Dharumiah @ Dharumaiyan v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 08.01.2008CORAMTHE HONOURABLE MR.JUSTICE D.MURUGESANANDTHE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAHCriminal Appeal No.215 of 2007Dharumiah @ Dharumaiyan .. Appellant (Accused)-vs-State rep.by Inspector of PoliceKariyapattinam Police StationTiruvarur District(Crime No.241/2002) .. Respondent(Complainant)Memorandum of Grounds of Criminal Appeal under Section 374(2) ofthe Criminal Procedure Code against the judgment dated 31.3.2003 made inS.C.No.48 of 2003 on the file of the learned Principal Sessions Judge,Nagapattinam.For Appellant::Mr.Kumar forMr.T.MurugananthamFor Respondent::Mr.P.KumaresanAddl. Public Prosecutor JUDGMENT(Judgment of the Court was delivered by D.MURUGESAN, J.)The appellant is the sole accused, who stands convicted for theoffence under Section 302 IPC(2 counts) and sentenced to undergo lifeimprisonment for each count, which was ordered to run concurrently, bythe judgment dated 31.3.2003 passed by the learned Principal SessionsJudge, Nagapattinam in S.C.No.48 of 2003. No fine amount was imposedtaking into consideration the poverty of the appellant/accused as wellhis continuous confinement.2. The facts in brief are as follows:-It is a case of double murder. The accused is the husband of boththe deceased. The accused and his wives are downtrodden and were livingbelow the poverty line. Due to some misunderstanding, during therelevant point of time, the accused was not living with the deceased.When the accused wanted to dispose of his land, he approached the https://hcservices.ecourts.gov.in/hcservices/ Village Administrative Officer, P.W.1 for Chitta. On knowing the motiveof the accused, both the deceased approached P.W.1 and requested him notto give Chitta to the accused. As both the deceased had objected to thesale, the accused, on 21.8.2002, went to the house where both thedeceased were living with an intention to murder them. He firstinflicted indiscriminate cut injuries on his first wife/first deceasedwho was sleeping in the verandah and thereafter entered into the roomand cut his second wife/second deceased indiscriminately on variousparts of her body with the Axe, M.O.1. The above occurrence waswitnessed by P.W.3, the daughter of the accused through his first wifeand P.W.4, the son of the accused through his second wife. Theoccurrence had taken place at 2.00 p.m., on 21.8.2002. It was informedto the Village Administrative Officer, P.W.1 by the Village Assistant-P.W.2. Immediately P.W.1 went to the scene of occurrence and saw boththe deceased lying dead. 3. Thereafter, P.W.1 prepared the complaint, Ex.P-1 and went toKariyapattinam Police Station and lodged the complaint before P.W.9, theSub Inspector of Police, which was registered in Cr.No.241 of 2002 forthe offence under Section 302 IPC. The printed First Information Reportis Ex.P-14. He forwarded the express reports to the Court as well as tothe higher police officials. 4. P.W.12, the Inspector of Police attached to Vaimedu PoliceStation and in-charge of Kariyapattinam Police Station, took upinvestigation of the case on 21.8.2002 at 2.45 p.m., after the receiptof the First Information Report. He proceeded to the scene village atabout 3.30 p.m., on the same day and prepared the Observation Mahazar,Ex.P-2 and also drew rough sketch, Ex.P-16 in the presence of P.W.5 andanother witness. He recovered the bloodstained earth, M.O.5 and sampleearth, M.O.6 found near the body of the first deceased and thebloodstained earth, M.O.7 and the sample earth, M.O.8 found near thebody of the second deceased under the mahazar, Ex.P-4. He conductedinquest on the body of the first deceased between 5.30 p.m., and 7.00p.m., in the presence of panchayatdars and witnesses and prepared theinquest report, Ex.P-17. He conducted inquest on the body of the seconddeceased between 7.15 p.m., and 8.45 p.m., in the presence ofpanchayatdars