CRL A/334/1995 of Vs on 4 December 2003

:JUDGMENT

M.THANIKACHALAM, J.

The accused in S.C. No.34/93 on the file of PrincipalSessions Judge, Salem is the appellant.

2. The accused/appellant was directed to face theprosecution, for the offence under section 302 IPC on the ground that he hadcommitted the murder of his brother's wife, by name Pushpa, on 29.9.91 with anintention to commit murder, by causing cut injuries, at about 12 noon.

3. Upon considering all the materials placed before him, thelearned Principal Sessions Judge satisfied himself, to proceed further afterframing the charge against the accused. The accused refused to plead guilty,when the charge was explained to him, thereby compelling the prosecution tomake out a case, for his conviction.

4. On behalf of the prosecution, to prove the charge, 16

witnesses have been examined, seeking aid not only from 23 exhibits, but also from material objects. The scanning and the weighing of the above materials,in its proper perspective, revealed the fact that the accused had committedthe murder of his brother's wife by using M.O.12, causing cut injuries. Thus,concluding the learned trial Judge, by his judgment dated 27.4.93, convictedand sentenced the accused under section 302, IPC to undergo life imprisonment,which is in challenge before us.

5. Facts in brief leading to the conviction:- The accused is the younger brother of Thiru Boomi Udaiyar (PW1). PW1 married one Pushpa, ashis second wife after the demise of the first wife, by name Pappathi. PW1 hasa son and a daughter through the first wife. The son's name is Kesavamurthi,and the daughter is Sasikala (PW2). They are all residing in the same house.

6. The accused had illicit intimacy with the wife of PW1 and the same was one day witnessed by PW1, when they were in a compromising mood.In order to solve the dispute, PW1 convened a panchayat which was presided byMurugesa Udayar (PW5) on 28.9.91. In the panchayat, PW4 — Pachamuthu alsoparticipated since he was present when the dispute had arisen between theparties on 26.9.91. In the panchayat, the accused and Pushpa were called andafter discussion, the accused was directed to pay a fine of Rs.300/-, withwarning to discontinue their illegal activities, which caused irksome to theaccused, resulting warning also, to Pushpa aiming her life. When thisbehaviour of the accused was noticed by PW5, he also warned him to behaveproperly, at least thereafter. The accused felt that he was put to shame,before the panchayatdars and decided to take vengeance.

7. On 29.9.91, PW1 went to the lands for his day-to-day work.

PW2 and her step-mother namely, Pushpa were in their house, and it seemsPushpa was in the cattle shed. The accused came there, at about 12 noon inM.O.13 cycle, having koduval M.O.12 hanged in the handle bar. It waswitnessed by Parvathi (PW3). The accused assaulted Pushpa, causing multiplecut injuries, which was witnessed by PW2. PW2 immediately informed the sameto his father PW1. The accused after assaulting Pushpa returned in the samecycle (MO13) which was also witnessed by PW3. At about 12.30 pm on the sameday, when PW8 was doing his agricultural work the accused went there. Byseeing the blood stain in the dress, when PW8 questioned, the accusedconfessed about his act namely, cutting the wife of his brother. Thereafter,leaving the cycle with the custody of PW8, informing him, that he isproceeding to Kollimalai, the accused left the place of PW8.

8. On information by PW2, when PW1 went to the scene of crime he noticed the dead body of his wife, and therefore, in order to have redresshe approached the police at about 2 pm.

9. Thiru Chinnathambi, the then Sub Inspector of Police, Erumapatti police station, on the basis of the information furnished by PW1,reduced the same into writing (Ex.P1) and on that basis he registered a casein Crime No.391/91 under section 302 IPC, for which he submitted the printedFIR Ex.P21 to the court concerned, marking a copy also to the Inspector ofPolice for investigation.

