Abdul Kareem v. The State

Faizunnisa over phone and she scolded him and on the same day, hecame to the Village Administrative Officer and gave the confession.6. The Village Administrative Officer, Madhuranayagam afterrecording Ex.P.1, prepared the complaint Ex.P.2 addressed to theSub Inspector of Police, Vadaponparrapi Police Station and went tothe Police Station and gave the complaint Ex.P.2 along with Ex.P.1.P.W.1 also had accompanied the Village Administrative Officer tothe police station. P.W.22, Sub Inspector of Police on receivingEx.P.2 and Ex.P.1 registered the case in Crime No.273 of 2001 foroffences under Sections 302 and 201 IPC and prepared the FirstInformation Report Ex.P.45. He forwarded the copy of the FIR tothe Judicial Magistrate, Kallakurichi and also forwarded a coy ofthe FIR to his Superior Officer.7. P.W.25 Inspector of Police on receiving a VHF messagewent to the police station and received the copy of the FIR andarrested the accused at 9.30p.m., in the presence of the witnesses,Village Administrative Officer Madhuranayagam and his AssistantP.W.1. He also recorded the confession given by the accused.Ex.P.3 is the admissible portion of the confession recorded byP.W.25. P.W.25 went to the house of the accused and recoveredM.Os.1 and 2 yellow cloth and yellow ribbon, M.O.3 roots , M.O.4dried lemon, M.O.5 old cloth, M.O.6 copper plate which wereproduced by the accused under Ex.P.4 mahazar. He also gave arequisition to the Tahsildar for the exhumation of bodies. 8. P.W.14 Tahsildar of Sankarapuram on receiving therequisition, he informed the Chenglepet medical college medicalteam for holding autopsy. Next day he went to the scene ofoccurrence and the medical team also reached the spot. Theaccused pointed out the place. As per the order of P.W.14, P.W.10and others dug up the place and took out six bodies. He preparedthe observation mahazar Exs.P.5 and P.6. P.W.12 has taken thephotos M.O.12 series and M.O.13 series. P.W.24 Doctor Parasakthiwho had come to the place of exhumation commenced autopsy on allthe six bodies at 3.50p.m.,. Exs.P.65 to 70 are the post mortemcertificates relating to the body of the deceased viz.,Badhuhunisha, Nabeeza, Shakeetha, Nazirin, Zagira Banu and Yasmin.Post mortem certificate of Yasmin (Ex.P.65):Signs of Decomposition:Body bloaded; Face – bloated. Abdomen-Distended. Both eyeballs softened; Loosening ofScalp hair seen; cuticular peeling seen all over thebody; Tongue protruding out.Finger nails; Cyanosed; Mucous membrances ofmouth, lips and tongue; cyanosed; Nil bony injuriesseen. Neither external nor internal injuries seenanywhere on the body.Forth seen at and around mouth larynx andtrachea. Sand, mud-particles, froth and mucous seen https://hcservices.ecourts.gov.in/hcservices/ on the inner surface of larynx and trachea.Respiratory tract decomposed is contained sand, mudparticles, froth and mucous O/D Vault Base Dura;Intact, Brain: Liquified;Hyoid Bone: Intact; Lungs, Liver, Spleen, Kidneys,Pancreas, Bladder; Decomposed, NAD, Heart: Flabby,Empty decomposed; Stomach: Contained 100 grams ofpartly digested cooked materials No specific smell, Mucos: Decomposed small intestine, Yellowish chymeseen. No specific smell. Uterus: Infantiledecomposed Viscera preserved for chemical analysis.Opinion: Died of conclusion of respiratory orificesand passages.Post mortem certificate of Zagira (Ex.P.66):Signs of Decomposition:Body bloaded; Face – bloated. Abdomen-Distended. Both eyeballs softened; Loosening ofScalp hair seen; cuticular peeling seen all over thebody; Tongue protruding out.Finger nails; Cyanosed; Mucous membranes ofmouth, lips and tongue; cyanosed; Nil bony injuriesseen. Neither external nor internal injuries seenanywhere on the body.Forth seen at and around mouth larynx andtrachea. Sand, mud-particles, froth and mucous seenon the inner surface of larynx and trachea.Respiratory tract decomposed is contained sand, mudparticles and froth.O/D Vault Base Dura; Intact, Brain:Liquified; Hyoid Bone: Intact; Lungs, Liver,Spleen, Kidneys, Pancreas, Bladder; Decomposed, NAD,Heart: Flabby, Empty decomposed; Stomach: Contained100 grams of partly digested cooked materials Nospecific smell, Mucos: Decomposed small intestine,Yellowish chyme seen. Mucosa Decomposed. Uterus:Infantile decomposed Viscera preserved for chemicalanalysis.Opinion: Died of conclusion of respiratory orificesand