and witnesses and prepared the inquest report, Ex.P-18.He thereafter sent the bodies of the deceased to Vedaranyam GovernmentHospital through P.W.10, Head Constable along with the requisitions,Exs.P-8 & P-9 for conducting post-mortem. He examined P.Ws.3,4 andother witnesses and recorded their statements on the same day. 5. P.W.7, Civil Assistant Surgeon attached to Government Hospital,Vedaranyam commenced post-mortem on the body of the first deceased at10.00 a.m., on 22.8.2002 and he noted the following injuries:-"(1) A lacerated injury in the right temporal regionof size 5x2x4 cm.(2) A lacerated injury in the right supra andinfraclavicular region of size 8x6x6 cm exposing thecollar bone. https://hcservices.ecourts.gov.in/hcservices/ (3) A ragged lacerated injury in the right side ofneck extending upto the right ear of size 13x7x10 cm.Exploration of this injury showed the wound cuttingthrough the carotid artery, the vertebral column at thelevel C3 eventually severing the spinal cord.(4) A lacerated injury in the right mastoid regioncutting through the earlobe 8x3x2 cm.(5) A vertical laceration in the right parietalregion 3x2x3 cm.(6) A vertical laceration in the right frontoparietal region 5x2x2 cm.(7) A lacerated injury in the right side of theforehead close to hair line 4x2x0.5 cm.(8) A lacerated injury in the left temporal region6x2x2.5 cm.(9) A large lacerated injury over the right shoulderblade 12x4x3 cm.(10) A large ragged laceration on the nape placeddiagonally towards the right shoulder blade 14x7x5 cm."He issued the post-mortem certificate, Ex.P-10 with his opinion that thefirst deceased would appear to have died of massive haemorrhage andshock resulting from damage to vital structures-the right carotid arteryand spinal cord and the death would have occurred 24 to 32 hours priorto post-mortem.6. P.W.7, Civil Assistant Surgeon attached to Government Hospital,Vedaranyam commenced post-mortem on the body of the second deceased at11.30 a.m., on 22.8.2002 and he noted the following injuries:-"(1) A lacerated injury at the left supraclavicularregion 6x3x5 cm.(2) A cut injury 2 cm above and parallel to injuryno.1 of size 7x1x1 cm.(3) A cut injury 1cm above and parallel to injuryno.2 of size 5x1x1 cm.(4) A large lacerated injury starting from the leftside of the head extending to 2/3 of the entirecircumference of the neck just below the level of lowerjaw of size 17x7 cm cutting through the left carotidartery, vertebra of the neck and spinal cord at thevertebral level C3.(5) A 'L' shaped lacerated injury at the back of thehead 10x5x2 cm.(6) A laceration on the right tempero parietalregion of size 6x3x1 cm cutting through the earlobe.(7) A vertical injury in front of the right ear8x2x2 cm. https://hcservices.ecourts.gov.in/hcservices/ (8) A horizontal laceration above injury no.5 ofsize 5x2x2 cm chiseling out the skullbone.(9) A crescent shaped laceration on the vertex ofthe head 4x2x1.5 cm.(10) A spiral laceration in the middle portion ofthe right index finger cutting through the middle phalanx4 cm in length."He issued the post-mortem certificate, Ex.P-11 with his opinion that thesecond deceased would appear to have died of massive haemorrhage andshock as a result of damage to vital structures-the left carotid arteryand the spinal cord and the death would have occurred 24 to 32 hoursprior to post-mortem.7. P.W.12, continuing with his investigation, arrested the accusedat 1.00 p.m., on 22.8.2002 in the police station while he was producedby the Village Administrative Officer, P.W.1 and the Village Assistant,P.W.2 along with the complaint, Ex.P-1. In pursuance of the admissibleportion of his confession under Ex.P-6, he recovered the Axe, M.O.1 fromthe house of the accused in the presence of P.Ws.1 & 2 under themahazar, Ex.P-7. Thereafter, he remanded the accused to judicialcustody. He examined the other witnesses and recorded their statements.He sent the seized