Velu v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 06.04.2009CORAMTHE HONOURABLE MR. JUSTICE C.NAGAPPANAND THE HONOURABLE MR. JUSTICE T.SUDANTHIRAMCrl.A.No. 13 of 2008 Velu.. Appellant/Accused Vs.StateRep. by The Inspector of Police,Kondalampatti Police Station... Respondent/ComplainantPrayer : Appeal filed under section 374 (2)Cr.P.C against theJudgment, dated 7.12.2007, passed in S.C.No. 388 of 2006 on the fileof I Additional Sessions Judge, Salem. For Appellant:: Mr. R.John Sathyan for Mr. K.Balakrishnan For Respondent :: Mr. V.R.Balasubramaniam, Additional Public ProsecutorJ U D G M E N T(The Judgment of the Court was made by C. NAGAPPAN, J.)The appellant Velu is the sole accused in Sessions CaseNo.388 of 2006 on the file of I Additional Sessions Judge, Salem,and he has preferred this appeal challenging the conviction andsentence imposed on him in the case. For the sake of convenience,in this Judgment, the appellant will be referred to as accused. 2. The learned First Additional Sessions Judge found theaccused guilty of the charges under Sections 302, 404 and 201 r/w302 IPC and sentenced him to undergo Life Imprisonment and to pay afine of Rs.10,000/-, in default to undergo one year RigorousImprisonment for the offence under Section 302 IPC; and sentencedhim to undergo Rigorous Imprisonment for two years and to pay a fineof Rs.2,000/-, in default to undergo two months Rigorous Imprisonmentfor the offence under Section 404 IPC; and sentenced him to undergo https://hcservices.ecourts.gov.in/hcservices/ Rigorous Imprisonment for four years and to pay a fine of Rs.2,000/-,in default to undergo two months Rigorous Imprisonment for theoffence under Section 201 r/w 302 IPC.3. To prove the charges, the prosecution examined P.Ws.1 to16 and marked Exs.P1 to P29 and M.Os.1 to 11.4. The prosecution case is briefly summarised as follows. P.W.13 Lakshmi is the elder sister of deceased Kamatchi andP.W.12 Sumathi is her daughter and P.W.2 Shanthi is the daughter ofanother elder sister of the deceased. Accused Velu and P.W.4 Madeshwere co-workers in Vijay Trading Company and Kamatchi was employedin Raja Mill and she used to advance loans for interest. Kamatchigave loan to the accused and later, they developed illicit intimacyand were living as husband and wife. Kamatchi used to visit the workplace of the accused for collecting interest and she threatened himto come and live with her or else pay back the money. Velu wasdisturbed by the conduct of Kamatchi and told P.W.4 Madesh that shehas to be done away with for solving the problem. It is also theevidence of P.W.2 Shanthi and P.W.12 Sumathi that one day theyaccompanied Kamatchi and they met the accused and Kamatchi demandedrepayment of the loan and the accused promised to pay back the loanand asked her not to further disturb him. On the occurrence day, P.W.4 Madesh along with his familywent to his mother-in-law's house for attending death anniversaryand at about 6.00 p.m. on the way he saw accused Velu in the cycleconversing with Kamatchi in front of Sooramangalam Keerthana Theatreand while returning from the mother-in-law's house at 10.30 pm,he saw accused Velu taking Kamatchi in his cycle towards Kollapatti.Thereafter, Velu did not report for work. On 25.5.2003, at 7.00a.m., P.W.1 Ponnuvel switched on the motor in his well for irrigatinghis lands and at about 9.00 a.m., he peeped inside the well to seethe water level and he found dead body of a female floating in thewell and he went to Irumbalai Police Station and gave Ex.P1Complaint. P.W.9 Sub-Inspector Palanisamy received the complaint andregistered a case in Crime No.491/2003 under Section 302 r/w 201 IPCand prepared Ex.P13 First Information Report and despatched the sameto the Higher Officers.P.W.15 Inspector M.Sureshkumar received the Express Reportand took up the investigation on 25.5.2003 at 1.30 p.m. and went tothe land owned by P.W.1 Ponnuvel and took out the body from the welland prepared Ex.P5 Observation mahazar in the presence ofP.W.5 Munudasu. Ex.P23 is the Rough sketch. He took photographs ofthe body and the occurrence place through P.W.11-PhotographerSadiq Basha and Ex.P15 is the photo and Ex.P16 is the negative. Heconducted inquest on the body of Kamatchi from 2.30 p.m. and 5.00p.m. and examined P.W.1 Ponnuvel and some others and prepared Ex.P24 https://hcservices.ecourts.gov.in/hcservices/ Inquest Report. He seized M.O.2 White Towel, M.O.7-series Pair ofRubber Slippers and M.O.8 Sowri under Ex.P6 Mahazar in the presenceof P.W.5 Munudasu and another. He sent the body for post-mortem.P.W.10 Dr.Vallinayagam conducted