Where no semen was found on the clothes, either of the accused or of the boy, and no, injuries were found on their persons, a case of unnatural offence was not made out

Where no semen was found on the clothes, either of the accused or of the boy, and no, injuries were found on their persons, a case of unnatural offence was not made out

MADRAS HIGH COURT (D.B.)

(Madurai Bench)
Before :- N. Paul Vasanthakumar and P. Devadass, JJ.
Criminal Appeal (Md) No. 394 of 2010. D/d. 19.1.2012.

Sanjeevan alias Reghu - Appellant
Versus
State of Tamil Nadu Rep. By its Inspector of Police Puthukadai Police Station Puthukadai Kanyakumari District - Respondent


For the Appellant :- Mr. N. Dilip Kumar, Advocate.
For the Respondent :- Mr. K.S. Durai Pandian, APP.

Indian Penal Code, 1860, Sections 377 and 302 - Serious charges have been made as against the appellant - They being proved by valid and legal evidence - Suspicion and surmises cannot be substituted for the same - None of the circumstances projected by prosecution has been proved. Everywhere the chain of circumstances woven by the prosecution is found broken - There is no connecting link - They do not form a complete chain unerringly implicating the accused with the charges framed against the appellant - Conviction and sentence set aside. [Para 52]


Cases Referred :


1. Gambhir v. State of Maharashtra AIR 1982 SC 1157.
2. Ganpat v. Emperor, AIR 1918 Lah 322.
3. Jaspal Singh v. State of Punjab, (1997) 1 SCC 510.
4. Jaswant Gir v. State of Punjab, (2005) 12 SCC 438.
5. Krishnan v. State represented by Inspector of Police (2008 (4) Supreme 25).
6. Kulvinder Singh and another v. State of Haryana, (2011) 5 SCC 258.
7. Rathinam v. State of T.N., (2011) 11 SCC 140.
8. Ravi @ Ravichandran and another v. State, through the Inspector of Police, Steel Plant Police Station, Salem, 2007 (1) LW (Crl.) 555.
9. S. Arul Raja v. State of Tamil Nadu, (2010) 8 SCC 233.
10. Sanatan Naskar and Another v. State of West Bengal (2011) 1 MLJ 687 (Crl.) (SC).
11. Sk. Yusuf v. State of W.B.,(2011) 11 SCC 754.
12. State of Maharashtra v. Kondiba Tukaram Shirke, AIR 1977 SC 278 : (1976) SCC (Cr) 514.
13. State of Rajasthan v. Raja Ram, (2003) 8 SCC 180.
14. Sunny Kapoor v. State (UT of Chandigarh), (2006) 10 SCC 182.
15. Woolmeington v. Director Of Public Prosecutions (1935 Ac 462.

JUDGMENT


P. Devadass, J. - The appellant Sanjeevan @ Reghu is the accused in S.C. No.156 of 2007, in the Court of Sessions Judge, Kanyakumari Sessions Division at Nagercoil. In this appeal, he challenges, his conviction under Sections 377 and 302 IPC and the sentences imposed upon him.

2. He stood charged under Sections 377, 302 and 201 IPC for having committed sodomy on the boy Legies, for having murdered him and for having concealed his dead body in order to screen himself from legal punishment.