passages.Post mortem certificate of Nazirin (Ex.P.67)Signs of Decomposition:Body bloaded; Face – bloated. Abdomen-Distended. Both eyeballs softened; Loosening ofScalp hair seen; cuticular peeling seen all over thebody; Tongue protruding out.Finger nails; Cyanosed; Mucous membrances ofmouth, lips and tongue; cyanosed; Nil bony injuriesseen. Neither external nor internal injuries seenanywhere on the body. https://hcservices.ecourts.gov.in/hcservices/ Forth seen at and around mouth larynx andtrachea. Sand, mud-particles with fluid seen on theinner mucosal surface of larynx and trachea.Respiratory tract decomposed; c/s. Contained sand,mud particles, froth and fluid; O/D Vault Base Dura;Intact, Brain: Liquified; Hyoid Bone: Intact;Heart: Flabby, empty, decomposed; lungs, liver,spleen, kidneys, Pancreas, Bladder, decomposed,Uterus: Infantile Decomposed. Stomach: Contained 50grams of partly digested food materials No specificsmell, Mucosa: Decomposed small intestine, Distendedwith gas, No specific smell, Mucosa: Decoposed.Viscera preserved for chemical analysis, Soilsamples preserved and sent to TNFSC Lab, Chennai-4.Opinion: Died of conclusion of respiratory orificesand passages.Post Mortem certificate of Shakeetha (Ex.68):Signs of Decomposition:Body bloaded; Face – bloated. Abdomen-Distended. Both eyeballs softened; Loosening ofScalp hair seen; cuticular peeling seen all over thebody; Tongue protruding out.Finger nails; Cyanosed; Mucous membrances ofmouth, lips and tongue; cyanosed; Nil bony injuriesseen. Neither external nor internal injuries seenanywhere on the body.Forth seen at and around mouth larynx andtrachea. Sand, mud-particles with fluid seen on theinner mucosal surface of larynx and trachea.Respiratory tract decomposed; Contained sand, mudforth and fluid; O/D Vault Base Dura; Intact, Brain:Liquified; Hyoid Bone: Intact; Heart: Flabby,empty, decomposed; lungs, liver, spleen, kidneys,Pancreas, Bladder, decomposed. Bladder: Decomposed.Uterus: Decomposed: Empty: Stomach: Contained 75grams of partly digested food materials. No specificsmell, Mucosa: Decomposed small intestine, Yellowchyme seen, No specific smell, Mucosa: Decoposed.Spinal Coloumn: Intact Atlas Axiz – Intact: Viscerapreserved: Soil preserved.Opinion: Died of conclusion of respiratory orificesand passages.Post mortem certificate of Nabeeza (Ex.P.69)Signs of Decomposition:Body bloated ; Face – bloated. Abdomen-Distended.Both eyeballs softened; Loosening of Scalp hairseen; cuticular peeling seen all over the body;Tongue protruding out. https://hcservices.ecourts.gov.in/hcservices/ Finger nails; Cyanosed; Mucous membrances ofmouth, lips and tongue; cyanosed; Nil bony injuriesseen. Neither external nor internal injuries seenanywhere on the body.Forth seen at and around mouth larynx andtrachea. Sand, mud-particles seen on the innermuscosal surface of Larynx and Trachea. Respiratorytract Decomposed. O/D Vault Base Dura; Intact,Brain: Liquified; lungs, liver, spleen, kidneys,Pancreas, decomposed.Stomach: Contained 100 grams of partly digested foodmaterials. No specific smell, Mucosa: Decomposed.Small Intestine; Yellowish Chyme decomposed. Bladderdecomposed. Uterus Decomposed. Empty Hyoid Bone:Intact Viscera preserved: Soil preserved.Opinion: Died of conclusion of respiratory orificesand passages.Post mortem certificate of Badhurunisha (Ex.P.70)Signs of Decomposition:Body bloated; Face – bloated. Abdomen-Distended.Both eyeballs softened; Loosening of Scalp hairseen; cuticular peeling seen all over the body;Tongue protruding out.Finger nails; Cyanosed; Mucous membrances ofmouth, lips and tongue; cyanosed;Anti mortem injury:Saree was tightly tied on the entirecompletely, around the neck. After removal of thesaree, horizontally placed, well-defined deeply-grooved, ligature mark, seen completely enarclingthe neck. Circumference of the ligature mark; 35cms and width 5 cms. It lies 7cms above the suprasternal notch on the front of neck. On the side, itlies 5 cms below the matoid prominence. On leftside it lies 5.5cms below the left mastoidprominence. On the back of neck, it lies 6.5 cmsabove the 7 critical spine. O/D the underlyingissues of the ligature mark found, braised.Petechial haemorrhages seen on the inner aspect oflarynx and trachea.Hyoid Bone: Intact: Thyroid and CricoidCartilages: IntactO/D. Of Thorax and Abdomen. All visceralorgans namely lungs