TMI Blog2001 (3) TMI 1020X X X X Extracts X X X X X X X X Extracts X X X X ..... ying the beheaded body of her husband. The prosecution case, as unfolded during the trial, is that the deceased Amar Nath who was in the Army service was married to Ms.Vanaja (hereinafter referred to as A1 ) on 11.3.1992 at Naganakotai in Chittoor District of Andhra Pradesh. To the misfortune of the deceased, A1 prior to her marriage with the deceased was having illicit marital relations with Dhanajaya Reddy (hereinafter referred to as A2 ). Both were serving together as teachers at Gnanodaya English School at Madanappalli. Nagaraj (hereinafter referred to as A3 ) and Subramani (hereinafter referred to as A4 ) were the associates of A2 in the commission of crime of murder of Amar Nath. After her marriage A1 stayed with the deceased for about four days. She declined to go with him to Delhi where the deceased was serving. In the absence of the deceased A1 and A2 not only continued to be serving as teachers in the school but also freely indulged in quenching the sexual lust of each other. A1 had written letters to the deceased on his Delhi address acknowledging therein the factum of her having illicit relations with A2 and abusing the deceased in a filthy language. To resolve t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inks and meals, the trio visited the nearby Beetle-leaf shop of Vinayaka, PW45 wherefrom they purchased beetles and cigarettes. Later the aforesaid accused persons joined PW38 in the car. A2 to A4 told the driver of the Car PW20 and Cleaner PW38 that they were going to attend a marriage function and would be joining the aforesaid witnesses later. From Mukunda Theatre all the three accused persons went towards the house of A1 wherefrom A2 fetched from A1 a key of the newly constructed house of Nagaraja (PW5) where they are alleged to have stayed till the commission of the crime. It may be noticed that PW5 who had constructed the house opposite the apartment where A1 and the deceased were living had handed-over the key to the A1 on the presentation to her that if any prospective tenant desired to see the house to take on lease in his absence, A1 might show the house to such person. During all this period, the deceased was away on his duty on a night shift which was to end at 2.00 a.m. After leaving A3 and A4 in the house of PW5, A2 stayed with A1 in her house. He returned to A3 and A4 in the house of PW5 at about 1.30 a.m. The deceased returned from his duty on a cycle at about 2.30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h she did not give any of the reply to the queries made by PW1. On the complaint lodged by PW1 FIR Exhibit P-61 was registered and investigation commenced by PW48, the Investigating Officer. The IO visited the spot together with dog squad and photographer. He conducted the inquest Panchanama Exhibit P2 and recorded the statements of PWs3, 4, 6, 29, 30 and other witnesses. On the spot, the IO collected Mos 1 to 20 which were seized vide mahzar Exhibit P-62. On 31.8.1993 the relatives of the deceased including PWs3 and 7 reached Bangalore after knowing about the death of Amarnath through news item which was published in the local newspaper at Madanapalli. During investigation, the extra-marital relations of A1 and A2 came to light. A2 was apprehended on 5.9.1993. During his interrogation A2 made a voluntary statement Exhibit P-64 in consequence of which the police seized gold Thali and Thali Gundus and his blood stained clothes besides inland letters M.O.s 42 to 48 vide Panchanama Exhibit P-17. A2 led the police party to Picnic Hotel where A4 was arrested. In the course of his interrogation A4 made his voluntary statement Exhibit P- 65 and produced gold ring, M.O.50, his blood sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who was convicted under Section 302 IPC and sentenced to life imprisonment has opted not to file any appeal. The conviction and sentences awarded to A1 to A3 have been assailed on various grounds canvassed before us by learned counsel who appeared for them. It was contended that the judgment of conviction and sentence was against law and facts. As the case of the prosecution is based upon circumstantial evidence, it was argued that the circumstances were insufficient to connect the accused with the commission of the crime. The circumstances alleged against the appellants are stated to have not been proved on facts and even if proved, did not connect them with the commission of crime as, according to the learned counsel for the accused, important links in the chain of circumstances are missing. The substance of the circumstances relied upon by the prosecution against all or some of the accused persons can be summarised as under: (1) Existence of illicit sexual relations between A1 and A2. (2) After her marriage A1 wanted to get rid of her deceased husband as she did not acknowledge the factum of marriage with him and considered herself to be the wife of A2. (3) On the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of murder by A1 also. In the absence of a charge for criminal conspiracy we are left only with the confessional statement Exhibit P-77 made by A4. If the aforesaid confessional statement is held not made properly or legally admissible in evidence, A1 has to be given the benefit of the legal flaws and investigational lapses. Before ascertaining the legality and admissibility of Exhibit P- 77 it has to be borne in mind that the confessional statement of A4 which was recorded by Shambulingappa (PW50), the then CJM, Bangalore has not been signed by the said accused. The High Court also found that: we do hold that the same was not recorded by him in strict compliance of Section 164 . It has further to be noticed that the confessional statement was made by A4 in Tamil language which was recorded in Kannada script by PW50 with the assistance of his Stenographer who knew both Tamil and Kannada languages. The aforesaid Stenographer, however, has not been examined as a witness. Before recording his statement, the Magistrate appears to have put some questions to him to satisfy as to whether the statement being made was voluntary or not. After being satisfied about the voluntary nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son making the confession may not be very material if the making of such statement is not disputed by the accused but in cases where the making of the statement itself is in controversy, the omission to get the signature is fatal. Dealing with a case where the Magistrate was found to have not complied with the mandate of sub-section (2) of Section 164 of the Code, this Court in Kehar Singh Ors. v. State (Delhi Admn.) [AIR 1988 SC 1883] held that the compliance of the sub-section being mandatory and imperative, its non compliance renders the confession inadmissible in evidence. Such a defect cannot be