3. After trial, the learned Sessions Judge convicted and sentenced him as under:

Sl.No. Conviction Sentence
1. S.377 IPC 10 years Rigorous Imprisonment and fine Rs. 15,000/-, in default, undergo simple imprisonment for one year.
2. S. 302 IPC 1Life Sentence and fine Rs. 15,000/-, in default, one year simple imprisonment.
    The learned Sessions Judge directed that the said sentences shall run concurrently and out of the total fine amount ordered payment of Rs.25,000/- as compensation to PW.1 Lawrence, the father of the deceased boy.
4. The prosecution case proceeded as under:-
    (1) PW.1 Lawrence and Gresi are spouses. Their sons are Lenies, Lebies and Legies. They are residing in Vannan Vilai, Puthukkadai in Kanyakumari District. Their third son, Legies, is about 13 years old. He was studying VII Standard in St.Mary's Middle School in Puthukkadai.
    (2) The appellant is also residing nearby. He is a mason. He was married to Geetha Malar. They are having two daughters. There was no love last between the spouses. She left him with the children. He is residing lonely in his newly constructed house.
    (3) Legies is already known to the appellant. The appellant wanted to satisfy his sexual appetite through him. He was waiting for an opportunity.
    (4) PW.5 Raviraj, is residing in Panainerunchi Villai, Puthukkadai. On 2.9.2006, around noon, when he was crossing appellant's house, he heard Legies' crying, 'brother open the door'. Appellant opened the door. The boy came out. Appellant told him to come soon, he would give him money for buying ice-cream. Thereafter, PW.5 left for his house. Around 3 pm., in his house, the boy had shower. Then left his house.
    (5) PW.2 Maria Packiam is also residing in Vannan Vilai, Puthukkadai. She used to collect chit amounts near the Roman Catholic Church in Puthukkadai. On 2.9.2006, after collecting the chit amounts, around 3.10 pm, she came near the appellant's house. She heard shriek from his house. Within few minutes, appellant came out of his house. Closed the doors. PW.2 asked him what had happened. He replied her nothing and left.
    (6) Around 6 p.m., at the R.C. Church, PW.1's wife and sons Lenies and Lebies told him that Legies is missing. PW.1 enquired the Dance Teacher Adaikala Mary. She told him Legies did not come to dance class. Till night, the boy did not return home.
    (7) On 3.9.2006, at about 9 a.m., at the south western corner of Amirthain's land, the dead body of Legies was found. It was half naked. No dress below the hip. The dead body was found with shirt (MO.1) and the electronic watch (MO.2). PW.1 seen the dead body of his son.
    (8) At about 10 a.m., at the Puthhukkadai Police Station, PW.1 gave Ex.P1 complaint to PW.17 Ramesh Babju, Sub Inspector of Police. He registered a case of suspicious death under Section 174 Cr.P.C (Ex.P.19 FIR). PW.17 sent the FIR through PW.13 Head Constable, Joseph Raj to Judicial Magistrate No.II, Kuzhithurai. Since the Magistrate was on leave, around 12.40 am., he handed over the FIR to the Incharge-Judicial Magistrate, Thucklay.
    (9) On receipt of a copy of FIR, Subramony, Inspector, Puthukkadai Police Station took up his investigation. [Subramony is no more. Since PW.17 assisted him in investigating this case and knows his signature, PW.17 also has been examined to speak to Subramony's investigation of this case].
    (10) At about, 10.30 a.m., at Amirtainan's land, in the presence of PW.3enrydhass and one Justin Paulraj, Inspector Subramony prepared Ex.P.2bservation Mahazar-1. Recovered six bloodstained dried jack-fruit tree leavesMO.3) under Ex.P.3 Mahazar. Drew rough sketch-1 (Ex.P.20). Examined theitnesses. Recorded their statement. In the presence of Panchayathars, heldnquest over the dead body (Ex.P.21 Inquest Report). Sent the dead body throughW.14 Head Constable, Sobana Kumar with Ex.P.10 requisition to the Governmentedical College Hospital at Asaripallam, Nagercoil for autopsy.
    (11) At about 3.30 p.m., PW.10, Dr. Velmurugan, conducted autopsy. He noted theollowing :-
    Appearances found at the post-mortem:
    Moderately nourished boy of a male with finger and toe nails blue inolour. Postmortem ant bite marks seen over the front of neck and chest. Eggsf flies found laid around the mouth, neck and groins. Dried blood stain seenver both nostrils, mouth, cheek and eyes. Anus found relaxed.
    Ante-mortem injuries:
    1. Abrasion with contusion 4 x 2cm over the left eyelid. The lid edematous.
    2. 5 x 4cm abrasion seen over right side of forehead.
    3. Abrasion with contusion 6 x 5cm over right cheek.
    4. Abrasion 5 x 1/2 cm over the neck.
    5. Abrasion 10 x 5cm over right cheek.
    6. Abrasion 6 x 4cm over left side of cheek.
    7. Abrasion with contusion 6 x 2cm over right shoulder.
    8. Abrasion 5 x 4cm middle of chest.
    9. Scratch abrasion of varying sizes over an of 20 x 12cm over the front of left thigh.
    10. Abrasion 4 x 2cm over the front of middle of neck.
    11. Abrasion 2 x 2cm front of left knee.
Chest and Abdomen:
Bruising seen over upper half of sternum. About 100 ml of blood with clots seen in the thoracic cavity. Heard contused, both lungs contused. Contusion seen on inner aspect of ribs on the right side. About 200 ml of blood with clots seen in the abdominal cavity. Contusion of right lobe of liver note. Retro peritoneal clots seen over both sides of abdomen. Part of Duodenum and colour contused.
Scalp Skull & Dura:
Scalpal bruising with contusion over frontal, right parietal and temporal regions. The right temporal is muscle found bruised. Diffused sub Drual Haemorrhage, Sub Arachnoid Haemorrhage seen over both cerebral hemispheres. On thin dissection of neck bruising seen over inner aspect of neck.
Hyoid bone: Intact.
Stomach: About 250 gms of partially digested identifiable food particles (rice, banana and tender coconut with pungent odour. Mucosa congested).
    (12) PW.10 opined that the boy would appear to have died of multiple injuries and sequlae (Ex.P.12 final opinion).
    (13) On 16.9.2006, PW.7 Chandra, VAO, Painkulam was holding additional charge of Arudesam village. On 16.9.2006, in his office, at about 9.30 a.m., appellant gave him Ex.P.5 confession that on the evening of 2.9.2006, in his house, he had sodomised Legies, killed him and during night thrown away his dead body in the nearby land. PW.7 recorded it. Appellant signed it. PW.8 George and Vijayakumar, Village Assistants, attested it.
    (14) At about 10.30 a.m, at the Puthukkadai Police Station. PW.7 handed over the sodomite and Ex.P.5 extra-judicial confession to Inspector Subramony. He arrested him. Altered the section of law to Section 302 and 201 IPC. Sent the alteration memo to the court.
    (15) Appellant gave Ex.P.6 confessional statement to the Investigating Officer that if he is taken to certain places, he would show him the occurrence place, places where the dead body, boy's dress and his lungi, blanket and two empty tender coconuts were kept.
    (16). From Ponnappan's land, appellant produced an ash colour pant (MO.4). The Inspector seized it under Ex.P.7 Mahazar in the presence of PW.8 and Vijayakumar.
    (17). The appellant took the Investigating Officer to his house. In the presence of PW.4 Yesudhas and one Subash, the Inspector prepared Ex.P.4 Observation Mahazar-II. Drew Ex.P.22 Rough Sketch -II. He produced hair pieces (MO.6), woollen blanket (MO.7) and lungi (MO.8). In the presence of said witnesses, the Inspector seized them under Ex.P.9 Mahazar.
    (18). Through Court, the Inspector sent his requisition to conduct potency test to the accused (Ex.P.14 Court's letter). With the consent of appellant, PW.11 Dr.Rajesh conducted the test. He opined that the appellant was capable of performing sexual intercourse (Ex.P.13 Certificate).
    (19). The Inspector produced the appellant to the Judicial Magistrate for judicial custody. Sent the case-properties to the Lab through Court, for analysis. The Serologist found blood in MO.1 shirt (Ex.P.17).
(20). Concluding his investigation, the Inspector filed Final Report for offences under sections 377, 302 and 201 IPC.