Liver, Spleen, Kidneys, Pancreasand Heart found decomposed. Uterus: Normal sizeEmpty. Bladder: Empty Decomposed.O/D. Head. Vault, Base, Dura – Intact, Brain:Decomposed. Liquified; Viscera preserved forchemical analysis soil samples collected from the https://hcservices.ecourts.gov.in/hcservices/ buried site. Sent to TNFSC Lab, Chennai -4 todetect poison if any.Opinion: "Died of asphyxia due to Strangulation."9. P.W.25 Inspector of Police examined the witnesses andsent the accused before the learned Judicial Magistrate I,Kallakurichi for remand. P.W.14 gave the report Ex.P.53 to thelearned Judicial Magistrate-I, Kallakurichi on 04.09.2001. On10.09.2001, the Inspector of Police gave requisition to theJudicial Magistrate for recording the statement under 164 Cr.P.C.On 29.01.2001 he recorded the statement of the witnesses IkbalBasha and Thirumal under Section 164 Cr.P.C under Exs.P.10 and P.11respectively. On 11.09.2001, he gave requisition to the JudicialMagistrate for the police custody of the accused. As per the orderof the Court, he took the accused to his custody on 11.09.2001 andon 14.09.2001 he went to Thiruvannamalai and seized the ledger ofthe lodge under a mahazar Ex.P.72. P.W.8 is the Manager of theArya Lodge at Thiruvannamalai. According to him, an entry was madein the ledger that Abdul Rahim had stayed in the lodge with a lady.Ex.P.12 is the entry. On 17.09.2001, the accused was producedbefore the Judicial Magistrate. On 24.01.2001, P.W.25 has givenrequisition to the learned Judicial Magistrate for comparing theskull with the photograph of the deceased by superimposition.P.W.21 the Assistant Director on comparing the six skulls with sixphotographs and by conducting the superimposition test concludedeach of the skull belongs to each individual seen in thephotographs and giving his opinion issued the certificate Ex.P.54with reasons for the opinion.10. P.W.23, Judicial Magistrate II, Kallakurichi onreceiving the order of the learned Chief Judicial Magistrate, sentthe notice to the prison to produce the accused on 20.03.2001 at3.00p.m. The accused was produced at 4.45p.m., then sending theother persons outside the court and closing the windows and doorsof the court, he questioned the accused as the accused was ready togive voluntary confession 24 hours time was given to him forreflection. But on 22.09.2001, as P.W.23 the learned Judicialmagistrate was about to go Sessions Court for giving evidence, theaccused was directed to be produced and the accused was produced on24.09.2002 at 4.00p.m.,. The accused was questioned whether he waswilling to give the confession and as he was willing, hisconfession was recorded from 4.10p.m., to 6.30p.m and his signaturewas obtained. Ex.P.58 is the proceedings and the Judicialconfession given by the accused and recorded by the learnedMagistrate. P.W.25 on examining the other witnesses Tahsildar,Head Constable and photographers and other witnesses and oncompleting the investigation, he filed a final report on 29.11.2001for offences under sections 302 and 201 IPC. 11. P.W.3 mother-in-law of the accused and mother of thedeceased Badhurunisha stated in her evidence that the seconddaughter of the accused Zareena had committed suicide by hanging https://hcservices.ecourts.gov.in/hcservices/ and the accused had taken his second daughter Nabeeza to a lodgeat Thiruvannamalai and it was informed by his daughter. P.W.4mother of the accused had stated in her evidence that the daughterof the accused Zareena had committed suicide, since she was scoldedby the accused. She further stated that the accused took thechildren from her custody and when she went and asked the accused,she was informed that the daughters have been sent to Goa. As sheinsisted that she had to see the Children, the accused told thathe would go and bring them. P.W.5 brother of the deceasedBadhurunisha stated in his evidence that the accused took hisdaughter Nabeeza to a lodge at Thiruvannamalai and misbehaved withher. P.W.6 another brother of the deceased Badhurunisha haddeposed that Nabeeza told him that the accused had taken her to alodge at Thiruvannamalai and told her that if she gets married, hewould murder her husband. PW.7 who is he neighbour of theaccused had stated that the accused left the house saying that hewas going to Goa to bring his wife and daughters, but he was notseen thereafter for a period of one month. PW.9 had deposed