State Of Tamil Nadu vs Manmatharaj

State of Tamil Nadu ....Appellant

Versus

Manmatharaj ....Respondent

JUDGMENT

DR. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of the Division Bench of

the Madras High Court allowing the appeal filed by the respondent

(hereinafter referred to as the `accused') who was convicted for the offence

punishable under Section 302 and Section 201 of the Indian Penal Code,

1860 (in short the `IPC').

2. Prosecution version in a nutshell is as follows:

The accused is a resident of Chockalingapuram. The deceased

Mariammal was his wife. Their marriage had taken place ten years prior to

the occurrence. (The occurrence was on 29.5.1990) The deceased and the

accused have a son aged about eight years. The deceased was employed in a

private establishment near her village. PW2 is her co-worker. The accused

came to know that his wife was having an illicit affair with PW 2.

Therefore, he warned his wife. However, the deceased continued her affair

with PW2. Two weeks prior to the occurrence, on coming to know that the

deceased and PW2 are happily spending their time in the plantain garden of

Neerkathalingam, north of the village, the accused went there to catch them

red-handed. Seeing his movements there, PW2 and the deceased parted

company and moved away. On 25.5.1990, the deceased and PW2 were

found sharing their bed in the very same plantain garden by PW3 and PW4.

Both PWs 3 & 4 reprimanded them. Coming to know about this incident,

the accused questioned his wife on 29.5.1990 and his wife flatly refused

such an incident. There was an exchange of words between the two during

which the accused abused the deceased stating that he had been put to

2 shame on account of his wife's conduct and therefore, he must kill her. He

wanted his wife to accompany him so that he could verify with PWs 3 & 4

about the incident on 25.5.1990 in her presence. With that object in his

mind, the accused took his wife to the private establishment where she was

working. Enroute, they found PW5 seated under a banvan tree. The

deceased invited him to join them. However, the accused told PW5 not to

accompany them. The deceased and the accused were proceeding towards

north and they were passing a channel called "Vadi Kalvai" around 12 noon

on that day. The deceased refused to proceed further towards the private

establishment where she was working. She also told the accused at that time

that she would move only like that with PW2 and if the accused is not

willing for such a course, then she would rather go with PW2. Deciding that

she should not be allowed to live any more, the accused fisted her and

pushed her inside the channel. Pressing her inside the water, he picked up a

white stone lying nearby and repeatedly attacked on her head with that stone

resulting in injuries on the back side of her head, left ear and over the right

cheek. Mariammal was bleeding through the injury on her head which

stained the earth as well as her saree. When Mariammal was being pushed

by the accused, she bit his right hand index finger as well as his right hand

resulting in injuries to the accused. Thinking that Mariammal would die, the

3 accused leaving Mariammal at the spot itself, rushed to the establishment

where his younger brother Kasirajan was working and confessed to him that

he had attacked his wife with a stone. The accused and Kasirajan

immediately went to the scene of occurrence where they found Mariammal

fighting for her life. Immediately, the accused and his younger brother put

her in a cart and took her to the house where she was laid on the western

side of the house. When Mariammal was being taken down from the cart,

the shirt of the accused and his younger brother became blood-stained.

Sometime later, Mariammal died. The accused thought of burning his wife's

body secretly. However, his conscience did not permit him to do so which

impelled him to disclose the truth to someone. Accordingly, he reached the

office of PW 1, the Village Administrative Officer around 8 p.m. On

29.5.1990 where PW7 and the Panchayat President were there. In their

presence the accused gave a confessional statement.

3. The Trial Court placing reliance on the extra judicial confession

given to the Village Administrative Office (PW1) in the presence of PW7

directed conviction. In appeal, the High Court set aside the conviction. The

High Court after referring to the evidence of PWs 1 and 7 held that Ex.P1

lacks authenticity.

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4. Learned counsel for the appellant submitted that the High Court

should not have directed acquittal doubting the authenticity of Ex.P1.

Learned counsel for the respondent supported the judgment.