5. Prosecution examined PWs 1 to 17, marked Ex.P1 to 23 and exhibited MOs 1 to 8.

6. Placing reliance on the various circumstances projected by the prosecution through PWs.2 and 5. Ex.P.5 extra-judicial confession and Section 27 Evidence Act recoveries, on 24.6.2010, the learned Sessions Judge, came to the conclusion that the appellant committed buggery on the catamite Legies, killed him and thus convicted him under section 377 IPC and under section 302 IPC and sentenced him as already stated.

7. The said findings and sentences were assailed by Mr.N.Dilip Kumar, learned counsel for the appellant as under :-
    1) The findings of the trial court are sans any legal evidence.
    2) None of the circumstance has been proved.
    3) PWs. 2 and 5 did not tell anybody that they have seen the deceased near the appellant's house. They are liars.
    4) There must be medical evidence that the appellant had committed pederasty. But, there is no medical evidence. The medical evidence let in is also contrary to the allegations made against the appellant.
    5) The extra-judicial confession is false and not voluntary. That has been forcefully obtained with the assistance of obliging witnesses PWs.7 and 8 to fasten criminal liability to appellant.
    6) Section 27 Evidence Act recovery is consequent upon the said concocted extra-judicial confession.
8. Per contra, Mr. K.S. Durai Pandian, learned Additional Public Prosecutor submitted that appellant had exhibited his virile behaviour by having anal intercourse with a young boy and to conceal his such human depravity, silenced him once for all. The boy suffered cruel death at his hands. He confessed to his crime to PW.7, VAO. It is voluntary and reliable and also has been corroborated by PW.8. There is medical evidence and also recovery of incriminating articles from the appellant's house. All goes to show that the appellant is the person who is responsible for the boy's untimely death.