10. Thiru Muthusamy (PW16) on information went to Erumapatti police station and obtaining a copy of the printed FIR, reached the scene ofcrime, inspected the premises, in the presence of the witnesses and preparedobservation mahazar Ex.P2, as well as sketch Ex.P22 in addition to makingarrangement for photos, being taken through PW10. Between 4.30 and 8.00 pm,PW16 conducted inquest in the presence of panchayatdars as well as examinedthe witnesses, and the result is Ex.P23 inquest report. To ascertain further,the actual cause of death, the body of Pushpa was sent for postmortem with arequisition Ex.P16, through PW14, from the place of crime. PW16 incontinuation of the investigation seized M.Os.7, 9, 10 & 11 in the presence ofthe witnesses under the cover of mahazar Ex.P3.

10. On 30.9.91 at about 11 am as per the request made by the investigating officer under Ex.P14, PW12 conducted an autopsy over the body ofPushpa which revealed the following external injuries:

(1) Incised injury of about 15 cm x 3 cm x bone deep over the right side ofthe face starting from the angle of the right eye running backwards to theback of the mastoid region, the muscles and the bone underneath are cutthrough on exploration clotted blood seen.

(2) Incised injury of about 15 cm x 4 cm x bone deep about the left ear to theback of the neck. On exploration the muscles and the bone underneath are cutthrough, blood clots are also seen.

(3) An incised injury of about 10 cms x 3 cms x bone deep starting from thechin running backwards to the right side of neck exposing the cut ends ofmuscles and vessels in the neck on exploration clotted blood seen.(4) Incised injury of about 15 cms x 7 cms x bone deep from the lateral end ofinjury No.3 running backwards to the left side and join with the injury No.2the severed ends of muscles and bones all seen through clotted blood is seenon exploration.

(5) A small abrasion of about 1 cm x 1 cm over the right side chest.

The doctor analysing the above injuries and the damage caused by thoseinjuries, internally, was of the opinion that the deceased died due to shockand haemorrhage caused by multiple injuries, which are incorporated in Ex.P15.

11. On 30.9.91 at about 6 am the Village Administrative Officer, PW7 was in his office with one Karunanidhi. At that time the accusedcame there and confessed, that he had committed the murder of his brother'swife, due to the previous enmity as well disclosing the concealment of theweapon etc. This was reduced into writing by PW7, as Ex.P4 in whichKarunanidhi also signed. Thereafter he handed over the confession statementEx.P4 to the Inspector of Police, along with the accused.

12. The investigating officer PW16, at about 8 pm on 30.9.91, on the surrender of the accused through the Village Administrative Officer,along with Ex.P4, arrested him and further enquired. The accused voluntarilygave a confession statement (Ex.P5), disclosing the place where the weapon isconcealed, in the presence of PW7 and another witness. PW16 noticed the bloodstain, in the shirt and dhoti worn by the accused (M.Os.15 and 14), which wererecovered under Ex.P8. In pursuance of the confession statement, M.O.12koduval was also recovered by PW16, under Ex.P6. Thereafter, he has also

identified the cycle which was recovered from PW8, under Ex.P7. Examining theother witnesses recording their statements, concluding the investigation, thematerial objects seized were also sent for chemical examination. In addition,PW16, made arrangements for recording section 164 statements of the witnesses,through PW11 Judicial Magistrate, Rasipuram. The entire investigation so doneby PW16, brought to surface the guilt of the accused and in this view he laida final report before the appropriate court, leading to trial culminating in aconviction as stated above, giving a cause of action for the appellant, toprefer this appeal. In this way the judgment of conviction and sentence ofthe trial court is in challenge before us.

13. Heard Mr.S.Ashokkumar, learned counsel appearing for the appellant and Mr.V.Jayaprakash Narayanan, learned Government Advocate for theState, who took pain of taking us through the oral evidence as well as thedocumentary evidence, to dwell upon the matter, for deep consideration.

14. The learned counsel for the appellant attacked the trial court verdict mainly on the following grounds:

(1) The alleged motive is not at all proved and even if proved, that could notbe the cause for the murder;

(2) that the only alleged eye witness PW2 turned hostile, because of the factshe could not have seen the incident;

(3) that the alleged extra judicial confession said to have been given by the accused to PW7 is a myth and the alleged extra judicial confession must be thehandy work of the police, which could not be the basis for conviction underlaw since inadmissible also; and

(4) that the accused was seen near the scene of crime sought to be introduced through PW3 is an imagination. On these lines, the learned counsel urged thatthe trial court without properly appreciating the case, erroneously convictedthe accused, failing to give at least the benefits of doubt, which should bemade available to him at least in this court, thereby acquitting from thecharges.

