was attended by the said witness wherein A1  declined to  go  to  Delhi to live with deceased.  PW9 had  seen  the aforesaid  two  accused  persons  together  even  after  the marriage  of A1.  Evidence of PW9 corroborates the testimony of  PWs  3  and  7 regarding holding of  the  Panchayat  for settlement  of  the  matrimonial  disputes  between  A1  and Amarnath.   Despite her marriage on 11.3.1992, A1  continued to  work  as Assistant Teacher at Madanapalli from  9.8.1992

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 13  

till  April,  1993 as deposed by PW14.  The prosecution  has successfully  proved the writing of three letters M.O.s  21, 22 and 23 by A1.  In those letters A1 intimated the deceased that  she  was  breaking her relations with him.   She  also described  him  as impotent and threatened that if he  wrote any  letter  in  future  to her, he will have  to  face  its consequences.   In  those letters A1 has even  admitted  her extra-marital relationship with A2.  The authenticity of the letters  having  been written by A1 has been established  by the  prosecution with the report of the hand-writing  expert PW54.   On  the  basis of the evidence  produced  before  it regarding this circumstance, the trial court held:

   "The  above contents of the letters goes to show that at no  point  of time she had loved her husband Amarnath.   She wanted  divorce  from  him.  She thought  that  Amarnath  is important and she felt ashamed to address him as her husband and  she has challenged saying if time comes she want to see his  end in the life.  She has stated tat name Reddy annexed to  her  name  is of a person whom she love  and  given  her heart.   These words of challenge and hatredness towards her husband  Amarnath  goes to show her mental attitude  towards said Amarnath."

   The court further observed that "all these circumstances unequivocally  go  to  show  that A1  Vanaja  had  developed hatredness  towards  her  husband Amarnath  and  was  having revengeful  attitude towards him.  She joined said  Amarnath not  because of her love towards him".  Circumstance of love and  hate  relationship  of  A1 with  A2  and  the  deceased respectively  has also not been very seriously contested  by the learned counsel appearing for the appellants.

   So  far  as  Circumstance No.2 is  concerned,  the  same stands  proved from M.O.s22A and 23A.  In M.O.22A she  wrote to  the deceased ".....why are you still destroying my peace of  mind?....My  parents have written a letter that  I  have changed  but it is their madness.  For them....Good Bye Good Bye.   Do not remember me every in your dreams.  Try to give me  divorce at the earliest".  In M.O.23A she has proved  to have  written  to  the  deceased:  "....why  are  you  still playing  in  my life.  I know all your drama.  If you  want, you  marry again.  If this is also not possible you  divorce me  and you be there only.  ....Ihave removed and thrown the thali  tied by you 15 days back itself.  ...To tell you  the fact  I have a doubt whether you are a human being.  I  have taken divorce as I hesitated to accept you as my husband.... Do  you  know why I was removed from school?  Because I  was with  someone-else....   I will not believe in  your  female like  petence....  If such situation arises I will see  your end  and  I will achieve that.  ....This name Reddy  is  not yours,  it is of that person to whom I have given my heart." It may be remembered that Reddy is none else than A2.  There is  no  doubt in our mind that A1 and A2  had  extra-marital relations even after the marriage of A1 and that they wanted to  get  rid of the deceased in case he did not divorce  A1. This  circumstance  may  not  be relevant so far  as  A1  is concerned,  particularly  when she started living  with  the deceased  in  April,  1993 but is an important link  in  the chain  of the circumstances to connect A2 and his associates with  the  commission  of  the  crime  suggesting  a  cause, occasion and motive.

   So  far  as  Circumstance No.3 is  concerned,  there  is preponderance  of  evidence produced by the  prosecution  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 13  

show  that  A1 and A4 left Madanapalli for Bangalore on  the date  of  occurrence  for which they hired a car  which  was driven  by  PW20.   PW38  who was the  Cleaner  of  the  car accompanied  them.  Learned counsel for the appellants could not  assign any reason to disbelieve the testimony of PWs 20 and  38.   PW21  stated  that he is a  taxi  car  driver  at Madanapalli.   On  28.8.1993 at about 5.00 p.m.  A2  and  A4 came  to  him, sought for a car on rent to go to  Bangalore. As  his vehicle was under repairs, he took them to PW20  and settled  the car for Rs.400/-.  A2 and A4 were known to  him as  he has been plying his taxi in Madanapalli for about  10 years.   The  testimony  of PWs 20, 21 and 38  inspires  the confidence  of  the court to hold the Circumstance  No.3  to have been proved by the prosecution.

