Nagarajan v. State

p.m. and the accused told her to come to tapioca field and hewould give Rs.50/- and on the next day, the accused alonereturned and the deceased and the child did not return. Hence,P.Ws.1 and 2 along with his sister Lakshmi and her husbandAnandan came to P.W.6 Arumaikannu, Panchayat President, Pillurand informed about the missing of the deceased. 5.7. P.W.6 enquired the accused about the whereabouts ofthe deceased. The accused replied that he sent the deceased tothe temple and he would bring her. But, the accused abscondedfrom the village. P.W.6 also directed the parents of theaccused to bring the deceased. They also promised to bringher, but they failed to do so. Hence, a suspicion was createdon the accused. Thereafter, P.W.6 asked P.W.1 to give policecomplaint. Accordingly, P.W.1 lodged Ex.P1 complaint, beforethe Inspector of Police, Villupuram. 5.8. On 7.11.2002 at about 8.00 a.m. P.W.10 Madasamy,Inspector of Police, Villupuram, based on Ex.P1 complaint,registered a case in Crime No.963 of 2002 for 'woman missing'and prepared Ex.P13 First Information Report. He took up thecase for investigation, proceeded to the scene of crime andprepared Ex.P2 Observation Mahazar and Ex.P14 Rough Sketch inthe presence of P.W.8 Allimuthu, Village AdministrativeOfficer, Pillur, and Office Menial Sivaji. He examined thewitnesses and recorded their statements. Since he had beentransferred to another place, P.W.16 Hari, Inspector of Policecontinued the investigation.5.9. P.W.8, Village Administrative Officer deposed thatwhen he was in his office on 26.11.2002, the accused came thereand gave Ex.P3 extra judicial confession stating that hemurdered his wife. P.W.8 recorded his statement and preparedEx.P4 Special Report. Thereafter, he produced the accusedbefore P.W.16 along with Exs.P3 and P4. P.W.16, on the sameday at 6.00 p.m., altered the case into one under Sections 302and 201 I.P.C. and prepared Ex.P20 altered FIR. P.W.14 Ramesh,Head Constable delivered altered FIR to the Judicial MagistrateNo.I, Villupuram. Thereafter, P.W.16 arrested the accused andenquired him. The accused gave a confession statementvoluntarily. Ex.P5 is the admissible portion of the confessionstatement. Pursuant to the confession, the accused took thepolice and P.W.8 to the place of occurrence, where he buriedthe dead bodies. P.W.16 inspected the place and prepared Ex.P6Observation Mahazar and Ex.P23 Rough Sketch. He also recoveredM.O.5 tin sheet under Ex.P7 Mahazar. Thereafter, P.W.16recovered M.O.6 stick from the house of the accused under Ex.P8Mahazar. 5.10. On receipt of requisition from P.W.16 for exhumationof the dead bodies, P.W.9 Natarajan, Tahsildar, Villupuramproceeded to Anangoor on 30.11.2002. P.W.15 Dr.Murugesan, https://hcservices.ecourts.gov.in/hcservices/ attached to Chengleput Medical College, on receipt of Exs.P9and P10 requisition for conducting autopsy over the deadbodies, proceeded to the place where the dead bodies wereexhumed. The accused identified the place where the deadbodies were buried and the said place is situated inR.S.No.683. On 30.11.2002, in the presence of police officialsand medical officers, the skeleton alone was exhumed. P.W.9conducted inquest over the dead bodies in the presence ofpanchayatdars and prepared Exs.P11 and P12 inquest reports.P.W.13, is the Police Head Constable, who identified the deadbodies to the Medical Officers. 5.11. P.W.15 conducted post-mortem on the body of thedeceased Manimegalai and noticed the following features:Highly decomposed body of a female, foulsmelling odour were emanating from the body. Thebody was covered with blue coloured synthetic silksaree, grey coloured blouse and purple with violetcoloured petticoat. The body was identified byMoorthy and Dasarathan, who were brothers of thedeceased Manimegalai. Hairs from the scalp, eyebrows and pubic hairs were loosened and fallen away.The scalp hairs were black in colour, 35 cm inlength the soft tissues were highly decomposed andfound attached to the bones and emanating foulsmelling odour. The height of the body was 140 cm,breadth was 30 cm with following ante-morteminjuries:1) 10x4x1cm bruising seen in the left sidefrontal, parietal and occipital area of the scalp.2) 5x3x1cm contusion on the left side cheek.Multiple comminuted fracture on the left sidezygomatic bone.3) Comminuted fracture on the right zygomaticbone.4) 9 cm oblique fissured fracture on the leftside temporal parietal bone.5) 6cm oblique