15. Learned Government Advocate (Crl. Side) would contend that though PW2 turned hostile there are unimpeachable circumstantialevidence, encircling the accused in proving the crime, that there is no reasonof any kind to discard the extra judicial confession given by the accusedbefore the Village Administrative Officer which could form the basis forconviction, since corroboration is available in plenty from the othercircumstances also. In this view, he supports the reasonings, findings andconviction rendered by the trial court.

16. The accused is the younger brother of PW1. PW2 is the daughter of PW1 and the deceased Pushpa. PW4 and PW5 are the neighbours. Itis also an admitted fact, that the accused and the deceased were living in thesame house in different portion. The first wife of PW1 by name Pappathi andthe wife of the accused are sisters. The second wife of PW1, Pushpa, wasmurdered on 29.9.91 at about 12 noon, when she was in her cattle shed. It isthe case of the prosecution that the accused alone had committed the murder bycutting her with MO12, which was witnessed by PW2. Unfortunately for theprosecution and we could say, fortunately for the accused, PW2 failed to

support the case of the prosecution. The fact that Pushpa was murdered,informed by PW2 to PW1, is not in dispute. PW2 would state that herstepmother was done to death by Kesavamurthi, her brother, who was alsopresent in the house on that day, though he was working elsewhere, as cleaner.Thus, PW2 had tilted the case, informing that Kesavamurthi is the cause forthe death. Kesavamurthi being the son of the deceased, as well as PW1, theprosecution ought to have examined him, as a witness to rule out thepossibility of himself, involving in this incident, that too, because of theevidence given by PW2 since circumstantial evidence is relied on. But,unfortunately Kesavamurthi is not examined. Be that as the case may be, thefact remains PW2 turned hostile. The reason alleged by the prosecution, fornot supporting the case also, appears to be unacceptable. Admittedly, P.W.1is the father of P.W.2 and the deceased is the mother. The accused is thejunior paternal uncle of P.W.2 i.e. the brother of P.W.1. On the basis ofthe relationship, question of choosing the relation comes for consideration,generally it should be in favour of the father and the mother. But, P.W.2disowned the prosecution case, though the prosecution say that accused hadcommitted the murder of the mother of P.W.2. This would indicate P.W.2 hadnot witnessed the incident or if she had witnessed the incident as spoken byher, then the murder might have been committed by Kesavamurthi.Unfortunately, ignoring this aspect, the trial Court has taken a contrary viewand believed the extra judicial confession, ignoring the account of eyewitness. Thus the prosecution case is weakened, we could say, at least tocertain extent.

17. PW11 had recorded the statements of witnesses under section 164 Cr.P.C. and they are also exhibited. But, unfortunately, afterPW2 was treated hostile, the statement said to have been given by her, beforethe Judicial Magistrate, was not put to her, either for confirmation ordenial. Therefore, the statement said to have been given by PW2, willingly,before the Judicial Magistrate became useless, the fact being the same is notthe substantial evidence. In this view, the entire oral evidence of PW2 hasbeen vanished. Therefore, the prosecution at present is mainly depending uponthe circumstantial evidence, to prove the offence, supported by the extrajudicial confession. Before scanning the above materials, we will find outthe cause, for the death of Pushpa.

18. At the request of the investigating officer under Ex.P14,

PW12 conducted autopsy over the body of the deceased Pushpa. The doctor hadnoticed five injuries, as narrated above. Out of five injuries, four injuriesare incised wound and those injuries alone caused shock and haemorrhage,resulting the termination of the life of Pushpa prematurely. When the doctorhad spoken about the injuries and the cause of death of Pushpa, as narrated inEx.P15 also, the same is not challenged. The doctor also opined, that theinjuries noted by him would have been caused by a weapon like MO12, which isalso not challenged. Therefore, if the prosecution proves to the satisfactionof the court, inspiring confidence in the mind, that the injuries noted inEx.P15 were inflicted by the accused using MO12, then there is no way for theaccused, to escape from the clutches of section 302 IPC. On the other hand,failure to prove or if there is any possibility to infer, that the incidentmight have been taken otherwise also, then spontaneously a doubt would arise and the accused would be entitled to his benefits under the criminaljurisprudence.