9. P.W.1 is residing with his family in Vannan Vilai Veedu in Puthukkadai in Kanyakumari District. His third son, Legies, about 13 years old was studying VII Standard in St.Mary's Middle School in Puthukkadai. From the evening of 2.9.2006, the boy was missing. On the next day, at about 9 a.m., his half-naked dead body was found in one Amirthaian's land in Vannan Vilai.

10. The appellant is accused of, after committing sodomy on the boy, killed him and on the night stealthily disposed of his body in one Amirthaian's land in Vannan Vilai.

11. There is no ocular witness to these serious allegations. To establish the charges against the appellant, prosecution relied on several circumstances. According to prosecution, they are incriminating in nature and goes to inculpate the appellant with the offences alleged as against him.

12. In Krishnan v. State represented by Inspector of Police (2008 (4) Supreme 25), on the aspect of circumstantial evidence, Hon'ble Supreme Court observed as under :-
    "This Court in a series of decisions has consistently held that, 'when a case rests upon the circumstantial evidence, such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence'. (See Gambhir v. State of Maharashtra AIR 1982 SC 1157)".
13. Recently, in Kulvinder Singh and another v. State of Haryana, (2011) 5 SCC 258, Hon'ble Supreme Court observed as under:
    "It is a settled legal proposition that conviction of a person in an offence is generally based solely on evidence that is either oral or documentary, but in exceptional circumstances conviction may also be based solely on circumstantial evidence. The prosecution has to establish its case beyond reasonable doubt and cannot derive any strength from the weakness of the defence put up by the accused. However, a false defence may be called into aid only to lend assurance to the court where various links in the chain of circumstantial evidence are in themselves complete.
    The circumstances from which the conclusion of guilt is to be drawn should be fully established. The same should be of a conclusive nature and exclude all possible hypothesis except the one to be proved. Facts so established must be consistent with the hypothesis of the guilt of the accused and the chain of evidence must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (Vide Sharad Birdhichand Sarda v. State of Maharashtra and Paramjeet Singh v. State of Uttarakhand.)".
14. Thus, each circumstance must be proved beyond all reasonable doubts. [See Sanatan Naskar and Another v. State of West Bengal (2011) 1 MLJ 687 (Crl.) (SC).] The proved circumstances must form a complete chain unerringly proceeding towards the only conclusion that the accused is the author of the crime excluding any hypothesis of innocence in his favour. There should not be any missing link.

15. To inculpate the appellant, prosecution relies on the following circumstances :-
    i. On the occurrence day, PW-5 has seen the boy shouting from the appellant's house.
    ii. On the occurrence day, PW-2 heard strange shriek from the appellant's house.
    iii. Medical evidence.
    iv. Extra-judicial confession of the appellant.
    v. Section 27 Evidence Act recovery of MOs 4,5, 7 and 8.
16. PW.5 Raviraj, is residing in Panainerunchi Vilai in Puthukkadai. His evidence is that, on 2.9.2006, around 2 pm., while he was crossing appellant's house, near the southern side window, in the house, the boy Legies was crying, "brother open the door, brother open the door". Appellant opened the door. The boy came out. He told him to return soon and he would give him money for buying ice-cream. After noticing this, PW.5 left the place. On the next day, at about 9 a.m., the half naked dead body of the boy was found in Amirthaian's land.

17. PW.5, is a close relative of the deceased boy. PW.5 's house is at about 100ft. away from Puthukkadai Police Station. Puthukkadai bus stand is also nearby. Because of such a death of the boy, the whole village plunged into deep sorrow. PW.5 was available in the village. He did not tell this tell-tale circumstance to anyone till 6.9.2006, when the police enquired him. His statement recorded under section 161 CrPC, was also sent to Court only on 9.1.2007 along with the Final Report. In the circumstances, we cannot place reliance on his such evidence.

