S. Nagamuthu, J.@mdashThe appellant is the sole accused in S.C. No. 77 of 2004, on the file of the learned Principal District and Sessions Judge, Madurai. She stood charged for offence u/s 302 of the Indian Penal Code. The Trial Court, by Judgment dated 19.7.2004, convicted her u/s 302 of the Indian Penal Code and sentenced her to undergo imprisonment for life and to pay a fine of Rs. 1,000/-, in default to undergo rigorous imprisonment for one year. Challenging the said conviction and sentence, the appellant is now before this Court with this Criminal Appeal. The case of the prosecution, in brief, is as follows:-
The appellant/accused is the wife of the deceased. The deceased, in this case, was one Mr. N. Ponniah. The marriage between them was celebrated twenty years back. They have got two children, aged twenty years and seventeen years respectively. The deceased had suspicion over the fidelity of the accused. On account of the same, on many occasions, he quarreled with the accused and scolded her in filthy language. The torture meted out by the accused at the hands of the deceased was intolerable. While so, in the farm of one Mr. Jawahar, they got employment. The said farm is at Ammachipuram Village. The accused and the deceased were staying in the Motor Pumpset and looking after the agricultural operations. Mr. Jawahar used to visit the said farm and give instructions to them then and there in respect of the agricultural operations. The deceased had suspicion that the accused had developed illicit intimacy with the said Mr. Jawahar. Alleging such illegal intimacy, on many occasions, the deceased scolded the accused in filthy language. The accused was vexed over the same.
1.1. On 12.8.2003, at about 8.00 p.m., the accused decided to do away with the deceased. The deceased went out from the Motor Pumpset to the field. At that time, the motor developed some snag, Mr. Jawahar came and rectified the same. The arrival of Mr. Jawahar again created a doubt that they had illicit intimacy. Then, he quarreled with the accused alleging that Mr. Jawahar had visited on account of the illicit intimacy with the accused. This provoked the accused to commit the murder of the deceased. She took out an Iron Rod and stabbed the deceased on his stomach. He fell down sustaining serious injuries on the abdomen, The intestine had protruded out. Removing the Iron Bar, the accused came to the Motor pumpset and stayed till 5.00 a.m., on 13.8.2003. Thereafter, she went to P.W. 1 at 9.00 a.m. and made a voluntary confession. P.W. 1 is the Village Administrative Officer. At that time, P.W. 2 and P.W. 3, who are the Village Assistants, were also in the office. In their presence, the accused produced the Iron Bar and orally gave a confession. P.W. 1 reduced the same into writing and obtained her left thumb impression. Exhibit P-1 is the extra judicial confession.
1.2. P.W. 1, thereafter, forwarded the accused and Exhibit P-1 to the police. Based on the same, P.W. 13, the Sub Inspector of Police, Kandamanoor Police Station, registered a case in Crime No. 69 of 2003, u/s 302 of the Indian Penal Code. Exhibit P-6 is the First Information Report. He arrested the accused. Then, he recovered the Iron Bar and the bloodstained sari of the accused. Then, he handed over the case diary for investigation by the Inspector of Police.
1.3. Taking up the case for investigation, P.W. 16 proceeded to the place of occurrence at 11.00 a.m. and prepared an Observation Mahazer, Exhibit P-4 in the presence of two witnesses. Then, he arranged for taking photographs of the place of occurrence by P.W. 11. Then, he conducted inquest on the body of the deceased and prepared Exhibit P-11, Inquest Report. He examined P.W. 1 to P.W. 3 and few more witnesses and recorded their statements. Then, he forwarded the body for postmortem. PW-9, Dr. S. Vasagar, conducted autopsy on the body of the deceased and found the following injuries:-
1. A punctured wound over the left side of the abdomen, oblique in direction, 4 cm left to umblicus, measuring 5 cm x 2 cm x central vertically into the abdominal cavity. Margins are regular and clean. Both ends are pointed and regular. Surrounding contusion present. On dissection of the above injury, through punctured wound piercing the left rectron muscle, and passes down (torn) vertically piercing (torn) small intestine in three place and piercing (torn) the (nc) in three places and ends in the posterior abdominal cavity. This omentum and small intestine injuries are regular and clean. About 2500 ml of Blood collection present over the abdominal cavity. Mescentre vessels are injured over the injured area.
He opined that the deceased would appear to have died of due to shock and hemorrhage due to abdominal injuries. He further opined that the death would have occurred 12 to 16 hours prior to the commencement of postmortem.
1.4. Continuing the investigation, P.W. 16 forwarded the accused and Material Objects to the Court. He made a request to the Court to send the Material Objects including the bloodstained earth recovered from the place of occurrence for chemical examination. Exhibit P-9 is the Chemical Examination Report. According to the same, human blood was found on the weapon. On completing the investigation, he laid charge against the accused.
2. Based on the above materials, the Trial Court framed charge u/s 302 of the Indian Penal Code, The accused denied the same. Therefore, she was put on trial. On the side of the prosecution, as many as sixteen witnesses were examined and eleven documents were exhibited, besides, eight Material Objects.
3. As we have already stated, P.W. 1 to P.W. 3 have spoken to about the extra judicial confession said to have been given by the accused to P.W. 1. P.W. 4 is the owner of the farm, where the deceased and the accused were working. He has spoken to about the repair of the Motor pump on 12.8.2003. P.W. 7 is the brother of the deceased. He has spoken to about the frequent quarrels between the deceased and the accused. Similar is the evidence of PW-8, PW-9, Dr. S. Vasagar, has spoken to about the injuries found on the body of the deceased and the cause of death. The others are the official witnesses.