fissured fracture on the rightside middle cranial fossa of the base of the skullbone. The doctor was of the opinion that the deceased Manimegalaiwould appear to have died of head injuries and issued Ex.P21post-mortem certificate.5.12. Thereafter, P.W.15 conducted autopsy over the deadbody of child Ezhilarasi and found the following features:"One advanced decomposed body of a femalechild, the body was worn by orange colouredjatti, red coloured waist thread and orangecoloured plastic bangles two in number. The body https://hcservices.ecourts.gov.in/hcservices/ and clothes were identified by Moorthy andDasarathan, brothers of the deceased Manimegalai,the height of the body was 62 cm in length.Hairs from the scalp were loosened and fallenaway. Soft tissues of the body, face, nose andlimbs were decomposed and expose emanating foulsmelling odour. The bones of the body, skull,humerus bones, radius, ulna, rib bones, femurbones, tibia and vertebral were recovered.Decomposed soft tissues were attached to thebones. All the internal organs were highlydecomposed beyond their recognition. Nilfractures seen on the bones. All the neckstructure of the body were on advanceddecomposition beyond their recognition."The Doctor opined that no definite opinion regarding cause ofdeath could be given in view of negative report of chemicalexaminers and due to advanced decomposing changes and issuedEx.P22 post-mortem certificate. 5.13. P.W.13 recovered M.Os.1 to 4, 7 and 8 from the deadbodies and handed over the same with Ex.P19 Special Report toP.W.16. P.W.16 sent the material objects to the Court forsubjecting the same for chemical examination through Exs.P24and P28 requisitions. The Judicial Magistrate forwarded thematerial objects to the laboratory under Exs.P25 and P29covering letters and received Exs.P26 and 30 ChemicalExaminer's Reports and Ex.P27 Serologist's Report.5.14. P.W.16 gave Ex.P31 requisition to record a statementunder Section 167(3) of the Code of Criminal Procedure. Whenthe Judicial Magistrate examined the accused, he said that hewas not willing to give statement. Ex.P32 is the report of theJudicial Magistrate. P.W.16 gave Ex.P15 requisition to sendthe skull bone for conducting superimposition examination andthe same was sent to the Forensic Department under Ex.P16covering letter.5.15. P.W.11 Alamelumankai, Biology Assistant, ForensicScience Department, conducted superimposition test and issuedEx.P17 report opining that the skull could possibly havebelonged to the female individual seen in the photograph.5.16. P.W.16, Inspector of Police, completed theinvestigation and after following all the legal formalities,filed the final report in the court against the accused underSection 302 (2 counts) and 201 IPC on 17.11.2003.6. When the accused was questioned under Section 313 ofthe Code of Criminal Procedure about the incriminatingcircumstances found in the evidence of prosecution witnesses, https://hcservices.ecourts.gov.in/hcservices/ the accused denied the same. No oral or documentary evidencewas brought forth by the accused before the court.7. The trial court, on consideration of the oral anddocumentary evidence placed before it, found the accused guiltyand convicted and sentenced him as referred to earlier.8. Heard both sides.9. The question that arises for our consideration in thisappeal is whether the prosecution has proved the guilt of theaccused beyond all reasonable doubt.10. The case of the prosecution that the deceasedManimegalai and Ezhilarasi died due to homicidal violencestands proved by the evidence of P.W.15, the doctor whoconducted autopsy over the dead bodies, coupled with Exs.P21and 22 post-mortem certificates.11. Now, let us analyse the contentions made on behalf ofthe appellant and the prosecution.12.1. Firstly, the learned counsel for the appellantcontends that the extra judicial confession (Ex.P3) alleged tohave been made by the accused to the Village AdministrativeOfficer (P.W.8), who had not known the accused prior to theoccurrence, cannot be relied upon. In this regard, he reliesupon two decisions of the Apex Court in Kishore Chand vs. Stateof Himachal Pradesh (AIR 1990 SC 2140) and Balbir Singh andanother vs. State of Punjab (1996 SCC (Cri) 1158). 