material objects to the Court. He examinedP.Ws.7,9,10,11 and the photographer and recorded their statements. Hesent requisition under Ex.P-12 to the Judicial Magistrate, Tiruvarur on26.8.2002 for recording the Section 164 Cr.P.C., statement of theaccused and such a statement was recorded by the Judicial Magistrate,Tiruvarur on 12.9.2002 and 13.9.2002. He received the Chemical analyst'sreport under Ex.P-21 and the Serologist's report under Ex.P-22 on22.10.2002 and 31.12.2002. He handed over the investigation to theincumbent Investigating Officer.8. P.W.13, took charge as Inspector of Police of KariyapattinamPolice Station on 15.11.2002 and after scrutinising the file and theinvestigation carried out by his predecessor, laid the final reportagainst the accused on 27.11.2002 before the Court.9. To bring home the charges against the accused, the prosecutionexamined 13 witnesses, marked 22 exhibits and produced 9 materialobjects.10. When the accused was questioned under Section 313 of theCriminal Procedure Code as to the incriminating materials appearingagainst him, he denied them as false. No witness was examined and nodocument was marked on the side of the defence. On the basis of thematerials available on record, the learned trial Judge found the accusedguilty, convicted and sentenced him for the offence as stated above.11. Mr.Kumar, learned counsel for the appellant/accused hassubmitted that the presence of P.Ws.3 & 4, who are the eye-witnesses, inthe scene of occurrence is highly doubtful. In support of the same, thelearned counsel would submit that both P.Ws.3 & 4 have spoken about thepresence of P.W.2 in the scene village after the occurrence had takenplace. On the other hand, the evidence of P.W.2 is silent, as he has https://hcservices.ecourts.gov.in/hcservices/ not spoken anything about the presence of P.Ws.3 & 4. It is thecategorical evidence of P.W.3 that after the occurrence, the accused ranaway from the scene place leaving the Axe, M.O.1 and at about 4.00 p.m.,the police took away the Axe after conducting inquest. On the otherhand, the evidence of P.W.4 is that the Axe was seized at 2.00 p.m., onthe next day when the same was produced by the accused. There is aserious contradiction as to the recovery. Hence the presence of P.Ws.3& 4 is highly doubtful and consequently, their evidence inspires nocredibility. The learned counsel would also submit that the JudicialMagistrate, Tiruvarur-P.W.8, who recorded the confessional statement ofthe accused under Section 164 Cr.P.C., has not followed the mandatoryprocedure of certifying the confessional statement, Ex.P-13 ascontemplated under sub-section (4) of Section 164 Cr.P.C., and there wasalso no occasion for the Investigating Officer, P.W.12 to file anaffidavit before the Magistrate as if the accused had expressed hiswillingness to give the confessional statement, when admittedly theaccused was in judicial custody. In the absence of such certificate, noreliance can be placed on the confessional statement. In support of thesaid submission, the learned counsel relied upon a judgment of theSupreme Court in Chandran v. The State of Madras (AIR 1978 SC 1574).12. Per contra, Mr.P.Kumaresan, learned Additional PublicProsecutor has submitted that the evidence of P.Ws.3 & 4 as to theirpresence in the scene of occurrence is trustworthy, especially whenP.W.3 happened to be the daughter of the accused through the firstdeceased and P.W.4 happened to be the son of the accused through thesecond deceased, and they will not specifically depose against theirfather. Except the minor contradiction as to the recovery of M.O.1,their evidence is consistent in all other aspects including thecommission of the offence by the accused. He would also submit that theinjuries as spoken to by P.Ws.3 & 4 on the two deceased are corroboratedby the medical evidence, as could be seen from the post-mortemcertificates, Exs.P-10 & P-11. He would further