Benefit of Doubt = As per chemical test report poison was not found. There was no wound caused to larynx before death. As the body of the deceased was highly decomposed the cause of death was not mentioned by the Doctor, P.W.20 in the post-mortem report he answered that that since the body was decomposed he was unable to say so, thus, the cause of death has not been established.. No internal and external injury has been mentioned in the autopsy report. Thus, the prosecution has not been able to establish that the death was caused by strangulating the deceased and the piece of nylon saree was used to cause the death. Hence, recovery of the piece of nylon saree is of no value as the prosecution has not been able to link the same with the commission of the offence.The appellant had clearly stated in the statement under Section 313 that she had gone to the police station on 23.5.2005 along with photograph of the deceased and had also stated that the deceased frequently used to go outside for 2 to 5 days. This explains her conduct, nothing more can be attributed to her exclusive knowledge which she was required to explain within the purview of Section 106 of the Evidence Act. Knowledge of any other fact is not attributable to her in view of the evidence adduced in the case. Thus, the submission based upon the provisions contained in Section 106 is of no avail to the respondent.The prosecution has also not led evidence that the appellant was ever required to identify the articles of the deceased. There is nothing on record indicating that they were shown to her for the purpose of identification and she had refused to identify them. In the instant case, which is based on the circumstantial evidence, particularly when the body has not been recovered at the instance of the accused, the recoveries of moped and piece of nylon saree which were made are not proved to be related to commission of offence, they are not proved to be incriminating materials. The extra-judicial confession made by the appellant to Susheela, P.W.4 is prima facie unusual and doubtful and is not corroborated by other evidence on record. Merely, the fact that the deceased had left the house on 16.5.2005, as per version of appellant, cannot be used as a circumstance against her so as to fasten guilt. The deceased used to drink alcohol and used to spend money recklessly. Due to his bad habits, there may be so many enemies of him. How the deceased spent the amount of Rs.1,30,000/- which he received on execution of agreement is not on record. The prosecution has not been able to complete the chain of circumstances so as to fasten the guilt and to prove the commission of offence by the appellant beyond periphery of doubt. The father of appellant has also been extended benefit of doubt. As such, the appellant is entitled for benefit of doubt in view of the evidence which has been adduced by the prosecution. Resultantly, the appeal is allowed. The appellant is acquitted giving her the benefit of doubt.

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1791 OF 2010

KALA @ CHANDRAKALA .. APPELLANT

VERSUS

STATE THROUGH INSPECTOR OF POLICE .. RESPONDENT

J U D G M E N T

ARUN MISHRA, J.