cured under Section 463 of the Cr.P.C. We have no hesitation to hold that compliance of sub-section (4) of Section 164 of the Code is mandatory and its non- compliance renders the confession not admissible or reliable. It is settled position of law that if a part of confession is excluded under any provision of law, the entire confessional statement in all its parts, including the admission of minor incriminating facts must be excluded unless proof of it as permitted by some other section, such as Section 27 of the Evidence Act. After referring to a judgment in Neharoo Mangtu Satn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g illegality in recording the confessional statement would have been avoided. In view of this finding, no reliance can be placed upon the judicial confession Exhibit P-77, allegedly made by A4, particularly against A1. We examined the matter with a different angle as well by considering to see the admissibility of said confessional statement not as a judicial confession but as extra judicial confession made to PW50. We found it difficult to treat Exhibit P-77 as extra-judicial confession of A4 made to PW50. Confessions in criminal law have been categorised to be either judicial or extra-judicial. The prosecution is obliged to refer and rely on the alleged confession of the accused in any one of the aforesaid categories. As extra-judicial confession cannot be treated as judicial confession, similarly an alleged judicial confession proved to have not been legally recorded cannot be used as extra-judicial confession. Otherwise also such an approach would result in dragging the judicial officers into uncalled for and unnecessary controversies. In Nazir Ahmad v. Emperor [AIR 1936 PC 253] it was observed, which we approve, that: ....it would be particularly unfortunate if Magistra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however, strong it may be, cannot take the place of proof. Lapses in investigation, failure of the judicial officer to record the confessional statement in accordance with law and absence of corroborative evidence leaves us with no option but to give A1 the benefit of doubt. Moral conviction regarding the involvement of an accused in the commission of crime cannot be a substitute for a legal verdict based upon facts and law. Though with regret, but bound by law, we have no option but to set aside the judgments of the trial as well as High Court to the extent by which A1 has been convicted and sentenced for the commission of the offence of murder of Amarnath, her husband. Upon critical analysis of the evidence led in the case we find that the prosecution has succeeded in establishing the circumstances Nos.1,2,3,4,5,6 and 9, noted by us in the earlier part of this judgment. Those circumstances form a complete chain to connect the other accused with the commission of the crime and are inconsistent with their innocence. Learned counsel appearing for Accused Nos.2 and 3 have, however, vehemently submitted that the aforesaid circumstances; firstly are not proved on facts and secon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The court further observed that all these circumstances unequivocally go to show that A1 Vanaja had developed hatredness towards her husband Amarnath and was having revengeful attitude towards him. She joined said Amarnath not because of her love towards him . Circumstance of love and hate relationship of A1 with A2 and the deceased respectively has also not been very seriously contested by the learned counsel appearing for the appellants. So far as Circumstance No.2 is concerned, the same stands proved from M.O.s22A and 23A. In M.O.22A she wrote to the deceased .....why are you still destroying my peace of mind?....My parents have written a letter that I have changed but it is their madness. For them....Good Bye Good Bye. Do not remember me every in your dreams. Try to give me divorce at the earliest . In M.O.23A she has proved to have written to the deceased: ....why are you still playing in my life. I know all your drama. If you want, you marry again. If this is also not possible you divorce me and you be there only. ....Ihave removed and thrown the thali tied by you 15 days back itself. ...To tell you the fact I have a doubt whether you are a human being. I have take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is located near the house of the deceased and took beetle-leaves and cigarettes for which A2 paid the amount. Krishnappa (PW4) who is the owner of the house in which Amarnath, deceased along with his wife A1 were residing, has stated that on 28.8.1993 at about 11 to 11.30 p.m. he had seen a car from the State of Andhra Pradesh in front of Kodaramma Temple near his house. He identified the car when shown to him. The testimony of PWs 4, 15, 20, 21, 38 and 45 leave no doubt in our mind to come to the conclusion that the prosecution has successfully proved the aforesaid circumstance. So far as Circumstance No.5 is concerned, it is not seriously disputed that the deceased was killed on the intervening night of 28th and 29th August, 1993 between 2 a.m. to 2.30 a.m. The time of homicidal death of the deceased stands established by the testimony of Dr.L.Thirunavkarasu (PW17) who has deposed that while conducting the post-mortem on the body of the deceased he found 20 injuries on his person. Many of the injuries were chopped and deep cut injuries. The throat was found cut in front of the neck. Injury No.10 showed that penis scrolum and testis on both sides were found with clean cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the crime. In reply to a question in cross-examination, the witness has specifically stated: it is false to say that I was detained in police station for 15 days saying that I am connected to the said crime . Similarly PW38 has stated that he, along with PW20, were taken by the IO to the police station along with the car from Madanapalli. In cross-examination he too categorically stated It is false to say that I way kept in police custody for 15 days on suspicion on my involvement in this case. It is false to say that my uncle got me released from police . The defence miserably failed to show any enmity of the aforesaid witnesses with the accused or suggest any other reason for their allegedly making false statements. After minutely and critically examining their depositions we have come to the conclusion that both the trial as well as the High Court were justified in relying upon their testimony. Acceptance of their evidence would prove Circumstances 3, 4, 5 and 6. So far as Circumstance No.9 is concerned, the prosecution has successfully proved the making of voluntary statement Exhibit P-64 by A2 and consequent recoveries of incriminating articles seized vide Panchanama E ..... X X X X Extracts X X X X X X X X Extracts X X X X
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