thathe was engaged by the accused for digging a pit. He and othertwo persons were given a wage of Rs.70 each.12. After completion of the prosecution case on examiningthe witnesses, the accused was questioned under Section 313Cr.P.C., on the incriminating materials, and he had denied hiscomplicity and he filed a written statement. In his writtenstatement, he had stated that on 02.09.2001, he was taken toThiruvannamalai police station and then sent to VadaponparrapiPolice station and thereafter only he came to know about the deathof his children. He had further stated that he had not given theconfession before the learned magistrate voluntarily, but he wasinduced and threatened by the police and what is stated in theconfession is not true.13. Mr.V.Parthiban learned counsel appearing for theappellant submitted that the Judicial confession Ex.P.58 is notadmissible in evidence, since P.W.23 learned Magistrate whorecorded has not followed the procedures contemplated under Section164 Cr.P.C and placed reliance on the following decisions of theHonourable Supreme Court:a) 2001 SCC (Crl.) 652 (Dhananjaya Reddy v. State ofKarnataka) b) 2006 Crl.L.J 1085 (Murugan and Ravikumar alias KunduRavi v. State represented by Inspector of Police)14. The learned counsel appearing for the appellant furthersubmitted that if the judicial confession is eschewed, theremaining circumstances let in by the prosecution are notsufficient to convict the accused. Though Ex.P.1, extra judicialconfession is said to have been given by the accused to oneMarudhanayagam, as the said Marudhanayagam could not be examinedbeing dead, marking Ex.P.1 through the attestators P.Ws.1 and 2would render Ex.P.1 valueless. The learned counsel also drew the https://hcservices.ecourts.gov.in/hcservices/ attention of this Court to the statement given by Marudhanayagam toP.W.14 Tahsildar which is filed along with the inquest reportrecords Ex.P.41. On the basis of the statement of Marudhanayagam,the learned counsel attempted to advance an argument that theaccused was arrested by different police even before recordingEx.P.1, the alleged extra judicial confession of theaccused/appellant. The learned counsel also submitted that themotive is not established and the evidence let in through thewitnesses are only hearsay and again for this purpose, the learnedcounsel relied on the earlier statements given by some of thewitnesses before the Tahsildar P.W.14.15. Per contra, Mr.V.R.Balasubramaniam, learned AdditionalPublic Prosecutor submitted that a conviction can be made on theaccused, solely based on the judicial confession given by him andin this case, even if the judicial confession is not considered,merely for the sole reason that the learned Magistrate not appendedthe certificate as required under Section 164(4) Cr.P.C; otherample materials are available against the accused to prove that theaccused/appellant had committed the offence of murder of his wifeand children. 16. The learned Additional Public Prosecutor further addedthat though the said Marudhanayagam could not be examined due tohis death, the extra judicial confession Ex.P.1 being given by theaccused in the presence of P.Ws.1 and 2, it is admissible inevidence. The evidence of P.Ws.2 to 6 establish that the accusedhad motive to murder his wife. The clinching circumstancesagainst the accused is that the bodies of the deceased wereexhumated only on the information given by the accused by pointingout the place. As the accused was absconding, his conduct is alsoanother added circumstance to implicate the accused with thecrime. The learned Additional Public Prosecutor relied on thefollowing decisions of the Honourable Supreme Court:i) 2000 SCC(Crl.) 263 (State of Maharashtra v. Suresh).ii) 2008) 2 MLJ (Crl.) 482 (SC) (Liyakat vs. State ofUttaranchal).17. This Court considered the submissions made by bothparties and perused the records. There is no eye-witness to theoccurrence. According to the prosecution the deceased had murderedhis wife and five children. The bodies of all the six deceasedwere exhumated in the presence of P.W.14 Tahsildar and autopsy ofthe bodies was conducted at the spot by the Doctor P.W.24. The postmortem Doctor P.W.24 has issued the post mortem certificatesExs.P.65 to P.70. The Doctor has opined that as far asBadhurunisha is concerned, she died due to asphyxia due tostrangulation and as far as the death of other five persons, theyhave died to conclusion of respiratory orifices and passages.P.W.21 Assistant Director of Forensic Science Department,Anthropology Division, Chennai, had conducted the superimpositiontest on the skull of all the deceased comparing with the https://hcservices.ecourts.gov.in/hcservices/ photographs of the respective deceased and he had given hispositive opinion in Ex.P.54 with the reasons for his conclusions.18. The circumstances relied on by the prosecution are asfollows:(i)The judicial confession Ex.P.58 recorded by P.W.23.