submit that inasmuch asthe Judicial Magistrate, Tiruvarur has satisfied himself as to theaccused having given the voluntary confession, Ex.P-13 while he putquestions to the accused, merely because he has not certified the saidconfessional statement, that will not be a ground to reject the veryconfessional statement itself.13. We have given our anxious and careful consideration to therival submissions. So far as the contention of the learned counsel forappellant/accused as to the presence of P.Ws.3 & 4 in the scene ofoccurrence is concerned, it is to be borne in mind that P.W.3 is livingin a nearby village called as Aayakkaranpulam and on the fateful day andtime, she came to Shenbagarayanallur, the scene village, and while shecame near the railway gate, she saw P.W.4 and her son Veerajothistanding there. Thereafter, when all the three reached the house, theyfound the accused cutting the first deceased on her neck and all overthe body and thereafter he went inside the room and cut the seconddeceased as well and inflicted injuries all over her body. This versionof P.W.3 is spoken to by P.W.4 as well. Their evidence is alsocorroborated by the evidence of P.W.2, while he has spoken that as soonas he was informed by the villagers that the accused had murdered bothhis wives, he immediately rushed to his immediate superior officernamely, the Village Administrative Officer-P.W.1 and informed the https://hcservices.ecourts.gov.in/hcservices/ occurrence to him. The conduct of P.W.2 in intimating the occurrence tohis immediate superior officer is quite natural as he is the VillageAssistant working under P.W.1. The evidence of P.W.2 is also supportedand corroborated by P.W.1, while he has spoken that he was informed byP.W.2 as to the occurrence in which the accused had committed the murderof his two wives. On receipt of such information, he went to the sceneplace and saw both the bodies of the deceased there. The evidence ofP.W.1 corroborates the evidence of P.Ws.3 & 4 as to the commission ofthe offence by the accused. Therefore, the contention of the learnedcounsel for the appellant/accused that the presence of P.Ws.3 & 4 ishighly doubtful cannot be accepted, as their presence in the scenevillage has amply been proved by the prosecution. Further, as rightlypointed out by the learned Additional Public Prosecutor, both P.Ws.3 & 4are none other than the daughter and son of the accused and in theabsence of any motive is suggested against them to depose against theirfather, we have no reason to discard their evidence.14. The evidence of P.Ws.3 & 4 is also corroborated by theevidence of the post-mortem doctor-P.W.7 who has found injuries on theneck and all over the body of both the deceased as spoken to by P.Ws.3 &4. He has also opined that the cause of death is also due to the fatalinjuries on the necks of both the deceased. In these circumstances, wefind no merit in the contention of the learned counsel for theappellant/accused as to the innocence of the accused in the offence.15. The prosecution has also relied upon the judicial confession,Ex.P-13 recorded by P.W.8, the Judicial Magistrate, Tiruvarur to proveits case. The learned trial Judge has relied upon the said confession aswell to sustain the conviction of the accused. It is argued that thesaid judicial confession is bad in law and cannot be relied upon in thewake of failure on the part of the Judicial Magistrate to certify thesame as provided under sub-section (4) of Section 164 Cr.P.C., and therewas also no occasion for the Investigating Officer to file an affidavitbefore the Magistrate as if the accused had expressed his willingness togive such voluntary confession, when admittedly the accused was injudicial custody. Section 164 of the Criminal Procedure Code, 1973 readsas follows:-"164. Recording of confessions and statements.