18. The next incriminating circumstance has been projected through the evidence of PW.2 Maria Packiam. She is residing in Vannan Vilai Veedu in Puthukkadai. It is very near to the boy's residence. She used to collect chit amounts at the Roman Catholic Church in Puthukkadai. It is her evidence that on 2.9.2006, at about 2.30 p.m., while she came near the appellant's house, she heard unusual shriek from his house. Within few minutes, the appellant came out, closed the door and started proceeding. When she asked him, what had happened, he replied her nothing and left. On the next day morning, she heard that the boy, Legies was found dead.

19. PW.2 did not say it is the shriek of a boy. On the next day morning, though the whole village knows about the cruel death of the boy, PW.2 did not tell that tell-tale circumstance to anyone till 19.09.2006, when police enquired her. Her statement also reached the Court along with Final Report only on 9.1.2007. Thus, she does not inspire confidence in her. It is quite unsafe to act upon her evidence. This circumstance spoken to through her also has not been established.

20. For a charge under Section 377 IPC, medical evidence is required. It involves medical examination of the appellant and the boy. The boy is dead. His dead body was examined to see whether he was sexually abused.

21. Modi, in his Text Book, 'Medical jurisprudence and Toxicoloy', 24th edition, Wadhwa Publication, at page 682, with regard to medical evidence in cases of unnatural sexual offences under Section 377 IPC comments as under:-
    "Examination of the Passive Agent" (in this case the boy)
    (i) Abrasions on the skin near the anus with pain in walking and on defecations, as well as during examination. These injuries are extensive and well defined in cases where there is a great disproportion in size between the anal orifice of the victim and the virile member of the accused. Hence, lesions will be most marked in children, while they may be almost absent in adults when there is no resistance to the anal coitus. These injuries, if slight heal very rapidly in two or three days.
    (ii) Owing to strong contraction of the sphincter the penis rarely penetrates beyond an inch, and consequently, the laceration produced on the mucous membrane within the anus with more or less effusion of blood is usually triangular in nature, having its base at the anus and the sides extending vertically inwards into the rectum.
    (iii) Blood may be found in or at the anus, on the perineum or thighs and also on the clothes.
    (iv) Semen may be found in or at the anus, on the perineum, or on the garments of the boy too young to have seminal emissions.
    Examination of the Active Agent: (the appellant)
    Non conclusive signs are evident, unless the man is examined soon after the commission of the crime. In that case, there may be an abrasion on the prepuce, glans penis, or fraenum, and stains of faecal matter or lubricant may be found on the penis or on the loincloth or trousers.
    Where no semen was found on the clothes, either of the accused or of the boy, and no, injuries were found on their persons, a case of unnatural offence was not made out [Ganpat v. Emperor, AIR 1918 Lah 322]."
22. Thus, forcible anal intercourse by an adult man with a boy will have the presence of bloodstains around anus area. At the material time when the virile behaviour of the appellant arose and indulged in homosexual activity in all probability the appellant was prone to ejaculate and there will be presence of semen in his private part area. In such circumstances, possibility of presence of semen in his clothes generally be expected unless the clothes were washed or active steps were taken to cause the disappearance of evidence of sexual violenc. But, in this case, appellant did not wash his clothes.

23. In Ex.P.5 Extra-judicial confession, it is mentioned that the appellant had attempted to sodomise the boy and the boy avoided him. The sexual desire in the appellant arose. When the boy shouted at him, the appellant gagged him, pinned him down on the ground, removed his pant, inserted his penis into his anus.

24. On 3.9.2006, PW.10 Dr.Velmurugan conducted autopsy on the dead body of the boy. In Ex.P.11, Post-mortem certificate, PW.10 mentioned that "the anus found relaxed". PW.11 Dr. Rajesh examined the appellant and mentioned that the appellant's penis length is 9 c.m., circumference is 9 c.m. He is 35 years old. (Ex.P.13 Certificate). The boy was only 13 years old. PW.10 did not see any bloodstains around the boy's anal area, no injury or rupture in the thigh area, buttocks adjacent to the anal area.

25. PW-10's evidence also suggests that if forcible carnal intercourse was attempted, there would be rupture of the anal entry point but when he examined the boy, he did not find any injury in the anal area. When one dies there will be discharge of gas through all the openings in the body such as nostrils and anal. In such circumstances, the exit entry of the anal canal used to get relaxed. It is due to the discharge of gas from inside the dead body through the anal orifice. In his cross-examination, PW.10 confirms that the anal having been found relaxed may be due to various reasons. PW.10 did not say positively that it is because of anal intercourse attempted or completed on the boy.