   Similarly  Circumstance  No.4  stands   proved  by   the prosecution,  beyond  doubt  by   the  evidence  of  various witnesses  including PWs 20 and 38.  PW26, who is a  hotlier at  Chintamani  Bus  Stand has stated that on  the  date  of occurrence  A2  and A4 had come to his hotel at about  6  or 6.30  p.m.   and  took tiffin.  Chennappa (PW15), who  is  a supplier in Sambrama Bar at Banswadi has stated that all the three  accused A2, A3 and A4 had come to his bar along  with another person on that day.  They had taken meals and drinks and  A2  paid the bill.  Similarly Vinayaka (PW45) who is  a Bidi  Shopkeeper  stated that A2, A3 and A4 had come to  his shop  which  is located near the house of the  deceased  and took  beetle-leaves  and  cigarettes for which A2  paid  the amount.   Krishnappa (PW4) who is the owner of the house  in which  Amarnath,  deceased  along  with  his  wife  A1  were residing,  has stated that on 28.8.1993 at about 11 to 11.30 p.m.   he had seen a car from the State of Andhra Pradesh in front of Kodaramma Temple near his house.  He identified the car  when shown to him.  The testimony of PWs 4, 15, 20, 21, 38  and  45  leave  no  doubt in our mind  to  come  to  the conclusion  that the prosecution has successfully proved the aforesaid circumstance.

   So  far  as  Circumstance No.5 is concerned, it  is  not seriously  disputed  that  the deceased was  killed  on  the intervening  night  of 28th and 29th August, 1993 between  2 a.m.   to  2.30  a.m.  The time of homicidal  death  of  the deceased   stands   established   by    the   testimony   of Dr.L.Thirunavkarasu  (PW17)  who  has   deposed  that  while conducting  the  post-mortem on the body of the deceased  he found  20 injuries on his person.  Many of the injuries were chopped  and deep cut injuries.  The throat was found cut in front  of the neck.  Injury No.10 showed that penis  scrolum and testis on both sides were found with clean cut.

   From the evidence of Chinnappan (PW41) and Prabhu (PW43) it  is established that the deceased left his place of  work at  about 2 a.m.  for his home on a cycle.  It has also come in  evidence that the deceased could reach his rented  house from  the place of his duty within 15 minutes on cycle.  Any of  the accused, particularly A1 who was concededly with the deceased  has  not disputed the factum of the death  of  her husband  on  the intervening night of 28th and 29th  August, 1993.

   Circumstance  No.6  stands  fully   established  by  the evidence of PWs 20 and 38.  Narayana (PW20) had deposed that after  taking  drinks  and  meals,  all  the  three  accused directed  him  to  stop  the   vehicle  there  itself,  i.e. Banswadi,  Mukanda  Theatre and told that if  anybody  asked

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 13  

about them, to say that they had gone to a marriage.  A2, A3 and  A4 thereafter went away informing the witnesses that if they   returned  earlier  to  the   car  they  will  go   to Madanapalli.   The witness PW20 along with cleaner slept  in the  car  and  at about 3.30 a.m.  all the  aforesaid  three accused  came to the car and asked him to drive them back to Madanapalli.   After they had travelled about 5  kilometers, the accused told the driver that they wanted to go to urinal for  which the car was directed to be stopped.  They reached Madanapalli  at about 5.30 or 6.30 a.m.  To the same  effect is the statement of Shabir Basha (PW38).