1. The appellant is the wife of the deceased Murugesan. The
prosecution has alleged that the appellant along with her father and nephew
committed murder of Murugesan on 17.5.2005 by strangulating him with a
saree and placed his body under a bridge of canal. On 20.5.2005, on the
basis of the information received from the Village Administrative Officer
that a gunny bag is lying under LBP canal south near Sandhiyapurm, the
complaint was registered. The body was found in a highly decomposed
condition as such initially the identification of the person could not be
ascertained. On 21.5.2005 Dr. Sivakumar P.W.20 performed the autopsy.
Doctor was unable to ascertain the cause of death as the body was in a
highly decomposed condition and it was opined by him that there was no
antemortem injury to hyoid bone. On 31.5.2005 Susheela, P.W. 4, sister of
the deceased, lodged a complaint that her brother Murugesan was murdered by
his wife, his father-in-law and nephew of wife.
2. The trial court convicted the appellant and her father for commission
of offence under Section 302 read with Section 34 IPC and Section 201 IPC
and sentenced them to undergo imprisonment for life and imposed a fine of
Rs.1,000/- and in default to undergo simple imprisonment for six months and
also to undergo one year simple imprisonment under Section 201 IPC. The
appeal, preferred before the High Court, was allowed in respect of the
father of the accused, but the conviction and sentence of the appellant has
been affirmed. Aggrieved thereby the appeal has been preferred.
3. It was submitted on behalf of the appellant that the chain of
circumstances is not complete so as to fasten the guilt upon her. The
confession made by the appellant to P.W.4 is not worthy of acceptance and
made to police is inadmissible in evidence. There was no reason for the
appellant to make a confession to Susheela, P.W.4 as she was not having
good relations with her. The recovery of the body is not at the instance
of the appellant and the recovery of the motor bike and nylon saree is of
no value. The prosecution has failed to examine the material witnesses.
It was submitted that the appellant has in statement under section 313
Cr.P.C. mentioned that she had gone to the police station along with
photograph of the deceased on 23.5.2005 when there was beat of drum in the
village by which she came to know that a body was found below the bridge of
the canal. It was submitted that the appellant is innocent and deserves to
be acquitted.
4. It was contended by the learned counsel appearing on behalf of the
State of Tamil Nadu that the accused and the deceased used to quarrel
frequently. It was the habit of the deceased of drinking alcohol and
indulge in gambling. Once the accused persons came to know of the
deceased having entered into agreement of sale, they had decided to get rid
of him and thereby murdered him and threw the body below the bridge of the
canal. The deceased was last seen in the company of the accused. It was
submitted that the extra-judicial confession made by the appellant to P.W.4
and recovery of motor bike and nylon saree which was used for committing
murder show that the chain of circumstances is complete. The appellant did
not disclose the fact of disappearance of the deceased from 16.5.2005 to
31.5.2005 to the police and she was not the person to identify the articles
belonging to the deceased. The deceased was identified by the articles
i.e. chappal, shirt etc. by Susheela, P.W.4. It was therefore submitted
that the conviction recorded by the trial Court and affirmed by the High
Court calls for no interference in the appeal.
5. The case depends upon the circumstantial evidence and the extra-
judicial confession made by the appellant to Susheela, P.W.4, sister of the
deceased. This is trite law that the chain of circumstances should be
complete to fasten the guilt on the accused.
6. Firstly, we will examine whether the extra-judicial confession which
is a weak kind of evidence, inspire the confidence. Susheela, P.W.4 has
stated that Murugesan was married to the appellant 14 years before the
incident. She came in search of his brother Murugesan to the house of the
deceased. Murugesan has told her on 12.5.2005 that appellant had
threatened to kill him as he was habitual of consuming alcohol. When she
did not receive any telephone call for 15 days from the deceased, she went
to his village. On enquiry she was informed by the appellant that she, her
nephew Prakasam and father murdered the deceased and threw his body under
the bridge. Susheela, P.W.4 further stated that the appellant touched her
legs and stated that she would give properties of her father to two
children and that she should not inform the police. Thereafter, P.W.4
went to the police station on the same day and lodged the complaint –
Ex.P2. The police showed her the photograph, shirt and slippers and asked
her to identify the same. She identified them to be of her brother. She
has further stated to have gone to police station after 5 days with
photograph of deceased. In the cross-examination, she has also stated that
she had signed the agreement for sale of land executed by the accused. It
is apparent that accused was not having good relationship with Susheela,
PW.4. Making confession to such an inimical person is most unlikely. When
the witness had gone in search of the deceased to the house of the accused
it is most unlikely that the confessional statement would be made to her
readily. It is not that the appellant had gone to the house of P.W.4 to
make the confession. On the other hand query was made by the daughter of
the deceased to Susheela, P.W.4 as to the whereabouts of the deceased,
meaning thereby the whereabouts of the deceased were not known even to his
daughter. In case the deceased had been killed in the house, perhaps the
daughter would have known about the offence having been committed by the
accused.
7. In Sahadevan and Anr. v. State of Tamil Nadu (2012) 6 SCC 403, it has
been observed that extra-judicial confession is weak piece of evidence.
Before acting upon it the Court must ensure that the same inspires
confidence and it is corroborated by other prosecution evidence. In
Balwinder Singh v. State of Punjab 1995 Supp (4) SCC 259, it has been
observed that extra-judicial confession requires great deal of care and
caution before acceptance. There should be no suspicious circumstances
surrounding it. In Pakkirisamy v. State of Tamil Nadu (1997) 8 SCC 158 it
has been observed that there has to be independent corroboration for
placing any reliance upon extra-judicial confession. In Kavita v. State of
Tamil Nadu (1998) 6 SCC 108 it has been observed that reliability of the
same depends upon the veracity of the witnesses to whom it is made.