--(1)Any Metropolitan Magistrate or Judicial Magistrate may,whether or not he has jurisdiction in the case, recordany confession or statement made to him in the course ofan investigation under this Chapter or under any otherlaw for the time being in force, or at any timeafterwards before the commencement of the inquiry ortrial:Provided that no confession shall be recorded by apolice officer on whom any power of a Magistrate has beenconferred under any law for the time being in force.(2) The Magistrate shall, before recording any suchconfession, explain to the person making it that he isnot bound to make a confession and that, if he does so,it may be used as evidence against him, and theMagistrate shall not record any such confession unless,upon questioning the person making it, he has reason tobelieve that it is being made voluntarily. https://hcservices.ecourts.gov.in/hcservices/ (3) If at any time before the confession isrecorded, the person appearing before the Magistratestates that he is not willing to make the confession, theMagistrate shall not authorise the detention of suchperson in police custody.(4) Any such confession shall be recorded in themanner provided in section 281 for recording theexamination of an accused person and shall be signed bythe person making the confession, and the Magistrateshall make a memorandum at the foot of such record to thefollowing effect:-"I have explained to (name) that he isnot bound to make a confession and that, if hedoes so, any confession he may make may beused as evidence against him and I believethat this confession was voluntarily made. Itwas taken in my presence and hearing, and wasread over to the person making it and admittedby him to be correct, and it contains a fulland true account of the statement made by him. (Signed) A.B. Magistrate."(5) Any statement (other than a confession) madeunder sub-section (1) shall be recorded in such mannerhereinafter provided for the recording of evidence as is,in the opinion of the Magistrate, best fitted to thecircumstances of the case; and the Magistrate shall havepower to administer oath to the person whose statement isso recorded.(6) The Magistrate recording a confession orstatement under this section shall forward it to theMagistrate by whom the case is to be inquired into ortried."16. The purport of the confessional statement recorded by theMagistrate under Section 164 Cr.P.C., came to be considered by theSupreme Court in the judgment in Jogendra Nahak and others v. State ofOrissa and others (2000 SCC (Crl.) 210. After referring to theprovisions under Sections 154 to 160, 165 to 173 and particularly,Section 164, the Supreme Court has observed that a Magistrate isempowered to record the statement of a person not sponsored by theinvestigating agency even during the course of investigation. A plainreading of sub-section (1) of Section 164 Cr.P.C., shows that anyMetropolitan Magistrate or Judicial Magistrate may, whether or not hehas jurisdiction in the case, record any confession or statement made tohim in the course of investigation. Such power can be exercisedindependent of any requisition made by the Investigating Officer. Infact the question as to whether a requisition is necessary from theInvestigating Officer to record the statement of the accused underSection 164 Cr.P.C., came up for consideration before a learned singleJudge of this Court in the judgment in C.W.Casse, Re (AIR 1948 Mad489), where it was observed as follows:- https://hcservices.ecourts.gov.in/hcservices/ "It is not necessary that the Magistrate should bemoved by the police in order that he might record astatement. There may be instances where the police maynot desire to have recorded the statement of a witnessfor some reason or other. In such a case, there isnothing preventing the witness to go to the Magistrateand request him to record the statement and if aMagistrate records his statement and transmits the sameto the court where the enquiry or the trial is to go on,there is nothing wrong in