12.2. On the other hand, learned Additional PublicProsecutor, placing reliance on the decision of the Apex Courtin Sivakumar vs. State by Inspector of Police (2006 (1) SCC(Cri) 470), contends that extra judicial confession alleged tohave been made to P.W.8, Village Administrative Officer can berelied upon.12.3. In Kishore Chand vs. State of Himachal Pradesh (AIR1990 SC 2140), the prosecution relied upon the extra judicialconfession alleged to have been made by the accused to theVillage Pradhan accompanying the Police Officer, after latter(police officer) got accused identified as one last seen withthe deceased and after the accused left the spot. The SupremeCourt held that the extra judicial confession alleged to havebeen made by the accused to the Village Pradhan is hit bySections 25 and 26 of the Evidence Act, because the VillagePradhan was accompanying Police Officer. 12.4. In Balbir Singh and another vs. State of Punjab(1996 SCC (Cri) 1158), where the prosecution relied upon theextra judicial confession alleged to have been made by the https://hcservices.ecourts.gov.in/hcservices/ accused to the Municipal Commissioner, the Apex Court held thatthe alleged extra judicial confession made to the MunicipalCommissioner cannot be trustworthy because he had no specialfriendship with the accused. 12.5. The extra judicial confession made to the VillageAdministrative Officer cannot be held as untrustworthy in viewof the law settled by the Apex Court in Sivakumar vs. State byInspector of Police (2006 (1) SCC (Cri) 470), where thequestion of admissibility of the confession made before theVillage Administrative Officer was considered and held asfollows: "30. A Village Administrative Officer may havethe power to report an offence committed within thejurisdiction of the police station where he is postedbut the same would not make him a person inauthority. Even under certain circumstances, Section40 of the Code of Criminal Procedure (for short “the1973 Code”) enjoins a duty upon every officeremployed in connection with the affairs of a villageand every person residing in a village to communicateto the nearest Magistrate or to the officer in chargeof the nearest police station, whichever is nearer,any information which he may possess respecting thematters enumerated therein. Sub-section (2)(iii) ofSection 40 defines “officers employed in connectionwith the affairs of a village” to mean a member ofthe Panchayat of the village and includes the Headmanand every officer or other person appointed toperform any function connected with theadministration of the village.31. Section 528 of the Code of CriminalProcedure, 1898 empowered the Sessions Judge,District or Sub-Divisional Magistrate to withdrawcases from the courts specified therein. Sub-section(6) of Section 528 of the Code of Criminal Procedure,1898 is similar to that of sub-section (6) of Section528 of the Code of Criminal Procedure, 1882.32. In Madavarayachar v. Subba Rau3 it wasopined: (ILR p. 94)“Village Magistrates are not Magistrates under theCode of Criminal Procedure, and, therefore, we do notthink that the Joint Magistrate had power underSection 528 to withdraw the case and transfer it fordisposal to the Second Class Magistrate.”33. However, in Sevakolandai v. Ammayan4 it was https://hcservices.ecourts.gov.in/hcservices/ held that it is permissible for a District Magistrateor a Sub-Divisional Magistrate to transfer a criminalcase from the file of a Village Magistrate in respectof cases involving petty thefts which a VillageMagistrate is empowered to try by Regulation 4 of1821.34. The 1973 Code was brought about to giveeffect to the constitutional mandate to separate thejudiciary from the executive. The entire control andsupervision of the Magistrates in terms of the 1973Code now vests in the Sessions Judge and the HighCourt. Transfer of criminal cases is now dealt inChapter 31 of the 1973 Code. Section 406 conferspower upon the Supreme Court to transfer cases andappeals from one State to another. Section 407empowers the High Court to transfer cases and appealsfrom one court to another situate within the State.Section 408 confers power upon the Sessions Judge totransfer cases from one criminal court to anothercriminal court within his sessions division. Section409 confers power upon the Sessions Judge to withdrawcases and appeals from the other Sessions Court.Section 410 empowers the Chief Judicial Magistrate torecall any case from any Magistrate subordinate tohim either to himself or to transfer it to any otherMagistrate. Section 411 empowers the DistrictMagistrate or Sub-Divisional Magistrate to make overfor disposal or withdrawal any case from or recallany case or refer it for disposal to any otherMagistrate. Sub-section (6) of Section 528 of the1898 Code, therefore, has not been retained by the1973 Code.35. Criminal Rules of Practice and Orders, 1931of the Madras High Court were issued by the HighCourt in exercise of its power conferred by Article227 of the Constitution. Rule 72 of the Rules readsthus:“72. Village Magistrates not to record confession.