19. In a case of circumstantial evidence, the circumstances relied on by the prosecution, should encircle the accused leaving no scope orpossibility for the accused to escape from the said circle. For this, thereshould be no crack or snap in the chain of events of circumstances. Even ifone link is broken, then the possibility comes, automatically, for the accusedto escape through that gap. In this case the circumstances mainly relied onby the prosecution are,

(1) there was enmity based upon motive between the deceased and the accused;

(2) that when the accused came to the scene of crime with M.O.12 in M.O.13, itwas witnessed by PW3 as well as when he left the scene of crime, it waswitnessed by him;

(3) that after the incident he confessed before PW8, and left the placeleaving the cycle in the custody of PW8, which was later recovered on theconfession of the accused;

(4) that the accused had given a confession before the Village AdministrativeOfficer, which is generally called 'extra judicial confession', wherein heconfessed the guilt;

(5) that in the dresses worn by the accused blood stains were noticed, immediately to the occurrence not only by PW8 but also at the time of arrestby the investigating officer; and

(6) that the weapon M.O.12 and the cycle M.O.13 were recovered, on the voluntary confession given by the accused. On the above circumstances, thelearned Government Advocate would submit that the case is proved beyond allreasonable doubts.

20. In a case of circumstantial evidence the motive should

play prominent and predominant role though it may not be so essential, whereocular evidence is available in plenty. It is the case of the prosecution,that the accused had illicit intimacy with the wife of PW1, and the same wasnoticed by him also. PW1 would state that he suspected the fidelity of hiswife, since his wife returned with his brother in the same bus, though he lefther at Ramuudayanur village for performing the 'nombu'. He would furtherstate, that in the month of 'Adi' he has seen the accused and Pushpa lyingtogether in a compromising mood. If this is the fact, what should be thenatural reaction of a husband, is the question. The answer should be, heought to have reacted and assaulted the accused or attempted to assault theaccused and the wife, also questioning their conduct. Admittedly it is nothappened, whereas a theory of panchayat is introduced, which appears to behighly unnatural. This theory was not disclosed to the Investigating Officeralso when P.W.1 was examined, thereby showing that this must be an afterthought. According to PW1 he convened a panchayat, which was attended to byPW4 and PW5. In the panchayat, it seems Pushpa has not supported the accusedand therefore, it is the case of the prosecution, the accused has beenaggrieved and decided to commit murder. The reasoning given so, appears to beflimsy and unnatural in our view. If the accused and the deceased had illicitintimacy, then Pushpa would not have disclosed the same before the panchayatand she would have taken all possible steps generally to save her paramour.Even assuming that Pushpa failed to support the accused, the grievance of the accused must be against his brother-PW1, since he alone took the accusedbefore the panchayatdars, thereby reducing his image since it is saidpanchayatdars imposed fine. Therefore, the evidence given by PWs.1, 4 and 5that the accused warned Pushpa, even before the panchayatdars, appears to besome what unnatural and unacceptable to us. In this view, we conclude thatthis motive part alleged by the prosecution is flimsy and unacceptable.Assuming that the oral evidence of PW1 could be accepted, supported by PW4 andPW5, in our opinion, the motive is not connected with the subsequent events,and therefore, proof of motive alone will not take us to the irresistibleconclusion, that the accused would have committed the murder of Pushpa, sincewe find so many grey area in the case of the prosecution, unexplained andunsupported by any acceptable evidence.

21. Ex.P1-complaint, given by PW1 set the law in motion.

Admittedly PW1 is not the eye witness. Therefore, the statement recorded onthe information furnished by PW1 could not be taken as true unlesscorroborated. It is the case of PW1 also, that on the information furnishedby PW2, he came to know the involvement of the accused, in murdering his wifePushpa. The person, who is said to have informed the actual incident, asaforementioned, turned hostile and thereby the chain is snapped. In thisview, the averments in Ex.P1 would not support the case of the prosecution,except if at all the motive. In this view, though there is no delay inpreferring the complaint, we are unable to accept the contents therein ascorrect and the averments in the complaint could not be treated as substantiveevidence also.

