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PETITIONER: PAKKIRISAMY

       Vs.

RESPONDENT: STATE OF TAMIL NADU

DATE OF JUDGMENT:       30/09/1997

BENCH: M.M. PUNCHHI, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.P. KURDUKAR, J.      The Sessions  Court of  East Thanjavur at Nagappattinam as also  the  High  Court  at  Madras  by  their  concurrent judgments and  orders found  the  appellant  guilty  of  the offences punishable  under Sections  302  and  392  IPC  and accordingly sentenced  him to  suffer life  imprisonment  on first count  and RI  for ten years on second count. Both the sentences were  directed to  run concurrently. The appellant by special Leave has filed this appeal to this Court. 2.   The facts  of the prosecution case lie in a very narrow compass and shorn of details may be summerised as under:-      Panchapagesa Iyer,  a stone  deaf in  his  sixties  was staying  with  his  wife  Mohambal  since  deceased  in  Mel Agraharam in Mudikondan. The couple had no child. They owned some agricultural  lands which  were supervised  by Mohambal with the  help of  appellant. They  belonged to  an affluent family having  various jewellery  items of  jewels, diamonds and gold. The appellant was said to be a trusted servant and a man  of her  confidence. Mohambal  was fond of wearing the jewellery on her person. The appellant was a young boy of 29 years at the time of occurrence. The appellant being trusted servant had  an easy  access in  the house of his master and was friendly  with the couple. Rangam (PW 2) is the resident of the  same village  and happened to be a close relative of Mohambal and  has been  residing just  opposite  her  house. Mohambal used to attend to her house hold duties in addition to the  supervising of her agricultural lands. The appellant has got a sister called Bharani Ammal (PW 9) who had come to the said  village for  some medical treatment. Bharani Ammal (PW 9)  was unmarried  and the  appellant was trying to find out a  match for  her. For  the said marriage, the appellant needed some  money and 14 sovereigns. The appellant being an agricultural labourer  was unable  to collect  money. It was this need  which  according  to  the  prosecution  made  the appellant to commit the present crime. 3.   It is  alleged by  the prosecution  that Mohambal  very often used  to sit  on the steps of her house in the evening and  used   to  spent  sometime  in  chitchatting  with  the neighbours and  other acquainted  passer-byes from the road.

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At about  8.30 p.m,  on august  24, 1986,  the appellant had come to  the house  of Mohambal  and at  that time,  she was wearing ear  rings and  Mohambal and  at that  time, she was wearing ear  rings and nose ring studded with diamonds. Some gold ornaments  were also  worn by her. Late in the evening, when thee  was lull on the road, the appellant is alleged to have throttled Mohambal and thereafter carried the dead body to a  nearby shed at a distance of about 100 yds. and tied a saree around  her neck and kept her hanging to the rafter in the said shed. 4.   On August 25,1986, in the morning, another maid servant Lakshmi @ Chappi (PW 4) as usual came to the house for doing house hold  duties but  at that time, Mohambal was not found got up  as usual.  After finishing her work, she went tot he house of  Rangam (PW  2) and  told him that Mohambal was not seen in  the house.  It is  alleged by  the prosecution that Narayanan (PW  1), Rangam  (PW  2),  Krishnamoorthy  (PW  3) Vaidyanathan (PW 5)  and Savithri (PW 6) and other people in that  locality   started  searching  for  Mohambal.  In  the meantime, Chappi  (PW 4)  came to  the house of Mohambal and told the crowd that she could not be traced anywhere. Search continued and  at about  10.00 a.m.,  they noticed  the dead body of  Mohambal  inside  the  cattle  shed  in  a  hanging position. The  said cattle  shed  belonged  to  Vanchinathan Iyer, Narayanan  (PW 1)  who is  the son of Ramamoorthy Iyer and a  cousin of Panchapagesa Iyer. he and other prosecution witnesses noticed  that valuable ornaments were missing from the dead  body of  Mohambal, Naryanan (PW 1) therefore, went to the police station at Nannilam and gave the complaint Ex. P-3 .  Kali Das  (PW 16) after recording the FIR produced to the scene  of offence and recording the FIR proceeded to the scene of  offence and  recording the  FIR proceeded  to  the scene of  offence and  after reaching  there at  about 11.30 a.m.  commenced  the  investigation.  After  completing  the inquest panchanama,  the dead  body was  sent to  the  Govt. Hospital at  Nannilam. During  investigation, statements  of various persons  were recorded.  A search  was undertaken to trace the  appellant. It was then noticed that appellant was not available  in the  village and  was absconding.  ON 28th August, 1986, at about 2.00 p.m., Ramasami (PW 12) a village administrative officer  and Marimuthu  (PW  13),  a  village assistant brought the appellant to the police station with a confessional statement  and arrested  the appellant.  During interrogation, the  appellant  made  a  voluntary  statement under section  27 of  the Evidence  Act  which  led  to  the recovery of  incriminating articles (MOs 1 to 4). Mahazar in that behalf was prepared by the investigating officer. After completing the  investigation,  the  appellant  came  to  be charge sheeted  for the  offences punishable  under sections 302 and 392 IPC. 5.   The appellant  denied the  charge and according to him, he had committed no offence. He also denied to have made any confessional statement.  he also  denied to  have  made  nay statement which led to the recovery of MOs 1 to 4. 6.   There is  no eye  witness to  the crime  and the entire prosecution case  rests on  the circumstantial  evidence. In order to  prove the  various circumstances  to complete  the chain  thereof,  prosecution  examined  many  witnesses  and relied upon  the confessional  statement (Ex. P-8) which was record by  Ramasami (PW  12)  and the recovery of MOs 1 to 4 at the  instance of  the appellant.  The fact  that Mohambal died a  homicidal death  was not seriously challenged before the Courts  below as  also  before  us.  It  is,  therefore, sufficient to  state that  Dr. Padma  Nammalwar (PW  10) who performed the  autopsy on  the dead body of Mohambal on 28th