(ii) The extra judicial confession Ex.P.1 given by theaccused to one Marudhanayagam, Village AdministrativeOfficer and P.Ws.1 and 2 who are his assistants.(iii) The confession given by the accused and pointing theplace of deceased being buried.(iv) The deceased wife and children of the accused whowere in the company of the accused were missing andsubsequently the accused also was absconding. (v) The motive for the occurrence, i.e., the disputebetween the accused and his wife and the misbehaviour ofthe accused with his own daughter Nabeeza. The body ofthe deceased were exhumated only on the information givenby the accused.19. With regard to the first circumstance (i) judicialconfession Ex.P.58 given by the accused to the learned MagistrateP.W.23; The accused was produced before P.W.23 on 20.09.2001 forrecording his confession and he was given 24 hours time and he wasagain produced on 21.09.2001. Questioning the accused whether hewas willing to give confession, as he answered yes, his confessionwas recorded.Section 164(4) Cr.P.C is as follows:164.Recording of Confessions and statements: (1)............ (2)............ (3)............ (4) Any such confession shall berecorded in the manner provided in section 281 forrecording the examination of an accused person andshall be signed by the person making the confession;and the Magistrate shall make a memorandum at thefoot of such record to the following effect:-"I have explained to (name) thathe is not bound to make a confession andthat, if he does so, any confession hemay make may be used as evidence againsthim and I believe that this confessionwas voluntarily made. It was taken in mypresence and hearing, and was read overto the person making it and admitted byhim to be correct, and it contains a fulland true account of the statement made byhim.(signed)A.BMagistrate." https://hcservices.ecourts.gov.in/hcservices/ Admittedly in Ex.P.58, no such certificate has been appended by thelearned Magistrate.In the decision reported in 2001 SCC (Crl.) 652 (DhananjayaReddy v. State of Karnataka, it has been observed in paragraph-20as follows:"20. The function of the Magistrate inrecording confession under Section 164 of the Code isa very solemn act which he is obliged to perform bytaking due care to ensure that all the requirementsof Section 164 are fully satisfied. The Magistraterecording such a statement should not adopt a casualapproach as appears to have been shown byShambulingappa (PW.50) in this case. Besidesensuring that the confessional statement being madebefore him is voluntary and without pressure, theMagistrate must record the confession in the mannerlaid down by the section. Omission to comply withthe mandatory provisions, one of such being asincorporated in sub-section (4) of Section 164 islikely to render the confessional statementinadmissible. The words "shall be signed by theperson making the confession", are mandatory innature and the Magistrate recording the confessionhas no option. Mere failure to get the signature ofthe person making the confession may not be verymaterial if the making of such statement is notdisputed by the accused but in cases where the makingof the statement itself is in controversy, theomission to get the signature is fatal."In a similar situation, the decision of the Honourable HighCourt in Murugan and Ravikumar alias Kundu Ravi v. Staterepresented by Inspector of Police (2006 Crl.L.J 1085), it has beenobserved as follows:"A reading of sub-clause (4) of Section 164Cr.P.C and as interpreted in various decisions, weare of the view that the Magistrate while recordingconfession under Section 164 Cr.P.C must follow theprocedural formalities and ensure that all therequirements of the provisions are complied withproperly. Inasmuch as the certificate memorandum asone required under Section 164(4) Cr.P.C