post-mortem on the body ofKamatchi at 10.30 a.m. on 28.5.2003 and found the following: "Rigor Mortis passed off all over the body. Decomposed body of a female. Injuries - 1) A transversely placed ligature abrasion presentsurrounding the body 28 cm x 1 cm present in circle 3 times aroundthe neck. Crescentic abrasions present above and below the ligaturemark 4 on left side and 6 on right side. On Dissection, contusionon right side of neck 7 x 5 x 2 cm and over left side of neck8 x 5 x 3 cm fracture of thyroid cartilage present, hyoid bone isintact. Rupture of muscles present below the ligature mark. 2) Acontusion with laceration present on the occipital region of thescalp 9 x 6.0 x 5 cm 3) Abrasions - L Eyebrow 2 x 1 cm; below R Eye 3x 1 cm; R Lumbar Region 7 x 3 cm; R Cheek 5 x 3 cm;L Knee 3 x 1 cm;Other Findings - Heart - Fluid Blood present. Myocardium - Normal.Coronaries - Patent. Liver, Spleen, Kidneys - Congested.Conjunctiva - Reddish in colour. Pelvis - Intact. Scalp, Bonesmembranes - Intact. Brain - Congested. Pelvis - Intact. Spinalcolumn and cord - Intact. Uterus - Intact, Normal. Fingernails -Bluish in colour."He expressed opinion that the deceased died due to Asphyxia due toLigature strangulation, 3 to 5 days prior to post-mortem examination.Ex.P14 is the Post-mortem certificate.P.W.15 Inspector Suresh Kumar took photographs of the bodyand sent them to the neighbouring police stations for identifying thebody. He examined some witnesses on 1.6.2003, 3.6.2003 and 4.6.2003and did not get any clue with regard to the identification of thedeceased and the accused. He examined P.W.10 Post mortemDr.Vallinayagam on 5.6.2003 and recorded his statement. Hetransferred the case to Kondalampatti police station. P.W.16 Inspector Vivekanandan of Kondalampatti PoliceStation on 6.6.2003 registered a case in Crime No.541/2003 on hisfile under Sections 302 and 201 IPC and prepared Ex.P26 FirstInformation Report. On 7.6.2003, he examined P.W.2 Shanthi, P.W.3Lakshmi, P.W.12 Sumathi and recorded their statements. He saw theaccused coming on cycle in front of Thirumagal theatre inSivathapuram Junction in Kondalampatti - Bangalore Main Road andarrested him on 10.6.2003, at 10.30 a.m., and examined him in the https://hcservices.ecourts.gov.in/hcservices/ presence of P.W.6 V.A.O. Kari and another and recorded theconfession statement given by the accused in the presence of theabove witnesses. Ex.P7 is the admissible portion of the confessionstatement. He recovered M.O.9 Cycle of the accused under Ex.P8Mahazar in the presence of P.W.6 V.A.O. Kari and another at 12.00noon. The accused took P.W.16 Inspector Vivekanandan and thewitnesses to the house of P.W.3 Lakshmi and inside the house he tooka money-purse containing M.O.4 Gold Thali with four balls, which washidden under the brick over which there was a steel trunk box andthe Investigation Officer seized the same under Ex.P9 Mahazar, in thepresence of the same witnesses and he also recovered M.O.3 Goldgobichain produced by P.W.3 Lakshmi under Ex.P10 Mahazar in thepresence of same witnesses. He examined P.W.3 Lakshmi and someother witnesses and recorded their statements. He produced theaccused before P.W.7 Tahsildar Thangavel on 10.6.2003 and theTahsildar recorded Ex.P11 Confession statement given by the accused.P.W.16 Inspector Vivekanandan sent the accused for judicial remand.He altered the case into one under Sections 302, 201 and 379 IPC andsent Ex.P27 Report. On the same day, he examined P.W.11 PhotographerSadiq Basha and some other witnesses and further examined P.W.2Shanthi and P.W.12 Sumathi and recorded their statements. On12.6.2003, he examined P.W.4 Madesh in Chevvapet and recorded hisstatement. On 13.6.2003 he gave Ex.P19 Requisition for sending thearticles for chemical examination. Exs.P21 and P22 are the ChemicalExaminer's Report and Serologist Report. He concluded theinvestigation and filed the Final Report on 27.6.2003.6. The accused was examined under Section 313 CrPC and hedenied complicity. No witness was examined and no document wasmarked on his side.7. The learned Additional Sessions Judge convicted theaccused for the offences under Sections 302, 404 and 201r/w. 302 IPC and sentenced him as stated earlier and hence, thepresent appeal. 8. Mr.R.John Sathyan, learned counsel appearing for theappellant, submits that the prosecution has not clearlyestablished the circumstances relied on by it and the chain is notcomplete. Per contra, Mr. V.R.Balasubramaniam, learned AdditionalPublic Prosecutor, submits that prosecution has established thecircumstances and proved the guilt of the accused beyond reasonabledoubt. 9. To prove the charges against the accused Velu, theprosecution has relied on the following circumstances. "1.The death is homicidal. 2. P.W.4-Madesh has last seen the accused Velu and Kamatchitogether prior to occurrence. https://hcservices.ecourts.gov.in/hcservices/