Similar view has been expressed in State of Rajasthan v. Raja Ram (2003) 8
SCC 180, in which this Court has further observed that witness must be
unbiased and not even remotely inimical to the accused. In Aloke nath
Dutta v. State of West Bengal (2007) 12 SCC 230 it has been observed that
the main features of confession are required to be verified. In Sansar
Chand v. State of Rajasthan (2010) 10 SCC 604 it has been observed that
extra-judicial confession should be corroborated by some other material on
record. In Rameshbhai Chandubhai Rathod v. State of Gujarat (2009) 5 SCC
740 it has been observed that in the case of retracted confession it is
unsafe for the Court to rely on it. In Vijay Shankar v. State of Haryana
(2015) 12 SCC 644 this Court has followed the decision in Sahadevan
(supra).
8. In the circumstances of the case, the confession made to Susheela,
PW.4 does not inspire evidence. She was not having good relationship with
accused and is not corroborated by other evidence on record, hence, it
would not be safe to act upon it in the facts and circumstances of the
case. The extra-judicial confession made to police is admissible only with
respect to the recoveries made of the moped as well as a piece of nylon
saree, pursuant to the information, which articles are not proved to be
connected with offence.
9. Firstly, we deal with the recovery of the Bajaj moped at the instance
of the appellant. It is deposed by Soundarrajan, P.W.12 that he was
running a cooking gas agency and the absconding accused Prakasam was using
Bajaj M-80 motor cycle to deliver gas cylinders. The appellant accused was
first brought by the police to his residence and later on to shop, and the
vehicle was recovered by the police from his shop along with certificate of
the registration. Prakasan had taken one week leave from him and
thereafter did not turn up.
Though the prosecution has alleged that Bajaj M-80 vehicle was used
to carry the body of the deceased by Prakasam and the appellant and they
were seen by two witnesses while going towards canal. But the said
witnesses had not been examined in the court by the prosecution for the
reasons known to it. Thus the prosecution has failed to establish that
the vehicle in question was used for carrying the body of the deceased and
it was so carried as alleged. The vehicle has been recovered from its
owner with no blood stains. It was not in possession of the appellant and
was recovered from the gas agency where it was supposed to be. Merely by
the fact that the vehicle was used by Prakasan for distribution of the
cooking gas cannot be a circumstance so as to fasten the guilt upon the
appellant. It was a well known fact that vehicle was used by Prakasam for
distribution of cooking gas. Use of the vehicle in the offence in question
has not been proved and its recovery which is not from the possession of
the appellant, the same cannot be used as a circumstance to fasten the
guilt upon the appellant.
10. Now coming to the question of recovery of piece of nylon saree. The
statement of Dr. Sivakumar, P.W.20 autopsy surgeon indicates that the body
of the deceased was decomposed. As per chemical test report poison was not
found. There was no wound caused to larynx before death. As the body of
the deceased was highly decomposed the cause of death was not mentioned by
the Doctor, P.W.20 in the post-mortem report. On query being made to him
by the Inspector of Police regarding cause of death, he answered that that
since the body was decomposed he was unable to say so, thus, the cause of
death has not been established. No internal and external injury has been
mentioned in the autopsy report. Thus, the prosecution has not been able
to establish that the death was caused by strangulating the deceased and
the piece of nylon saree was used to cause the death. Hence, recovery of
the piece of nylon saree is of no value as the prosecution has not been
able to link the same with the commission of the offence.
11. The appellant had not kept quiet for 15 days from 16.5.2005 to
31.5.2005. She had clearly stated in the statement under Section 313 that
she had gone to the police station on 23.5.2005 along with photograph of
the deceased and had also stated that the deceased frequently used to go
outside for 2 to 5 days. This explains her conduct, nothing more can be
attributed to her exclusive knowledge which she was required to explain
within the purview of Section 106 of the Evidence Act. Knowledge of any
other fact is not attributable to her in view of the evidence adduced in
the case. Thus, the submission based upon the provisions contained in
Section 106 is of no avail to the respondent.
12. The prosecution has also not led evidence that the appellant was ever
required to identify the articles of the deceased. There is nothing on
record indicating that they were shown to her for the purpose of
identification and she had refused to identify them. There is
contradiction in the version of Susheela P.W.4 as to when she identified
the deceased. On one hand, she had stated that she did so on 31.5.2005, on
the other hand, she has stated that she went to the police station with the
photograph of the deceased after five days thereof.
13. In the instant case, which is based on the circumstantial evidence,
particularly when the body has not been recovered at the instance of the
accused, the recoveries of moped and piece of nylon saree which were made
are not proved to be related to commission of offence, they are not proved
to be incriminating materials. The extra-judicial confession made by the
appellant to Susheela, P.W.4 is prima facie unusual and doubtful and is not
corroborated by other evidence on record. Merely, the fact that the
deceased had left the house on 16.5.2005, as per version of appellant,
cannot be used as a circumstance against her so as to fasten guilt. The
deceased used to drink alcohol and used to spend money recklessly. Due to
his bad habits, there may be so many enemies of him. How the deceased
spent the amount of Rs.1,30,000/- which he received on execution of
agreement is not on record. The prosecution has not been able to complete
the chain of circumstances so as to fasten the guilt and to prove the
commission of offence by the appellant beyond periphery of doubt. The
father of appellant has also been extended benefit of doubt. As such, the
appellant is entitled for benefit of doubt in view of the evidence which
has been adduced by the prosecution.
14. Resultantly, the appeal is allowed. The appellant is acquitted
giving her the benefit of doubt. The judgments and orders of the courts
below of conviction and sentence are quashed and set aside.

………………………………J.
[Jagdish Singh Khehar]

…………………………….J.
[Arun Mishra]
New Delhi,
August 12, 2016.

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