26. In Ex.P.5 Extra Judicial confession, it is mentioned that when the boy started shouting, the appellant pressed the boy's neck, pushed his head on the wall, pushed him down, kicked on his neck and abdomen repeatedly. So, by these over acts, there should have been fracture in skull, internal and external rupture, internal injury in the abdomen.

27. PW.10 found no injury on the head, area just inside the abdomen in the dead body. Thus, there is no medical evidence as to the alleged commission of unnatural offence on the boy and killing him thereafter as stated in Ex.P.5 Extra-Judicial confession.

28. The next incriminating circumstance relied on by the prosecution is extra-judicial confession of the appellant. It is stated that on 16.9.2006, at about 9.30 a.m., before PW.7 Chandra, VAO, Painkulam, appellant surrendered and requested him to save him and gave confession admitting his guilt and that was attested to by PW.8 George and Vijayakumar, Village Assistants.

29. Nowhere in his Indian Evidence Act, 1872, Sir James Fitz James Stephen employed the phraseology "extra-judicial confession". However, the phrase, "confession", is employed in Sections 25 to 29 of the Act. Section 17 of the Act defines, "Admission". Confession is also a form of admission. It may be either culpatory or non-culpatory. No amount of confession made to police is admissible except to the extent provided in Section 27 of the Evidence Act, namely, so much of information distinctly relates to the discovery of a fact. Admission of guilty, in other words, confession by the accused is best form of evidence. The concept of extra-judicial confession emanated from Section 24 of the Act. As to its reliability, there are certain parameters or conditions precedent.

30. In State of Rajasthan v. Raja Ram, (2003) 8 SCC 180, it was observed as under :-
    "An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility."
31. In S. Arul Raja v. State of Tamil Nadu, (2010) 8 SCC 233, popularly known as Aladi Aruna murder case, on the aspect of extra-judicial confession, our Hon'ble Apex Court observed as under :-
    "47. ....The concept of an extra-judicial confession is primarily a judicial creation, and must be used with restraint. Such a confession must be used only in limited circumstances, and should also be corroborated by way of abundant caution. This Court in Ram Singh v. Sonia has held that an extra-judicial confession while in police custody cannot be allowed. Moreover, when there is a case hanging on an extra-judicial confession, corroborated only by circumstantial evidence, then the courts must treat the same with utmost caution. This principle has been affirmed by this Court in Ediga Anamma v. State of A.P and State of Maharashtra v. Kondiba Tukaram Shirke, AIR 1977 SC 278 : (1976) SCC (Cr) 514".
32. In Sk. Yusuf v. State of W.B.,(2011) 11 SCC 754, at page 762, on the aspect of extra-judicial confession, the Honourable Supreme Court has observed as under :-
    "The Court while dealing with a circumstance of extra-judicial confession must keep in mind that it is a very weak type of evidence and requires appreciation with great caution. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witness must be clear, unambiguous and clearly convey that the accused is the perpetrator of the crime. The "extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility". (See State of Rajasthan v. Raja Ram and Kulvinder Singh v. State of Haryana.)."
33. Keeping the above guidance in our mind, now we shall approach the Extra-judicial confession pressed into service in this case.

34. In Ex.P.5, appellant gave his full life history, details of his children, his mother, his wife, his dispute with her, their living away from him, his job abroad, his construction of a new house in Vannan Vilai Veedu, how he developed acquaintance with the boy Legies, the boy's family details, his carnal activity towards the boy, the buggery committed on the boy, his murdering of him, stealthily disposing of his dead body and his appeal to VAO to save him. In his evidence, PW.7 Chandra VAO reiterated the above minute details.

35. The appellant belongs to Vannan Vilai in Puthukkadai. It comes under the jurisdiction of VAO, Arudesam Village. PW.7 is the VAO of Painkulam Village. Vannan Vilai does not belong to his jurisdiction. On 16.9.2006, he is stated to have held additional charge of Arudesam village. At the village level, the post of VAO is very important, as he has to discharge and attend to multifarious functions. So, VAO of one area cannot simply come and occupy the chair of another VAO. No written proof from a superior officer, such as Tahsildar, placing PW.7 in additional charge of VAO, Arudesam village has been produced.