his action."However, after the above expression, the learned single Judge hasalso sounded the following note of caution:"But such a thing will be very exceptional, asthere is always a discretion in the Magistrate to refuseto record the statement. Ordinarily, when a policeofficer requests the Magistrate to record the statementof a witness on oath under Section 164 Cr.P.C., such arequest will not be refused by the Magistrate. But when aprivate party seeks to invoke the powers of a Magistrateunder Section 164 Cr.P.C., the Magistrate has got a verywide discretion in acting or refusing to act."The above judgment was quoted with approval by the Supreme Court in thejudgment in Jogindra Nahak case (supra). 17. In this background of the law settled by the Supreme Court, thecontention of the learned counsel for appellant/accused that when theaccused was in judicial custody, there was no occasion for theInvestigating Officer to ascertain the willingness of the accused togive a voluntary statement as sworn to by him in the affidavit, Ex.P-12and if the said affidavit is disbelieved, there was no occasion for theMagistrate to record the Section 164 Cr.P.C., statement from the accusedand therefore the statement recorded under Section 164 Cr.P.C., alsoshould be discarded, is to be considered. In our opinion, the saidcontention cannot be accepted, as it is now well settled that arequisition for recording the statement under Section 164 Cr.P.C., isnot mandatory in all circumstances and it is also not one of the pre-requisite condition to enable the Magistrate to record a statement ascould be seen from sub-section (1) of Section 164 Cr.P.C. Therequisition for recording the Section 164 Cr.P.C., statement may be inaddition to the power vested in the Magistrate to record such statementirrespective of a requisition is placed or not. 18. This leads us to the next contention of the learned counsel forthe appellant/accused placing reliance on the judgment of the SupremeCourt in Chandran's case (supra) for the failure on the part of theJudicial Magistrate to certify the statement. That was a case where astatement under Section 164 Cr.P.C., was recorded by the Magistrate whenthe accused was in police custody. While dealing with the same, theSupreme Court emphasised for such a certificate to be given by theMagistrate. The Supreme Court was not considering a case where theJudicial Magistrate was recording the confessional statement of an https://hcservices.ecourts.gov.in/hcservices/ accused who was in judicial custody. A line of distinction could bedrawn to the recording of confessional statement from an accused who isin police custody or in judicial custody. It can be presumed that whena confessional statement is sought to be recorded at the request of theInvestigating Officer from an accused who is in police custody, theJudicial Magistrate will not be restricted only to ensure as to whetherthe accused gives such a statement voluntarily, but also a furtherobligation is cast upon the Magistrate to certify the statement ascontemplated under sub-section (4) of Section 164 Cr.P.C. The objectbehind the said provision is only to ensure that the accused was notpressurised or coerced or forced to give such a statement as he wasunder the custody of the police and when produced for recording thestatement under Section 164 Cr.P.C. 19. However, the issue as to whether such a certificate ismandatory when the accused was in judicial custody and he intends togive a statement should be considered. In fact in the very judgmentreferred to by the learned counsel for the appellant/accused inChandran's case (supra), it has been held as follows:-"To say that the accused was in a position or moodto give a voluntary statement, falls far short ofvouching that upon questioning the accused, he(Magistrate) had "reason to believe that the confessionis being voluntarily made", which under S.164 is a sinequa non for the