—Village Magistrates are absolutely prohibited fromreducing or writing any confession or statementwhatever made by an accused person after the policeinvestigation has begun.”36. The said rule has lost all its significancein view of the fact that now under the Code ofCriminal Procedure or any other statute or statutoryregulations, the Village Headman is not a VillageMagistrate. The post of a Village Magistrate since1973 does not exist. https://hcservices.ecourts.gov.in/hcservices/

37. The Village Administrative Officer, it hasnot been shown, has been conferred with any power ofa Magistrate by reason of the provisions of the Codeof Criminal Procedure or otherwise. It has also notbeen shown that he exercises any judicial or quasi-judicial function. Indisputably, he has no role toplay in the matter of an investigation in a criminalcase.38. The Village Magistrates evidently, under thenew Code of Criminal Procedure, are not empowered torecord any confession or statement either in terms ofSection 162 or Section 164 of the Code of CriminalProcedure.39. For all intent and purport, therefore, Rule72 of the Criminal Rules of Practice has becomeredundant and nugatory, logical corollary whereofwould be that there does not exist any embargo for anaccused person to make an extra-judicial confessionbefore a Village Administrative Officer.40. We do not, thus, see any reason as to whysuch an extra-judicial confession could not be madebefore a Village Administrative Officer. With a viewto exclude the admissibility of the confession madebefore a person, he must be a police officer. AVillage Administrative Officer does not answer thedescription. While carrying out his duty to informthe police or the Magistrate in terms of Section 40of the Code, the Village Headman does not act as apublic servant removable only by or with the sanctionof the local government nor does he act in hiscapacity as Magistrate. (See Pregada Balanagu v.Krosuru Kotayya5.)41. We, for the reasons stated hereinbefore, areof the opinion that the extra-judicial confession bythe appellant before the Village AdministrativeOfficer was not inadmissible and, thus, could berelied upon.12.6. It is settled law that the confession made by anaccused person to a police officer is irrelevant by operationof Section 25 of the Indian Evidence Act and it shall not beproved against him. It is for the same reason the confessionmade to the Village Pradhan when he is accompanying PoliceOfficer also cannot be relied upon, as held in Kishore Chand https://hcservices.ecourts.gov.in/hcservices/ vs. State of Himachal Pradesh (AIR 1990 SC 2140).12.7. But, in the instant case, the accused himself wentto the office of the Village Administrative Officer and gaveEx.P3 extra judicial confession and no police officer waspresent while giving confession. Hence, the decision inKishore Chand vs. State of Himachal Pradesh (AIR 1990 SC 2140)is not applicable to the facts of the present case. 12.8. Similarly, the ratio laid down in Balbir Singh andanother vs. State of Punjab (1996 SCC (Cri) 1158) is also notapplicable to the case on hand, because in the said decision,the accused gave extra judicial confession to the MunicipalCommissioner who had no special friendship with the accused andtherefore, the same is not trustworthy. But, in the instantcase, the extra judicial confession has been made to theVillage Administrative Officer who maintains close acquaintancewith the Villagers. 