22. Learned counsel for the appellant submits, that the case

22. Learned counsel for the appellant submits, that the case spoken to by PW3 that she had seen the accused just prior to the occurrencemust be incorrect, appears to be correct, by going through her evidence. Theincident took place on 29.9.91 Sunday. But PW3 would state that she had seenthe accused 1 = years ago, in the month of ' Purattasi' on the second Saturdayat about 12 noon. If the evidence is to be accepted as such it would indicatethat PW3 might have seen the accused, not on the date of the occurrence, butprevious to the date of the occurrence, which would not be sufficient toconclude, that he would have committed the murder of the deceased, on 29.9.91Sunday at 12 noon. Even by way of re-examination, it is not clarified how PW3has given the day as Saturday, the admitted fact being, the incident tookplace only on Sunday. She would state further, that the accused went in acycle, having the koduval in the handle bar. She has neither identified thecycle, nor the koduval at the time of examination in chief. Only after thecross examination, when she was examined with the permission of the court, shehad identified M.O.13, where also she failed to identify the koduval. Shewould state, that the accused, who crossed her, returned within 5 or 10minutes. It is the case of the prosecution that M.O.12 was used, to cause cutinjuries to the deceased Pushpa. Hence, if really PW3 had witnessed theincident, then she ought to have noticed the weapon with blood, which she hasnot spoken. Therefore, the evidence given by PW3, failed to substantiate the' last seen' theory just prior to the incident, in order to indict the accusedwith the crime. Even assuming that PW3 has given the day, due to failure inmemory as Saturday, instead of Sunday, in our opinion, in the absence ofidentification of the weapon, it is not possible to conclude that the accused alone should have committed the murder of Pushpa that too, in the face of thestatement given by PW2, that her brother Kesavamurthi had committed themurder. Further, she has also not identified the shirt and dhoti, worn by theaccused at the time of the incident, which is sought to be introduced by theinvestigating officer, as if recovered with blood stains. In this view alsothe last seen theory automatically vanishes and on the basis of thiscircumstance connecting or roping the accused, with the crime is animpossibility.

23. On the basis of the extra judicial confession said to have been given by the accused to PW8 a case is sought to be made out.Learned counsel for the appellant submits that the oral evidence of PW8 ishighly artificial and believing his evidence is unsafe. According to PW8, on29.9.91 at about 12.30 pm the accused came to his land in the cycle and hisdresses were seen with blood. On enquiry, according to PW8, the accusedconfessed to him, about the murder committed by him. If it is so, what shouldbe the reaction of P W8 is the question. He also belongs to the same villageand he is known to PW1 also. Therefore, his immediate reaction would havebeen to inform at least PW1 about the crime committed by his brother. But PW8has not acted as a reasonable man expected to be, which would show the casespoken by PW8, that the accused had confessed about his guilt, must be theimagination of the investigating officer, through PW8. The inaction and theabsence of immediate reaction on the part of PW8, prompt us to say that theaccused would not have confessed to him, about the murder said to have beencommitted and that is why he had not acted as a prudent man, in not evenreporting the matter, either to the police or to PW1 and our view is supportedby the decision in Kali Ram v. State of Himachal Pradesh {(1973) 2 SCC 808}wherein the Supreme Court ruled that "if another witness came to know of themurder, his failure to make a statement to the police regarding the confessionmade by the accused to the witness would deprive his evidence of much of itsvalue."

24. The strong piece of evidence relied upon by the

24. The strong piece of evidence relied upon by the prosecution is the extra judicial confession given by the accused to PW7 thatis, Ex.P4. It is an admitted position, that extra judicial confession is aweak piece of evidence and unless it is corroborated by other unimpeachablecircumstances; relying upon the extra judicial confession alone, convictingthe accused would be unsafe. In this view, we have to see, when the extra judicial confession was given, what is the evidentiary value of the said extrajudicial confession, whether it is corroborated and confirmed by otherattending circumstances to have the sanctity.