3. Motive as spoken to by Prosecution Witnesses 2, 4 and 12. 4. Statement of the accused leading to recovery of M.O.4-GoldThali and four balls belonging to deceased. 5. The confession given by the accused Velu to P.W.7-TahsildarThangavel. 10. Kamatchi died of homicidal violence is established bythe testimony of post-mortem Doctor. P.W.10-Dr.R.Vallinayagam hastestified that he found a transversely placed ligature abrasionsurrounding the body in circle three times around the neck withcrescentic abrasions present above and below the ligature mark onboth sides and on dissection, he found contusion on both sides ofneck with fracture of thyroid cartilage and rupture of muscles belowthe ligature mark and he has expressed opinion that the deceasedKamatchi died due to asphyxia due to ligature strangulation 3 to 5days before the post-mortem. Ex.P14 is the Post-Mortem Certificateissued by him. Accepting his testimony, i t becomes clear thatKamatchi suffered homicidal death due to strangulation. 11. P.W.4-Madesh is working as a loadman and he has testifiedthat he and the accused Velu were working together in Vijay TradingCompany and he knew Kamatchi well and she had advanced loan to theaccused and to collect the same, she used to come and meet theaccused Velu and it developed into an illicit intimacy and both ofthem were living as husband and wife and Kamatchi often visited theirwork place viz., godown and threatened the accused to come and livewith her or otherwise to pay back the money and the accused Velu wasvery much disturbed by her conduct and he told P.W.4-Madesh thatKamatchi has to be done away with and then only the problem will getsolved. P.W.4-Madesh has further testified that on the particularday, he went to his mother-in-law's house with his family members forannual death ceremony and on the way at 6 pm he saw accused Velu incycle talking with Kamatchi in front of Keerthana theatre inSooramangalam and while returning from the mother-in-law's house at10.30 pm via Milk dairy, he saw accused Velu taking Kamatchi in hiscycle towards Kollappatti and thereafter accused Velu did not reportfor work and after 20 days, he happened to know about the occurrencethrough newspaper and Police examined him in his godown.12. The learned counsel for the appellant submits that theprosecution claimed that the accused was arrested on 10.6.2003 andP.W.4-Madesh was examined only on 12.6.2003 and P.W.2-Shanthi in hertestimony has stated that she saw P.W.4-Madesh and accused Velu inKondalampatti Police Station when she went there and she identifiedaccused Velu in the Police Station and the learned counsel furthersubmits that on suspicion, Police kept P.W.4-Madesh, accused Veluand one Ponnusamy in the Police Station and later, by way of https://hcservices.ecourts.gov.in/hcservices/ arrangement, P.W.4-Madesh was made as a witness to depose falsely andthe Investigation Officer has not verified as to whether he is a co-worker along with the accused Velu and the integrity of P.W.4-Madesh is doubtful and no reliance can be placed on his testimony.It is true that P.W.2-Sumathi, in the cross-examination, has statedthat she saw P.W.4-Madesh and the accused Velu in KondalampattiPolice Station but it is vague. P.W.2-Shanthi did not mention thedate on which she saw them in the Police Station. No suggestion hasbeen put by the defence to P.W.4-Madesh in this regard and nothingtangible was elicited to discredit his testimony. There is also noreason for him to depose falsely implicating the accused in the case.His testimony as having seen the accused taking Kamatchi with him inthe cycle on the occurrence day is clear, cogent and credible anddeserves acceptance. 