4. When the Trial Court examined the accused u/s 313 of the Code of Criminal Procedure in respect of incriminating evidences available against the accused, she denied the same as false. However, she did not choose to examine any witness on her side nor to exhibit any document in her defence.
5. In her statement, u/s 313 of the Code of Criminal Procedure, she has stated that on the crucial date at 8.00 p.m., her husband went out from the motor pumpset to witness a movie at Theni. He did not return. On the next day morning, she found her husband dead in the farm She has further stated that she is an innocent and she has not committed the murder of her husband. She has also stated that she was taken to the Police Station, where Exhibit P-1 was prepared on the dictation of the police by P.W. 1, in which, her left thumb impression was obtained. Thus, according to her, she is entitled for acquittal.
6. Having considered the above, the Trial Court convicted her u/s 302 of the Indian Penal Code and punished her accordingly. That is how, the appellant is now before this Court with this Criminal Appeal.
7. We have heard the learned counsel for the appellant and the learned Additional Public Prosecutor and also perused the records carefully.
8. In this case, there is no dispute that the accused and the deceased were staying in the Motor pumpset of the farm house of P.W. 4. There is no eye-witness to the alleged occurrence. The prosecution has to solely depend upon the extra judicial confession (Exhibit P-1), said to have been given by the accused to P.W. 1 and witnessed by P.W. 2 and P.W. 3. The learned counsel for the appellant would submit that the extra judicial confession said to have been given by the accused cannot be believed, as the same is not beyond suspicion. In respect of this argument, the learned counsel for the appellant would submit that P.W. 1 is a stranger to the accused, and therefore, the accused would not have gone to P.W. 1 to make such extra judicial confession.
9. We find some force in the said argument advanced by the learned counsel for the appellant. Admittedly, P.W. 1 is the Village Administrative Officer. The occurrence took place at 9.00 p.m., on 12.8.2003. It is doubtful that till 5.00 a.m., on 13.8.2003, the accused was at home and she did not disclose anything about the alleged occurrence to any body. While so, according to the prosecution, suddenly, on 13.8.2003, at 6.00 a.m., she went to P.W. 1 to make extrajudicial confession, as she did not want any innocent to be taken into task by the police. This version, in our considered view, is difficult to be believed. Apart from the above, Exhibit P-1 has reached the jurisdictional Magistrate only at 12.30 p.m. Absolutely, in respect of the said delay, there is no explanation.
10. Apart from the above, according to the evidence of P.W. 2, in the extra judicial confession, the accused told that the deceased was armed with MO-1 and he attempted to attack the accused and the accused, in retaliation, snatched away the weapon and attacked the deceased. According to P.W. 2, this was the confession given by the accused. But, the evidence of P.W. 1 is that the accused was lying in wait with the weapon for the deceased to come and as soon as the deceased came, she attacked him. Thus, there is a material contradiction in the evidences of P.W. 1 and P.W. 2 in respect of the alleged extra judicial confession.
11. It is the case of the prosecution that MO-1 was produced to P.W. 1 and the same was, thereafter, produced before the police at the Police Station along with Exhibit P-1. But, P.W. 2, during cross-examination, has stated that his signature in the mahazer was obtained in the farm by the police in witness of the recovery of Material Object. This is yet another contradiction pointed out by the learned counsel for the appellant.
12. Nextly, according to the case of the prosecution, MO-2 Sari was recovered by the Village Administrative Officer, as soon as the confession was given, and thereafter, the same was handed over to the police by P.W. 1. But, P.W. 3 would say that the police only recovered the same. This also again goes contrary to the contents of Exhibit P-1.
13. In this regard, we may say that there is no legal bar to solely act upon the extra judicial confession. But, in this case, we find it difficult to act upon Exhibit P-1. To be the sole foundation for placing reliance and base conviction, the extra judicial confession should be free from any doubt. In other words, it should inspire the fullest confidence of the Court. If there are doubts surrounding the extra judicial confession, then, as a rule of caution, in the absence of any corroboration on material particulars, it would not be safe to rely upon the said doubtful extra judicial confession. In this case, admittedly, there is no other evidence to corroborate the extra judicial confession. Instead, as we have already pointed out, there are lot of contradictions between the evidences of P.W. 1, P.W. 2 and P.W. 3 in respect of the extra judicial confession. We are doubtful whether the accused would have gone to P.W. 1 to make confession, when P.W. 1 happened to be a total stranger to the accused. Apart from the above, the accused is an illiterate poor woman, and so, in our opinion, she would not have thought of going to the Village Administrative Officer to make a confession. Thus, in our considered view, it is not safe to rely upon Exhibit P-1 to convict the accused.
14. Assuming that such extra judicial confession was given by the accused, now, there are two versions before this Court, One version is that according to the evidence of P.W. 2, the deceased was armed with MO-1 and he attempted to attack the accused. Then, the accused snatched away the weapon and attacked the deceased. According to P.W. 2, this was the confession given by the accused. But, the evidence of P.W. 1 is that the accused was lying in wait with weapon for the deceased to come and as soon as the deceased came, she attacked him. Thus, there are two versions before the Court. Since they totally contradict each other, either both should be rejected or the version in favour of the accused should be taken into account. If the extra judicial confession, as has been stated by P.W. 2 is taken into account, then, it can also be held that the accused had acted in exercise of right of private defence. In that way also, the conviction of the accused cannot be sustained. Looking at the case from any angle, we are of the considered view that the prosecution has failed to prove the case beyond reasonable doubt, and so, the appellant is entitled for acquittal. In the result, the conviction and sentence dated 19.7.2004 made in S.C. No. 77 of 2004, imposed by the learned Principal District and Sessions Judge Madurai, is set aside and the Criminal Appeal is allowed. The fine amount, if any, paid by her shall be refunded. The bail bond executed by her shall stand terminated.