25. Learned counsel for the appellant attacks the validity of Ex.P4 , mainly on two grounds namely; (1) that Ex.P4 would not have come intoexistence as indicated in the document, and it must be the handy work of theinvestigating officer, (2) that the extra judicial confession is hit by notonly under Rule 72 of the Criminal Rules of Practice, but also under section162 Cr.P.C. In this case F.I.R. was registered on 29.9.91 itself, therebyindicating investigation commenced on the same day, and it is the case of the prosecution also. The Criminal Rules of Practice are framed by the HighCourt, in exercise of the powers conferred by Article 227 of the Constitutionof India, with the previous approval of the Governor and therefore, generallyit should have the enforcing effect. Rule 78 says "Village Magistrates areabsolutely prohibited from reducing to writing any confession or statementwhatever made by an accused person after the police investigation has begun."Thus it is seen, a prohibition is imposed upon the Village Magistrates fromrecording any statement that too, confession also. Admittedly in this case asspoken by PW7 the extra judicial confession was recorded on 30.9.91 at about 6am, that is, after the investigation has begun. Therefore, Ex.P4 is hit byRule 72. On this basis, the learned counsel for the appellant submits, thatno reliance could be placed upon Ex.P4. On the other hand, learned GovernmentAdvocate relying upon a decision in Sakthivel v. State {(2003) M.L.J. (Crl.)752) would contend, that the extra judicial confession is admissible inevidence and in this view, it is not possible to ignore the same in toto. Inthe above ruling, a Division Bench of this Court had taken a view, seekingsupport from the previous decisions also as under:

"The extra-judicial confession given by the accused to P.W.9, though wassubsequent to the beginning of investigation, is not inadmissible in evidence,only its evidentiary value is reduced. Therefore, Ex.P-3 is admissible inevidence."

Here, the admissibility of the extra judicial confession namely, Ex. P4 aloneis not in question and its genesis also questioned, in the sense the accusedhas not given the extra judicial confession and even if it is given, it is hitby section 162. Therefore, if at all it could be said on the basis of theabove decision Ex.P4 is admissible in evidence and it is still open to testthe evidentiary value of Ex.P4 subject to other conditions regardingadmissibility under Section 162 Cr.P.C. In this view relying on Ex.P4 as suchis not possible to sustain the conviction.

26. In re Lakshmanan (1971 M.L.J. Criminal 178) a Division

Bench of this Court, had an occasion to consider Rule 72 of the Criminal Rulesof Practice. It is held, the rule was intended to prevent false extrajudicial confession being secured with the help of village munsif, after thecommencement of the investigation. This safeguard provided under Rule 72,must be strictly construed, otherwise there is every possibility for theinvestigating officer to take this kind of extra judicial confession, from anobliging Village Administrative Officer, diverting the facts to certainextent, creating false evidence or twisted particulars to suit the case,according to the whims and fancies of the investigating officer, causinginjustice. In the above ruling it is held by the Division Bench as follows:"Under Rule 72 of the Criminal Rules of Practice, the "Village Magistrates areabsolutely prohibited from reducing to writing any confession or statementwhatever made by an accused person after the police investigation has begun".It was intended to prevent false extra judicial confession being securedthrough the help of the village munsif, after the commencement of theinvestigation. The extra-judicial confession itself is a weak evidence, andits value becomes less when it is obtained by a person, in the position of thevillage munsif after investigation of the case by the police has started. But on a careful examination of the relevant provisions relating to the matter, itis not possible to state it is illegal or inadmissible in evidence, though theweight to be attached to the same may be a relevant question for considerationon the facts and circumstances of each case."

27. In Raju & 2 others v. State, etc. (1995-2-L.W. (Crl.)

513) a Division Bench of this Court had ruled, that confession made to VillageAdministrative Officer, two weeks after the occurrence is unreliable. But, inour case the confession statement was said to have been recorded on the verynext day, and therefore, if the confession statement is proved to be true, andgenuine relying upon that statement may be permissible, to certain extent.

