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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

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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

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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.  

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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

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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

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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 confidence.  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

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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.

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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

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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

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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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ITEM NO.1A               COURT NO.3               SECTION IIA

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Criminal Appeal  No(s).  1791/2010

KALA @ CHANDRAKALA                                 Appellant(s)

                               VERSUS

STATE TR.INSP.OF POLICE                            Respondent(s) [HEARD BY HON'BLE JAGDISH SINGH KHEHAR AND HON'BLE ARUN  MISHRA,JJ.]

Date : 12/08/2016 This appeal was called on for judgment today.

For Appellant(s) Mr. Sunil Fernandes,Adv.                    Mr. Puneeth K.G, Adv.

Ms. Mithu Jain, Adv. Ms. Astha Sharma, Adv.    

For Respondent(s) Mr. M. Yogesh Kanna,Adv.                    Ms. Nithya, Adv.   

Hon'ble  Mr.  Justice  Arun  Mishra  pronounced  the  judgment  of  the

Bench comprising Hon'ble Mr. Justice Jagdish Singh Khehar and His Lordship.

For the reasons recorded in the reportable judgment, which is placed

on the file, 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.

The appellant shall be released forthwith, if not required in any other

case.

 (Renuka Sadana) (Parveen Kumar)  Assistant Registrar    AR-cum-PS