ismandatory, we are of the opinion that the learnedMagistrate (P.W.9) has not strictly followed all therequirements of the provisions contemplated in orderto ensure that the confession statement given by theaccused was voluntary in nature. Accordingly, thedocument Ex.P.6 fall short of judicial confession ascontemplated under Section 164(4) of the Code. Insuch circumstances, it (Ex.P.6) has no legal https://hcservices.ecourts.gov.in/hcservices/ significance in the light of the law. As saidearlier, though certain recoveries were made, it isnot in dispute that the root cause for the same isthe statement of A.4 to P.W.8 and P.W.9. In view ofour conclusion and the infirmities pointed outabove, it would be unsafe to sustain theconviction."20. In view of the decision of the Honourable Apex Courtand also in view of the decision of this Honourable High Court, itis only to be held after finding that the learned Magistrate hasnot given to the confession recorded by him a certificate as onerequired under Section 164(4) Cr.P.C., which is mandatory, thejudicial confession therein is of no legal significance in the eyeof the Courts. Further as provided under Section 463 Cr.P.C., tocure the defect no evidence has been recorded with regard to thenon-compliance with the provisions as required under Section 164(4) Cr.P.C., so as to satisfy that such non-compliance has notinjured the accused in his defence on merits. Therefore, Ex.P.58judicial confession is not taken into consideration against theaccused.21. With regard to circumstance (ii), according to theprosecution, on 02.09.2001, while P.Ws.1 and 2 were in the officeof Revenue Inspector, Vadaponparappi, accused appeared and gaveconfession before the Village Administrative Officer,Marudhanayagam that he had murdered his wife and five daughters.The said confession was recorded into writing under Ex.P.1 by theVillage Administrative Officer Marudhanayagam. In the saidconfession, both P.Ws.1 and 2 have signed as witnesses. BothP.Ws.1 and 2 had been present at the time of accused giving hisconfession and recording it. In the said circumstances, it is tobe held that the extra judicial confession was given in thepresence of P.Ws.1 and 2 also. Ex.P.1 contains the signatures ofboth P.Ws.1 and 2. The accused had narrated in Ex.P.1 as to how hemurdered his wife and also how he made his five daughters to sit inthe pit alive and closed the pit with the earth. There is noreason to reject the evidence of P.Ws.1 and 2 and Ex.P.1 extrajudicial confession given by the accused. The contention of thelearned counsel for the appellant that even before giving Ex.P.1extra judicial confession, that the accused was arrested byThiruvannamalai Police and handed over to Vadaponparappi police isonly to be rejected, since there is no evidence to that effect.The reliance placed by the learned counsel for the appellant andthe statement of Marudhanayagam recorded by the Tahsildar P.W.14cannot be taken into consideration, since there is no provision tomake any earlier statement of a person who had died admissibleexcept as provided under Section 32 of the Indian Evidence Act.Therefore, it is unnecessary to deal with the earlier statement ofMarudhanayagam though it is marked. https://hcservices.ecourts.gov.in/hcservices/

22. With regard to circumstance (iii); After the arrest ofthe accused, a requisition was given to P.W.14 Tahsildar andaccording to P.W.14, the accused had pointed out the place wherethe bodies were buried and on digging up the place pointed out bythe accused, six bodies were seen. It is also mentioned in theinquest reports prepared by P.W.14 that the accused had admittedthat he had buried the bodies. The established fact is that it wasknown only to the accused, the bodies of six persons were availableat that place and those bodies were recovered only in pursuance ofthe confession given by the accused.23. Section 106 of the Indian Evidence Act is as follows:"106. Burden of proving fact especially within knowledge.When any fact is especially within theknowledge of any person, the burden of proving thatfact is upon him.Illustrations:a)When a person does an act with someintention other than that which the character andcircumstances of the act suggest, the burden ofproving that intention is upon him.b) A is charged with travelling on a railwaywithout a ticket. The burden of proving that he hada ticket is