   Learned counsel appearing for the accused have canvassed before  us  that  the  aforesaid  witnesses  should  not  be believed  because  they had allegedly been detained  by  the police  for some time on suspicion of being involved in  the commission  of the crime.  The submission cannot be accepted for  two reasons, firstly it is not established that any one of the accused had been arrested by the police in connection with  the commission of the crime and secondly, even if they were  subjected to interrogation by the police, the  reasons are  obvious as the investigating agency on facts might have reasonably  suspected them also to be involved in the crime. PW20  has  only stated that immediately after receiving  the documents  from the owner, the police took him to Chintamani "on  the next day I was taken near the Mukunda Theatre.   On the  next  day  I  was asked to be  in  the  police  station itself".  The mere fact that he was told to be in the police station  does not suggest, much less prove that the  witness was  an accused person involved in the crime.  In reply to a question  in cross-examination, the witness has specifically stated:   "it is false to say that I was detained in  police station  for 15 days saying that I am connected to the  said crime".  Similarly PW38 has stated that he, along with PW20, were  taken  by the IO to the police station along with  the car   from  Madanapalli.   In   cross-examination   he   too categorically  stated "It is false to say that I way kept in police custody for 15 days on suspicion on my involvement in this case.  It is false to say that my uncle got me released from  police".   The  defence miserably failed to  show  any enmity  of  the  aforesaid  witnesses with  the  accused  or suggest  any  other reason for their allegedly making  false statements.   After minutely and critically examining  their depositions  we  have come to the conclusion that  both  the trial  as  well as the High Court were justified in  relying upon  their  testimony.  Acceptance of their evidence  would prove Circumstances 3, 4, 5 and 6.

   So   far   as  Circumstance   No.9  is  concerned,   the prosecution  has successfully proved the making of voluntary statement  Exhibit  P-64 by A2 and consequent recoveries  of incriminating  articles seized vide Panchanama Exhibit P-17. Similarly  A4  is  proved to have made  voluntary  statement Exhibit-65.   It  is also proved that he produced gold  ring M.O.50,  his  blood  stained clothes M.Os.  52  and  53  and Cigarettes  M.O.51  along with a pair of shoes M.O.49  which were  seized  vide  Panchnama.    The  disclosure  statement Exhibit  P-55  by  A3 is also proved along  with  Panchanama Exhibit  P-20 by which the incriminating articles  including his  blood  stained  clothes were  seized.   The  disclosure statements  and  the  Panchanamas stand duly proved  by  the testimony  of  the  investigating officer  and  other  Panch witnesses.

   Consequent  to  the  disclosure   statement  and  during

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 13  

investigation, the jewellery produced by the accused persons has  been proved to be belonging to A1.  None of the accused has  given  any explanation regarding their possession  over the  jewellery  of  A1.  It has also come in  evidence  that clothes  produced  by  the accused persons which  they  were wearing  on the date of occurrence were stained with  blood. The  seriologist  report Exhibit 87 proves that  the  stains found on the clothes of the deceased and the accused were of human  blood.  It has also come in the report that the blood group of the dececeased was "B" and the origin of the bloood group found on the clothes of the accused was also "B".  The accused  have  not  given any explanation as  to  how  their clothes were stained with human blood of "B" group which was the  blood group of the deceased.  Learned counsel appearing for the appellants made vain attempt to impress upon us that the  seriologist report was not produced at the trial court, which  we  do not accept in view of the fact that  the  said report is shown to have been admitted in evidence and marked Exhibit  87.   Otherwise also the report of the  Seriologist can  be  used  as evidence without any  formal  proof  under Section 293 of the Cr.P.C.

   In  a  case  based  upon  circumstantial  evidence,  the prosecution is under a legal obligation to prove, firstly on facts  the existence of such circumstances and secondly that the  circumstances  form a complete chain which lead to  the irresistible conclusion that the accused are guilty and such circumstances  are  inconsistent with their  innocence.   On proof of the aforesaid conditions, the court can convict the accused  of the charges framed against them.  It is  rightly said that witnesses may lie but the circumstances cannot.

   The   evidence  on  record  in   this  case  has   fully established the Circumstances Nos.1,2, 3,4,5,6 and 9 against A2  and  Circumstance Nos.3,4,5,6 and 9 against A3.  It  has also  further  come in evidence that A2, A3 and A4  were  on friendly  terms.  This friendship is shown to have  prompted them  to commit the crime for which they have been  charged, convicted and sentenced.

   Under  the  circumstances,  giving her  the  benefit  of doubt,  the appeal filed by A1 is allowed and the conviction and  sentence,  in  so far as they relate to  her,  are  set aside.   She is directed to set at liberty forthwith, if not required  in  any  other  case.  There is no  merit  in  the appeals  filed by A2 and A3 which are accordingly  dismissed by confirming that part of the judgment of the High Court by which  they have been convicted under Section 302/34 IPC and sentenced to life imprisonment.