36. Till 16.09.2006, PW-7 is an utter stranger to the appellant. Appellant had no prior acquaintance with him. Nothing has been produced or explained as to the appellant reposing confidence in such a stranger/ PW.7 to reveal everything to him. Ex.P-5 contains photographic details of the whole life history and all the matters pertaining to the prosecution case. According to prosecution, then the appellant was in distress. It is unlikely that a person placed in such a sorrowful situation will choose an utter stranger to recount from A to Z concerning commission of sodomy and murder. In the circumstances, it looks very odd.

37. In Jaspal Singh v. State of Punjab, (1997) 1 SCC 510, at page 513, the Hon'ble Apex court held that the prosecution has to show as to why and how the accused had reposed confidence on a particular person to give the extra-judicial confession.

38. In Ravi @ Ravichandran and another v. State, through the Inspector of Police, Steel Plant Police Station, Salem, 2007 (1) LW (Crl.) 555, it was observed as under :
    "28. But, in this case, it is found that there is no evidence to show that the Village Administrative Officer was known to A.1. Unless a person trusts another, there is no question of unburdening his heart to such a person. Therefore, we straight away reject the untrustworthy testimony of the Village Administrative Officer, PW.9 that A.1 voluntarily confessed the crime to him."
39. In Jaswant Gir v. State of Punjab, (2005) 12 SCC 438, the Hon'ble Apex court held as under :
    "The first and foremost aspect which needs to be taken note of is, that PW.9 is not a person who had intimate relations or friendship with the appellant. PW.9 says that he knew the appellant "to some extent" meaning thereby that he had only acquaintance with him. In cross- examination, he stated that he did not visit his house earlier and that he met the appellant once or twice at the bus-stand. There is no earthly reason why he should go to PW.9 and confide to him as to what he had done."
40. In Sunny Kapoor v. State (UT of Chandigarh), (2006) 10 SCC 182, it was observed as under :
    "It is wholly unlikely that the accused would make extra-judicial confession to a person whom they never knew. It also appears to be wholly improbable that unknown persons would come to seek his help unless he was known to be close to the police officers. His statements, thus, do not even otherwise inspire confidence."
41. In the case before us, there is absolutely no material to show why appellant had reposed confidence in PW.7, to give extra-judicial confession. The prosecution has also miserably failed to produce any material to show that the accused was having close acquaintance with PW.7.

42. To corroborate the evidence of PW.7., PW.8 George Village Administrative Assistant, Ezhudesam Village has been examined. PW.8 and Vijayakumar have attested Ex.P.5 Extra-judicial confession. They were not employed either in Painkulam village or in Arudesam village. He was employed in Ezhudesam village. Between Ezhudesam and Painkulam, the distance is about 4 kms. On that day, PW.8 and Vijayakumar were asked to be present in Ezhudesam village in connection with distribution of free TVs. However, PW8 and Vijayakumar were brought to Painkulam VAO's office through a person. Arudesam itself has separate VAO. It has Village Assistants also. Why PW.8 and Vijayakumar should come all the way from Ezhudesam village to Painkulam to attest Ex.P.5 Extra-judicial confession, has not been explained. The Extra-judicial confession is stage managed, manufactured to inculpate the appellant. It is not genuine. It is not voluntary. It is highly unsafe to act upon. It deserves to be excluded from our consideration.

43. The last circumstance relied on by the prosecution is Section 27 Evidence Act recovery of MOs 4 to 8.

44. On 16.09.2006, at about 10.30 a.m, at the Puthukkadai Police station, PW.7 Chandra, VAO handed over the appellant with Ex.P.5 Extra-judicial confession to Inspector Subramony. He arrested him. Recorded his confession, Ex.P.6, that if he is taken to certain places he will produce his lungi, pant, woolen blanket and used empty tender coconuts. It was attested to by PW.8 and Vijayakumar. In pursuance of that MO.4 ash colour pant has been seized under Ex.P7 from Ponnappan's land in Vannan Vilai, from appellant's house, MO.5 empty tender coconuts, MO.6 hair pieces, MO.7 woolen blanket and MO.8 lungi were recovered under Ex.P.9 Mahazar, in the presence of PW.8 and Vijayakumar.

45. MO.8 lungi is stated to have been worn by the appellant while committing anal intercourse with the boy. There was no presence of semen in the lungi. MO.7 woolen blanket is stated to have been used by the appellant to conceal the boy's dead body. There was no blood in it. (Ex.P.16 Scientific Report).