on him."In the decision reported in 2000 SCC(Crl.) 263 (State ofMaharashtra v. Suresh), the Honourable supreme Court has observedas follows:"26. We too countenance three possibilitieswhen an accused points out the place where a deadbody or an incriminating material was concealedwithout stating that it was concealed by himself.One is that he himself would have concealed it.Second is that he would have seen somebody elseconcealing it. And the third is that he would havebeen told by another person that it was concealedthere. But if the accused declines to tell thecriminal court that his knowledge about theconcealment was on account of one of the last twopossibilities the criminal court can presume that itwas concealed by the accused himself. This isbecause the accused is the only person who can offerthe explanation as to how else he came to know ofsuch concealment and if he chooses to refrain fromtelling the court as to how else he came to know ofit, the presumption is a well justified course to beadopted by the criminal court that the concealmentwas made by himself. Such an interpretation is notinconsistent with the principle embodied in Section27 of the Evidence Act." https://hcservices.ecourts.gov.in/hcservices/ The Honourable Supreme Court in the case reported in (2008)2 MLJ (Crl.) 482 (SC) Liyakat vs. State of Uttaranchal, hasobserved as follows:"23.It has been rightly noted by the trialCourt and the High Court that the accused personswere absolutely silent and no explanation wasoffered as to how the body came to be buried intheir hut which was in their exclusive user.24. Similarly the non-explanation of thisvital circumstance adds to the chain ofcircumstances. It is now settled law that if thedeceased was in the custody or in the company of theaccused, then the accused must supply someexplanation regarding the disappearance of thedeceased."In this case, the accused not only offered any explanation buttotally denied the circumstance of recovering the bodies of thedeceased from the side of his house from a pit at his instance.Therefore the said circumstance stands proved and also a strongcorroboration for the extra judicial confession given by theaccused.24. With regard to circumstances (iv) and (v); It is theevidence of P.Ws.3 to 6 that when the accused was enquired abouthis wife and children, he had informed that they have been sent toGoa. P.W.4 who is the mother of the accused himself had stated inher evidence that the accused took the children along with him andon the next day, as she went and enquired, she was informed thatchildren were sent to Goa. This part of the evidence shows thatthe accused had admitted that the wife and children were with himand they had been missing and subsequently their bodies wererecovered at the instance of the accused. All these clinchingmaterials lead to show only that the accused is responsible for theburying all the six persons in the pit. Why the accused had goneto the extent of murdering his wife and children is also known fromthe evidence of P.Ws.3 to 6. The accused was suspecting thefidelity of his wife and that the daughter of the accused Zareenahad already committed suicide. The accused stayed in a lodge alongwith his daughter Nabeeza and he had misbehaved with his daughterand it was informed by the deceased Nabeeza herself to P.W.5, hermaternal uncle. Even the accused himself has mentioned in Ex.P.1that there was a rumour that he was having some illicitrelationship with his daughter Nabeeza.25. This Court finds that though the judicial confessiongiven by the accused in this case is not taken into consideration,the other circumstances let in by the prosecution has establishedthat the accused had buried the deceased into the pit from wheresix bodies were recovered and the guilt of the accused isestablished beyond reasonable doubt. https://hcservices.ecourts.gov.in/hcservices/