12.9. The Apex Court in Sivakumar vs. State by Inspectorof Police (2006 (1) SCC (Cri) 470) had elaborately consideredand held that the extra judicial confession made to the VillageAdministrative Officer is admissible and can be relied upon.The decision of the Apex Court is squarely applicable to thefacts of the instant case. Hence, the extra judicial confessionalleged to have been given by the accused to P.W.8, VillageAdministrative Officer can be relied upon to convict him.13.1. The second contention of the learned counsel for theappellant is that there is no eye witness to the occurrence andthe circumstantial evidence relied on by the prosecution is notat all sufficient to prove the guilt of the accused and thechain of circumstances is also not complete to connect theaccused with the crime.13.2. Admittedly there is no direct evidence to theoccurrence proper. The prosecution therefore relies upon onlycircumstantial evidence to connect the accused with the crime.The accused is the husband of the deceased. P.Ws.1 and 2 arebrothers of the deceased Manimegalai. They deposed that theaccused married his sister Manimegalai as second wife and theywere living at Pillur. Later, there was family dispute and theaccused did not pay any money for maintenance of their sister.As the accused was not maintaining the deceased properly, thedeceased lodged a complaint before All Women Police Station.The accused promised to maintain her properly, but eventhereafter, he failed to do so. P.W.4, a relative of thedeceased and P.Ws.1 and 2, deposed in his cross examinationthat on 11.9.2002 at about 5.00 p.m. he saw the accused withManimegalai and Ezhilarasi and the accused promised her to paymoney and took them to the motor pump-set and on the next day,he saw the accused alone and not the deceased. He informed https://hcservices.ecourts.gov.in/hcservices/ this fact to P.W.1. As the deceased was found missing, P.W.1enquired P.W.6, Panchayat President about the deceased. P.W.6also deposed that the accused was not maintaining the deceasedproperly and that he also directed the accused to pay someamount to the deceased and that he enquired the accused aboutthe deceased and the accused told him that he had sent thedeceased to the temple for paying Rs.50/- and he would bringthe deceased. But, thereafter, the accused absconded from thevillage. If there is no fault on his part, the accused wouldhave brought the deceased or at least informed the whereaboutsof the deceased. The absence of the accused from the villagewould show that the accused is the cause for the missing of thedeceased. Though there is no eye witness to the occurrence,the evidence of P.W.4 shows that on the date of occurrence, hesaw the deceased along with the accused and on the next day,the accused alone returned. Therefore, the last seen theoryestablished by the prosecution unerringly points out to theguilt of the accused and the accused alone and not to any otherhypothesis. 13.3. One of the incriminating circumstances against theaccused is that the dead bodies and the weapons used forcommission of the crime were recovered on the basis of theconfession of the accused. The statement of the accused whichled to the recovery of the dead bodies has been incorporated inEx.P5 and the admissible portion of it reads that he would showthe place where the bodies of Manimegalai and Ezhilarasi wereburied and he would also produce the tin sheet used fordigging the land to bury the dead bodies and the stick used forassaulting the deceased.13.4. The evidence of the Investigating Officer andP.Ws.1, 2, 6 and 8 shows that the accused had taken them to thespot and pointed out the place where the dead bodies wereburied. Further, the dead bodies were found in the field offather of the accused. This is a very strong circumstanceagainst the accused. 13.5. The next circumstance is the recovery of M.O.5, tinsheet, which is alleged to have been used by the accused fordigging the land to bury the dead bodies, from the scene ofoccurrence, and M.O.6, stick, which is said to have been usedfor assaulting the deceased Manimegalai, from the house of theaccused. 13.6. In State of Maharashtra vs. Suresh (2000 SCC (Cri)263, the Supreme Court while dealing with Section 27 of theIndian Evidence Act, held as follows:"Three possibilities are there when an accusedpoints out the place where a dead body or anincriminating material was concealed without statingthat it was concealed by him. One is that he himself https://hcservices.ecourts.gov.in/hcservices/ would have concealed it. Second is that he wouldhave seen somebody else concealing it. And the thirdis that he would have been told by another personthat it was concealed there. But if the accuseddeclines to tell the criminal court that hisknowledge about the concealment was on account of oneof the last two possibilities the criminal court canpresume that it was concealed by the accused himself.This is because the accused is the only person whocan offer the explanation as to how else he came toknow of such concealment and if he chooses to refrainfrom telling the court as to how else