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August, 1986,  testified that  there were  innumerable  hail marks all  around the  neck and the chest. There was also an abrasion on  the left  hand (from  inside) and  on the right hand; there  was a  deep nail  mark. All these injuries were ante  mortem.   Mohambel  died   due  to   asphyxia  due  to strangulation of  the neck.  The death  might have  occurred about 30  to 40 hours prior to autopsy. The final opinion of the doctor  is Ex.P-6.  In view of this medical evidence, we confirm the  findings of the courts below that Mohambal died a homicidal death. 7.   Apart from  various circumstances  pressed into service by the  prosecution which  were held  proved by  the  courts below,  it  mainly  relied  upon  two  vital  circumstances, namely,  extra   judicial  confession  (Ex.P8)  recorded  by Ramasami (PW  12) and  (B) the recovery of MOs 1 to 4 at the instance of  the appellant.  The extra  judicial  confession (Ex.P8) was  said to  have been recorded by Ramasami (PW 12) on August  28, 1986  when the  appellant himself went to him and made  a statement  admitting his  guilt. After recording the confessional  statement, Ramasami (PW 12), Marimuthu (PW 13)  and the appellant then went to the police station where he  was   produced   before   the   investigating   officer. Confessional statement  (Ex. P8)  was  handed  over  to  the police  officer.   Both  the  courts  below  found  ex.p8  a voluntary statement  of the  appellant which was recorded by Ramasami (PW  12) being  trustworthy.  While  assailing  the counsel for  the appellant  urged that  Ex.P8 ought  to have been rejected  by the courts below , learned counsel for the appellant urged  that Ex.P8  ought to  have been rejected by the courts  below as  the  possibility  of  the  same  being recorded in  the police  officer could  not be ruled out. It was further  contended that  there was  no  reason  for  the appellant to  make such  an extra judicial confession before Ramasami (PW  12). Assuming such a statement was made by the appellant, he retracted the same at the earliest opportunity before the  CJM when his statement under Section 164 Cr.P.C. was recorded  by CJM  and urged  that in  the face  of  this retraction, no  value could be attached to the alleged extra judicial confession  (Ex.p8) .  This document  was  although part of  the present  proceedings yet  both the courts below have not  read the  same in  proper perspective.  Taking the last contention  first, on  perusal of  the  statement  last contention first,  on perusal  of the  statement before  the CJM, we  find that  it cannot be called a retraction for the simple reason  that the appellant did not make any reference to the  extra judicial confession (Ex.P8) . All that he says in his  statement before the CJM was that he is innocent and had not committed any crime. It is, therefore, just a denial of the Crime. We, therefore, do not attach any importance to the statement  recorded by the CJM. Coming to the first part of the  argument, we  have gone  through the  extra judicial confession  (Ex.  P8)  was  also  through  the  evidence  of Ramasami (PW 12),  who had testified that the appellant came on his  own to  his office  and confessed  the guilt and his statement was  recorded verbatim. It is only after recording Ex. P8,  he along  with Marimuthu  (pW 13) and the appellant went to  the police  station and  submitted the  same tot he police officer  whereupon appellant  was arrested.  Ramasami (PW 12)  is an  independent witness  and held  a responsible post in  the village.  He is not related or anyway connected with the  family of  the deceased.  Nothing was suggested to this witness  as   to why  he should  go out   of the way to record a  false statement  of the appellant. He emphatically stated that  Ex.P8 was recorded in his office and thereafter they went  to the  police   station. We,  therefore, find no

