TaxTMI 
TaxTMI 
2001 (3) TMI 1094
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.... and allowed herself to be gagged and tethered down. What the outsiders saw on the next morning was her being in the above condition and next to her was lying the beheaded body of her husband. 2. 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 Ganondaya 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 dece....
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.... A1 were living. During that period PW38, Cleaner of the car, stayed back in the car. PW15 Chennappa served food and drinks to A2, A3 and A4. After taking their drinks 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. 4. 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 ho....
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....e mid of pool of blood. They also found his legs tied with the rope and a towel. A1 was found tied in the kitchen. When her legs and hands were untied and towel removed from the mouth she did not give any of the reply to the queries made by PW1. 8. 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 Gundogs and his blood stained clothes besides inland letters M.O.s 42 to 48 vide Panchanama Exhibit P-17. A2 ....
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....d imprisonment for life by the trial court, the High Court in its discretion sentenced A3 and A4 also to the life imprisonment. 12. The present appeals have been preferred by A1 to A3 only. A4 Subramani, who was convicted under Section 302 IPC and sentenced to life imprisonment has opted not to file any appeal. 13. 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. 14. 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 sex....
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....sexual offence having been committed upon her. It is unfortunate that in a case like this, the investigating agency did not even think it proper to allege the existence of a criminal conspiracy which, if proved against the other accused, would have proved the commission of offence 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. 17. 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. T....
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.... being as incorporated in sub-section (4) of Section 164 is likely to render the confessional statement inadmissible. The words "shall be signed by the person making the confession", are mandatory in nature and the Magistrate recording the confession has no option. Mere failure to get the signature of the person 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. 20. 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.) 1989 CriLJ 1 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....
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....ulingappa (PW50) failed in the performance of his statutory obligations which has resulted in excluding the otherwise voluntary confessional statement Exhibit P-77 made by A4. Had the said Magistrate taken due care and applied his mind by referring to the bare provisions of Section 164 of the Code, such a glaring 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. 24. 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 record....
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....hat document as extra-judicial confession and the circumstance of A1 being last seen with the deceased not being incriminatory, there is no evidence to hold that she has been proved to be guilty beyond any reasonable doubt. Doubt and suspicion of her involvement in the ghastly crime cannot be ruled out but suspicion, 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 sentence for the commission of the offence of murder of Amarnath, her husband. 27. 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 ....
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....ashamed to address him as her husband and she has challenged saying if time comes she want to see his end in the life. She has stated tat name Reddy annexed to her name is of a person whom she love and given her heart. These words of challenge and that redness towards her husband Amarnath goes to show her mental attitude towards said Amarnath." 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. 30. 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....
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....out 6 or 6.30 p.m. and took tiffin. Chennappa (PW15), who is a supplier in Sambrama Bar at Banswadi has stated that all the three accused A2, A3 and A4 had come to his bar along with another person on that day. They had taken meals and drinks and A2 paid the bill. Similarly Vinayaka (PW45) who is a Bidi Shopkeeper stated that A2, A3 and A4 had come to his shop 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. 33. 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 es....
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....me. PW20 has only stated that immediately after receiving the documents from the owner, the police took him to Chintamani "on the next day I was taken near the Mukunda Theatre. On the next day I was asked to be in the police station itself". The mere fact that he was told to be in the police station does not suggest, much less prove that the witness was an accused person involved 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 h(SIC) 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 co....