13. P.W.4-Madesh has categorically stated about the lendingof loan by Kamatchi to the accused, their illicit relationship, thefrequent threats made by Kamatchi to the accused and the accusedbeing perturbed by it. P.W.2-Shanthi and P.W.12-Sumathi, who arenieces of deceased Kamatchi, have also testified that Kamatchi lentloan to the accused and they accompanied Kamatchi when she went tomeet the accused and in their presence Kamatchi demanded the loanamount and the accused promised to repay the same and also told hernot to disturb him. From the testimonies of P.Ws.2, 4 and 12, it isclear that there was motive for the occurrence. The submission of thelearned counsel for the appellant that the motive spoken to is a weakone, cannot be accepted in the facts and circumstances of the case. 14. The next circumstance is the statement given by theaccused leading to recovery of M.O.4-Gold Thali belonging to deceasedKamatchi. The Investigation Officer P.W.16-Inspector Vivekanandanhas stated that he saw the accused coming in his cycle in front ofThirumagal theatre in Sivathapuram junction at Kondalampatti-Bangalore High Road at 10.30 am on 10.6.2003 and he arrested him andenquired him in the presence of P.W.6-Village Administrative OfficerKari and another and recorded the confession statement given by himand the accused gave Ex.P7-information in the confession and took himand the witnesses to the house of P.W.3-Lakshmi and inside thehouse, there was a steel trunk box and on removing the same, theaccused took a money purse, containing M.O.4-Gold Thali with fourballs, hidden under the brick and produced it and P.W.16-InspectorVivekanandan recovered the same under Ex.P3-mahazar in the presenceof same witnesses at 12.45 pm on the same day. P.W.6-VillageAdministrative Officer Kari has also testified that the accused Veluon his arrest gave information in his confession and took them to thehouse of P.W.3-Lakshmi and took and produced M.O.4-Gold Thali andfour balls.15. The learned counsel for the appellant submits that thetestimony of P.W.2-Shanthi falsifies the arrest of the accused as https://hcservices.ecourts.gov.in/hcservices/ claimed by the prosecution and once the arrest is shown to be false,then the recovery is also false and the learned counsel furthersubmits that P.W.6-Village Administrative Officer is a obligingwitness and no reliance can be placed on his testimony. As alreadyseen, P.W.2-Shanthi has not stated the date on which she saw theaccused Velu in Kondalampatti Police Station and her testimony inthis regard is vague and it does not affect the prosecution case withregard to the arrest and recovery. The prosecution has proved thatthe accused gave information leading to recovery of M.O.4-Gold Thalibelonging to deceased Kamatchi. 16. The next circumstance relied on by the prosecution isEx.P11-confession statement recorded by P.W.7-Tahsildar Thangavel.The Investigation Officer P.W.16-Inspector Vivekanandan has statedthat he arrested the accused Velu at 10.30 am on 10.6.2003 and heproduced him before P.W.7-Tahsildar Thangavel on the same day andafter the Tahsildar recorded the confession, he sent the accused forjudicial remand. P.W.7-Tahsildar Thangavel has testified thatP.W.16-Inspector Vivekanandan produced the accused Velu before him on10.6.2003 and on his request, he examined the accused Velu andrecorded Ex.P11-confession statement given by him and he also gaveEx.P12-certificate in it for having recorded the same. 17. The learned counsel for the appellant submits that Ex.P11-confession statement is inadmissible as per Section 26 of the IndianEvidence Act. We find considerable merit in this submission.Section 26 of the Indian Evidence Act reads as follows: "26. Confession by accused while in custody of police not to beproved against him. - No confession made by any person whilst he isin the custody of a police officer, unless it be made in theimmediate presence of a Magistrate, shall be proved as against suchperson.Explanation. - In this section "Magistrate" does not include thehead of a village discharging magisterial functions in the Presidencyof Fort St. George or elsewhere, unless such headman is a Magistrateexercising the powers of a Magistrate under the Code of CriminalProcedure, 1882 (10 of 1882).As already seen, the accused Velu was in the custody of Police on10.6.2003 and no confession made by him while in the custody ofPolice is admissible unless it is made in the presence of aJudicial Magistrate. It is relevant to note that in the explanationto Section 26 of the Indian Evidence Act, it is clarified that"Magistrate" does not include Executive Magistrate unless ExecutiveMagistrate exercises the powers of a Magistrate under the Code ofCriminal Procedure.18. In this context, Rules 72 and 73 of the Criminal Rules of https://hcservices.ecourts.gov.in/hcservices/ Practice and Circular Orders, 1958 are relevant and the same areextracted below:"72. Village Magistrates not to record confession. - VillageMagistrates are absolutely prohibited from recording or writing anyconfession or statement whatever made by an accused person after thePolice investigation has begun.73. Confession must be before a salaried Magistrate. - An accusedperson desiring to make a confession shall ordinarily be produced bythe Police before a salaried Magistrate of the First or Second Class."The above Rules make it clear that the Police, during investigation,has to produce the accused before the salaried Magistrate of theFirst or Second Class for recording the confession. 