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substance in  any of  these contentions  raised on behalf of the  appellant  as  regards  the  genuineness  of  Ex.P8  or admissibility thereof. 8.   Mr. Murlidhar,  learned counsel  then contended that it is  well   settled  that  the  evidence  of  extra  judicial confession is  a week  type of  evidence an d ordinarily the court would  be slow  to accept  such type  of evidence.  He therefore, urged  that Ex.  P8 be left out of consideration. We are  unable to accept this broad proposition put forth on behalf of  the appellant.  It is  well settled  that it is a rule of  caution where  court would  generally look  for  an independent  reliable   corroboration  before   placing  any reliance upon such extra judicial confession. It is no doubt true the extra judicial confession by its very nature rather weak type  of evidence and it is for this reason that a duty is cast  upon the court to look for corroboration from other reliable  evidence   on  record   such   evidence   requires appreciation with  a great deal of care and caution. If such an extra  judicial confession  is surrounded  by  suspicious circumstances,  needless   to  state  that  its  credibility becomes doubtful  and consequently  it loses its importance. The same  principle has  been annunciated  by this  Court in Balvinder Singh Vs. State of Punjab, 1995 Suppl (4) SCC 259. In the  facts and  circumstances of  this case, we hold that the courts  below committed  no error in relying upon Ex.P-8 as the  same  is  corroborated  from  several  other  proved circumstances. 9.   Coming to  the next  important circumstance relied upon by the  prosecution was  recovery of  the jewels  and  other valuable articles  MOs to 4 at the instance of the appellant pursuant to  a disclosure  statement under Section 27 of the Evidence Act.  Mahendran (PW  14) has  proved the Panchanama (Ex. 14)  in respect  of recovery  of MOs. 1 to 4. Narayanan (PW 1)     and Rangam (PW 2) who were residing just opposite the house of Mohambal, had identified these items which were on the person of Mohambal. We have gone through the evidence of Naryanan  (PW 1),  Rangam (PW 2) and ramasami (PW 12) and we find  that the  said evidence  does not  suffer from  any infirmity. The  courts below,  in our  opinion, have rightly accepted the  said evidence  which  again  is  an  important circumstance in the chain of circumstantial evidence. 10.  Apart from  the aforesaid  two vital circumstances, the prosecution also  relied upon the evidence of Krishnamoorthy (PW 3) who testified that late in the evening at about 10.00 O’clock, he  saw a  shadow of a person who was moving in the direction of  the house  of Mohambal  and on making inquiry. the said  person gave  his identity  (appellant). On further query, the  appellant told  that he is going to the house of his master.  Thereafter  within    15  Minutes  he  saw  the appellant returning  towards the tank side and were chatting with  Muthu   Krishnan  by   the  side   of  the   house  of Krishnamoorthy (PW 3) at about 11.00 p.m. This appellant had gone to  the house  of his  master, returned  to the tank at about 11.00 p.m. and thereafter disappeared, In between what happened was testified by Sh. Vaidyanathan (PW 5). According to him,  on August  24,1986, at  about 8.30 p.m., he went to bed and  during the  said night  , he  heard the  noise like "Grrrr". However, he thought that the said noise might be of a dog  and thereafter  he went  to the tank where Bhajan was going on.  When he  returned home, he saw the appellant near the house  of Krishnamoorthy  (PW 3)  and was  chatting with somebody and  telling him  that his  younger sister had come here for betrothal and the family of her bridegroom demanded 15 sovereigns  but he had no means and does not know what to do. The marriage required to be performed. This circumstance

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was relied  upon by  the prosecution  to show that appellant was in a dire need of funds to celebrate the marriage of his sister and  it was  for this  reason, the  appellant  taking advantage of  the helpless  couple thought of committing the crime and  robbing the  valuable ornaments which were on the person of  Mohambal. This  evidence, therefore, corroborates the fact  that appellant  was in  immediate need of money to perform the  marriage of his sister and to secure the money, he committed  the crime  in question.  Both the courts below have accepted this part of the prosecution story. We don not see any reason to defer from the said finding. 11.  The fact  that the appellant’s sister Bharani Ammal (PW 9) was  staying in  the said village and was of marriageable age was  not denied. The appellant was frantically trying to find out a suitable match was again proved from the evidence of Bharani  Ammal (PW  9), the  sister herself and two other witnesses, namely, Rajendran (PW 8) an Manivannan (PW 7) who was a  Homeopathic doctor  and giving  treatment to  bharani Ammal. From this evidence, we hold that the appellant was in need of a money to celebrate the marriage of his sister. 12.  The next  circumstance which  was relied  upon  by  the prosecution was  that the  appellant was  not found  in  the village where  he ordinarily ought to be and was absconding. Only  on   28th  August,   1996,  he  went  to  the  Village Administrative office and gave a confessional statement (Ex. P8) which  was recorded  by Ramasami (PW 12). No explanation whatsoever was  given by  the appellant  as to  where he was during these  four days.  The courts  below, in our opinion, rightly held  that the appellant was absconding between 24th August, 1986  and 28th  August, 1996 and this would indicate beyond reasonable  doubt that  the appellant  had  a  guilty mind. 13.  After going  through the  judgments of the courts below and other  oral and  documentary evidence  on record, we are satisfied that  the impugned  judgments of  the courts below suffer from  no infirmity an there is no substance in any of the contentions raised on behalf of the appellant. 14.  In the  result,  the  appeal  fails  and  the  same  is dismissed.