28. In Ganesan v. State rep. by Inspector of Police, Harur Police Station (2002-2-L.W.(Crl.) 746) a Division Bench of this Court has onceagain, ruled that though it is not possible to state that the confessionstatement recorded by the Village Administrative Officer is illegal orinadmissible, the probative value would depend on the facts and circumstancesof the case. Thus making it clear a confession statement even could berecorded after the investigation has begun, despite the prohibition containedin Rule 72 and its probative value has to be tested, depending upon the factsand circumstances of the case.

29. The main thrust of the learned counsel for the appellant

is, that even assuming that the Village Administrative Officers are nottotally barred from recording an extra judicial confession by Rule 72, if thestatements are recorded, after the investigation has begun, then it should behit by section 162 Cr.P.C. Section 162 Cr.P.C. prohibits, totally the use ofany such statements or any record thereof, whether any police diary orotherwise or any part of such statement or record to be used for any purposesave as provided under the proviso. Certainly Ex.P4 would not come under theproviso to section 162. It is the specific submission of the learned cou nselfor the appellant that Ex.P4 comes within the four walls of section 162Cr.P.C. and for that purpose, much reliance is placed upon the decision inKali Ram' s case cited supra {(1973) 2 SCC 808}. In the case involved in theabove decision, a letter containing narration of facts relating to the crimeaddressed to a police officer, during the course of investigation was soughtto be relied upon, to prove the guilt of the accused, where it seems he hadconfessed the crime. The letter was not obtained by the police, whereas itseems it was addressed from elsewhere to police officer but during the courseof investigation. The Apex Court considering the effect of Section 162Cr.P.C. laid down the law, which reads thus:

"The prohibition contained in Section 162 related to all statements madeduring the course of an investigation. The letter which was addressed by 'S'to Station House Officer was in the nature of narration of what, according to'S' he had been told by the accused. Such a letter would constitute statementfor the purpose of section 162, Cr.P.C. The prohibition relating to the useof statement made to a police officer during the course of an investigationcannot be set at naught by the police officer not himself recording thestatement of a person but having it in the form of a communication addressedby the person concerned to the police officer. If a statement made by a person to a police officer in the course of an investigation is inadmissible,except for the purposes mentioned in Section 162, the same would be true of aletter containing narration of facts addressed by a person to a police officerduring the course of an investigation. It is not permissible to circumventthe prohibition contained in Section 162 by the investigating officerobtaining a written statement of a person instead of the investigating officerhimself recording that statement."

According to the submission of the learned senior counsel for the appellant,the same analogy is applicable to the statement recorded by the VillageAdministrative Officer also, since Ex.P4 was recorded during the course ofinvestigation. This view is to be taken, in order to prevent the investigating agency to circumvent the prohibition contained in section 162Cr.P.C. In this view, though Ex.P4 was not recorded by the police officer,since the extra judicial confession is said to have been recorded during thecourse of investigation, we are of the opinion, Ex.P4 is hit by section 162Cr.P.C. and in this view it is inadmissible in evidence which should follow,this could not be the strong piece of evidence, to inflict a conviction or tosustain the same.

30. It is pointed out by the learned counsel for the

appellant that Ex.P4 extra judicial confession has not reflected the naturalconduct of the accused and in this view also, the same should be ignored,placing reliance in a decision in Thangavelu v. State of T.N. (2002 SCC(Cri) 1382) in which the Apex Court has ruled as follows:"A perusal of this confession Ext.P-14 gives us an indication of the attemptof the prosecution to build a case against this appellant. Thisextra-judicial confession is so full of facts starting from about 25 yearsprior to the date of the incident and graphically details what happened overthese years to his sister and his family which actually is the motivesuggested by the prosecution for the crime. Ext.P-1 4 is recorded in nearly 4full pages, it not only speaks of his motive to kill D-1 and D-2 but alsogives graphic details of the nature of the attack on the deceased and alsomentions in detail the persons whom he saw during and after the incident. Ina manner of speaking, if this confession is true the appellant had theforesight to guess as to who the prosecution witnesses are going to be andgives an impression, therefore, he was seeking to corroborate their futureevidence. In our opinion, this would hardly be the natural conduct of anaccused if he was voluntarily making a confession. We further notice theunimaginable similarity in Exts.P-14 and P-1 as also in the evidence of PW1which supports the theory of the defence that there was an attempt by theprosecution to create evidence in this case."