19. As per Section 3(3)(a) and (b) of the Code of CriminalProcedure, any reference in any enactment to a Magistrate of thefirst class or second class, shall be construed as a reference to theJudicial Magistrate of the first class or second class. UnderSection 164 of Code of Criminal Procedure, Metropolitan Magistrate orJudicial Magistrate alone can record the confession of the accused.20. Punjab and Haryana High Court, in the decision in STATE OFHARYANA v.. PARMANAND, SON OF RATI RAM [1995 CRI.L.J. 396], hasheld that the provision of Section 164 of Criminal Procedure Codeabsolutely leave no scope of doubt that the recording of a confessionof the accused during investigation of the case has been exclusivelyleft to the Metropolitan Magistrate or Judicial Magistrate not toany Executive Magistrate. For better appreciation, the relevantportion in the above decision is extracted below:"11. The provisions of S.164 of the Code, reproduced above absolutelyleave no scope of doubt that the recording of a confession of theaccused person during investigation of the case, has been leftexclusively to the Judicial Magistrate or Metropolitan Magistrate andnot to any Executive Magistrate. Thus, there is no force in thecontention of Mr. Gaur that the confessional statement of the accusedrecorded by Executive Magistrate-cum-Tehsildar should be relied uponas it is not admissible in evidence. It cannot be said to be a mereirregularity, especially when it has certainly resulted in prejudiceto the accused because the Legislature itself had kept the JudicialMagistrate on better footing than Executive Magistrate qua therecording of such statement."21. Madhya Pradesh High Court in the decision in PHUNDI v..STATE OF M.P. [1993 CRI.L.J. 1881] has held as follows:"2............ It was, therefore, if at all, a 'judicial', as https://hcservices.ecourts.gov.in/hcservices/ distinguished from 'extra-judicial confession'. But even as ajudicial confession, it was absolutely inadmissible in evidence. Thesimple reason for that was that it was not recorded by a Magistrateempowered to do so. Reading of S.164 of Code of Criminal Procedure,1973 would show that only a Metropolitan Magistrate or a JudicialMagistrate is empowered to record a confession under that provision.Shri Purshottam Gupta (P.W.9), who recorded it, was an ExecutiveMagistrate, who had also not observed the safeguards described inS.164 ibid. When a confession is recorded by a Magistrate who is notempowered, it is absolutely inadmissible. Even oral evidence aboutit by the Magistrate is inadmissible."We are in entire agreement with the view expressed in the abovedecisions. 22. The confession statement of the accused has to be recordedonly by a Metropolitan Magistrate or Judicial Magistrate as providedunder Section 164 of the Code of Criminal Procedure and no confessioncan be recorded by any other Authority while the accused is incustody of Police. Ex.P11-Confession Statement recorded by P.W.7-Tahsildar Thangavel while the accused was in the Police custody isinadmissible and no reliance is placed on it. 23. Even eschewing Ex.P11-Confession statement, the prosecutionhas established by acceptable evidence that the accused Velu waslast seen with Kamatchi prior to occurrence by P.W.4-Madesh and theaccused gave information in his confession leading to recovery ofthe ornaments belonging to the deceased and there was also motive forthe occurrence and all the links in the chain of circumstances areproved through cogent evidence. The conclusion of the TrialCourt that the prosecution has proved the charges against theaccused, does not suffer from any infirmity to warrant interference. 24. There are no merits in the appeal and the same is dismissed.Sd/Asst.Registrar/true copy/Sub Asst.Registrarvks https://hcservices.ecourts.gov.in/hcservices/ To1. The I Additional sessions Judge, Salem.2. - Do - Through, the Principal Sessions Judge, Salem.3.The Judl. Magistrate No.5, Salem.4.-Do- Thro' the Chief Judl.Magistrate, Salem.5. The Superintendent, Central Prison, Coimbatore.6. The Inspector of Police, Kondalampatti Police Station, Salem.7. The Public Prosecutor, High Court, Madras.8. The Section Officer, Criminal Section, High Court, Madras 104.1 CC To Mr.Balasubramaniam,, Advocate, SR NO.12721Crl.A.No. 13 of 2008gv(co)pmk.18.4.2009.