5. In the instant case, having concluded that Ex. P 1 lacks corroboration,

High Court has referred to the oral evidence of PWs 1 and 7 to find out

whether their evidence would pass the test of reliability. High Court was of

the view that it could rely upon their evidence if it was held that Ex. P1 had

come to be recorded without any suspicious circumstance surrounding it. In

this context, a perusal of Ex.P15 as well as Ex. P1 itself give room to doubt

the very truth of Exs. P1 and P15. At the foot of Ex. P1, PW1 had made an

endorsement. The endorsement as it stood originally reads that PW1 himself

had taken the accused and Ex. P1 to the Police Station. However, there is a

correction in the endorsement made at the foot of Ex.P1 and it is made to

appear that the accused was sent to the Police Station along with Ex. P1 and

other material records only with PW7, village menial. PW7 would state that

he went to the Police Station where he presented the accused as well as

Exs.Pl and P3 to the Sub-Inspector of Police, examined as PW10 in this

case. PW 10 had also stated so. But, in the same breadth, PW7 stated that

5 he reached the Police Station at 12 in the night i.e., in the midnight of

29.5.1990; waited there for one hour; the Inspector of Police came and gave

Ex. P1 only to him. He knows the difference between a Sub-Inspector and

an Inspector. If the evidence of PW7 is accepted, it will show beyond doubt

that he had reached the Police Station only, in the midnight of 29.5.1990

and Ex. P1 had been handed over by him only to the Inspector of Police.,

Ex. P15 is the printed First Information Report. The evidence of PW10

shows that Ex.Pl had come to be registered in the Police Station at 10 p.m.

on 29.5.1990. Though under normal circumstances, the evidence of PW7

regarding the time at which he reached the Police Station and to whom he

had handed over the material records and the accused would not assume any

importance if there are any other direct circumstance in favour of the

prosecution, yet, in view of the fact that the prosecution, in this case, rests

only upon the extra judicial confession statement which does not find

corroboration at all on general particulars, this evidence of PW7, definitely

cannot be brushed aside while appreciating the case of the prosecution.

6. One other circumstance in the evidence of PW 7 which definitely

casts doubt on the case of the prosecution is that he stated that after giving

the material records at the Police Station, he went back home and the

6 Observation Mahazar and other material records were prepared by the

Investigating Officer commencing from 6 a.m. on 30.5.1990. Therefore,

according to PW7, after he handed over the material records at the Police

Station, he went home and again participated in the exercise done by the

Investigating Officer only from 6 a.m. onwards on the following morning.

However, it is seen from the evidence of PW 14 that the preparation of

records had all been done, right from the midnight of 29.5.1990 itself in

which PW7 actively participated. If this piece of evidence of PW14 which

stands corroborated by contemporaneous documents is accepted, then the

oral evidence of PW7 that he had handed over the material records to the

Inspector of Police alone cannot be totally brushed aside as inadvertent

evidence. Why PW 7 wants to withhold even this piece of correct

information in Court, namely, the time at which the material records starting

from Ex.P4 had come to be prepared in a conduct can be definitely taken

into account to doubt the evidence of PW7 and Ex.P1 would not have been

registered at 10 p.m. as spoken to by PW 10.

7. When an extra judicial confession is given to the Village

Administrative Officer, he goes to the scene of occurrence; observes the

dead body as well as the scene; satisfies himself about the truth of the

7 statement given by the person concerned and then, prepares the material

records. In this case, he did not do anything of that sort. Over and above all

this PW1 has categorically admitted he knows that when an extra judicial

confession statement is given to him, he should prepare not only a duplicate

of the same but also prepare a duplicate of the Yadast which must be sent to

the Court by him. He had categorically admitted that he neither sent Ex.P1

nor Ex.P3 to the Court. He had been a Village Administrative Officer of ten

years standing. The purpose of sending documents like Exs.Pl and P3 to the

Court and the copies of the same to the Police is to eliminate false

implication and to add credibility to the extra judicial confession statement

itself. The failure on the part of PW1 to send the material records to the

Court, especially, when he was aware of his duty in that regard is yet

another circumstance which is sufficient to doubt the entire case of the

prosecution put through PWs 1 and 7.

8. The High Court has rightly held that the prosecution version is

unacceptable.

9. We find no infirmity in the reasoning of the High Court to warrant

interference.

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10. The appeal is dismissed.

.................................................J. (Dr. ARIJIT PASAYAT)

...............................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi, November 28, 2008

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