This ruling is the answer for the observation in Sakthivel case {(200 3)M.L.J. (Crl.) 752}. In Sakthivel case a Bench of this Court observed thatminute details had been given by the accused which were only to the exclusiveknowledge of the accused and in this view it cannot be said that the samewould have been written by the Village Administrative Officer himself. TheApex Court considering the minute details in the extra judicial confession,has taken the view that there was an attempt by the prosecution to createevidence in this case, is probable. In this view also Ex.P4 is clouded withshadow and requires eradication of the same, for its approval and itsreliability, to act upon.

31. The learned counsel would contend that since the extra

judicial confession viz., Ex.P.4 itself is not reliable or inadmissible, asthe case may be, then the alleged recovery said to have been made on the basisof the extra judicial confession or on the basis of the disclosure statement,also should be held unacceptable, for which we have to subscribe our view. Itis the case of the prosecution that in Ex.P.4 itself, the accused haddisclosed about the whereabouts of the cycle, M.O.13 and the weapon M.O.12.But unfortunately, the investigating officer would state that he had examinedthe accused, recorded Ex.P.5 leading to the recovery of M.Os.12 and 13 underExs.P6 & P.17. If Ex.P.4 is not available, question of Ex.P.5 also would nothave come into existence. Our finding is that Ex.P.4 is inadmissible inevidence and therefore, the case projected on behalf of the prosecution thaton the basis of extra judicial confession, another confession was obtainedfrom the accused, leading to the recovery, is also not acceptable legally.Further, if the accused had disclosed about the whereabouts of cycle andweapon in Ex.P.4, subsequent, alleged confession also would be inadmissible.In this view, we conclude, the recovery spoken by P.W.16, though supported byP.Ws.7 and 8 is not acceptable to us and they are the documents prepared forthe occasion having no evidentiary value.

32. The learned Public Prosecutor would contend that in the dress worn by the accused, Forensic Department have detected 'O' Grouphuman blood as that of the deceased and therefore, it should be taken asstrong circumstantial piece of evidence. This contention could be accepted ifit is true that the shirt and dothi, M.Os.14 and 15 belonged to the accusedand the accused was wearing these dresses at the time of the incident,otherwise it may not be possible to draw a presumption. P.W.3, who claimsthat she had seen the accused, going to the deceased cattle shed, has notidentified these dresses, and P.W.8 who deposed that he had seen the bloodstain in the dresses of the accused also, failed to identify these dresses andno attempt is made on behalf of the prosecution even to show these materialobjects, to these witnesses to identify the same. Here, it is not theadmitted position that these dresses were recovered from the accused thoughclaimed so. Though it is the case of the prosecution that bill hook wasrecovered on the basis of the confession given by the accused, it does notcontain human 'O' Group blood, as seen from Ex.P.19, though it does containhuman blood. Therefore, on the basis of presumption also, fixing this accusedas the murderer is beyond our comprehension.

33. The trial Court in our considered opinion has not properly approached the case of the prosecution, taking into consideration theprobability and other attending circumstances pointed out supra, whereas drawna presumption on its own which is not warranted on the basis of the materialsavailable. Because of the improper approach, the trial Court has committed anerror, in convicting the accused and in this view, we are constrained to setaside the conviction.

34. For the foregoing reasons, the accused/appellant succeeds in

establishing that the prosecution has not made out a case beyond allreasonable doubt, thereby making him fit for acquittal, at least on the basisof the benefits of doubt.

35. In the result, the appeal is allowed and the judgment ofconviction and sentence is set aside and the accused is acquitted of thecharge framed against him. The bail bond, if any, executed by the accused atthe time of coming out on bail shall stand discharged.

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To

1. The Judicial Magistrate No.I, Namakkal.

2. -do- thro' the Chief Judicial Magistrate, Salem

3. The Principal District & Sessions Judge, Salem.

4. The Superintendent, Central Prison, Coimbatore.

5. The Public Prosecutor, High Court, Madras

6. The Inspector of Police, Namakkal Police Station,

7. The District Collector, Salem.

8. The Director General of Police, Mylapore, Chennai — 4.