exercise of jurisdiction to record theconfession. But that section does not make it obligatoryfor the Magistrate to append at the end of the record ofthe preliminary questioning, a certificate as to theanticipated voluntariness of the confession about to berecorded. But the law does peremptorily require thatafter recording the confession of the accused, theMagistrate must append at the foot of the record amemorandum certifying that he believes that theconfession was voluntarily made. The reason forrequiring compliance with this mandatory requirement atthe close of the recording of the confession, appears tobe that it is only after hearing the confession andobserving the demeanour of the person making it, that theMagistrate is in the best position to append therequisite memorandum certifying the voluntariness of theconfession made before him. If, the Magistrate recordinga confession of an accused person produced before him inthe course of police investigation, does not, on the faceof the record, certify in clear, categorical terms hissatisfaction of belief as to the voluntary nature of theconfession recorded by him, nor testifies orally, as tosuch satisfaction or belief, the defect would be fatal tothe admissibility and use of the confession against theaccused at the trial."20. In the given case, the appellant/accused was arrested on22.8.2002 and he was remanded to judicial custody on the same day.Admittedly, an affidavit dated 26.8.2002 was filed by P.W.12, theInvestigating Officer stating that the accused was willing to give a https://hcservices.ecourts.gov.in/hcservices/ confessional statement under Section 164 Cr.P.C. The accused appearedbefore P.W.8, the Judicial Magistrate, Tiruvarur on 12.9.2002, on whichdate the accused was informed by the Magistrate and the said proceedingsare as follows:-"1/ nf/ c';fs; bgah; vd;d> g/ jUikad;/2/ nf/c';fs; jfg;gdhh; bgah; vd;d> g/Kdpad; vd;fpw tPug;gf; ft[z;lh/3/ nf/c'fs; taJ vd;d> g/60 taR/4/ nf/c';fs; KG tpyhrk; vd;d > g/brz;guhaey;Y}h; fpuhkk;. Ntjhuz;ak; jhYf;fh. ehfg;gl;odk; khtl;lk;/5/ nf/ve;j nghyPrhh; c';fs; kPJ tHf;F gjpt[ bra;Js;shh;fs;> g/fupahg;gl;ozk; fhty; epiyaj;jpdh/6/ nf/c';fs; kPJ vd;d tHf;F gjpt[ bra;ag;gl;Ls;sJ vd;W bjhptpj;jhh;fsh> g/bfhiy tHf;F/7/nf/ve;j njjpapy; ve;j ,lj;jpy; itj;J c';fis ifJ bra;jhh;fs;> g/ehnd brd;W !;nlc&dpy; ruzile;njd;/ fhpahg;gl;ozk; nghyP!; !;nlc&d;/8/nf/eP';fs; Fw;wj;ij xg;g[f;bfhz;L xg;g[jy; thf;FK:yk; bfhLg;gjhf nghyPrhhplk; bjhptpj;jPh;fsh> g/brhy;ytpy;iy/ ehnd thf;FK:yk; bfhLf;fpnwd;/ ifbaGj;J th';fpdhh;fs;/9/ nf/mt;thW xg;g[jy; thf;FK:yk; bfhLj;jhy; nkw;go thf;FK:yj;jpy; c';fSf;F vjpuhf nghyPrhh; gad;gLj;Jthh;fs; vd;gij bjhpe;J bfhz;Ouh> g/bjhpa[k;/10/nf/xg;g[jy; thf;FK:yk; bfhLf;f c';fSf;F tpUg;gk; cs;sjh,e;ePjpkd;wj;jpy;> g/tpUg;gk; cs;sJ/ thf;FK:yk; bfhLf;fpnwd;/vjphpaplk; nkw;Tw[pa nfs;tpfs; nfl;L mjw;Fhpa gjpy;fs; bgwg;gl;lJ/ vjphp jhd;Fw;w xg;g[jy; thf;FK:yk; bfhLf;f tpUg;gk; cs;sjhf bjhptpj;jhh;/ mt;thW thf;FK:yk;bfhLj;jhy; mtUf;F vjpuhf nkw;go thf;FK:yk; gad;gLj;jg;gLk; vd;W vLj;J Twpa[k;.mtUf;F xU ehs; mtfhrk; bfhLf;f ntz;Lk; vd;gjhy; mtiu ed;F Mnyhridbra;J kWehs; thf;FK:yk; bfhLf;f tpUk;gpdhy; bfhLf;fyhk; vd;W bjhptpj;J jpUthU:h;fpisr; rpiwr;rhiyapy; mtiu ePjpkd;w fhtypy; itf;f cj;jutpl;Lk;. 13/9/2002 md;Wkhiy 5/00 kzpf;F ,e;ePjpkd;wj;jpy; M$h;gLj;JkhWk; cj;jutplg;gLfpwJ/" 21. From the above, it is seen that the Magistrate had ensured fromthe accused about his willingness to give a confessional statement onhis own and voluntarily. On the next day, when the accused wasproduced, once again the Magistrate ensured from the accused about thewillingness to give a confessional statement voluntarily and the saidproceedings are as follows:-"vjphp ,d;W 13/9/02 gpw;gfy; 5/15 kzpf;F vd; Kd; m$h;gLj;jg;gl;lhh;/ mYtyf cjtp vGj;jh;j/fiyr;bry;tp. mYtyf cjtpahsh; k/fhkuh$; Mfpnahh; kl;Lk; ePjpkd;w cwhypy; cldpUf;f cwhypd;miwf;fjt[fs;. rd;dy;fs; milf;fg;gl;ld/ ntW ahUk; cwhypy; ,y;iy/ gpd;dh; M$h;gLj;jg;gl;ljUikad;. jfg;gdhh; bgah; Kdpad; vd;fpw tPug;gf; ft[z;lh; vd;w M$h; vjphpaplk; fPH;f;fz;l nfs;tpfs;nfl;fg;gl;lJ/ https://hcservices.ecourts.gov.in/hcservices/ nf/c';fSf;F thf;FK:yk; bfhLf;f tpUg;gkh>g/tpUg;gk;jhd;/nf/thf;FK:yk; mspf;FkhW ahUk; fl;lhag;gLj;jpdhh;fsh>g/,y;iy/nf//c';fSf;F vjpuhf thf;FK:yk; gad;gLj;jg;gLk; vd;gij g[hpe;J bfhz;Ljhd; thf;FK:yk; bfhLf;fpd;wPh;fsh>g/Mkhk;/ g[hpe;J bfhz;nld;/nf/c';fs; KG kdr; rk;kjj;Jld; thf;FK:yk; bfhLf;fpd;wPh;fsh>g/Mkhk;/nkw;TwpathW vjphp xg;g[jy; thf;FK:yk; bfhLf;f rk;kjpj;jjd; nghpy; mth;brhy;yr; brhy;y fPH;f;fz;lthW gjpt[ bra;ag;gl;lJ/////////////"22. From the above proceedings, it is seen that the Magistrate hadensured from the accused that he was not forced, coerced, threatened orpressurised to give a confessional statement before him and that such astatement was made voluntarily. This is also fortified by the fact thatwhen the accused was questioned under Section 313 of the CriminalProcedure Code, he himself has admitted that he gave such a statementvoluntarily and he has not taken any defence that he was forced to givesuch a statement. 23. As has been stated earlier, the purpose for a certificate bythe Magistrate under sub-section (4) of Section 164 Cr.P.C., is only toensure as to whether the accused was giving the confessional statementvoluntarily or not. A mere failure on the part of the Magistrate tocertify in terms of sub-section (4) of Section 164 Cr.P.C., in a casewhere the accused was produced from judicial custody and not from policecustody may be only a procedural defect, which may not affect theevidentiary value of the confessional statement as such. From theconfessional statement, it is also clear that though the accused wasproduced from judicial custody, the Magistrate had also ensured thatnone of the police officials concerned with the investigating agencyhave accompanied the accused and only some other police officials havebrought the accused to the Court for recording the confessionalstatement. Hence we are of the considered view that the confessionalstatement, Ex.P-13 recorded by the Judicial Magistrate, P.W.8 cannot bediscarded for the sole reason that the Magistrate has not certified inthe confessional statement as contemplated under sub-section (4) ofSection 164 Cr.P.C. To find out as to whether the confessional statementwas voluntary or not, it is incumbent on the part of the Court toconsider the confessional statement in its entirety and the same cannotbe split up for ruling out the possibility of pressure, coercion orthreat on the part of the accused to give such a statement. If theproceedings dated 12.9.2002 and 13.9.2002, which culminated into theconfessional statement, Ex.P-13, are considered in toto, we have no https://hcservices.ecourts.gov.in/hcservices/ reason whatsoever either to hold that it was not voluntary or was givenunder threat or coercion or the failure on the part of the Magistrate tocertify the statement would make the confessional statement as notvoluntary. 24. As the prosecution has established the occurrence through theevidence of P.Ws.1 & 2 and the evidence of the eye-witnesses namely,P.Ws.3 & 4 as well the medical evidence coupled with the confessionalstatement, Ex.P-13 of the accused given under Section 164 Cr.P.C., wehave no doubt in our mind to hold that the accused is guilty of theoffence punishable under Section 302 IPC (2 counts). Hence, we find nomerit to interfere with the impugned judgment of the trial Judge and,accordingly, the appeal is dismissed. ssSd/- Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. The Principal Sessions Judge, Nagapattinam2. The Superintendent, Central Prison, Tiruchirappalli3. The Public Prosecutor, High Court, Madras4. The Inspector of Police, Kariyapattinam Police Station, Tiruvarur District5. The District Collector, Nagapattinam6. The Director General of Police, ChennaiVC(CO)DCP/23.1Crl.A.No.215 of 2007