26. Though the accused had committed the murder of sixpersons, who are his wife and daughters, the trial Court has notresorted to give the maximum sentence of death, but imposed aminimum sentence of life imprisonment. The trial Court has notgiven any reasons for imposing minimum sentence of lifeimprisonment and for not awarding the maximum sentence of death.Section 354(3) Cr.P.C is as follows:Language and contents of judgment."354. (1)...... (2)...... (3) When the conviction is for anoffence punishable with death or, in thealternative, with imprisonment for life orimprisonment for a term of years, the judgment shallstate the reasons for the sentence awarded, and, inthe case of sentence of death, the special reasonsfor such sentence. (4)............ (5)........... (6).........................."From the above provision, it is true that for conviction underSection 302 IPC, ordinarily a life imprisonment must be given andfor giving death sentence, special reasons must be stated. Thetrial Court failed in this case to look into and consider whetherspecial reasons could be given for imposing the maximum sentence.Even for awarding the life sentence, the court is required to statethe reasons. Sentencing an accused person is the sensitiveexercise of discretion and not a routine or mechanical prescriptionacting on hunch. Though the manner in which the sentence isawarded to the accused is disturbing the conscious of this Court,as no appeal has been preferred by the State under Section 377Cr.P.C against the sentence on the ground of inadequacy, this Courtnow confirms the sentence already imposed by the trial Court. Atthe same time, considering the magnitude of the crime, manner ofcommission of multiple murder of all the members of the family,this Court feels that the imprisonment for life given in this caseshould be with its normal meaning for life as defined under Section45 of IPC which reads as follows:45. "Life":- The word "life" denotes thelife of a human being, unless the contrary appearsfrom the context.The Honourable Supreme Court in the decision in SwamyShraddandanda @ Murali Manohar Mishra v. State of Karnataka (2008(10) SCALE 669), has laid down as follows:"66. The matter may be looked at from aslightly different angle. This issue of sentencing hastwo aspects. A sentence may be excessive and undulyharsh or it may be highly disproportionately https://hcservices.ecourts.gov.in/hcservices/ inadequate. When an appellant comes to this courtcarrying a death sentence awarded by the trial courtand confirmed by the High Court, this Court may find,as in the present appeal, that the case just fallsshort of the rarest of the rare category and may feelsomewhat reluctant in endorsing the death sentence.But at the same time, having regard to the nature ofthe crime, the Court may strongly feel that a sentenceof life imprisonment that subject to remission normallyworks out to a term of 14 years would be grosslydisproportionate and inadequate. What then the Courtshould do? If the Court's option is limited only totwo punishments, one a sentence of imprisonment, forall intends and purposes, of not more than 14 yearsand the other death, the court may feel tempted andfind itself nudged into endorsing the death penalty.Such a course would indeed be disastrous. A far morejust, reasonable and proper course would be to expandthe options and to take over what, as a matter of fact,lawfully belongs to the Court, i.e., the vast hiatusbetween 14 years' imprisonment and death. It needs tobe emphasized that the Court would take recourse to theexpanded option primarily because in the facts of thecase, the sentence of 14 years imprisonment wouldamount to no punishment at all.67.............................68. In the light of the discussions made above,we are clearly of the view that there is a good andstrong basis for the Court to substitute a deathsentence by life imprisonment or by a term in excess offourteen years and further to direct that the convictmust not be released from the prison for the rest ofhis life or for the actual term as specified in theorder, as the case may be."27. In the result, the appeal is dismissed, confirming theconviction and sentence imposed on the accused, with a directionthat the appellant/accused shall not be released from prison tillthe rest of his life.Sd/Asst.Registrar/true copy/Sub Asst.Registrarksr https://hcservices.ecourts.gov.in/hcservices/ To1. The Principal Sessions Judge, Villupuram.2. The Inspector of Police, Sankarapuram Police Station, Vadaponparrapi, Villupuram.3. The Superintendent of Prisons, Central Prison, Cuddalore- 607 004.4. The Public Prosecutor, High Court, Madras 600104.5. The Section Officer, Criminal Section, High Court, Chennai.6. The District Collector, Villupuram.7. The Director General of Police, Chennai.1 cc To Mr.V.Parthiban, Advocate, SR.14772.Crl.A.No.429 of 2006 SSN(CO)RVL 30.04.2009