he came to knowof it, the presumption is a well-justified course tobe adopted by the criminal court that the concealmentwas made by him. Such an interpretation is notinconsistent with the principle embodied in Section27 of the Evidence Act." 13.7. In State of Rajasthan vs. Bhup Singh (1997 (10) SCC675), while dealing with the admissibility of recovery of crimeweapon, the Apex Court held as follows:"The conditions prescribed in Section 27 forunwrapping the cover of ban against admissibilityof statement of the accused to the police have beensatisfied. They are (1) A fact should have beendiscovered in consequence of information receivedfrom the accused; (2) he should have been accusedof an offence; (3) he should have been in thecustody of a police officer when he supplied theinformation; (4) the fact so discovered should havebeen deposed to by the witness. If theseconditions are satisfied, that part of theinformation given by the accused which led to suchdiscovery get denuded of the wrapper of prohibitionand it becomes admissible in evidence. It isimmaterial whether the information was supplied inconnection with the same crime or a differentcrime."14. Various circumstances in the chain of eventsestablished, ruled out the reasonable likelihood of innocenceof the accused as discussed hereunder. On the day ofoccurrence, i.e. on 11.9.2002 at about 5.00 p.m., P.W.4 saw thedeceased along with the accused nearby the place from where thedead bodies were exhumed, and on the next day, the accusedalone returned and not the deceased. When P.W.4 informing thisfact to P.Ws.1 and 2, brothers of the deceased, they weresearching for the deceased Manimegalai and also enquiring withP.W.6, Village President. P.W.6 enquired the accused as to thewhereabouts of the deceased. The accused promised him to bringthe deceased, but he failed to do so and also disappeared fromthe village. The absence of the accused from the village https://hcservices.ecourts.gov.in/hcservices/ created doubt on the accused and P.W.6 asked P.W.1 to lodge apolice complaint for the missing of deceased. Accordingly,P.W.1 lodged Ex.P1 complaint on 7.11.2002 and P.W.10 registereda case in Crime No.963/2002 against the accused for womanmissing. Three weeks thereafter, on 26.11.2002, pursuant toEx.P3 extra judicial confession made to P.W.8, the accused wasarrested and on his pointing out the particular spot, thebodies were exhumed and the weapons were recovered. Abovecircumstances cumulatively lead to the only irresistibleconclusion that the accused alone is the perpetrator of thecrime. Each and every incriminating circumstance has beenestablished by reliable and clinching evidence and we havereached to an irresistible conclusion that inference can bedrawn from proved circumstances that the accused was involvedin crime and is guilty. 15.1. The last contention of the learned counsel for theappellant is that though the occurrence took place on11.9.2002, the complaint was lodged on 7.11.2002, after a delayof two months.15.2. Admittedly, the occurrence took place on 11.9.2002.Only when their attempts in search of the deceased and thechild ended in vain, P.Ws.1 and 2 decided to lodge a complainton 11.9.2002. Since there was no suspicion about the death,P.W.1 did not lodge the complaint immediately. The absence ofthe accused from the village and the information received fromP.W.4 raised a suspicion on the accused and thereafter, P.W.1has lodged the complaint on 7.11.2002. Though there is a delayin lodging the complaint, the delay is properly explained bythe prosecution. Further, originally the accused was shown assuspected accused only. However, there is no prejudice causedto the accused due to the delay in lodging the complaint.16. Under such circumstances, we are of the consideredopinion that the prosecution has proved its case beyondreasonable doubts. We do not find any reason to interfere withthe conclusion reached by the trial Court and therefore, theconviction and sentence recorded by the trial Court areconfirmed and the appeal stands dismissed.ATRSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Principal District and Sessions Judge Villupuram District.2. The Inspector of Police Villupuram Taluk Police Station Villupuram District.3. The Public Prosecutor High Court, Madras.4. The Superintendent, Central Prison, Cuddalore.5. The District Collector, Villupuram.6. The Director General of Police, Chennai.PUR(CO)SR/7.5.2008Criminal Appeal No.425 of 2007