46. On 3.9.2006, on dissection of the dead body, PW.10 Dr.Velmurugan found partially digested identifiable food particles which included tender coconut (Ex.P.11 post-mortem certificate). To correlate it, on 16.9.2006, in Ex.P.5 Extra-judicial confession it is stated that around 1 p.m., appellant gave him tender coconuts. To strengthen it, empty tender coconut has been mentioned in Ex.P.6 confession and recovery of the same from the front side of appellant's house under Ex.P.8 Mahazar in the presence of PW.8 George and Vijayakumar, Village Assistant also has been mentioned.

47. Above all, recovery of MOs. 4 to 8 is immediately after Ex.P.5 extra- judicial confession. When Ex.P.5 itself is tainted, this Section 27 Evidence Act recovery must also go. This circumstance also goes away.

48. Long ago, in England, Lord Justice Goddard In Woolmeington v. Director Of Public Prosecutions (1935 Ac 462), Held that onus is upon the prosecution to prove the offence alleged to have been committed by the accused beyond all reasonable doubts. This has become the core of the Anglo-Saxonic Criminal Jurisprudence.

49. Since then there is no shifting of this primary duty cast upon the prosecution. The Indian Legal System is also wedded to this basic principle of English Criminal law. Even, now this is the position of Criminal law in India except to the extent statutorily excluded. For instance, offences against women (Section 113-A, 113-B, Indian Evidence Act, 1872).

50. The necessary corollary is suspicion, however, strong may not take the place of legal proof. A finding of a Criminal Court is acceptable only when it is supported by legal and valid evidence. Dehors that, it deserves rejection lock, stock and barrel.

51. It is appropriate here to note the following observations of Hon'ble Supreme Court made in, Rathinam v. State of T.N., (2011) 11 SCC 140, at page 145 :
    "We must, however, understand that a particularly foul crime imposes a greater caution on the court which must resist the tendency to look beyond the file, ?. It has been emphasised repeatedly by this Court that a dispassionate assessment of the evidence must be made and that the Court must not be swayed by the horror of the crime or the character of the accused and that the judgment must not be clouded by the facts of the case. In Kashmira Singh v. State of M.P. it was observed as under: (AIR p.160, para 2)
    "2. The murder was a particularly cruel and revolting one and for that reason it will be necessary to examine the evidence with more than ordinary care lest the shocking nature of the crime induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law.
    24. Likewise in Ashish Batham v. State of M.P., it was observed thus: (SCC p. 327, para 8)
    "8. Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between 'may be true' and 'must be true' and this basic and golden rule only helps to maintain the vital distinction between 'conjectures' and 'sure conclusions' to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record."
52. No doubt, very serious charges have been made as against the appellant. We are very serious of they being proved by valid and legal evidence. Suspicion and surmises cannot be substituted for the same. None of the circumstances projected by prosecution has been proved. Everywhere the chain of circumstances woven by the prosecution is found broken. There is no connecting link. They do not form a complete chain unerringly implicating the accused with the charges framed against the appellant.

53. In view of the foregoings, the findings recorded by the learned Sessions Judge, Kanyakumari Sessions Divisions at Nagercoil cannot be sustained. Appellant is not guilty of the charges framed under section 377 and 302 IPC. He is entitled to be acquitted.

54. In the result, the Criminal Appeal is allowed. The conviction recorded and the sentences awarded to the appellant in S.C. No. 156 of 2007 on 24.06.2010 by the Sessions Judge, Kanyakumari Sessions Division at Nagercoil are set aside. The appellant shall be released immediately, if he is no longer required for any other case/ proceedings/ order. Fine amount, already paid shall be refunded to the appellant.

Appeal allowed.

Post a Comment

Do let us know what you think about this post and Please no spamming here.
And in case you need any legal advice, please visit http://g8.geekupd8.com/forum.

[blogger][facebook]

Puneet Batish Advocate

{facebook#http://g8.geekupd8.com/Adv.Batish} {twitter#http://g8.geekupd8.com/Twitter} {google-plus#http://g8.geekupd8.com/+pb} {pinterest#http://g8.geekupd8.com/Pinterest} {youtube#http://g8.geekupd8.com/YouTube}

Contact Form

Name

Email *

Message *

Powered by Blogger.
Javascript DisablePlease Enable Javascript To See All Widget